ACLU President and Professor of Clinical Law Deborah Archer talks with her presidential predecessor, Susan Herman ’74, about the work ahead.
BY REBEKAH CARMICHAEL
A few months after Susan Herman ‘74, now Ruth Bader Ginsburg Professor of Law at Brooklyn Law School, passed the reins to current ACLU Board President and Professor of Clinical Law Deborah Archer, the two sat down for a conversation about the role of the American Civil Liberties Union (ACLU) board president, how the organization works to define its positions and live its values, and the meaning and ever-renewing mission of civil rights and civil liberties.
Susan Herman: What does it mean to be president of the ACLU? What do you do in this role?
Deborah Archer: Well, I’m still learning that, and I think the one thing I have learned is that no day is the same, and that there’s always something new every day with this incredibly complex and dynamic organization.
The president’s sphere of responsibility is the board, and the executive director’s is the staff, so the executive director is really the primary internal leader running the organization and managing our work from day to day. Fundamentally, my responsibility as president is to lead the national board of directors of the ACLU and to partner with the executive director to ensure the organization is moving in alignment with the board’s policies and priorities.
The board has representatives from every state affiliate, and additional at-large members from around the country, who all come together to fulfill all of the traditional fiduciary obligations of a board. Unlike many other similar organizations, the board is also responsible for setting policy and direction for the entire organization on all civil liberties and civil rights issues. For example, if the ACLU is going to take a position on the Second Amendment or the filibuster or reparations or immigration, it’s the board’s responsibility to decide what that position’s going to be, and we really do bring together an incredibly diverse group of folks from every state and every corner of the country to decide what our policies will be.
The president obviously has a critical role to play here as well as an external spokesperson for the ACLU, and an advocate for the issues that are important to us, so it really is an incredible opportunity to help shape the direction of the organization.
Herman: Talk a little about how the ACLU got to be a more inclusive and diverse organization, because that’s something I think a lot of organizations in the country and other institutions really are struggling with right now.
Archer: Yeah, and I don’t know that I would say that we get it right. I think we are struggling with it and we are making progress, and that’s the important part, but it’s an ongoing everyday struggle and focus. I think it’s great to have this opportunity to be president at a time when not only is the nature of our work, both substantively and how we do it, growing more complex and diverse, but the ACLU itself is growing more complex and diverse.
So, there’s certainly been considerable focus on the fact that I’m the first person of color to be president, and I understand that focus, because my election to this role, I think, adds another dimension to the story of the ACLU. But I think it also challenges that image or myth that people tell themselves about who we are as an organization, and I’m hoping that conversations like this and my election gives us an opportunity to show folks who didn’t always see themselves in the ACLU that they are represented here, and that their issues are important to us. I have always felt connected to the work of the ACLU, since I worked there in the 1990s, but a lot of people, particularly people of color, haven’t always felt the same.
We’re now an organization where 60 percent of the members of the board of directors are people of color. We also have really incredible diversity in our affiliate leaders, including 40 percent of our affiliate executive directors, who are people of color. Our executive director, Anthony Romero, is a person of color. So, we are an organization that is diverse, but it has taken work to get to that point. And then to move from being an organization that is diverse to an organization that focuses on equity and inclusion in our processes and who we are, it requires attention and intentionality and recognizing how important this diversity is, how important it is that we are a national organization that looks like the incredibly diverse people that we represent and the communities that we work with. We have, I think, shifted policy and adopted policies that focus on diversity, equity, and inclusion that elevate it as a core value and principle for us as an organization, but very importantly we’ve also shifted resources. That means that we have people on our boards and also on staff whose focus it is to ensure that we are hiring a diverse array of folks, that we are identifying and eliminating policies that limit our ability to have an equitable and an inclusive organization.
Herman: One of my first decisions as president was to enlist you to be the national affiliate equity officer and to work with the affiliates on how to do more inclusive searches. And I think that in the time that you were working on that and the time that I was president, the ACLU made many strides. The way I got you to agree that job, you may remember, is I said to you, “If the ACLU can’t get this right, what hope is there for the rest of the country?”
Could you say a little bit more about the obstacles that were facing you when you started 12, 13 years ago in this job?
Archer: When you are an organization that’s not diverse, hiring internally leads you to a hiring pool that’s not diverse, so the focus on hiring folks with ACLU experience and connections didn’t lead to very diverse hiring pools. And I think that folks in all sectors have found that one of the primary ways to increase diversity within an organization is to have a diverse hiring pool. So we had to look at that as a challenge, and also the other ways in which we as an organization, by focusing on our own networks, didn’t lead to the kind of diversity in our hiring pool that we would want to have.
I also think that we had to break through the false narrative that if you’re focused on diversity, equity, and inclusion, then you’re not focused on hiring the best and brightest folks for the job. You can both be an organization that focuses on excellence and hiring the best people for every position, and in an organization that strives to be diverse, equitable, and inclusive. [In fact, intentionally focusing on diversity leads to much stronger candidate pools.]
That was a conversation that didn’t happen overnight. It was a yearslong conversation, a conversation that we continue to have as we focus on diversity at all the levels, about obstacles to racial and ethnic diversity, obstacles to gender diversity, obstacles to bringing folks with disabilities into our organization. All of these conversations are connected, but they are separate conversations with unique challenges.
I think that that’s something that we have done in our substantive work to push the boundaries to be a model for other organizations big and small that are pushing and striving to live their values every day, and who they are as an organization and as employers.
Herman: What’s been the most surprising thing to you about taking on this job?
Archer: I have received incredible messages of support from people I have known and loved for years, but also people that I have never met who are proud of the work that the ACLU is doing and offering their support to me as I help support the ACLU doing that work. People have said that they’re proud of me as a woman of color to take on this role, and so that has been wonderful and really has helped me push forward through some of the more challenging times, including some of the more challenging messages that I have gotten from folks who don’t wish me well, don’t want to see me succeed, and would certainly celebrate any missteps that I make.
I am working hard to make sure that I live up to the expectations and don’t disappoint all those people who have faith in me and are invested in me and support me, and then also to not give those other folks any reason at all to celebrate.
Herman: I think it was shortly after I was elected president that I was the recipient of the Hate Mail of The Week award for a message that somebody had sent me. I got a personalized Christmas card from a gentleman in Tennessee that said, “The blessings of the season,” and at the bottom he had written very carefully in handwritten lovely script, “May the good Lord strike you dead.” So, you get the haters, too.
Archer: I think it’s important that you mentioned the hate mail, because I don’t think a lot of people think about that and how hard it is as just a person to every day open up your email box and to find really beautiful letters of support, but right alongside them some really hateful things directed at you because you’re doing work to try to make this country live up to its promises. And that has been a challenge for me, I will acknowledge.
I got critical, hateful emails before because my work focuses on racial justice issues and has always focused on racial justice, and people have a reaction to that work. So, every time I appeared on a news program or they saw me give a talk or there was a quote in the newspaper, I would get emails that were pretty critical and biting and unkind, but nothing like the kind of reactions I am getting to the work of the ACLU.
So I appreciate even more the letters of support that we get. I appreciate the drawings and pictures I get from elementary school kids who are excited about the work that we’re doing or want to talk to me about the work that we’re doing, and the emails I get from college students and law students who want to do this work and want to talk about how they can do this work. All those things help keep me going and focused on the positive and less impacted by the negative.
Herman: I like to think that if you could sit down with most of the people, even the ones who are writing the hate mail, and explain to them what the ACLU actually does, I’d like to think that you could actually get a lot of them to agree. In the same way that I think the ACLU has had the opportunity to be a model in terms of what it means to build a diverse and inclusive organization, I feel like the ACLU is also, in a way, the country’s best model and best hope for overcoming some of the bitter hyper-partisanship we’ve been experiencing.
Archer: I find that there are some people who want to challenge people’s right to exist, people’s right to be included, people’s right to participate in our democracy, people’s right to equality, and those conversations are harder. I think at some point, sometimes, we do have to recognize as an organization that everyone is not going to be able to come under the ACLU umbrella unless they believe in the fundamental humanity of people and their right to exist, to live happy lives with dignity and respect.
Herman: I think that’s right. We couldn’t expect to convert everybody, but it seems to me that a lot of civil liberties is, to me, the golden rule. It’s as simple as that. It’s really just a matter of basic empathy. If I want the right to follow my own religion, then I should respect your right to follow your religion. If I want to say what I think is important, even if somebody else doesn’t agree, I should give you the same right.
Archer: You led the ACLU for over a decade. And during your tenure, the ACLU went through some of the most challenging times and through periods of incredible growth and change for the organization, periods of challenge and change for the nation. Can you talk about your experience leading the ACLU through President Barack Obama, through Donald Trump?
Herman: The Obama administration really worked with us in a number of areas, including trying to enhance voting rights. During that time, one of the chief priorities that we set was to fight mass incarceration, which we thought was about race and so much else that is happening in this country, about equity as well as due process. So, reducing the prison population and getting the criminal law enforcement system to be fairer and more equitable was a top priority.
That’s not to say that we didn’t sometimes sue the Obama administration when they did things we didn’t like; when Barack Obama was also conducting mass surveillance and sending drones to kill people, for example. The staff believes that the ACLU has sued every president since our founding in 1920, and I think that’s as it should be, because the ACLU is nonpartisan.
The ACLU works in 14 areas of civil rights and civil liberties, and so did the Trump administration—just from the opposite side of almost everything that we held dear. After the Trump election and after the country learned about the ACLU’s lead role in challenging the travel ban, our membership quadrupled. So we had a lot more support and we were able to hire a lot more people, which was fortunate because during those four years the ACLU brought over 400 legal actions against the Trump administration.
Plus, I think public opinion was very much on our side. We had people all over the country spontaneously showing up at airports to support their neighbors, to support Muslims, and I think it was just a tremendous effort by so many people.
The family separation cases, I just find extremely painful. It was such a barbaric practice. One of our staff attorneys in particular, Lee Gelernt, really led a nationwide effort to stop this systematic separating of parents and children, small children. Lee and the ACLU ended up, when the Trump administration said, “Well, if you want these families reunited so much, you figure out where they are. We haven’t kept track,” Lee actually was part of an organizing effort that led to all sorts of law firms and agencies trying to find all those families and put them back together.
The four years of the Trump administration were a real challenge to the organization. We had to adjust some of our priorities to respond to radical changes in federal policies. Immigration turned out to be such a major front. Voting rights, trans rights—there were so many other things that were under challenge.
And then, of course, the pandemic hit, so then the ACLU staff was working on all that essential litigation from home. One of the things that happened in connection with the pandemic was that the people who were incarcerated in prisons, jails, and ICE detention were at tremendous risk. So there was a tremendous amount of litigation just trying to get the people running the prisons, jails, and ICE detention centers to pay some better attention to hygiene, sanitation, and health care. And then there was the murder of George Floyd, and trying to use the moment to grow our work about racial justice.
I am so proud of everything that our staff did and all the ways in which the board supported the staff during those four years.
The transition in the ACLU matched the transition in the country. When I stepped down in January, you became elected president a matter of days after Joe Biden became elected president of the country. The metaphor that keeps occurring to me is the metaphor of the relay race. I wish for everybody who’s doing something that they regard as important, that when they hand over the baton to the person who’s running the next leg, that they should have as much confidence as I have in you. Because I just feel like, “Okay, I ran my lap. Your turn.”
Archer: Thank you. And I appreciate that, and you have left incredible shoes to follow in, and I’m going to do my best.
Herman: What do you see as different about the work of the ACLU going forward now? What changes, and what are the opportunities under the Biden administration?
Archer: I want to start by just responding to you saying that you were proud of the work that we did, and really over the past four years, where there have been some really dark days and challenging times. The work of the ACLU and the way that we were pushing forward, the passion and courage and love with which our attorneys engaged with this work and our advocates engaged in this work really was a bright spot for me, to be reminded every day of the way that we were fighting back and still working to protect civil right and civil liberties.
And so, at this moment of transition, I think that my responsibility is to help the ACLU rise to this moment just as you helped the ACLU to rise to that moment after the election of Donald Trump. And now we have the obligation to help support and rebuild those communities that were most damaged by the Trump administration’s policies, and to undo the legacy that is still harming those communities to this day.
You mentioned some of the challenges and the tensions of working during Obama’s administration. I feel some of that already with the Biden administration. You want to be a friend to the administration when conversations are going on about how we move forward to deepen and expand the protection of civil rights and civil liberties, how we undo the harms done to civil rights and civil liberties by the prior administration. We want to be at that table. We need to be at that table, and we should be at that table to help design policies to move forward in a better way. But at the same time, we are going to be there to hold the Biden administration accountable when they fail to live up to their obligation to protect the Constitution for each and every person.
I think the organization really now needs to take advantage of a window of opportunity to deepen and expand protections of civil rights and civil liberties, because this window won’t stay open forever, and in fact I don’t think it’s going to stay open much longer. We’re already seeing retrenchment and pushback. [George Floyd’s] murder and then COVID-19 opened up this window of opportunity to discuss the realities of race in America, especially the truth of anti-Black oppression, and to identify and challenge the violence of racism in all of its forms. The year 2020 pushed us as a country to pull on the thread of racism that connects so many of America’s systems and laws and structures. At its core, the work of the ACLU is about closing the gap between the America that was promised and the America that is, and if we are really going to achieve that goal, we as an organization have to double down on our commitment and our focus to challenging how racism persists in its power.
2020 was also a tremendous display of power in our communities, the power of people to come together and demand long overdue change, and to use their voices to force that change. And in response, we’re seeing a reaction to that power, a reaction to efforts to shine a light on racism, and I think that [reaction] is shaping our work.
We are seeing anti-protest bills limiting the ability of people to demand change and have their voices heard. Repressive voting laws designed to disenfranchise people of color, and to keep power in the hands of the few and that is a direct response to record political participation in 2020 by people of color, by young folks, by folks who have traditionally been excluded from the political process. We’re seeing laws attacking the First Amendment right to engage in conversations about the reality of racism, and we have to work to protect rights in response to all of this.
We are fighting to increase access to the ballot box. We’re fighting the escalating attacks on transgender people across the country. We’re protecting free speech and privacy, particularly online. We’re trying to advance Fourth Amendment protections against high-tech government surveillance. We are challenging discriminatory uses of artificial intelligence. We’re trying to reform our criminal legal system. We’re still focusing on immigrants’ rights. We’re preparing for and responding to attacks on reproductive rights and reproductive freedom, and on LGBTQ people. I think we’re still engaged in just defending basic and fundamental rights at the same time that we’re trying to think of a more positive conception of equality and freedom.
Herman: There’s still so much work to do, because [the challenge to civil liberties] isn’t just from federal policies; it’s what’s happening in all the states with respect to voter suppression and reproductive freedom limitations—states hoping that Roe v. Wade will be overruled, in which case the ACLU is going to have to battle state by state by state to try to protect the right to reproductive freedom in places like Mississippi or Missouri. So there’s just so much work to be done.
I’m in the process of writing a book called Advanced Introduction to US Civil Liberties, and the whole question of how you even define civil liberties, and to what extent that overlaps with civil rights, I think is an important abstract question, but it’s also been part of the ACLU’s history. And today a lot of people are questioning whether or not the ACLU can be both a civil rights organization and a civil liberties organization. There was that recent article in the New York Times claiming that the ACLU had moved away from its traditional commitment to free speech. What would you say about whether the ACLU can be both a civil rights and a civil liberties organization?
Archer: Civil liberties are protections against government action, and they include the right to free speech, expression, religion, privacy, and due process. And civil rights to me is about ensuring equal treatment and equal access, ensuring equality in things like education, housing, government services, or voting rights. So, to simplify that, look at, for example, the context of religion: If a school discriminates against you because of your religion, I view that as a civil rights issue. If the government imposes limits on your ability to practice your religion, I view that as a civil liberties issue.
The debates happening outside of the organization about how we engage in civil rights and civil liberties, or about how we advance First Amendment and racial justice, those conversations that are happening outside of the organization are also happening within it, and I think that’s a good and healthy thing. I’m proud of the kind of robust dialogue we have as an organization about our work, about our strategies, and none of that reflects a lack of commitment to any of our core principles. We are and have always been an organization that works to protect civil rights and civil liberties. We believe, and I believe personally, that the fight for freedom and the fight for equality go hand in hand. They really are two sides of the same coin. The Constitution’s promises of liberty and equality are linked, and so the contours of our work in these areas will change as society has changed, but the commitment to both remains strong.
When we’re focusing on threats to First Amendment liberties, it does not mean we’re not focusing on other civil rights issues. Or today, when we’re having a committed focus on racial justice, it doesn’t mean we’re turning away from defending the First Amendment. So, our systemic equality agenda is something that we’re devoting a lot of resources to, to try to fight systemic inequality, racial inequality, but we’re not turning away from free speech or immigration or criminal legal reform. We have been and will continue to be an organization that cares about the First Amendment and the Bill of Rights, but we also care about the Reconstruction amendments, the 13th, 14th, and 15th Amendments. That was true when I worked at the ACLU in 1997.
I think the deepening and expanding of our racial justice work and other civil rights work, including our work defending the rights of transgender youth, is in line with the way that the ACLU has responded to other inflection points in our nation’s history. So, deepening our immigrants’ rights work after the election of Donald Trump and his Muslim ban. Deepening our work on privacy and religious freedom after September 11th, or deepening and expanding our voting rights work after the Shelby County v. Holder decision ushered in this tsunami of voter disenfranchisement efforts.
It’s not about a sole focus on only one issue. Civil rights and civil liberties are more complex than that. It’s about every day making sure that we are working to protect a whole host of rights on behalf of a large and diverse group of people.
Herman: I couldn’t agree more about all that. When people have asked me why I chose the ACLU, of all the organizations that I could’ve spent time on, to me the key to the ACLU is the intersectionality aspect of what you were just saying; the fact that we do work on 14 different areas of civil rights and civil liberties, recognizing that rights for my people or for my group, or however I identify myself, are interconnected with the rights of everybody else.
People often talk about intersectionality as an idea that was only invented quite recently, and one person I like going back to is Pauli Murray, who was on the ACLU board quite a number of decades ago, who very much believed in that intersectionality. She used to say, “How come we only talk about Jim Crow? Why don’t we talk about Jane Crow?” So, the essence of the ACLU’s approach is that the rights and liberties that we work on are not a menu, it’s not like a choice where you do some and you don’t do others. They all have to go together.
During the travel ban, one of our allies was the Korematsu Foundation, who got what is wrong with condemning an entire people because of their ethnicity or religion or race. Mildred Loving, who was our client in the case that finally challenged Virginia’s miscegenation law in the 1960s, saw that it was maybe the same kind of discrimination she suffered when a state wouldn’t let two men get married. Fred Korematsu defended the inmates in Guantanamo; that was the same fight to him. So, there are moments of intersection and of civil rights and civil liberties reinforcing each other rather than posing a choice. John Lewis used to say that the civil rights movement without the First Amendment would have been like a bird without wings. All of the work goes together, and there’s a lot of synergy. We’re not choosing. We don’t have a favorite child. We’re trying to support all of the children.
This interview has been condensed and edited.
HEADING THE HAYS PROGRAM
This summer Deborah Archer also became a co-director of the Arthur Garfield Hays Civil Liberties Program at NYU Law, alongside co-directors Helen Hershkoff and Sylvia Law. Archer’s new position highlights the strong historical links between the American Civil Liberties Union (ACLU) and the Hays Program, which awards fellowships and other opportunities to students committed to civil liberties. Named for Arthur Garfield Hays, a founder and general counsel of the ACLU, the Hays Program was directed for 56 years by the late Frederick I. and Grace A. Stokes Professor of Law Norman Dorsen, who also served as ACLU president. Generations of Hays Program alumni have taken leading roles in the ACLU’s work to protect and expand civil liberties.
Rebekah Carmichael is assistant dean for communications and chief communications officer at NYU Law.
Posted September 9, 2021.