Rebel With Many Causes
A Philosophical Divide
The idea firmly seeded in his mind, Harrington entered law school at the University of Detroit. There he met his future wife, Rebecca Flores, who went on to pursue a master's degree at the University of Michigan. A year after marrying in 1972, the couple moved to Texas to start their respective careers -- she as a volunteer organizer with the United Farmworkers in the Rio Grande Valley, he with the Texas branch of the American Civil Liberties Union, at a salary of $5,000 a year.
Harrington's tenure there ended on a sour note, however. In 1990, the Texas Civil Rights Project was born of a tumultuous split between Harrington and the Texas Civil Liberties Union (TCLU). Two versions of the story exist. As Harrington tells it, the civil liberties group dismissed him partly in order to thwart his efforts to form a union, a move which Harrington says he felt was necessary in light of staff cuts and a painful reorganization. But former board members say that they had no quarrels with Harrington forming a union; their problem was his personality. According to one, the union "was a bogus side issue ... that he wanted people to believe had to do with why we fired him, and it had nothing to do with it."
In any case, the divorce was far from amicable -- Harrington, the former board member says, was deeply hurt by the split and will not talk to him to this day. "If you have a direction you want to go in and he disagrees with it, he won't have anything to do with you; you're no longer his friend," the former board member says. "There's no gray area. It's all black and white with him." In any case, a compromise was reached between the two parties, giving Harrington control of the TCLU's floundering South Texas Project, which provided representation to migrant farmworkers, as part of the fledgling TCRP.
Another part of the problem, Harrington says, was that TCLU board members "were always more interested in classic civil liberties issues -- free speech, protecting the rights of Klan marchers, that sort of stuff -- and my gear was more toward economic, racial justice issues." Harrington acknowledges his reluctance to champion the rights of Klansmen. Once, when Klan members wanting to stage a march came to TCLU headquarters seeking legal protection, "I just kind of sat there; I didn't know what to say," Harrington recalls. "When I was with the ACLU... I thought there was a conspiracy by the Klan to undermine the ACLU. There was no reason the ACLU had to be their general counsel." The way Harrington saw it, it made no sense for the ACLU to spend money defending white marchers who could easily find other benefactors, while turning away victims of civil rights violations who could not afford to pay for counsel.
The problem is illustrative of an apparent philosophical divide between the causes of "civil liberties" and "civil rights," a divide which often puts organizations like the ACLU at odds with the goals of more "liberal" -- and less "libertarian" -- civil rights activists. Pat Hazel, an expert in trial law and a professor at the UT School of Law, notes that civil liberties groups "will represent the Nazis one day and somebody else the next that's on the other side" -- not because of any philosophical affinity, but because the Constitution applies to all citizens, regardless of the abhorrence of their beliefs.
For Harrington, who has said the ACLU's concern for individual rights "reveal[s] something about the middle- and upper-class backgrounds" of its lawyers, the TCRP was an opportunity to craft a more selective approach.
Although Jay Jacobson, executive director of the Central Texas chapter of the ACLU, says that he is "unaware of any acrimony" remaining between the TCRP and the ACLU, the two groups have noticeably different methods and are rarely seen at the same events. Still,both Jacobson and Harrington are quick to assert that neither organization views the other as a rival. "There are enough civil liberties and civil rights violations for a dozen organizations," claims Jacobson. And Harrington closely echoes that: "We're out there doing our thing, and they're doing theirs," he says. "I'm not going to gear my work toward reacting to what the ACLU is doing."
But Deborah Hiser, a former attorney with Advocacy Inc., who worked with Harrington on several cases, believes that the traditional civil liberties community "has sort of separated from" Harrington because of his unrelenting methods. "They're no longer his friends and supporters," she says. "There are people who no longer support his style or position, which is unfortunate."
Harrington, for his part, claims that the ACLU has a tendency to operate "in a vacuum," and lacks an ongoing legal program, which he says has diminished their visibility. "Either we're running on parallel universes here and are not coming into contact, or they just aren't doing as much," Harrington says. Jacobson, who contends that the ACLU still "litigate[s] quite a bit," says that a changing climate has led the ACLU to subtly shift its focus. "For us to get a handle on the issues requires us to change to some degree our strategy and focus on education, not litigation," he says.
But litigation is undoubtedly the focus of the TCRP's work, and its contentious legal director is working hard to keep it that way. Harrington, whom Texas Lawyer magazine once characterized as "an often-maligned household name," has never shied away from conflict, and, some say, has even welcomed it. It's true that controversy goes with the territory of litigation, in which unpleasant confrontation can be a daily endeavor. But some former colleagues -- all of whom seem to share a great deal of admiration and respect for Harrington as a lawyer and a person -- say that the aggressiveness and tenacity which characterize a good trial lawyer have led him at times to burn too many bridges too quickly behind him.
Hiser, who refers to Harrington as "a visionary," says that despite his thoughtful, compassionate personality, there's another side of Harrington "that's totally unreasonable and irrational and impossible to deal with. He's dogmatic and impossible to work with -- you're either with him or against him." For Harrington, several former colleagues say, the world exists in stark black-and-white relief, with the gray areas of human behavior rubbed out by an all-consuming sense of justice. "When he's your friend, he's very accepting of weakness," Hiser says. "But if he's your opponent, he has no tolerance for human frailty."
Harrington readily acknowledges his tendency to grate on people's nerves. But the bottom line, he says, is that his clients always know what to expect. "I don't play games and do the verbal gymnastics that lawyers go through. A lot of times lawyers try to get [clients] to compromise halfway, and sometimes my clients don't want to do that," Harrington says.
The civil rights lawyer even goes so far as to claim a total lack of personal ambition -- a statement that seems strange given the sweeping accomplishments he has made in only 25 years. In a non-traditional sense, though, the truth of his claim is obvious -- after 25 years in the business, Harrington and his wife, Rebecca, still share a modest East Austin home and a lifestyle more fitting to aspiring activists than to the most prominent civil right lawyer in Austin and the newly named state director of the AFL-CIO (Rebecca Harrington succeeds Kirk Adams, who now heads the national AFL-CIO office in Washington, D.C.).
The couple's three children, Elias, Isaac, and Sara, all grown and active in social justice work, were brought up with a sense of justice and compassion for the less fortunate, as well as the oft-repeated lesson that, as Harrington puts it, "money doesn't matter." As for his current financial situation, Harrington says, he "can't imagine living in Westlake with a big house and a pool; to me it's totally boring and defeating. Can you imagine going to those parties?"
Besides shunning the fancy West Austin digs so coveted by other attorneys, Harrington has distinguished himself in another way -- by consistently picking targets that many would consider career-killers, including the Texas Supreme Court and the State Bar. Harrington's almost cavalier approach to jurisprudence has led to a certain fearlessness in his actions, according to Peter Hofer, a longtime TCRP staff attorney who is now in private practice in Florida.
"Jim has a strong personality," Hofer says. "While I was working with him... we would sue a big company like Cinemark or the Texas state government or a federal government agency -- it didn't matter the size of the defendant." Perhaps most infamously, in 1991 Harrington sued the Texas State Bar to require -- some say force -- its members to do pro bono work, a move which Harrington says inspired more hate mail than any other case he has been involved in. One writer sent a newspaper clipping with a mug shot of Harrington pasted over Mafia don John Gotti's face; another scrawled in marker over Harrington's photo: "When the fucking doctors work for free, I will too. Half of us can't get a decent job and you want us to give it away. You're a real big joke!"
Still, for a lawyer who inspires so much anger, Harrington has more than his share of admirers. Even those who feel he's too uncompromising, too unwilling to settle when the circumstances warrant it, are quick to add that it's hard to criticize someone who has sacrificed so much for what he believes in. Although "nobody likes to find out, uh-oh, Harrington's after you... Jim has a lot of friends as well," says Pat Hazel, a trial law professor at UT who has known Harrington for many years. "Saints could be a pretty big pain in the ass, too."
And ultimately, a righteous and aggressive spirit may be part of the job description of a lifelong civil rights attorney. As talented lawyers flee civil rights law in droves to pursue more lucrative pastures, the fiery, spirited litigator who cares less about money than his cause is slowly becoming a relic of the past. Law schools, Harrington believes, are becoming increasingly corporate-oriented, churning out "Ken and Barbie doll lawyers" who learn quickly that pulling punches is the only way to make a profit.
"One of the major functions of law school is to indoctrinate the prospective lawyer, to acculturate them into how lawyers are supposed to think and act and earn money," says Harrington, who teaches the Texas Constitution as an adjunct law professor at UT. "It's not an academic pursuit, in the sense of creating thinkers, and it's not a place that motivates others to do good." At UT, Harrington says, students in his seminars often tell him that "the only thing they're interested in is making money, no matter how cheaply they have to sell their souls."
For a lawyer who sees his profession not only as a job but as a vocation -- actually, a calling -- the sentiment is disheartening at best. By all accounts, however, Harrington's classes are still very much in demand, not only by students specializing in civil rights, but by those who want more than just a "head-in-the-clouds" theoretical perspective. Terri LeClercq, a senior lecturer at UT Law, says that Harrington is "a perfect teacher" for those who want a nitty-gritty account of representing the underrepresented in Texas. "Who else can tell our students what it's like not to be able to get into the Capitol to represent a claim against the state? It's a very hands-on approach," she says.
Bill Powers, a law professor at UT who was an associate dean when Harrington was hired, says that Harrington contributes to what he calls a "broad-based, 'let a thousand flowers bloom' sort of education" at the school. "We don't need just book-learning, but actual experience litigating in the issues," as well as a political commitment to civil rights, Powers says.
With a quarter-century of experience under his belt, Harrington offers another thing that younger law professors can't: A long-term perspective of civil rights that extends from the early Sixties into the post-Hopwood era. An outspoken proponent of affirmative action, Harrington will decry the Hopwood decision at length to anyone willing to listen. "Texas has a horrible history of racism and segregation," he says; yet UT did not begin implementing affirmative action admissions practices until the early Eighties. "I think affirmative action is very important to change that historical balance, because if democracy is going to thrive, it has to have everybody integrated into the opportunity machine, and it's clear the way our system is set up right now that everybody doesn't have an equal opportunity." The current backlash against affirmative action, he suggests, is symptomatic of a larger trend toward selfishness in American society that started during the Reagan administration. "It seems to me that up until the time of Reagan you really had to articulate that there was some sort of community responsibility on behalf of politicians and on behalf of people," he says. "Now it's just Darwinism at its best -- economic and social Darwinism."
Since all these things tend to be cyclical, though, Harrington holds out hope that he will live to see the nation's current political trends reversed; already, he says, he senses some movement in that direction. Despite Texas' conservative climate and the state's historical resistance to the concept of civil rights, "there is a sense of egalitarianism... and a sense of individualism" to Texans, Harrington says. "In a sense, even though it's very difficult dealing with issues... if you can pierce their veneer of bias you can appeal quite often to egalitarian principles," particularly on such issues as drug testing and gay rights, he says. "You can't appeal to people's labels."
But if civil liberties are to have a place in a society increasingly hostile to the very idea of "special" civil rights protections, Harrington says, the methods and goals of civil rights advocates must evolve with society. Instead of waiting for things to get out of hand and then calling a lawyer to fix the problem, Harrington asserts, citizens should learn to organize in their communities to avert problems before they happen. "So much of civil rights stuff... really is local," he says. "Who's going to control whether the band goes to Disneyland? Who's going to control where your stocks are bought? Who's going to control what's taught in schools?... That stuff is so important, and I think people just let it slide by. ... People don't respond to it locally, and then it gets out of hand." For his part, Harrington does not believe that the answer to America's civil rights problems can ultimately be found in the courtroom. "I just happen to have a nice setup. I'm very lucky, but unfortunately there aren't many places you can get a job like this," he says. "If your real goal is to make social change, then be a union organizer. That's where the action is."