Jackie Berrien

When Jackie Berrien came to WRP in 1989, she was already an ACLU staff attorney. "It was by far my easiest office move," she says of her relocation two floors down.

At the time Berrien arrived at WRP, "There was a very conscious and deliberate effort to make the Project more overtly and directly responsive to the needs of women of color." The ACLU's legal director wanted to advance the organization's progress on issues of race and poverty, engaging constituencies not traditionally involved with the ACLU. "Now it's probably a routine part of thinking at the ACLU, but it was not common in the early stages," Berrien notes. Describing the increased engagement of WRP and the ACLU with questions of racial inequality, Berrien explains, "Some of the groundwork was laid when I was there."

Berrien, who is today the assistant director of the NAACP Legal Defense Fund, explains, "I was always interested in issues that connected race and gender." Even in cases with a gender equality focus, such as that against the Citadel's all-male student admissions policy, she applied a unique lens. For instance, Berrien contributed to the brief's comparison of sex segregation with race segregation. "These parallels were always very interesting to me," Berrien explains.

While Berrien was at the ACLU, a movement began to create all-male public schools in inner cities, under the assumption that single-sex education would benefit African-American boys and young men. At a roundtable at the National Urban League and in a publication for the Columbia Teacher's College, Berrien argued against the notion. Rather than a solution to the educational needs for the black community, she saw the concept as a "superficial quick fix" for what she identified as a "broader problem not by any means limited to boys." The push for single-sex education in inner city school districts continues with renewed strength today.

Berrien also sought to identify areas of women's rights law that had a particular impact on women of color. She was particularly concerned with teen pregnancy and parenthood, which, though not an issue primarily affecting women of color, was certainly perceived as such, and did have an impact on a disproportionate number of minorities. Berrien wrote an influential piece about Title IX and educational access for pregnant and parenting teens, explaining that, "you're setting up a hurdle that is almost impossible to overcome in life if you force them out of school."

Jocelyn Elders was also an active advocate for more rational policies on teen pregnancy at the time, and Berrien describes how impressed she was upon meeting the future surgeon general. "She was incredible," Berrien recalls. "She clearly and obviously had a real commitment to seeing young girls improve their life choices and options."

Berrien herself did much public education work around the rights of pregnant teens in schools, and she hoped to litigate cases establishing these rights. "My gut always told me that those cases existed, young women being forced out of school [because of pregnancy], but we couldn't identify many." The good news was that the threat of ACLU litigation was often enough to resolve any such complaints; in general, a phone call to explain the law was sufficient to protect the rights of the pregnant student. Yet for civil rights and civil liberties lawyers looking to set precedent in this area, such easy settlements were not always perfectly aligned with personal and professional agendas. "It was for me a real point of maturing as an attorney, recognizing that the most important thing is a favorable outcome for your client, though sometimes that isn't reconciled with what you're trying to do professionally," Berrien concludes.

Berrien arrived at the height of WRP's challenges to employers' fetal protection policies. She describes a suit against the Odeon restaurant as her "personal favorite." The case was brought on behalf of a maitre d' who was removed from her position when her bosses decided they didn't wish to employ a visibly pregnant woman. In a deposition before the trial, the owners justified their actions by insisting that a pregnant woman shouldn't be near heat and knives in the kitchen. "It was one of the oddest justifications I'd ever heard," Berrien notes. "God knows no pregnant woman has ever been exposed to heat and knives in a kitchen!" Immediately after that deposition, the case settled in the woman's favor.

Not every case was so simple, however. Berrien describes a child support enforcement case in Texas as "possibly the most difficult institutional reform case I ever worked on." WRP was suing the state of Texas, seeking to require it to enforce child support orders and provide state support to collect payments. The case was administratively very difficult, given that responsibility for enforcement was divided among different state agencies. Additionally, when it came to an example of child support enforcement, "Texas did it extremely poorly, but there were not a whole lot of places you could point to, to say they did it well."

Berrien points out that at the time of her and Kary Moss's arrival at WRP, there was "an explosion of the crack cocaine trade." As a result, WRP had much work to do addressing the application of drug control policies to pregnant women, as the allegedly unique harm from the drug to a fetus in utero was thought to justify extreme measures infringing on women's rights. Many women were being criminally prosecuted for child abuse or delivery of drugs to a minor due to drug and alcohol addiction during pregnancy. In the mid-80s, Berrien and Moss had published some of the first literature on criminal prosecution of expectant mothers for substance abuse. "Now, many authors are centered on that issue. Ours was not only the first, but it was also from a women's rights perspective."

Berrien looks back on her time at the WRP as "the early warning days that federal class action litigation would not always be effective in advancing women's rights." The staff had to begin to explore other ways of advancing women's interests, such as litigation in state courts. Another struggle was working to develop overarching strategies to address women's economic inequality (and the particular economic inequality of women of color). "I felt like that was unfinished business," Berrien laments.

Berrien's WRP tenure coincided with the backlash against feminism that would soon be described by Susan Faludi. "It was an interesting period because the idea that a generation of young women who grew up benefiting from feminist thought were rejecting that theory was beginning to surface," she explains. "I don't know if the term ‘feminazi' had been coined yet," Berrien remarks, "but the cultural rejection of feminism was certainly rampant."

Nevertheless the work done by Berrien and WRP during this time continues to have a positive impact. In 2001, in Ferguson v. City of Charleston, the Supreme Court held that a public hospital's policy of testing all pregnant patients' urine for cocaine and reporting positive results to the police violated the Fourth Amendment. The hospital had argued that the policy was motivated by a special need to protect the health of the fetus. (WRP and the Reproductive Freedom Project submitted a friend-of-the-court brief in the case.)

Berrien notes, "I was struck by how much the Court was rejecting" the hospital's justification even at oral argument. Though the crack cocaine crisis of the late 80s had precipitated many harsh measures against drug users, by 2001 there was a growing acknowledgment, Berrien explains, that "the line between medical treatment and prosecution was a dangerous one to cross." More people understood that prosecuting pregnant drug users risked driving women away from medical help, and almost all courts that had considered the issue had overturned such prosecutions.

But there has also been retrenchment since her days at WRP, Berrien notes. For instance, in the 80s, many believed that the demand for changes in the workplace to accommodate family obligations would bring about different options and alternative work spaces. "We're now on the brink of people giving up on that line of argument altogether," Berrien sighs. Berrien also notes a push for upper- and middle-class women to stay home to raise children, at the same time there is a push for low-income women to leave the home to work.

In 1992, Berrien left WRP to become a trial attorney at the Voting Rights Project of the Lawyers' Committee for Civil Rights. She concludes, "I don't have any regrets at all -- my time at WRP was well spent." She learned about substantive issues of women's rights, and she credits Kary Moss for having a "really positive impact" on the Project, as well as Isabelle Pinzler and Joan Bertin for bringing years of expertise. "It was a creative phase," Berrien sums up. "We'd say, this is a problem, what are the different ways to address it?"