Free speech advocates find a fight in Berkeley
HUD investigating 3 residents for bias against mentally ill in remarks, letters protesting projects
By Susan Ferriss
The San Francisco Examiner, July 22, 1994
Berkeley, the cradle of the Free Speech Movement, is rocking again, ’90s style.
Free-speech advocates are outraged that federal officials are investigating three Berkeley residents for alleged discriminatory behavior, based on their remarks at public meetings as well as letters and documents they wrote to oppose a federally subsidized housing project for the mentally ill.
The mentally ill and physically disabled are protected from discrimination in housing by the Fair Housing Act of 1988.
The three Berkeley residents under investigation led a neighborhood campaign last year to oppose or modify a project on University Avenue that will house former drug users and mentally ill homeless by renovating the Bel Air Motel.
“To ask questions is one thing,” said John Phillips, a spokesman for the investigating agency, the U.S. Department of Housing and Urban Development. “To write brochures and articles and go out and actively organize people to say, “We don’t want those people in those structures,’ is another.”
Phillips said that HUD’s preliminary investigation had concluded the three residents had broken the law, but that it would be up to HUD and Justice Department attorneys to decide whether to prosecute.
Investigation Called Witch Hunt
Phillips said he didn’t think any individuals had been prosecuted yet under the 1988 law, which allows a judge to impose a fine of up to $100,000.
The three residents, their attorney and free-speech proponents accused HUD of conducting a witch hunt, first requesting in writing early this year that those under investigation turn over copies of their letters and notes of meetings they had.
They refused. HUD investigators, who were responding to a complaint filed in November by a Berkeley housing activist, obtained transcripts of city meetings and letters from other sources.
“The whole investigation is based on their free-speech rights. . . . It makes my stomach turn,” said David Bryden, attorney for the three residents, Richard Graham, Alexandra White and Joseph Deringer.
“If you don’t think the government should spend its money on something, you have every right in the world to stand up and say that,” Bryden said. “Either this (investigation) is just extreme bureaucratic incompetency, or there is a desire to silence critics of HUD housing projects.”
Graham said the opponents questioned whether developers of the project were including enough staff to sufficiently care for and monitor the mentally ill residents.
A New Big Chill
He also said that HUD’s actions had blown a chill over the town, where other residents are afraid to air questions publicly about a proposal in North Berkeley to house poor AIDS patients and former drug abusers.
“I can see the logic in protecting the people,” Graham said.
But, he added, he didn’t think anyone’s “protected status should be used to abrogate the city’s planning process.”
“Are people who have a protected view going to be able to speak, and those of us who don’t have a protected view can just go away?” Graham asked. “Who’s going to run Berkeley? The “PC police’ or the citizens of Berkeley?”
The dispute grew when Berkeley’s city attorney sent a letter recently to opponents of the AIDS housing project on Rose Street, warning them that City Council members could not respond to questions that might be interpreted as discriminatory.
“To some degree, I’m the messenger of bad news,” said City Attorney Manuela Albuquerque, adding that the city of Berkeley was also being investigated by HUD.
Albuquerque said she was not attempting to tell citizens that they couldn’t speak their minds at public gatherings, but she did want to inform them that council members had been advised not to engage in certain types of dialogue.
“We, the city of Berkeley, cannot in any manner treat the project any different because the people involved have AIDS or mental illness,” she said.
Public Officials Muzzled
She added that city attorneys in other California cities were also becoming aware that certain types of comments by public officials at meetings might be interpreted as discriminatory and actionable.
“Private conduct is actionable,” Albuquerque said. “If private individuals and elected officials get together to deprive someone of individual rights,” one is not immune because it is a public gathering.
Even some proponents of the AIDS housing project think HUD has gone too far, however, and say citizens have a right to ask questions and express fears.
“The only way that people can address concerns and fears is by being able to voice them,” said Jerry De Jong, executive director of the Center for AIDS Services in Oakland, who has attended meetings on the Rose Street proposal.
Jong said he agrees with the law’s intent to protect the physically and mentally ill from discrimination, “but it’s also just as important to allow free speech to take place.”
“Unfortunately, the way this law is being interpreted is people can’t say, “I’m scared,’ ” De Jong said.
Ann Brick, a staff attorney with the Northern California chapter of the American Civil Liberties Union, blasted HUD for its investigation.
“Our concerns are really quite fundamental,” she said. “One of the more important guarantees of our Constitution is that citizens can make their views known to their elected officials and write letters to editors.”
Had the project been denied because of objections to the presence of the mentally ill, Brick said, she could understand the government’s pursuing a case against the city of Berkeley, not individuals.
She said individuals had a right to influence a government body.
“Citizens are allowed to advocate for unpopular positions,” she said. “We might not find those actions to be particularly admirable, but I think it is protected when that petitioning activity goes on, even if they advocated violating the law.”
Phillips said HUD was obliged to respond to requests for investigations. And in this case, the investigation concluded that “the way the people went about protesting was to say, basically, “We don’t want those people in there.’ ”