2023 George Barrett Award Winner
David Cole has dedicated his career to fighting for the rights of the disadvantaged. He has represented, among many others, political dissidents targeted for their criticism of the U.S government, artists singled out for expressing their sexuality, Gay Men’s Health Crisis for undertaking safe sex AIDS education, flag burners, Black and Hispanic alumni of New York’s Baruch College denied the right to form a Black and Hispanic alumni association because of their race, women denied access to abortion clinics, a trans woman fired for her gender identity, a gay couple denied service by a bakery because of their sexual orientation, immigrants detained for deportation because of their political views or religious identities, and Muslims subjected to President Donald Trump’s Muslim ban.
David’s commitment to the civil rights and civil liberties that George Barrett championed spans four decades. In Texas v. Johnson and U.S. v. Eichman, working with Bill Kunstler, he established that the First Amendment protects flag burning. In NEA v. Finley, he successfully sued to restore NEA grants to four performance artists denied funding because of politicians’ objections to the feminist and sexually explicit content of their work. In American-Arab Discrimination Comm. v. Reno, he obtained a ruling extending First Amendment protections to noncitizens living among us and declaring unconstitutional the anti-communism provisions of the McCarran-Walter Act.
In a slew of cases in immigration court and federal court, he successfully challenged the government’s use of secret evidence to detain more than a dozen Arab and Muslim immigrants—freeing them all. And in Mahanoy Area School District v. B.L., he won a Supreme Court ruling protecting the speech rights of public-school students on social media outside of school.
David’s work advancing voting rights has included a successful challenge to President Trump’s effort to add a citizenship question to the census; a second challenge that blocked Trump’s plan to exclude immigrants from the official census count; a challenge in the Supreme Court to Ohio’s practice of purging voters from the rolls without adequate notice; a successful lawsuit to ensure that mail-in ballots that were signed and received by Election Day in Pennsylvania were counted; and, pending now in the Supreme Court, a Voting Rights Act challenge to racial gerrymandering in Alabama.
David’s most significant victory on behalf of worker’s rights was in Bostock v. Clayton County, a 2020 Supreme Court decision extending Title VII’s prohibition on sex discrimination in employment to discrimination on the basis of sexual orientation and gender identity. Along with co-counsel at the ACLU, David represented Aimee Stephens, a transgender woman fired from her job at a funeral home when she came out as trans, as well as Don Zarda, a sky-jumping instructor fired when his employer learned that he was gay. David argued on behalf of Aimee Stephens in the Supreme Court, in the first case in that Court to extend equal rights to transgender persons. He prevailed, advancing a conservative “textualist” argument that persuaded Justice Neil Gorsuch and Chief Justice John Roberts to join the Court’s liberal justices in ruling that discrimination on the basis of sex, by definition, includes discrimination on the basis of sexual orientation and gender identity—even if that definitely was not in Congress’s mind when it enacted Title VII in 1964. By virtue of that reasoning, not just Title VII, but every law in the country that bans sex discrimination, now also prohibits discrimination on the basis of sexual orientation and gender identity. The decision is one of the most significant expansions of anti-discrimination rights in the last few decades.
David has also been an eloquent and prolific public advocate for civil rights and civil liberties. He is a frequent contributor to The New York Review of Books, The Nation, The Washington Post, The New York Times, and countless other publications – always in pursuit of the defense of civil rights and civil liberties. Over the last two decades, he has written over eighty essays for The New York Review of Books alone, on voting rights, free speech, equality, constitutional interpretation, the criminal legal system, and national security and human rights.
David has written or edited ten books, including No Equal Justice: Race and Class in the American Criminal Justice System, the first book to launch a broad-based racial justice critique of constitutional criminal law. It won several prizes, including Best Non-Fiction Book of the Year from the Boston Review. Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism demonstrated that many of our most damaging civil rights and civil liberties violations began as anti-immigrant measures and made the case for equal rights for all persons in the United States at a time when noncitizens’ rights were being radically undermined by the “war on terror.” His most recent book, Engines of Liberty: How Citizen Activists Make Constitutional Law, made an impassioned case for the integral interrelationship between advocacy outside the courts and progress within the courts, and has been a guide for many in how to make progress in constitutional law and beyond.
At the ACLU, David led the Legal Department in one of the most challenging periods of its existence, responding to President Trump’s all-out assault on civil rights and civil liberties. Under David’s leadership, the department expanded substantially, and led the charge in defending civil rights and civil liberties, from its first suits challenging the Muslim ban, to its successful effort to keep a citizenship question off the census, to its massive effort to reunite the immigrant families Trump so cruelly separated. In all, under David’s leadership, the ACLU filed more than 400 legal actions against the Trump administration. And it has kept up its pace in the last two years, filing multiple suits to keep abortion clinics open in the wake of the overruling of Roe v. Wade, challenging racial gerrymandering in multiple states, and continuing to defend the First Amendment rights of all, whether the ACLU agrees or disagrees with their views.
The Sidney Hillman Foundation is thrilled to honor David Cole, who has distinguished himself in the tradition of George Barrett, working on behalf of those without money or power to protect their civil and human rights.