Battles in the Boardroom

Few nonprofit boards have fared worse in print than the national board of the American Civil Liberties Union in Worst Instincts: Cowardice, Conformity, and the ACLU, a new book by the social critic Wendy Kaminer.

In the book, Ms. Kaminer chronicles the errors she believes Anthony D. Romero made shortly after he became the executive director of the nation’s largest civil-liberties organization in 2001. She argues that the majority of the charity’s 83 board members were so caught up in “unethical, unthinking partisanship” that they turned a blind eye to those mistakes, ultimately corrupting the organization’s day-to-day work in the process.

The book is an intensely personal one for Ms. Kaminer — she was among a handful of dissident ACLU board members who fought, unsuccessfully, from 2003 to 2006 to have Mr. Romero punished or fired.

Rancorous Disputes

Worst Instincts offers a rare public glimpse at rancorous internal board disputes, and Ms. Kaminer’s vitriol spills into the manuscript. The cover art features a herd of sheep, suggesting that the board members who opposed her were mindless disciples of Mr. Romero.

In one extraordinary section, Ms. Kaminer, a former Guggenheim fellow who briefly practiced law before embarking on a writing career in the 1980s, describes the ACLU board as being “on the same continuum” of group behavior as the Branch Davidians — following a charismatic leader to a bad end.

“This story begins with Romero but it ends with the board,” Ms. Kaminer told The Chronicle in an interview. “When an executive director is engaging in misconduct, it is the board’s responsibility to rein him in.”

Mr. Romero declined an interview request from The Chronicle.

Leaders of the ACLU’s national board — and many of the organization’s supporters — acknowledge that the 43-year-old Mr. Romero made some “rookie mistakes,” but they say he has learned from them and become a dynamic leader who has increased the membership and the amount the group raises annually. Supporters say he has also helped the ACLU achieve some important victories against threats to civil liberties following the 2001 terrorist attacks, including the release in April of the Bush administration “torture memos.”

Susan N. Herman, a professor at Brooklyn Law School who became president of the ACLU’s national board in October, says the national board engaged in vigorous debate about nearly all of the issues that Ms. Kaminer raises in the book — as one would expect from a group of civil libertarians.

“Where Wendy sees a flock of sheep, I see a Noah’s ark,” Ms. Herman says. “The board has every kind of animal you can imagine. The very fact that there was dissension and robust debate about every one of her examples undermines her contention that we’re a flock of sheep.”

Aryeh Neier, who headed the ACLU in the 1970s, says Mr. Romero has brought “new energy” to the ACLU during a period when civil liberties are under assault because of the country’s counterterrorism policies.

“This book is a screed by one discontented board member who has been able to find virtually no support for her views within a famously contentious institution,” says Mr. Neier, now president of the Open Society Institute, a foundation created by George Soros.

A ‘Terrible Failure’

But others say Ms. Kaminer, the author of seven books on topics ranging from feminism to religion and popular culture, is careful with facts, and has told the story as they recall it. Muriel Morisey, a law professor at Temple University who served on the board for four years until 2004, says board members who raised questions about Mr. Romero’s leadership were marginalized or became so disgusted that they quit.

“It was a terrible failure of a board,” Ms. Morisey says. “In all of my tenure on boards, I’ve never seen anything like it.”

Ms. Kaminer argues that her work is a cautionary tale for other nonprofit organizations. If “groupthink” can infect a board that is as disputatious as the ACLU’s, she says, such problems are even more likely to crop up in the average charity.

She is not optimistic that structural changes to boards can solve the problems she believes corrupted the ACLU’s board — she attributes the board’s failings to human nature — but she does believe charities should do a better job of recruiting board members who understand the role they are being asked to take on.

“People who join not-for-profit boards do so because they care about the mission of the organization. They regard it as being on the side of angels,” Ms. Kaminer says. “They don’t join the board because they’re interested in governing the organization — they may not even understand what that work is. They’re more interested in almost vicariously doing the work of staff.”

Harvey A. Silverglate, a Boston lawyer who has served on the board of the Massachusetts ACLU affiliate for three decades, says Ms. Kaminer captures a major problem for boards throughout the country.

The “go along in order to get along” attitude that prevails on many boards — both nonprofit and corporate — has made them dysfunctional, he argues. Mr. Silverglate sees little distinction between what he views as excessive tolerance of Mr. Romero’s mistakes by the ACLU board, and the compliant corporate boards that allowed executives of financial firms to pile on risks that ultimately sank many of the companies.

Mr. Silverglate says he is running a petition campaign for a spot on Harvard University’s Board of Overseers, in part because he believes the board has been asleep on certain issues, including controlling risk in the university’s endowment. (A Harvard spokesman says the Harvard Management Company has a “robust risk-management strategy” and a board with considerable investing-industry experience.)

“We’ve got to change the notion that this is something you put on your resume and consider an honor,” Mr. Silverglate says. “You have to put board work on your to-do list and consider it an obligation and a chore. The financial collapse may be the trigger to start a round of searching questions about the fiduciary roles of boards and whether they have been carried out properly or ignored.”

Agreement With Ford

In Worst Instincts, Ms. Kaminer lists several actions by Mr. Romero that she believes should have prompted the board to take action. For example, in 2004, Mr. Romero advised his former employer, the Ford Foundation, to use concepts in the Patriot Act, a law passed after the 2001 attacks, in its grant agreements. Recipients had to agree not to “promote or engage in violence, terrorism, bigotry, or the destruction of any state.”

He later signed such an agreement with Ford — without telling the ACLU board — in order to receive more than $2-million in grants. The ACLU eventually returned the money, after board members learned about the language and many expressed concern that it could restrict political speech.

Mr. Romero also agreed not to hire anyone on the federal watch lists created after the 2001 attacks, so that the ACLU could continue to participate in a federal charitable-giving program that generated about $500,000 per year for the charity.

Ms. Kaminer says he signed the agreement and kept it from the board for six months, even as the ACLU was publicly denouncing such “blacklists.”

Mr. Romero has acknowledged he erred in these decisions.

And Ms. Herman says the board quickly realized that Mr. Romero could use an extra pair of eyes, and so authorized the creation of an in-house general counsel position and the hiring of a deputy director with considerable civil-liberties experience. “Anthony came in as a great manager and already a committed civil libertarian,” Ms. Herman says. “Over time, he has developed more radar about all of the contexts in which civil-liberties issues can come up.”

A Question of Style

Even as Mr. Romero made decisions that called into question his honesty and his understanding of the charity’s mission, the board continued to support him, Ms. Kaminer writes.

Working with other board members who were critical of Mr. Romero, Ms. Kaminer would submit detailed memos to fellow board members outlining his failings, but only a handful of the 83 board members joined her campaign.

She has little respect for the board members who had questions about Mr. Romero’s leadership but found her style abrasive and refused to join the fight. “The fact that people found my style obnoxious — I don’t think that takes them very far,” she says. “I said, ‘Say it in your style,’ and they didn’t.”

Ms. Kaminer and others began sharing their concerns with prominent journalists — which resulted in some unflattering headlines for the charity in The New York Times and elsewhere. “When our efforts to persuade board members to address the problems failed, I thought it was important to speak publicly,” Ms. Kaminer says. “How else do you inform donors and members?”

In 2006, a committee on “rights and responsibilities of board members” proposed a rule urging directors to “refrain from publicly highlighting” disagreements that call into question the integrity of board processes, in part because such a public airing could hurt fund raising.

In Worst Instincts, Ms. Kaminer presents the proposed rule as evidence that the ACLU’s leaders had “abandoned the fundamental commitment to protecting minority rights and minority views from majority rule.”

But Ms. Herman says the question of when a board member should make a criticism public is a difficult one, particularly since the board member has a fiduciary duty to the charity he or she serves.

“The decision whether to go public should belong to the individual director, but the director should be considering the best interests of the organization along with his or her own free-speech right in deciding whether or when to do so,” Ms. Herman says.

The board debated the proposed rule at a 2006 meeting, and the rule was withdrawn.

Ms. Kaminer believes the ACLU’s increasing concern for its image ultimately affected its programs.

She argues that the ACLU today is less likely to defend controversial groups or politically incorrect speech, offering as an example the California affiliate’s late arrival in defending a San Diego student who in 2004 was disciplined for wearing a T-shirt denouncing homosexuality. “The problem is not in what the ACLU does do, but in what it doesn’t do — that’s much harder to discern,” Ms. Kaminer says.

ACLU officials say that they supported the student throughout the process, and that they became even more heavily involved when a federal appeals court ruled that the T-shirt “invaded” other students’ rights.

State affiliates have also defended the Kansas pastor Fred Phelps, purveyor of the “God Hates Fags” message, ACLU officials point out.

“You can find cases like the Phelps case, but the trend is different,” Ms. Kaminer counters.

Looking Ahead

Ms. Kaminer, who left the national board in 2006, now says she is preparing to step down from her longtime service on the board of the Massachusetts ACLU affiliate.

One of the requirements for the job is an ability to raise money for the ACLU, and Ms. Kaminer says she can no longer do that effectively for the national organization.

She remains an ardent civil libertarian, serving on the advisory boards of the Foundation for Individual Rights in Education and the Secular Coalition for America. Asked whether she would consider joining the governing board of another civil-liberties group, Ms. Kaminer chuckles.

“I can’t imagine that any national organization would ever want me,” she says.