The Whole Star

Michelle Barlond-Smith came home late one night two years ago after her mother had suffered a massive heart attack. She smelled something in the air and thought her neighbor had a gas leak again.

Next morning, she woke up to find her town, Battle Creek, Michigan in the midst of a crisis. There was an oil spill in the Kalamazoo River—just six miles from her house. Barlond-Smith said the towns closest to the 40-mile river reeked of gas and oil for days.

“You get this headache,” she said. “I can’t explain it to most people, it’s right through the eyes and you live with it constantly. You are dizzy, you are nauseous.”

Two years later, the Kalamazoo River remains the site of one of the most devastating domestic spills in history. Last Thursday, officials opened the river to the public but the cleanup crew will remain for an unknown period of time.

Barlond-Smith said she walked away from her house and now lives in Jackson, Michigan. Her story, she said, is a cautionary tale for Texans.

Today she testified in front of the House Energy Resource Committee on the dangers that the Keystone XL pipeline and other pipelines pose to people and the environment.

Although the Keystone XL—a project initiated by TransCanada, a Canadian company— President Barack Obama denied the permit earlier this year, the project is far from dead. Just today the Army Corps of Engineers approved a 115-mile segment of the pipeline along the Texas coast. Once fully constructed, the Texas portion would stretch from Port Arthur to Oklahoma and would cross several Texas aquifers.

The pipelines will be used to transport heavy tar sands, a particularly corrosive substance. Chris Wilson, a representative of Public Citizen, told the committee that the tar sands oil poses a high risk for leaks.

Just last week, a Canadian pipeline company Enbridge—responsible for the Kalamazoo spill— suffered another leak in Alberta, Canada.

The pipes aren’t suitable for transporting diluted bitumen—a thick substance mixed with other hazardous chemicals to make it flow better through pipelines­­, Wilson said.

Enbridge has also put another existing pipeline into play, capable of carrying Canadian tar sands. Called Seaway, the 36-year-old pipeline runs from Cushing, Oklahoma to refineries in the Houston area. Enbridge is working on increasing the capacity of the pipeline from 150,000 barrels per day to 400,000 by early next year.

“It crosses major water bodies that feed water to Dallas, Forth Worth, and Bryan,” Wilson said. “That’s our big concern.”

Being prepared for an oil spill is extremely important, Barlond-Smith said, and high-risk pipelines in particular need vigorous regulation and new standards.

A pipeline breach “completely destroys your community, the health of people who are exposed and water,” she said. “It’s insane how much damage it can do.”

The Kalamazoo spill has cost $720 million and 23 months to clean up. The river is still contaminated.

“My concern is that I don’t want Texas to go through what Michigan went through,” Michelle said as she showed pictures of the damage in the Kalamazoo River area.

“It doesn’t matter what the company is—what matters is what’s going through these pipelines,” she said.

Newly Launched Alliance Aims to Reform State Payday and Auto Title Loans

Poll shows Texans support finance law changes
Gregory F. Maxwell

Texas has long been considered the Wild West of payday lending, with some of the loosest regulations in the country on those flashy shops boasting short-term loans.

After mixed results in the last legislative session, more than three-dozen organizations have teamed up to launch the Texas Fair Lending Alliance, making a new push for reform. The consumer protection group, launched today, advocates changing Texas’ laws governing short-term payday and auto title loans.

The alliance also released a poll showing Texans support capping the interest rates and fees that payday and title loan businesses can charge. Borrowers currently face more than 500 percent APR for these loans, according to the public interest law center Texas Appleseed, one of the members of the Alliance.

Eighty-five percent of registered voters who participated in the poll believed the appropriate rate for short-term loans should be 36 percent or less, and three-quarters of them supported changing the law to allow for a capping of fees and rates.

In Texas, short-term loan businesses have blossomed by charging consumers oppressive rates. In 2011, an eight-day payday loan carried 1,153 percent annual rate in Texas—one of the highest in the nation. The average annual rate for loans in other states was 400 percent, according to the nonprofit Center for Responsible Lending.

These extreme rates leave borrowers with endless debt as they struggle to pay back far more than the amount of their initial loan. Payday loan businesses are heavy marketers, particularly ubiquitous in low-income neighborhoods.

The Texas Fair Lending Alliance includes groups representing consumers, financial institutions, low-income communities and the elderly, and is also joining forces with the multi-denominational Texas Faith for Fair Lending.

“When a desperate borrower takes out a $4,000 auto title loan, pays $1,200 a month for months on end and never pays it off, something is terribly wrong with the law,” says Suzii Paynter, Director of the Texas Baptist Christian Life Commission, speaking on behalf of Texas Faith for Fair Lending.

City councils in at least 10 Texas cities including Dallas, Austin, San Antonio and Brownsville recently passed zoning ordinances to limit the expansion of payday lending businesses. But despite these small gains, the Alliance intends to continue the fight to push for new laws that protect consumers from being exploited by the largely unregulated industry.

Months after Texas students sat for the first round of STAAR, Texas’ new public school assessments have students, teachers, parents and some lawmakers concerned. At a public hearing at the Capitol Tuesday, they all got their digs in.

The tests were given this spring, replacing the TAKS in grades 3 to 12, and the results were released earlier this month. The STAAR tests are considerably harder than standardized tests Texas has used in the past, putting extra pressure on teachers and students. Just 55 percent of ninth graders passed the writing exam this spring.

At a public hearing Tuesday, Aldine ISD Superintendent Wanda Bamberg said the new standardized testing is fundamentally flawed. She said some small districts had to borrow staff from other schools just to have enough teachers to administer the tests.

“People have this idea that when we are testing in 7th grade, the 8th grade is moving on as usual,” Bamberg said. She said 8th grade teachers also had to help administer the test, breaking up the regular class schedule.

Bamberg told members of the House Public Education Committee that implementing the test puts a tremendous stress on teachers, administration and students.

“We are not against accountability,” she said. “We just want it more user-friendly for our children and parents.”

Amarillo ISD Superintended Rod Schroder complained that the STAAR is not diagnostic. He said the new form of testing is harder to implement and it adds too much pressure on people involved.

“I think we need to move to a different testing system. We have got to figure out some way to reduce the tests and bring down the pressure from the system,” Schroder said.

The superintendents said their teachers and students are left to simply guess why they performed the way they did.

Rep. Scott Hochberg, D-Houston, and committee members also worried about the complicated scoring system Texas has created for the tests, making it tough to glean straight answers about how students are doing.

Even “passing” the test is a fluid definition under STAAR, because the Texas Education Agency will raise the passing bar each of the next three years. Eighty-one percent of students passed the world geography test this year, because getting 40 percent of the questions right was enough to “pass.” Under the passing standard set for three years from now, only 40 percent of Texas students would have passed.

Svannah Kumar, a graduate of Anderson High School, said the standardized tests are very problematic because they are cumulative. Students have to make a passing grade (defined by the state) on 15 end-of-course exams, over the course of high school, in order to graduate. This year’s ninth graders are the first ones on the hook.

“In a way, that is really hurting students,” Kumar said.

Students who did not pass their STAAR exams have a chance to take it two more times before they graduate. They can also enroll in summer camps, which help them prepare for their next STAAR tests—an added expense for schools, as districts are already learning.

Another graduate of Anderson, David Engleman said colleges don’t necessarily look at standardized test scores when looking at admission applications.

“They have determined ways to assess that without using this data,” Engleman said.

He said most colleges prefer SAT and ACT scores over standardized test results.

Next year, though, the state is set to pile the STAAR stakes even higher, when the STAAR end-of-course exam will be worth 15 percent of a student’s final grade in a class. The so-called “15 percent” rule was pushed back to next year after an outcry from parents and teachers.

There’s no sign that cry is going to die down. In fact, 543 school districts—nearly half of the districts in Texas—have passed a resolution against the kind of high-stakes standardized testing culture STAAR represents.

Rep. Mark Strama, D-Austin, stood by the “15 percent rule” despite that outcry, and said there’s room to fine-tune STAAR delivery after its first year.

Committee chairman Rob Eissler, R-The Woodlands, lost his primary race last month and won’t be around the Capitol in 2013. But he and other committee members said that after STAAR’s debut left so many unhappy, the Legislature will have to look at reworking the system in 2013.


Note: This story has been corrected from an earlier version, which mischaracterizes the role of complaints about TAKS field testing in the switch to STAAR.

Photo by Patrick Michels

The night Rick Perry announced he was running for president, he made a bold statement. After being introduced as “the jobs governor,” Perry told the crowd that “Washington’s insatiable desire to spend our children’s inheritance on failed stimulus plans and other misguided economic theories have given us record debt and left us with far too many unemployed.”

Perry has been railing against stimulus programs and federal spending for years, even as he’s used more than $14 billion in federal stimulus funds to balance the state’s budget. In September, during a debate between Republican candidates, Perry claimed Obama’s 2009 Recovery Act “created zero jobs.”

Problem is, economic studies show that is far from the case. In addition to the Congressional Budget Office’s report suggesting between 1.3 and 3.6 million jobs were created by the Recovery Act, independent economic studies from private companies like Moody’s reach similar conclusions.

This week, an independent study commissioned by Texans for Public Justice was released suggesting the Recovery Act created or preserved at least 264,000 jobs in Texas through 2010. The study, “Federal Stimulus Spending Accounted for a Quarter Million Texas Jobs,” adds to growing evidence that the Recovery Act created jobs.

The study, which was conducted by public policy and economics researchers at the University of Texas at Austin, doesn’t rely on the methodology employed by Recovery Act jobs data alone, but draws its own conclusions after testing eight different economic models.

In addition to revealing how many jobs the stimulus created in Texas, the research also shows that the state’s percentage of local, state or federal government jobs is higher than and has grown much faster than the national average.

The vast majority of these jobs, more than 243,000, were directly created or saved by stimulus funds, according to the report.

“In 2010, employment figures for Texas were growing,” says Andrew Wheat, research director at Texans for Public Justice, “but if you take away the stimulus figures, they were plummeting. That quarter of a million jobs saved tens of thousands of families from hardship.”

According to the study, Texas added more than 190,000 jobs during 2010. Without the stimulus, Texas would have lost, at the very least, around 53,000 jobs. Not only did the federal stimulus Perry so opposed create new jobs in Texas, it spared many Texas workers a pink slip. The top job gains during this period were in the government sector, education and healthcare, all of which rely heavily on federal spending.

Wheat says the findings speak to the role governments have in correcting economic downturns, something Perry and other conservatives have consistently denied.

Perry campaigned for governor in 2010 on a platform blasting the very programs that poured billions of job-creating dollars into Texas. He has boasted about turning down federal stimulus money, and while he was still campaigning to be president, he promised he would create no such programs.

An increasing amount of evidence, including this new study, shows that Perry’s economic premise is not only wrong but bad for Texas’ economic growth.

Homestead Heritage during a craft fair in 2009.

What’s really going on near Waco? The short teaser on ABC’s Dallas affiliate WFAA says its two-part investigation (the first airs tonight at 10pm) exposes the “secret lives behind the walls of a seemingly perfect community outside of Waco.

The station’s veteran investigative journalist Brett Shipp has been working on corroborating and documenting allegations of physical, emotional and sexual abuse of children at Waco religious community Homestead Heritage since September last year. He told me tonight’s broadcast is “explosive stuff.”

This follows February’s Texas Observer story, “Heritage of Abuse” in which I exposed accusations of child abuse, beatings and cover-ups leveled at the group. Four members, I discovered, had been convicted of sexually assaulting minors, but I uncovered further allegations of sexual abuse of children that had never been reported to authorities. According to internal documents published by the Observer, church law states that religious matters within the community are not “the proper province, of the corporate State and its investigative, police and judicial services.” The obinvestigation also discovered families broken apart, and allegations of physical abuse and mind control.

WFAA’s investigation is believed to have found further evidence of abuse – what Shipp describes as compelling “personal testimony and physical documentation that Elders of Homestead either knew or should have known that children were being sexually and physically abused within the … community.”

In his entire career, Shipp says he’s never had to work so hard to corroborate allegations of an important story. “What started out at a lone complaint from a former member (who later decided it was too risky to continue providing me with information) evolved into a laborious quest to track down and authenticate allegations of abuse.” he says. “So many people who started to tell their stories backed out for fear of severing ties with family and friends within the compound … many took months to convince to talk … Some would only talk on background, others were able to provide me with compelling evidence but wished to remain anonymous. Only the extremely brave or determined dared speak out.”

Shipp adds that the driving force behind his investigation was to expose evidence that suggests the carefully controlled environment at Homestead has provided the ideal environment for abuse and abusive practices to take place – either wittingly or unwittingly. “We would hope that local and state authorities would begin to understand that the long-standing allegations of child endangerment need to be more carefully considered.”

In my story on Homestead Heritage for the Observer, I interviewed “Sandy” (not her real name) who told me that she was abused by two different men in the church from the age of five. Sandy says she informed an elder, but instead of taking the matter to police, she says he dis-fellowshipped the individuals she said committed the crimes and forced her to accept responsibility for “her part” in what they deemed “immoral relationships.” The Observer urged Sandy to go to the police to report the individuals responsible.

In response to my story, the church published an extensive rebuttal in the form of text and video. You can see it here

As the teaser for WFAA’s investigation says: “Some fear for the children that remain in the community.”

angus_wrightAngus Wright has a way of saying things we may not want to hear in a way that’s hard to ignore.

An example: During a meeting of environmentalists about shaping the public conversation on our most pressing ecological crises, folks were wrestling with how to present an honest analysis in accessible language — how to talk about the bad news and the need for radical responses, without turning people off. During the discussion about the effects of climate change, Wright offered a simple suggestion for a slogan: “No more water, the fire next time.”

Those words from a black spiritual, made famous by James Baldwin’s borrowing for his 1963 book The Fire Next Time, are usually invoked metaphorically. Wright was suggesting that we might want to consider the phrase literally. After a summer of drought and forest fires in Texas where I live, Wright’s comment reminded me that climate disruption isn’t part of some science-fiction future, but is unfolding around us in ways that are both complex and hard to predict, but devastating simple: We’re in deep trouble, ecologically and culturally, as we try to face up to unprecedented planetary problems in a society in denial.

Wright is one of our most astute observers of these troubles. His willingness to face these issues, and his ability to grasp the interplay of complex systems, is no surprise to readers of his book The Death of Ramon Gonzalez: The Modern Agricultural Dilemma, first published in 1990 and revised for a 2005 edition. Looking at one region in Mexico, Wright explains how political and economic power, combined with the arrogance of experts who believe they have all the answers, have radically changed people, communities, and land — mostly for the worse.

Though Wright speaks bluntly about these grim realities, he hasn’t given up trying to change the trajectory of a society that so often denies or minimizes the threat. A retired professor of environmental studies at California State University, Sacramento, Wright is the chair of the board of The Land Institute, which is committed to the research and organizing necessary for a truly sustainable agriculture. His writing also focuses on those issues — he is co-author of To Inherit the Earth: The Landless Movement in the Struggle for a New Brazil (with Wendy Wolford) and Nature’s Matrix: Linking Agriculture, Conservation, and Food Sovereignty (with Ivette Perfecto and John Vandermeer).

Because Wright has a knack for presenting complex ideas in plain language, I asked him to respond to some crucial questions about how to understand our predicament and options. Can we face reality honestly without feeling overwhelmed? Wright suggests we can.


Robert Jensen: Your invocation of “the fire next time,” with its Biblical roots, suggests a moral warning and the potential catastrophe if we are not up to the moral task. Before we get to questions of politics and science, what do you think is the right moral framework for understanding the ecological crises?

Angus Wright: There certainly is a moral question, but I think we in the environmental movement have wasted a lot of time dealing with it at the wrong level. I get frustrated with the deep tendency of so many Americans to be more worried about the task of saving their souls rather than solving the problem. I am not as interested in the purity of intention or personal practice as I am concerned about correctly identifying the nature of problems and getting to work in an organized way to solve them.

The emphasis, for example, on whether individuals are hypocritical when their personal consumption is out of sync with their political/ecological views has been a diversion. It undermines effective organization and helps to maintain the myth that it is personal rather than collective action that really matters. When we think we are saving ourselves, we tend to become self-righteous in ways that separate us from the other people we need to work with in order to effect societal change. The important moral question is social, not individual. How do we collectively figure out ways to live that don’t require that we destroy the planet’s capacity to sustain life?

RJ: What are the two or three most important things we need to understand about humans, psychologically and politically, if we are to avoid that destruction?

AW: Humans are capable of immense creativity and sacrifice, which has been demonstrated in crisis situations such as wars, famines, migrations, and in the building and defense of homes and communities. In my work, I have been frequently reminded of the incredible sacrifices Mexican immigrants make to earn a little money to send back to their families over years, sacrifices that have both an individual and a community aspect. Many of us know how hard and how creatively our parents and ancestors worked to provide us with the lives we now take for granted. Of course, such effort can have negative as well as positive aspects — for example, the creation of the majority European culture of the Americas at the expense of Native Americans and Africans. People are also capable of stunning complacency, greed, and divisiveness.

The secret we seek is what inspires humans to act positively and creatively in the face of huge challenges. As humanity faces the environmental crisis, this is its greatest challenge: How do we elicit the kind of collective and individual action and creativity that will be needed? I think previous experience implies that it cannot be fear alone, nor opportunity alone, nor persuasion alone, nor organization alone, but a blend of these elements, with much else. We have been able to lump these things together successfully in the past in something called patriotism — a powerful force for good and ill — and now we need something like a planetary patriotism. But no planetary patriotism can be built without acknowledging and dealing with the major things that divide us as well as the challenge that must unite us. Putting on a happy face won’t cut it.

RJ: If we have a considerable body of knowledge concerning the seriousness of the ecological crises and we have the capacity to respond to threats, what are the key impediments to change? Is the problem in the political leadership of recent decades? The economic system? Something we can’t yet identify?

AW: One problem is an economic system that impels each company within it to pursue growth — each company must seek new investment funds by demonstrating greater growth potential than its competitors. Another problem is a political system that is so heavily corrupted by corporate cash, exacerbated by the absurd legal fiction that a corporation is a person with constitutional rights to free speech. Without those problems, we could have the kind of largely publicly funded campaigns adopted by other countries. I also think that for all its virtues, the constitutional checks and balances built into our system have brought us to gridlock — we really might want to consider the advantages of a parliamentary system in which the executive branch is headed by the leader of the majority party, as in England and many other parliamentary democracies.

We have to be enlightened enough to take aggressive and expensive actions primarily for the benefit of our children and grandchildren. While individuals and families have been able to do this throughout history, it has proven very difficult for whole societies to do so. All these barriers are so daunting that we become overwhelmed by the sheer magnitude of it all. Here we face fundamental philosophical and psychological problems at both the individual and collective levels.

RJ: You said the solutions aren’t going to be individual. But how do you evaluate the efforts of people who focus on their everyday lives? That can range from being diligent about recycling, to buying “green,” to biking to work, to planting a vegetable garden. If we don’t naively believe those things can solve all our problems, are they worth doing?

AW: Our most important problems can only be solved by collective action — new policies and laws taken by government. That requires that we act, above all, as citizens. I have watched over the past 40 years as nearly every important institution in our society has gradually shifted to encouraging us to see ourselves as individuals and consumers as opposed to group participants and citizens. We are all aware of this in advertising, but it has also become a powerful trend in education and in government itself. We are encouraged to believe that we can bring the changes we need by exercising our “consumer vote” in the marketplace more effectively than by exercising our citizenship — not just in voting, but also in public debate, in participating in political parties, in the exercise of our professional judgment, in educating our children, in participation in labor unions and professional associations, in speaking out in our communities. Our “vote” through marketplace purchases can only bring about very limited change, and by thinking of ourselves more as consumers than as citizens we diminish our very dignity as human beings. We become a mouth that eats rather than a voice that speaks.

That said, I am all for making the changes at the individual level that can help to create a culture of frugality, help us realize that we don’t really need the great quantity of junk our civilization produces, help us understand that we can make major social changes while actually improving our lives. Most of us want sociability and conviviality more than we want consumer goods. We can set a good example for others by showing that we can live more happily by consuming less. All of this can also help us live within a discipline of conscious choice rather than of allowing advertising to manipulate us.

RJ: In my experience, academics tend to focus on narrow questions they think they can answer. You seem to gravitate toward big questions that defy definitive conclusions. I wonder if that’s because of your training and teaching — you’re a historian who taught environmental studies. We might say that the object of your inquiry has been everything that happened before today, and the interconnectedness of everything happening today. What lessons have you learned about intellectual life from your career?

AW: When Wes Jackson (president of The Land Institute) recruited me to help him create an environmental studies program at Cal State-Sacramento, I was the all-purpose humanities and social science person in a small core faculty. I learned all I could from Wes about biology and genetics, and from other colleagues about oil and mineral depletion, nuclear power, city and regional planning, environmental law. It was a wonderful kind of second graduate school experience that lasted through an entire career.

I had always been attracted academically to what might be called the “pan-disciplines” such as geography, anthropology, and history, disciplines that can reasonably take on almost any topic in human affairs. Salina, our small Kansas city, was known nationally for having one of the best public libraries of its size, and I spent a lot of time camped out in its stacks. My parents — intensely intellectual people who were too poor to go to college — assumed that any reasonable and moral person would be interested in nearly everything, and they hadn’t been beaten into submission by professors to think differently. They were good models who were eager for knowledge of all kinds. They were looking for clear words and straightforward thinking, and they assumed that good thinking led to social responsibility and political action, to which they were dedicated.

RJ: Thinking about that need for clarity, one last question. As an environmentalist, you can’t ignore the stark reality of the data about our ecological crises. As a historian, you can’t ignore the record of human successes and failures. When you weigh all that up, what advice do you have for how we should face the future? Many people find it hard to face the changes that are likely coming, which I once heard you describe as “dramatic and potentially highly unpleasant.” Are we facing “the fire next time”? Is there a way out of the trap we’ve set for ourselves?

AW: I don’t know if there is a way out, but we have to try. My own expectations are pessimistic because I don’t see enough people having sufficient awareness, understanding, and determination to bring about the major changes we need.

And of course, contradicting what I just said, we don’t really have to try. We only really have to try if we want to maintain our self-respect. If we want to stumble forward drunk while whistling in the dark, we could choose that. I maintain a certain faith that many people are going to make the right choices, and we can hope that is enough. I think Gramsci had it right when he said that he lived with “pessimism of the intellect, optimism of the will.” And you have to take that seriously from a guy who wrote while in prison for his political beliefs.

The Trials of Eroy Brown

The murder case that shook the Texas prison system

Last June, an administrator at the federal prison in Salters, South Carolina, must have been shocked when he opened the transfer file of a Texas inmate named Eroy Brown. For the past 26 years Brown has been serving a 90-year sentence in various federal prisons. He was sentenced for holding up a Waco convenience store in 1984. What was shocking was not the robbery, which netted Brown and two accomplices $12 and a couple of candy bars, but what happened three years before the robbery. In 1981, Eroy Brown drowned the warden of a Texas prison face down in a drainage ditch and shot and killed a prison farm manager in a struggle for control of the warden’s pistol. Federal prison officials immediately locked their new prisoner in solitary confinement as a dangerous murderer and a possible threat to prison officers.

It is unlikely that the Texas Board of Pardons and Paroles placed the full story of those killings in Brown’s file, for that would have included the fact that Brown was acquitted of those killings by reason of self-defense. The full story is that in 1982, 23 of 24 jurors declared Brown innocent of murder in the drowning of Warden Wallace Pack. In 1984, another jury acquitted him of murdering farm manager Billy Max Moore. And the fuller story is that Brown has been kept in federal custody for a state crime because in 1984 Texas agreed to a civil rights settlement that keeps him from ever serving time in the Texas prison system—it might be too dangerous for him.

Brown’s parole attorney, Bill Habern, one of the lawyers who helped defend Brown’s murder charge, wrote a letter to the federal warden explaining that Brown was not the dangerous murderer he might seem to be, but the victim of two aggressive Texas prison officials. Habern thought Brown deserved the chance to live in the general prison population and hold a job.

If Brown were reviewed for parole on the basis of the crimes for which he was convicted, he would likely be out by now. Brown has served 26 years for a $12 robbery. But Texas will never parole him, Habern believes, because of the deaths of the two high-ranking prison officials. He thinks Brown is being held for a crime of which he was acquitted.

My new book—The Trials of Eroy Brown: The Murder Case that Shook the Texas Prison System—coming out this fall from University of Texas Press tells the whole story.

Saturday, April 4, 1981:
Ellis Prison

Only a handful of trusties and a couple of farm supervisors were working at the Ellis farm that Saturday morning.

One of them was Eroy Edward Brown, a Class I trusty who ran the tire shop for Billy Moore. He was 30 years old and had spent most of his young manhood in Texas prisons. His skin was so dark that his features disappeared in his prison mug shots. He was of medium height, with a small waist and strong arms and shoulders thickened by wrestling tractor tires all day.

After a long series of run-ins with the Waco juvenile authorities, Brown first entered the Texas Department of Corrections (TDC) in 1968, after pleading guilty to burglary. He was 17. He served three years, and was paroled to Waco, where he fitfully worked and acquired a heroin addiction. He returned to prison in 1974 for having burgled a Waco department store for $27 worth of men’s socks. He was nearing the end of his third sentence as an accomplice to the armed robbery of a Fort Worth motel. He had never been tried for his crimes. He always pleaded guilty.

Brown came to Ellis, the toughest prison in Texas, in 1977. When the trusty who ran the implement shed went home, Brown got his job. Brown filled ammonia tanks with fertilizer, fixed flats and changed tires on the farming implements and tractors. Eroy Brown had never succeeded in the free world, but at Ellis he did work that kept the plantation functioning. He was due for parole in three months, and he was looking forward to his freedom.

When Billy Max Moore came to run the farm in 1979, he made it clear that he was in charge. Brown didn’t think Moore was such a bad guy. But he came in stealing and hustling, getting oil changes and lube jobs for himself and his friends and stealing tires that he had Brown mark down on the farm inventory.

Brown had not met the new warden at Ellis, Wallace Pack. No one seemed to know much about him, except that he was rumored to have been tough on the mentally retarded convicts who were kept at the Wynne prison.

Brown had been an outside trusty three times in prison, and he knew how to do time. His motto was the convict’s motto: “I ain’t got nothing to do with nobody.” He kept his mouth shut.

But that morning he violated his convict’s code when he complained to his work partner in a woeful, loud voice: “After all I done for Billy Moore, I don’t see why I can’t get no furlough.” The tractor supervisor, a boss named Bill Adams, was standing in the back of the shop, listening. Adams didn’t like the tone of that phrase, “after all I done for Billy Moore,” and wanted to know what Brown was doing “running his head.”

In an earlier era, Adams might have let Brown’s comment go. Who would listen to a convict, anyway? But for the past several years, civil rights lawyers and FBI agents had been combing through the Texas prisons, talking to convicts about prison brutality. The TDC was in an uproar about civil rights.

Adams told Brown to get in the truck. Billy Moore could deal with Eroy Brown. By 1 p.m., Moore and Pack were dead, and Eroy Brown was stripped naked in a holding cell, a bullet wound in his foot, claiming “self-defense all the way.”

Sunday, April 5, 1981:
Estelle’s Bitterness

When the director of the Texas Department of Corrections, Jim Estelle, met with reporters the day after the deaths of Wallace Pack and Billy Moore, he was angry and defensive. The official story was that Moore had brought Eroy Brown near the bridge at Turkey Creek to smoke marijuana. Somehow Brown got a gun from the glove box of Pack’s car, scuffled with the two men, shot Moore and drowned Pack.

Reporters pressed Estelle about guns in prison. “Our written weapons policy is that they are not allowed inside the security perimeter,” Estelle said. He would not comment on an unofficial policy. “Security,” he said, “that’s nobody’s business but the people who need to know.”

It was almost as though the prison system was being blamed for the deaths. If inmates and not prison officials had been killed, the public outcry would have been greater, Estelle said.

“I guarantee you there aren’t going to be any marches on the courthouse,” he said, “any wailing or gnashing of teeth, any sackcloth and ashes over this.”

The source of Estelle’s bitterness was a federal judge with the improbable name of William Wayne Justice. For the previous seven years Justice and Estelle had been embroiled in what turned out to be one of the longest-running prison civil rights cases in the history of federal jurisprudence: Ruiz v. Estelle, or more simply, Ruiz.

David Ruiz was an armed robber who had filed a 15-page, handwritten petition in Justice’s court charging the TDC with cruel and unusual punishment. In 1974, Justice consolidated Ruiz’s petition with several inmate writs, recruited a civil rights attorney from the NAACP and got the Department of Justice involved. Next came a trial before Judge Justice.

The TDC was not used to outside interference. It had long enjoyed a reputation as the best-run prison system in the country: cheap, clean and orderly, with few escapes and little violence. The state fought Ruiz’s pretrial investigation to the U. S. Supreme Court and lost. After four years of delays, in October 1978, the trial began, with demonstrators picketing outside the courthouse. One of their signs read, “Prisons are concentration camps for the poor.” Another said: “W.J. Estelle is a slave master.”

Scheduled to last three months, the trial lasted nearly a year as the state, expecting to lose, conducted prolonged cross-examinations of both convict witnesses and prison officials. The core issues were overcrowding, inadequate medical care, lack of safe working conditions, and brutality by TDC officials and their inmate snitches and enforcers, the building tenders.

The case involved 349 witnesses, hundreds of exhibits and thousands of pages of documents. To demonstrate the problem of overcrowding, the plaintiffs built a replica of a typical Texas prison cell, five feet wide and nine feet deep, and crammed three to five court officials inside.

Justice took a year to study the record and write his opinion, which he issued in December 1980, a little more than three months before the deaths at Turkey Creek. In more than 200 pages, Justice described the suspicious deaths and gruesome stories of Texas prison life. In one, a convict whose arms had been cut off in a threshing machine had been left alone to be raped by another inmate. A paralyzed inmate, deprived of his wheelchair by officials, was forced to drag himself on the ground for hours. Officials allowed a building tender to rape and torture an inmate by forcing him to stand in a toilet while he shocked him with wires strung from the ceiling light.

“Nor is the brutality the sole province of a few low-level security officers,” Justice wrote. “Many vicious incidents of abuse implicate high-ranking TDC officials.”

One newspaper reporter compared Justice’s opinion to Dostoevsky, who had famously written: “The degree of civilization in a society can be judged by entering its prisons.” Reporters found Estelle’s reaction to Justice’s opinion peculiar and quotable. He denounced it for its literary merit.

“It read like a cheap dime novel,” Estelle said. “I think he overused the adjective aspect of his dictionary. It did not read like a legal opinion and did not even make interesting reading as far as I’m concerned.”

Now Estelle had lost the warden of Ellis prison and his farm manager. It might have seemed to Estelle that the Ruiz decision had emboldened Eroy Brown. At least a dozen cases of questionable inmate deaths had been brought up during the trial and three inmate witnesses died during it. For the past three years, the prisons had been restless with work stoppages and protests. Inmate-against-inmate violence had increased. The state had resolutely defended the prison system, denying every charge brought against it, especially those for brutality by prison officials. It was time for someone to stand up for prison officials.

“We’ve had five employees killed in the last nine years and we haven’t had an execution since 1964,” Estelle told reporters.

“If there was ever any reservation in my mind [about the death penalty], the closer it gets to home the less I have. I wouldn’t want to be the next person who tried to assault the next warden.”

The Defense Team

Bill Habern was getting bored with law when Eroy Brown’s case blazed into the headlines. He had a small practice in parole law and he had worked in prisons. He knew that prison officials were forbidden to take handguns near convicts. He suspected that Brown might have a good case for self-defense.

In a little more than two months, Habern put together a major defense team for Eroy Brown. He recruited state Representative Craig Washington as first chair, a star courtroom performer who could shred a witness with relentless questioning and move a jury to tears in a closing argument. He had former prosecutor Tim Sloan, who knew the most experienced forensics experts in Texas, who could take shorthand notes of everything that happened, do first-rate legal research and hand-write motions on the spur of the moment. Habern could consult with every major defense and civil rights lawyer in Texas, and he had deep connections among prison inmates. At his back he had the long shadow of public doubt the Ruiz case had cast on Texas prisons.

The First Trial, Galveston,
February–March 1982:

Five days after the trial started, Craig Washington laid out his theory of the case. It had nothing to do with a violent inmate trying to escape and everything to do with a convict who was being put in his place. Eroy Brown was in fear of being thrown in the river because he had threatened to expose the thefts of “Master Moore,” Washington told the jury. “The defense,” he said, “is self-defense.”

“I think the evidence will show that Moore and Adams were stealing tires,” Washington said. “Eroy mounted tires on free-world vehicles.”

“Eroy was complaining about his failure to obtain a furlough. He thought he had worked harder than anyone else, and he [Moore] wouldn’t go to bat for him.” “Adams misconstrued a remark made by Eroy,” Washington said, and “he took it as a threat to snitch on them.” Pack’s response, Washington said, was threatening: “We’ll see if you can talk at the bottom of the Trinity River… .”

Then Washington put Eroy Brown on the stand.

Eroy’s Story

Moore radioed for Pack to drive to a crossroads near Turkey Creek and meet him. Brown knew that three trusties were watching from a farm building 100 yards away. The following description is drawn from Brown’s testimony.

Mr. Moore he pushed me around to the side of the car, and said, “Get your ass up here, nigger. Get your ass up here against this car. You get your nigger ass right up here against this car.”

I put my hands on the car spread-eagle like, with my arms on top of the car. Then he kicked me outward. I kept on leaning, looking back toward the trunk of the car.

I had talked almost in a monotone, kind of low. Then I changed my tone of voice. I started talking loud so I could make Kelley and them hear what was going on. “You can’t do me any kind of way. People will come down and see about me.”

Mr. Moore said, “Nigger, you ain’t going to be able to tell a goddamn thing on me. You ain’t going to tell shit on me.”

Warden Pack was at the back by the trunk. He let the trunk down and he come around and he had this pistol in his hand and he slapped it up. He closed the cylinder up. He said, “Billy, get the handcuffs out of the glove box.”

Mr. Moore was keeping me up against the car, and he opened the front door, and he hit the button on the glove box, and he got the handcuffs out of there. He took my left hand snapped the cuff on.

Mr. Moore said, “Nigger you ain’t going to be able to tell no one what goes on here. We still do away with niggers like you down here.”

He backhanded me and he had me leaning up against the car and was pushing me against the car. I started talking loud again. I started telling him that my people would call the Justice Department. There were people who cared about me, and I would tell the Justice Department or someone would tell the Justice Department.

Mr. Pack come up to my left side and then he sticks the gun up to my head, right up to my temple. Mr. Moore done got one handcuff on me right there. And he was fixing to get the other one on.

I looked at him and I said, “Well, somebody is going to tell somebody about what is going on here. It ain’t nobody going to do away with me.”

Then he cocked it. He cocked the gun.

He said, “I told you to shut your ass up, boy. I will splatter your brains all over this street right here.”

If he hadn’t cocked the gun I might have thought that he was just trying to scare me, I might not have done anything. I thought he was going to kill me.

I tried to lean back to get out of range of the gun. He had the gun sticking in my face. I tried to lean back but Mr. Moore pushed me back up against the car. I turned around and I took my other hand, my right hand, and knocked the gun down and it went off. The bullet went straight down and hit my right foot. All three of us jumped from the impact of the sound of the gun.

Mr. Moore was pulling on this one handcuff and Warden Pack, he was trying to come again with the pistol in his hand. I took my hand and knocked it to the side that time. It went off, still in his hand. Major Moore was behind me. He was trying to put the handcuff on my hand. When the gun went off, he let go of my arm, and he just held the handcuff.

Warden Pack was fixing to try to bring the gun back up again, and I grabbed hold on it. I finally got hold of the barrel and continued to bend and we both had a hold of it and I twisted it out of his hand and the gun fell to the ground between me and Warden Pack. Then we both grabbed at it. Warden Pack starts grabbing after the gun, reaching with both hands. The major was pulling on the handcuff and he was trying to pull me back. I was batting at Warden Pack’s hands. We were reaching for the gun and after two or three minutes I finally got hold of it and I spun around and pointed it toward [Billy Moore].

I kept backing and I told them, “Don’t come at me. You ain’t taking me to no bottoms. You ain’t going to drown me in no bottom.”

I lost my balance and I fell. I scoot down, and both of them dived at me. Major Moore had a piece of the handle of the gun, Warden Pack had a hand on the gun, and my hand was on the gun too. They dives at me and I am scooting back and the gun went off, bam, bam.

The gun went off twice, and Major Moore fell back this way, which is the way he fell back towards the car. Warden Pack backed off and run towards the fence on the bridge. Then I didn’t see him no more. I just sat down. I had the gun sitting on my right-hand side. I pulled my britches leg up and was trying to look at my foot. My foot was hurting and my leg was hurting all up and down my leg where the bullet went into my foot. I tried to stand up and I walked over toward the end of the bridge. I couldn’t stand up very good, and hopped around and looked on the side of the bridge. I couldn’t see him. I called him and I said, “Warden Pack, Mr. Moore is shot up here. I am shot. Please get us to the building.”

He hollered back, “Nigger, you are going to get to the building all right.”

After wrestling with Pack for the gun, Brown testified, he threw it in Turkey Creek. Pack tried to drown him once but didn’t succeed. The two men wrestled again.

He reached over and grabbed me and I fell over. I grabbed him and I twisted him. We kept turning over and over and he was trying to get on top of me and I was trying to get on top of him.

We rolled over and we ended up in the drainage ditch. I hit the water first. I am face down in the mud. He’s on top of me.

I got up on my knees and scooted between his legs. I pulled his leg out and I fell on top. I jumped on him and laid on him. I didn’t push his head. I just jumped and had my hands across him. And I just laid on him. I laid down there for a few minutes.

I laid on him and laid on him. I don’t know how long I laid on him. He stopped moving.

I was more or less resting. I was holding him. I was trying to keep—he kept on. He kept on wanting to fight. He kept on. Man, I begged and I pleaded with him. He just kept on.

Craig Washington asked: “If he hadn’t done those things to you, Eroy, would you have done those things to him?” Eroy was weeping when he said the following words and the court took a recess.

No sir, he just kept on wanting to fight. He just kept on. He just kept on. He just kept on wanting to fight.

Washington’s Final Argument

Washington urged the jurors to put themselves in Eroy Brown’s place, to see the world through the eyes of a convict.

Using the defense table to represent Pack’s car, Washington walked the jury back through the physical evidence. He pointed out that the one slide the prosecutors had shown of the view from the garden shed showed precious little. The two inmate witnesses, Levi Duson and James Soloman, [who testified against Brown] were 100 yards away, their view of Pack’s car blocked by the truck. Washington walked around the defense table, showing the jurors how impossible it was for Soloman and Duson to have seen what they said they saw, and they didn’t care what happened to Brown when they told their lies.

“Soloman and Duson would try anything to get out of prison,” Washington said, “even ride on his life.”

If Brown truly had control of the gun, as Duson and Soloman said he did, and was full of murderous intent, why didn’t he just shoot Pack?

“What fool would provoke and be difficult when the other guy has the gun?” Washington asked. “They are playing a game with another man’s life.”

The true meaning of what happened, Washington said, was that Moore and Pack were worried that Brown had threatened to expose Moore’s thefts of prison tires. In another era, the threat of a convict to talk to the outside world was not likely to worry a warden or a farm major. But in the Ruiz era, convicts were being listened to. That was why Pack had pulled a gun on Brown.

“They would have you believe a warden rides around on a prison farm with a gun lying out on the seat,” Washington said. “You know that’s not true.”

“They had no business with that gun out there. They had that gun for only one reason: Stop that Old Thing from running his head.”

Once Moore had fastened the handcuffs on Brown’s left wrist, he was like a bird in a cage, Washington said. As Moore was about to snap the cuffs on Brown’s other wrist, Brown had to decide what to do.

“He had to decide whether he was going to live or die,” Washington said. “He had 15 seconds to decide before that second handcuff went on. What do you do? A gun to your head and one handcuff on?”

“His struggle was consistent with human nature,” he said. “Everyone wants to live. No one wants to die. It was like being at the end of your rope.” The state’s version of events was based on lies, Washington said, and, as he repeated the phrase again and again in his final argument: “No lie can live forever.”

The newspaper reporters didn’t pick up on the source of that expression, but it was surely well known to the black spectators who crowded the courtroom in support of Eroy Brown. It came from Martin Luther King Jr.’s speech on the capitol steps in Montgomery, Alabama, in 1965. King said: “I come to say to you this afternoon, however difficult the moment, however frustrating the hour, it will not be long, because ‘truth crushed to earth will rise again.’ How long? Not long, because ‘no lie can live forever.’ How long? Not long, because ‘you shall reap what you sow.’ How long? Not long, because the arc of the moral universe is long, but it bends toward justice.”

Michael Berryhill is chair of the journalism department at Texas Southern University. He lives in Houston.

Last month’s U.S. Census Bureau report provided a grim view of the worsening state of poverty in America, which is at its highest level since 1993. The situation in Texas is even more troubling—the poverty level is higher and rising faster than the national rate.

A new round of census data from the American Community Survey, which focuses on metropolitan areas with at least 65,000 people, provides a more detailed picture of poverty in the Lone Star State, and how it measures up nationally. Texas is home to four of the five poorest metropolitan areas in the nation. Bryan-College Station, Laredo, McAllen and Brownsville have poverty rates ranging from 30-36 percent. A combination of historically higher unemployment rates than the rest of the state, along with an abundance of low-wage jobs, has likely led to these areas being especially hard hit, said Frances Deviney, a researcher with the Austin-based Center for Public Policy Priorities (CPPP). The nonprofit organization is analyzing the impact of the recession on poverty in Texas.

In 2010, 17.9 percent, or 4.4 million Texans, were living in poverty, compared to the national rate of 15.3 percent. (The Census Bureau defines poverty as a family of four living on $22,113 or less per year.) The poverty rate has declined for Texans 65 years and older. But for children and working-age Texans, poverty rose to 15.6 percent, an upward trend that has continued throughout the recession. Child poverty in Texas remains at dramatic highs, with more than one of every four children in the state, or 25.7 percent, now living in poverty, according to the center’s analysis. 

The state’s fastest-growing population—Hispanics—is growing poorer at a disproportionate rate. Poverty is rising faster among Hispanic Texans than among non-Hispanics. This trend is tied to education. Between 2008 and 2010, poverty remained relatively low among college-educated Texans, but residents with a high-school diploma or less were increasingly likely to slip into poverty. Hispanics are statistically more likely to drop out of high school, and subsequently more likely to live in poverty, Deviney said.

This widening poverty gap based on educational attainment has particular resonance in the wake of this year’s funding cuts to education. “Lower educational outcomes mean higher poverty, both for the individuals and the state as a whole,” Deviney said.

Adding to this educational disadvantage is the disproportionate rate at which low-wage Hispanic workers have lost their jobs during the recession. “Paradoxically, low-income Hispanics generally have much higher work rates than other lower-income groups, and thus they are more sensitive to the recession and loss of work that accompanies a recession,” said Cynthia Osborne, associate professor of public affairs at the University of Texas at Austin’s LBJ School of Public Affairs. “This group will be hard hit by things like declines in construction, especially.”

Widespread unemployment and lack of health insurance have nudged more families below the poverty line throughout the nation. Texas is no exception. In contrast to Gov. Rick Perry’s Texas jobs “miracle,” unemployment in the state has nearly doubled during the recession, rising from 4.4 percent in December 2007 to 8.5 percent in August 2011, according to CPPP. Although the number of Texans without health insurance declined from 2009 to 2010, the new census data show Texas still has the highest uninsured rate in the nation, at 24.6 percent.

Rising poverty levels are troubling enough, but Osborne noted that 40 percent of Texans are at risk of falling into poverty. More than 9.7 million people live on twice the federal poverty threshold, or $44,226 or less per year for a family of four. “These individuals and families are very sensitive to unemployment or changes in their health status,” Osborne said. “They have very few resources to fall back on, and are at high risk of falling into poverty when they lose their job or have a change in health status.”

These alarming figures are unlikely to get much attention from Perry on the campaign trail, but they are a sad and glaring truth about living in Texas. Unemployment and lack of health insurance, along with other obstacles, have made poverty a reality—not just a statistic—for too many Texans.

For Women’s Health in Texas, a Week of Mixed Emotions

Pre-abortion sonogram law won't be implemented for now, but budget cuts to family planning remain

Just two days before the Texas Legislature’s new laws take effect, pro-choicers across the state got some good news—the infamous sonogram law can’t be implemented until the court case around it is settled. But that hardly makes this a happy week for women’s health advocates. They’ve got to brace for drastic funding cuts across the state starting Thursday.

Tuesday, Austin’s U.S. District Court decided the controversial pre-abortion sonogram law will not take effect, at least for now. The law, designated as an emergency issue by Gov. Rick Perry and therefore fast-tracked during the session, required that women seeking an abortion get an ultrasound 24 hours before the procedure, or 72 hours before if she lives in a rural area. It also mandated that the physician performing the abortion describe the sonogram image to the woman, as well as show her the image and play the fetal heartbeat. Only those who are victims of rape, incest or know their fetus has an abnormality can opt out of all that.

Federal Judge Sam Sparks ruled in favor of the Center of Reproductive Rights, a New York based organization that challenged the new law in early June. The center argues “that the ultrasound requirement violates the First Amendment rights of both the doctor and the patient by forcing physicians to deliver politically-motivated communications to women regardless of the woman’s wishes.” His decision upholds the Center’s request for a preliminary injunction, which means the law won’t take effect until the case has been decided on.

“The Act compels physicians to advance an ideological agenda with which they may not agree, regardless of any medical necessity, and irrespective of whether the pregnant women wish to listen,” Sparks wrote as part of his decision. It’s also worth noting that in August, Sparks rejected two supporting case briefs filed on behalf of the bill’s authors, Sen. Dan Patrick and Rep. Sid Miller. (You can read about that in a recent BurkaBlog post, which contains some pretty entertaining language written by Sparks, here.)

Gov. Rick Perry may be off on the campaign trail, but did fire off a press release to lament the news about one of his most treasured new laws from this session.

“Every life lost to abortion is a tragedy and today’s ruling is a great disappointment to all Texans who stand in defense of life,” he said. “This important sonogram legislation ensures that every Texas woman seeking an abortion has all the facts about the life she is carrying, and understands the devastating impact of such a life-changing decision.”

But while this news from the courtroom pleases the law’s many opponents, across the state, those who support family planning have little else to applaud.

Thanks to budget cuts and changes to funding, six Planned Parenthood health centers and nine independent family planning providers statewide learned they are losing state funding for the first three months of the 2012 fiscal year, beginning Thursday. Those 15 clinics will lose out on rollover funds from 2011 and family planning money appropriated by the legislature for the new fiscal year.

These are just the immediate effects of decisions made during the session. Lawmakers slashed a whopping two-thirds – almost $67 million – of state dollars available for contraception and reproductive healthcare for poor women. What remains is a measly $32 million, which is supposed to serve a population of hundreds of thousands of women over the next two years. During the session, the Legislative Budget Board estimated almost 300,000 women will lose services once these cuts take effect.

On top of that, the Legislature voted to prioritize that money. Clinics like Planned Parenthood and other independent ones that provide solely family planning services are last on that priority list, even though they see the most women for family planning services (First on the priority list are public entities like county and local health districts, while clinics that provide primary and comprehensive care are second). Though this initial loss is just for the months of September, October and November and clinics can still apply for the rest of the fiscal year, it’s not a good indicator of what’s to come.

The loss of initial funding “doesn’t bode well for the rest of the fiscal year,” said Sarah Wheat, interim CEO for Planned Parenthood Capitol Region. “This isn’t theoretical or political anymore, it’s real life starting this Thursday.”

Clinics statewide will now have to cope with reduced or no public funding by turning patients away, minimizing staff or closing their doors altogether. Fran Hagerty, executive director of the Women’s Health and Family Planning Association, wrote via email that 11 clinics will close or have already. Planned Parenthood North Texas is closing seven. And that’s the just for right now. Closures will begin at the end of September and clinics like Planned Parenthood in downtown Austin plan to alert clients to budget changes starting this week.

These budget cuts seem more ideological than logical. On a perpetual quest to stick it to Planned Parenthood, conservative lawmakers and anti-abortion groups pushed for cuts to family planning services throughout the session to ensure Planned Parenthood didn’t get any public funding, even though state funds can’t legally be used for abortion. But these cuts will undoubtedly lead to more and expensive unplanned pregnancies, and likely more abortions – the exact thing pro-life groups and conservative lawmakers want to prevent.

Texans love their symbols. From the Lone Star to Longhorns, from Texas A&M University’s beloved Reveille to armadillos, there’s an image for every Texan to rally around. And if you so choose, you can drive around the Great State with your favorite Texas icon emblazoned on your license plate. Most of the state’s specialty license plates aren’t controversial—unless you have a special hatred for horned lizards. But a symbol with particular resonance may soon appear on Texas license plates: the Confederate flag.

The Texas Division of the Sons of Confederate Veterans has petitioned the Texas Department of Motor Vehicles for its own Confederacy heritage license plate that would include an image of the Confederate battle flag. Founded in 1896 to honor soldiers who fought for the Confederacy during the Civil War, the group coordinates historical reenactments and maintains soldiers’ graves, among other activities. The Texas General Land Office is the agency sponsor for the plate.

At an April meeting of the Texas DMV, a vote on the Confederate plate ended in a tie, with the eight DMV board members who were present splitting their votes. Board chairman Victor Vandergriff ordered a re-vote when all nine members could be present. With the death of one board member in June, a re-vote won’t happen until Gov. Rick Perry appoints a new member, possibly this fall.

Meanwhile, the proposed plate has engendered a lot of criticism. Texas NAACP leader Gary Bledsoe put it bluntly: “I speak for the lion’s share of African Americans in saying that the proposed plates are offensive.” He went on to say that the Confederate flag was “adopted after the [Civil War] by hate groups.”

History supports Bledsoe’s stance. As Gregory Kane wrote in 2000 for the Baltimore Sun, the Confederate flag was displayed by protesters of school integration in Little Rock, Arkansas, in 1957, and again by people demonstrating against James Meredith’s enrollment at the University of Mississippi n 1962. Rev. William Barber II, president of the North Carolina NAACP, said that “domestic terrorists have used this symbol. Hate groups have used the symbol. And now to suggest that it would be all right to use it on a government license plate … to us is the same as flying this symbol at the state capitol.”

The problem for opponents is that the plates may be considered free speech. Quite a few courts have ruled that there is, in fact, a First Amendment right to put a Confederate flag on a license plate.

One key issue is whether a license plate displays the government’s views, and is therefore government speech, or the driver’s views, making it private speech.

David Hudson, a scholar at the First Amendment Center at Vanderbilt University in Nashville, says specialty plates are a combination of government and private speech, “with a predominance toward private speech.” He says that “the First Amendment does protect the use of the flag by the Sons of Confederate Veterans.”

Courts in Virginia, North Carolina and Florida have sided with the Sons of Confederate Veterans in previous disputes about the Confederate flag. For example, in Virginia the U.S. 4th Circuit Court of Appeals ruled that the group’s plate was private speech and therefore protected under the First Amendment. Courts haven’t always come to the same conclusion on government versus private speech, but groups promoting specialty plates almost always win in court regardless.

Most recently, a U.S. district judge in Florida sided with the Sons of Confederate Veterans, which sued the state after the Florida DMV rejected the group’s application for a Confederate heritage plate. The judge ruled that the proposed plate was protected free speech. We may soon see a similar legal battle in Texas. As many as 15,000 Sons of Confederate Veterans plates like the one proposed in Texas are already in circulation in nine states, according to the Courier-Journal in Louisville.

Displays of the Confederate flag can be considered hate speech in some cases, says Jim Harrington of the Texas Civil Rights Project. However, “courts have said, there has to be something deliberately provocative, meaning imminent violence.” A court would probably not rule that a small Confederate flag logo on a license plate—as offensive as it might be to some—could cause imminent violence.

Texas law is fairly specific regarding specialty plates. In addition to being legible, reflective, and unique, the plate can’t be vulgar or indecent, or contain “an expression of hate directed toward people or groups that is demeaning to people or groups, or associated with an organization that advocates such expressions.” In practice, however, the decision is up to TX DMV board members’ discretion.

Board members are also required to take public opinion into consideration when voting on specialty plates. The DMV posted an informal poll on its website in this spring; 77 percent of respondents supported the plate. But Progress Texas, an advocacy organization based in Austin, has mustered significant opposition to the Sons of Confederate Veterans plate. The group circulated a petition through that asked Gov. Perry to appoint a new DMV board member who wouldn’t approve the plate. So far, the petition has more than 20,200 signatures and counting.

Gary Bledsoe of the Texas NAACP says that if the plate does come up for a re-vote, his organization will fight it, and that “we plan to be there to be heard.” That’s free speech too, after all.