Here’s what I learned after four years as a litigator at the ACLU of Kansas

Four years ago, I moved from the east coast to northeast Kansas to begin as a litigator with the American Civil Liberties Union. Before moving here, I had only spent a total of 36 hours in Kansas, so I wasn’t sure what to expect.

What I found was a community with a deep sense of its roots in a historically complex state. Kansas is a state filled with people unafraid of asking each other hard questions and continually pushing one another for better answers. There is a landscape of smart, committed people who are tenacious and ready to fight for what’s right — even when the odds are stacked against them. I’m proud to have made this state my home.

Now, as I wrap up my time as legal director of the ACLU of Kansas, I am reflecting back on what we have accomplished and how we got here.

We have certainly had some meaningful wins in the courts, where I do most of my work. We secured verdicts in favor of our clients who bravely stood up to the Kansas Highway Patrol after being wrongly detained without cause on the side of the highway and obtained an order from the court to prevent the KHP from continuing this practice and from violating others’ rights in the future — an injunction we are now fighting to maintain at the 10th Circuit Court of Appeals.

We successfully fought for access to records maintained by the Kansas Secretary of State’s Office so that voting rights organizations can continue their work to assist voters who were forced to vote provisionally in elections. We are in the midst of a case intended to reform the Wichita Police Department’s use of a gang database to track and surveil primarily Black and brown Wichita residents, and just last month, we went to trial before the federal district court in another case, fighting for the right of Latinx voters in Dodge City to have equal political voice in Dodge City commission elections.

In addition to the cases we’ve filed and tried to obtain a verdict — six in the last two years alone — we’ve also weighed in on other important legal issues pending before state and federal courts in Kansas.

We’ve filed amicus briefs in support of criminal defendants’ confrontation clause rights, the First Amendment rights of protestors and animal rights activists, and the rights of Kansans to cast a ballot and participate freely and fairly in all elections. We’ve also used other legal advocacy tools at our disposal to put pressure on government officials to change practices before litigation is necessary. We’ve sent countless letters to school administrators reminding them of their obligations to protect transgender youths. We’ve run a nonpartisan election protection program for the entire state for the last several election cycles. We’ve put on numerous trainings for the legal and lay community, published numerous know-your-rights guides and offered policy briefings about important legal issues. We secured the release of three clients through our clemency campaign, giving them their freedom and a second chance at life.

Many of these efforts have resulted in meaningful changes that will affect people beyond our individual clients. For example, last year we represented a Native American family whose child was forced to cut his hair, which he grew out in accordance with his heritage, in order to attend public school. USD 248 changed its policy regarding boys’ hair length after we got involved.

In 2022, we represented another Native American student who was denied the right to wear tribal regalia at his high school graduation in violation of state law, leading to yearly retraining of staff to ensure they know students’ rights. In 2021, in partnership with other regional ACLU affiliates and federal public defender offices, we successfully pressured the Biden Administration to cut ties with CoreCivic, a notoriously inhumane for-profit corrections company, which resulted in the closure of the Leavenworth Detention Center. Also in 2021, we represented an African American woman who was kicked off the cheerleading team at a local university for wearing her hair in box braids and standing up to school officials who refused to let her practice while wearing that hairstyle.

Perhaps more importantly are the cases and issues we haven’t won — at least not yet.

In 2021, we lost our challenge to the congressional redistricting map passed by the Kansas Legislature, which cut Wyandotte County in half and diluted the political voices of that majority Black and Latinx community. Despite a resounding victory in the trial court, the Kansas Supreme Court ruled that political gerrymandering claims cannot be brought under the Kansas Constitution, and that the standard for a racial vote dilution claim had not been met.

And earlier this year, the district court in Shawnee County ruled against our clients in State v. Harper, a case challenging the attorney general’s interpretation of Senate Bill 180 — the so-called “Women’s Bill of Rights” — leaving in place an injunction that bars transgender Kansans from obtaining drivers’ licenses that match the gender they live as in the world. The ACLU of Kansas is now appealing that order and will continue to fight for transgender Kansans’ right to live as they are, free from harassment, fear, and government persecution.

I say that these losses are more important than the wins for many reasons, but perhaps most importantly, because they have taught all of us important lessons. About resiliency, about hope, and especially about the role the courts play (or don’t play) in ensuring and protecting our fundamental rights — and what we need to do as a community to step up and push back when the courts opt not to save us.

Although I am tremendously proud of the victories our legal department has achieved over the last four years, I know it is nowhere near enough. Each legislative session, there are new bills introduced attempting to limit our rights or targeting our state’s most vulnerable residents. Every week, we receive dozens of emails and online intake forms from people across Kansas, describing abuse by law enforcement, horrific conditions in our prisons and jails, inability to access medical care, and more.

Few of these complaints would be actionable in state or federal court, even if the ACLU of Kansas had unlimited litigation resources — which, with never more than three permanent attorneys on staff in the state affiliate’s existence, it definitely does not.

That is why the resiliency that comes from our losses is so important.

The courts and the civil legal system are not designed to remedy every wrong or secure every right. Far from it. Courts hold tremendous power and are given tremendous weight and attention, but even a cursory study of legal history over the last few decades shows us that so few victories are achieved (let alone maintained) through the judiciary.

Even if we consider the judiciary to be a backstop, an important check or balance on the other branches of government, so often it fails to live up to that important role. Court losses remind us of and point us towards other solutions: ways that we can work together to enact the reforms we seek and protect our civil rights. These lessons in litigation losses are profound because they lay bare what it will take for us to build our own power, outside of any courthouse building, and use that power to make demands.

For this reason, litigating at the ACLU has been much less about what cases we win or lose, but how we can capitalize on court outcomes, whatever they may be, to build a better future.

When we lost the redistricting lawsuit, our field organizing team began building political power to demand reforms at the local level to make it easier for people to vote. Our policy team fought back against voter suppression bills intended to reduce voting options, so that it remains easy for people to participate in the democratic process. All of this work will make it possible to elect new public officials who support participatory democracy, rather than attempt to hinder it through enacting gerrymandered maps that are designed to entrench their own political power.

When we lost the first hearing in the lawsuit regarding affirmative drivers’ licenses for trans folks, in addition to appealing, we worked to create legal clinics and a corresponding mutual aid fund to assist the trans community in applying for available affirming federal identification documents.

These are just a few examples of how we did not, and will not, give up the fight. And when we fight, we win.

Finally, the resiliency in the face of loss is a testament not only to the team I had the honor of working with at the ACLU these last four years, but also our clients. Our clients know that when they sign up to bring these cases in the courts that they will need to endure scrutiny of their character or gaslighting about their experiences in the long and troubling test of will that is litigation. They know that they won’t necessarily win, or even if we do win, that the win may not help them personally in all the ways they would like. Yet they bravely sign up anyway.

Our clients are incredible people with stories to tell that need to be heard — by the courts, the Legislature and people in general. I have been in constant awe of their strength and power, and I will carry it with me into all my future work.

As I move into my new role teaching law students, I am considering these lessons and reflections for future lawyers and for everyone who is and will continue to work for a Kansas that meaningfully includes all of us. My hope is that even in the face of defeat in the courts or the Legislature, we will seek the inspiration and hope that exists all around us, as long as we just look, and refuse to give up. I hope to teach young civil rights lawyers how to pivot and respond and keep marching forward toward the future they and their clients want and deserve.

But most of all, my hope is that the people continuing these fights on the front lines will take care of one another. The work of trying to make this state more inclusive, fair and free is difficult. And you can’t do it alone. For that reason, above my desk, I have framed postcard with a quote from renowned civil rights activist, writer and academic Grace Lee Boggs. It reads:

Another world is possible.
Another world is necessary.
Another world is happening.
And the only way for us to survive is by taking care of one another.

Having fought alongside this amazing group of people, the community, and our clients for the last four years, I know the ACLU of Kansas, and Kansans generally, will continue to do just that.

Sharon Brett is the outgoing legal director at the ACLU of Kansas. Through its opinion section, Kansas Reflector works to amplify the voices of people who are affected by public policies or excluded from public debate. Find information, including how to submit your own commentary, here.