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Catching Up With . . . Gordon Bonnyman

Blue-Eyed Son

by Brooke C. Stoddard '69

 

Where the home in the valley meets the dark dirty prison

And the executioner’s face is always well hidden

Where hunger is ugly, where the souls are forgotten

Where black is the color, where none is the number

And I’ll tell it, and speak it, and think it, and breathe it . . .

from A Hard Rain’s a-Gonna Fall by Bob Dylan, 1962

 

Gordon grew up in Knoxville in what he calls a very privileged family – “I won the lottery in every way” is one way he puts it. There were four siblings, loving parents and grandparents, and an extended family of cousins, aunts and uncles who supported each other in vital ways. His good fortune continued with a happy marriage to Claudia, and a beloved son, Houston, who is a physician living in New Orleans (photo, left).

 

The family has roots in Tennessee history. On his mother’s side was the Reconstruction governor of the state – his portrait is the only one prohibited by Tennessee law from display in the state Capitol (Gordon points out that at present there is a debate over removing from the Capitol a bust of Nathan Bedford Forrest (the ignorati may look him up)). Gordon’s mother’s side of the family preferred the Union during the Civil War; his father’s side were Confederates.

 

Gordon’s father’s family descended from Scot immigrants who placed high value on education. Gordon’s father went to a prep school and then Princeton (Class of 1941). Gordon went to the Hill School in Pennsylvania. There “I was a nerd and basically without friends. Looking back, heck, I was such a jerk I wouldn’t have been my own friend,” Gordon says.

 

“The fact that my father was a Princeton alumnus gave a critical boost to my application,” Gordon opines. And once admitted, Gordon, not a fast reader, did not blaze a trail through academia. “I did not use my time efficiently,” he says with considerable understatement.

 

He roomed four years in Patton and majored in History. He had commendable hopes for his thesis, which was on his Reconstruction governor ancestor. He spent the summer after his junior year in Tennessee archives researching the man. But in classic fashion during senior year Gordon could not put aside researching for the act of writing. Deadlines loomed. Things were so desperate that he was writing on legal pages that he was then dashing off to friends to type. Still, the prospect was grim. “So I am ever grateful to Dwight Eisenhower because on the day the History Department theses were due, the former president died, and for the first time in a quarter century the History Department closed for 24 hours. I was saved!” Gordon gathered up the pages having spooled out from various typewriters and rushed them to a Nassau Street bindery, which sold him its fastest temporary binding product. Gordon shoved in the pages, clamped down and dashed to the re-opened History Department. “My advisor, the kindly Sheldon Hackney, took pity on me – or wanted to move me along out of the University – and gave a grade such that the second reader – James McPherson [the ignorati may look him up] – could not give such a bad grade as to flunk the effort. McPherson, however, did comment that the thesis showed signs of ‘hasty preparation – see page 36.’” Curious, Gordon turned to page 36 to discover that although pages 1 to 35 were proper, pages 36 to the end were clamped in upside down. It took a village, and a dead president, to get Gordon his Princeton degree.

 

Gordon’s father and uncle having been distinguished in World War II, Gordon had joined ROTC as a non-scholarship cadet and was pretty pro-military during the Princeton years – he even considered organizing a counter-counter-demonstration when President Johnson came to dedicate the Woodrow Wilson School. Freshly commissioned a 2nd lieutenant upon graduation, Gordon was deferred for three years to finish law school at the University of Tennessee ($125 per quarter). But then two things happened. First, he fell madly in love – and married Claudia -- and second, he realized that he could not kill people. So he applied for non-combatant status. Half-expecting a hasty flight to a Vietnamese rice paddy with a Red Cross on his helmet, he was instead sent to transportation school where the Army tried unsuccessfully to teach him how to drive an 18-wheeler.  He was told he would eventually be called to active duty. The call never came. However, computerized letters over the years did. These announced promotions such that, without further military involvement, he was nonetheless elevated to the rank of major. “I believe I am the highest-ranking conscientious objector in the history of the U. S. Army,” he says.

 

Gordon entered law school with the intention of being a legal aid lawyer. The notion had grown on him through the “movement years” of the 1960s, and Thurgood Marshall, then a civil rights attorney, was an especial inspiration. One summer Gordon worked for the ACLU in Tennessee and another summer in Washington on health policy issues. Claudia was transitioning from an education career into law, so she and Gordon moved to Nashville where Claudia was enrolled in Vanderbilt Law School. Having passed the bar, Gordon took some jobs no one else would consider and then moved into what he wanted – working for Nashville’s Legal Aid program, a stepchild of the federal War on Poverty. His clients were the disadvantaged of the Nashville area.

 

“We did everything,” Gordon recalls. “There were five or six of us, all very young and very new lawyers with no mentors and an alcoholic executive director who was hardly in attendance. We were all very gung-ho. It was a creative, innovative – and controversial -- time. We didn’t know we couldn’t do stuff, so we did it. We dealt with people who could not pay fines, were tossed out of hospitals, or who were defrauded consumers. But none of us knew how to try cases, that is, present evidence, cross examine and put together a complex case (law school only taught us how to write learned opinions). So this was painful to learn. But four of us actually ended up arguing cases in front of the U. S. Supreme Court, rare among lawyers.

 

“Of course, we were not working in a vacuum,” Gordon says. “There were others across the country doing much of the same thing and we could draw on their experience and research. One thing we got into was prison reform. The Tennessee prison system – and criminal code -- were woefully antiquated, harking back to the 19th century and the Black Codes. In the 1980s, according to federal Justice Department statistics, Tennessee’s prisons were the most violent and corrupt in the nation. The National Prison Project of the national ACLU came in to help us challenge the constitutionality of the state’s system. The work was very ambitious, but we didn’t know we couldn’t do it. We fought this fight for 17 years,” Gordon says.

 

“I was lucky then to have my first mentor, the brilliant Alvin Bronstein [the ignorati may look him up], who was an architect of the prison reform movement. I learned a lot of technical trial skills from Al, but I also learned larger lessons. I was young and self-righteous and I tended to demonize adversaries. Al laid out a very different picture in his opening statements, crediting prison administrators as decent and well-intended (which, with notable exceptions, they mostly were).  Al told the court and the news media, ‘These are good people working in a system that is so broken that even good people cannot fix it, which is why the courts must intervene.’ So he taught me something I should have already known but needed to learn, which was to focus on systems of injustice, rather than making it personal about the actors in those systems.”

 

Gordon was in and out of the state’s prisons, getting to know quite a number of inmates. “What I saw was a reversal of what we are all acculturated to believe, that is, that the prisoners are the bad guys and law enforcement the good guys. I saw prisoners who although sometimes guilty of serious crimes had strong moral compasses and put themselves at great risk to challenge official wrongdoing. I was reminded time and again that we are all more than our worst actions. Sadly, in society’s eyes, a conviction reduces an offender to his crime and all but obliterates the rest of his humanity.

 

“Meanwhile politicians could be totally cynical in using the prison issue to gain advantage,” Gordon says. “At one point a law passed by the legislature – to reinstitute striped uniforms – sparked statewide prison riots. While the riots were going on, I received calls on pay phones from clients inside the old Tennessee State Prison, known as ‘The Walls,’ asking for help.  I was also asked by state officials to come to The Walls to help with negotiations. I was more an observer than a participant, but I was tremendously impressed by the courage and judgment of several inmate leaders who risked their lives to successfully negotiate the release of guards who had been taken hostage, and to end the riot. There was loss of life at other prisons, but the courage of my clients prevented what was about to be a bloodbath at The Walls.

 

“Prison violence, I learned, is largely a function of idleness and what those in authority expect of you – if they expect you to be violent, sooner or later you will be, or if non-violent, then you tend to live up to that. I could see how political and court actions could either drive up or drive down prison violence. Prisons are soul-destroying places of great evil, where we treat people as if they are bad, even worthless, and they tend to react accordingly.”

 

Three conservative Republican judges had the courage and integrity to look at the facts about Tennessee’s penal system and discern injustices. They found the system violated both the state and the federal Constitutions (on account of overcrowding, bad management, dearth of educational efforts, enforced idleness, etc.). The courts closed Tennessee State Prison and ordered changes. And finally the politicians came around – they could see that to defend the old system was a net loser, and this is when the Tennessee prison system improved. Tennessee’s prison system was the first in the nation to be fully accredited by the American Correctional Association. Gordon acknowledges career prison administrators – the very people he had initially judged to be incompetent or worse – with implementing the reforms. Most were able and eager to reform the prisons, once the courts rooted out the corruption and cleared away the politicians’ grandstanding that had hamstrung the administrators for so long. In addition, the state’s criminal code and sentencing guidelines were rewritten.

 

Gordon reflects wistfully that in the 25 years since the case ended, many of the hard-won prison reforms have eroded, Tennessee has joined the national embrace of mass incarceration, and Congress has sharply limited federal courts’ jurisdiction to remedy prison conditions. “Advances in social justice inevitably provoke backlash, and it is difficult to maintain progress that endures,” Gordon laments.

 

Gordon regrets another legacy of the prison litigation that has proven more durable than its reforms: the creation of the private prison industry. Private prisons were unknown until the Corrections Corporation of America (now known as CoreCivic) was formed by political cronies of then-Governor Lamar Alexander as a way to make money from the state’s prison difficulties and as a shiny object to distract from the governor’s failures. Gordon and his colleagues fought unsuccessfully to block the state from contracting with the new company. From its foothold in Tennessee, the industry has metastasized throughout the country – it now includes ICE internment facilities -- and has expanded as far afield as Europe and Australia. Gordon sees it as an unmitigated disaster that helped fuel mass incarceration and the monetizing of Black lives.

 

While the prison efforts were working their ways through the courts, Gordon represented indigent persons seeking health care. Acquainted with the Hill-Burton Act of the Truman Administration that required hospitals to serve among their patient population a certain percentage of indigent persons, he filed suit to help indigent clients who had been denied care at Vanderbilt Hospital, often with tragic consequences. He and Andy Schneider, ’70 won the case, which led to new federal regulations that widened indigent patients’ access to hospital care nationwide.

 

Gordon also brought suit on behalf of seriously ill patients impacted by Tennessee’s reduction in Medicaid coverage for hospital care. Invoking a civil rights law prohibiting discrimination on the basis of handicap, Gordon and his colleagues charged that the Medicaid cuts disproportionately impacted people with disabilities. The state argued that the patients had to prove the disparate effects were the product of a malicious intent to harm people with disabilities. Gordon prevailed in the Court of Appeals, but the state appealed to the Supreme Court. In 1984, he found himself arguing before the Court. He was terrified, and the night before the argument, he had his recurring nightmare in which he relived his Princeton senior thesis debacle. A great deal of civil rights law would be made extraordinarily difficult if the Supreme Court required that plaintiffs go beyond discriminatory impact and prove that discrimination was intentional.

 

Gordon felt like a lamb being led to slaughter. “When my case was called I got about as far as ‘May it please the Court’ before the Justices began pelting me with questions,” Gordon recollects. “The Justices were interrupting one another just to get at me – except for Thurgood Marshall, my hero, who was by then an Associate Justice. His eyes were closed and it seemed he was comatose, perhaps even dead. I was making no headway in arguing that Congress meant to outlaw not just intentional discrimination but also unintentionally harmful policies. Why would they have limited the law to intentional discrimination, when discrimination against people with disabilities commonly results from failure to consider their vulnerability, rather than from animus?” he recalls.

 

Out of desperation, Gordon finally blurted out what national civil rights experts had urged him to say in order to vividly make his point, “No one ever burned a cross on the lawn of a quadriplegic.” There was a momentary stunned silence in the courtroom, then Justice Marshall levitated out of his seat, practically lunged across the bench, and angrily demanded, ‘What does burning a cross on someone’s lawn have to do with this case?’ My hands shook; my fingers twitched – I was almost drooling in terror. About all I could manage to sputter was,  ‘Oh, nothing, Your Honor, nothing; that was the point I was trying to make.’ Result: Within a matter of weeks, the Court ruled against Gordon in a unanimous decision written by Thurgood Marshall. The Court saved the law, because it agreed that it was unnecessary to prove intent. But Gordon’s clients lost, because Justice Marshall concluded that they had not met even the lesser standard of disparate impact. Having accomplished the apparently impossible – persuading Justice Marshall to rule against civil rights plaintiffs – Gordon thought it best to end his Supreme Court practice before he did further damage.

 

Gordon also took on Tennessee’s nursing homes. These were not unlike prisons: a vulnerable and powerless clientele; a steady stream of money (mostly Medicaid) for the profit-making kind; huge political contributions with its inherent corruptions; vast amounts of money to be made by owners; and lax enforcement of laws. He and fellow Princetonian Andy Schneider, who was by then staffing a key congressional committee, helped shape important federal legislative reforms.

 

Gordon was also instrumental during the 1990s in shaping Tennessee’s five-year demonstration waiver under the Medicaid law to establish TennCare and then to preserve TennCare’s funding and coverage. TennCare converted Tennessee Medicaid to managed care, and at its height in the 1990s brought health insurance to 400,000 uninsured citizens, giving Tennessee the nation’s lowest percentage of uninsured residents. “It’s wonderful to see how effective and swift change can occur when government and good leadership work together,” Gordon says. Unfortunately, there was the same kind of political backlash that undermined prison reforms. A governor dismantled TennCare, using Gordon as a political foil. “The governor found it made for better optics to attack a balding liberal lawyer. It distracted public focus from the reality that the rollback of TennCare meant the loss of health coverage for the young mother with cancer or the middle-aged farmworker with diabetes. While it lasted, TennCare really did save lives, and cutting it really did cost lives,” Gordon says. “The statistics are there for the nation to see.”

 

For 23 years at Legal Aid of Middle Tennessee, Gordon advocated for no less than patients suffering hospital pricing abuses, children with disabilities, children in state custody and prenatal care for low-income mothers. When Congressional Republicans in the 1990s wrung down the curtain on the Great Society’s Legal Aid style of class action judicial activism, Gordon resigned and with  a young partner founded the non-profit Tennessee Justice Center to continue the work but with private (hard-to-find) funding. TJC remains a scrappy organization with a statewide impact. It now has a staff of 20, and Gordon brags that “TJC still punches above its weight.” In 2014 he left the directorship of the TJC to lead its efforts at implementing the Affordable Care Act in Tennessee. That’s been a tough slog -- to this day, Tennessee is one of only 12 states that has not expanded Medicaid under the ACA. His decades working with uninsured clients make him painfully aware of the human toll exacted by his state’s refusal.

 

Not all of Gordon’s advocacy has been in Tennessee. He and Claudia took two sabbaticals that moved them deeply. One was with a Quaker-led mission in Jerusalem about the time of the Camp David Accords that had them helping defend Palestinians rights against displacements in the West Bank. The other was three months in Budapest with the Raoul Wallenberg Association helping an organization that resisted “skin-heads” and sinister far right elements in the police who were persecuting immigrants, Jews and Roma.

 

Not surprisingly, Gordon has written a considerable number of professional journal articles, sits on or has served on numerous boards associated with poverty law and the disadvantaged, and been named to national and Tennessee awards too numerous to list. For the descendant of a scorned state governor, these are rich reversals. Notable is one letter from Democratic Tennessee Governor Ned Ray McWherter endorsing Gordon’s nomination for an award and quoted in part below – the full text of which was submitted by Gordon’s Princeton roommate Roy Parker to the Class of 1969 40th Reunion Book (May 2009) and can be read there on page 30.

 

 

Dear Tony, You asked for my thoughts on Gordon Bonnyman’s selection as [1998] Advocate of the Year by Families USA. When I think of Gordon, I think of lawsuits. He sued me on prisons, he sued me on healthcare, he sued me on welfare . . . . He sued me when I was Speaker of the House, and he sued me when I was Governor. One of the nicest things I can say about Gordon is that since I have left office he has not sued me. During my two terms as Governor, Gordon was never very far from my thoughts. When my Administration prepared legislation, we always asked, “Where will Gordon be on this?” . . . . Few people in my long experience in Tennessee politics have had such an effect on government and legislation. Whether he was for us or opposed, I always knew that Gordon was doing what he honestly believed was in the best interest of the poor, sick and disabled citizens of our state. – [signed] Ned R. McWherter, Governor of Tennessee, 1987-‘95

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