Taking the Bull by the Horns
John Burnett fights for his clients' First Amendment freedoms
Published in 2008 Mid-South Super Lawyers magazine
By Karin Benne on November 10, 2008
John Burnett’s first case as a cooperating attorney for the American Civil Liberties Union was exactly the kind of case he loves. In 1982, First Lady Nancy Reagan planned to pay a visit to Little Rock Central High School. One student, a senior named Beckey Avery, was less than thrilled. She opposed the Reagan administration’s support of private school tuition vouchers and wanted to hand out fliers on the sidewalk in protest. The school’s administration was not amused. “I can’t remember what they threatened her with,” Burnett says dryly. “I’m sure it was something suitably drastic.”
He still vividly remembers the six hours he worked on the case. “The case was brought to me at lunchtime on the day before the visit,” Burnett says. “By 5 p.m., I had prepared and filed a complaint and request for an injunction, found a federal judge to hear it and forced the school to let her hand out the fliers. This was obviously a big lesson for her and made an impact on me as well, because it meant being able to help a powerless person enforce the First Amendment against an institution that otherwise had dominion over her in so many ways.”
Burnett speaks for the common man with uncommon eloquence. A partner at Little Rock’s Lavey and Burnett and a career supporter of the ACLU, Burnett has successfully squared off against the government and large corporations for more than 25 years.
“You have to be into the concerns and the philosophies of organized labor to get off on the kinds of things that we do and the victories that we win,” Burnett says. “You hear about large cases where somebody won a multimillion-dollar verdict against GM because they didn’t design a car the right way, and those are great cases, but some of us get equally excited at much smaller victories on behalf of individual people.”
In fact, as he looks back on his career, the cases he ticks off as personal milestones have a common thread: they aren’t the ones that catapulted him to stardom; they’re those that protected a single person’s freedom under the Constitution. “If I can stand up in court and say I’m representing a union or the ACLU,” he says, “that is a proud and satisfying day for me.”
Burnett’s law partner, longtime civil rights attorney Jack Lavey, hired him in 1979 straight out of his clerkship with G. Thomas Eisele, the legendary federal trial judge for the Eastern District of Arkansas. Lavey says he wanted Burnett partly because he knew Eisele’s reputation for fairness would have influenced him, but also because Lavey saw in Burnett a shared passion for social justice.
And, perhaps, a tolerance for smaller paychecks.
“He’s like me, a bleeding heart,” Lavey says. “He didn’t want to make a million dollars—he just wanted to help people whose civil rights were being violated. He’s a really good person and one of the brightest people I’ve ever bumped into.”
Burnett got off to a hot start, winning a judgment in the Eighth Circuit Court of Appeals before he’d even properly broken in his office chair. “I’d been at the firm two months when I went to Kansas City to argue the case,” he says. “I took over for a fellow who had left this firm—it was about a town that had punished a city attorney by passing an ordinance that deprived him of his salary—a bill of attainder, which you don’t hear about much. So that was a lot of fun. I thought, hey, this job is great.”
And it got even better. “The first big case that I really did myself,” Burnett says, “was when the local utility, Arkansas Power & Light Company, built a huge new coal plant and changed the work schedules in the middle of a collective bargaining agreement. On behalf of the union [International Brotherhood of Electrical Workers Local 750], we took them on and won. I was up against some very experienced labor lawyers for a huge company. And we whipped them into shape.” He laughs. “That felt pretty good because I was young.”
It’s a good thing he started with such a bang, because civil liberties work is a road often filled with potholes—and opposing counsel tends to be the best lawyers money can buy.
“I’ve been fortunate enough to have my share of victories to keep me going, because you can’t win them all,” Burnett says. “Typically, when you’re fighting the government or some big company, it can be easy to get discouraged if you let yourself.” Especially when a lot of the hard work doesn’t even happen in front of a judge. “Day in and day out, the things that don’t even necessarily go to court—you make calls, you write letters,” he says. “You face down governments on something crazy they’re trying to do. That’s the kind of gut-level work that has made us effective over the years.”
It was Lavey’s longtime involvement with the ACLU—Burnett calls him “one of the founding fathers” of the Arkansas affiliate—that drew Burnett into active work with the organization. Burnett served on the national ACLU board for four years and is a past president of ACLU of Arkansas. Currently, he is a member of the state affiliate’s board of directors and has served as its volunteer legal director for more than 15 years. Many cases have come and gone in that time, but he feels particularly passionate about those—like his first—that involve education.
“The ACLU is the only organization in this state with any kind of consistency or strength in standing up for the rights of students,” Burnett says. “Our cases span everything from hair and grooming issues to religious discrimination and prayer. We’re just concluding a case where a school district tried to ban students from wearing protest wristbands like they did in the Tinker [v. Des Moines] case back in the ’60s—we’re still fighting that battle today! We’ve had cases about Web sites, too. For example, students might put up a satirical Web site about their school and the school wants to punish them for it. Well, guess what? The school does not get to reach out that far. We’ve covered strip searches, standing up for the Pledge of Allegiance, the Gideons distributing Bibles to fifth-graders, banning Harry Potter from the library, harassment of gay students, and on and on and on.”
Often, Burnett says, what’s stunning about working these cases is realizing you’re the lone obstacle standing between people and a grave injustice—and sometimes, even their own lawyers aren’t protecting them. Take the Lake View case, a statewide class action suit first brought in 1992 that alleged gross inequities in funding for the Lake View school district, whose schools are predominantly poor and black. “There had been battles for years, and essentially, the attorneys representing the state’s citizens were going to reach a sweetheart deal with the state attorney general—with the defendant—to actually do nothing,” Burnett says, still incredulous. “They were actually going to put in as part of the agreement that the existing law was constitutional and have the court sign it! They can’t even do that! They got this deal up and took it into court, and the ACLU intervened at the last moment when they were trying to approve the settlement. We were the only ones there to object. We told the court that this deal was all smoke and mirrors.” The court agreed and forced the case to continue—”the thing mushroomed,” as Burnett puts it—eventually resulting in a dramatic legislative overhaul of the Arkansas school funding structure to make it more equitable to all districts.
“We took the bull by the horns at the last minute,” Burnett says. “If you keep your head about you and do what you’re supposed to, you can have a big impact.”
Outside his ACLU work, Burnett focuses primarily on labor law. “As a group,” Burnett says, “the unions that I have represented have made the biggest impression on me over the years. The labor movement is relatively weaker now, and especially in the South, than it used to be. People don’t really understand organized labor and what unionism is about, and it can have a bad rap. But I have seen an abiding force for good in unions that I have represented over decades here in Arkansas. That’s not to say unions are perfect, but I’ve had the privilege of representing some pretty damn good unions who do very, very good work for the people they represent, which generally is a thankless task. If people could see the day-to-day work that goes on in a local union, they would be impressed.”
These days, Burnett manages to find time between cases to “mountain bike, hike and putter” with his wife of 34 years, Linda, and his daughter Kate. He also occasionally reflects on his time in the trenches and wonders what the next day will bring.
“I would like to say I’ve reformed entire governments, but it’s not so,” Burnett says. “Individual victories about individual people and their lives are what my practice has been about.”
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