January/February 2010 - an ACLU of Rhode Island Newsletter

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January/February 2010 Newsletter

Volume: XVI, Issue Number: 1

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Newsletter Contents

Lawsuit Filed Against Department Of Corrections Over Policies Governing Pregnant Prisoners

The Rhode Island ACLU and the R.I. Chapter of the National Organization for Women have filed an open records lawsuit against the Department of Corrections (DOC), contesting the agency‘s refusal to release its policies relating to the use of restraints on women prisoners when they are in labor, delivering a baby or in post-delivery recuperation. The lawsuit, filed in R.I. Superior Court by ACLU volunteer attorneys Neal McNamara and Jillian Folger-Hartwell, seeks a court order releasing the requested documents, imposition of a fine and an award of attorneys’ fees.

Issues surrounding the use of restraints on pregnant women prisoners by correctional institutions have been the subject of recent public debate nationwide. In an effort to examine the propriety of Rhode Island‘s practices, the RI ACLU filed an open records request last September with the DOC to obtain its policies and procedures on the subject.

Citing “security” reasons, however, the Department refused to release the documents. The DOC did acknowledge, though, that most pregnant women are handcuffed while being transported to, and while in bed recovering from labor at, the hospital.

The lawsuit notes that RI NOW and RI ACLU “share an interest in reviewing and analyzing the requested [DOC] policies and procedures and advocating for changes to them in order to better promote the health, safety and well-being of pregnant women prisoners,” but have been precluded from doing so due to the DOC‘s refusal to release the documents.

RI ACLU executive director Steven Brown noted: “Correctional agencies across the country – including the federal Bureau of Prisons – have publicly promulgated policies that explain their practices on the treatment of pregnant prisoners. There is no legitimate rationale for Rhode Island to rely on alleged security concerns to prevent interested persons from reviewing policies of such public importance.”

RI NOW President Carolyn Mark added:  “RI NOW has been very troubled by recent reports from around the country of pregnant inmates being shackled while in labor. Our desire to get information from the Department of Corrections is simply to help make sure that Rhode Island‘s practices protect women‘s health and safety to the greatest extent possible.”

In response to the controversy, the RI ACLU has drafted legislation designed to set strict standards on the use of restraints on pregnant inmates. The Affiliate will be working with RI NOW, the R.I. State Nurses Association and other interested groups to promote passage of the bill, which will be formally introduced later this month.

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From the Desk of the Executive Director

By the time the 2009 legislative session ended in late October, we were already planning for 2010. And here we are now with nary a break and things are under way again. We‘ve testified on a few bills so far, but the bulk of legislation expected for this year has yet to be introduced, so we are forced to sit tight and wait out the February break.

What may prove interesting this year, however, are changes in leadership at the State House. Speaker Murphy announced his plan to resign at the end of last year and made it official mid-February. Not only do we have a new speaker, Representative Gordon Fox, but a whole new leadership team and some committee shake-ups as well. The RI ACLU spends a lot of its time in the House Judiciary Committee, and there will be a new Chairman of the committee, Representative David Caprio, and it will be interesting to see what all these changes mean for our civil liberties agenda.

For more on the 2010 session, check out our legislative preview below – we started off the year with a bang, having won three veto overrides in January. Let‘s hope for more good news in the months ahead!

~Steven Brown

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Appeals Court Upholds Dismissal of 
“Racial Profiling” Lawsuit Against State Police

In a troubling decision for those fighting racial profiling in the state, a federal appeals court has upheld the dismissal of a lawsuit the ACLU filed in 2007 against the R.I. State Police, challenging the legality of the detention and transporting to immigration officials of fourteen people, all Guatemalans, who were stopped in a van on I-95 after the driver changed lanes without using a turn signal. The ACLU lawsuit, filed on behalf of eleven of the individuals, had argued that the detention violated the driver and passengers‘ constitutional rights to be free from discrimination and from unreasonable searches and seizures.

Without finding that the state trooper‘s actions in the case were necessarily constitutional, the appeals court nonetheless held that a reasonable officer could have believed that they were, thus entitling the trooper to "qualified immunity" from suit. In response to the decision, the RI ACLU said that the ruling highlighted the need for passage of comprehensive racial profiling legislation in Rhode Island – both to provide greater clarity in the law and to prevent police from prolonging routine traffic stops based on the appearance or language of the occupants.

In this case, the detention of the passengers had ensued even though the trooper confirmed that the license and registration of driver Carlos Tamup were valid, and that Tamup had no criminal record. Utilizing Tamup as a translator, the trooper nonetheless refused to let the van leave, instead asking all the passengers to also provide identification. When some failed to do so, the officer demanded documents demonstrating U.S. citizenship. After further delays, the trooper informed them he was taking them all to the immigration office in Providence.

“By failing to find the state police culpable, the decision, however unintentionally, can only encourage more racial profiling on Rhode Island’s roads.”

The incident generated significant controversy in the civil rights community, and a number of groups expressed concern at the time that the traffic stop had created a "chill" in the Latino community, with residents fearful of contacting the police to report crimes lest their own immigration status be investigated.

The court decision, by relying on the doctrine of qualified immunity to decide the case, left open many questions about the validity of traffic stops and detentions like this one. Unfortunately, by failing to find the state police culpable, the decision, however unintentionally, can only encourage more racial profiling on Rhode Island‘s roads. The ACLU expressed hope that the General Assembly will now act on legislation setting clear standards that will help reduce the long-standing racial disparities that exist in the state when it comes to stopping and searching motor vehicles. That legislation, which has been introduced the past few years by Sen. Rhoda Perry and Rep. Joseph Almeida, is being reintroduced this month.

A series of reports issued by Northeastern University and the RI ACLU have documented how racial minorities in Rhode Island are much more likely than whites to be stopped and searched by police, even though they are less likely to be found with contraband. Copies of the ACLU‘s reports can be found on the Affiliate‘s website.

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ACLU Files Brief In Support of Central Falls Soccer Students Searched by Coventry Police

The Rhode Island ACLU has filed a “friend of the court” brief supporting the appeal by a group of Central Falls High School students who were subject to a controversial search by Coventry Police after a school soccer game.  Last year, a federal judge dismissed the students’ lawsuit, ruling that the police could have reasonably believed that the search did not violate the students’ constitutional right to be free from unreasonable searches and seizures.

The ACLU brief, filed in the U.S. Court of Appeals for the First Circuit by volunteer attorney Thomas Bender, urges the court to reverse that ruling. The brief argues that the lower court‘s decision presents a “constitutionally untenable situation” that “effectively frees local police to conduct criminal investigative searches on any public school student simply by obtaining the consent of an official of that student‘s school.”

Leaving the field after a soccer match with Coventry High School, the Central Falls boy‘s soccer team was followed by an angry crowd accusing them in loud, sometimes racially tinged, tones of stealing iPods and cell phones from the boys‘ locker room. Shortly thereafter, four police cruisers arrived.

Although the team‘s coach advised the police that he had personally checked the students and their belongings, the officers asked the coach for permission to search the Central Falls players themselves, and he agreed. Each player then was ordered off the bus with their bags and lined up facing the shouting mob.

Without regard to which players had actually used the locker room prior to the match, the officers searched the bags of every player, and asked some students to empty their pockets, lift up their shirts, and stretch open their pants. In addition, having no description of the missing devices, when the officers found a cell phone or iPod they would display it to the angry crowd to see if anyone recognized it. None of the stolen items was found.

The police officers admitted there was no “probable cause” or even “reasonable suspicion” to believe the Central Falls players had stolen the items in question to justify a search that would comply with the Fourth Amendment. The sole authority they relied on for the search was the coach‘s consent. This, the ACLU brief argues, was clearly improper.

The brief notes that the case raises a “very basic and fundamental question … how can a school official constitutionally give consent to a police officer to conduct a search of a student that the school official could not constitutionally conduct under the Fourth Amendment?” The ACLU says the clear answer is that he could not, pointing to a seminal twenty-five year old U.S. Supreme Court ruling that held that school officials themselves need reason-able suspicion before searching a student or his or her belongings.

The brief says a ruling from the First Circuit in support of the students is critical to “guide the future conduct of local police and school departments, and to deter the future use of such an investigatory practice.”

The ACLU brief concludes by arguing that “the police officers could not reasonably believe that the probable cause requirement necessary to conduct these searches could be circumvented by obtaining the ‘consent’ of another state actor also bound by the strictures of the Fourth Amendment. As a consequence, the searches violated the Fourth Amendment, an objectively reasonable officer should have known that, and the police officer defendants are not entitled to qualified immunity.”

Although not addressed in the ACLU‘s brief, claims of racial bias permeate the incident. The Central Falls team was virtually all Latino, and some members pointed to discriminatory comments directed at them both during the game and when confronted with the allegations of theft.

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Have You Become a Fan?

Not a fan? Then become one and join the over 130 Facebook friends the Affiliate already has! Search for us as "Rhode Island ACLU." The Affiliate‘s page is a great place to get updates on cases, news releases, and up-coming events; it‘s also a great place to meet others who share the same passion for the work that the ACLU does.

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Barrington Open Meeting Case Allowed to Proceed; 
Judge Denies School Committee’s Motion to Dismiss

R.I. Superior Court Judge Brian Stern has denied the Barrington School Committee‘s motion to dismiss an open meetings lawsuit filed against it by the RI ACLU and the Barrington Times.

The suit, filed last August, argues that the School Committee unlawfully met in closed session last year to discuss the merits of instituting a mandatory breathalyzer policy for students attending school dances. The suit further charges that school committee agendas, by using “vague boilerplate terminology,” routinely fail to specify the nature of the business to be discussed at meetings. The school committee has justified its secret meeting by citing the open meeting law‘s “litigation” exemption, pointing to a letter that the ACLU had written two months before the meeting that raised policy concerns about using breathalyzer tests on students.

Responding to a motion made by the school committee to dismiss the suit, R.I. ACLU volunteer attorneys Howard Merten and Keith Fayan noted in a 30-page brief that “at the time the ACLU letter was written, litigation was not even possible. There was no drafted — much less adopted — policy to challenge in court. Indeed, the Committee stated at the very meeting in which it claims there was a possible threat of litigation warranting a secret session that no decision had been made as to whether the Committee would even adopt any policy.”

The ACLU‘s brief argues that to allow the school committee to characterize public input such as that offered by the ACLU as a threat of litigation, especially when no litigation is even possible, and then use it as the basis to meet in secret “would turn the Open Meeting Act on its head. An act designed to facilitate public discussion would turn into a mechanism to avoid it.”

As for the school committee‘s defense of its inadequate agenda notices, the ACLU brief notes that the school committee routinely listed “Discussion School Committee Policies” as an agenda item without providing any details as to what policies would actually be discussed. In fact, argues the brief, “the Agenda items listed are not only rote, vague and repetitive, they are more often than not inaccurate. Routinely, broad topics are listed that never get discussed. Other actions are taken … that were never mentioned in the Agenda. The Agenda and Notice requirements of the [statute] are not meant to be boxes to check so that a public body has the necessary ‘cover’ to discuss whatever might or might not come up at a particular meeting.”

The breathalyzer issue was a subject of great debate in the town and, in fact, the closed session took place on the same night the school committee heard public comment on the idea. However, nothing on the committee‘s agenda indicated that a possible new breathalyzer policy would also be a matter of private discussion that night. The Barrington Times filed a complaint with the Attorney General after learning of the secret meeting, but that office found no violation of the law.

Attorneys for the school committee argued that the lawsuit should be dismissed because neither the ACLU nor the newspaper had the requisite standing under the open meetings law to bring the lawsuit. However, Judge Stern rejected that argument, noting that the open meetings statute provides members of the public broad authority to promote the law‘s guarantee that “public business be performed in an open and public manner and that the citizens be advised of and aware of the performance of public officials and the deliberations and decisions that go into the making of public policy.”

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News Briefs

Pawtucket Allows Sexuality Education Center to Open

After initially refusing to grant a permit to the Center for Sexual Pleasure and Health to open its doors, Pawtucket city officials this month agreed to provide a zoning variance to the Center, which intends to provide sexuality education to adults and consultation services to institutions of higher learning. In November, the Pawtucket Zoning Board claimed the Center‘s chosen location was not zoned for educational purposes and denied its application. Writing a letter in sup-port of the Center, the ACLU pointed to comments from city officials who were clearly concerned with the sexual, not educational, aspect of the business. Following some additional hearings and growing criticism of the denial, city officials authorized a zoning “variance” allowing the Center to open.

Medical Marijuana Regulations Favorably Amended

Favorably responding to comments provided by the ACLU at a hearing in August, the Department of Health has significantly amended proposed regulations governing medical marijuana compassion centers in the state. Among the changes made was the elimination of a provision that would have given municipalities veto power over the establishment of a compassion center in their communities. A final version of the rules is expected to be promulgated in the near future.

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Legislative Preview

General Assembly Ends Late 2009 Session With Major 
Civil Liberties Victories; 2010 Session Off To A Slow Start

Following a 2009 legislative session that nearly never ended, the Affiliate enjoyed some major victories right out of the gate this year. The General Assembly held a veto override session upon reconvening in January, and the result was passage of three civil liberties bills supported by the Affiliate. They are discussed below. These wins, however, are not cause to relax and coast through the rest of the session. On the contrary, in light of the state’s dire fiscal situation and with election campaigns around the corner, there is a potential perfect storm brewing for legislators to look to “popular” anti-civil liberties initiatives for their campaigns. In this issue of the newsletter, however, we focus on some of the positive legislation that is being introduced in 2010. Anti-civil liberties legislation will be examined in the next newsletter.

Veto Overrides in January Promote Civil Liberties

RI Civil Rights Act This twice-vetoed ACLU legislation, which has now become law, makes clear that plaintiffs have three years, rather than one year, to sue under the Rhode Island Civil Rights Act, a major law banning discrimination in employment and other settings. The bill, sponsored by Rep. Donna Walsh and Sen. Daniel Connors, was in response to a R.I. Supreme Court ruling, decided by a 3-2 vote, that complainants had only one year to bring suit under that Act, even though the default statute of limitations for virtually all other personal injury actions in Rhode Island is three years. In vetoing the bill, the Governor called the three-year clarification “unreasonable” to the business community. As a comparison, before this bill became law in January, a victim of discrimination had a shorter time to file suit than just about any other type of claim-ant, including a person who was a victim of a dog bite (three years) or of property damage to his or her car (ten years).

In pushing for a veto override, the ACLU and numerous civil rights groups noted that a longer, rather than shorter, statute of limitations is particularly critical in many discrimination cases. It often takes time for employees or job applicants to realize that action taken against them may have been based on a discriminatory factor such as race or sex, and to then find an attorney to represent them. Legislators were virtually unanimous in overriding the Governor‘s veto.

Radio Frequency Identification  Originally developed to track cattle and commerce, radio frequency identification (RFID) allows a person‘s identity and movement to be monitored electronically. Sen. Frank Ciccone and Rep. Charlene Lima have, for the past several years, sponsored legislation for the ACLU that protects both the privacy of students and users of the state’s E-ZPass toll system from this technology. Although the Governor had vetoed the bill twice before, this time the General Assembly voted overwhelmingly to override the veto.

Need for such a law became more urgent this past year after the Middletown school district in 2008 experimented with a program that placed RFID chips on the backpacks of elementary school children, purportedly to make sure they got on the right school bus. The ACLU argued that use of RFID on students was more likely to put children in danger than to protect them, since any individual with an easily-purchased RFID reader could obtain the identity and location of students who were carrying RFID tags. The General Assembly‘s action in January has made Rhode Island the first in the country to protect students’ privacy from this potentially invasive technology.

The new law also ensures that toll information collected through RFID transponders used by the E-ZPass system on the Pell Bridge will be kept confidential. In other states without privacy safeguards, parties have subpoenaed E-ZPass tracking information in matters like divorce cases to try to prove the whereabouts of alleged cheating spouses.

Domestic Partner Funeral Rights  In overriding the Governor‘s most highly-publicized veto of the 2009 session, the General Assembly approved a bill allowing domestic partners to claim the bodies of, and make funeral arrangements for, their loved ones. The legislation, sponsored by Sen. Rhoda Perry and Rep. David Segal, was prompted by an incident where a Providence man was unable to claim the body of his partner of 17 years because they had not been married. In a veto that was mocked across the country, the Governor said that the bill marked “a disturbing trend … of the incremental erosion of the principles surrounding traditional marriage.”

Proactive Civil Liberties Legislation Introduced in 2010

Anti-Discrimination

Racial Profiling Introduced for the past several years, the Affiliate will continue to push for strengthened racial profiling legislation, sponsored by Sen. Rhoda Perry and Rep. Joseph Almeida. Analysis of three years’ worth of state-wide traffic stop statistics has consistently shown that blacks and Hispanics are twice as likely as whites to be stopped and searched by police, but less likely to be found with contraband. The comprehensive bill that has been proposed improves current anti-racial profiling law by addressing three major areas of concern: traffic stops, juveniles and immigrants. Among its many provisions, the bill would prevent police from demanding identification from innocent passengers and from searching minors in the absence of suspicion of criminal activity, require police to document the grounds for conducting searches, and reestablish traffic stop data collection procedures.

LGBT Rights Two major bills will be in play this year to support and legitimize the relationships of same-sex couples: one will allow them to marry, the other to divorce. The ACLU will be providing lobbying support to Marriage Equality RI, the single-issue coalition pressing for passage of an equal marriage bill. And odd as it may seem, there is real need for a law allowing Rhode Island‘s same-sex couples who have been lawfully married elsewhere to be able to divorce in their own state. A divided R.I. Supreme Court ruling in 2008 held that state law provided no right for such couples to obtain a divorce in Family Court, leaving these couples in an intolerable legal limbo.

Immigrants’ Rights Expect to see repeat legislation this year from Immigrants United (IU), a coalition of which the RI ACLU is an active member. IU‘s legislative package consists of immigrant-friendly anti-discrimination bills dealing with everything from housing to workers’ rights to interpreter services. The interpreter bill would codify into state law an often-ignored consent agreement between the R.I. Department of Human Services and the federal government requiring appropriate language interpreter services for DHS clients. That bill, sponsored by Sen. Mary Ellen Goodwin, has died on the House side for two years running. The ACLU is hopeful that this is the year it will pass both Houses.

A new bill for 2010 – inspired in part by last year‘s close House vote on punitive E-Verify legislation – is one that prohibits forced employer participation in the E-Verify program. E-Verify is the federal government‘s faulty work authorization verification program; it contains millions of database errors and has been found to increase workplace discrimination on the basis of national origin. The proposed legislation, sponsored by Sen. Daniel Connors and Rep. Grace Diaz, would also codify into law federal standards that specify proper use of the program for voluntary users.

Police Ticket Quotas In an effort to join with a dozen other states that already have laws to this effect, the Affiliate is introducing legislation this year that will prohibit police departments from instituting quotas, or a set number of tickets, arrests and investigatory stops an officer must meet within a certain timeframe.  Sen. Daniel Connors and Rep. Patrick O‘Neill are sponsoring the legislation, which was prompted by the ACLU‘s discovery last year that the Hopkinton police department had implemented a traffic ticket quota requirement for its officers.

Open Government

Open Records For the third consecutive year, Rep. Edith Ajello and Sen. Michael Lenihan are sponsors of legislation that would strengthen the state‘s Access to Public Records Act in numerous ways. Among other things, the bill would shorten the timeframe for public bodies to respond to open records requests, increase penalties for violations of the law, and require training of public information officers on the obligations of public bodies under APRA. The bill passed both Houses in 2008, but was vetoed by the Governor. After passing the Senate last year, the bill got entangled in political maneuvering on the House side. The Affiliate is looking forward to a better outcome this session. Need for the bill is greater than ever, as problems with violation of the statute seem to remain virtually unchecked.

Voting Rights Rhode Island‘s 2006 elections high-lighted significant election law problems generated by restrictive Board of Elections’ policies. Although the problems were not as pronounced in 2008, the agency‘s regulations continue to substantially and unfairly limit the counting of provisional ballots and the rights of candidates to contest disputed ballots during recounts of close elections. Hoping to forestall similar problems in the up-coming election year, the ACLU has reintroduced a bill, sponsored by Rep. Edith Ajello and Sen. Joshua Miller, designed to clarify the election statutes and strengthen the franchise in Rhode Island.

Criminal Justice

Anti-Shackling In an effort to address a major human rights and civil liberties concern, Sen. Rhoda Perry and Rep. Joanne Giannini are sponsoring legislation on behalf of the Affiliate, RI State Nurses Association and RI NOW to prohibit shackling or otherwise restraining incarcerated pregnant women during labor, delivery and post-recovery. It is unclear to what extent the State takes part in this practice as the Department of Corrections has thus far refused to release its policies on the subject. (See story, above.) This preemptive legislation will ensure that the rights and dignity of pregnant women imprisoned at the ACI will not be violated.

Marijuana Decriminalization More than thirty House members are co-sponsoring a bill that, following in the footsteps of Massachusetts, would decriminalize possession of small amounts of marijuana. The Affiliate will be lobbying in support of the legislation, which is also the subject of an ongoing Senate study commission. 

Privacy

Newborn Screening In 2008, the legislature authorized broad-based medical testing of newborns. Rather than being limited to tests for disorders that are treatable in infancy or early childhood and for which there is a medical benefit to early detection, the law authorized non-consensual testing for any “other conditions.” This year Rep. Lisa Baldelli-Hunt and Sen. Susan Sosnowski are sponsoring an ACLU bill to fine-tune the statute, requiring a medical benefit and known treatment before “other conditions” can be screened for. The current language allows all kinds of tests to be performed, including, for example, predictive genetic testing for disorders that a person might be at risk for and develop much later in life. Performing such testing raises profound ethical and civil liberties concerns, and the proposed bill is de-signed to prevent those scenarios from occurring.

Political Surveillance Rep. Rod Driver and Sen. Charles Levesque have reintroduced ACLU-promoted legislation to restrict political surveillance and data collection by police. This is not an abstract problem in Rhode Island. Just a few years ago local police reported to federal authorities a planned peaceful demonstration out-side the Army National Guard recruiting station in downtown Providence; information about the protest ended up in a Department of Defense “terrorism” data-base. And Woonsocket police were found to have run license plate numbers of cars that were in a parking lot where an event for a political candidate was being held.

Red Light Cameras Newly-seated Rep. Scott Slater will be leading the way with legislation that not only re-peals the state’s “red light camera” law, which only got the “green light” a few years ago with legislative approval, but also prohibits any future use of automated speed or traffic light enforcement. The ACLU has argued that the cameras violate the privacy and due process rights of motorists. In addition, studies have shown that red light cameras, despite being touted as promoting traffic safety, can actually cause more accidents than they prevent.

Social Security Number Privacy For over thirty years, a federal statute has made it unlawful (though admittedly with many exceptions) for any “federal, state or local government agency to deny to any individual any right, benefit, or privilege provided by law because of such individual’s refusal to disclose his or her social security number.” Incredibly, in a feat of legal legerdemain, some courts have recently ruled that, despite the clear language of the provision, the restriction applies only to federal agencies. Sen. Rhoda Perry and Rep. Deborah Ruggiero have introduced a version of the federal law that would explicitly require state and municipal agencies in Rhode Island to abide by that statute‘s important privacy protections. The General Assembly took no action on the bill last year after state agencies decried the restriction.

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Brief Filed in Free Speech Canvassing Case

The Rhode Island ACLU has joined with the National office and other New England Affiliates in filing a brief in an important free speech case pending in the federal court of appeals in Boston. The case involves a challenge to a Puerto Rico law that gives certain neighborhoods the right to close themselves off from political and religious canvassers, as well as commercial solicitors. Instead, an individual must first obtain advance permission from any resident he or she wishes to canvass. Jehovah‘s Witnesses, who regularly canvass as part of their spiritual mission, sued to overturn the law, but last year a federal judge sided with the municipalities. Even more troubling, the judge awarded attorneys’ fees to the successful defendants, even though federal civil rights law authorizes such fees only when a lawsuit is plainly frivolous.

In order to highlight the significant ramifications to free speech rights if the decision is upheld, the National ACLU encouraged all the affiliates in the jurisdiction of the appellate court to sign on to a brief urging that the lower court’s ruling be overturned. The brief argues that the law is a clear violation of the First Amendment, and that in any event, the judge‘s grant of attorneys‘ fees to the defendants would have a significant chilling effect on civil rights litigation. Oral argument in the case is expected to be held sometime this spring.

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RI ACLU Challenges North Smithfield “Pay to Play” Policy

The Rhode Island ACLU has filed an administrative complaint against the North Smithfield School Committee for its adoption of a “pay to play” policy, charging an “athletic management fee” of $150 for students wishing to participate in interscholastic sports. The complaint, filed before the R.I. Department of Elementary and Secondary Education (RIDE) by RI ACLU volunteer attorney Merlyn O‘Keefe, argues that the policy violates state law and is in direct conflict with a number of opinions issued by the RIDE on this issue over the years.

Thus far, the fee appears to have been less than an unqualified success. According to a report issued to the school committee in late October, only $3,840 had been generated by the requirement, and the school district was not making a concerted effort to enforce the policy against all student athletes. However, concerned that the mandatory fee policy remains in effect, and noting the confusion generated by it, the RI ACLU is seeking a clear ruling from the RIDE that the policy is “null, void and unlawful.” The ACLU‘s petition also asks the RIDE to order the school district to return to parents the money it has thus far received pursuant to the policy.

Although the school district policy contains a fee waiver provision, the ACLU‘s petition notes that the RIDE has previously ruled that poor families should not “have to request a charitable waiver to earn the right to participate in school sup-ported athletic programs.” The complaint cites at least five previous RIDE opinions and letters that found policies like North Smithfield‘s to be an unlawful violation of the state‘s guarantee of a free public education.

The ACLU first objected to the policy when it was considered by the school committee in July. In a letter to the committee at that time, the Affiliate wrote: “The notion of a free public education is heavily ingrained in our concept of the public school system. The imposition of a generalized fee on student athletes runs counter to this fundamental notion … for many extracurricular activities have become a very important part of the educational system, and help further the goals of a public education in innumerable ways.” The letter also expressed concern that “if the implementation of a fee such as this one is accepted, it is a short step for budget-constrained school districts to begin routinely imposing fees for a variety of other student activities.” The ACLU is awaiting scheduling of a hearing on the complaint.

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Appeal Filed in Narragansett “Orange Sticker Case”

The Rhode Island ACLU is appealing a decision issued in January by U.S. District Judge William Smith which upheld the constitutionality of the Town of Narragansett‘s highly-publicized “orange sticker” ordinance.

The ordinance authorizes police both to charge tenants and landlords for allowing “unruly gatherings,” and to place orange stickers on houses that have allegedly been the site of such gatherings. Under the ordinance, the orange sticker cannot be removed until the end of the school year without financial penalty, regardless of the presence or absence of the original “unruly” tenants who allegedly engaged in a violation of the law. The lawsuit, filed by ACLU volunteer attorney H. Jefferson Melish, was on behalf of the URI Student Senate, as well as four students and three landlords who have been affected by enforcement of the ordinance.

Among other things, the ACLU argued that the ordinance was unconstitutionally vague and violated the plaintiffs‘ due process rights by allowing police to affix the large orange stickers to the front door of a rental property with no opportunity for a hearing either before or after the posting. In upholding the ordinance, the judge held that police officers‘ discretion was limited since the sticker could be posted only if the police concluded that an underlying violation of the law, such as underage drinking, had taken place at the residence. However, the judge acknowledged that police did not actually have to charge any-body with the underlying “violation.”

Thus, the RI ACLU noted, students and landlords are left in a legal limbo with no remedy. Since no hearing need be con-ducted either before or after a sticker is posted, and since police need not charge individuals with the offense that forms the basis for their decision that an “unruly gathering” has occurred, both students and affected landlords have no real mechanism to contest the validity of the basis for the police officer‘s action.

Although the judge confessed that “the result sits uneasily,” he nonetheless held that the ordinance did not violate the plaintiffs‘ constitutional rights.

RI ACLU attorney Melish said: “I am very disappointed by the ruling, as I believe we had compelling arguments about the ordinance‘s unconstitutionality. Ultimately, the court did not address how the ordinance actually had been applied to our plaintiffs, whose experiences, we believe, had demonstrated the need for due process procedures.”  The appeal will go the First Circuit Court of Appeals in Boston.

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Discrimination Complaint Against North Kingstown Shipbuilder Resolved

Two months after the R.I. Commission for Human Rights found “probable cause” to believe that Senesco Marine, a large ship construction and repair facility in North Kingstown, had engaged in activities that violated state anti-discrimination laws, the company has settled the discrimination complaint filed against it by the RI ACLU. Under the settlement agreement, Senesco has revised its employment application form to remove language that the ACLU claimed unlawfully discriminated against job applicants with disabilities. In addition, the company agreed to pay $4,000 in attorneys‘ fees.
When the ACLU filed its complaint in January 2009, Senesco‘s employment application form required all job applicants to attest that they were “physically and mentally capable of performing the essential job duties of the position for which [they] have applied” and that they “have no need for changes or adjustments in the essential duties of the job in order to allow me to meet the demands of the position.”

However, the ACLU complaint noted: “By well-established law, an employer must provide an employee with disabilities ‘reasonable accommodations’ that would allow the employee to perform the essential functions of the job. In purpose and effect, Senesco‘s attestation operates to bar persons with disabilities from applying for a job unless they first waive their legal right to request reasonable accommodation.”  Although Senesco revised its application a week after the com-plaint was filed, that version of the form was just as problematic.

“I'm very pleased that Senesco has agreed to create an employment application form that treats all applicants, including those with disabilities, fairly and justly,” said Michael Feldhuhn, the RI ACLU volunteer attorney who filed the com-plaint, in response to the settlement.

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Organizational Notes

Board Officers and Directors Elected

The following are the results of the Year 2010 elections for the Rhode Island ACLU Board of Directors. The officers are: Anne Mulready, Chairperson; H. Jefferson Melish, Vice-Chair; Christine Lopes, Treasurer; and Jenn Steinfeld, Secretary. Nominees elected to the Board for three-year terms are: Judith Anderson, Carl Krueger, Carolyn Mannis and Robert Parrillo.

Leaving the Board at this time are outgoing Chair Jennifer Azevedo, Karen Davidson, Steven DeToy, and Nancy Rose. They all provided invaluable assistance to the Board during their terms, and the Board expresses its appreciation for their services.

Affiliate Hosts House Party in Woonsocket

 

On February 1st, the Affiliate hosted the first of what it hopes to be many house parties around the state this year. This party, targeting the northern part of the state, was held in Woonsocket at the home of ACLU supporter Bonnie Larson.

Those who attended had the opportunity to not only hear from ACLU staff about current issues the Affiliate is involved in, but also were able to relay their own experiences fighting for civil liberties. In attendance at the event were three state legislators from northern Rhode Island: Rep. Edwin Pacheco (District 47, Burrillville, Glocester); Rep. Christopher Fierro (District 31, Woonsocket); and Sen. Roger Picard (District 20, Cumberland, Woonsocket).

The Affiliate extends its thanks to Bonnie for hosting this event and to all those who came out for the evening.

If you would be interested in hosting an ACLU house party in your community, please contact the Affiliate office. The parties are designed to offer an opportunity for ACLU members to socialize with each other, and to give potential ACLU members an opportunity to learn more about the Affiliate‘s work. The ACLU‘s next party is planned for Barrington; check the Affiliate‘s website for details.

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The Back Page

New Affiliate Pamphlets Available

The Affiliate has added two new "Know Your Rights" pamphlets to its public education library. Both were created to address the public‘s need for readily available information on two increasingly popular topics. The "Open Records in Rhode Island" pamphlet concisely explains the types of documents the public has the right to request and the necessary steps needed to successfully obtain public documents. The Truancy Court brochure aims to educate parents and students about their rights while they are involved in the Truancy Court system. Copies are available at the RI ACLU‘s website, www.riaclu.org, or by calling the ACLU office at 831-7171.

Tune in to the ACLU’s Monthly Cable Access Show

During the month of March, the ACLU‘s cable access show "Rights of a Free People" will feature Donna Policastro from the RI State Nurses Association, and Nick Horton from Open Doors who both will be discussing details of the ACLU‘s bill to ban the shackling of pregnant inmates, efforts to decriminalize marijuana, and the creation of medical marijuana dispensaries in the state.

Showtimes:

  • Channel 13: (Channel 32 on Verizon FIOS)
Tuesdays 10:00pm & Fridays 3:30 pm
  • 

Channel 18: (In Providence & N. Providence, Channel 38 on Verizon FIOS)() Wednesdays 9:00pm 

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