January/February 2012 - an ACLU of Rhode Island Newsletter

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January/February 2012 Newsletter

Volume: XVIII, Issue Number: 1

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Newsletter Contents

Judge Rules Cranston School Prayer Mural Unconstitutional; School Committee Votes Not to Appeal

After a lengthy and contentious meeting, a majority of the Cranston School Committee has voted not to appeal U.S. District Judge Ronald Lagueux’s decision last month ruling unconstitutional a prayer mural addressed to “Our Heavenly Father” displayed in the auditorium of a Cranston public high school. In a 40-page opinion, the court found the display to violate the First Amendment and ordered its immediate removal. The lawsuit, filed last April by RI ACLU volunteer attorneys Lynette Labinger and Thomas Bender, was on behalf of Jessica Ahlquist, now a junior at Cranston High School West, who spoke out vigorously against her school’s prayer display.

In his decision, the judge stated: “No amount of debate can make the School Prayer anything other than a prayer.” While acknowledging that “the Prayer espouses values of honesty, kindness, friendship and sportsmanship…. the reliance on God’s intervention as the way to achieve those goals is not consistent with a secular purpose.”

In July of 2010, after learning of the prayer display, the ACLU wrote to school officials asking that it be removed. In the hope of avoiding the need for litigation, the Affiliate waited eight months for the school committee to determine what to do. By a 4-3 vote last March, however, after a public hearing that the judge said “at times resembled a religious revival,” the school committee decided to keep the prayer. In fact, a day after the school committee vote, Jessica was allowed to leave class early in response to concerns for her safety arising out of her opposition to the prayer. Reviewing the hostility that Jessica has faced in the community for challenging the display, Judge Lagueux called her “a courageous young woman who took a brave stand.”

The prayer mural is approximately eight feet high and four feet wide and has been on display in the auditorium since 1963. Noting that Jessica is an atheist who indicated that the prayer mural made her feel “ostracized and out of place,” the court ruled that she had standing to challenge the display, despite attempts by the school district to argue she was not really harmed by it in any way.

Although some school officials sought to minimize the display’s clear religious message, instead calling it “historic” and “artistic,” the judge made clear that the school committee’s decision to maintain the prayer “endorsed the position of those who believe that it is acceptable to use Christian prayer to instill values in public schoolchildren.” The U.S. Supreme Court first ruled government-sponsored prayer in the public schools unconstitutional in 1962. Thirty years later, in a case handled by the RI ACLU, the Supreme Court also ruled unconstitutional the recitation of prayers at public school graduation ceremonies.

Jessica Ahlquist said: “I’m so glad and proud that the right decision was made and the Constitution was upheld... I am hopeful that this case can be looked back on in the future and encourage others to stand up for their rights as well. It has been a very long and difficult year and a half for me, but it was absolutely worth it.”

ACLU volunteer attorney Lynette Labinger remarked: “In order to support the continued display of the School Prayer, the City argued that there was no religious significance to it, attempting to reject and trivialize the religious message in order to preserve it. The court carefully reviewed the record to conclude, as we had argued, that the School Prayer was installed to convey a religious message and the decision to maintain it was infused with a religious purpose. The court's vindication of Jessica's rights is a vital reminder of the importance of the principles espoused by Roger Williams and enshrined in the First Amendment.”

After the court decision was issued, Ahlquist was subjected to death threats and had a police escort in school for two weeks. This prompted the R.I. State Council of Churches to hold a news conference, attended by a dozen religious leaders, to condemn the attacks against her, and to call for “tolerance and civility” in dealing with the issue. The head of the Council, the Rev. Don Anderson, is an alumnus of Cranston High School West and had called on the school district to remove the prayer when the ACLU lawsuit was filed.

On February 16th, after once again hearing hours of public testimony, the school committee voted 5 to 2 not to appeal the judge’s decision. Steven Brown, executive director of the RI ACLU, commended the school committee for its decision, noting that it “protects the rights of all students and will allow the school district to get back to the business of education.”

During the controversy, Ahlquist became an articulate and poised spokesperson for her position, and displayed remarkable courage despite the vitriol aimed against her by fellow students and adults.

UPDATE: As this newsletter went to press, the school superintendent was quoted as saying that, upon advice of legal counsel, he was delaying removing the prayer even though it could be easily removed in one day. Notwithstanding the school committee vote, the attorneys were apparently taking the position that the prayer could remain until the ACLU’s request for attorneys’ fees was resolved. The RI ACLU called it “an unfortunate ploy to temporarily put off complying with the court’s decision,” but expects city officials to back down within a short period of time.

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From the Desk of the Executive Director

Assuming that the latest twist in the saga (see update above) gets resolved, the Cranston School District will soon permanently remove the infamous school prayer mural from Cranston High School West’s auditorium. This is therefore an appropriate time to consider some of the many ironies provided by the case.

  • Although the ACLU was blasted for being “anti-religious” in calling for the prayer’s removal, it was the school committee that vigorously argued in court that a mural labeled “School Prayer” and addressed to “Our Heavenly Father” wasn’t religious at all.
  • Although the school committee helped whip up residents’ emotions about the need to preserve this “historic” mural, it was the same school committee that quietly, without any public notice, removed an even older prayer mural from the Bain Middle School after the ACLU sued.
  • In viciously denouncing and threatening Jessica Ahlquist, the ACLU’s plaintiff, local residents seemed not to have read the prayer they were so desperate to keep on display, which called on all to “be good sports” and “kind and helpful” to classmates.

The biggest lesson is that provided by Jessica herself, who throughout this lengthy ordeal demonstrated remarkable courage and maturity. Young people like her bring renewed vitality and hope as a new generation carries forward the bold American experiment known as the Bill of Rights.

— Steven Brown

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ACLU Court Brief Supports Governor's Refusal to Transfer Inmate to Federal Government to Face Death Penalty

The Rhode Island ACLU has filed a “friend of the court” brief before the U.S. Court of Appeals in Boston, supporting Governor Lincoln Chafee’s legal efforts to prevent the surrender of murder suspect Jason Wayne Pleau to federal authorities to potentially face the death penalty. The brief was joined by the four other ACLU affiliates – from Massachusetts, New Hampshire, Maine and Puerto Rico – that are in the appeals court’s jurisdiction.

Last October, a majority of a three-judge panel of the First Circuit Court of Appeals ruled that, under a federal law known as the Interstate Agreement on Detainers (IAD), Governor Chafee had the legal right to refuse to turn over Pleau, who has already agreed to serve a life sentence without parole under state law, to federal authorities. In December, the full appeals court agreed to rehear the case.

The IAD governs the transfer of inmates among states and with the federal government. The majority opinion in Pleau’s case held in October that “once the government has put the gears of the [IAD] into motion, it is bound by the IAD’s terms, including its express reservation of a right of refusal to the governor of the sending state.” The ACLU brief supports that view, challenging the federal government’s contention that “it may refuse to transfer a prisoner to State custody but that a State may not refuse to transfer a prisoner to Federal custody.” The IAD, claims the brief, “creates a well-functioning, protective system that balances the interests of the prisoner, the prosecutor in the receiving State, and the Governor of the sending State, giving each a voice in the process.” Under the federal government’s interpretation, however, “the Federal government would receive the benefits of the IAD, while evading its obligations and frustrating the ultimate objectives of the scheme.”

Rhode Island was the second state in the Union to abolish the death penalty in 1852, and it has not carried out an execution since that time. In a letter sent to the U.S. Solicitor General three months ago, the RI ACLU denounced as “inappropriately gratuitous” the U.S. Attorney’s effort “to impose on our state a policy that Rhode Island eliminated more than a century and a half ago.” The ACLU further argued that the Department of Justice’s own standards on when to pursue the death penalty “offer no basis” for pursuing the death penalty against Pleau.

The friend of the court brief was filed by ACLU volunteer attorneys at the law firm of Foley Hoag LLP in Boston, and was joined by a number of other groups. Oral argument in the case is scheduled to be heard on April 4th.

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RI ACLU Praises Department of Corrections for Adopting Strong Anti-Shackling Regulations

The RI ACLU applauded the Department of Corrections (DOC) for adopting suggestions to strengthen proposed rules that will govern the use of restraints on pregnant prisoners. These new regulations, based on ACLU-drafted legislation passed last June, generally prohibit the use of handcuffs, shackles, and waist restraints on a pregnant inmate during transport, labor, delivery, and recovery. They also allow only “medically appropriate” restraints to be used during the second and third trimester of an inmate’s pregnancy. Most significantly, the changes adopted by the DOC make important clarifications regarding what restraints are appropriate during each stage of an inmate’s pregnancy and where information about the procedures should be made available to staff and inmates. These changes strengthen what is one of the strongest laws in the country protecting pregnant inmates.

The revisions made to the regulations had been proposed in testimony submitted to the DOC by the Rhode Island ACLU, Direct Action for Rights and Equality, National Council of Jewish Women of Rhode Island, Planned Parenthood of Southern New England, Rhode Island NOW, Rhode Island Medical Society, Rhode Island State Nurses Association, and the Women’s Medical Center of RI.

 The ACLU commended the DOC for working to implement the new law in a way that best protects pregnant inmates.

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Legislative Preview 2012: A Look at Proactive Civil Liberties Legislation

2011 was a difficult year for civil liberties at the State House, and this year is unlikely to bring relief. With the General Assembly moving rapidly into hearings and consideration of bills, the prognosis for 2012 remains to be seen. In the next issue, we will focus on some of the anti-civil liberties legislation under consideration this session; in this issue, we take a look at some of the proactive civil liberties protections the Affiliate is pursuing this year.

Anti-Discrimination

  • Gender and Health Insurance Rates:

    Rep. Donna Walsh and Sen. Susan Sosnowski have introduced legislation to end discrimination in health insurance rates on the basis of gender. Nationwide, women of all ages are frequently charged more for the exact same health insurance as men, disproportionately impacting the ability of women to purchase vital coverage. This legislation will bar health insurance companies from charging different premiums of any policy holder, enrollee, subscriber, or member based on their gender.

  • Racial Profiling:

    For the sixth year in a row, the Affiliate is working toward passage of the Comprehensive Racial Profiling Prevention Act, sponsored by Rep. Grace Diaz and Sen. Harold Metts. Black and Hispanic drivers are twice as likely as white drivers to be stopped and searched, even though white drivers are more likely to be found with contraband when searched. This legislation, supported by more than three dozen organizations, will prevent police from demanding identification from innocent passengers and from searching minors and pedestrians in the absence of suspicion of criminal activity, require police to document the grounds for conducting searches, and reestablish traffic stop data collection procedures. You can follow the Racial Profiling Coalition on Twitter @RIStopProfiling.

  • Same-Sex Divorce:

    Paradoxically, while Rhode Island continues to deny same-sex couples the right to marry, same-sex couples legally wed in other states are also denied the right to divorce. Couples are left in a painful state of limbo to which no other married couples, even those marriages which are clearly void under the law, must face. The Affiliate will once again work for legislation allowing all married parties to divorce, whether or not they would have been able to marry in Rhode Island.

Criminal Justice

  • False Information Ban:

    The Affiliate is working to repeal an overreaching section of Rhode Island law, under which the transmission of any false information over the internet is a misdemeanor punishable by up to one year in jail. Currently, any person who alters their age on Facebook or tells a white lie via e-mail is subject to prosecution under this law. A few people have actually been charged (though not convicted) under this incredibly broad statute.

Open Government

  • Prison Based Gerrymandering:

    With the state’s redistricting and reapportionment process completed, the Affiliate is working to pass legislation sponsored by Rep. Anastasia Williams and Sen. Harold Metts to ensure that all future districts are drawn to represent those who actually live in them. Under current practices, voting districts are drawn as if all prisoners of the ACI lived in Cranston, even though all non-felons incarcerated there must vote from their home address. This redistricting practice gives more representation to the residents of Cranston and less representation to the residents of the districts the prisoners call home. In order to assure equal representation for all Rhode Islanders, this legislation will require that ACI inmates be counted as living at their most recent address, not the prison.

  • Access to Public Records:

    For the fifth consecutive year, the Affiliate is working to 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.

Privacy

  • Cell Phone Warrants: 

    Legislation barring police officers from examining the contents of a cell phone without a warrant will be considered in the coming months. As cell phone technology has improved, the devices now contain tremendous amounts of personal information, but have also become increasingly prone to search. Under legislation sponsored by Rep. Edith Ajello, a warrant would be required before police could engage in a search of a cell phone’s contents.

  • Criminal Background Checks:

    In recent years, the General Assembly has passed a flurry of laws requiring more and more individuals to undergo criminal background checks prior to employment or volunteering with a wide number of agencies. These laws vary wildly in their requirements, potentially leading to confusion among agencies, employees and law enforcement, and inappropriate or uneven application. ACLU legislation seeks to create uniform standards and limits for the use of criminal record background checks in employment and for volunteers.

  • ID Theft Protection:

    Last year, the General Assembly barred any part of an individual’s social security number from being used by vendors for identification verification. However, a person’s social security number may still be used by credit agencies as the sole determinant for whether a credit record in its files matches an inquiry by a merchant. This allows any individual who gains access to a person’s social security number to obtain credit on their behalf, and potentially access a tremendous amount of personal information. Legislation introduced by Rep. Brian Kennedy and Sen. Dominick Ruggerio will require that credit agencies use more than just a social security number to determine whether credit files match.

Students' Rights

  • High Stakes Testing: 

    Legislation by Rep. Eileen Naughton and Sen. Harold Metts seeks to bar the discriminatory practice of high-stakes testing in determining a student’s eligibility to graduate. Under current state regulations, students in 2014 will be required to pass a standardized test to graduate. If a student “fails,” regardless of their performance in any other aspect of their school work, they will not qualify for a diploma. A dozen organizations, including the ACLU, note this will have a disastrous and disproportion-ate impact on the graduation rates of special education, limited English proficient, economically disadvantaged, Latino and African-American youth. The legislation would prevent the use of standardized testing as the zero-sum requirement for graduation, and mandate the provision of supportive services to at-risk students.

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Groups Demand Accountability in Redistricing Process

A new redistricting plan for the state House and Senate has been signed into law, but the public remains in the dark as to whether the lines that were drawn ensure fair representation for racial minorities. Although contractually obligated to do so, reapportionment contractors Election Data Services, Inc. (EDS) failed to release crucial data regarding the state’s majority-minority districts, which could show a very different picture of minority representation than what has been portrayed.

Under federal law, states must ensure the ability of minority populations to elect officials of their choosing. This is done through the creation of “majority-minority” voting districts, or districts where the minority population is greater than 50 percent.

When Rhode Island’s redistricting process was completed, EDS identified 11 House and 7 Senate majority-minority districts. Problematically, in only six House and two Senate districts does a single minority group represent more than 50 percent of the population – and in two House districts it is the white population which holds a plurality.

Racial voting bloc analysis shows whether different racial minorities, such as African-American and Latino voters, generally vote in support of the same candidates. If not, then the fact that the two groups make up a majority in any legislative district may only provide an illusion that the district has been drawn to allow for the fair representation and election of minority candidates. EDS was contracted to provide this analysis during the redistricting process, but it was never produced.

The ACLU, Common Cause and the Urban League made numerous requests for this information weeks before the Reapportionment Commission’s work ended, but no data has yet been released and no valid reason for this failure has been given. In February, the groups sent a letter to the president of EDS, requesting that the data be made available and a reason provided for the delay. It can no longer impact the new district lines, but it remains crucial information in ensuring that the representation of minority groups in the General Assembly is protected. The ACLU hopes for its prompt release.

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Stay Connected

With the legislative session starting up again, sign up for our E-Alert system. E-Alerts notify you by email when there are important bills that need your opposition or support. Sign up at www.riaclu.org.

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Press Groups Challenge State Law Restricting Political Advertising

The RI ACLU has filed suit on behalf of the Rhode Island Press Association and the publisher of the Warwick Beacon, challenging a state law that has been interpreted to bar the media from running advertisements containing the names and photographs of public officials without their permission. The lawsuit, filed in U.S. District Court, argues that the statute violates the First Amendment.

The statute provides: “Any person whose name, portrait, or picture is used within the state for advertising purposes or for the purposes of trade without his or her written consent may bring an action in the superior court against the person so using his or her name, portrait, or picture to prevent and restrain the use thereof, and may recover damages for any injuries sustained by reason of such use.”

Last September, Warwick resident Robert Cote, who has headed up the so-called “Car Tax Revolt,” took out an ad in the Warwick Beacon that criticized City Council members by name and included photos of them. In response, a Councilman advised the Beacon that he was considering suing the newspaper under the statute for running his name and photo without his permission. Notwithstanding the threat, the Beacon published a few more similar ads purchased by Cote, but changed at least one of them in response to the threat.

The lawsuit, filed by RI ACLU volunteer attorney Mark Freel, makes two arguments: first, that the statute was not meant to cover political advertising, but was “instead intended to prevent the unauthorized use of a person’s name or likeness in connection with the sale of products or services in commerce,” and to the extent it can be read otherwise, the statute is unconstitutionally vague and has a chilling effect on publishers’ free speech rights. In the alternative, the suit argues that if the statute does encompass political advertising, it is unconstitutionally overbroad by restricting political speech on matters of public concern. The suit seeks a court order declaring the statute unconstitutional on its face or as applied to political advertising.

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News Briefs

ACLU Claims Central Falls Receiver Meetings Are Being Conducted Illegally

The RI ACLU has charged that the Central Falls Receiver is conducting illegal meetings in running the City’s affairs under the state law authorizing his appointment. After receiving numerous complaints from city residents about an on-street parking ordinance, the ACLU reviewed the meeting minutes where it was officially approved and learned that the Receiver was not even present at the meetings. Instead, his staff members conducted the agenda’s business.

In a letter sent to the Receiver, the ACLU argued that this practice exceeded the powers granted to him by state law. Although the Receiver is authorized to exercise all the powers of the City Council, the letter notes that Council members cannot delegate voting responsibilities to others as the Receiver has done. The Affiliate is considering filing a lawsuit to challenge this practice. A copy of the ACLU’s letter to the Receiver can be found at www.riaclu.org.

North Providence Town Council Abandons "Oath" Requirement at Public Meetings

Facing the threat of a lawsuit from the ACLU and vocal criticism from local residents, the North Providence Town Council has abandoned a policy adopted in December requiring residents to formally take an oath to swear to tell the truth before addressing the Town Council during the public comment period at meetings. The ACLU called the policy, purportedly designed to address “raucous” behavior, a blatant attempt to intimidate residents from speaking their mind at Council meetings.

State's Civil Union Law Remains a Bust After Six Months

Releasing its third analysis of the law in the six months it has been in effect, the RI ACLU reported that “an embarrassingly small number of couples” – only forty-six – have taken advantage of Rhode Island’s civil union law, which was enacted over the strong protests of the state’s gay and lesbian community. Those numbers remain far behind any other state with civil union, marriage or domestic partnership laws. In Delaware and Hawaii, states with similar populations that implemented their own civil union laws in January, Hawaii reported the issuance of at least 106 civil union licenses, and Delaware reported more than 85 in the first month alone. The Affiliate argued that the statistics demonstrate that the state’s civil union law is “virtually useless” and highlight the need for passage of true marriage equality legislation.

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ACLU Settles Suit With DMV Over License Reinstatement Rule

The RI ACLU has favorably settled a lawsuit against the Division of Motor Vehicles, which had refused to reinstate a person’s driver’s license based on a “policy” that appeared nowhere in the agency’s rules and regulations. The lawsuit, filed in R.I. Superior Court by ACLU volunteer attorneys Albin Moser and Melissa Braatz on behalf of Warwick resident Marc Lavik, had argued that the DMV’s actions violated the Administrative Procedures Act (APA), an important state law that requires agencies to provide advance notice and a comment period before adopting policies that affect members of the public.

State law authorizes agencies like the DMV to deny license renewals to people who owe taxes to the state. Under that law, Lavik was unable in 2005 to get his driver’s license and registration renewed. In 2010, he finally paid off all his back taxes, but instead of getting his license reinstated, he was told by the DMV that, because more than three years had elapsed, he would need to apply for a new license and retake both a written and road test. In justifying this, the DMV referred Lavik to the agency’s web site which, in a section on license reinstatement, stated that: “If your license has expired for a period of three years or more during the time of suspension, a written exam and road test is [sic] required to obtain a new license.” However, the ACLU lawsuit argued that this “policy” was never the subject of any public notice or hearing by the agency and was thus “legally invalid.”

Under a consent agreement that has been filed in R.I. Superior Court settling the case, the DMV has agreed to reinstate Lavik’s license, to rescind use of its “informal” test-retake policy, to initiate formal rule-making proceedings before re-adopting any policy on the issue, and to pay attorneys’ fees and costs. In fact, in conformance with the consent decree, the DMV has already held a public hearing on proposed rules that essentially codify its earlier “policy.” The ACLU testified against the proposal on substantive grounds, however, noting that the tax statute under which Lavik was unable to get his license renewed requires agencies to reinstate licenses “within five (5) business days of receiving the certificate of good standing” from the taxation division. The ACLU is awaiting the DMV’s response to that testimony.

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Lawsuit Challenging Pawtucket's Favorable Treatment of Parochial Schools Goes to Trial

A trial has been held in the Rhode Island ACLU’s federal lawsuit challenging the City of Pawtucket’s long-standing practice of giving preferential treatment to parochial schools over public schools in granting permits for the use of city athletics fields.

The trial followed months of discovery in the lawsuit, which was filed in October 2009 on behalf of seven Pawtucket parents and their children. They and public school officials had unsuccessfully complained to the City for years about this problem. For example, O’Brien Field, refurbished with tax money in 2001, has since been reserved almost exclusively for use by St. Raphael Academy, a Catholic school. The suit alleges that public junior high school teams have been denied the use of other fields which have often also been reserved for the use of private sectarian schools.

Until last year, the city’s Office of Parks and Recreation had no written policies governing the issuance of permits for city-owned athletic fields. Even with adoption of a policy, which the ACLU claims is still deficient, parks officials have been left with unbridled discretion in deciding what schools get to use the fields.

A legal memorandum filed by RI ACLU volunteer attorney Sandra Lanni summarized the situation by stating: “The manner in which the City of Pawtucket issues field permits benefits only one type of private entity – private schools operated by the Roman Catholic Diocese of Providence. The City’s actions are not neutral and therefore impermissibly advance religion in violation of the Establishment Clause of the First Amendment.” A ruling in the case is expected within a few months.

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New Affiliate Pamphlet Available!

Know Your Rights: Protests and Demonstrations

The Rhode Island ACLU is offering a new informative brochure that answers frequently asked questions about protesting or holding demonstrations. The brochure is available here or by calling or writing the office.

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Organizational Notes

Tune Into the ACLU's Monthly Cable Access Show

Every month the RI ACLU’s long-running cable access show “Rights of a Free People” features a discussion on key civil liberties issues. This March begins a three-part series discussing the history, law, and controversies surrounding the separation of church and state. Tune in during the month of March as guests Ellery Schempp, the lead plaintiff in the landmark 1963 Supreme Court school prayer case Abington School District v. Schempp, and John Dineen, an ACLU volunteer attorney, explain the basics of the separation of church and state. Schempp and Dineen are joined in April by Debbie Weisman Clasie, the lead plaintiff in the RI ACLU Supreme Court case Lee v. Weisman , to discuss how the separation of church and state has been appearing in current events.

  • Playing in March: What is the Separation of Church and State?
  • Playing in April: Separation of Church and State in Recent News
Showtimes:
  • Channel 13: Tuesdays 10:00pm & Fridays 3:30pm (Channel 32 on Verizon FIOS)
  • Channel 18: ( In Providence & N. Providence) Wednesdays 9:00pm (Channel 38 on Verizon FIOS)

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