January/February 2013 - an ACLU of Rhode Island Newsletter

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January/February 2013 Newsletter

Volume: XIX, Issue Number: 1

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Newsletter Contents

ACLU of RI Publishes Reports on Open Records Law, Internet Filtering Issues

The ACLU of Rhode Island published two reports in February addressing civil liberties issues that are very different, yet have a common theme: the obstacles that public agencies impose on gaining access to information. Both reports can be found on the ACLU’s website: www.riaclu.org.

Access to Public Records

The first report examines past enforcement of the open records law by the Attorney General’s office and urges stronger enforcement in the future.  Of the many findings in the report, we found that between 1999 and June 2012, the Attorney General’s office filed lawsuits against public bodies for violating the state’s Access to Public Records Act on only six occasions, less than 4% of the time after finding that violations of the law had been committed. 

Rhode Island’s Access to Public Records Act (APRA) gives the Attorney General the power to sue agencies for violating the statute. Between 1999 and June 2012, however, the AG’s office filed lawsuits against public bodies on only six occasions, less than 4% of the time after finding that violations of the law had been committed. That is one of the findings of a report the ACLU of Rhode Island has issued this month.

The report found that even the most blatant violations rarely led to legal action. In a two-year span, the Town of North Providence was found to have violated APRA six separate times, yet even after the sixth violation, the Attorney General refused to find that the Town had engaged in a “knowing and willful” violation that warranted seeking penalties under the law.

Further, when public bodies violated the law, they most often involved ignoring basic requirements, such as failing to respond to requests within the required time period or charging unreasonable fees for copying records. They did not involve arcane questions of legal interpretation or complicated disputes over whether a record was legitimately exempt from disclosure.

The ACLU report argued: “In order to promote respect for, and compliance with, APRA, it is essential that the AG … seek fines against public bodies that engage in clear violations. It is insufficient to issue findings of wrongdoing with no further repercussions when the violations should never have occurred in the first place. A more vigorous response is necessary in order to help reverse a culture of secrecy that seems to pervade too many government agencies.”  The report, prepared with the assistance of ACLU staff person Megan Khatchadourian, is available at www.riaclu.org.

Internet Filtering in Public Schools

A new RI ACLU report documents how the use by public schools of so-called Internet filtering software has hindered teachers from making use of the Internet to educate students, and has hampered students from accessing relevant information in the classroom. The report offers a number of recommendations to ameliorate the harm caused by these programs, including the passage of legislation to address some of the more problematic aspects of their use.

Internet filtering programs block certain categories of websites – or even websites that simply mention specific words – when students use school computers to access the Internet.  Although primarily designed to prevent access to “pornography,” school districts’ over-extensive embrace of the deeply flawed software has a significant impact on classroom teaching because websites are blocked for hosts of other reasons. For example, more than half of RI school districts block students from accessing websites that, by the software manufacturer’s definition, “promote partisan historical opinion” or include information about undefined “anti-government groups.” A few school districts block websites categorized as “books and literature,” “social opinion,” and “religion.” The ACLU report notes that allowing school administrators “virtually unbridled discretion to determine how this technological censor will be used gives them a power over classroom teaching that would never be tolerated for offline lessons.” 

Among the many sites that teachers have found blocked and interrupting their lesson plans are a video clip of the Nutcracker ballet, a website on global warming, a YouTube video on Social Security, and the websites of PBS Kids and National Stop Bullying Day. The ACLU’s report, prepared by RI ACLU Policy Associate Hillary Davis, is available at www.riaclu.org.

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Marriage Equality Bill Passes Overwhelmingly in the House

The 2013 General Assembly session year started off on a positive note when, just three weeks into the session, the House overwhelmingly voted to approve marriage equality legislation. Sponsored by Representative Art Handy, the bill grants full marriage rights to all couples, regardless of gender, who are otherwise eligible to marry. The bill also codifies Rhode Island’s recognition of same-sex marriages and civil unions from other states, and includes protections for religious institutions that choose not to solemnize same-sex marriages. A companion bill, sponsored by Senator Donna Nesselbush, awaits a hearing in the Senate.

The ACLU of Rhode Island is an active member of the coalition “Rhode Islanders United for Marriage,”  fighting for enactment of the bill. The bill’s fate in the Senate remains uncertain, and may not be decided until the very last days of the session.

The ACLU of Rhode Island is also introducing a number of pro-active civil liberties bills in 2013. Among the issues we are tackling are high stakes testing for high school graduation requirements, the privacy of cell phone information, gender discrimination in health insurance rates, and comprehensive election reform.  A detailed legislative preview of pro-active legislation is listed later in this newsletter.  

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From the Desk of the Executive Director

As I write this column, the General Assembly is preparing to return from its one-week winter break. On the first day back, the ACLU will be monitoring, and potentially testifying in, seven different committee hearings.

This one fact highlights the daunting challenge we face every year in trying to protect civil liberties from legislative erosion. The challenges are increased by the ambitious proactive agenda we promote every session, which the legislative preview in this newsletter briefly summarizes.

But that is where you come in. The RI ACLU is, I believe, a well-respected presence at the State House. But few things command a legislator’s attention as much as contact from a constituent.

If there are civil liberties issues of particular concern or interest to you, I urge you to pick up your phone, grab a pen, or go to your email box and let your Representative and Senator know how you feel. It doesn’t take a lot of time or effort, but its impact can be significant. If you want background information on any of the issues we are working on to help you with those contacts, please feel free to let us know. As cynical as the process can often be, you can make a difference.  After all, a democracy is a terrible thing to waste.

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ACLU Files Brief in U.S. Supreme Court in Open Records Case

The ACLU and a number of other national organizations concerned about access to public records have filed a “friend of the court” brief in the U.S. Supreme Court in support of a Rhode Island resident’s court fight for open government.

The case involves Pawtucket attorney Mark McBurney, who is challenging the constitutionality of a Virginia law that allows only residents of that state to invoke Virginia’s Freedom of Information Act. McBurney had filed an open records request with Virginia’s Division of Child Support Enforcement to obtain documents involving a dispute with his ex-wife over child support payments. His request for the records was denied solely because he is not a Virginia resident. After a federal appellate court upheld the law’s constitutionality, the U.S. Supreme Court agreed to review that ruling.

The “friend of the court” brief was filed on behalf of the ACLU, the American Library Association, the National Freedom of Information Coalition and more than a half dozen other groups. It argues that open records laws like Virginia’s that discriminate against non-residents hamper the public’s right to participate in political advocacy. Further emphasizing the impact of the law, the brief notes that access to state public records “is crucial to non-residents in a wide range of occupations, including academics and researchers, journalists, historians, sociologists, and epidemiologists.” 

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ACLU Settles Lawsuit Over Cranston School District Volunteer Policy

The Rhode Island ACLU has settled a lawsuit filed in 2010 against the Cranston School Department on behalf of a mother who had been barred from volunteering at her child’s elementary school because she had a past criminal history of drug addiction. The ban was imposed despite the fact that the mother’s drug problems predated her child’s birth and she had since been involved for years in promoting drug abuse prevention.

Under the settlement agreement, the mother, Jessica Doyle, is now allowed to volunteer, and the school district’s volunteer policy has been significantly revised. It eliminates drug and other offenses as an automatic disqualification from volunteering, and instead requires the school superintendent to consider various factors -- such as the date of conviction, rehabilitative efforts, and community involvement -- submitted by a parent who has a “disqualifying” criminal record. Other policy changes protect the privacy of parents’ BCI information by limiting its disclosure to school officials.

Ms. Doyle was a heroin addict for about five years in her early 20’s before her daughter’s birth. As part of her recovery, she obtained professional treatment. She was a “team mom” for her daughter’s cheerleading team, volunteered at her day care, and even traveled to Washington D.C., as part of a Brown University program, to speak to members of Congress to promote drug prevention funding. She now has a Licensed Chemical Dependency Professional certificate and works at a residential substance abuse treatment program for pregnant and postpartum women.

When her daughter enrolled in kindergarten at Arlington Elementary School, Doyle applied to become a school volunteer so that she could participate in school activities with her child. Although she provided numerous letters of recommendation, school officials denied her request solely because of her criminal drug record. Even as an officer of the PTO, she was prevented from helping out at any events in the presence of children.

The ACLU had objected to the policy when it was first adopted by the school district in 2009. The ACLU noted at the time that the policy was more restrictive than the law in effect governing teachers, who were not automatically disqualified from employment based on a criminal record or drug-related disability. The lawsuit was handled by RI ACLU volunteer attorney Carly Beauvais Iafrate.

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Legislative Preview 2013: A Look at Proactive Civil Liberties Legislation

With the New Year came a new legislative session, and new concerns about civil liberties.  2012 was a mixed year for civil liberties at the State House, and the ACLU expects some major challenges to civil liberties in the 2013 session. The next newsletter will focus on some of those challenges, but in this issue, we review some of the proactive legislation the ACLU of RI is supporting this year to promote the rights of Rhode Islanders.

Students’ Rights

Internet Filtering of School Computers

A new report released by the ACLU of RI shows how the unrestrained use of Internet filtering software by schools leaves teachers unable to use their prepared lesson plans and students sometimes unable to complete their assignments.  With schools providing little information as to what web sites are filtered, or procedures for teachers to unblock the information needed to educate their students, access to the Internet oftentimes remains a frustration in the classroom instead of a useful educational tool. An ACLU bill will require school districts to craft policies and procedures governing the use of filtering software and the timely unblocking of websites when requested by faculty.

School Discipline

The ACLU of RI is pursuing legislation to reduce the rampant use of out-of-school suspensions.  Black and Hispanic students statewide are disproportionately likely to receive such punishment for minor infractions – particularly subjective offenses such as “disorderly conduct” and “insubordination.” The proposed bill would mandate the use of in-school suspensions for disciplinary violations unless the student presents a danger or serious disruption to the classroom. The bill would also require school districts to evaluate their suspension data and present a plan to eliminate any racially disparate suspension rates.

High-Stakes Testing

Legislation to bar the use of high-stakes testing in graduation will be considered for the second year.  Under current state regulations, in order to graduate in 2014, students will be required to pass a high stakes standardized test. If a student “fails,” they will be denied a diploma regardless of their performance in any other aspect of schoolwork.  Recently released results from the Department of Education’s designated “high stakes” test put 40% of high school juniors at risk of not getting a diploma next year. Although the test has a significantly disproportionate impact on special education, limited English proficiency, economically disadvantaged, and minority students, 15% of juniors in East Greenwich, 38% of students in Warwick, and 39% in Tiverton – to give a few examples – did not achieve a passing score. The legislation, sponsored by Rep. Eileen Naughton and Sen. Harold Metts, would prevent the use of standardized testing as a zero-sum requirement for graduation, and mandates the provision of supportive services for at-risk students.

Privacy

Automated License Plate Readers

Some law enforcement departments across the country have begun utilizing automated license plate readers in traffic enforcement, consisting of vehicle-mounted cameras that scan the license plates of every car they pass and check them against registries of law enforcement’s choosing. In Rhode Island, this technology is largely unregulated.  Legislation is under consideration to limit the use of ALPRs to specific law enforcement activities, and restrict what data may be retained and for how long.

Cell Phone Warrants

The General Assembly last year overwhelmingly approved legislation barring police officers from examining the contents of an arrestee’s cell phone without a warrant, but the Governor unexpectedly vetoed the bill.  Cell phones hold tremendous amounts of personal information and are increasingly prone to search; as such, the ACLU of RI will be urging re-passage of this legislation.

Social Media Passwords

As use of social media has grown, so has the temptation for employers and others to use this ubiquitous technology to monitor the activities of individuals under their supervision.  The ACLU of RI is lobbying for legislation that would bar employers and school officials from requesting or requiring employees or students to disclose nonpublic social media information, including their user names and pass-words, and ban them from gaining access to their private social media without consent.

Anti-Discrimination

Gender and Health Insurance Rates

Rep. Donna Walsh and Sen. Susan Sosnowski have reintroduced legislation to end gender discrimination in health insurance rates. Nationwide, women are generally charged more than men for the same health insurance, disproportionately impacting the ability of women to purchase vital coverage. This legislation bars health insurance companies from charging different premiums of subscribers based on their gender.  The practice will codify and make permanent provisions contained in the new federal health care law. 

Racial Profiling

For the seventh year, the ACLU of RI is part of a diverse coalition advocating for the Comprehensive Racial Profiling Prevention Act.  Black and Hispanic drivers are twice as likely as white drivers to be stopped and searched by law enforcement, even though white drivers are more likely to have contraband when searched.  This bill, sponsored by Rep. Joseph Almeida and Sen. Harold Metts, prevents police from demanding identification from passengers, limits the searches of minors absent suspicion of criminal activity, requires police to document the grounds for conducting searches, and reestablishes traffic stop data collection procedures.

Criminal Justice

Strip Searches

For ten years, detainees in Rhode Island who were arrested for minor offenses like traffic violations were, in the absence of reasonable suspicion to believe they might be hiding contraband, protected from arbitrary and humiliating strip searches by police and correctional officers. That protection was the result of a local federal court decision declaring such searches unconstitutional.  Unfortunately, a 2012 U.S. Supreme Court decision reauthorized that practice. As a result, any detained individual – no matter what the charge – is thus subject to a strip search while being held at the police station or detained at the ACI awaiting bail.  The General Assembly will consider legislation to reinstate limits on such intrusive searches to situations where the detainee has been charged with a serious crime or there are reasonable grounds to believe that he or she is carrying contraband. 

Elections

Comprehensive Election Reform

Following long lines at the polls, disputed election results, and other various prob-lems that plagued voters during the 2012 Presidential election, the ACLU of RI is pursuing a bill that would make comprehensive changes to the state’s election laws.

The bill, introduced by Rep. Edith Ajello and Sen. Elizabeth Crowley, seeks to ensure that every vote is counted in an open and transparent manner, increases the number of provisional ballots counted, subjects the Board of Elections to the Administrative Procedures Act, requires post-election audits to evaluate the accuracy of voting machines, and addresses a variety of other election problems. 

Voter ID

Sen. Gayle Goldin has introduced legislation to repeal the state’s Voter ID law, which took effect last year despite the strenuous lobbying efforts of the ACLU and a number of other groups, and despite the lack of any concrete evidence of voter impersonation fraud in the state. ACLU testimony to a House Oversight Committee this month described problems faced by some voters at the polls this past election season as a result of the voter ID requirement.

The problems will only become compounded in 2014, if action is not taken beforehand, because the ID requirements will be even more stringent. Next year, voters will be required to present a limited number of types of photo identification in order to vote. For the 2012 elections, various forms of non-photo ID were deemed acceptable. 

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News Briefs

Supreme Court Turns Down Review of Death Penalty Case

Without comment, the U.S. Supreme Court refused to hear an appeal filed by Governor Lincoln Chafee in his efforts to prevent the institution of federal death penalty charges against Jason Wayne Pleau. 
The RI ACLU had joined with a number of other organizations in filing a brief urging the Supreme Court to review a federal appeals court ruling that Chafee had no authority to withhold the release of Pleau to federal authorities.

As a result of the court action, the U.S Attorney for Rhode Island will now be able to proceed with Pleau’s trial in federal court, where he could be subject to capital punishment, even though Pleau has already agreed to serve a sentence of life imprisonment without parole on state charges. Rhode Island has not carried out a death sentence in more than 150 years. The ACLU will continue to monitor the case.

Court Hears Free Speech Prison Case

A federal judge heard oral argument this month in an ACLU case on behalf of an ACI inmate who was disciplined and thrown into segregation after publicly objecting to a prison policy and seeking the ACLU’s help to challenge it. The Department of Corrections has argued that the inmate, Jason Cook, had no free speech right to speak to the Providence Journal about the policy, which would have restricted mail between inmates and family members, and therefore his suit should be thrown out.  After a federal magistrate rejected the DOC’s troubling position, the agency appealed to U.S. District Judge William Smith. At the argument, ACLU volunteer attorney Amato DeLuca asked the judge to affirm Cook’s First Amendment rights. A ruling is expected in a few months. 

Towns Revise Open Records Policies

Responding to objections raised by the ACLU, the Towns of Narragansett and Johnston have revised their recently adopted Access to Public Records Act (APRA) policies. The initial policies, the ACLU argued, gave residents the misleading impression that the municipality never had an obligation to compile information in response to an open records request if the information was not already maintained by the town in the form requested.

In fact, under APRA, requesters are entitled to compilations of data that are in electronic format and easily capable of reorganization. The towns’ revised policies now reflect that provision of the law. APRA requires all public bodies to adopt written procedures governing the public’s access to records. In light of these two incidents, the ACLU plans to engage in a comprehensive review of other municipalities’ written APRA procedures.

Barrington High School Student Project Uncensored

Following ACLU intervention, Barrington school officials backed off of their efforts to require a high school student to submit for advance review the editions of an “underground newspaper” he was writing and publishing as part of his senior project.

Harrison Connery’s senior project involves an examination of “subjective vs. objective journalism.” His fieldwork consists of producing an underground newspaper throughout the school year, and distributing it in various outlets around town. However, after the first issue was published, Harrison’s senior project coordinators advised him that he would need to submit future editions of the newspaper to them for their advance review and approval. The advisers apparently were prompted to act because the newspaper, which was distributed off-school property and indicated no connection with the school, included some profanities.

Harrison contacted the ACLU for assistance. In a letter to school officials on his behalf, the ACLU argued that “the requirement of advance approval is the antithesis of the purpose behind an underground newspaper and, more to the point, a clear violation of his First Amendment rights.” Shortly after receiving the ACLU’s letter, school officials reconsidered, and agreed that Harrison could continue to publish his newspaper without advance review.

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ACLU Re-Screens “The Loving Story” at RIC

After an enthusiastic showing of the film last fall at the Cable Car, the ACLU of RI screened "The Loving Story" with the Unity Center at Rhode Island College in February. A very engaged audience participated in a post-screening discussion with ACLU volunteer attorney Carolyn Mannis about the film’s relevance to current debates over marriage equality and the problem of racial profiling. The award-winning documentary recounts the case of the interracial couple who successfully challenged the constitutionality of state miscegenation laws.

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An Active Year for the ACLU Chapter at Brown University

The Brown University Chapter of the ACLU of RI has had a busy academic year so far, with more activity expected during the remainder of the school year.

The chapter has been busy working with University administrators and the Undergraduate Council of Students to create a resource for students who have been accused of violating the Academic Code or the Student Code of Conduct. The Student Conduct Information Service, which will be run by and for Brown students, will assist those who have become involved with Brown’s disciplinary system, answering their questions and helping them navigate the often-confusing processes. The Service, which is modeled on Student Public Defender programs at schools like UC Berkeley and SUNY New Paltz, won administrative approval this winter and has begun recruiting. It hopes to begin assisting students this spring.

During the fall, the Chapter monitored polling stations throughout Providence to ensure that Rhode Island's new Voter ID law was being implemented in a fair and non-discriminatory way, and continued to make progress on its campus email privacy information campaign.

This February, the Chapter hosted Carl Takei, a staff attorney at the ACLU National Prison Project. Mr. Takei, who recently won a case in federal court against the state of Alabama for segregating prisoners living with HIV, delivered a lecture on prison conditions in America and the rights of HIV-positive individuals.

In April, the Chapter will host a screening of Zero Dark Thirty, the Academy Award-nominated film about the hunt for Osama bin Laden. The film will be followed by a discussion with Brown faculty on the legal and ethical issues raised by the war on terror and the use of torture to extract information from detainees.

-- Bradley Silverman

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Notice on Label Exchanges

The Rhode Island ACLU does not rent the names of members to other organizations. However, the National office occasionally arranges to send members a mailing piece from another organization, either because of its relevance to civil liberties or as part of a membership recruitment exchange. We guard the anonymity of our membership very carefully, and other organizations never actually see your name. However, if you object to having your label used for non-ACLU mailings even in this fashion -- or if you don't wish the National ACLU to similarly exchange your label with other organizations -- just let us know and we can eliminate your name from any such arrangements.

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New Educational Booklet Available

The ACLU of Rhode Island has published a new booklet about school discipline, designed to educate both students in grades K-12 and their parents or guardians about their rights.

The booklet, titled “Know Your Rights: School Discipline,” covers frequently asked questions about public school discipline policies and procedures, and the legal limits on school officials in punishing students. Some of the specific questions answered by the publication include:

  • "If my school wants to suspend me, do I get a hearing first?" 
  • "When can school officials or police search me at school?"
  •  “Can schools search my locker without my consent?”
  • “Can schools have ‘zero tolerance’ policies for drugs and weapons?”
  • “Who can access my student records?”
  • "Can my school make me take a urine test for drugs or a breathalyzer test for alcohol?" 

The booklet, along with other students' rights brochures about school dress codes and students and technology, is available at www.riaclu.org. Free copies are also available by calling the ACLU office at (401) 831-7171.

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