March/April 2011 Newsletter
Volume: XVII, Issue Number: 2
RI ACLU Files Suit Over Cranston School Prayer
The RI ACLU has filed a federal lawsuit challenging the constitutionality of a prayer mural addressed to “Our Heavenly Father” that is displayed in the auditorium of a Cranston public high school. The lawsuit, filed by RI ACLU volunteer attorneys Lynette Labinger and Thomas Bender, is on behalf of Jessica Ahlquist, a sophomore at Cranston High School West, who in the past year has continually spoken out against her school’s prayer display.
To highlight the importance of the case for religious freedom, the Rev. Don Anderson, executive minister of the R.I. State Council of Churches, and Rabbi Peter Stein, the leader of a congregation in Cranston, both participated in the ACLU’s news conference announcing the lawsuit to express their support for Jessica.
Last July, 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 month, however, the school committee decided to keep the prayer, ignoring warnings about the cost of litigation and despite the school district’s ongoing and severe budgetary problems, which have led to layoffs and program cuts.
The lawsuit notes that the prayer, which was installed in the 1960’s and is at least eight feet high and three feet wide, “is designed to be easily read by students attending programs in the auditorium.” The lawsuit alleges that Jessica Ahlquist “does not subscribe to the religious expression conveyed by the prayer and objects to being subjected to it as a requirement of attending school and a condition of attending school programs in the auditorium,” and that Jessica’s father “does not believe his daughter should be subjected to a religious communication and display with which she does not agree as a condition of attending public school.”
At the news conference, Jessica explained: “The prayer's presence in the school promotes and endorses the ideals of Christianity and the concept of a single ‘Heavenly Father.’ As an atheist, I do not feel included in the message of the prayer; in fact, I feel excluded. And the public hearings that I have attended have added to that feeling-- that my views and beliefs don't count, or have less value than those of the Christian majority. I don't feel that I or anyone else should have to feel that way at school.”
The suit notes that a number of speakers at public hearings identified the prayer’s religious message as the reason for urging the school committee to maintain it, and also expressed anger and outrage at people like Jessica who questioned the prayer’s display. In fact, a day after the school committee’s March vote, Jessica was allowed to leave class early in response to concerns for her safety arising out of her opposition to the prayer.
The suit argues that the prayer violates the First Amendment, and seeks a court order to prohibit its continued display at the school. 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. In recent months, in recognition of the likelihood of litigation over the prayer, school officials have sought to minimize the display’s clear religious message, instead calling it “historic” and “artistic.”
The Rev. Anderson, himself an alumnus of the high school, called the mural “inappropriate” and said: “Any prayer adopted by a government agency crosses the line to state sponsored religion.” Rabbi Stein added that the prayer “has an exclusionary effect on those who are not religious and also on those whose religious practices differ from its language, format, and images. While the prayer is written with the hope of being non-denominational, Jewish prayer would not use the expression ‘Heavenly Father,’ and indeed for many Jews, this phrase feels Christian.”
ACLU attorney Labinger noted: “It is always difficult to be that one person who steps forward to challenge an exclusionary practice or message and face the majority response--your objection is ‘ruining it for the rest of us.’ But that is the genius of the First Amendment, that we have freedom to practice whatever religion we choose, or none at all, and that Government should not be taking sides, particularly in our public schools.”
Steven Brown, RI ACLU executive director, added, “Members of small or unpopular religions, and people of no religion, should not be cast as outsiders by a government that is supposed to represent all of its citizens regardless of religious belief. Just as important, the First Amendment was designed to protect the majority religion from being politicized and trivialized by government. This case demonstrates the timeless importance of both of these principles.”
From the Desk of the Executive Director
In 2000, Rhode Island became the first state to pass a law, promoted by the ACLU, requiring all police departments to collect traffic stop data in order to objectively analyze the problem of “driving while black.” When that data documented that racial minorities were much more likely than white drivers to be both stopped and searched, the General Assembly passed another law in 2004 to explicitly ban racial profiling and collect more data.
Passage of those two laws was hard-fought. When the data continued to show significant racial disparities, the ACLU, working with dozens of community groups, introduced in 2007 a comprehensive racial profiling bill. Not surprisingly, police representatives adamantly opposed it.
This year, after an incredible amount of give and take, both sides appeared to agree on compromise legislation. Yet a week after reaching this agreement, the state Police Chiefs Association reneged and withdrew their support.
Passage of this bill would not have miraculously ended the deep-rooted problem of racial profiling. But it would have been an important step in bridging the gap of mistrust that exists between the minority community and the police. By reversing themselves, the chiefs have, unfortunately, only reconfirmed why that mistrust exists. But it has only reenergized us all to fight even harder for the bill’s passage.
Community Groups Push for Comprehensive Racial Profiling Bill; Police Chiefs Reject It
With the support of more than two dozen community and civil rights organizations, three teenage victims of racial profiling spoke at a news conference to stress the urgent need to pass legislation designed to strengthen state laws against racial profiling. The victims described how that practice erodes trust between police and the minority community.
At a hearing before House Judiciary Committee, this month, the head of the R.I. Police Chiefs Association (RIPCA) announced that the chiefs had reached an agreement on compromise language. This was the result of painstaking, intense and lengthy negotiations between the community groups and leaders of RIPCA. However, a week later, as this newsletter went to press, the Association reneged on the compromise and instead voted to oppose the revised legislation. The coalition against racial profiling was planning to hold an emergency meeting to discuss how to proceed in light of this about-face by the police.
The legislation, sponsored by Rep. Grace Diaz and Sen. Rhoda Perry, seeks to reduce police practices that lead to profiling by standardizing requirements for traffic stops. Among other things, the bill requires police to document in writing their “probable cause” and “reasonable suspicion” grounds for conducting a search and limits questioning of passengers when there are no grounds to suspect illegal activity. The bill also resumes statewide data collection on traffic stops. A separate provision is specifically aimed at protecting young people from profiling on the streets, by barring police “consent searches” of juveniles.
Speaking at the news conference to describe their experiences were Channy Neou, a 20 year old Cambodian man from Providence who has had many experiences being racially profiled; Johanna German, a 17 year old Latina and Classical High school student; and Brian Capcap, a 17 year old Filipino student at Adelaide High School. They are involved in the youth community groups PrYSM and Youth4Change. Also speaking was longtime civil rights activist Onna Moniz-John, an East Providence resident who, along with her family, has been the victim of many incidents of racial profiling.
Representative Diaz emphasized that “the elimination of racial profiling would greatly benefit police relations with minority communities. It has been over a decade since the first data collection law was passed in Rhode Island. The issue in our community is no longer about counting numbers – it’s about reducing racial profiling. We know for a fact that racial profiling is occurring. The question for us all is whether we are prepared to continue to do something about it.”
Among the many groups supporting the legislation are the Univocal Legislative Minority Advisory Coalition, Providence Youth Student Movement, the R.I. Commission for Human Rights, International Institute of RI, the Olneyville Neighborhood Association, the American Friends Service Committee, Urban League of R.I., and the National Association of Black Law Enforcement Officers.
ACLU Criticizes Court Ruling Upholding Controversial Search of Central Falls Soccer Students
The RI ACLU criticized a 2-1 decision issued by the U.S. Court of Appeals, rejecting the appeal by a group of Central Falls High School students subjected to a controversial search by Coventry Police in 2006. Over the dissent of Judge Rogeriee Thompson, the majority ruled 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 Rhode Island ACLU had filed a “friend of the court” brief supporting the students’ appeal.
Leaving the field after a soccer match with Coventry High School, the Central Falls soccer team, which was virtually all Latino, was followed by an angry crowd accusing them in loud, sometimes racially tinged, tones of stealing iPods and cell phones from the boy’s locker room, even though a security guard had been present while they were in there. Each player was lined up facing the shouting mob. Officers searched their bags, and asked some of them to empty their pockets, lift up their shirts, and stretch open their pants. No stolen items were found. The court majority held that the police were entitled to immunity from suit because they did not violate clearly established law in conducting the search. The ACLU said the decision “sends a very discouraging message to minority youth in the state.” A petition for rehearing has been filed.
North Kingstown Political Sign Case Resolved
Various constitutionally problematic provisions in North Kingstown’s political sign ordinance have been rendered unenforceable under a consent agreement that has been filed in federal court, settling a lawsuit that the Rhode Island ACLU filed last year against the Town.
The suit, filed by ACLU volunteer attorney Richard A. Sinapi, was on behalf of 2010 independent Congressional candidate John O. Matson, who was forced to take down a number of his political signs after being notified that they violated the town’s zoning restrictions on the size and placement of such signs.
A major component of the ACLU’s lawsuit was that the ordinance treats political signs in a discriminatory manner, allowing other types of signs in both residential and commercial areas to be larger and stay up longer. This, the suit argued, “impermissibly infringes on freedom of speech based on content and is therefore unconstitutional on its face.”
Under the consent judgment approved by U.S. District Judge Mary Lisi, the Town has agreed it will not subject political signs “to more stringent size or other limitations than that imposed on non-political signs.” The judgment also has the effect of voiding a provision allowing political signs to be posted only within 60 days of an election. The judgment further includes an award of $10,560 in attorney fees.
2011 Mid-Session Legislative Report: A Look at Anti-Civil Liberties Legislation
As this newsletter went to press, the General Assembly had yet to see committee votes on the vast majority of legislation under consideration this year. Although the week before the General Assembly’s spring break is customarily the deadline for bill consideration, an unexpected number of snow days and other factors prompted the House to set their hearing deadline for the very end of April. As of press time, the Senate had virtually no committee hearings scheduled before the break. As such, the major civil liberties battles of the session remained impossible to gauge, even with the session more than halfway completed. The end of the session is thus likely to be even more hectic than usual.
In our last newsletter, we looked at several of the proactive civil liberties bills under consideration this year; in this edition, we will focus on some of the more problematic legislation that the Affiliate is battling.
Health Exchange (S 0087A)
As is the case every session, several abortion-related bills on both sides of the debate were introduced this year. However, the real battle will be over a distressing amendment added at the last moment to Senate legislation establishing a framework for state compliance with the new federal health care reform law. The amendment would essentially bar health plans participating in the state’s health insurance exchange from providing abortion coverage, except in instances of rape or incest, or where the mother’s life is in danger. Abortion is a part of basic health care for women, and this legislation would take away the coverage that many women already have, forcing them to pay out-of-pocket for special coverage or for a procedure many cannot afford. The ACLU and other supporters of reproductive freedom are actively working to remove this amendment and ensure that the legislation which passes will truly protect all elements of Rhode Islanders’ health.
Criminal Record Checks
The ACLU has already testified against several bills this session which would authorize fingerprint-based national background checks on employees and volunteers in a wide variety of settings. In some cases, employees would be required to pay for their own background checks, and employers would be privy to an applicant’s entire criminal history, rather than just the existence of information that might disqualify them from consideration. The U.S. Bureau of Justice Statistics has acknowledged that the database used to complete these checks is riddled with errors, potentially disqualifying individuals who have no relevant criminal convictions. Evidence also suggests that when criminal background checks are available, they are used as a substitute for a thorough general reference check, which would expose more than a past criminal history and give employers a much more accurate idea of an applicant’s potential success in future jobs.
Voter ID (H 5680, S 0400)
The Affiliate testified against legislation requiring voters to present photo identification before casting a ballot. Studies indicate that requiring voter ID acts as a poll tax, and places an unacceptable burden on the poor, elderly, disabled and minority voters who may not have photo identification or the resources available to obtain the necessary documents to obtain one. The ACLU argued that voter ID legislation is an attempt to fix a non-existent problem of alleged voter impersonation. The legislation has been considered for the past several years, and passed the House two years ago.
Underage Nightclubs (H 5548, S 0488)
For the third year in a row, debate continues over whether adults ages 18-20 should be permitted in nightclubs. Currently, these young adults are permitted to patronize establishments at which alcohol is served, in part because Rhode Island law generally prohibits age discrimination against anyone 18 and older. The ACLU has argued that venues providing live entertainment, dancing, and other activities already have sufficient measures in place to prevent underage drinking, and that discrimination against these individuals is neither effective nor permissible.
Bullying (H 5941, S 0732)
A variety of legislation has been introduced in response to the increasing focus on bullying and cyber-bullying within the schools. The Affiliate has long been concerned with the potential of such legislation to infringe on the free speech rights of students. The ACLU maintains that education, not criminalization, is the most effective way to handle bullying within the schools, and will continue to monitor this legislation to prevent interference with students’ free speech rights.
Sex Offender Registration (H 5129)
The federal Sex Offender Registration and Notification Act (SORNA), which the Attorney General is seeking to implement in Rhode Island, includes overly stringent notification requirements, lasting consequences for juvenile offenders, and retroactive registration for former offenders. In light of the burdens and tremendous fiscal costs associated with SORNA’s implementation, only four states have thus far opted to come into compliance with the federal law. The Affiliate has testified that notification laws ignore the reality that over 90% of sex offenses are committed by family members or friends, not strangers, and that detailed registration and notification requirements are thus a costly and punitive diversion that deters rehabilitation and reintegration of sex offenders.
Prison “Good Time” (H 5990, S 0753)
The ACLU is lobbying against Attorney General legislation to dramatically alter the ability of prisoners to accrue “good time” days that shorten their sentences. In addition to promoting good behavior within the prisons, “good time” provides an important incentive to prisoners to participate in treatment and behavior-modification courses, preparing them for life outside of prison and helping to reduce their recidivism rates. The bill would significantly undermine a law that was enacted only three years ago with support from the Governor, Attorney General, Department of Corrections and Parole Board, to address severe overcrowding issues at the prison at that time. The bill is in direct response to the imminent release of Michael Woodmansee, who has served 28 years for the murder of a child. The DOC and Parole Board have registered strong opposition to the bill, as have the ACLU and the Public Defender.
Internet Subpoenas (H 5093, 0781)
The ACLU has, since 9/11, been working against troubling legislation which would allow law enforcement to obtain, in secret and without a warrant, subscriber information from Internet service providers. The ACLU is facing an uphill battle this year to prevent the bill’s passage.
DNA of Arrestees (H 5132, S 0120)
The ACLU, along with the Office of the Public Defender and the Urban League, testified in opposition to legislation which would mandate the collection of DNA from any person merely arrested for certain felonies. This practice would fly in the face of the presumption of innocence , and would be a dangerous step towards creation of a DNA database cataloging every person in the nation. This legislation failed in 2010, but bill sponsors are pushing for its passage this session.
Ignition Interlocks (H 5678, H 5506, S 0734)
The Affiliate continues to testify against legislation requiring the installation of ignition interlocks on vehicles owned by DUI offenders. The requirement circumvents judicial discretion, and places an undue burden on other drivers of the vehicle who have not violated the law.
E-Verify (H 5043, S 0337, S 0345)
The year got off to a positive start when, on his first day in office, Governor Chafee signed an executive order lifting the requirement that the state and its contractors use the deeply flawed E-Verify program to check the immigration status of workers. Shortly after the executive order, the ACLU testified in front of House and Senate committees on legislation to reinstate and expand the use of this program which, by the Social Security Administration’s admission, contains 17.8 million errors. The program is also more likely to falsely identify foreign-born lawful workers as being ineligible to work, leading to racial and ethnic discrimination in the workplace. The ACLU and immigrant rights’ groups will continue lobbying against the bill.
Meeting Notices (H 5064, S 0068, S 0231)
The ACLU and other open government groups testified in opposition to several bills which claim to ease the financial burden on towns and school districts by eliminating the requirement that they post legal notices and committee meeting announcements in newspapers, instead allowing them to post solely on the internet. The Affiliate argued that this disenfranchises households on the other side of the “digital divide” who do not have regular, reliable Internet access. The ACLU is working with the bill sponsors to expand the types of newspapers which would be able to print such announcements, providing school districts with a wider range of cost-effective options.
Stay Connected: Sign Up for E-Alerts
With the legislative session in full swing, sign up for our E-Alert system. E-Alerts notify you by email when there are important bills that need your opposition or support. Contacting legislators is an incredibly important step you can take! Sign up at www.riaclu.org.
DHS To Revise Notice Procedures for Medicaid Waiver Program
Responding to a complaint from the ACLU and R.I. Legal Services, the Department of Human Services has agreed to revise the notice it provides people participating in its Personal Choice Medicaid waiver program.
Last fall, DHS changed the way it computes the budget allotted to those enrolled in the program, which allows severely disabled people who would otherwise need nursing home/institutional care to live at home and obtain an array of services there. Rather than provide any individualized notice to clients about the effects of the change, DHS instead sent a boilerplate notice simply announcing that there might be upcoming changes in recipients’ budgets at an unspecified future date. Raising due process concerns, RI Legal Services and the ACLU wrote DHS officials to point out the inadequacy of the notices, and asked the agency to send out new notices to all participants with individualized information about the changes and information about their appeal rights. The agency has now agreed to do so, averting the need for litigation.
Roger Williams Students Work on Court Interpreter Project
Collaborating with the RI ACLU, Roger Williams Law School students participated in a court monitoring project last month that documented continued problems with access to interpreters in various courts in the state.
In 2004, the RI ACLU filed a complaint with the U.S. Justice Department’s Civil Rights Division against the state for failing to provide adequate interpreter services in the Rhode Island courts. Since then, the Department of Justice has been investigating the claim and in 2010 it issued a memorandum requiring the Courts to prepare and execute a plan of compliance or risk losing federal funding. The information gathered by the students will be forwarded to the DOJ for its investigation. The project was organized by longtime activist Shannah Kurland.
Board of Regents Adopts High Stakes Testing Graduation Regulations; Postpones Implementation
In March, fourteen organizations called on the Board of Regents for Elementary and Secondary Education to refrain from voting on revised regulations governing high school graduation requirements, saying that the revised proposal “includes very significant changes from the proposal presented for public comment, raises more questions than it answers, and creates new and additional concerns.” That request was rejected, although, after three contentious public hearings, the Board agreed to postpone for two years the implementation of high stakes testing requirements and establishment of a tiered diploma system. However, the organizations had called it critical that the public have further opportunity to comment on the new proposal because of numerous changes made to the regulations in the interim.
Although high stakes testing has been put off for two years, the ACLU and various children’s rights organizations fear that the final regulations do not provide the systemic accountability needed to ensure that school districts will provide adequate support to students to gear up for the new mandate. The groups are continuing to meet, and hope to bring this issue back for further discussion in light of the appointment of four new members to the Regents this month. Among the other groups participating in the advocacy effort to prevent high stakes testing are the Children’s Policy Coalition, Rhode Island Teachers of English Language Learners, the Mental Health Association of RI, RI Disability Law Center, the Autism Project, RI Legal Services, Urban League of RI, Progreso Latino, Parent Support Network of RI, the Center for Hispanic Policy and Advocacy, Young Voices and the George Wiley Center.
ACLU Claims New Providence Lobbying Ordinance Will Chill Free Speech Activity
The ACLU has raised concerns that a new Providence ordinance regulating lobbying activity could have a significant and adverse impact on the advocacy activities of local community and non-profit organizations. The ACLU acknowledged that the act was well-intentioned, but said its far-reaching scope “will deter and chill robust community advocacy.”
The ordinance establishes a broad “lobbying registration” requirement on organizations, compensated individuals and some volunteers who interact with city officials. Under the ordinance, any person deemed a “lobbyist” would need to register with the City, obtain a photo ID and wear it while at City Hall or at other city offices, pay an annual registration fee of up to $150, and file detailed quarterly lobbying reports. Individuals could face potentially stiff fines for violations.
The ordinance applies to virtually any communication to just about any official of city government, including the Mayor, his staff, a City Council member, the police chief or the school superintendent. Further, in light of the broad definition of “lobbyist,” a large percentage of community groups in the City and their staff and volunteers could be subject to the requirements of this ordinance and its penalties. For example, if an organization shares with a City Council member or any city official a report for the purpose of seeking City action on that issue; if the head of a community group writes a letter on behalf of the organization in support of or in opposition to any proposed ordinance or resolution or decision by a city official; or if an advocacy group sends City Council members a copy of the group’s newsletter, he or she is “lobbying.”
The ordinance also prohibits a person from engaging in any lobbying activity, as it is broadly defined, unless and until he or she has registered as a lobbyist. Thus, if a community group wants to immediately respond to an incident in the city or a news article about a pending City Council action by writing a letter to the Mayor or the City Council about it, the organization will violate the ordinance if it has not first registered with the City before sending the letter. The ACLU is talking with both community groups and city officials about possible ways to address these concerns, either through amending the ordinance or through litigation.
ACLU Testifies on State Agency Open Records Policies
Testifying at a public hearing, the Rhode Island ACLU criticized proposed state regulations that would govern access to public records at the five major agencies encompassed by the state Executive Office of Health and Human Services, (EOHHS). The ACLU called the proposed rules “minimalist” and dismissive of the public's right to know. According to the proposed regulation, state employees would “make every reasonable effort to honor” requests for public documents, but fulfilling such requests “shall not in any way interfere with the ordinary course of business.”
Joined by five other open government advocates, the ACLU said that the proposal suggests that making open records available to the public should not be “the ordinary course of business” for state agencies. The ACLU asserted that responding to requests for public documents under the Access to Public Records Act (APRA) should not be treated as if it is a nuisance; instead, complying with APRA means “agencies have a legal obligation to provide records to the public upon request.” ACLU cooperating attorney Carolyn Mannis said: “The provisions of APRA are not some mere inconvenience or annoyance imposed on state agencies; they are an integral part of an agency’s duty to do its work with transparency and openness.”
The ACLU also argued that the proposed regulation’s requirement that the public pay for requested documents in advance could “inappropriately delay access to public documents.” Finally, the ACLU urged that the regulations include a requirement that state employees handling APRA requests be trained on their responsibilities under the law. As this newsletter went to press, the EOHHS issued a final set of the regulations that incorporated some of the changes that the ACLU and others had recommended, including deletion of the “ordinary course of business” provision and allowing payment of copying costs to be made at the time of delivery of the documents.
Welcome to Hillary Davis
The Affiliate extends a belated welcome to Hillary Davis, who started work in January as the RI ACLU’s new Policy Associate. Hillary is a graduate of California State University, Northridge and obtained a Masters of Public Policy at the University of Michigan. She volunteered at the ACLU of Southern California and worked in the non-profit social services sector for six years. She has been acclimating herself to the strange world of Rhode Island politics, and is enjoying her role as a daily lobbying presence at the State House.
Tune Into the ACLU's Monthly Cable Access Show
Every month the RI ACLU’s cable access show “Rights of a Free People” features a discussion with experts on key civil liberties issues. Check it out! Playing in April: Students' Rights
Attorney Richard Sinapi (Sinapi, Formisano & Co.) and Ian Eppler (President, Brown University Chapter of the ACLU) discuss students' rights in Rhode Island, including current RI ACLU cases and the activities of Brown's ACLU chapter.
- 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)
Interested in Hosting a House Party?
House parties offer an opportunity for ACLU members to socialize with each other, and give potential ACLU members an opportunity to learn more about the ACLU’s work. Last year, the Affiliate held successful events in Pawtucket, Woonsocket and Barrington. If you would like to learn more about hosting an ACLU house party in your community, please contact Meg Armstrong at the Affiliate office at 831-7171.