September/October 2013 - an ACLU of Rhode Island Newsletter


Protecting Civil Liberties in Rhode Island for Over 50 Years


September/October 2013 Newsletter

Volume: XIX, Issue Number: 4

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Newsletter Contents

Special Issue: Civil Liberties and the Schools

This issue of the newsletter is devoted to highlighting some of the vast amount of work the ACLU of RI has been engaged in the past few months addressing various civil liberties issues related to public schools and the rights of students. Like the dozens of other civil liberties issues we are involved in, the ACLU has performed this work with all the tools at its disposal: litigation, lobbying, and educational outreach.

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ACLU Sues Board of Education Three Times Over Secrecy in "High Stakes Testing" Debate

In the span of two months, the ACLU of RI has won one lawsuit, and has filed two other actions, against the RI Board of Education for violating open government laws in dealing with the Board’s controversial “high stakes testing” mandate. The ACLU called the Board’s lack of transparency on the divisive issue a “refutation of the openness in government that Governor Chafee has so often promoted.”

Under the controversial policy, taking effect for the first time with this year’s high school seniors, students who do not get a “passing” grade on a standardized written test known as the NECAP will not get a diploma. All three ACLU lawsuits revolve around the Board’s action (or non-action) in response to a formal petition filed by seventeen organizations, including the ACLU, calling for a public hearing on repealing the “high stakes testing” graduation requirement.

The most recent lawsuit, scheduled for a court hearing in November, challenges the Board’s debate and vote in secret to reject the petition. The ACLU’s complaint, filed by volunteer attorneys Marc Gursky and Elizabeth Wiens, claims that the secret discussion violated the Open Meetings Act, and asks the court to declare the vote null and void, impose a $5,000 fine against the Board for willfully violating the law, and require the Board to reconsider the petition on its merits.

Ironically, the Board held the secret debate and vote after going into closed session to discuss the ACLU’s first lawsuit, which challenged the Board’s initial refusal to consider the petition at all within thirty days, as the state’s Administrative Procedures Act required.

Immediately after reconvening into open session, however, Mancuso announced that the Board had not only discussed the lawsuit, but had also discussed the petition itself in its closed session and had voted, 6-5, to reject the petition. The lawsuit notes: “No exemption in the Open Meetings Act authorizes discussion in closed executive session of a rule-making petition filed pursuant to the Administrative Procedures Act, nor was any such exemption cited by the Board.”

The Board’s secret discussion of the petition took place only a month after the Board was chided by a court for seeking to violate the open meetings law for an- other discussion of the issue. In that instance, ACLU volunteer attorneys Miriam Weizenbaum and Amato DeLuca sued the Board after its chair, Eva-Marie Mancuso, announced that the Board would hold a retreat behind closed doors to discuss the high stakes testing issue. At an emergency hearing on that suit, Judge Daniel Procaccini ordered that it be held in public.

As a result of the high stakes testing requirement, scheduled to take effect in 2014, approximately 4,000 students face the risk of not graduating next year because of their scores on the test. Yet to this day, despite repeated pleas from parents, students, community groups, and even the General Assembly, the Board has refused to publicly discuss the requirement. Governor Chafee, who appointed the Board, has remained silent throughout the recent debate and litigation.

Numerous questions have been raised about the validity of the NECAP as a high stakes testing tool, and the significant amount of class time lost teaching to the test. In fact, the Department of Education supported legislation this year that authorized schools to yank students out of core classroom activities to prep for the test if it was deemed to be in the student’s “best interest.”

The ACLU, working with numerous other organizations, is considering addition- al steps to prevent implementation of the high stakes testing requirement.

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ACLU Report Documents Over-Suspension of Youth, Racial Minorities, in R.I. Schools

The ACLU of Rhode Island has issued a report, analyzing eight years of data, showing that in all school districts across Rhode Island, black and Hispanic students are suspended at rates substantially higher than their representation in the student population, while white students are suspended much less often than their representation predicts. Worse, the disproportionate suspensions are often for minor behavioral in- fractions and begin in elementary school.

The ACLU’s examination of school discipline data collected by the Rhode Island Department of Education between 2004 and 2012 also concludes that suspensions are routinely overused as punishment against students statewide, and that the overuse of suspensions generally also begins in elementary school. The Affiliate is hopeful the report will lead to passage of legislation next year to mitigate this serious problem.

ACLU Policy Associate Hillary Davis, author of the report, said: “Out-of-school suspensions are used too often to punish infractions that in no way justify the long-term consequences that suspensions can carry. For minority students, reconsideration of the use of out-of-school suspensions is particularly critical.”

A summary of the report’s findings appears later in this newsletter. The full report can be found at

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From the Desk of the Executive Director

For all the rhetoric from administrators and politicians about the importance of education, it is a true puzzlement to routinely see how poorly we treat students.

We kick them out of school for days at a time for the most trivial of “infractions,” and do so in ways that reinforce, however unintentionally, discriminatory stereotypes; we reductively base twelve years of their education on their score on a single test; we let the agency responsible for the key policies governing our schools hide from public oversight; and we let schools monitor students’ private lives in ways adults would never stand for. And those are just the problems cited in this newsletter!

U.S. Supreme Court Justice John Paul Stevens once noted: “The schoolroom is the first opportunity most citizens have to experience the power of government ... The values they learn there, they take with them in life.” That is why the ACLU’s work on students’ rights is so important, and why, with your support, we will continue to make it one of our priorities.

-- Steven Brown

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School News Briefs

* In the latest example of “zero tolerance” run amok, the ACLU has expressed support for the family of a twelve-year old Coventry middle school student who is appealing his three-day suspension for the alleged offense of bringing a small gun keychain to school. Over the years, the ACLU has watched and assisted young children suspended for similar “misconduct,” such as possessing a toy ray gun and bringing a butter knife to school to cut cookies.

* In response to an ACLU complaint, the RI Department of Education has agreed to rescind a new teacher licensure application form that raised serious privacy and discrimination concerns. The form had required teacher applicants and those renewing their license to indicate whether they had ever been arrested for any criminal offense. In light of both the presumption of innocence and the discriminatory impact that examining records of arrests not followed by convictions can have, state law has long prohibited employers from making such an inquiry.

* As this newsletter went to press, the ACLU was investigating complaints that the Department of Education has contracted with a private vendor to engage in the real-time monitoring of Rhode Island students’ social media activities. If so, this would amount to an extraordinary intrusion on the privacy right of students, and a troubling expansion of school officials’ efforts to keep track of students’ lives 24 hours a day and potentially punish them for it.

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Highlights from the ACLU's Report on the Over-Suspension of Students

Among the major findings of the report, "Blacklisted: Racial Bias in School Suspensions in Rhode Island," are the following:

Overuse of Suspensions
  • Despite significant evidence that out-of-school suspensions are counter-productive and carry long-term unintended consequences, on average more than twelve thousand students lose more than 54,000 school days each year to suspensions. Often, these students are suspended for relatively low-risk behavioral infractions such as “Disorderly Conduct” or “Insubordination/Disrespect.”
  • The overuse of suspensions extends to the lowest grades. Almost 1,400 elementary school students were suspended in the last year; 173 of them were in the first grade.
Racial Disparities in Suspensions
  • Nearly all of Rhode Island’s public school districts consistently suspend black students at rates disproportionate to their representation in the student body, and the vast majority of school districts over-suspend Hispanic students. Fifteen districts disproportionately suspended black students in every single year studied, while eight did the same for Hispanic students. No school district or charter school disproportionately suspended white students on any regular basis.
  • Disparities not only begin at an early age, but are particularly pronounced in elementary school. While black high school students are twice as likely as white high school students to be suspended, a black elementary school student is six times as likely as a white elementary school student to be suspended from school. Suspension is three times as likely for a Hispanic elementary school student than a white elementary school student.
  • Schools should minimize the use of out-of-school suspensions, applying them only when necessary to protect the safety of other students or when other attempts at correcting disruptive behavior have failed.
  • School districts should examine annually their discipline rates for any racial or ethnic disparities, make this information available to parents and the public, and identify ways to eliminate any disparities in the future, including through increased teacher and administrator training and supports.
  • Schools should make their policies and procedures regarding discipline of students easily accessible, and ensure that punishments are clearly and evenly established for various offenses.
  • The Department of Education should investigate and promote the use of alternative evidence-based disciplinary methods, including positive behavior interventions. 
The ACLU will be proposing the reintroduction in January of legislation that would incorporate a number of those recommendations into state law.

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Could You Graduate?

In October, Rhode Island’s high school juniors (and seniors who did not pass during their junior year) sat down for their NECAP exam, many with serious fears that the outcome of this test could keep them from obtaining a diploma despite any of their other school work and successes to the contrary.

A few sample NECAP questions from previous tests are available here. Keep in mind that getting one additional question right could mean the difference between a student getting a diploma or not graduating. How would you do? For more information on the high stakes testing issue and the ACLU’s work on it, visit

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Recent ACLU Events

The ACLU has also been busy celebrating our civil liberties. Members and guests joined us at a number of events discussing and enjoying the freedoms the ACLU works hard to protect. For more information on our upcoming events, visit

"How Christian an Understanding?"

On June 21, the RI ACLU, the Newport Historical Society, and the RI Council for the Humanities cosponsored a discussion of Rhode Island's Founders and their intent regarding the separation of Church and State. Panelists John Barry, John Fea, Michael Feldberg, and Daniel Cowden discussed the 1663 Charter, and separation of Church and State today.

2013 Legislative Wrap-Up and Dessert Evening

On August 7, Representatives Edie Ajello and Maria Cimini, Senator Gayle Goldin, Planned Parenthood of Southern New England Public Policy and Advocacy Director Paula Hodges, and RI ACLU Policy Associate Hillary Davis discussed how civil liberties fared in the 2013 legislative session. The Affiliate extends special thanks to the local businesses whose very generous donations made the evening so delicious: The Coffee Exchange, Stop & Shop, Trinity Brewhouse, Au Bon Pain, Whole Foods, Seven Stars and Sin.

"Night of Dangerous Songs"

On September 21, the Affiliate held our fourth "Night of Dangerous Songs" at Stone Soup Coffeehouse in Pawtucket. Guests listened and danced to a wonderful performance by Rhode Island's own Superchief Trio, all in support of the ACLU's tireless advocacy of behalf of Rhode Islanders' civil liberties.

Books: Banned, Challenged & Restricted

On September 26, the ACLU celebrated the freedom to read with the East Providence Library and a dramatic presentation by Living Literature actors Barry Press, Sharon Carpentier and Kelly Seigh of banned works. Honoring 2013 Banned Books Week, the audience heard excerpts from banned works, including some defended in court by the ACLU, and discussed the ongoing censorship of books - and, more frequently, the Internet - in public and school libraries nationwide.

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ACLU Annual Dinner on Friday, November 8th

Honoring the Providence Student Union

It's not too late to purchase tickets to our annual dinner meeting.

In recognition of their tireless peer-based advocacy for the rights of students, and particularly their inspiring and creative campaign to end high stakes testing, the ACLU of RI is pleased to announce the Providence Student Union as the 2013 "Raymond J. Pettine Civil Libertarian of the Year" at our annual dinner on November 8th at the Providence Biltmore.

The evening's guest speaker will be Amie Stepanovich, Director of the Domestic Surveillance Project at the Electronic Privacy Information Center, whose very timely topic will be the state of domestic surveillance today, how it affects your life, and what can be done to protect our privacy now and in the future.

For more information, or to purchase tickets, call the ACLU of RI at (401) 831-7171, or go online at We hope to see you there!

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