Tag Archives: ACLU

Constitutional Rights At The Schoolhouse Door

As regular readers of this blog and my former students know, I  approach my course on “Law and Public Affairs” through a constitutional lens. There are some obvious reasons for that focus: many of my students will work for government agencies, and will be  legally obliged to adhere to what I have sometimes called “the Constitutional Ethic.” Due to the apparent lack of civic education in the nation’s high schools, a troubling number of  graduate students come to class with very hazy understandings of the country’s legal foundations.

Freedom of speech seems particularly susceptible to misunderstanding.

The first problem is that a significant number of Americans don’t “get” that  the Bill of Rights only restrains government. Walmart or the Arts and Entertainment Channel or (as one angry caller insisted when I was at the ACLU) White Castle cannot be sued for denying you your First Amendment Right to express yourself.

The most difficult concept for my students, however, has been the principle of content neutrality. Government can–within reasonable limits– regulate the time, place and manner of citizens’ communication, but it cannot favor some messages over others. (I used to illustrate that rule by explaining that city ordinances could prohibit sound trucks from operating in residential neighborhoods between the hours of 10 pm and 7 am, but could not allow trucks advocating for candidate Smith while banning those for candidate Jones. I had to discontinue that example when I realized that none of today’s students had the slightest idea what a sound truck was…)

One example I did continue to use was public school efforts to control T-shirts with messages on them. Private schools can do what they wish–they aren’t government–but public schools cannot constitutionally favor some messages over others. This is evidently a lesson that many Indiana schools have yet to learn. A brief article from the Indianapolis Star reports that the ACLU is suing a school in Manchester, Indiana, after a student was forced by administrators to go home for wearing a T-shirt with the text “I hope I don’t get killed for being Black today.”

According to the Complaint, students at the school are allowed to wear T-shirts with Confederate flags and “Blue Lives Matter” slogans. It describes the plaintiff, who is identified only by his initials, as one of the few Black students at the school.

“Schools cannot selectively choose which social issues students can support through messages on their clothing,” Ken Falk, the ACLU of Indiana’s legal director, said in a prepared statement on Monday. “Students do not lose their constitutional rights at the schoolhouse doors. The refusal of the school to allow D.E. to wear his t-shirt is a violation of his right to free speech.”

The school would be within its rights to ban all “message” T-shirts (although I can hear the grumbling now). Favoring certain messages over others, however, is a violation of the principle of content-neutrality –a core precept of the Free Speech Clause that prohibits government from favoring some messages over others.

The courts give school administrators a good deal more leeway than other government actors, on the theory that providing an educational environment requires a larger measure of control than would be appropriate for adults. But there are limits; as Ken Falk noted, and the Supreme Court affirmed in Tinker v. DeMoinesstudents do not leave their constitutional rights at the schoolhouse door.

Far too many school administrators are more focused on exerting control than on modeling or transmitting basic constitutional values. Too many public schools are operated as totalitarian regimes–environments that stress compliance and group-think, rather than teaching critical thinking, acquainting young people with the values of a democratic society, and encouraging civic debate and engagement.

When school officials themselves routinely break the rules, is it any wonder so many young people graduate still unaware of them?

 

The ACLU, Chuck E. Cheese and The Trump Administration

I cried reading the New York Times last Sunday.

It was an article titled “Can the ACLU become the NRA of the left?”

I spent six years as Executive Director of Indiana’s ACLU affiliate, and took a great deal of pride in the organization’s nonpolitical bona fides. (As the only Republican Executive Director at the time, I was particularly supportive of that nonpartisanship.) The Times article focused upon the organization’s determined, effective–and very political– opposition to Trump.

If Trump didn’t pose an obvious and existential threat to civil liberties, democracy and the rule of law, I would be distressed.

It was the description of a family separation case that made me cry.

Nearly a year ago, fearing for their lives, Ms. L. and her daughter, S., who was 6 at the time, fled their small village in the Democratic Republic of Congo. A group of nuns gave them money and food and helped them flee the country. For the next several months, they slept outside most nights or sometimes on the floors of empty buildings they had been pointed to along their route north toward the United States. They cleaned themselves as much as possible in public restrooms. They scavenged for discarded food from restaurants. When they finally presented themselves at the crossing in San Diego, Ms. L. saw the American flag and told her daughter they were going to be O.K.: “We have arrived.”

This was on Nov. 1, 2017 — months before the government denied it was separating children from their families, then said it was only families who were caught crossing the border illegally, then announced it was all part of a zero-tolerance policy. Ms. L. entered legally at the port of entry at San Diego. In broken Spanish she had picked up along the way, she told the border agents she was seeking asylum in the United States. The Border Patrol referred her to ICE, and after four days in temporary housing, ICE agents met with her and S. and asked the girl to go with a guard into another room. Once she was gone, they handcuffed Ms. L., who hadn’t committed a crime. She listened to her daughter beyond the door, screaming and pleading with the guards not to take her away. S. was transported immediately to a facility for unaccompanied minors in Chicago. Ms. L. was detained in California with roughly 1,500 other detainees.

Two weeks later, on Nov. 17, an asylum officer conducted what ICE calls a “credible-fear screening” and determined that Ms. L.’s story met the “credibility threshold,” which would normally mean she could enter the country legally and live with her daughter in a shelter while she awaited a full asylum hearing. Instead, months went by, mother and daughter 2,000 miles apart, each in a place where no one else spoke their native Lingala. Ms. L. and S. spoke five or six times by phone, but the conversations were torturous for Ms. L., with S. sobbing on the phone and telling her mother how scared she was and her mother having no idea if she would ever see her again. “Chicago meant nothing to her,” Gelernt told me. “It might as well have been on the moon.”

In late January, Ms. L. appeared before an immigration judge without an attorney present. She hadn’t seen S. for nearly three months and was consumed with worry and despair. After questioning her, the judge ordered Ms. L. to be removed from the United States. Confused by what was being asked of her, she waived her right to contest her removal. When she returned to the detention center and recounted what happened, another detainee asked, “What have you done?” and explained that she was going to be sent to Congo. Ms. L. begged her fellow detainee to write a letter to the judge on her behalf. “Please don’t send me back,” she said. “I will be killed there.”

The Times article has much more detail–and I hope everyone will read all of it. The  ACLU represented the mother.

Here’s the paragraph that made me cry:

The next night, after I left, they were reunited in the shelter. I’ve spoken with Gelernt several times about the moment of their reunion, what he called the most emotional thing he’d experienced in 25 years of doing immigration work. Ms. L. stood near him waiting for her daughter on a worn marble staircase just inside the shelter’s front door. When the door swung open, she crouched and stretched her arms wide. S. stepped through the doorway and saw her, and the most beautiful smile spread over the girl’s face, Gelernt said. She toppled forward, and Ms. L. gathered her in her arms and fell back onto the marble stairs. The look on her face as she held her daughter was almost too emotional to witness. For the next minute they lay there, clinging to each other and rocking from side to side. The only sound in the hall was a low, rhythmic moan, punctuated by S.’s higher-pitched cry.

A federal court gave the administration thirty days to reunite parents with the 2000+ children it holds. The administration wants more time–because they can’t figure out who belongs with whom.

Which brings me to Chuck E. Cheese.

Chuck E. Cheese was after my parenting time, but my son and daughter-in-law assure me that the chain–which evidently makes its money from children’s parties–has a simple security protocol (“Kid check“) that ensures parents will leave with the children they brought.

Chuck E. Cheese can do what the incompetent Trump administration can’t.

It’s a meme for our time.

Free Speech Conundrums

A friend of mine–a very thoughtful observer of American life and culture–asked for my opinion of the ACLU’s reported decision not to represent Charlottesville protestors alleging violation of their free speech rights if the “speakers” were armed at the time.

I haven’t seen a detailed statement to that effect, but based upon what I know, I agree with it.

When I teach the free speech clause, I tell students it requires distinguishing between speech—defined as the transmission of an idea—and action. The government cannot prohibit or punish the articulation of a message; it can, however, justifiably prohibit or punish harmful actions.

It isn’t always easy to draw the line, to identify when a message or idea becomes something else.

I illustrate the dilemma by giving students a number of “scenarios” requiring that they  decide whether something was speech or intimidation, speech or fraud, speech or harassment, speech or the first step in commission of a crime ( the RICO arguments).

Assume that a 6’4″ muscular body builder tells a hundred pound 5’1″ woman “If you don’t let me [fill in the blank], I’ll beat you so badly you’ll be unrecognizable.” Assume, also, that he does nothing more–doesn’t lunge toward her, or otherwise make menacing moves–has he simply exercised his constitutionally-protected freedom of speech? Or is he guilty of threat and intimidation?

What’s the difference between a labor union picketing a store by marching on the sidewalk with placards, and anti-choice activists coming into a residential neighborhood with bullhorns and screaming from 2:00 a.m. to 7:00 a.m night after night in front of the home of the Director of Planned Parenthood? (True story.)

Can we draw a distinction between the speaker who says “I think we need to overthrow the government, and this is why,” and the one who tells a group of angry citizens “I’ve got the rifles outside in my truck! Everyone who’s with me come and get one and we’ll march on City Hall right now!”

As they used to say on Sesame Street, one of these things is not like the other. And by and large, the courts have understood the differences.

So I agree with the ACLU’s decision. (I am surprised; it seemingly breaks a long tradition of ACLU First Amendment absolutism.) In the real world, racist speech by an armed and confrontational White Supremacist crosses the line from protected expression to  criminal intimidation.

Permit me to offer an (admittedly imperfect) analogy: the ACLU supported the Supreme Court’s decision in Citizens United. I tend to be a free speech purist, and in the abstract, I agreed with the reasoning. But in the real world, that decision gives the rich and powerful permission to corrupt the political process and drown out the speech of others. I agree with former Indiana Supreme Court Justice Ted Boehm, who once told me that the original legal error, in his opinion, was Buckley v. Valeo’s equation of money with speech. I also agree with former Representative Lee Hamilton, who has said that the Supreme Court doesn’t need more Justices who graduated from Harvard Law; it needs more Justices who’ve run for County Sheriff.

The First Amendment protects the exchange of ideas, no matter how pernicious or hurtful or offensive. However, it does not protect actions that government can properly forbid, merely because those actions are accompanied by–or accomplished through–the spoken word.

It isn’t always easy to tell the difference, and we may not all agree on where the line should be drawn, but we have to draw it.

Truly Torn

Oh, Mike Pence! Sometimes you do confound me! Apparently, you’ve accidentally done something good!

According to a recent report in The Indiana Lawyer, 

Under the administration of Gov. Mike Pence, legal fees paid to the American Civil Liberties Union of Indiana have soared beyond $1.4 million and may approach $2 million, according to an Indiana Lawyer analysis. The $1.4 million total does not include fees that have been or will be paid in the current fiscal year ending June 30 or other legal fees ACLU claims are owed by the state. The fees represent the state’s payment of legal bills to parties who prevail in federal court on claims that government action violated their constitutionally protected civil rights.

Regular readers of this blog will remember that I spent six years (1992-98) as the Executive Director of Indiana’s ACLU. Those were rewarding years in so many ways–I learned so much and met so many wonderful people; it was so gratifying to be part of an organization that defended individual liberties…..

But I must admit that the most vivid memory I took with me when I left the ACLU for academic life was the constant pressure of fundraising. We had wonderful lawyers and dedicated clerical staff, and we all worked for a pittance–but I had to raise that pittance. The ACLU only has two sources of income: charitable gifts (fundraising) and legal fees.

And legal fees aren’t a given. The organization only gets legal fees when it wins a lawsuit and the law allows such recovery. Even when the organization is successful and the case is a fee-generating one, it can take years of litigation–first, the case itself, then a fight over fees…

So I really, honestly do want to thank Governor Pence for his largesse to Indiana’s ACLU. I mean, $2 million dollars is a windfall! It should allow the ACLU some much-needed “breathing room,” some assurance that it will “be there”–in a position to protect LGBT Hoosiers from discrimination, reproductive rights from theocratic lawmakers, public school students from government-imposed prayer, law-abiding citizens against official overreach…Well, you all get the idea.

Here’s another idea: Each time Indiana’s constitutionally clueless Governor and AG lose another case to the ACLU, let’s all send the ACLU a few extra dollars to celebrate. Because after November, I have a feeling this bonanza may dry up….and Jane Henegar, the wonderful current Executive Director, will have to resume her begging.

Send a few bucks to Indiana’s ACLU in “honor” of Governor Pence.

Constitution Day–And Other Public Service Announcements

September 17th is Constitution Day.

Bet you didn’t know that, because it hasn’t gotten very much attention. In 2004, Congress passed a law requiring that any school receiving federal funds of any kind provide educational programming on the significance of the signing of the Constitution.

Public school systems also have an obligation to mark the day, but many of them evidently struggle to find appropriate speakers and/or materials.

Fear not! The ACLU to the rescue!

The ACLU of Indiana will send trained volunteers into classrooms in central Indiana. (If you are an educator who wants to have this programming in your classroom this year, you can sign up on the organization’s website.) You can also download all sorts of helpful things–the Constitution, study guides and other materials, a classroom PowerPoint presentation and a wide variety of online resources, including games, curriculum, and videos.

As the website says, nothing is more important to our democracy than improving civic literacy. So spread the word.

Okay–so you aren’t a teacher, and you don’t need help marking Constitution Day.

If you live Indianapolis and feel the need to know more about the city and how it works before November’s municipal elections, have we got a deal for you!

The Center for Civic Literacy, the League of Women Voters, the Indianapolis Chamber of Commerce, the Urban League, the Indianapolis Bar Foundation, the Greater Indianapolis Progress Committee, the Indianapolis Neighborhood Resource Center, NUVO, WFYI, and several other civic organizations are working with the Indianapolis Public Library to sponsor three forums to be held at Central Library. They’re free and open to the public. You can learn more–and register to attend one or all of them– here.

Have you always wondered what a municipal corporation is? How the City-County Council works? Who pays taxes and who doesn’t? What our most pressing problems are? Where we see our City in 2020? Come find the answers to these questions and many others! Forums will be held on September 21st, October 6th and October 20th.

The series is called “Electing Our Future: What You Need to Know about Indianapolis Government In Order to Cast an Informed Vote.”

No politics, no spin, just basic information that will help you evaluate the priorities and capacities of the candidates for Mayor and Council who are asking for your vote.

See you there!