May/June 2015 Newsletter - an ACLU of Rhode Island Newsletter

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May/June 2015 Newsletter Newsletter

Volume: XXI, Issue Number: 3

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Newsletter Contents

ACLU Reports Find RI Schools Over-Suspend Students of Color, Students with Disabilities; Groups Call For Limits to Suspensions

Students with disabilities are suspended from school at rates more than twice as high, on average, as their representation in the student body, and racial disparities in suspensions reached their highest rates in a decade last year, according to two recent reports by the ACLU of Rhode Island. Joined with other groups, the ACLU is calling for the passage of legislation to address this major problem.

The reports analyzed nine years of suspension data provided by the Rhode Island Department of Education and found that the disproportionate suspension rates faced by racial minorities and students with disabilities begin in the earliest grades, and are often for low-risk behavioral issues that could be addressed in other ways. These disparities exist in schools across the state.

In its latest report on racial disparities, “Blacklisted,” the ACLU of RI found that while white students experienced a ten-year low in suspensions during the 2013-2014 school year, the combined suspension rate for Hispanic, black and Native American students was at its highest level. Despite an increasing consensus nationwide that suspensions should be reserved as discipline only in very serious circumstances, more than half of all suspensions were issued for “Disorderly Conduct” or “Insubordination/Disrespect,” a trend that started as early as elementary school for black students.

In its report “Suspended Education,” the ACLU found similar results for students with disabilities, who comprised almost one-third of all suspensions between 2005 and 2014. That is more than twice what is expected, given that they made up just 16% of the student body population on average during that time. The report further noted that students with disabilities are over-suspended at the highest rates when they are in elementary school—a particularly vulnerable time when they should be receiving much-needed individualized support, not punishment.

This reliance on suspensions to handle minor infractions has long-term consequences for students and contributes to the school-to-prison pipeline, pushing students out of the classroom and towards a potential life in the criminal justice system. The ACLU recommended passage of legislation limiting out-of-school suspensions to serious offenses, and requiring school districts to identify and address disparities in their suspension rates and investigate alternative evidence-based disciplinary methods.

Hillary Davis, the ACLU of RI’s policy associate and author of both reports, said: “Rhode Island’s schools have for too long relied on suspensions to address minor behavioral issues, disproportionately pushing students of color and students with disabilities out of the classroom instead of keeping them in school where they belong. Rhode Island must work to do better by them.”


ACLU, DARE Prompt Removal Of Illegal Questions About Criminal Records From Job Applications

More than a year after such questions were made illegal, at least eleven municipalities in the state were still asking job applicants about their criminal record on their employment application forms, an ACLU review of the twenty-nine municipalities that post those forms online recently found. The findings of the April review prompted the ACLU and Direct Action for Rights and Equality (DARE) to send letters to those municipalities  – from Burrillville to Warwick to Narragansett – asking them to promptly remove those questions. Ten of the eleven quickly complied.

In 2013, the General Assembly amended the state’s Fair Employment Practices Act to provide that questions about a person’s past criminal convictions generally could not be included on job application forms and could instead only be asked at or after “the first interview.”  This  “ban the box” law is designed to ensure potential employees are screened based on their qualifications, and not automatically excluded from consideration because of a long-past criminal history.

Of the eleven cities and towns that improperly asked criminal record questions, some inquired whether the applicant had ever been convicted of any crime, some limited the inquiry to felonies, and some asked for conviction information for the past five or seven years. And while some forms assured applicants that a criminal record did not automatically disqualify them from employment, all of those questions are illegal, and have been since January 1, 2014 when the “ban the box” law took effect.

The municipalities that asked about applicants’ criminal record were: Burrillville, Charlestown, Cumberland, Hopkinton, Jamestown, Lincoln, Narragansett, Newport, North Providence, Pawtucket, and Warwick. All but Warwick quickly revised their forms. The ACLU is also calling for revisions to broad “waiver” forms that a handful of municipalities, including Foster and Portsmouth, require job applicants to sign, giving the agencies authority to obtain access to the applicants’ criminal records. The ACLU considers such waivers to also violate the “ban the box” law.

Fred Ordoñez, executive director of DARE, which led the push for passage of the “ban the box” law, said: “It’s sadly ironic that these municipalities can break a law with little consequence, yet regular people’s criminal record turns into a life sentence of unemployment.”

The ACLU plans to take legal action against any municipalities that fail to properly revise their forms.


From the Desk of the Executive Director

The issue of race permeates our society, and recently – but only due to a series of seemingly never-ending tragedies – it has become a major topic of conversation in the media.

The real question remains – as it has always been – what are we going to do about it?

Our Page 1 story documents – yet again – the disturbing nature of the school-to-prison-pipeline in our state. Racial minorities (as well as students with disabilities) find themselves disproportionately suspended from school, and often for the most trivial of offenses. These suspensions have potentially life-changing ramifications.

Those consequences can include a criminal record, but as another story demonstrates, even after action is taken to address an issue like that, constant vigilance is necessary. It is sobering that we found almost a third of the state’s municipalities asking job applicants a blatantly illegal question long after it was barred.

With your help, we will continue to do all we can to address what is the most urgent issue of our time.

-- Steven Brown


ACLU Challenges Century-Old Law Barring Some Inmates From Marrying

The ACLU of Rhode Island has filed a federal lawsuit to challenge the constitutionality of a 106-year-old statute that declares inmates serving life sentences at the ACI to be “civilly dead.” The lawsuit, filed in U.S. District Court by ACLU volunteer attorney Sonja Deyoe, is on behalf of two ACI inmates and the women who have been barred from marrying them because of the “civil death” law. Rhode Island apparently remains one of only three states that still has on the books a law like this, whose origins date back to ancient English common law.

Plaintiffs in the lawsuit are East Providence resident Shelby Ferreira and inmate Cody-Allen Zab, and Warwick resident Sharen Underwood and inmate John Pacheco, Jr. Last year, relying on the “civil death” law, the Department of Corrections denied Zab permission to marry Ferreira.

Regarding Underwood and Pacheco, the DOC expressed no objections to their marrying back in 2006, but the City of Warwick at that time refused to issue a license. Last year, when the two once again sought permission to marry, it was the DOC that denied the request.

In 1987, the U.S. Supreme Court ruled unconstitutional a Missouri prison regulation that barred inmates from marrying. The court held that “inmate marriages, like others, are expressions of emotional support and public commitment” and that a ban on such marriages was “not reasonably related to legitimate penological objectives.”

As far back in 1976, a court struck down Missouri’s civil death statute, noting that “the concept of civil death has been condemned by virtually every court and commentator to study it over the last thirty years.” The court observed that such laws had been characterized as “archaic,”’ “outmoded,” “an outdated and inscrutable common law precept,” and “a medieval fiction in a modern world.” In 1937, when 18 states still had civil death laws, a law review article called the concept “outworn.”

The lawsuit seeks a court order declaring the civil death law unconstitutional as applied to bar an inmate serving a life sentence and a non-prisoner from marrying, and also seeks to prevent Warwick city officials from denying a marriage license based on the law.

Plaintiff Ferreira said: “I have never been in trouble with the law, and I have been employed and tax paying since the age of fourteen. But since I am in love with an incarcerated person, I am denied my right to marry. In a state devoted to marriage equality, this is wrong.”

ACLU of Rhode Island executive director Steven Brown said: “This law is an antiquated vestige of an ancient era. If inmates given a life sentence can remain married while in prison, there is no legitimate reason to bar them and those who want to marry them from doing so after they are sentenced. Prisoners lose many rights, but the fundamental right to marry should not be one of them.”


ACLU Hosts Discussion On LGBT Issues

After the years-long successful fight for marriage equality in Rhode Island, community groups continue their work to improve the lives of LGBT individuals. The ACLU of RI invited some of these groups to discuss the issues they are working on and what they see as the next battle for LGBT rights.

Kerri Kanelos of Youth Pride, Inc., former State Representative and chair of Marriage Equality RI Frank Ferri, Bruce Bell of GLAD, Jaye Watts of TGI Network, and Dawn Euer, a former deputy campaign manager for Rhode Islanders United for Marriage, led a wide-ranging discussion with more than two dozen community members. Topics of discussion included issues faced by LGBT youth in school and state care, obtaining health insurance coverage for transition-related care, workplace discrimination, and how the LGBT community and allies can work together to bring attention to these issues and create change.


ACLU Files Lawsuit Over Unlawful Six-Year Seizure of Weapons by North Smithfield Police

The ACLU has filed a lawsuit in federal district court on behalf of a North Smithfield resident, seeking the return of lawfully possessed weapons that were seized from him over six years ago by the local police department and which the department still refuses to return to him. The lawsuit, filed by RI ACLU volunteer attorney Thomas W. Lyons on behalf of Jason Richer, argues that the North Smithfield Police Department has violated his constitutional rights by retaining his property without just cause.

In September 2008, police responded to Richer’s house when his now ex-wife called to express concern that he had tried to harm himself. Although Richer explained that he was not suicidal and that his wife had misconstrued a conversation they had, police forced him to submit to a mental health evaluation. The doctor who saw him discharged him shortly after his arrival. No charges were ever filed or any other action taken against Richer. In the meantime, police seized “for safe keeping” three lawfully registered guns from a locked case in Richer’s garage. Two months later, when he tried to retrieve the guns, police refused to return them, telling him he would need to obtain a court order.

Both his ex-wife and a psychologist provided letters to the police department in support of returning the guns to him, but the department still refused to do so. Over the years, Richer has repeated his request for the return of the weapons, but he has been consistently rebuffed.

The lawsuit claims that the police department’s practice of requiring “weapons owners who are not charged with a crime to engage in formal litigation in order to recover their seized property” violates Richer’s due process and Second Amendment rights. The suit seeks a court order declaring the police department’s practice unconstitutional and requiring the return of his weapons, as well as an award of monetary damages.

“I am resolved to do all I can to end the unconstitutional practices and procedures employed by the North Smithfield Police Department. From the moment my firearms were seized, I have been asked to prove that I am fit to have them returned, and all the proof I have provided has been dismissed and ignored. This practice must be stopped,” Richer said when the suit was filed.

In 2012, the ACLU filed a virtually identical suit against the Cranston Police Department, which settled the case by returning the weapons that had been unlawfully held, agreeing to make any necessary repairs to the weapons while they had been confiscated, and paying monetary damages.

ACLU of RI executive director Steven Brown said: “Police departments must learn that the Constitution simply does not allow them to seize and then arbitrarily keep indefinitely the property of innocent residents.”


Tune In to “Rights Of A Free People”

Playing in July: The Good Samaritan Law in Rhode Island

Tune in through the month of July for a discussion on the importance of the Good Samaritan bill that protects from prosecution those who call 911 during a drug overdose, how it expired, and why prosecuting someone when they call for help is not the right answer to overdose epidemic.

Showtimes:

Ch. 13: Tuesdays 10:00pm & Fridays 3:30pm (Ch. 32 on Verizon FiOS)
Ch. 18: (In Providence & N. Providence) Wednesdays 9:00pm (Ch. 38 on Verizon FiOS)


Attorney General Finds 12 Agencies Violated RI Open Records Law

The Rhode Island Attorney General’s office found that 12 state and municipal agencies violated the state’s Access to Public Records Act (APRA) after ACCESS/RI, a coalition of open government groups including the ACLU of RI, filed complaints against 14 agencies for delayed responses to open records requests, failing to certify public records officers, or for not posting their APRA procedures online. Of the 12 agencies held in violation of the law, 10 were found to have committed more than one APRA violation.

“We are pleased the Attorney General agreed with the majority of our complaints,” Linda Lotridge Levin, President of ACCESS/RI said. “It is worth noting that these complaints represent just a sampling of the dozens of violations discovered during our 2014 audit of 39 cities and towns and 24 state agencies.”

In December, ACCESS/RI filed complaints against the West Warwick, Newport and East Greenwich school departments; the towns of Warren and Scituate; the West Greenwich, New Shoreham, Charlestown, Cumberland, Providence, and Warren police departments; and four state agencies: the Department of Corrections, the Department of Labor and Training, the Auditor General, and the Rhode Island State Police. All but the New Shoreham and Providence Police Departments were found to have violated the law. Unfortunately, only for five agencies did the Attorney General take the next step in requesting a further explanation in order to determine if penalties should be levied: the East Greenwich School Department, Office of Auditor Auditor General, Town of Warren, Warren Police Department, and the West Warwick School Department.

ACCESS/RI criticized other aspects of the AG’s findings. Even  for the five violators warned of potential fines, the AG asked the agencies to address only their delays in responding to requests, and not violations in failing to certify public records officers or to post their APRA procedures online as required by law.

Further, the Attorney General ruled that when an agency’s response to a request is in apparent violation of the law, they can absolve themselves of responsibility by pointing out after the fact that another entity is responsible for handling APRA requests for their department.

“ACCESS/RI was particularly distressed with the Attorney General’s statement that the volume of complaints we filed means that ‘limited resources cannot simultaneously be dedicated to other pending open government matters,’” said Levin. “Such a response makes light of the tremendous severity of the problem of APRA non-compliance that our audit found.”

While ACCESS/RI hopes that further action will at least be taken against the five agencies that are being scrutinized further, the fact that the Attorney General found so many of the complaints valid demonstrates the need for much stronger enforcement of the law than currently exists. The full audit and complaints are available at www.accessri.org and www.riaclu.org.


Stay Connected

Do you want to know more about civil liberties issues in Rhode Island and stay up to date on the ACLU of Rhode Island’s latest work? We regularly update our supporters through social media, email, and our website. Be sure to like the Rhode Island ACLU on Facebook, follow @RIACLU on Twitter, sign-up for our e-alerts at www.riaclu.org, and check out our blog at www.riaclu.org/blog. You’ll never miss an update from us again!


Education Council Denies Formal Petition To Amend Graduation Regulations

Claiming it was “premature,” the state Council on Elementary and Secondary Education voted 6-1 to deny a petition by a coalition of 12 organizations, including the ACLU of RI, to initiate a public rule-making process to bar school districts from using high-stakes testing as a graduation requirement or grading tool before 2020.

After the Rhode Island General Assembly approved a moratorium last year on the use of high-stakes testing until at least 2017, the Council, with support from the Commissioner of Education, proposed to continue the moratorium until 2020 in order to ensure students, parents, and teachers had adequate time to prepare for the new PARCC test. However, in adopting final regulations, the Council reversed itself and instead gave school districts the authority, if they chose, to institute high-stakes testing with the class of 2017. Shortly thereafter, the Commissioner unilaterally advised districts that they could also begin using PARCC scores as a component of students’ grades as early as this coming year. These developments prompted the filing of the petition.

Under the Administrative Procedures Act, the Council had thirty days to respond, either by denying the petition or by initiating a rule-making process where the public can testify and the Council can consider whether to accept, modify, or reject the proposal. Accepting the petition would have provided the public with its first real opportunity to discuss the Council’s expedited schedule for use of the PARCC.

In a letter accompanying the petition, the organizations pointed out that across the country, school districts are encountering problems with the implementation of state-wide standardized testing; more parents, teachers, and students are opposing such testing; and the number of states using PARCC had declined from 25 to 13 in just a few years. Waiting until 2020 to use PARCC scores against students is necessary, the letter stated, in order to give RIDE and school districts “adequate time to put the instructional and other supports in place to give every student a fair chance to pass the PARCC.”

In addition to the ACLU, the groups signing the petition were Coalition to Defend Public Education, George Wiley Center, NAACP Providence Branch, National Association of Social Workers/RI Chapter, Parent Support Network of Rhode Island, Parents Across Rhode Island, Providence Student Union, Rhode Island Disability Law Center, Rhode Island Teachers of English Language Learners, Tides Family Services, and Young Voices.

The Council did not need to take a definitive stand on the merits of the petition in order to initiate rule-change proceedings and have a discussion of the concerns raised by the imminent punitive use of PARCC scores by some school districts. But to the dismay of groups at the meeting, the Council decided not to permit that discussion. The organizations will be meeting in the near future to discuss next steps.

Responding to the Council vote, Jean Ann Guliano, from Parents Across Rhode Island, said: “Once again, the state has implemented a top down mandate without providing parents a meaningful mechanism to hold districts accountable. Districts are simply not providing students – particularly those living in poverty, or with special needs or limited English proficiency – the supports that RIDE requires districts to provide and that students need to do well on the PARCC. Students should not be the ones held accountable for poor testing preparation.  This policy needs to change.”

To view our petition, letter and more on our work to stop high-stakes testing, click here.


Court Finds ACLU Challenge Of “Vicious Dog” Ordinance Likely To Succeed; Orders Dogs Returned

Two pitbulls seized in October by North Kingstown officials despite the owner’s compliance with all relevant state laws will be returned home while the American Civil Liberties Union court case challenging the seizure of the dogs moves forward.

A Washington County Superior Court judge found that the ACLU had established a likelihood of success on its claim that the state law establishing detailed procedures for dealing with “vicious dogs” preempts a local ordinance barring any “vicious” dog from being housed within a mile of a school or day-care facility. The judge therefore ordered the return of the dogs, Balou and Ozzy, to Kristy Miserendino and her family.

The ACLU filed the case after town officials seized the dogs under the local residence restriction despite an earlier ruling by a state panel that the family could keep the dogs if they took specified precautionary measures. A Town official informed Miserendinos of the residency restriction only after they had decided not to appeal the hearing panel’s decision. The dogs had been held at the town shelter, which, the lawsuit points out, is also within a mile of a school. The ACLU and town officials are now working on a settlement of the case.


News Briefs

  • After the Warwick Police Department and a local Motel 6 entered into an agreement to share the motel’s daily guest list of patrons, and to do so without notifying them, the ACLU of Rhode Island objected to this intrusion on guests’ privacy. In response to the uproar, the hotel announced that it was changing the policy, although it remains unclear how significant the changes are. The ACLU called on Motel 6 and the Police Department to formally clarify the policy and only share the guest list when needed to address specific criminal activity taking place at the establishment or pursuant to a warrant. The ACLU’s urging was reinforced by a June U.S. Supreme Court ruling that found unconstitutional an ordinance requiring hotels to turn over to police upon request registry information about their guests.
  • The ACLU called on the Pawtucket City Council to renounce any efforts to intimidate members of the public exercising their First Amendment rights at City Council meetings after a council meeting was halted because an audience member refused to stand for the Pledge of Allegiance.  In a letter to Pawtucket City Council members explaining the importance of protecting residents’ First Amendment rights, the ACLU noted: “One of the fundamental principles the flag symbolizes is the freedom not to salute it. Compulsory patriotism is a disservice to what the flag represents.” No further incidents have been reported since the ACLU contacted the Council.

In Memoriam

The ACLU of Rhode Island expresses its deepest condolences to the family of Elizabeth “Betsy” Carpenter, who died in March at the age of 87. Betsy served as executive secretary for the ACLU of Rhode Island in the late 1960’s and early 1970’s, a part-time role critical for the organization’s functioning during its early years. Betsy also served on the Affiliate’s Board of Directors after her stint as executive secretary. She and her late husband Gene remained long-time and faithful supporters of the ACLU over the years.


Legislative Wrap Up & Dessert Evening

Join us for our annual panel discussion on how your civil liberties fared during the legislative session. State legislators and advocates will share their thoughts on the successes and setbacks of the 2015 legislative session, and attendees will have an opportunity to ask questions.

Desserts and coffee will be served.

Be on the lookout for a formal invitation once a date and location have been confirmed and our Events page regularly. 


Advertise In The ACLU’s Annual Meeting Ad Book

Promote your business or organization, say congratulations to a dedicated civil libertarian, or simply declare your support for the ACLU of Rhode Island by taking an advertisement out in our Annual Meeting Ad Book.

Full page, half page, quarter page, business card-sized ads, as well as supporter lines, are available.

For more information about placing an ad, contact Megan Khatchadourian at 831-7171.