Fall 2018 Newsletter
Volume: XXIV, Issue Number: 4
The ACLU has filed a federal lawsuit against the City of Woonsocket for unlawfully withholding needed grant funds from Sojourner House, a social service agency that helps victims of domestic violence. Filed by ACLU of RI volunteer attorneys Matthew Oliverio and Stephen Prignano, the lawsuit alleges that the City withheld the funds without cause or due process, and retaliated against the agency after it petitioned other government agencies for help in resolving the dispute over the funds.
The suit argues that the City’s actions – which also involve a ban on the agency receiving any similar funding in the future – are irreparably harming the organization and, by extension, the vulnerable groups it serves. Sojourner House helps victims of domestic violence and sexual abuse through a number of programs, including the operation of an emergency shelter and an apartment complex in Woonsocket. For many years, the agency has applied for and received federal funds via two City grant programs which support advocacy work and the shelter’s operation.
In 2017, Sojourner House was notified it had been selected to receive about $35,000 in funds from the programs. However, in January 2018, Christopher Carcifero, Woonsocket’s Deputy Director of Housing and Community Development, sent the agency a letter indicating that the City intended to withhold the funding. He based this decision on various inaccurate and irrelevant claims, including property code violations involving the emergency shelter that Sojourner House had diligently worked with the City to correct.
In February of 2018, Sojourner House executive director Vanessa Volz responded in detail to Carcifero’s letter and also contacted other city, state and federal agencies for assistance in intervening with the City on Sojourner House’s behalf to seek a reinstatement of the grants. In direct response to this, the City notified the agency that the City was reaffirming its denial of funds and unilaterally imposing an indefinite suspension on the agency’s future participation in City grant programs.
The lawsuit argues that this retaliation against Sojourner House for petitioning other government agencies for assistance violated the First Amendment, and that the lack of any appeal process to contest the funding suspension violated due process. Among a number of legal remedies, the suit seeks reinstatement of the grants, compensatory and punitive damages, and an order barring the City from interfering with the agency’s exercise of its First Amendment rights.
FROM THE DESK OF THE EXECUTIVE DIRECTOR
In the past year and a half, I’ve often asked myself, “As a nation, how did we get here?” I doubt I’m alone in wondering this. One thing remains certain: our founding principles matter, and we must forcefully defend them. We must fight for an open and fair government – as we are doing for Sojourner House. We must ensure a free and equally available education – as we just did in Warwick. We must insist schools protect the rights of all students – which is why we demanded that all districts have policies supportive of trans students. We must ensure unfettered access to the polls for all eligible voters – which is why we are engaged in numerous voter protection activities. And importantly, we must continue to advocate and fight for people like Lilian Calderon – immigrants who have always been part of our story, but who, right now, find themselves more marginalized than ever. Thank you for making this fight possible.
The ACLU has filed a sex and age discrimination suit against the Newport Grand Casino (now in Tiverton) on behalf of a female employee who claims that, for a decade, she has been paid significantly less than a younger male employee performing the same duties in the same position. The suit, filed in U.S. District Court by ACLU of RI cooperating attorney Lynette Labinger, is on behalf of Paula Borrelli, who has worked at the casino since 2007 and as a “night manager on duty” (MOD) there since 2008.
In December 2016, at a meeting with the human resources department, Ms. Borrelli learned that after working with a younger male employee in the same position for the past eight years, he was being paid an annual salary more than $4,000 higher than hers. Ms. Borrelli immediately requested a pay equity increase.
For the next five months, she repeatedly inquired about the status of her request until it was denied without explanation in May 2017. In the meantime, the Casino, without any internal posting, hired an applicant who was 25 years younger than Ms. Borrelli and had no casino experience for a position whose starting salary was higher than Borrelli’s salary after ten years of employment. Although the position had a different title, Borrelli and her fellow MOD were assigned to train the new hire, whose initial job duties were identical to hers.
The lawsuit argues that the Casino’s actions violate a host of federal and state laws banning workplace discrimination on the basis of sex and age, including a state law banning “wage discrimination based on sex.” In June, the state House of Representatives approved a bill, which did not pass the Senate, that would have eliminated the right of employees such as Ms. Borrelli to file suit under that law.
Among other remedies, the lawsuit seeks a court ruling declaring the Casino’s conduct unlawful, awarding compensatory and punitive damages, and payment of the differential between what Borrelli was paid “and the amount she would have received in the absence of sex and/or age discrimination, including but not limited to incremental increases, bonuses, and benefits.”
ICE AND USCIS CONSPIRED TO ARREST, DETAIN IMMIGRANTS WISHING TO REMAIN WITH FAMILIES
It was no coincidence when undocumented immigrants like Rhode Island resident Lilian Calderon were arrested by U.S. Immigration and Customs Enforcement (ICE) officials immediately after showing up for interviews at U.S. Citizenship and Immigration Services offices (CIS) to legalize their status. Instead, documents released in August reveal that CIS officials informed Boston ICE agents of the interviews, scheduled them at a convenient time for ICE, and sometimes even notified ICE when an individual arrived for his or her interview. The disclosure came in a request for a preliminary injunction against the practice made by ACLU of Massachusetts attorneys in the ACLU’s class-action lawsuit filed in April on behalf of Rhode Island resident Lilian Calderon.
Ms. Calderon, who has lived in the country since she was three years old and has two young children, appeared at the local CIS office in Johnston with her citizen husband for an interview designed to confirm their marriage, the first step in a sanctioned “provisional waiver” process designed to minimize family separation and encourage noncitizens to obtain legal status. The ACLU has now learned that ICE agents, in collaboration with CIS, used the waiver process as a trap to bring individuals in for interviews for precisely the opposite reason – so that ICE could detain them, separate them from their families, and seek to deport them. That is what happened with Ms. Calderon, who was immediately arrested by ICE agents after her interview and then held in jail for a month until an ACLU habeas corpus petition helped obtain her release.
Top immigration officials for the New England region acknowledged they made no effort to determine whether a person they planned to arrest was pursuing this lawful waiver process. The two agencies worked so hand-in-hand that in some instances, ICE officers asked CIS to spread out the interviews on different days so that ICE could better employ its limited resources to arrest all the people appearing for interviews.
In one instance, ICE officers asked CIS to delay the applicant’s interview by fifteen minutes to accommodate the officers’ tardiness. Contrary to CIS’s own written guidelines, they then arrested the individual notwithstanding CIS’s determination that the person would likely be approved for a waiver. Although the Boston office halted this practice after the ACLU filed the petition on Ms. Calderon’s behalf, a new field director recently backtracked on that policy, saying that ICE may again arrest and detain immigrants who show up for interviews. A preliminary decision in the lawsuit is pending before a federal judge in Boston.
Transgender Student Policies: Most RI Schools Compliant
In an effort to protect the rights of trans and gender non-conforming students, the RI Department of Education (RIDE) – at the ACLU’s urging – implemented formal regulations in April requiring all school districts to have comprehensive policies addressing this issue. These regulations mandate districts’ policies be consistent with state and national best practices, and “address, at a minimum, such issues as confidentiality and privacy, discipline and exclusion, staff training, access to school facilities and participation in school programs, dress codes and official school records and use of preferred names and pronouns.” A recent public records inquiry by the ACLU of RI found that most school districts have implemented policies that comply with RIDE’s regulations. The exceptions are Chariho, Coventry and Foster-Glocester, all three of which adopted policies that fall far short of RIDE’s regulations. The ACLU has asked RIDE to take action against these non-compliant districts.
After ACLU Intervention, Japan-America Society Drops Suit Against Journalist
Within hours of learning that the ACLU had agreed to represent Newport blogger Christian Winthrop, the Japan-America Society dropped him from a lawsuit alleging that he had engaged in trademark infringement. The suit had its origins in a dispute between the Society and Newport over the running of the Black Ships Festival, which the City had helped fund in the past. In June, the Society decided to move the festival to Bristol, and when the City decided to go ahead with its own celebration, the Society demanded that the City stop referring to it as the Black Ships Festival. In response, the City renamed its competing festival the “Newport-Shimoda Sister City Celebration.” But the Society sued Winthrop (and Newport officials) for trademark infringement for having even temporarily used the term “Black Ships Festival” in blog posts to refer to its event, even after he revised his online articles to reflect the new name. When the ACLU advised the Society it would challenge the lawsuit on First Amendment grounds, the Society immediately dismissed Winthrop from the suit. He believes he was sued because he is the son of the Mayor.
RIDE Rejects Warwick Request to Impose Student Fees
RI Commissioner of Education Ken Wagner rejected a request from the Warwick School Committee to allow the district to charge students for busing them to school and for participating in school sports activities. The rejection came one day after the ACLU and RI Legal Services sent a letter to Wagner which said that charging such fees was contrary to law and Rhode Island’s longstanding policy of ensuring that public education is free and equally available to all. The letter noted that while many RI school districts “are struggling financially, transferring costs to families cannot be part of the solution.”
West Warwick Abandons Proposal for Signs to Deter Roadside Donations
Following a strongly worded opposition letter from the ACLU and House of Hope, the West Warwick Town Council voted down a proposed resolution that would have authorized the display of roadway signs discouraging motorists from donating to panhandlers. The resolution stated that it arose from “a feeling of insecurity and concern among citizens created by the solicitation.” The ACLU/House of Hope letter remarked that “the feeling of concern is justified: we should be concerned that we do not have sufficient social will to provide a dignified quality of life for our most vulnerable residents.” The proposal was rejected by a 4-1 vote.
CIVIL LIBERTIES: BEHIND THE SCENES
Some of the ACLU of RI’s most important work happens behind the scenes and, as such, gets very little attention. A prime example of that is our work regularly testifying on sometimes-obscure regulations proposed by various state agencies. Because these regulations have the force of law, they can have a far-reaching impact on the public – as much as laws passed by the General Assembly. Here’s an inside look at some of the regulatory testimony we’ve submitted in the past few months, and to which we are awaiting responses from the agencies:
The ACLU of RI, along with two other organizations, submitted testimony opposing regulations proposed by the Department of Human Services that would ban the possession and use of medical marijuana by residents of the State’s Veterans’ Home in Bristol. The testimony noted that, just two years ago, the General Assembly approved legislation allowing individuals suffering from post-traumatic stress disorder (PTSD) to use medical marijuana to ease their symptoms, as it has been an important source of relief for some veterans suffering from PTSD, who have a high rate of suicide. The testimony claimed that the proposed regulations would “amount to a step backward in addressing this literal life-or-death issue for our state’s veterans.”
Rights of the Poor
The ACLU submitted testimony to the RI Public Transportation Authority (RIPTA) objecting to proposed regulations setting very detailed “rules of conduct for RIPTA passengers and patrons.” The proposed regulations would bar customers from “passing back their own fare pass to another customer boarding the same bus,” prohibit a person from taking a bus “when lacking the ability to care for oneself because of illness,” and bar individuals from engaging in virtually any type of First Amendment activity on RIPTA property without prior formal authorization. In response to our testimony, RIPTA has agreed to hold off conducting a public hearing on the matter while it revisits the proposal.
We testified at a public hearing of the RI Ethics Commission against a proposed regulation that would make confidential the Commission’s investigatory reports related to alleged misconduct by public officials. The Commission has made these reports public for a number of years but is considering reversing this practice in light of a lawsuit filed last year alleging that the release violates state law. Our testimony disagreed with that assessment and pointed out the importance of continued government transparency in this context and the public’s right to review these critical reports. The Commission is expected to vote on the proposal in September.
We submitted detailed testimony objecting to proposed RI Department of Transportation (RIDOT) regulations that would have limited the display of billboards and signs along state roadways based on their content. The ACLU pointed out that the regulations, which would dramatically limit the types of allowable advertising, was in direct violation of a court decision the ACLU obtained more than a decade ago, which ruled that similar regulations were a violation of the First Amendment.
Rights of Ex-Offenders
We submitted testimony on half-a-dozen regulations proposed by various state agencies which would limit access to professional licenses based on a person’s past criminal record. Examples: Should a person be barred from qualifying as a pilot on the state’s waterways if they have been convicted of any drug offense in the past 10 years? Should a physical therapist be denied licensing from the Department of Health if she has a criminal record of any kind? Should midwives be disqualified from obtaining a license based on a criminal record involving “moral turpitude”? The ACLU continues to point out, through testimony on these proposals, that the state must stop placing unnecessary licensing barriers in the way of ex-offenders trying to become productive members of society.
The RI Coalition for Reproductive Freedom, of which the ACLU is an active member, submitted testimony on proposed regulations related to the state’s “health benefits exchange,” RI’s version of Obamacare, which provides the public access to health insurance. The testimony addressed a problem that affected a number of subscribers in 2016 when, without their knowledge, they were moved from a plan that provided comprehensive abortion coverage to one that did not. The testimony proposed that the regulations include explicit language to prevent that from happening again. As this newsletter went to press, the ACLU learned that the state agreed to amend the rules as the Coalition proposed.
These examples provide just a glimpse of some of the behind-the-scenes work the ACLU of RI does every day to prevent the slow erosion of civil liberties that can happen when others aren’t paying attention.