Steven Brown – RI Future

June 4, 2015June 4, 2015

Community organizations file petition to delay high stakes testing

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The ACLU of Rhode Island and a coalition of 11 other organizations representing youth, parents, the disability community, and civil rights activists Tuesday filed a formal petition with the state Council on Elementary and Secondary Education 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 our petition.

Under the Administrative Procedures Act, the Council has 30 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 provide the public with its first real opportunity to discuss the Council’s expedited schedule for use of the PARCC.

In the letter accompanying the petition, we pointed out that across the country school districts are encountering problems with the implementation of statewide 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 was necessary 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 of RI, the 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 signed on to the petition.

We emphasized to the Council that it did not need to take a definitive stand on the merits of the petition in order to initiate rule-change proceedings. “Although we hope to ultimately convince you of the merits of this rule change, we trust you agree it is at least worthy of a full public discussion, and of one sooner rather than later,” our letter stated.

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.”

For more on the ACLU’s efforts to halt high-stakes testing in Rhode Island, visit our issues page here.

May 13, 2015

11 RI cities, towns violate ‘Ban the Box’ law

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At least 11 municipalities in Rhode Island ask job applicants a question on their application forms that is prohibited by law.

The questions vary in wording, but each asks job applicants about their criminal record–a practice that has been illegal in Rhode Island for over a year. As a result, the ACLU of Rhode Island and Direct Action for Rights and Equality (DARE) have sent letters to those municipalities – from Burrillville to Warwick to Narragansett – asking them to promptly remove these questions.

In 2013, the General Assembly amended the state’s Fair Employment Practices Act to provide that, with a few exceptions not relevant here, questions about a person’s past criminal convictions could not be included on employment application forms and could instead only be asked “at the first interview or thereafter.” This “ban the box” law is designed to ensure potential employees are screened based on their qualifications, not their past.

As the letter explains:

The General Assembly enacted this prohibition in recognition of the fact that employment is a pivotal factor in preventing recidivism and that ex-offenders have faced widespread and unfair discrimination in seeking jobs. Well-qualified applicants – even those with long-past criminal records irrelevant to the job for which they were applying – were often excluded from consideration before even having a chance for an interview to demonstrate their qualifications. However, the inquiry on your application form is directly contrary to, and undermines the goal of, the statute to address this inequity.

This month, the ACLU examined the employment application forms of the twenty-nine municipalities that post those forms online after receiving a complaint about one of them. Of the eleven cities and towns that improperly ask criminal record questions, some inquire whether the applicant has ever been convicted of any crime, some limit the inquiry to felonies, and some ask for conviction information for the past five or seven years. And while some of the forms assure applicants that a criminal record does 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.

We’ve asked the municipalities to revise their forms, online and in any other format, within the next two weeks. The ACLU and DARE will consider taking further steps if any cities or towns fail to comply with the statute.

The municipalities that ask about applicants’ criminal record and were sent letters were: Burrillville, Charlestown, Cumberland, Hopkinton, Jamestown, Lincoln, Narragansett, Newport, North Providence, Pawtucket, and Warwick. The ACLU is filing open records requests with the ten towns that did not have their forms posted online and were thus not reviewed.

By discriminating against anyone with a criminal record, these cities and towns are turning away able and qualified applicants. This unhelpful and illegal practice must promptly end–as it should have when it was prohibited last year–so qualified Rhode Islanders have the opportunity to lead productive lives regardless of their past actions.

Fred Ordoñez, executive director of DARE, the organization that 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.”

April 28, 2015April 28, 2015

ACLU files suit over unlawful 6-year seizure of weapons

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Due process is a fundamental tenet underlying our civil liberties, and one can reject the hackneyed mantra that “guns don’t kill people” and still appreciate that gun owners have rights too. The ACLU does.

That’s why last week the ACLU filed a lawsuit in federal district court on behalf of a North Smithfield resident, who is seeking the return of lawfully-possessed weapons that were seized from him over six years ago by the local police department. 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 right to due process and his right to keep and bear arms by retaining his property without just cause. The ACLU successfully filed a similar lawsuit against the Cranston Police Department three years ago.

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 by taking pills. 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 at Landmark Hospital. The doctor who saw him there discharged him shortly after his arrival, and no charges were ever filed or any other action taken. In the meantime, police seized “for safe keeping” three lawfully registered guns from a locked case in Richer’s garage. Two months later, when Richer 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 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. He most recently pressed a captain at the department for their return in January of this year. The Captain said he would talk with the town solicitor about it, but Richer never heard back from anybody. In March, the ACLU wrote a letter to the police chief on Richer’s behalf, but also received no response, prompting the filing of today’s lawsuit.

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 flies in the face of the presumption of innocence we enjoy as Americans. This practice must be stopped,” Jason 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 and attorneys’ fees.

Mr. Richer has been extraordinarily patient, yet the police have done nothing but make excuses about returning his property to him. Police departments must learn that the Constitution simply does not allow them to arbitrarily keep the property of innocent residents.

Whether police seize lawfully owned firearms as part of an emergency investigation, use civil forfeiture laws to impound a car from a person who is suspected of drug dealing, or confiscate medical marijuana from somebody alleged to not be a registered patient, the principle should be the same: people have a right to have their property returned – promptly – once officials conclude that no criminal activity has occurred or the basis for the seizure has been found wanting.

March 20, 2015

ACLU, Phil Eil sue DEA for public records requested 3 years ago

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The ACLU of Rhode Island filed a Freedom of Information Act (FOIA) lawsuit Wednesday on behalf of local journalist, Philip Eil, who has been stymied for more than three years in his effort to obtain access to thousands of pages of public evidence from a major prescription drug-dealing trial.

The lawsuit, against the Drug Enforcement Administration (DEA), seeks a court order to release the documents, a declaration that the DEA has wrongfully withheld and redacted documents, and an award of attorney fees. Filing the suit were ACLU volunteer attorneys Neal McNamara and Jessica Jewell, from the law firm of Nixon Peabody.

The request in question involves the evidence used to convict Dr. Paul Volkman, whom the Department of Justice has called the “largest physician dispenser of oxycodone in the United States from 2003 to 2005.” Volkman was indicted on 22 drug trafficking-related counts in 2007, and, in 2011, after an eight-week federal court trial in Ohio that included 70 witnesses and more than 220 exhibits, he was convicted of, among other charges, prescribing medications that caused the overdose deaths of four patients. In 2012, Volkman was sentenced to four consecutive life terms in federal prison — one of the lengthiest criminal sentences for a physician in U.S. history.

Volkman attended college and medical school with Eil’s father, and, in 2009, Eil began conducting research and reporting for a book about the case. After Volkman’s trial ended, Eil requested access to the trial evidence from the clerk of the U.S. District Court in Cincinnati. This request was denied, as were Eil’s subsequent requests to the Ohio U.S. Attorney’s office, the U.S. District Court judge who presided over the case, and the clerk of the 6th Circuit U.S. Court of Appeals.

On February 1, 2012, Eil filed a FOIA request with the Executive Office of U.S. Attorneys, which eventually transferred the request to the DEA nine months later. The DEA still has not completely fulfilled the request, despite numerous efforts by Eil to expedite a response. Pending with the DEA for more than 800 days, Eil’s request is eight months older than what the federal government-operated website, FOIA.gov, reports as the agency’s longest pending request.

One of the 133 slides released to Mr. Eil. The substance of nearly every slide was redacted.

In addition to the time it has taken to process the request, the DEA has withheld 87 percent of the 12,724 pages it has thus far processed for Eil’s FOIA request, and stripped most of the substantive information from the remaining 1,600 pages it has “released.” For example, as the lawsuit notes, one of the nine installments of releases to Eil included “a 133-page slide show where the substance from nearly every single slide is redacted.” In another one of the “partial releases” of information, the DEA withheld 1,225 of 1,232 pages it processed.

“You can’t have a true democracy without a transparent court system, and this case represents an egregious failure of judicial transparency,” Eil said. “The right to a public trial is a basic tenet of our society, and it’s scary to think that any trial in the United States, especially one of this magnitude, would be retroactively sealed off from public view, as this case has.”

All too often at both the state and federal level, agencies address the public’s right to know as they would an exceedingly unpleasant chore – reluctantly, with some disdain, and with little care for the finished product – instead of as the fundamental and essential engine of democracy that it is. Mr. Eil’s efforts and this lawsuit are a reminder of the importance of persistence in holding government agencies accountable to the public.

Eil is an award-winning freelance journalist who, most recently, was news editor and staff writer of the Providence Phoenix until the paper’s closing in 2014. He has taught classes on writing and journalism at the Rhode Island School of Design, where he will return as an adjunct lecturer in September. He has conducted more than 100 interviews, across 19 states, for his book about the Volkman case.

The DEA’s actions in Eil’s case follow a disturbing pattern of FOIA-related behavior from the agency in recent years. In 2012, reason.com reported that DEA FOIA rejections had increased 114 percent since 2008, and earlier this year, the agency told a FOIA requester it would cost $1.4 million to process his request.

The lawsuit was filed in the middle of Sunshine Week, a week designated to educate the public about the importance of open government.

March 12, 2015March 12, 2015

Saturday: ACLU advocate training day

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The ACLU of Rhode Island has been a constant presence at the State House this legislative session as we testify, monitor, and weigh in on hundreds of bills that could impact your civil liberties. Now, we need your help.

Whether you want to repeal voter ID, end the school-to-prison pipeline, or strengthen privacy rights, your legislators need to hear from you. Join us this Saturday, March 14, at 2 p.m. at the Rochambeau Library for the ACLU Advocate Training Day to learn how you can become an effective advocate for civil liberties and play an active role at the State House. Our policy associate and other local advocates will offer advice on tracking legislation, crafting arguments, meeting with your legislators, writing and delivering testimony, and working with fellow advocates. Afterwards, you’ll be ready to make your voice heard at the State House and to protect the civil liberties of all Rhode Islanders.

The ACLU Advocate Training Day is free and open to all, and no experience is needed to attend. Join us in making Rhode Island a better place for all.

March 11, 2015

ACLU: RI elementary schools promote gender stereotypes

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Despite decades of progress toward gender equality, in Rhode Island today gender-exclusive student events that are specifically held for girls or boys with the active support of elementary schools help to perpetuate blatant gender stereotypes. Almost invariably, the girls’ events, organized by parent-teacher groups and publicized by the schools, are dances, with another gender-stereotyped event, like a pajama party, occasionally taking their place. By contrast, and just as invariably, the events arranged for boys involve almost anything but dancing, are wide-ranging, and focus on purportedly male-friendly activities like sports and arcade games.

That’s the finding of a report issued by the American Civil Liberties Union of Rhode Island, based on a survey of 40 elementary schools in 16 school districts. The report, “Girls Just Wanna Darn Socks,” states that the schools’ promotion of these parent teacher association (PTA) and parent teacher organization (PTO) activities reinforces outdated stereotypes of gender roles in Rhode Island’s youngest residents.

“Rhode Island girls, routinely sent to dances, are fed the same tired stereotype that they must look pretty and be social, while boys are given access to magic and science shows and physical activities – their own and others – like PawSox games and trampoline parks,” the report stated. Through open records requests, the ACLU found that during the 2012-2013 and 2013-2014 school years, 80% of “girls’ events” at the 40 elementary schools studied were dances. The few other events held for girls generally encompassed pajama parties, yoga nights, and blanket sewing. The activities for boys, on the other hand, were much more diverse, and included attendance at baseball and hockey games, science and magic shows, and outings for laser tag, bowling, and arcade games.

Although these extracurricular activities are hosted by PTAs and PTOs, the ACLU’s investigation found that the schools regularly promote these events in various ways, through posting on school websites, use of school listservs, and by otherwise offering the parent-teacher groups special access to school resources to promote the events. The report argues that the use of these school resources to support such stereotypical and discriminatory events undermines Title IX, the landmark anti-discrimination law that has helped break down the barriers between girls’ and boys’ education over the past four decades.

Great progress has been made by women in education in the years since Title IX’s passage, but girls and women continue to be underrepresented in science, technology, engineering and mathematics (STEM) fields. By supporting these gender-exclusive events, the ACLU report argues, “Rhode Island’s schools, however unintentionally, support the sort of stereotyping that helped discourage girls from those fields for so long.”

The report concludes:

In the 21st Century, however, it should be simply unacceptable for public schools to be fostering the notion that girls belong at formal dances, yoga or sewing while boys should be offered baseball games, bowling and science. Not every girl today is interested in growing up to be Cinderella; many enjoy participating in and attending sports events and playing arcade games. Similarly, not every boy makes sports his obsessive pastime or cringes at the thought of going to a dance. Such gender-segregated programming – based on gender stereotypes about the talents, capacities and preferences of children – is harmful to boys and girls alike, and fails in any meaningful way to provide “reasonably comparable” experiences.

The report called on school equal opportunity officers to halt school support of these types of discriminatory extracurricular events, and instead discuss with PTO/PTAs the need to promote gender-inclusive activities. The ACLU also called on the state Department of Education to intervene by providing guidance to school districts on the illegal nature of their promotion of these gender-discriminatory activities. The General Assembly enacted a law in 2013 authorizing gender-exclusive extracurricular activities, but required them to be “reasonably comparable.” The ACLU and numerous women’s rights groups opposed the legislation.

March 4, 2015

PARCC as a high stakes test will spell disaster

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It is heartening to see a robust discussion on the imminent use of the PARCC test in Rhode Island’s public schools, but the state Department of Education seems to have made up its mind before the test has even gotten off the ground. It is already actively encouraging school districts to use the PARCC to penalize students as early as next year.

Before having any chance to meaningfully examine how this untried test is working, or to determine whether, like the NECAP, it will have a disproportionate and devastating impact on poor and minority children, English Language Learners and students with disabilities, Commissioner Deborah Gist has already advised school districts they may “use PARCC results as a component in determining students’ grades” beginning as early as the upcoming 2015-16 school year. The Commissioner, with the backing of the Council on Elementary and Secondary Education, has also encouraged school districts to consider using the PARCC as a high stakes graduation requirement for the Class of 2017.

In light of this push by RIDE, the biggest concern isn’t necessarily whether testing should be delayed for a year or even whether children should be able to opt out – it is whether the test results should be used punitively against students rather than as a supportive accountability tool to help them and their schools succeed. RIDE likes to claim its goal is the latter, but as we know from the NECAP debacle, it operates more like the former.

RIDE’s desire to punish kids by allowing the test to be used in this high stakes fashion so quickly is extremely troubling, especially since education officials know full well the importance of time in getting a new test like this off the ground. Last August, before changing course, the Commissioner gave good reasons why PARCC should be used as a high stakes test beginning in 2020, not 2017. As she noted then:

“We need to make sure that everyone has adequate time to prepare for the implementation. That means students having adequate support and time, families and teachers and school and district leaders need adequate time to make the changes to their support and interventions for individual students.”

By instead giving school districts the option to use the test results against students a year from now, RIDE is actually doing everything it can to make sure students are not fully prepared. To make matters worse, the local implementation of such testing places pressures on students of particular school districts who embrace PARCC in this fashion, while protecting students who happen to live in more skeptical school districts.

We all want students to succeed, but this approach spells disaster and will inevitably lead to a repeat of the fiasco surrounding the NECAP. Opting out of the PARCC test means little if students face a reduction in grades or denial of a diploma in a few years for failing to take it. Nor is it fair if students who opt in find their grades lowered because of their scores on the test. Whether one agrees or disagrees that PARCC can be a useful support tool, parents and others concerned about punitive standardized testing should be demanding first and foremost that this test not be used for high stakes graduation or grading decisions in the way that RIDE is, sadly, so hastily determined to use it.

February 7, 2015

ACLU successfully settles suit requiring DMV to establish regulations for database

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In response to a lawsuit filed this week by the American Civil Liberties Union of Rhode Island, the Division of Motor Vehicles agreed to the entry of a court order Friday that will require the agency to first adopt regulations through a public process before using a new database designed to identify and possibly take action against uninsured drivers.

The ACLU of Rhode Island on Tuesday sued the DMV for implementing its Uninsured Motorists Identification Database without first establishing any regulations to prevent the improper disclosure of drivers’ personal information, avoid mistaken registration revocations, or to otherwise ensure that the program is properly administered by the private out-of-state vendor contracted to run the program. The database is designed to compile information from insurance companies about the identities of insured drivers and information from the DMV about registered motor vehicles. The vendor matches the information to identify and notify vehicle owners who do not appear to have insurance. The lawsuit, filed by ACLU volunteer attorney Albin Moser, noted that insurance companies and the DMV had begun sending personal information about drivers to the vendor without any regulations whatsoever to address key issues over implementation of the database.

The ACLU’s successful settlement of this suit comes as the first wave of notices to drivers who purportedly didn’t have insurance was supposed to be sent out by the vendor. Residents must obtain or prove they have insurance within a specified period of time or else their registration will be revoked. Under this agreement, the DMV must now established regulations in accordance with the Administrative Procedures Act before any notifications are sent.

ACLU attorney Moser said: “Thanks to the ACLU’s analysis, the Superior Court and the DMV were made aware of several privacy and due process concerns that were best addressed by a public rulemaking process before the program’s implementation. The ACLU will be an active participant in that process in order to make sure that these concerns are adequately addressed.”

The lead plaintiff in the case, ACLU of RI policy associate Hillary Davis, added: “A number of questions remain about the implementation of the UMID, from ways to protect Rhode Islanders’ privacy to how drivers whose registrations are erroneously revoked may have them reinstated without punishment. We commend the DMV for recognizing the need to move forward on answering these questions, and look forward to testifying on the proposed rules.”

February 4, 2015February 6, 2015

ACLU challenges implementation of uninsured motorist database in absence of regulations

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The American Civil Liberties Union of Rhode Island filed a lawsuit Tuesday against the Division of Motor Vehicles for implementing a database designed to identify uninsured motorists without first establishing any regulations to prevent the improper disclosure of drivers’ personal information, avoid mistaken registration revocations, or to otherwise ensure that the program is properly administered by the private out-of-state company contracted to run the program.

A state law enacted in 2013 established the database, designed to compile information from insurance companies about the identities of insured drivers and information from the DMV about registered motor vehicles. A third party vendor matches the information in order to identify and notify vehicle owners who do not appear to have insurance. Residents must obtain or prove they have insurance within a specified period of time or else their registration will be revoked. Despite being explicitly required to do so under the statute, however, the DMV has proposed no regulations whatsoever to address key issues over implementation of the database.

Today’s lawsuit, filed by ACLU volunteer attorney Albin Moser, notes that while insurance companies and the DMV are already sending personal information about Rhode Island drivers to the third party contractor, the DMV has yet to draft, publicly share, or hold a public hearing to discuss regulations establishing privacy safeguards, notification procedures, and other necessary procedures. The failure to establish these regulations is a violation of the Administrative Procedures Act and the state law that established the database, according to the complaint. The suit asks the court to stop the implementation of the Uninsured Motorists Identification Database until appropriate regulations are adopted with public input.

The ACLU will be seeking a temporary restraining order this week against implementation of the program, as the first wave of notices to drivers who purportedly don’t have insurance is supposed to be sent out by the contractor as soon as next week.

The lead plaintiff in the case is ACLU of RI policy associate Hillary Davis, who often testifies on state regulations and civil liberties issues relating to privacy and technology. She said: “Any use of personal information must be thoughtfully and publicly examined. That the DMV has failed to engage in a public rule making process about this database, flouting the responsibility put upon them by the General Assembly, is alarming in its carelessness. Though the impact on Rhode Island drivers can be tremendous, the only discussions as to the database’s use and security precautions have been between the DMV, the insurance companies, and the third-party vendor that stands to profit from the use of Rhode Islanders’ personal information. This oversight must be corrected before the program goes into effect, not after Rhode Islanders find their information compromised or their vehicle registrations revoked.”

ACLU attorney Moser added: “The DMV needs to explain to Rhode Island residents how it and the private contractor are going to keep residents’ personal information secure. The DMV also needs to explain to how it and the contractor are going to manage the program so that it is accurate and does not result in residents’ motor vehicle registrations being jeopardized by administrative error.”

The ACLU’s concerns about implementing the program without any public standards are not without justification, as it has sued the DMV a number of times in the past over regulatory lapses that have adversely affected motorists. In 2012, for example, the ACLU successfully sued the DMV after it refused to reinstate a person’s driver’s license based on a “policy” that appeared nowhere in the agency’s rules and regulations. In 2010, the ACLU successfully settled another case after the DMV advised thousands of motorists that their license and registration would be suspended due to alleged unpaid fines that were the result of incidents occurring on “00/00/0000.”

January 20, 2015

Groups call for reversal of Dept. of Education high-stakes testing plans

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A number of community and advocacy organizations, including the American Civil Liberties Union of Rhode Island, are calling on the Council of Elementary and Secondary Education to promptly overturn guidance issued by Commissioner of Education Deborah Gist that advises school districts they can use the PARCC exam as a high-stakes test graduation requirement as early as 2017, three years before the 2020 starting date the Council had originally proposed.

The Commissioner issued this guidance in a “field memo” Friday despite the fact that just last week the Council tabled a RIDE proposal that would have given school districts the 2017 testing option. In addition, without any public discussion, the Commissioner’s field memo also told superintendents they could begin using students’ PARCC scores as a component of their school grades—and could do so starting in the next school year.

In a letter sent to the Council, the American Civil Liberties Union of Rhode Island, R.I. Disability Law Center, R.I. Legal Services, R.I. Teachers of English Language Learners, and five other community organizations raised serious concerns about the guidance and urged the council to bar school districts from using PARCC as a high stakes testing requirement until 2020 and from using the test’s results as a factor in students’ grades.

Our letter stated: “We would expect that before allowing PARCC to be used for such consequential and punitive purposes, RIDE would be spending the coming five years monitoring the test’s implementation to ensure there was adequate teacher preparation and curriculum development, equitable computer training and access for all, and fair implementation for English Language Learners and students with disabilities. Instead, the Commissioner’s memo is encouraging school districts – many of whom, by RIDE’s own standards, failed to meet basic accountability standards with the NECAP – to be demanding accountability from the students (not themselves) on this new test in a manner that can only be described as exceedingly premature.”

We also noted that the Commissioner’s unilateral decision to allow school districts to establish their own high-stakes testing requirements for graduation and for grading is “extraordinarily significant” and creates a two-tiered system for students based solely on their address.

You can read the full letter here and learn more about high-stakes testing and students’ rights here.

December 9, 2014December 9, 2014

ACLU sues Providence Police again for violating protesters’ free speech rights

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The recent protests in Providence and around the country should remind us all of the importance of our free speech rights and the power a community can have when it makes its collective voice heard. Taking to a public square to express one’s political opinion is a longstanding tradition in American society and is a fundamental right that must be respected. We have seen, however, that law enforcement officers at times unnecessarily restrict protests in ways that only serve to diminish protesters’ ability to share their message. As large-scale protests continue across the country, the ACLU of Rhode Island is again taking action against the Providence Police Department for violating the First Amendment rights of protesters.

Yesterday, the ACLU of Rhode Island filed a federal lawsuit against the Providence Police Department for violating the “clearly established” free speech rights of two protesters last year at a fundraiser in Roger Williams Park for then-Gubernatorial candidate, and now Governor-elect, Gina Raimondo. The suit alleges that the police department’s actions amounted to a “willful” violation of the “constitutionally protected right of people to peaceably assemble and demonstrate in public parks,” and seeks various court-imposed remedies, including monetary damages. The suit notes that only six months earlier in another ACLU case, a federal judge condemned the Providence police department’s practice of “clearing vast public spaces” of people engaged in free speech activity without legal cause.

The lawsuit, filed by ACLU volunteer attorney Richard A. Sinapi on behalf of Shannah Kurland and Gladys Gould, stems from police actions outside a September 26, 2013 fundraiser for then-candidate Raimondo . Over 200 people, including Kurland and Gould, gathered in the park outside the Casino with signs to protest Raimondo’s controversial pension reform activities. During the course of the protest, the lawsuit claims, the two plaintiffs (along with the other demonstrators) were ordered by Providence police to move farther and farther away from the Casino, making it much more difficult for them to have their message seen and heard by individuals attending the event.

Separately, Kurland is legal counsel to five local Ferguson activists charged with trespassing for shutting down Interstate 95.

Even though she at no time obstructed traffic or foot movement, Gould was ordered to move farther away from the Casino three times. As a result, she was forced from protesting where she started, on a sidewalk within 50 feet of the Casino entrance, to an area that was about 285 feet away and also distant from the parking lot entrance. Gould reluctantly moved each time, but when Kurland refused to move to the farthest location, she was arrested for disorderly conduct, purportedly for obstructing traffic, even though she remained on the grass island at all times.

The lawsuit notes that parks and sidewalks “are quintessential public forums, and the Supreme Court has consistently affirmed the right of demonstrators to use them,” and that a claim of “obstruction of traffic” is “not a talisman that can be employed to turn bedrock First Amendment protections to dust.” The suit further states that since the plaintiffs “were at all times either peaceably protesting on the sidewalk or the island and in no way interfering with the flow of pedestrian traffic on the sidewalk or motor vehicle traffic in the street or ingress to and egress from the Casino, there was no legitimate governmental interest in relocating their protest on three different occasions.”

Pointing to the favorable court decision the ACLU had obtained only months earlier on behalf of a Providence resident, Judith Reilly, who had been barred by police from leafleting outside a venue where then-Mayor David Cicilline was speaking, the suit claims that Providence police officials should have been fully aware of the unconstitutional nature of their actions at the Casino. The City paid $75,000 last year to settle the Reilly case.

We’re asking the court to, among other remedies, declare the actions of the police a violation of Kurland and Gould’s First Amendment rights, require proper training and instruction of police on the First Amendment rights of demonstrators, rule that Kurland’s arrest violated her right to be free from unreasonable searches and seizures, and award compensatory and punitive damages and attorneys’ fees.

There is no excuse for the actions police officers took at this event, whose only purpose was to diminish the ability of protesters to get their message across. The time has long since passed for the Providence police to act as if the First Amendment were just a suggestion.

Plaintiff Kurland said: “It’s a shame that the City of Providence still doesn’t respect the Constitution. I sure hope it doesn’t take another arrest for them to learn that the First Amendment applies here too. If it does, I’m willing to oblige.”

ACLU attorney Sinapi added: “I sincerely hope and trust that, unlike his predecessors, Mayor-Elect Elorza, who has taught law school students about constitutional rights, will acknowledge and appreciate the importance of the free speech rights violated in this case, and will act with all deliberate speed to provide relief for the injuries committed and to prevent such violations from occurring in the future. Failure of City elected leaders to take appropriate and decisive action to remedy and prevent such conduct is only going to continue to subject the City to repeated lawsuits, each of which will inevitably cost the City tens of thousands of dollars.”

Time will tell whether the new administration will take steps to resolve this matter quickly or instead seek to defend the actions of its officers in squelching free speech.

November 3, 2014November 4, 2014

Protect your rights: reject question 3

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Tomorrow, you will choose between your constitutional rights or an expensive fantasy.

In recent weeks, the ACLU of Rhode Island and a number of other organizations have talked extensively about the risks of a Constitutional Convention. We’ve shown what came from the 1986 Convention, including a lasting restriction on the right to bail, and the 20 years it took to undo the Convention’s disastrous impact on minority voting rights. We’ve shown you the political trickery used to deceive voters during the last convention, like this question, approved by the voters in part because nobody knew exactly what it meant:

(It actually contains a restriction on the right to abortion: can you find it?)

We’ve brought you the words of delegates of the 1986 convention, like Lila Sapinsley, who said:

“If delegates to the 2015 convention are elected by existing electoral districts we will again have a duplicate of the legislature. Let’s concentrate on electing better representatives and forget about an expensive duplicate of the General Assembly.”

And we’ve shown what you can expect from a convention now by examining issues faced in other states, including:

Bans on affirmative action
Denial of various rights to immigrants
Restrictions of LGBT rights
Unprecedented restrictions on abortion
Restrictions on state participation in the federal health care exchange
Tax credits or vouchers for religious schools.

Despite all this evidence, proponents promise a Constitutional Convention divorced from politics and from the undue influence of out-of-state special interests spending millions to push their own pet projects.

The ACLU shares the frustration of many with the actions of the General Assembly, but your rights are too great a risk to take. Promises cannot protect your rights. Your vote can. Rejecting Question 3 may force advocates for change to work harder, but it makes sure your rights are still yours in 2016.

Tomorrow, vote to reject Question 3. Your rights depend on it.

October 9, 2014October 9, 2014

Judge: RI’s ban on anonymous political literature is unconstitutional

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Rhode Islanders no longer need to worry about facing prison for exercising their free speech rights now that an outdated law that banned the distribution of anonymous political literature has been ruled unconstitutional.

Ruling in an ACLU lawsuit, U.S. District Court Judge William Smith on Tuesday struck down a state law that makes it a crime to circulate anonymous political literature, including unsigned newspaper editorials. The ACLU of Rhode Island sued over the legality of the statute earlier this year to halt the Town of Smithfield’s stated plans to enforce it. The statute, which carries a potential one-year prison sentence, bars the distribution of any anonymous political literature that relates to ballot questions or that criticizes a political candidate’s “personal character or political action.”

The U.S. Supreme Court had previously declared an almost identical Ohio statute unconstitutional, and called anonymous pamphleteering “an honorable tradition of advocacy and of dissent” designed to “protect unpopular individuals from retaliation – and their ideas from suppression – at the hand of an intolerant society.” That 1995 ruling cited a long history of anonymous political literature in this country, including the Federalist Papers.

Despite the U.S. Supreme Court ruling, last year the Smithfield Police Department arrested a political consultant for purportedly violating the state law. The Attorney General’s office later dismissed the charges, citing the Supreme Court case. In January, the ACLU wrote town officials to seek assurances that Smithfield police would no longer enforce the statute. The ACLU received no response; instead, news stories quoted town officials as calling the ACLU request “absolute nonsense” and stating that they intended to continue initiating criminal complaints under the statute.

This prompted the ACLU’s lawsuit, filed by ACLU of RI volunteer attorney Mark W. Freel. In a written filing with the court, the Attorney General’s office essentially agreed with the ACLU and acknowledged the unconstitutionality of the statute.

In a four-page decision, Judge Smith said it was “hard to imagine what the Rhode Island General Assembly was thinking when it passed this law . . . [but it] must be invalidated as a violation of the First Amendment.”

The plaintiff in the suit was Smithfield resident John Blakeslee, who has disseminated written political materials over the years that could be deemed to violate the statute’s requirements.

ACLU attorney Freel said: “There is a long tradition of anonymous pamphleteering on matters of public interest in this country, and that right is embodied in the First Amendment to the U.S. Constitution. Today the court struck down a long-standing Rhode Island law that was entirely at odds with that right. It is a victory for free speech and expression.”

In an attempt to mitigate the time and expense of defending the lawsuit, the House had passed a bill this session to repeal the statute, but the bill died in the Senate. As a result of the court decision, the defendants will pay $4,000 in attorneys’ fees in response to the successful challenge to the statute.

Although anonymous literature that criticizes candidates for public office is a criminal offense under the statute, literature that supports or praises a candidate is not. The court’s decision formally makes the statute legally unenforceable.

September 15, 2014September 18, 2014

Trivia night with the ACLU

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This Wednesday marks the 227th anniversary of the signing of the U.S. Constitution by 39 delegates of U.S. Constitutional Convention and the American Civil Liberties Union of Rhode Island is celebrating with a trivia night for civil libertarians.

Test your knowledge of the Bill of Rights by joining us Wednesday, September 17, at The Salon in Providence at 7 p.m. for a night of friendly competition featuring general knowledge, civil liberties, and Rhode Island trivia. Even if you don’t think you’ll take home the top prize, this is a great opportunity to meet fellow Rhode Islanders who share your interests.

It’s free to play and open to everybody 21 or older so bring a team of friends or come on your own.

Here are the details:

Trivia Night with the ACLU

Wednesday, September 17, at 7 p.m.

The Salon, 57 Eddy St in Downtown Providence

Free to play. 21+.

I hope to see you there!

August 29, 2014August 29, 2014

Open gov’t groups blast Kilmartin on public records law

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Calling it “a new low” in the state’s enforcement of the Access to Public Records Act (APRA), five open government groups blasted an opinion issued by the Attorney General’s office which held that public bodies can charge members of the public for the time it takes to compose a letter denying an open records request.

That interpretation of the law was embodied in an AG advisory opinion, Clark v. Department of Public Safety, issued yesterday. It arose in the context of a Rhode Islander who had sought BCI and personnel records for an individual in the State Fire Marshal’s office. When the requester was denied access to the records on the grounds that they were confidential by law, he was charged a $15 fee. He then filed an appeal with the AG, leading to yesterday’s opinion. (The complaint raised a number of other APRA objections, which were also rejected in the opinion.)

APRA allows public bodies to charge for the “search and retrieval” of public records. The opinion appears to argue that because the time spent redacting records has been held to constitute “search and retrieval” time, then the time spent composing a letter to deny access can be charged as well. The portion of the opinion addressing this issue is on Pages 6 and 7.

Below are quotes denouncing the decision from representatives of Common Cause RI, ACCESS/RI, the ACLU of Rhode Island, the League of Women Voters of Rhode Island, and the New England First Amendment Coalition.

Rosanna Cavanagh, executive director of the New England First Amendment Coalition:

“The legislative intent of the statute is thwarted by the Attorney General’s new interpretation which in effect replaces the clear meaning of ‘search and retrieval’ with the opposite meaning of ‘search and denial.’ If this interpretation takes hold it would make Rhode Island the least access friendly state in New England in this regard.”

John Marion, executive director, Common Cause Rhode Island:

“By upholding the DPS’s decision to charge a citizen the costs associated with composing a letter denying their request, the Attorney General’s office has provided a blueprint for government officials to discourage public records requests.”

League of Women Voters of Rhode Island President Jane Koster:

“Too many public bodies already treat the open records statute like a series of recommended guidelines instead of a law that must be followed. This opinion only exacerbates the many problems the public already has gaining access to information.”

Linda Levin, chair of the open government group ACCESS/RI:

“We call on the Attorney General to reverse this position in future decisions. If the office does not, ACCESS/RI stands ready to seek legislation that would establish into law that the public cannot be charged in any way when records are denied.”

Here’s my statement, as the executive director of the ACLU of Rhode Island:

“Allowing agencies to charge people for the privilege of having their request for records denied makes no sense, has no basis in the statute, and represents a new low in interpreting the open records law. It adds insult to injury, and is like sending a ‘Dear John’ letter postage due.”

July 18, 2014

New immigration detainer policy protects fundamental rights

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The policy of “detain first, investigate later” practiced by federal immigration officials no longer applies in Rhode Island now that the state Department of Corrections must stop honoring immigration detainers issued without probable cause.

In a significant victory for the rights of immigrants and the due process rights of all Rhode Islanders, Governor Chafee on Thursday issued a new policy stopping the DOC from relying on immigration detainers to hold people who otherwise should be released. These detainers requested by Immigration and Customs Enforcement are generally issued with no judicial oversight and keep people in jail simply because the agency wants to investigate them.

Now, ICE must abide by the same rules as any other law enforcement agency and obtain a warrant if it wants the state to detain someone in jail.

This welcomed policy shift is in recognition of a federal court ruling in which U.S. District Court Judge John J. McConnell, Jr. found that holding individuals in jail based on these detainers is likely unconstitutional. That ruling was issued in an ACLU case on behalf of Rhode Island resident Ada Morales who, despite being a U.S. citizen, was twice unlawfully held in jail on the basis of erroneous immigration detainers.

Unfortunately, Ms. Morales is not the only person to be wrongly detained nationwide, but since Judge McConnell’s decision, other courts have issued similar rulings and over 130 local and state governments across the country have voluntarily adopted policies, like the new Rhode Island policy, of no longer honoring ICE detainers that are issued without judicial authorization.

By becoming the latest state to reject ICE’s indiscriminate detainer practices, Rhode Island has stood up for its residents and ensured they are secure in their fundamental right to live free from the fear of unwarranted detention.

June 30, 2014

20+ community groups urge veto of ‘criminal street gang’ bill

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On the last day of the 2014 legislative session, the General Assembly approved legislation that could place at-risk youth in prison for more than a decade–for a crime as simple as graffiti. The legislation (H-7457 as amended and S-2639 as amended) allows up to 10 additional years on the sentence of anyone convicted of any felony “knowingly committed for the benefit, at the direction of, or in association with any criminal street gang or criminal street gang member.”

More than 20 community groups, including the Institute for the Study and Practice of Nonviolence, Providence Youth Student Movement, and the Rhode Island Civil Rights Roundtable, have come together to urge Governor Chafee to veto this dangerous legislation.

In a letter to Governor Chafee, the groups note that this legislation offers an overly broad definition of “criminal street gangs,” does not differentiate between a “gang” that engages in occasional random acts of vandalism and one that has been involved in murders and other serious felonies, and will likely target at-risk youth who have made a mistake.

Here are excerpts from the groups’ letter to Governor Chafee calling for a veto:

“Young people may often be coerced into committing crimes for a gang, facing threats of punishment and harm if they fail to do so. Under this bill, they would bear the brunt of the enhanced sentencing provisions. The bill could even have the unintended effect of encouraging gang leaders to make more use of teens in this position, and help insulate the leaders themselves from the enhanced sentences envisioned by this legislation.”

“Instead of assisting youth who are at risk of becoming involved with dangerous individuals, this legislation puts the state in the position of locking up these at-risk youth for lengthy periods of time with exactly the kind of individuals we should be trying to help them avoid.”

“It is the minority community that suffers the most from gang violence. But it is also our community that suffers the most from overly harsh sentencing laws that, either in purpose or effect, target inner city youth and adults. Rather than imposing more and harsher punishment on offenders, including teenagers, the state should be much more focused on prevention, education and mediation activities.”

There’s still time for you to join the effort to stop this legislation. Call or email Governor Chafee and tell him you want this legislation vetoed.

April 27, 2014April 28, 2014

Judge says Board of Education should discuss NECAP policy in public

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With high school graduation imminently approaching, legislators, mayoral candidates, students, teachers, parents and community organizations have been discussing with frequency the Board of Education’s high stakes testing requirement for seniors. Remarkably, about the only entity that hasn’t publicly discussed the merits of the requirement is the Board itself.

Thanks to a court decision on Friday, that will soon change. But the Board’s refusal for so long to publicly defend their controversial policy – one that has the futures of literally hundreds of students hanging in the balance – demonstrates why it is critical for the General Assembly to step in and halt the NECAP testing requirement.

On three separate occasions in the past nine months, courts have found that the Board violated open government laws in avoiding publicly discussing the NECAP issue. In this most recent ruling, Superior Court Judge Luis Matos ordered the Board to finally come out of hiding.

Specifically, in response to a lawsuit we filed some months ago, the judge has required the Board to publicly discuss and vote on a petition submitted last June that asks the Board to hold a hearing on eliminating high stakes testing.

Last September, in a private meeting – that the judge held was a clear violation of the open meetings law – the Board rejected the petition by a 6-5 vote. Minutes of the secret meeting show that those who voted it down objected to reconsidering the mandate without having fall’s NECAP test results. Well, that excuse no longer exists. We know the results, and we know the harm that the NECAP requirement is wreaking on too many Rhode Island’s seniors, especially students with disabilities, English Language Learners, and those in the inner cities.

The court’s ruling is important for accountability: it is long past due for the Board to have a full and fair airing – in public – about why they think students’ futures should be ruined on the basis of an arbitrary standardized test. But the Board has dawdled long enough. It is difficult to put much faith in an agency that has violated the law three times to avoid the issue.

Whatever the Board ends up doing, let’s hope that legislators will take Friday’s ruling to heart, say “enough is enough,” and pass a bill that, at a minimum, puts a moratorium on high stakes testing. The stakes for hundreds of seniors are too high to wait any longer.

April 15, 2014April 15, 2014

ACLU sues Smithfield for unconstitutional ban on anonymous political speech

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The ACLU of Rhode Island today filed a federal lawsuit to prevent the Smithfield Police Department from continuing to enforce an overly broad state law that makes it a crime to circulate anonymous political literature, including unsigned newspaper editorials. The statute, which carries a potential one-year prison sentence, unconstitutionally bars the distribution of any anonymous political literature that relates to ballot questions or that criticizes a political candidate’s “personal character or political action.”

The U.S. Supreme Court has already ruled an almost identical Ohio statute unconstitutional and called anonymous pamphleteering “an honorable tradition of advocacy and of dissent” designed to “protect unpopular individuals from retaliation – and their ideas from suppression – at the hand of an intolerant society.” That 1995 ruling cited a long history of anonymous political literature in this country, including the Federalist Papers.

Despite the U.S. Supreme Court ruling, the Rhode Island law has never been formally repealed, and last year the Smithfield Police Department arrested a political consultant for purportedly violating it. The Attorney General’s office later dismissed the charges, citing the Supreme Court case. In January, the ACLU wrote town officials to seek assurances that Smithfield police would no longer enforce the statute. The ACLU received no response; instead, news stories quoted town officials as calling the ACLU request “absolute nonsense” and stating that they intended to continue initiating criminal complaints under the statute.

The lawsuit, filed by ACLU of RI volunteer attorney Mark W. Freel, argues that statements like those, “despite clear rulings by the U.S. Supreme Court, and despite positions taken by the State and the Attorney General in other cases, evidence[] a complete disregard for the rights of individuals … who wish to exercise their constitutionally protected right to engage in anonymous pamphleteering and electioneering on matters of public concern.” The suit, which does not challenge other more narrowly tailored disclosure requirements contained in campaign finance laws, seeks a court order declaring the statute unconstitutional, an injunction against any further enforcement of it by the town, and an award of attorney’s fees.

The plaintiff in the suit, Smithfield resident John Blakeslee, has disseminated written political materials over the years that could be deemed to violate the statute’s requirements. He said today: “Sometimes those expressing a minority opinion don’t feel safe giving their name and address, and voicing an unpopular point of view requires anonymity. As a gay rights activist, I participated in many activities in the 80’s and 90’s where identifying myself wasn’t an option; there was a real threat of violence and discrimination from police, employers, neighbors and others. A major reason for the First Amendment’s protection of free speech, including anonymous speech, is to give a voice to the oppressed. Nobody should have to worry about going to prison for exercising that right.”

ACLU attorney Freel added: “There is a long-standing tradition in this country’s legal and political history in favor of the right to comment anonymously on elections and candidates. The U.S. Supreme Court has clearly recognized that right, and has held that it is firmly embodied in the First Amendment to the U.S. Constitution. The Town of Smithfield needs to recognize and respect that right, and any Rhode Island statute that is inconsistent with it should be struck down as unconstitutional.”

ACLU of RI executive Steven Brown noted: “Laws like this can have a chilling effect on free speech, and the town’s unwillingness to acknowledge this is deeply troubling. If Smithfield police want to enforce the law, they should start with the highest law of the land – the Constitution.”

Although anonymous literature that criticizes candidates for public office is a criminal offense under the statute, literature that supports or praises a candidate is not. The lawsuit argues that the statute “is not narrowly tailored to achieve whatever constitutionally legitimate interests the state may have.”

April 3, 2014April 3, 2014

ACLU raises concern about pension settlement voting

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With the first round of voting in the controversial pension reform settlement set to conclude today, the ACLU of Rhode Island has announced plans to submit testimony at an anticipated “fairness hearing,” if one occurs, in order to raise concerns about the settlement’s opt-out voting process.

In the past month, the RI ACLU has received dozens of complaints from union members and retirees about the settlement’s “opt-out” voting process, which counts all unreturned ballots as votes in support of the settlement. In a letter to the complainants, the ACLU acknowledged the legitimacy of those concerns, noting that:

Although opt-out voting is a common practice in class-action litigation, such a procedure occurs after a class has been approved, not before.
An opt-out process fails to give voters the opportunity to abstain or otherwise remain neutral. “The opportunity to take no position on this agreement is one that current union members and retirees should have, and that a normal voting process would allow,” the ACLU letter states.
Referring to reports of qualified individuals who did not receive ballots, and noting other reasons why some voting members might be unable to return theirs, the letter said that “the inadvertent loss of a right to vote is worrisome enough, but the problem is compounded if the loss of that vote actually counts as a vote in one – and only one – particular way.”

A fairness hearing, in which the court decides whether the proposed settlement agreement is fair and reasonable, will only be held if none of the designated “classes” of voters reject the proposal during the two rounds of voting that will take place.

While planning to submit testimony at that hearing, the ACLU advised complainants it would not be taking any independent legal action. The letter concluded by emphasizing that while the ACLU did not “question the good faith of all the parties who have been involved in this intricate litigation . . . an opt-in process is the only fair way to conduct a vote like this.”

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