08-22-99 ACLU Newsfeed -- ACLU News Direct to YOU! ---------------------------------------------------------------- IN THE ACLU NEWSROOM **The Latest News Can Always Be Found At:** http://www.aclu.org/news/pressind.html * ACLU Brings First Federal Challenge to Drug Testing of Students in Academic Courses * Student's Star of David Necklace is Not a 'Gang Symbol,' ACLU of MS Tells School Officials * ACLU Urges Kansas Public Schools to Reject Religion-Based Evolution Teachings in Science Classes * ACLU Urges CA Appeals Court to Declare Use of Pepper Spray Dangerous and Cruel * ACLU of New Jersey Sues Trenton Officials For Denying Public Forum to Community Activist * ACLU Warns Ohio Mayor Not to Stifle Speech on Local Citizen Group's Website * ACLU to File Constitutional Challenge to Vermont's Campaign Finance Restrictions * ACLU of Ohio Blasts Police for Harassing Teens Wearing "Insane Clown Posse" T-Shirts ----------------------------------------------------------------- ACLU Brings First Federal Challenge to Drug Testing of Students in Academic Courses FOR IMMEDIATE RELEASE Wednesday, August 18, 1999 OKLAHOMA CITY, OK -- The American Civil Liberties Union filed a federal lawsuit today on behalf of two high school juniors who are fighting a policy requiring them to take a urine test for certain academic courses. The lawsuit, filed against officials the Tecumseh Board of Education and Public School District in Pottawatomie County, is the first federal challenge to a drug and alcohol testing requirement for students in academic courses. The ACLU is asking the court to ban the practice, saying that it violates the students' constitutional right to be free from unreasonable searches and seizures. At issue is a policy that purportedly requires a urine test of all students in grades 7-12 who sign up for non-athletic extracurricular activities. But some of those activities -- Academic Team, Marching Band and Choir -- are linked to the academic curriculum, and a refusal to take the drug test means no credit for the course and no admission to other activities. For Lindsay Earls and Daniel James, both 16-year-old juniors at Tecumseh High School, that means they are shut out of the demanding courses and activities that now make up their school day -- and that they had planned to include on their college applications. "First, schools wanted to test student athletes, then it was students in extracurricular activities, and now it's students competing in quiz bowls and performing in choir -- where does it end?" said Graham Boyd, Director of the ACLU's Drug Policy Litigation Project and lead counsel for the students. "The district's drug testing policy is more about symbolism than substance," he added. "Tecumseh officials initiated urine testing without any evidence of a drug problem at the school and at a time when government reports show that teen drug use is on the decline nationally." Experts in the fields of medicine and social science agree that policies like Tecumseh's are the wrong approach to preventing drug use. In a 1996 position statement opposing suspicionless drug testing, the American Academy of Pediatrics said that "students and student athletes should not be singled out for involuntary screening for drugs," citing the importance of confidentiality and autonomy for adolescents and lack of accuracy in detecting certain drugs. Earls, a resident of Tecumseh -- a small town 30 miles northwest of Oklahoma City -- said she felt she had no other choice but to consent to the urine test when the program first began last year, because she didn't want to miss out on competing in the Academic Team's quiz bowls or performing in Show Choir and Marching Band. Even more critical, the credit she earns for the courses fulfills the school's fine arts requirement for graduation. The only other option for Earls and other students is a ceramics class or "music appreciation," neither of which involve performance or competition. "I'll take the test again this year if I have to, but I know it's not right and I know it's not fair," Earls said. "That's why I'm fighting it." Daniel James, who also attends Tecumseh High School and lives in the town, said the policy "was like something out of 1984," George Orwell's frightening vision of a society where no one is safe from governmental surveillance. "The policy gives all kinds of people access to my private information when there isn't even any reason to think I'm doing drugs," he said. In fact, as a member of the peer counseling groups Life Guides, James has already voluntarily pledged not to take drugs or alcohol. Of the other school groups he wants to join, Academic Team requires a drug test and Youth Alive, a student prayer group, does not. Recent government studies and other data show that students who participate in after-school activities are among the least likely to use drugs. "Instead of treating all students like suspects, schools should be encouraging them to sign up for activities that guarantee they will be doing something positive under adult supervision," the ACLU's Boyd said. Nonetheless, following a 1995 U.S. Supreme Court decision upholding random drug testing for student athletes in Oregon, many schools implemented drug testing policies. But the Court's finding, Boyd noted, was based on evidence of rampant drug abuse at the school, and specifically did not address whether routine, suspicionless drug testing would be constitutional for either non-athletic or academic programs. A state Supreme Court in Colorado answered that question last year in a case similar to today's challenge, ruling that drug testing for non-athletic activities is unconstitutional. The state did not appeal the ruling to a federal court. The case is Earls v. Board of Education, filed in U.S. District Court for the Western District of Oklahoma. Volunteer attorney Michael Salem of Norman, OK is participating in the lawsuit with lead attorney Boyd of the national ACLU. The ACLU's Drug Policy Litigation Project was established in 1998 to identify and rein in the legal excesses of government's so-called "war on drugs." The ACLU's complaint in the case is available online at: http://www.aclu.org/court/tecumseh.html. Fact Sheet #1: Relevant Case Law is available online at: http://www.aclu.org/library/earlsfact1.html Fact Sheet #2: What the Experts Say is available online at: http://www.aclu.org/library/earlsfact2.html ----------------------------------------------------------------- Student's Star of David Necklace is Not a 'Gang Symbol,' ACLU of MS Tells School Officials FOR IMMEDIATE RELEASE Monday, August 16, 1999 GULFPORT, MS -- The American Civil Liberties Union of Mississippi is intervening on behalf of a Jewish high school student who was told that he could not openly wear his Star of David necklace because it was considered it a gang symbol. If the matter is not resolved favorably at a school board meeting scheduled for 5:30 p.m. tonight, the ACLU said that it may represent the student and his family in a lawsuit. The controversy began at school registration at Harrison Central High School, where 11th-grade student Ryan Green and his father, Tom Green, were told by a guidance counselor that Ryan would have to tuck the necklace inside his shirt. Mr. Green explained to the counselor that Ryan wore the necklace as symbol of his family's Jewish faith. But the Greens were told that a six-pointed star could be a gang symbol. (Six-pointed stars do appear in some gang symbols, but with other elements such as the letter "G" or pitchforks.) When Ryan wore his Star of David necklace to school later in the week, a teacher again told him that he would have to tuck it in his shirt. When his father called principal Janelle Parker, she, too, said that Ryan would have to conceal the necklace. An appeal to the Superintendent's office yielded the same answer. "Ryan Green's Star of David necklace is clearly an expression of his Jewish faith, just as a necklace with a cross is an expression of Christian faith," said David Ingebretsen, Executive Director of the ACLU of Mississippi. "These and other religious symbols are constitutionally protected religious speech." "Coming just days after the shocking attack on a Jewish community center in Los Angeles, I would hope that school officials would have a little more sensitivity to a student's religious beliefs," Ingebretsen added. "The school district is rightly concerned about gang activity," he said. "but they can deal with that concern in a manner that does not violate a student's religious freedom." ----------------------------------------------------------------- ACLU Urges Kansas Public Schools to Reject Religion-Based Evolution Teachings in Science Classes FOR IMMEDIATE RELEASE Friday, August 13, 1999 TOPEKA -- In a letter it is sending to public school districts across the state, the American Civil Liberties Union of Kansas and Western Missouri today warned officials that the teaching of so-called "creation science" could lead to legal action on religious liberty grounds. The ACLU sent the letter after the state Board of Education on Wednesday voted 6-4 to approve new standards for K-12 instruction that remove virtually any mention of evolution from the state-mandated science curriculum and allow schools to substitute theories based on religious doctrine. "The law in this area is clear," the ACLU letter said. "States and school districts may not adopt religious theories as standards in school curricula, nor may they restructure their curricula for the purpose of omitting accepted scientific theories which may conflict with particular religious beliefs." Although the new policy does not explicitly prohibit the teaching of evolution, it does remove the topic from statewide assessment tests, a move that may discourage school districts from including evolution theory in classroom instruction, the ACLU said. "Our public schools bring together children reared in vastly different ways, even in the most homogeneous of communities," said Eddie M. Lorenzo, Legal Director of the ACLU of Kansas and Western Missouri. "When schools try to impose specific religious viewpoints, however, they undermine each family's right to control their own children's religious upbringing." In choosing to do away with mandatory teaching about Darwin's 140-year-old theory of evolution, the Board of Education rejected a plan to maintain accepted science education standards endorsed by all six Board of Regents universities, a 27-member statewide committee of scientists, and Governor Bill Graves, the ACLU noted in the letter. In addition, educators have pointed out that college entrance exams like the SAT and ACT include questions on Darwinism -- questions Kansas students won't be equipped to answer. Several other states, including Ohio and Tennessee (the site of the ACLU's original Scopes "Monkey Trial" case), have sought to force the teaching of creationism in the classroom. But those efforts have been struck down repeatedly by the U.S. Supreme Court as a violation of the separation between church and state. "Having failed to succeed at forcing their so-called "creation-science" on public school students, proponents of creationism are now resorting to the tactic of removing essential scientific instruction," Jay Barrish, president of the ACLU affiliate's board. "We think the courts will ultimately see this tactic for what it is - a blatantly unconstitutional attempt to introduce a specific religious viewpoint into the classroom." The ACLU's letter to school superintendents is available at: http://www.aclu.org/news/1999/n081399a.html The testimony of the ACLU of Kansas and Western Missouri before the School Board is available at: http://www.aclu.org/library/ksevol.html The ACLU's position statement on creation science can be found at http://www.aclu.org/issues/religion/relig2.html ----------------------------------------------------------------- ACLU Urges CA Appeals Court to Declare Use of Pepper Spray Dangerous and Cruel FOR IMMEDIATE RELEASE Thursday, August 12, 1999 SAN FRANCISCO, CA--Non-violent environmental protestors who sued Humboldt County authorities over the use of pepper spray are entitled to a jury trial, the American Civil Liberties Union of Northern California told a federal appeals court today. In a friend-of-the-court brief filed on behalf of the demonstrators, the ACLU said that a lower court erred in ruling that the application of pepper spray to nonviolent protestors engaged in civil disobedience constituted "reasonable force" under the law. On the basis of that finding, the court dismissed the case after a jury deadlocked over the matter. The ACLU argues in its brief that in justifying the denial of a jury trial, the district court and Humboldt officials overstated the constitutional authority to use pain compliance on demonstrators engaged in civil disobedience and understated the harmful impact of pepper spray. On three separate occasions during the protest, Humboldt law enforcement authorities applied Q-tips soaked in pepper spray directly to the eyes of the protesters, who had linked their hands inside metal sleeves. "The ACLU believes that the use of pepper spray as a kind of chemical cattle prod on nonviolent demonstrators resisting arrest constitutes excessive force and violates the Constitution," said Margaret C. Crosby, an ACLU of Northern California staff attorney who wrote the brief with Police Practices Director John Crew. "Certainly, a jury should be afforded an opportunity to evaluate this new experimental use of a chemical weapon." The friend-of-the-court brief summarizes empirical, scientific and toxicological research on pepper spray. "Scientific literature refutes the repeated depiction, by the trial judge and by Humboldt, that pepper spray is a benign organic substance that causes only transient discomfort," the ACLU's Crosby said. "In fact, pepper spray ingredients, alone and in combination with solvents that create the weapon, have a variety of physiological effects," she added. "Courts have recognized that pepper spray may be a dangerous chemical weapon, resulting in liability to government or private parties, or incarceration to criminal defendants." The Ninth Circuit Court of Appeals ruled earlier this year, in the context of sentencing guidelines for criminal defendants, that pepper spray may constitute a dangerous weapon. Federal sentencing guidelines define a dangerous weapon as "capable of inflicting death or serious bodily injury," causing "extreme physical pain or the protracted impairment of a function of a bodily member, organ, or mental faculty; requiring medical interventions such as surgery, hospitalization or physical rehabilitation." The ACLU brief argues that the use of pepper spray on environmental demonstrators requires a jury evaluation under established constitutional standards. The single most important consideration in assessing reasonable use of force is whether the suspect poses an immediate threat to the safety of the officers or others. "The Humboldt authorities arrested peaceful demonstrators, seated, linked and locked into a metal device," Crosby said. "They were dramatizing their commitment to protecting old-growth redwood trees. They were not menacing anyone." Pepper spray weapons - both their active ingredients and their chemical solvents and propellants -- may have damaging short and long-term effects on a number of body systems and functions. These weapons are particularly dangerous for people with compromised health status and for young people. "Pepper spray's effects on the respiratory, ophthalmologic, and neurologic systems may be severe," Crosby added. "Studies also show that pepper spray may produce carcinogenic effects and disrupt the body's temperature regulation system." The ACLU brief details animal studies, research and case studies involving humans. The report includes incidents of correctional officers suffering physical injuries during training exercises with pepper spray; emergency room reports of eye injuries from pepper spray; children hospitalized after accidental exposure to pepper spray; spice workers suffering respiratory ailments from long-term exposure to pepper spray's active ingredients; and cancer rates in countries with high consumption of hot peppers. The brief was submitted to the Ninth Circuit Court of Appeals. The name of the case is Headwaters Forest Defense v. County of Humboldt. ----------------------------------------------------------------- ACLU of New Jersey Sues Trenton Officials For Denying Public Forum to Community Activist FOR IMMEDIATE RELEASE Thursday, August 12, 1999 TRENTON, NJ -- The American Civil Liberties Union of New Jersey today filed a lawsuit against city officials for refusing to allow a local community activist to use the City Hall Atrium for a press conference. The controversy arose when the Trenton officials denied activist Juan Martinez use of the public space after learning that he planned to criticize the Mayor Douglas H. Palmer's choice for a new police chief. The City also refused to provide any guidelines for its decision to grant or deny a request to use the facility. "The City of Trenton violated Martinez's First Amendment rights in at least two ways," said Grayson Barber, cooperating attorney for the ACLU of New Jersey. "First, it denied public access to a public forum based on the content of his speech." "Second," he explained, "its 'approval' process for use of the Atrium -- for which there are no clear guidelines -- amounts to an impermissible licensing scheme that imposes an unconstitutional prior restraint on speech." Martinez was barred from using the Atrium despite the fact that the mayor and other politicians, community leaders, and members of the public have used the space for a variety of expressive activities. "This is not just about me," said Martinez. "This is about everyone who wishes to exercise their constitutional rights." "Just because someone disagrees with the mayor on certain issues, that does not give the City the right to silence him," he added. The ACLU said that in design, purpose, function, and use, the City Hall Atrium and adjacent plaza are equivalent to a public park and thus are "traditional" public forums in which the government may not censor speech. "The Atrium is, in essence, a public park with a glass roof over a portion of it," said Frank Corrado, co-counsel for the ACLU of New Jersey. "Just as the government may not ban Mr. Martinez from setting up a soap box in the park, neither may it banish him from speaking in the Atrium." Lenora Lapidus, Legal Director of the ACLU of New Jersey said the city's action was a classic example of the government trying to freeze out the opinions of those who may be critical of official policy. "The mayor cannot stay warm and dry inside the Atrium while banishing his critics to shiver outside in the elements," Lapidus said. The lawsuit, Martinez v. City of Trenton, was filed in United States District Court in Trenton against the City of Trenton, Mayor Palmer and Eric Tunstall, Director of Public Property for the City. ----------------------------------------------------------------- ACLU Warns Ohio Mayor Not to Stifle Speech on Local Citizen Group's Website FOR IMMEDIATE RELEASE Thursday, August 12, 1999 CLEVELAND, OH -- The American Civil Liberties Union of Ohio today sent a letter to Berea Mayor Stanley Trupo, warning him to cease efforts to shut down a website critical of him and other city officials. The website is hosted by the Berea Town Forum, a group of local citizens that meets regularly to discuss important civic issues. Much of the group's efforts are focused on preserving the small town charm of Berea and lobbying against excessive commercial development. Such efforts have pitted them against the Mayor, who the group says is too pro-development. The Town Forum web site, at www.bereatownforum.com, included a discussion page where visitors could post comments regarding local issues. Much of the material posted was criticism directed at local government officials, including Trupo. The ACLU said the mayor's threats of legal action in response to the online criticism resulted in an unconstitutional "chilling effect" on the citizen group. According to a local newspaper, Trupo directed the city's legal counsel and prosecutor to review taking legal action against those responsible for the website, saying that he would not hesitate to "conduct a full-scale investigation of the matter." As a result of these public threats, the Forum shut down the discussion part of its website. Members of the group are now planning to re-open this portion of the website by the end of this week. "Criticism of government officials is at the core of the First Amendment," said Gino Scarselli, Associate Legal Director for the ACLU of Ohio. "Mayor Trupo needs to realize that the Bill of Rights applies to all government officials, including those in Berea." ----------------------------------------------------------------- ACLU to File Constitutional Challenge to Vermont's Campaign Finance Restrictions FOR IMMEDIATE RELEASE Thursday, August 12, 1999 MONTPELIER, VT -- New campaign finance restrictions on contributions and spending cut to the heart of the First Amendment's protection of political freedom, according to a lawsuit to be filed tomorrow in U.S. District Court by the American Civil Liberties Union of Vermont. The suit asks the court to declare certain provisions of Vermont's 1997 campaign finance reform law unconstitutional and to issue a permanent injunction barring enforcement of the challenged provisions. "The very essence of the First Amendment is the right of the people to run for public office, to speak, to discuss, to publish, to organize and to join together on issues of political and public concern," the ACLU's complaint said. The lawsuit was filed on behalf of George Kuusela, a Republican, and Neil Randall, a Libertarian, both candidates for the Vermont House of Representatives in the year 2000; John Patch, a Democratic candidate for the Vermont Senate; Steve Howard, a former candidate for Auditor of Accounts who dropped out of the running in part because of the new law; Jeffrey Nelson, a campaign contributor who believes that the reduced limits on contributions violate his right to free speech and association; and the Vermont Libertarian Party. "In our zeal to get at big corporations and interest groups, we are hurting the little guy," said Leslie Williams, Executive Director of the ACLU of Vermont. "The law helps incumbents and hobbles the underdog who wants to run for office, prevents ordinary people from participating in the political process, and suggests that Vermont will be corrupted if people from out of state want to help finance a campaign," she added. The ACLU is not challenging the parts of the law that allow for public financing and voluntary spending limits for candidates, provisions which it considers to be reasonable and constitutional. However, Vermont's new spending limits are in direct violation of the U.S. Supreme Court ruling in Buckley v. Valeo and therefore clearly unconstitutional, a fact which the legislature knew when it passed the law, according to the ACLU. The Supreme Court has consistently rejected any attempt to put limits on a candidate's expenditures, and repeatedly emphasized that the avoidance of quid pro quo corruption is the ACLU Challenge to Campaign Finance Restrictions, only justification for campaign finance regulation. In Vermont's law, limits as low as $200, $300 and $400, depending upon the race, do not further a government interest in reducing the risk of corruption. The ACLU maintains that "it is neither intuitive, nor was there any record before the legislature, that Vermont's elected representatives would sell their votes for such paltry sums," nor that the previous $1,000 contribution limit had allowed corruption. Mandatory provisions of the new law that are challenged include: 1.limits on the amount of money individuals and organizations, including political parties and political action committees, may contribute to a candidate; 2.limiting to 25% the aggregate amount of money that a candidate can accept from out-of-state voters; 3.limits on the amount candidates can spend on their own campaigns; and 4.treating independent expenditures by political parties as direct contributions to candidates. All of these provisions, according to the ACLU, not only violate the First Amendment but fail in their professed intent to prevent corruption and give a fair chance to all candidates. Lawyers representing the ACLU as Cooperating Attorneys include Peter F. Langrock, Mitchell L. Pearl, Joshua R. Diamond, Melanie McNeil Kehne, David Putter, and Mark Lopez. Lopez is on the staff of the National ACLU and has been involved in ACLU challenges to campaign finance reform laws in other states, including Maine. ----------------------------------------------------------------- ACLU of Ohio Blasts Police for Harassing Teens Wearing "Insane Clown Posse" T-Shirts FOR IMMEDIATE RELEASE Thursday, August 12, 1999 CLEVELAND -- The American Civil Liberties Union of Ohio today said it may take legal action against Northwood officials after police officers harassed two 8th-graders because of their T-shirt choice, confiscating one of the shirts. The two youths in question were walking through a Northwood neighborhood last Tuesday when three police officers stopped them. The officers began to harass and intimidate them because they were both wearing T-shirts, one with profanities, promoting Insane Clown Posse, a popular rock/rap band. The youths said the officers told them that they could not wear such shirts in Northwood and that if one of them did not take the shirt off, the officer would "rip it off" of him. "Whatever the officers may think, the First Amendment protects the right to say offensive things, and police may not strong-arm juveniles for exercising their constitutional right to free expression," said ACLU of Ohio Vice President Jeffrey Gamso. One of the officers also allegedly claimed that the state had banned Insane Clown Posse shirts and that Northwood police were going to start enforcing the ban. "You can't be wearing that out in public," Detective Sgt. Al Williams told the Toledo Blade in an August 7 interview, declaring that wearing the T-shirt "is not freedom of speech." Another police officer, Joe Conley, told the Blade that he could have charged one of the youths with disorderly conduct because of the T-shirt. "All three officers are wrong," Gamso said. "The people of Northwood should be ashamed of the officers' actions," he added, noting that confiscation of the T-shirt also violated the Fourth Amendment's prohibition against unlawful seizure. "Almost as shocking as the incident itself is the fact that the officers continue to maintain that they did nothing wrong," said Christine Link, Executive Director of the ACLU of Ohio. "It is a truly dismal situation when police, sworn to uphold the Constitution, display no knowledge of the document itself." ----------------------------------------------------------------- ONLINE RESOURCES FROM THE ACLU NATIONAL OFFICE ----------------------------------------------------------------- ACLU Freedom Network Web Page: http://www.aclu.org. 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