ALL VIDEOS

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Right to Read: Protecting Michigan's Future

February 02, 2015

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Detroit Water Crisis: Keep the Water Running

February 16, 2015

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campaign1

February 09, 2015

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campaign2

March 09, 2015

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Legislation3

February 05, 2015

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campaign3

March 09, 2015

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video2

June 09, 2015

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Water Crisis: Keep the Water Running

March 16, 2015

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Sample event2

June 11, 2015

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Ruling Recognizing 300 Marriages of Same-Sex Couples.

June 15, 2015

In the last year, LZ has written powerfully and poignantly about Ferguson, Missouri, and the truths about race and racism that we as Americans must face. In addition to his insightful and deeply personal writing on racial justice, LZ and his partner are actively involved in the movement for marriage equality. LZ can be regularly seen and read on ESPN, ESPN.com, and CNN.

Thursday, May 14 from 11:30 a.m. to 1:30 p.m.
Frederik Meijer Gardens and Sculpture Park
1000 East Beltline Avenue NE, Grand Rapids

Additionally, we will honor two very special ACLU clients –- Luis Valdez and his mother, Telma. Luis and Telma Valdez, a U.S. citizen and legal permanent resident, bravely came forward after they were arrested and Telma was assaulted by federal immigration agents who believed they were in the U.S. unlawfully.

Please RSVP by May 1. This luncheon is open to the public. A suggested donation of $100 is kindly requested at the event.

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Standing Together for Justice: ACLU West Michigan Luncheon

May 14, 2015

In the last year, LZ has written powerfully and poignantly about Ferguson, Missouri, and the truths about race and racism that we as Americans must face. In addition to his insightful and deeply personal writing on racial justice, LZ and his partner are actively involved in the movement for marriage equality. LZ can be regularly seen and read on ESPN, ESPN.com, and CNN.

Thursday, May 14 from 11:30 a.m. to 1:30 p.m.
Frederik Meijer Gardens and Sculpture Park
1000 East Beltline Avenue NE, Grand Rapids

Additionally, we will honor two very special ACLU clients –- Luis Valdez and his mother, Telma. Luis and Telma Valdez, a U.S. citizen and legal permanent resident, bravely came forward after they were arrested and Telma was assaulted by federal immigration agents who believed they were in the U.S. unlawfully.

Please RSVP by May 1. This luncheon is open to the public. A suggested donation of $100 is kindly requested at the event.

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ACLU of Michigan Sues State to Overturn Unconstitutional Ban on Commercial Speech

June 16, 2015

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In a unanimous decision today, a federal appeals court struck down the government's blanket policy of conducting secret deportation hearings inpost-9/11 cases as a violation of the First Amendment. It is the first such decision by a federal appellate court anywhere in the country. Also read the press release from Congressman John Conyers, Jr.

We applaud this decision for recognizing the importance of the right of the press and the public to know what's going on in our courts," said Kary Moss, ACLU of Michigan executive director. "As Judge Keith said, writing for the court, 'Democracies die behind closed doors,’ and the court sent a clear message that this administration can't run a secret government." 

Under the challenged policy, the press and public (including family members) were automatically excluded from any deportation hearing designated by the Justice Department as a "special interest case."  In declaring that policy unconstitutional, the United States Court of Appeals for the Sixth Circuit emphasized the value of open proceedings and stressed that any legitimate security concerns must be addressed on a case-by-case basis and not through a categorical closure order. 

According to the Court opinion, "The only safeguard on this extraordinary governmental power is the public, deputizing the press as the guardians of their liberty....the Executive Branch seeks to take this safeguard away from the public by placing its actions beyond public scrutiny. Against non-citizens, it seeks the power to secretly deport a class if it unilaterally calls them 'special interest' cases.  The Executive Branch seeks to uproot people's lives, outside the public eye, and behind a closed door." 

Lee Gelernt, Senior Staff Counsel with the National ACLU Immigrants Rights Project, who argued the case before the Appeals Court said, "The court's opinion makes clear that blanket closure orders are unconstitutional and that the government may not simply unilaterally declare that an entire category of cases will be conducted behind closed doors without any public scrutiny." 

The lawsuit, Detroit News, Inc., et al v. Ashcroft et al, was filed by the national and state offices of the ACLU on behalf of Representative John Conyers Jr., the Detroit News, and the Metro Times, an alternative weekly after the public and the press were turned away from the deportation hearings in the case of Rabih Haddad. 

The plaintiffs in the Detroit News case were represented by Lee Gelernt, Lucas Guttentag, and Steven R. Shapiro of the national ACLU; Michael J. Steinberg and Kary Moss of the ACLU of Michigan, Leonard M. Niehoff of Butzel, Long, P.C.; and John J. Romayne, III of Kasiborski, Romayne & Flaska. 

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Secret Deportation Hearings Unconstitutional

August 26, 2002

In a unanimous decision today, a federal appeals court struck down the government's blanket policy of conducting secret deportation hearings inpost-9/11 cases as a violation of the First Amendment. It is the first such decision by a federal appellate court anywhere in the country. Also read the press release from Congressman John Conyers, Jr.

We applaud this decision for recognizing the importance of the right of the press and the public to know what's going on in our courts," said Kary Moss, ACLU of Michigan executive director. "As Judge Keith said, writing for the court, 'Democracies die behind closed doors,’ and the court sent a clear message that this administration can't run a secret government." 

Under the challenged policy, the press and public (including family members) were automatically excluded from any deportation hearing designated by the Justice Department as a "special interest case."  In declaring that policy unconstitutional, the United States Court of Appeals for the Sixth Circuit emphasized the value of open proceedings and stressed that any legitimate security concerns must be addressed on a case-by-case basis and not through a categorical closure order. 

According to the Court opinion, "The only safeguard on this extraordinary governmental power is the public, deputizing the press as the guardians of their liberty....the Executive Branch seeks to take this safeguard away from the public by placing its actions beyond public scrutiny. Against non-citizens, it seeks the power to secretly deport a class if it unilaterally calls them 'special interest' cases.  The Executive Branch seeks to uproot people's lives, outside the public eye, and behind a closed door." 

Lee Gelernt, Senior Staff Counsel with the National ACLU Immigrants Rights Project, who argued the case before the Appeals Court said, "The court's opinion makes clear that blanket closure orders are unconstitutional and that the government may not simply unilaterally declare that an entire category of cases will be conducted behind closed doors without any public scrutiny." 

The lawsuit, Detroit News, Inc., et al v. Ashcroft et al, was filed by the national and state offices of the ACLU on behalf of Representative John Conyers Jr., the Detroit News, and the Metro Times, an alternative weekly after the public and the press were turned away from the deportation hearings in the case of Rabih Haddad. 

The plaintiffs in the Detroit News case were represented by Lee Gelernt, Lucas Guttentag, and Steven R. Shapiro of the national ACLU; Michael J. Steinberg and Kary Moss of the ACLU of Michigan, Leonard M. Niehoff of Butzel, Long, P.C.; and John J. Romayne, III of Kasiborski, Romayne & Flaska. 

The ACLU of Michigan filed a federal lawsuit today challenging a police practice of forcing pedestrians under age 21 to take a Breathalyzer test without first obtaining a search warrant.  The case was filed against the City of Bay City on behalf of Jamie Spencer, a 20-year-old woman who was forced by an officer to take a breath test or pay a $100 fine even though she had not been drinking alcohol.

“It is time stop the widespread practice in this state of punishing young people who are walking down the street for refusing to submit to a Breathalyzer test,” said Kary Moss, executive director of the Michigan ACLU. “The Constitution is clear no search warrant, no Breathalyzer. Police cannot force pedestrians to submit to an unconstitutional search.”

The case stems from an encounter that Mrs. Spencer had with the Bay City police in August, 2001, when she was 19 years old. She, her husband and some friends had just finished rollerblading in a Bay City park and were preparing to leave, when two officers approached Mrs. Spencer and demanded that she blow into a breathalyzer machine.

She told the officers that she had not been drinking and that she did not want to take the test. However, when the officers threatened her with a $100 fine, she felt that she had no choice, and submitted to the test. The test indicated that she had not been drinking.

“The entire experience was demeaning. Even though I had done nothing wrong, the police invaded my privacy,” said Mrs. Spencer. “I want to make sure that police stop harassing innocent young people by forcing them to take Breathalyzer tests.”

The ACLU lawsuit challenges a Bay City ordinance that makes it illegal for a person to refuse to consent to a breath test when asked to do so by the police. According to the ACLU, the ordinance violates the Fourth Amendment prohibition against illegal searches because (1) a breath test is a search, (2) no search warrant is required, and (3) no exceptions to the search warrant requirement are present. The suit does not challenge the requirement that drivers submit to breath tests when there is evidence of drinking because driving is a privilege, not a right.

The Bay City ordinance being challenged is nearly identical to a state law and the case is likely to have statewide impact. “It is common at the University of Michigan for police to stop students walking across campus and force them to breathe into a Breathalyzer machine,” said Robert Goodspeed, a University of Michigan student and president of the campus ACLU. “The police also come into house parties and force everyone present to give a breath test whether they have been drinking or not.”

Mrs. Spencer is represented by David A. Moran, a volunteer ACLU attorney and Wayne State University law professor, Michael J. Steinberg, Legal Director of the Michigan ACLU, and William T. Street, a volunteer ACLU lawyer from Saginaw. Read the complaint.

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ACLU Lawsuit Challenges Unconstitutional Breathalyzer Tests for Pedestrians

August 04, 2005

The ACLU of Michigan filed a federal lawsuit today challenging a police practice of forcing pedestrians under age 21 to take a Breathalyzer test without first obtaining a search warrant.  The case was filed against the City of Bay City on behalf of Jamie Spencer, a 20-year-old woman who was forced by an officer to take a breath test or pay a $100 fine even though she had not been drinking alcohol.

“It is time stop the widespread practice in this state of punishing young people who are walking down the street for refusing to submit to a Breathalyzer test,” said Kary Moss, executive director of the Michigan ACLU. “The Constitution is clear no search warrant, no Breathalyzer. Police cannot force pedestrians to submit to an unconstitutional search.”

The case stems from an encounter that Mrs. Spencer had with the Bay City police in August, 2001, when she was 19 years old. She, her husband and some friends had just finished rollerblading in a Bay City park and were preparing to leave, when two officers approached Mrs. Spencer and demanded that she blow into a breathalyzer machine.

She told the officers that she had not been drinking and that she did not want to take the test. However, when the officers threatened her with a $100 fine, she felt that she had no choice, and submitted to the test. The test indicated that she had not been drinking.

“The entire experience was demeaning. Even though I had done nothing wrong, the police invaded my privacy,” said Mrs. Spencer. “I want to make sure that police stop harassing innocent young people by forcing them to take Breathalyzer tests.”

The ACLU lawsuit challenges a Bay City ordinance that makes it illegal for a person to refuse to consent to a breath test when asked to do so by the police. According to the ACLU, the ordinance violates the Fourth Amendment prohibition against illegal searches because (1) a breath test is a search, (2) no search warrant is required, and (3) no exceptions to the search warrant requirement are present. The suit does not challenge the requirement that drivers submit to breath tests when there is evidence of drinking because driving is a privilege, not a right.

The Bay City ordinance being challenged is nearly identical to a state law and the case is likely to have statewide impact. “It is common at the University of Michigan for police to stop students walking across campus and force them to breathe into a Breathalyzer machine,” said Robert Goodspeed, a University of Michigan student and president of the campus ACLU. “The police also come into house parties and force everyone present to give a breath test whether they have been drinking or not.”

Mrs. Spencer is represented by David A. Moran, a volunteer ACLU attorney and Wayne State University law professor, Michael J. Steinberg, Legal Director of the Michigan ACLU, and William T. Street, a volunteer ACLU lawyer from Saginaw. Read the complaint.

The national ACLU gives out ten awards of $4000 each to students around the country who have been active leaders or participants in a civil rights or civil liberties struggle. Submission information is located in the press release.

ACLU YOUTH SCHOLARSHIP AWARDS

The national ACLU gives out ten awards of $4000 each to students around the country who have been active leaders or participants in a civil rights or civil liberties struggle. Nominations should be sent, by December 1, to:

Kary L. Moss, Esq.
Executive Director
ACLU of Michigan
60 West Hancock
Detroit, MI 48226

Criteria 
Candidates must be graduating seniors who intend to go to college during the next academic year. They must have demonstrated a strong commitment to civil liberties through some form of student activism. 

Examples include

  • playing a leadership role in establishing a students civil liberties club or group;
  • demonstrating a commitment to a particular ACLU issue through such activities as organizing a rally, circulating a petition, etc.;
  • serving actively as a plaintiff in an ACLU lawsuit;
  • participating in an affiliate student or youth-oriented activity;
  • serving on the affiliate board of directors or some other leadership committee (but not at the national level).

Process
The student candidate must write a personal essay describing his or her reason for becoming a civil liberties/civil right activist. Each state office will make one recommendation that will be forwarded to the national office for a final selection.

The criteria for a scholarship award will be: (a) strength and depth of the candidate's contributions to civil liberties and the rights of young people; (b) the likelihood of their continuing commitment in the future; and (c) the obstacles the candidate had to overcome (e.g., living in a hostile community).

Timeline
December 1, 2001. Student statement must be submitted to the ACLU of Michigan.

December 15, 2001: Affiliates submit candidate applications to Public Education Department for duplication and distribution to judges.

February 15, 2002: Judges select 10 winners.

March 15, 2002: Scholarship funds distributed to winners.

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Annual National ACLU Youth Scholarship Awards

November 18, 2002

The national ACLU gives out ten awards of $4000 each to students around the country who have been active leaders or participants in a civil rights or civil liberties struggle. Submission information is located in the press release.

ACLU YOUTH SCHOLARSHIP AWARDS

The national ACLU gives out ten awards of $4000 each to students around the country who have been active leaders or participants in a civil rights or civil liberties struggle. Nominations should be sent, by December 1, to:

Kary L. Moss, Esq.
Executive Director
ACLU of Michigan
60 West Hancock
Detroit, MI 48226

Criteria 
Candidates must be graduating seniors who intend to go to college during the next academic year. They must have demonstrated a strong commitment to civil liberties through some form of student activism. 

Examples include

  • playing a leadership role in establishing a students civil liberties club or group;
  • demonstrating a commitment to a particular ACLU issue through such activities as organizing a rally, circulating a petition, etc.;
  • serving actively as a plaintiff in an ACLU lawsuit;
  • participating in an affiliate student or youth-oriented activity;
  • serving on the affiliate board of directors or some other leadership committee (but not at the national level).

Process
The student candidate must write a personal essay describing his or her reason for becoming a civil liberties/civil right activist. Each state office will make one recommendation that will be forwarded to the national office for a final selection.

The criteria for a scholarship award will be: (a) strength and depth of the candidate's contributions to civil liberties and the rights of young people; (b) the likelihood of their continuing commitment in the future; and (c) the obstacles the candidate had to overcome (e.g., living in a hostile community).

Timeline
December 1, 2001. Student statement must be submitted to the ACLU of Michigan.

December 15, 2001: Affiliates submit candidate applications to Public Education Department for duplication and distribution to judges.

February 15, 2002: Judges select 10 winners.

March 15, 2002: Scholarship funds distributed to winners.

The U of M Chapter of the ACLU and the University of Michigan Students for Choice-VOX invite you to attend a two-day conference on Jan. 24 and 25.

Giving Voice to Reproductive Empowerment
Commemorate the 30-year anniversary of the landmark decision Roe v Wade
Friday, January 24th in the Michigan Union Pendelton Room, at 6:00 pm and January 25th  in the Michigan Union's Kuenzel and Wolverine ABC rooms from 9:30am - 5:00pm

The Conference will include: A keynote lecture by Laura Kaplan, a former counselor for the underground feminist abortion service "Jane" in pre-Roe Chicago and author of the book "The Story of Jane: The Legendary Underground Feminist Abortion Service" A screening of the feminist documentary "Jane: an Abortion Service" will follow. A day full of speaker panels and workshops. Topics include: global women's health, safer sex practices, how to mobilize youth, abortion myths, how to continue activism through internships and feminist careers, the role of religion in the debate, current legal issues in the world of reproductive rights, community organizing and much more! 

Speakers include members of the Religious Coalition for Reproductive Choice, MARAL, Center for Reproductive Law and Policy of New York City, Planned Parenthood, National Organization for Women, HIV/AIDS Resource Center, Alea Woodlee -- the Executive Director of the Pro-Choice Public Education Project of New York City, Kary Moss - the Director of Michigan ACLU, as well as wonderful professors from University of Michigan !

Please e-mail michiganroe@umich.edu if you have any questions or consult http://www.umich.edu/~umsfc  for conference updates. Please join us for this special event!  

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Roe v. Wade Event at U of M

December 01, 2009

The U of M Chapter of the ACLU and the University of Michigan Students for Choice-VOX invite you to attend a two-day conference on Jan. 24 and 25.

Giving Voice to Reproductive Empowerment
Commemorate the 30-year anniversary of the landmark decision Roe v Wade
Friday, January 24th in the Michigan Union Pendelton Room, at 6:00 pm and January 25th  in the Michigan Union's Kuenzel and Wolverine ABC rooms from 9:30am - 5:00pm

The Conference will include: A keynote lecture by Laura Kaplan, a former counselor for the underground feminist abortion service "Jane" in pre-Roe Chicago and author of the book "The Story of Jane: The Legendary Underground Feminist Abortion Service" A screening of the feminist documentary "Jane: an Abortion Service" will follow. A day full of speaker panels and workshops. Topics include: global women's health, safer sex practices, how to mobilize youth, abortion myths, how to continue activism through internships and feminist careers, the role of religion in the debate, current legal issues in the world of reproductive rights, community organizing and much more! 

Speakers include members of the Religious Coalition for Reproductive Choice, MARAL, Center for Reproductive Law and Policy of New York City, Planned Parenthood, National Organization for Women, HIV/AIDS Resource Center, Alea Woodlee -- the Executive Director of the Pro-Choice Public Education Project of New York City, Kary Moss - the Director of Michigan ACLU, as well as wonderful professors from University of Michigan !

Please e-mail michiganroe@umich.edu if you have any questions or consult http://www.umich.edu/~umsfc  for conference updates. Please join us for this special event!  

Marchwinski v. Family Independence Agency

Michigan stands alone in requiring its residents to provide a drug-free urine sample in order to continue receiving the state's assistance in achieving "family independence."

Because abuse of alcohol and other drugs, often in conjunction with mental health problems, can interfere with employment, most states have created substance abuse treatment and counseling -- and every state except Michigan has determined that these treatment programs will work better without coerced drug testing.

As the ACLU's lawsuit asserts, Michigan's welfare recipients have done nothing to lower their expectation of privacy. They are no different than virtually every member of the general population who chooses to make use of some form of governmental benefits or subsidies, including tax credits, medical insurance, and scholarships. 

The drug-testing regime was scheduled to go into effect on October 1, 1999. The three sites chosen for a pilot program were Alpena County and Presque Isle Counties, Barrien County and a designated area of Western Wayne County.

Historical Background

Michigan's drug testing program was authorized under the Personal Responsibility and Work Opportunity Act of 1996 — Congress' much-publicized federal welfare reform law. The law authorized states to impose drug testing on welfare recipients — an invitation no state has taken until now — and imposed strict time limits on the period any individual can receive benefits, prompting states to devise new ways to move recipients from welfare into employment.

Ignoring the less restrictive approaches of other states, Michigan enacted MCLA 400.57l, a law authorizing "substance abuse testing as a condition of eligibility for family independence assistance." The law directs the Family Independence Agency to "implement a pilot program of substance abuse testing as a condition of family independence assistance eligibility in at least three counties, including random substance abuse testing."

Although the legislature called for "substance abuse testing," the most commonly abused and most lethal drugs alcohol and tobacco will not be a part of the testing program. 

Consequences of a Positive Drug Test

Refusal to agree to random drug testing will result in denial or termination of FIA income support. The state may also terminate medical insurance, food stamps, and support for pregnant women or nursing mothers.

Parents terminated from FIA assistance are twice as likely to lose custody of their children. Rates of homeless, malnutrition, and unemployment all increase drastically upon termination of FIA assistance.

FIA participants who submit to drug testing also risk losing this same vital assistance. According to Michigan's law, "failure to comply" with a substance abuse treatment plan "shall be penalized in the same manner as a work-first program violation" a penalty that includes "reduction" or "termination" of assistance under FIA programs. 

State officials and the legislature have not made clear what actions constitute "failure to comply" with a treatment program. If compliance with drug treatment means that a person must become entirely drug-free within a specified period of time and remain drug-free for the duration of FIA assistance, then FIA participants with a diagnosable medical condition addiction will be excluded from FIA programs unless they are successfully cured of this condition on a schedule and by a treatment modality dictated by a government agency. Such an approach makes a mockery of sound medical practice.

Barriers to Employment

There is no rational basis for singling out welfare recipients for drug testing. Michigan's FIA participants do not fit the description of any category of individuals previously subjected to governmental drug testing. They do not perform dangerous tasks like operating a nuclear power plant, driving a train, or carrying a firearm, and they are not entrusted with sensitive governmental operations like drug interdiction or handling classified information.

Numerous studies identify barriers to employment of much greater significance than use of illegal drugs: low skills; lack of child care; lack of housing; depression and other forms of mental illness; and alcoholism. Most states address these issues with training, counseling and appropriate support, and all states address these issues with less restrictive means than now employed by the defendants. Abuse of illegal drugs, however, affects welfare recipients in roughly the same measure as the general population, and rarely stands alone as a barrier to employment. 

States have more effective options for assisting FIA recipients in addressing substance abuse. These include the provision of income assistance and voluntary, comprehensive mental health treatment, not by threatening to deny assistance unless the recipient agree to a drug test. Research demonstrates that supplemental income helps drug and alcohol users decrease or cease their use of harmful substances by bringing stability to their lives. Substance use and abuse is also frequently connected to depression or other mental health problems, thus making mental health services vital in overcoming addiction to alcohol or other drugs. 

Welfare Drug Testing in Other States

After a brief use of drug testing in parts of Oregon, officials specifically rejected drug testing because welfare recipients became so angry and suspicious that drug treatment became more difficult, because the testing did nothing to address the far more significant problem of alcoholism, and because non-invasive screening devices were effective in identifying individuals in need of treatment.

Florida and Louisiana have considered such programs too, but Florida shelved its plans after threat of an ACLU lawsuit, and the Louisiana legislature has not yet appropriated the funds needed to implement a program.

ACLU Fact Sheet #2: What the Experts Say

The rationale for drug testing is based on myth, not fact. According to a federal study, "[t]he percentage of welfare recipients using, abusing, or dependent on alcohol or drugs [is] relatively small and consistent with the general US population and those not receiving welfare benefits." B. Grant and D. Dawson, "Alcohol and Drug Use, Abuse, and Dependence among Welfare Recipients," 86 American Journal of Public Health 1450 (Oct. 1996). 

Other studies indicate a somewhat greater rate of overall drug consumption among welfare recipients -- mainly use of marijuana but indistinguishable rates of drug abuse, especially for drugs other than marijuana. 

Citing a new federal study that found that 70 percent of drug users are employed full time, the nation's Drug Czar, Barry McCaffrey pointed out: "The typical drug abuser is not poor and unemployed. He or she can be a co-worker, a husband or wife, a parent." "Worker Drug Use and Workplace Policies and Programs: Results from the National Household Survey on Drug Abuse" (Sept. 8, 1999). 

In any event, drug use is not a primary barrier to employment for Michigan's welfare recipients. A recent University of Michigan study reveals that FIA participants "have unusually high levels of some barriers to work, such as physical and mental health problems, domestic violence, and lack of transportation, but relatively low levels of other barriers, such as drug or alcohol dependence." S. Danzinger, et al., "Barriers to the Employment of Welfare Recipients," 3-4 (July 1999). 

Michigan has failed to ensure that comprehensive drug treatment programs, including residential care programs with child care facilities, exist to ensure that those identified with substance abuse difficulties can obtain adequate drug treatment. Without adequate treatment, recipients with substance abuse problems cannot be moved from assistance to employment. Mandated drug testing has nowhere to go. For example, although it is recognized that treatment programs must be equipped to provide access to quality childcare services, none of the available drug treatment programs in the three pilot areas, to the best of our knowledge, are equipped with childcare services. 

As one expert has recognized: "The lack of childcare services is repeatedly cited in drug abuse surveys as an inhibiting factor that affects not only a woman's decision to enter treatment but also her retention in a program (National Institute on Drug Abuse, 1979)." M. Blasinsky, "Childcare Support Services for Female Clients in Treatment," in Treatment Services for Drug Dependent Women (U.S. Department of Health and Human Services, Vol. 1, 1981), p. 408.

ACLU Fact Sheet #3: Urine Testing Cannot Reliably Identify Drug Abuse/Addiction

Urine testing is performed by immunoassay, a methodology subject to several sources of error. The most common disadvantage associated with the test is the production of "false positives" (incorrectly detecting the presence of chemical metabolites, or residues, where none are present). 

This can occur due to the nature of the technology, which relies on the detection of color changes in the urine after reaction to drug metabolites. When non-illegal chemicals create color changes similar to the change created by metabolites of prohibited substances, some individuals tested may be incorrectly identified as drug users. Examples of such chemicals are ibuprofen, which can react as a false positive for marijuana, and the metabolites of poppy seeds, which can react as a false positive for narcotics. 

In addition, drug testing is notoriously over and under-inclusive. For example, testing positive for the presence of marijuana does not provide proof or even strong evidence of drug addiction. And conversely, an abusive pattern of cocaine binges will not register on a drug test unless drug use occurred within 24-48 hours before collection of a urine sample. 

ACLU Fact Sheet #4: Cases Relating to Suspicionless Drug Testing Of Welfare Recipients

Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602 (1989)
The Supreme Court held that a suspicionless drug-testing program designed to test railroad employees after they were involved in accidents was constitutional under the Fourth Amendment, given such factors as the government's compelling interest in regulating the conduct of railroad employees who were engaged in safety-sensitive tasks and capable of causing "great human loss before any signs of impairment become noticeable to supervisors or others."

National Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989)
The Supreme Court held that suspicionless drug-testing of U.S. Customs Service employees applying for promotion to positions involving interdiction of illegal drugs or requiring them to carry firearms was reasonable under the Fourth Amendment, given the extraordinary safety and national security hazards that would attend the sensitive positions in question.

Vernonia School District v. Acton, 515 U.S. 646 (1995)
Applying Skinner and Von Raab, a divided Supreme Court upheld as constitutional a school district policy requiring students to consent to random drug testing as a condition for participation in interscholastic athletics. Balancing the students' expectations of privacy and the intrusive nature of the test against the government's interest in drug-free schools, the Court held that the drug policy did not violate the Fourth Amendment given such factors as: the athletes' relatively low expectation of privacy (e.g. due to the requirements of communal undress and preseason physical exams); the fact that the athletes were leaders in the school's drug culture; and that the tests were "directed more narrowly to drug use by athletes, where the risk of immediate physical harm to the drug user or those with whom he is playing his sport is particularly high."

Chandler v. Miller, 520 U.S. 305 (1997)
The Supreme Court found unconstitutional a Georgia Statute requiring candidates for state offices to certify that they had tested negative in a drug urinalysis. The Court said that the law, introduced to demonstrate the state's commitment to challenging drug abuse, "diminishes personal privacy for a symbol's sake," and that Georgia failed to show a special need substantial enough to override the candidates' privacy interests. 

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ACLU Fact Sheets: Michigan’s Drug Testing Law

September 01, 2000

Marchwinski v. Family Independence Agency

Michigan stands alone in requiring its residents to provide a drug-free urine sample in order to continue receiving the state's assistance in achieving "family independence."

Because abuse of alcohol and other drugs, often in conjunction with mental health problems, can interfere with employment, most states have created substance abuse treatment and counseling -- and every state except Michigan has determined that these treatment programs will work better without coerced drug testing.

As the ACLU's lawsuit asserts, Michigan's welfare recipients have done nothing to lower their expectation of privacy. They are no different than virtually every member of the general population who chooses to make use of some form of governmental benefits or subsidies, including tax credits, medical insurance, and scholarships. 

The drug-testing regime was scheduled to go into effect on October 1, 1999. The three sites chosen for a pilot program were Alpena County and Presque Isle Counties, Barrien County and a designated area of Western Wayne County.

Historical Background

Michigan's drug testing program was authorized under the Personal Responsibility and Work Opportunity Act of 1996 — Congress' much-publicized federal welfare reform law. The law authorized states to impose drug testing on welfare recipients — an invitation no state has taken until now — and imposed strict time limits on the period any individual can receive benefits, prompting states to devise new ways to move recipients from welfare into employment.

Ignoring the less restrictive approaches of other states, Michigan enacted MCLA 400.57l, a law authorizing "substance abuse testing as a condition of eligibility for family independence assistance." The law directs the Family Independence Agency to "implement a pilot program of substance abuse testing as a condition of family independence assistance eligibility in at least three counties, including random substance abuse testing."

Although the legislature called for "substance abuse testing," the most commonly abused and most lethal drugs alcohol and tobacco will not be a part of the testing program. 

Consequences of a Positive Drug Test

Refusal to agree to random drug testing will result in denial or termination of FIA income support. The state may also terminate medical insurance, food stamps, and support for pregnant women or nursing mothers.

Parents terminated from FIA assistance are twice as likely to lose custody of their children. Rates of homeless, malnutrition, and unemployment all increase drastically upon termination of FIA assistance.

FIA participants who submit to drug testing also risk losing this same vital assistance. According to Michigan's law, "failure to comply" with a substance abuse treatment plan "shall be penalized in the same manner as a work-first program violation" a penalty that includes "reduction" or "termination" of assistance under FIA programs. 

State officials and the legislature have not made clear what actions constitute "failure to comply" with a treatment program. If compliance with drug treatment means that a person must become entirely drug-free within a specified period of time and remain drug-free for the duration of FIA assistance, then FIA participants with a diagnosable medical condition addiction will be excluded from FIA programs unless they are successfully cured of this condition on a schedule and by a treatment modality dictated by a government agency. Such an approach makes a mockery of sound medical practice.

Barriers to Employment

There is no rational basis for singling out welfare recipients for drug testing. Michigan's FIA participants do not fit the description of any category of individuals previously subjected to governmental drug testing. They do not perform dangerous tasks like operating a nuclear power plant, driving a train, or carrying a firearm, and they are not entrusted with sensitive governmental operations like drug interdiction or handling classified information.

Numerous studies identify barriers to employment of much greater significance than use of illegal drugs: low skills; lack of child care; lack of housing; depression and other forms of mental illness; and alcoholism. Most states address these issues with training, counseling and appropriate support, and all states address these issues with less restrictive means than now employed by the defendants. Abuse of illegal drugs, however, affects welfare recipients in roughly the same measure as the general population, and rarely stands alone as a barrier to employment. 

States have more effective options for assisting FIA recipients in addressing substance abuse. These include the provision of income assistance and voluntary, comprehensive mental health treatment, not by threatening to deny assistance unless the recipient agree to a drug test. Research demonstrates that supplemental income helps drug and alcohol users decrease or cease their use of harmful substances by bringing stability to their lives. Substance use and abuse is also frequently connected to depression or other mental health problems, thus making mental health services vital in overcoming addiction to alcohol or other drugs. 

Welfare Drug Testing in Other States

After a brief use of drug testing in parts of Oregon, officials specifically rejected drug testing because welfare recipients became so angry and suspicious that drug treatment became more difficult, because the testing did nothing to address the far more significant problem of alcoholism, and because non-invasive screening devices were effective in identifying individuals in need of treatment.

Florida and Louisiana have considered such programs too, but Florida shelved its plans after threat of an ACLU lawsuit, and the Louisiana legislature has not yet appropriated the funds needed to implement a program.

ACLU Fact Sheet #2: What the Experts Say

The rationale for drug testing is based on myth, not fact. According to a federal study, "[t]he percentage of welfare recipients using, abusing, or dependent on alcohol or drugs [is] relatively small and consistent with the general US population and those not receiving welfare benefits." B. Grant and D. Dawson, "Alcohol and Drug Use, Abuse, and Dependence among Welfare Recipients," 86 American Journal of Public Health 1450 (Oct. 1996). 

Other studies indicate a somewhat greater rate of overall drug consumption among welfare recipients -- mainly use of marijuana but indistinguishable rates of drug abuse, especially for drugs other than marijuana. 

Citing a new federal study that found that 70 percent of drug users are employed full time, the nation's Drug Czar, Barry McCaffrey pointed out: "The typical drug abuser is not poor and unemployed. He or she can be a co-worker, a husband or wife, a parent." "Worker Drug Use and Workplace Policies and Programs: Results from the National Household Survey on Drug Abuse" (Sept. 8, 1999). 

In any event, drug use is not a primary barrier to employment for Michigan's welfare recipients. A recent University of Michigan study reveals that FIA participants "have unusually high levels of some barriers to work, such as physical and mental health problems, domestic violence, and lack of transportation, but relatively low levels of other barriers, such as drug or alcohol dependence." S. Danzinger, et al., "Barriers to the Employment of Welfare Recipients," 3-4 (July 1999). 

Michigan has failed to ensure that comprehensive drug treatment programs, including residential care programs with child care facilities, exist to ensure that those identified with substance abuse difficulties can obtain adequate drug treatment. Without adequate treatment, recipients with substance abuse problems cannot be moved from assistance to employment. Mandated drug testing has nowhere to go. For example, although it is recognized that treatment programs must be equipped to provide access to quality childcare services, none of the available drug treatment programs in the three pilot areas, to the best of our knowledge, are equipped with childcare services. 

As one expert has recognized: "The lack of childcare services is repeatedly cited in drug abuse surveys as an inhibiting factor that affects not only a woman's decision to enter treatment but also her retention in a program (National Institute on Drug Abuse, 1979)." M. Blasinsky, "Childcare Support Services for Female Clients in Treatment," in Treatment Services for Drug Dependent Women (U.S. Department of Health and Human Services, Vol. 1, 1981), p. 408.

ACLU Fact Sheet #3: Urine Testing Cannot Reliably Identify Drug Abuse/Addiction

Urine testing is performed by immunoassay, a methodology subject to several sources of error. The most common disadvantage associated with the test is the production of "false positives" (incorrectly detecting the presence of chemical metabolites, or residues, where none are present). 

This can occur due to the nature of the technology, which relies on the detection of color changes in the urine after reaction to drug metabolites. When non-illegal chemicals create color changes similar to the change created by metabolites of prohibited substances, some individuals tested may be incorrectly identified as drug users. Examples of such chemicals are ibuprofen, which can react as a false positive for marijuana, and the metabolites of poppy seeds, which can react as a false positive for narcotics. 

In addition, drug testing is notoriously over and under-inclusive. For example, testing positive for the presence of marijuana does not provide proof or even strong evidence of drug addiction. And conversely, an abusive pattern of cocaine binges will not register on a drug test unless drug use occurred within 24-48 hours before collection of a urine sample. 

ACLU Fact Sheet #4: Cases Relating to Suspicionless Drug Testing Of Welfare Recipients

Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602 (1989)
The Supreme Court held that a suspicionless drug-testing program designed to test railroad employees after they were involved in accidents was constitutional under the Fourth Amendment, given such factors as the government's compelling interest in regulating the conduct of railroad employees who were engaged in safety-sensitive tasks and capable of causing "great human loss before any signs of impairment become noticeable to supervisors or others."

National Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989)
The Supreme Court held that suspicionless drug-testing of U.S. Customs Service employees applying for promotion to positions involving interdiction of illegal drugs or requiring them to carry firearms was reasonable under the Fourth Amendment, given the extraordinary safety and national security hazards that would attend the sensitive positions in question.

Vernonia School District v. Acton, 515 U.S. 646 (1995)
Applying Skinner and Von Raab, a divided Supreme Court upheld as constitutional a school district policy requiring students to consent to random drug testing as a condition for participation in interscholastic athletics. Balancing the students' expectations of privacy and the intrusive nature of the test against the government's interest in drug-free schools, the Court held that the drug policy did not violate the Fourth Amendment given such factors as: the athletes' relatively low expectation of privacy (e.g. due to the requirements of communal undress and preseason physical exams); the fact that the athletes were leaders in the school's drug culture; and that the tests were "directed more narrowly to drug use by athletes, where the risk of immediate physical harm to the drug user or those with whom he is playing his sport is particularly high."

Chandler v. Miller, 520 U.S. 305 (1997)
The Supreme Court found unconstitutional a Georgia Statute requiring candidates for state offices to certify that they had tested negative in a drug urinalysis. The Court said that the law, introduced to demonstrate the state's commitment to challenging drug abuse, "diminishes personal privacy for a symbol's sake," and that Georgia failed to show a special need substantial enough to override the candidates' privacy interests. 

Today the ACLU of Michigan filed a federal class action lawsuit challenging the treatment of women prisoners at the Livingston County jail. Significantly, the lawsuit challenges as unconstitutional a state law [HB
4475 and 4476] exempting prisoners from the protections of the state human rights law that prohibits discrimination on the basis of race, gender, and religion.

The law, Michigan Public Act No. 202 of 1999 (HB 4475 and 4476) took effect on March 10.

"This lawsuit illustrates the need to have civil rights protections available to prisoners because discrimination, harassment, and unfair treatment are real and legitimate problems within the Michigan prisons and jails," said ACLU of Michigan Executive Director Kary Moss. "This lawsuit further substantiates what Amnesty International and Human Rights Watch have told us for years: Michigan's treatment of women prisoners is sub-standard and falls below international human rights norms. For the state legislature and Governor to take away the state law remedy is to turn the clock back 100 years."

The lawsuit is filed on behalf of Theresa Ann Cox, a former prisoner at the jail, on behalf of herself and other women prisoners. Ms. Cox, who had been convicted of driving under the influence, was sentenced to ten days in jail beginning January 29, 1999. Although the order of probation provided that she could do work release, Sheriff Donald Homan refused to allow it solely because of her gender. This policy of denying work release has applied to all other women prisoners while men have been allowed to work at their jobs during the day and serve their time at night and on the weekends.

ACLU Cooperating Attorney Michael Pitt stated: "Working women are entitled to the same privileges as working men. The policy at this jail seems to reflect the assumption that women's work is less important than men's. This is an archaic stereotype that in no way reflects reality."

Additionally, the lawsuit charges that women are discriminated against by guards. For example, there is a significant disparity in the number of type of trustee assignments available for women prisoners in comparison with male prisoners. Women trustees are relegated to less-favored laundry work while men are given more favorable positions, including clerical work. Men are able to recreate outside in "the yard", while women are relegated to a garage. Male guards can view women prisoners in the shower and women, because of one-piece suits which they are required to wear, can be viewed from the waist up by guards while using the toilet facilities.

The lawsuit challenges the treatment of women prisoners as a violation of the equal protection clause of the fourteenth amendment, the cruel and unusual punishment clause of the eighth amendment, and the prohibition against unreasonable searches and seizures as guaranteed by the fourth amendment. The lawsuit also alleges that the defendants violated the Elliot-Larsen Civil Rights Act (ELCRA) which allows successful plaintiffs to get damages and attorneys fees which they are not able to obtain under the state constitution's equal protection and non-discrimination doctrines. ELCRA also protects against gender discrimination while the state constitution bars only discrimination based on "religion, race, color or national origin."

The lawsuit alleges that the amendment to ELCRA, passed by the legislature on December 20, 1999, exempting correctional facilities from the protection of that law, violates the fourteenth amendment because it deprives a single class of persons (prisoners) of an effective remedy for the violation of their rights. The lawsuit asks for an injunction prohibiting continuation of these discriminatory policies, an order declaring the 12/20/99 amendment to ELCRA unconstitutional, and an order awarding the plaintiff and class members monetary damages.

ACLU cooperating attorneys are Michael Pitt of Pitt, Dowty, McGehee & Mirer; Deborah Labelle; Professor Roderick M. Hills of the University of Michigan Law School; and Michael Steinberg and Kary Moss of the ACLU of Michigan.

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ACLU Challenges Constitutionality of New Michigan Law Exempting Prisoners

March 14, 2000

Today the ACLU of Michigan filed a federal class action lawsuit challenging the treatment of women prisoners at the Livingston County jail. Significantly, the lawsuit challenges as unconstitutional a state law [HB
4475 and 4476] exempting prisoners from the protections of the state human rights law that prohibits discrimination on the basis of race, gender, and religion.

The law, Michigan Public Act No. 202 of 1999 (HB 4475 and 4476) took effect on March 10.

"This lawsuit illustrates the need to have civil rights protections available to prisoners because discrimination, harassment, and unfair treatment are real and legitimate problems within the Michigan prisons and jails," said ACLU of Michigan Executive Director Kary Moss. "This lawsuit further substantiates what Amnesty International and Human Rights Watch have told us for years: Michigan's treatment of women prisoners is sub-standard and falls below international human rights norms. For the state legislature and Governor to take away the state law remedy is to turn the clock back 100 years."

The lawsuit is filed on behalf of Theresa Ann Cox, a former prisoner at the jail, on behalf of herself and other women prisoners. Ms. Cox, who had been convicted of driving under the influence, was sentenced to ten days in jail beginning January 29, 1999. Although the order of probation provided that she could do work release, Sheriff Donald Homan refused to allow it solely because of her gender. This policy of denying work release has applied to all other women prisoners while men have been allowed to work at their jobs during the day and serve their time at night and on the weekends.

ACLU Cooperating Attorney Michael Pitt stated: "Working women are entitled to the same privileges as working men. The policy at this jail seems to reflect the assumption that women's work is less important than men's. This is an archaic stereotype that in no way reflects reality."

Additionally, the lawsuit charges that women are discriminated against by guards. For example, there is a significant disparity in the number of type of trustee assignments available for women prisoners in comparison with male prisoners. Women trustees are relegated to less-favored laundry work while men are given more favorable positions, including clerical work. Men are able to recreate outside in "the yard", while women are relegated to a garage. Male guards can view women prisoners in the shower and women, because of one-piece suits which they are required to wear, can be viewed from the waist up by guards while using the toilet facilities.

The lawsuit challenges the treatment of women prisoners as a violation of the equal protection clause of the fourteenth amendment, the cruel and unusual punishment clause of the eighth amendment, and the prohibition against unreasonable searches and seizures as guaranteed by the fourth amendment. The lawsuit also alleges that the defendants violated the Elliot-Larsen Civil Rights Act (ELCRA) which allows successful plaintiffs to get damages and attorneys fees which they are not able to obtain under the state constitution's equal protection and non-discrimination doctrines. ELCRA also protects against gender discrimination while the state constitution bars only discrimination based on "religion, race, color or national origin."

The lawsuit alleges that the amendment to ELCRA, passed by the legislature on December 20, 1999, exempting correctional facilities from the protection of that law, violates the fourteenth amendment because it deprives a single class of persons (prisoners) of an effective remedy for the violation of their rights. The lawsuit asks for an injunction prohibiting continuation of these discriminatory policies, an order declaring the 12/20/99 amendment to ELCRA unconstitutional, and an order awarding the plaintiff and class members monetary damages.

ACLU cooperating attorneys are Michael Pitt of Pitt, Dowty, McGehee & Mirer; Deborah Labelle; Professor Roderick M. Hills of the University of Michigan Law School; and Michael Steinberg and Kary Moss of the ACLU of Michigan.

LANSING — Today, representatives from six university student assemblies announced the filing of a lawsuit to challenge Public Act 118 which requires that a person's driver's license address and voter registration address be the same.

The lawsuit challenges the law as an unconstitutional violation of the fourteenth amendment, Article 4 of the Michigan Constitution, and the National Voter Registration Act.

ACLU Executive Director Kary Moss said:"This law infringes on the right to vote, especially for college students, for whom the process of voting will be much more difficult."

Plaintiffs include individual students, Windi Yager, Melissa Gill, Robert Bacik and Andrew Coulouris, as well as the student assemblies of Central Michigan University, Ferris State University, Grand Valley State University, Michigan State University, Michigan Technological University, and the University of Michigan.

Because of their frequent moves within the collective community, students generally maintain a fixed driver's license address at their family home. This law will require students to either frequently change their license address or maintain their license address at the family home. This means that they will have to return to their family home on elections dates or vote by absentee ballot. Absentee ballots are more difficult and time-consuming, and will discourage students from voting in their college communities.

Windy Yager, a member of the student government at Central Michigan University, said: "This bill is going to encourage student apathy. Especially during an election year like this it is vital that students play an active role. I'd have to drive 45 minutes each way just to vote under this bill. Absentee ballots aren't the answer nor will they solve the problem of voter fraud which was one of the purposes behind this legislation."

ACLU Cooperating Attorney Mary Ellen Gurewitz observed: "Encouraging students to vote should be the first goal of state government. This statute, which discourages it, should be struck down. This is completely inconsistent with the National Voting Registration Act which the Sixth Circuit has ordered the state to comply with."

Abe Raffi, Chair of the ACLU student chapter at the University of Michigan said: "Students already have a deplorably low rate of voter turnout and this law attempts to silently drag students out of the democratic process. In order to vote, I'd have to drive an hour and half each way."

If this law takes effect, it will require college students to pay a significant price for the privilege of exercising their fundamental right to vote. There has been no evidence of voter fraud and state election procedures already in place are more than sufficient to prevent such a problem from arising.

The students are represented by Mary Ellen Gurewitz, of Sachs, Waldman, O'Hare, and Michael Steinberg and Kary Moss of the ACLU of Michigan.

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Six University Student Assemblies File Suit to Prevent Implementation of New Law

February 24, 2000

LANSING — Today, representatives from six university student assemblies announced the filing of a lawsuit to challenge Public Act 118 which requires that a person's driver's license address and voter registration address be the same.

The lawsuit challenges the law as an unconstitutional violation of the fourteenth amendment, Article 4 of the Michigan Constitution, and the National Voter Registration Act.

ACLU Executive Director Kary Moss said:"This law infringes on the right to vote, especially for college students, for whom the process of voting will be much more difficult."

Plaintiffs include individual students, Windi Yager, Melissa Gill, Robert Bacik and Andrew Coulouris, as well as the student assemblies of Central Michigan University, Ferris State University, Grand Valley State University, Michigan State University, Michigan Technological University, and the University of Michigan.

Because of their frequent moves within the collective community, students generally maintain a fixed driver's license address at their family home. This law will require students to either frequently change their license address or maintain their license address at the family home. This means that they will have to return to their family home on elections dates or vote by absentee ballot. Absentee ballots are more difficult and time-consuming, and will discourage students from voting in their college communities.

Windy Yager, a member of the student government at Central Michigan University, said: "This bill is going to encourage student apathy. Especially during an election year like this it is vital that students play an active role. I'd have to drive 45 minutes each way just to vote under this bill. Absentee ballots aren't the answer nor will they solve the problem of voter fraud which was one of the purposes behind this legislation."

ACLU Cooperating Attorney Mary Ellen Gurewitz observed: "Encouraging students to vote should be the first goal of state government. This statute, which discourages it, should be struck down. This is completely inconsistent with the National Voting Registration Act which the Sixth Circuit has ordered the state to comply with."

Abe Raffi, Chair of the ACLU student chapter at the University of Michigan said: "Students already have a deplorably low rate of voter turnout and this law attempts to silently drag students out of the democratic process. In order to vote, I'd have to drive an hour and half each way."

If this law takes effect, it will require college students to pay a significant price for the privilege of exercising their fundamental right to vote. There has been no evidence of voter fraud and state election procedures already in place are more than sufficient to prevent such a problem from arising.

The students are represented by Mary Ellen Gurewitz, of Sachs, Waldman, O'Hare, and Michael Steinberg and Kary Moss of the ACLU of Michigan.

The ACLU of Michigan and National Lawyer's Guild today filed a motion to dismiss charges levied against 13 protesters for wearing Lone Ranger masks during a June demonstration protesting air quality in downtown Detroit held at the same time as meetings of the Organization of American States in Windsor.

The defendants were arrested while peacefully protesting in downtown Detroit and charged with violating a law – MCL 750.496 – that prohibits the wearing of a mask for any political purpose regardless of whether the wearer intends to violate another law, but allows the wearing of masks for entertainment, educational, religious or historical purposes. 

"This law is clearly unconstitutional because it infringes on the rights of people to protest peacefully, said ACLU Executive Director Kary Moss."   "The right to protest is a fundamental constitutional right.  It is at exactly like moments like this, when people feel compelled to take to the streets to voice their opposition about pressing social issues, that the limits of our democracy are tested.  It is exactly at moments like this when the values embodied in our Constitution are tested.  We know that we have passed that test only when we can hear - in the press, on the streets, in our city council chambers – the many different voices that make up this nation.  We should rise to the challenge."

The motion to dismiss states that law is vague and overbroad, in violation of the First and Fourteenth Amendments. Under this law, it does not matter whether the mask is worn as part of expression of a political message alone or is worn with the intent to commit an illegal act; the law makes no distinction and criminalizes either type of conduct. 

ACLU Cooperating Attorney Kenneth Mogill stated: "The First Amendment is not confined to verbal utterances; rather, the Supreme Court has confirmed again and again that symbolic speech is equally protected.  This extends to the right to anonymity, if a citizen so chooses."  As the Supreme Court has said: "Inviolability of privacy in group association may in circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs."

A hearing has been set for Wednesday, October 25, in the 36th District Court before Judge Paula G. Humphries.

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State Anti-Mask Law Violates Right to Speech

October 18, 2000

The ACLU of Michigan and National Lawyer's Guild today filed a motion to dismiss charges levied against 13 protesters for wearing Lone Ranger masks during a June demonstration protesting air quality in downtown Detroit held at the same time as meetings of the Organization of American States in Windsor.

The defendants were arrested while peacefully protesting in downtown Detroit and charged with violating a law – MCL 750.496 – that prohibits the wearing of a mask for any political purpose regardless of whether the wearer intends to violate another law, but allows the wearing of masks for entertainment, educational, religious or historical purposes. 

"This law is clearly unconstitutional because it infringes on the rights of people to protest peacefully, said ACLU Executive Director Kary Moss."   "The right to protest is a fundamental constitutional right.  It is at exactly like moments like this, when people feel compelled to take to the streets to voice their opposition about pressing social issues, that the limits of our democracy are tested.  It is exactly at moments like this when the values embodied in our Constitution are tested.  We know that we have passed that test only when we can hear - in the press, on the streets, in our city council chambers – the many different voices that make up this nation.  We should rise to the challenge."

The motion to dismiss states that law is vague and overbroad, in violation of the First and Fourteenth Amendments. Under this law, it does not matter whether the mask is worn as part of expression of a political message alone or is worn with the intent to commit an illegal act; the law makes no distinction and criminalizes either type of conduct. 

ACLU Cooperating Attorney Kenneth Mogill stated: "The First Amendment is not confined to verbal utterances; rather, the Supreme Court has confirmed again and again that symbolic speech is equally protected.  This extends to the right to anonymity, if a citizen so chooses."  As the Supreme Court has said: "Inviolability of privacy in group association may in circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs."

A hearing has been set for Wednesday, October 25, in the 36th District Court before Judge Paula G. Humphries.

DETROIT — The American Civil Liberties Union of Michigan and the Center for Constitutional Rights in New York agree that residents of the City of Detroit were illegally deprived of the right to elect their own school board when the Michigan Legislature authorized the take over of the Detroit Public Schools.

In a friend-of-the-court brief filed today in the U.S. Court of Appeals, the ACLU of Michigan supported the claims of Detroit citizens in the case filed against Detroit’s School Reform Board, Mayor Dennis Archer, Governor John Engler and others.  The ACLU brief asks that the District Court reverse the trial court’s ruling that permits the State’s takeover of the school system. 

“Detroiters now have less opportunity to participate in the political process than voters anywhere else in the State of Michigan and to elect representatives to run their own school system,” said Kary Moss, ACLU of Michigan Executive Director.  “We believe the school board takeover violates the Voting Rights Act by singling out predominantly African-American voters in the City of Detroit,”  Moss added. 

The case was first heard by U.S. District Judge Nancy Edmunds who ruled in October, 2000 that the Michigan Legislature did not violate the Voting Rights Act by  enacting the 1999 law that disbanded Detroit’s elected school board and created a reform board, all of whose members are appointed.

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ACLU Files Friend-of-the-Court in Detroit School Takeover Appeal

February 12, 2001

DETROIT — The American Civil Liberties Union of Michigan and the Center for Constitutional Rights in New York agree that residents of the City of Detroit were illegally deprived of the right to elect their own school board when the Michigan Legislature authorized the take over of the Detroit Public Schools.

In a friend-of-the-court brief filed today in the U.S. Court of Appeals, the ACLU of Michigan supported the claims of Detroit citizens in the case filed against Detroit’s School Reform Board, Mayor Dennis Archer, Governor John Engler and others.  The ACLU brief asks that the District Court reverse the trial court’s ruling that permits the State’s takeover of the school system. 

“Detroiters now have less opportunity to participate in the political process than voters anywhere else in the State of Michigan and to elect representatives to run their own school system,” said Kary Moss, ACLU of Michigan Executive Director.  “We believe the school board takeover violates the Voting Rights Act by singling out predominantly African-American voters in the City of Detroit,”  Moss added. 

The case was first heard by U.S. District Judge Nancy Edmunds who ruled in October, 2000 that the Michigan Legislature did not violate the Voting Rights Act by  enacting the 1999 law that disbanded Detroit’s elected school board and created a reform board, all of whose members are appointed.

Ms. Donahue and her neighbors complained to the City's Building Department, the City Manager, the City Council, and the Police Department from the onset of the problem. Following the ticketing of Kendor for violation of Fraser's noise ordinance, Ms. Donahue was served with a lawsuit filed by Kendor and its owner, Dale Eltringham, who does not live in Fraser.

"Obviously, there is an attempt to shut me up, but if I step back and allow them to win, I'll have to pay $25,000 or more in damages and possibly Kendor's attorney fees, too.  More than that, a lovely neighborhood of fine, hard working people will be effectively gagged for all time," said Ms. Donahue.

SLAPP or "Strategic Lawsuits Against Public Participation," is the name given to lawsuits brought to chill people from exercising their freedom of speech on.matters of public concern. According to the ACLU, Ms. Donahue's conduct is protected activity under the First Amendment's guarantee to free speech and to petition the government.

"This suit was brought by a well-financed neighborhood bully to intimidate a neighbor brave enough to stand up for her rights," said Michael J. Steinberg, ACLU of Michigan Legal Director.

ACLU Cooperating attorney, Daniel D. Quick said in the brief, "Ms. Donahue has every right - constitutionally, legally, and morally under considerations of good public policy - to protest what she feels is a public nuisance, and a duty to inform governmental officials of a problem in her neighborhood."

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Noisy Steel Company Intimidates Quiet Neighbor

November 25, 2008

Ms. Donahue and her neighbors complained to the City's Building Department, the City Manager, the City Council, and the Police Department from the onset of the problem. Following the ticketing of Kendor for violation of Fraser's noise ordinance, Ms. Donahue was served with a lawsuit filed by Kendor and its owner, Dale Eltringham, who does not live in Fraser.

"Obviously, there is an attempt to shut me up, but if I step back and allow them to win, I'll have to pay $25,000 or more in damages and possibly Kendor's attorney fees, too.  More than that, a lovely neighborhood of fine, hard working people will be effectively gagged for all time," said Ms. Donahue.

SLAPP or "Strategic Lawsuits Against Public Participation," is the name given to lawsuits brought to chill people from exercising their freedom of speech on.matters of public concern. According to the ACLU, Ms. Donahue's conduct is protected activity under the First Amendment's guarantee to free speech and to petition the government.

"This suit was brought by a well-financed neighborhood bully to intimidate a neighbor brave enough to stand up for her rights," said Michael J. Steinberg, ACLU of Michigan Legal Director.

ACLU Cooperating attorney, Daniel D. Quick said in the brief, "Ms. Donahue has every right - constitutionally, legally, and morally under considerations of good public policy - to protest what she feels is a public nuisance, and a duty to inform governmental officials of a problem in her neighborhood."

DETROIT- Supporting the public's right to speak out on public issues without fear of retaliation, a Macomb County Circuit Court judge dismissed a lawsuit against Janet Donahue, a woman who complained about noise from a neighboring steel business.

The American Civil Liberties Union of Michigan, who had filed a friend-of-court brief in the SLAPP suit case, lauded the decision of Judge Pat Donofrio to reject the business' attempt to silence legitimate complaints of citizens.

SLAPP or "Strategic Lawsuits Against Public Participation," is the name given to lawsuits brought to chill people from exercising their freedom of speech on matters of public concern.

"Kendor Steel's lawsuit was an abuse of the legal process. It was brought by a well-financed neighborhood bully to intimidate residents brave enough to stand up for their rights," said Kary Moss, ACLU of Michigan Executive Director. "This case illustrates the need for legislation to protect citizens rights to speak out against wrong-doing." 

After Kendor Steel, in Fraser, Michigan, installed a 500-ton stamping press in June 1999, Ms. Donahue and her neighbors allege that a once-quiet neighborhood began experiencing intolerable and continuous pounding and vibrations that has yet to stop.

Ms. Donahue and her neighbors complained to the City's Building Department, the City Manager, the City Council, and the Police Department from the onset of the problem until the fall of 2000. Immediately following the one and only ticket Kendor received, Ms. Donahue was served with a lawsuit in retaliation for the complaints she made.

Though the dismissal of the case against Ms. Donahue does nothing to stop the underlying noise problem, she said that she is delighted with the judge's decision. "When the ACLU got involved, I was no longer afraid to speak out and knew that I could win - God Bless the ACLU!"

Judge Donofrio held that Kendor Steel's claims of malicious prosecution and intentional infliction of emotional distress against Ms. Donohue were meritless. He also adopted the position of the ACLU that Ms. Donohue had a constitutional right to complain to the police about the noise.

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Court Rejects Noisy Steel Company's Attempt to Intimidate Quiet Neighborhood

April 29, 2001

DETROIT- Supporting the public's right to speak out on public issues without fear of retaliation, a Macomb County Circuit Court judge dismissed a lawsuit against Janet Donahue, a woman who complained about noise from a neighboring steel business.

The American Civil Liberties Union of Michigan, who had filed a friend-of-court brief in the SLAPP suit case, lauded the decision of Judge Pat Donofrio to reject the business' attempt to silence legitimate complaints of citizens.

SLAPP or "Strategic Lawsuits Against Public Participation," is the name given to lawsuits brought to chill people from exercising their freedom of speech on matters of public concern.

"Kendor Steel's lawsuit was an abuse of the legal process. It was brought by a well-financed neighborhood bully to intimidate residents brave enough to stand up for their rights," said Kary Moss, ACLU of Michigan Executive Director. "This case illustrates the need for legislation to protect citizens rights to speak out against wrong-doing." 

After Kendor Steel, in Fraser, Michigan, installed a 500-ton stamping press in June 1999, Ms. Donahue and her neighbors allege that a once-quiet neighborhood began experiencing intolerable and continuous pounding and vibrations that has yet to stop.

Ms. Donahue and her neighbors complained to the City's Building Department, the City Manager, the City Council, and the Police Department from the onset of the problem until the fall of 2000. Immediately following the one and only ticket Kendor received, Ms. Donahue was served with a lawsuit in retaliation for the complaints she made.

Though the dismissal of the case against Ms. Donahue does nothing to stop the underlying noise problem, she said that she is delighted with the judge's decision. "When the ACLU got involved, I was no longer afraid to speak out and knew that I could win - God Bless the ACLU!"

Judge Donofrio held that Kendor Steel's claims of malicious prosecution and intentional infliction of emotional distress against Ms. Donohue were meritless. He also adopted the position of the ACLU that Ms. Donohue had a constitutional right to complain to the police about the noise.

DETROIT  For the second time in four years, a Michigan statute regarding abortion has been stuck down in federal court. United States District Judge Arthur J. Tarnow today declared that Michigan's so-called "Infant Protection Act", passed in 1999, unconstitutional. This decision makes final his temporary injunction from March 2000.

"Court after court has recognized that these bans prohibit most second- and in some cases even first-trimester surgical abortions," said Kary Moss, ACLU of Michigan Executive Director. "As a result, the bans force some women from safer to riskier abortions."

Judge Tarnow's decision focused on the law's failure to contain an adequate exception to protect the mental and/or physical health of the pregnant woman, a factor which the legislature chose not to include in the language in spite of the fact that omitting it would would make the law unconstitutional.

He also addressed the issue of a physician's "exposure to criminal liability when the procedures are necessary to protect the physical or mental health of the pregnant woman." Judge Tarnow recognized the doctors "would fear conviction and punishment" in the course of treating their patients.

"The legislature should not be practicing medicine or determining what is the best medical treatment for any given woman. That's a decision that should be made by a woman in consult with her doctor," added Moss. "After two attempts at this, at taxpayer expense, I hope the Michigan legislature will now give up."

In June 2000, the U.S. Supreme Court struck down a similar Nebraska so-called partial birth abortion statute because it unduly burdened a pregnant woman's right to choose a pre-viability abortion, and because the statute failed to provide adequate protection for the life and health of the woman. (Stenberg v Carhart, 530 U.S. 914 (2000)

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Court Again Upholds A Woman's Right to Choose

April 26, 2001

DETROIT  For the second time in four years, a Michigan statute regarding abortion has been stuck down in federal court. United States District Judge Arthur J. Tarnow today declared that Michigan's so-called "Infant Protection Act", passed in 1999, unconstitutional. This decision makes final his temporary injunction from March 2000.

"Court after court has recognized that these bans prohibit most second- and in some cases even first-trimester surgical abortions," said Kary Moss, ACLU of Michigan Executive Director. "As a result, the bans force some women from safer to riskier abortions."

Judge Tarnow's decision focused on the law's failure to contain an adequate exception to protect the mental and/or physical health of the pregnant woman, a factor which the legislature chose not to include in the language in spite of the fact that omitting it would would make the law unconstitutional.

He also addressed the issue of a physician's "exposure to criminal liability when the procedures are necessary to protect the physical or mental health of the pregnant woman." Judge Tarnow recognized the doctors "would fear conviction and punishment" in the course of treating their patients.

"The legislature should not be practicing medicine or determining what is the best medical treatment for any given woman. That's a decision that should be made by a woman in consult with her doctor," added Moss. "After two attempts at this, at taxpayer expense, I hope the Michigan legislature will now give up."

In June 2000, the U.S. Supreme Court struck down a similar Nebraska so-called partial birth abortion statute because it unduly burdened a pregnant woman's right to choose a pre-viability abortion, and because the statute failed to provide adequate protection for the life and health of the woman. (Stenberg v Carhart, 530 U.S. 914 (2000)

DETROIT — As the Executive Director of the American Civil Liberties Union of Michigan and as vice-chair of ALPACT, Advocates and Leaders for Police and Community Trust, a coalition of civil rights organizations, national, state and local law enforcement agencies, and community organizations that has been meeting for over two years on this issue, I applaud the introduction of Representative Buzz Thomas' legislation that will hopefully be the beginning of the end of racial profiling.

This legislation is a crucial first step in dealing with a problem that pervades the criminal justice system. But the ACLU is not new to the issue of racial justice. Our involvement reaches far beyond "driving while Black" which is just the tip of the iceberg. We recently filed a case against the Eastpoint police on behalf of more than 20 young Detroit men who were "bicycling while black." And last summer, we represented six young African American youth who were "swimming while black."

In 1999, we published a seminal report written by University of Toledo professor, David Harris, a leading expert in this area. In 2000, we began an award-winning public service announcement campaign on radio and TV. We are the only organization that provides a national hotline to report dwb complaints. We have distributed thousands of "dwb survival kits" and we have been involved in groundbreaking litigation all over the country.

Just three months ago, the Michigan ACLU hired an attorney to coordinate a new Racial Justice Project to address the problem of racial profiling by working to organize communities and create the groundwork for on going dialogue between communities and the local police agencies. We are also creating effective educational and training programs specifically for law enforcement agencies, lawyers, judges, magistrates, and prosecutors. The color of one's skin doesn't make a criminal and it's time that we stop asking African Americans to surrender their freedom as a result of this practice. Projects like ours and the legislation introduced today are the first steps in ending the practice of racial profiling. They can't be the last.

Click Here to read more about the ACLU's efforts to end racial profiling.

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ACLU of Michigan Applauds Introduction of Legislation to End Racial Profiling

May 31, 2001

DETROIT — As the Executive Director of the American Civil Liberties Union of Michigan and as vice-chair of ALPACT, Advocates and Leaders for Police and Community Trust, a coalition of civil rights organizations, national, state and local law enforcement agencies, and community organizations that has been meeting for over two years on this issue, I applaud the introduction of Representative Buzz Thomas' legislation that will hopefully be the beginning of the end of racial profiling.

This legislation is a crucial first step in dealing with a problem that pervades the criminal justice system. But the ACLU is not new to the issue of racial justice. Our involvement reaches far beyond "driving while Black" which is just the tip of the iceberg. We recently filed a case against the Eastpoint police on behalf of more than 20 young Detroit men who were "bicycling while black." And last summer, we represented six young African American youth who were "swimming while black."

In 1999, we published a seminal report written by University of Toledo professor, David Harris, a leading expert in this area. In 2000, we began an award-winning public service announcement campaign on radio and TV. We are the only organization that provides a national hotline to report dwb complaints. We have distributed thousands of "dwb survival kits" and we have been involved in groundbreaking litigation all over the country.

Just three months ago, the Michigan ACLU hired an attorney to coordinate a new Racial Justice Project to address the problem of racial profiling by working to organize communities and create the groundwork for on going dialogue between communities and the local police agencies. We are also creating effective educational and training programs specifically for law enforcement agencies, lawyers, judges, magistrates, and prosecutors. The color of one's skin doesn't make a criminal and it's time that we stop asking African Americans to surrender their freedom as a result of this practice. Projects like ours and the legislation introduced today are the first steps in ending the practice of racial profiling. They can't be the last.

Click Here to read more about the ACLU's efforts to end racial profiling.

DETROIT — The American Civil Liberties Union of Michigan today announced that Alec Gibbs of Fenton Senior High School is one of 12 high school seniors nationwide to be awarded a $4,000 college scholarship in recognition of his exceptional contributions to the struggle to defend civil liberties.

The ACLU's College Scholarship for Youth Activism Award recognizes the efforts of graduating seniors who have demonstrated a strong commitment to civil liberties throughout their careers in secondary school.

"The future of the ACLU depends on young people like Alec," said Kary Moss, ACLU of Michigan executive director. "It's wonderful to see a high school student working to ensure that we keep the rights and liberties guaranteed by the Constitution."

As a youth activist, Alec took a leadership role in speaking out about important civil liberties issues within his school. In the wake of Columbine and the many zero tolerance policies that have since been implemented in schools throughout the nation, Alec has spearheaded efforts to educate fellow students and school officials about administrative polices that are adverse to the rights of students.

While earning top grades at his school, Alec also volunteered his time to work on ACLU campaigns, worked on his school newspaper and wrote countless letters to the local newspaper addressing civil rights issues.

Many people assume that teens are ambivalent about
civil rights issues," said Alec, who will attend Michigan State University in the Fall. "I have learned through discussions with my classmates, especially the
those that I disagree with, the common stereotype of apathetic and ignorant youth is not the case at all. We very much understand the issues and want to
become involved."

When Alec was a sophomore in high school, his school
administration began to implement conduct policies in reaction to the Columbine incident. He and his fellow classmates were introduced to surveillance cameras
and zero tolerance rules that targeted violence but had high potential for abuse by school officials.

As the opinion editor of his school paper, Alec began
to educate his classmates about the civil liberties they stood to lose with the new policies being implemented.

Zero tolerance policies that were put into effect after Columbine have had a damaging effect on the rights of students," said Alec. "Individual choice and freedom of expression are some of the most important rights we have as young adults. We stand to lose these rights and others if these rules go unchallenged."

In addition to Alec, this year's other recipients hail from California, Florida, Illinois, Kentucky, Maine, New Jersey, New York, North Carolina, Oklahoma, and Tennessee.

Many of the students selected stood up for the rights of their peers by challenging the injustices inflicted upon them by school officials; created an ACLU chapter at their school; or interned at the ACLU affiliate office in their state. In 2000, the first year of the program, the ACLU awarded scholarships to eight high school seniors.

"The ACLU's College Scholarship for Youth Activism Award gives us an opportunity to recognize the courage of students like Alec and the example they set for their peers," said Nadine Strossen, President of the National ACLU. "It truly is an honor to be able to provide these intelligent, resourceful and committed young people with support for their education."

The ACLU College Scholarship program was made possible by a generous grant from an anonymous donor.

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Fenton High School Senior Wins ACLU College Scholarship for Youth Activism

May 22, 2001

DETROIT — The American Civil Liberties Union of Michigan today announced that Alec Gibbs of Fenton Senior High School is one of 12 high school seniors nationwide to be awarded a $4,000 college scholarship in recognition of his exceptional contributions to the struggle to defend civil liberties.

The ACLU's College Scholarship for Youth Activism Award recognizes the efforts of graduating seniors who have demonstrated a strong commitment to civil liberties throughout their careers in secondary school.

"The future of the ACLU depends on young people like Alec," said Kary Moss, ACLU of Michigan executive director. "It's wonderful to see a high school student working to ensure that we keep the rights and liberties guaranteed by the Constitution."

As a youth activist, Alec took a leadership role in speaking out about important civil liberties issues within his school. In the wake of Columbine and the many zero tolerance policies that have since been implemented in schools throughout the nation, Alec has spearheaded efforts to educate fellow students and school officials about administrative polices that are adverse to the rights of students.

While earning top grades at his school, Alec also volunteered his time to work on ACLU campaigns, worked on his school newspaper and wrote countless letters to the local newspaper addressing civil rights issues.

Many people assume that teens are ambivalent about
civil rights issues," said Alec, who will attend Michigan State University in the Fall. "I have learned through discussions with my classmates, especially the
those that I disagree with, the common stereotype of apathetic and ignorant youth is not the case at all. We very much understand the issues and want to
become involved."

When Alec was a sophomore in high school, his school
administration began to implement conduct policies in reaction to the Columbine incident. He and his fellow classmates were introduced to surveillance cameras
and zero tolerance rules that targeted violence but had high potential for abuse by school officials.

As the opinion editor of his school paper, Alec began
to educate his classmates about the civil liberties they stood to lose with the new policies being implemented.

Zero tolerance policies that were put into effect after Columbine have had a damaging effect on the rights of students," said Alec. "Individual choice and freedom of expression are some of the most important rights we have as young adults. We stand to lose these rights and others if these rules go unchallenged."

In addition to Alec, this year's other recipients hail from California, Florida, Illinois, Kentucky, Maine, New Jersey, New York, North Carolina, Oklahoma, and Tennessee.

Many of the students selected stood up for the rights of their peers by challenging the injustices inflicted upon them by school officials; created an ACLU chapter at their school; or interned at the ACLU affiliate office in their state. In 2000, the first year of the program, the ACLU awarded scholarships to eight high school seniors.

"The ACLU's College Scholarship for Youth Activism Award gives us an opportunity to recognize the courage of students like Alec and the example they set for their peers," said Nadine Strossen, President of the National ACLU. "It truly is an honor to be able to provide these intelligent, resourceful and committed young people with support for their education."

The ACLU College Scholarship program was made possible by a generous grant from an anonymous donor.

DETROIT -  The American Civil Liberties Union and the National Lawyers Guild filed a federal lawsuit against the City of Detroit today to prevent the police from arresting peaceful protestors for wearing masks during demonstrations.

The suit, filed on the one-year anniversary of the Detroit demonstrations against the Organization of the American States, asserts that the Michigan anti-mask law violates the right to free expression, due process and equal protection.

"Peaceful demonstrators shouldn't have to fear the possibility of being arrested and jailed merely for expressing themselves," said Kary L. Moss, Executive Director of the ACLU. "The anti-mask law clearly threatens the right to free speech."  

The lawsuit stems from the arrest of 20 people who protested last June against the environmental and labor policies of the OAS and against measures taken by the City of Detroit to squelch free speech during the OAS demonstrations.  Thirteen protesters were charged under the Michigan anti-mask law for allegedly wearing Lone Ranger masks during the demonstrations. 

"The City did everything it could to intimidate peaceful protestors during the OAS demonstrations," said Karen Miller, a graduate student of the University of Michigan and a plaintiff in the case.  "The police used the antiquated anti-mask law as an excuse to jail us and prevent us from speaking out."

The criminal charges were eventually dismissed against the protesters after the prosecutor suggested that the charges be dropped "in the interests of justice."  The case filed today seeks a declaration that the law is unconstitutional and damages for the protestors.

"The charges never should have been brought in the first place," said Kenneth Mogill, cooperating attorney for the ACLU. "The protesters were charged with a law that turns the First Amendment on its head by giving political speech less protection than entertainment."

The law, passed in 1931, makes it a 90-day misdemeanor for people to conceal part of their faces in public during an assembly, march or parade.  The law makes exceptions for people wearing masks at minstrel shows or during Halloween and historical gatherings, but contains no exception for political speech. 

The case, Miller v. City of Detroit, was assigned to U.S. District Court Judge Robert H. Cleland.

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ACLU Files Lawsuit Challenging State Anti-Mask Law on Anniversary of OAS Demonst

June 04, 2001

DETROIT -  The American Civil Liberties Union and the National Lawyers Guild filed a federal lawsuit against the City of Detroit today to prevent the police from arresting peaceful protestors for wearing masks during demonstrations.

The suit, filed on the one-year anniversary of the Detroit demonstrations against the Organization of the American States, asserts that the Michigan anti-mask law violates the right to free expression, due process and equal protection.

"Peaceful demonstrators shouldn't have to fear the possibility of being arrested and jailed merely for expressing themselves," said Kary L. Moss, Executive Director of the ACLU. "The anti-mask law clearly threatens the right to free speech."  

The lawsuit stems from the arrest of 20 people who protested last June against the environmental and labor policies of the OAS and against measures taken by the City of Detroit to squelch free speech during the OAS demonstrations.  Thirteen protesters were charged under the Michigan anti-mask law for allegedly wearing Lone Ranger masks during the demonstrations. 

"The City did everything it could to intimidate peaceful protestors during the OAS demonstrations," said Karen Miller, a graduate student of the University of Michigan and a plaintiff in the case.  "The police used the antiquated anti-mask law as an excuse to jail us and prevent us from speaking out."

The criminal charges were eventually dismissed against the protesters after the prosecutor suggested that the charges be dropped "in the interests of justice."  The case filed today seeks a declaration that the law is unconstitutional and damages for the protestors.

"The charges never should have been brought in the first place," said Kenneth Mogill, cooperating attorney for the ACLU. "The protesters were charged with a law that turns the First Amendment on its head by giving political speech less protection than entertainment."

The law, passed in 1931, makes it a 90-day misdemeanor for people to conceal part of their faces in public during an assembly, march or parade.  The law makes exceptions for people wearing masks at minstrel shows or during Halloween and historical gatherings, but contains no exception for political speech. 

The case, Miller v. City of Detroit, was assigned to U.S. District Court Judge Robert H. Cleland.

To stop Grand Blanc High School's drug testing program, the American Civil Liberties Union of Michigan filed a motion on Tuesday in an on-going lawsuit asking that the Genesee County Circuit Court rule the school's policy a violation of the Michigan Constitution's protection against unreasonable searches and seizures.

Under the program, students who want to play sports must provide a urine sample on demand for drug testing. In violation of students' privacy rights, school officials require athletes to provide urine samples even though there is no reason to believe that they have been using drugs.

"Grand Blanc High School has created a 'drug exception' to the Constitution," said Michael J. Steinberg, Michigan ACLU Legal Director. "Fortunately, the Michigan Constitution requires that there be reasonable suspicion before students are drug tested. The school should be very concerned about the lesson it is teaching students when it treats them as if they have no rights at all."

Between 1998 and 2000, 599 students were randomly tested for drugs under Grand Blanc's policy. Only two tested positive. Grand Blanc is the only high school in the state to have such a policy.

"Grand Blanc High School should stop treating its students like criminals," said ACLU cooperating attorney Gregory Gibbs. "The school cannot violate student athletes' privacy rights by making them submit to drug testing unless there is reason to suspect that they are breaking the law."

The lawsuit was filed last spring on behalf of Micah White, a student who was denied an opportunity to join the Grand Blanch wrestling team in 1999 because he and his parents refused to sign a drug testing authorization form. At the time, Mr. White was a member of the National Honor Society, a National Merit Commended Student and a National Achievement Finalist. He had never been suspended, expelled or disciplined at high school due to behavior problems or for other reasons. White now attends Swarthmore College in Pennsylvania.

The Michigan Supreme Court has held that the Michigan Constitution provides greater protection than the federal constitution in this area. Several states courts, including courts in Indiana, Pennsylvania and New Jersey, have held that drug testing of high school students is a violation of their respective state constitutions.

The judge assigned to hear the Grand Blanc High School case, Judge Geoffrey Neithercut, has not yet set a hearing date for the ACLU's motion.

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Court Asked to Strike Down High School Drug Testing Policy

June 05, 2001

To stop Grand Blanc High School's drug testing program, the American Civil Liberties Union of Michigan filed a motion on Tuesday in an on-going lawsuit asking that the Genesee County Circuit Court rule the school's policy a violation of the Michigan Constitution's protection against unreasonable searches and seizures.

Under the program, students who want to play sports must provide a urine sample on demand for drug testing. In violation of students' privacy rights, school officials require athletes to provide urine samples even though there is no reason to believe that they have been using drugs.

"Grand Blanc High School has created a 'drug exception' to the Constitution," said Michael J. Steinberg, Michigan ACLU Legal Director. "Fortunately, the Michigan Constitution requires that there be reasonable suspicion before students are drug tested. The school should be very concerned about the lesson it is teaching students when it treats them as if they have no rights at all."

Between 1998 and 2000, 599 students were randomly tested for drugs under Grand Blanc's policy. Only two tested positive. Grand Blanc is the only high school in the state to have such a policy.

"Grand Blanc High School should stop treating its students like criminals," said ACLU cooperating attorney Gregory Gibbs. "The school cannot violate student athletes' privacy rights by making them submit to drug testing unless there is reason to suspect that they are breaking the law."

The lawsuit was filed last spring on behalf of Micah White, a student who was denied an opportunity to join the Grand Blanch wrestling team in 1999 because he and his parents refused to sign a drug testing authorization form. At the time, Mr. White was a member of the National Honor Society, a National Merit Commended Student and a National Achievement Finalist. He had never been suspended, expelled or disciplined at high school due to behavior problems or for other reasons. White now attends Swarthmore College in Pennsylvania.

The Michigan Supreme Court has held that the Michigan Constitution provides greater protection than the federal constitution in this area. Several states courts, including courts in Indiana, Pennsylvania and New Jersey, have held that drug testing of high school students is a violation of their respective state constitutions.

The judge assigned to hear the Grand Blanc High School case, Judge Geoffrey Neithercut, has not yet set a hearing date for the ACLU's motion.

DETROIT -- The American Civil Liberties Union of Michigan sent a letter today urging that Calumet Township take immediate action to amend its unconstitutional zone ordinance that prohibits residents from posting either political or protest signs.

Stuart Kauppila, a resident of Calumet Township, hoping to end the early morning deliveries to the grocery store next to his house, erected a sign on his lawn in protest.  He claims that the 5:30 a.m. deliveries wake up his children.  "It’s my duty as a husband and father to look after the interests of my family,” said Mr. Kauppila.  “I can't imagine anyone wanting me to do anything other than that."

 The Township Zoning Administrator, Paul A. Lehto, ordered Mr. Kauppila to take down the sign stating that the sign violates Section 5 of the Calumet Township Zoning Ordinance. 

Feeling as if he is “fighting city hall”, Mr. Kauppila requested the aid of the ACLU.  Mr. Kauppila asked, “Since when do stores have more rights than citizens?”

 Michael Steinberg, ACLU of Michigan’s Legal Director, is certain that they don’t.  “The Calumet Township ordinance clearly violates the First Amendment by making it illegal for residents to place protest signs on their own lawns,” said Steinberg. “Mr. Kauppila is eager to continue his protest and we hope to resolve this matter amicably without the need for litigation.”

 According to a 1994 U.S. Supreme Court ruling, “A special respect for individual liberty in the home has long been part of our culture and our law; that principle has special resonance when government seeks to constrain a person’s ability to speak there.” 

 “Without this sign, I have no means to let the public know what’s occurring. I’m left without a voice,” Mr. Kauppila added. 

An article from the Calumet Gazette follows:

August 4, 2001

ACLU enters Calumet sign-posting dispute
Group urges township to overturn ordinance

By Jesse Drake
Gazette Writer

CALUMET — The American Civil Liberties Union of Michigan is urging Calumet Township officials to take immediate action on what it considers an unconstitutional zoning ordinance.

The letter came Wednesday and involves a township ordinance prohibiting residents from posting either political or protest signs.

Township resident Stuart Kauppila, hoping to end the early-morning deliveries to the grocery store next to his house, erected a sign on his lawn in protest reading “Please Don’t Shop at Fraki’s.” He said the 5:15 a.m. deliveries wake his children.

“It’s my duty as a husband and father to look after the interests of my family,” Kauppila said. “I can’t imagine anyone wanting me to do anything other than that.

“I’m not looking to establish any hard feelings or affect Fraki’s in any way that would do any long-term damage. I just want this issue resolved.” Township Supervisor Paul Lehto told Kauppila to take down the sign, saying it violates section 5 of the Calumet Township zoning ordinance. The ordinance states the township has the right to “control the number, types of all signs in business areas and certain other districts.” It prohibits commercial signs exceeding 5 square-feet in area, which Kauppila’s 4-foot by 8-foot sign violates.

“If you were to restrict the area of a protest sign, (the sign) would be useless,” Kauppila said.

 Lehto said he had received the letter and notified the ACLU of its receipt, but reserved further comment until the matter is discussed by the township board at the end of the month.

Kevin Fraki, manager of the Elm and Fourth Street Fraki Markets Inc., said he’s talked to distributors about keeping the early-morning noise levels to a minimum.

However, he said his business, operating at that location for 30 years, has to get started by 8 a.m. Kauppila, he added, worked at the store for 15 years.

“I’ve bent over backwards with that guy,” Fraki said. “He can go ahead and put his sign up, I don’t care.”

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Calumet Resident Gets Help from the ACLU In Order to Protest

August 01, 2001

DETROIT -- The American Civil Liberties Union of Michigan sent a letter today urging that Calumet Township take immediate action to amend its unconstitutional zone ordinance that prohibits residents from posting either political or protest signs.

Stuart Kauppila, a resident of Calumet Township, hoping to end the early morning deliveries to the grocery store next to his house, erected a sign on his lawn in protest.  He claims that the 5:30 a.m. deliveries wake up his children.  "It’s my duty as a husband and father to look after the interests of my family,” said Mr. Kauppila.  “I can't imagine anyone wanting me to do anything other than that."

 The Township Zoning Administrator, Paul A. Lehto, ordered Mr. Kauppila to take down the sign stating that the sign violates Section 5 of the Calumet Township Zoning Ordinance. 

Feeling as if he is “fighting city hall”, Mr. Kauppila requested the aid of the ACLU.  Mr. Kauppila asked, “Since when do stores have more rights than citizens?”

 Michael Steinberg, ACLU of Michigan’s Legal Director, is certain that they don’t.  “The Calumet Township ordinance clearly violates the First Amendment by making it illegal for residents to place protest signs on their own lawns,” said Steinberg. “Mr. Kauppila is eager to continue his protest and we hope to resolve this matter amicably without the need for litigation.”

 According to a 1994 U.S. Supreme Court ruling, “A special respect for individual liberty in the home has long been part of our culture and our law; that principle has special resonance when government seeks to constrain a person’s ability to speak there.” 

 “Without this sign, I have no means to let the public know what’s occurring. I’m left without a voice,” Mr. Kauppila added. 

An article from the Calumet Gazette follows:

August 4, 2001

ACLU enters Calumet sign-posting dispute
Group urges township to overturn ordinance

By Jesse Drake
Gazette Writer

CALUMET — The American Civil Liberties Union of Michigan is urging Calumet Township officials to take immediate action on what it considers an unconstitutional zoning ordinance.

The letter came Wednesday and involves a township ordinance prohibiting residents from posting either political or protest signs.

Township resident Stuart Kauppila, hoping to end the early-morning deliveries to the grocery store next to his house, erected a sign on his lawn in protest reading “Please Don’t Shop at Fraki’s.” He said the 5:15 a.m. deliveries wake his children.

“It’s my duty as a husband and father to look after the interests of my family,” Kauppila said. “I can’t imagine anyone wanting me to do anything other than that.

“I’m not looking to establish any hard feelings or affect Fraki’s in any way that would do any long-term damage. I just want this issue resolved.” Township Supervisor Paul Lehto told Kauppila to take down the sign, saying it violates section 5 of the Calumet Township zoning ordinance. The ordinance states the township has the right to “control the number, types of all signs in business areas and certain other districts.” It prohibits commercial signs exceeding 5 square-feet in area, which Kauppila’s 4-foot by 8-foot sign violates.

“If you were to restrict the area of a protest sign, (the sign) would be useless,” Kauppila said.

 Lehto said he had received the letter and notified the ACLU of its receipt, but reserved further comment until the matter is discussed by the township board at the end of the month.

Kevin Fraki, manager of the Elm and Fourth Street Fraki Markets Inc., said he’s talked to distributors about keeping the early-morning noise levels to a minimum.

However, he said his business, operating at that location for 30 years, has to get started by 8 a.m. Kauppila, he added, worked at the store for 15 years.

“I’ve bent over backwards with that guy,” Fraki said. “He can go ahead and put his sign up, I don’t care.”

Op-ed Appearing in the Ann Arbor News

Do white supremacist groups have a right to bar Blacks and Jews from joining their organizations? Yes, because racism and anti-Semitism are core values of these private groups. Would you give money to the Klan just because it has a right to be racist?

Does the Boy Scouts of America have the right to bar gay boys and men from its membership and leadership?  Yes, because the Boy Scouts is a private organization that insisted in the Supreme Court last summer that discrimination against gays and lesbians was one of its core values.  In fact, the Boy Scouts went so far as to declare that it could not let gays and lesbians join or be leaders because they were neither “clean” nor “morally straight.”

Are you going to give money to a group that excludes kids and adults because of their sexual orientation?  This is a question that you will have to answer when the United Way of Washtenaw County asks for contributions through payroll deductions this fall

According to Newsweek, at least 44 of the most affluent United Way agencies in the country voted to stop funding the Boy Scouts because of its overt discriminatory policies.  Even the United Way of Allegan County, Michigan, has withdrawn its support of the Scouts.

Nonetheless, the Washtenaw County United Way not only funnels money to the Boy Scouts that individuals earmark for the group, but it also gave over $ 93,000 this year to the Boy Scouts out of money that workers donated to the general United Way “community fund.”   In other words, the local United Way, when deciding which non-profit groups to fund through its community fund, has determined that the Boy Scouts is one of the limited number of organizations worthy of this special support.

Supporters of the local United Way approach recently suggested in an  Ann Arbor News article that the reason the Washtenaw County Campaign has chosen to keep funding the Boy Scouts is to preserve people’s right to choose and to respect the different values of agencies that receive funding. These justifications distort the facts.

First, a person is not able to contribute to any group it wants through the United Way community fund.  Rather, the United Way always makes value judgments when choosing which select organizations will to receive money from the community fund.

For example, the local United Way has chosen to exclude Planned Parenthood from its community fund.  In fact, in the early 90's, the local United Way decided that Planned Parenthood, because of its values, was too controversial a group to even remain on the United Way’s check-off list of groups eligible for earmarked contributions.  In order to give to Planned Parenthood by payroll deduction during that time, a person had to write in the group’s name.

Second, the local United Way has a non-discrimination policy that prohibits giving community fund dollars to groups that discriminate based upon race, religion and a number of other categories.  Accordingly, a white supremacist group would not be eligible for community funds under United Way’s current policy.

Yet, the local United Way has repeatedly rejected requests to move the Boy Scouts from the list of groups that receive community funds to the list of groups that receive only earmarked contributions.  Apparently, the United Way has concluded that while it is unacceptable for the community fund to be used to fund racist groups, it is acceptable and desirable to give the money to an organization that is bigoted towards gays and lesbians.

Please think twice before giving money to the Boy Scouts or to the United Way of Washtenaw County this year.  Join the hundreds of individuals, cities, schools, churches, synagogues, parent-teacher organizations, unions, and United Way agencies nationwide who will no longer turn their backs on the harmful impact that the Boy Scouts’ homophobic policies have on our children and our community.

Instead, directly support organizations that are working to provide services in a non-discriminatory manner.  If you want to give to youth groups that are inclusive, consider the Campfire Boys and Girls, the Boys and Girls Club of America, the Girl Scouts, 4H and the YMCA.  Until the Boy Scouts and United Way of Washtenaw County change their policies, they are unworthy of our support. 

Note: Michael J. Steinberg is the legal director of the American Civil Liberties Union of Michigan, a member of Scouting for Equality and an Ann Arbor resident.

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Think Twice Before Giving to the United Way

January 23, 2009

Op-ed Appearing in the Ann Arbor News

Do white supremacist groups have a right to bar Blacks and Jews from joining their organizations? Yes, because racism and anti-Semitism are core values of these private groups. Would you give money to the Klan just because it has a right to be racist?

Does the Boy Scouts of America have the right to bar gay boys and men from its membership and leadership?  Yes, because the Boy Scouts is a private organization that insisted in the Supreme Court last summer that discrimination against gays and lesbians was one of its core values.  In fact, the Boy Scouts went so far as to declare that it could not let gays and lesbians join or be leaders because they were neither “clean” nor “morally straight.”

Are you going to give money to a group that excludes kids and adults because of their sexual orientation?  This is a question that you will have to answer when the United Way of Washtenaw County asks for contributions through payroll deductions this fall

According to Newsweek, at least 44 of the most affluent United Way agencies in the country voted to stop funding the Boy Scouts because of its overt discriminatory policies.  Even the United Way of Allegan County, Michigan, has withdrawn its support of the Scouts.

Nonetheless, the Washtenaw County United Way not only funnels money to the Boy Scouts that individuals earmark for the group, but it also gave over $ 93,000 this year to the Boy Scouts out of money that workers donated to the general United Way “community fund.”   In other words, the local United Way, when deciding which non-profit groups to fund through its community fund, has determined that the Boy Scouts is one of the limited number of organizations worthy of this special support.

Supporters of the local United Way approach recently suggested in an  Ann Arbor News article that the reason the Washtenaw County Campaign has chosen to keep funding the Boy Scouts is to preserve people’s right to choose and to respect the different values of agencies that receive funding. These justifications distort the facts.

First, a person is not able to contribute to any group it wants through the United Way community fund.  Rather, the United Way always makes value judgments when choosing which select organizations will to receive money from the community fund.

For example, the local United Way has chosen to exclude Planned Parenthood from its community fund.  In fact, in the early 90's, the local United Way decided that Planned Parenthood, because of its values, was too controversial a group to even remain on the United Way’s check-off list of groups eligible for earmarked contributions.  In order to give to Planned Parenthood by payroll deduction during that time, a person had to write in the group’s name.

Second, the local United Way has a non-discrimination policy that prohibits giving community fund dollars to groups that discriminate based upon race, religion and a number of other categories.  Accordingly, a white supremacist group would not be eligible for community funds under United Way’s current policy.

Yet, the local United Way has repeatedly rejected requests to move the Boy Scouts from the list of groups that receive community funds to the list of groups that receive only earmarked contributions.  Apparently, the United Way has concluded that while it is unacceptable for the community fund to be used to fund racist groups, it is acceptable and desirable to give the money to an organization that is bigoted towards gays and lesbians.

Please think twice before giving money to the Boy Scouts or to the United Way of Washtenaw County this year.  Join the hundreds of individuals, cities, schools, churches, synagogues, parent-teacher organizations, unions, and United Way agencies nationwide who will no longer turn their backs on the harmful impact that the Boy Scouts’ homophobic policies have on our children and our community.

Instead, directly support organizations that are working to provide services in a non-discriminatory manner.  If you want to give to youth groups that are inclusive, consider the Campfire Boys and Girls, the Boys and Girls Club of America, the Girl Scouts, 4H and the YMCA.  Until the Boy Scouts and United Way of Washtenaw County change their policies, they are unworthy of our support. 

Note: Michael J. Steinberg is the legal director of the American Civil Liberties Union of Michigan, a member of Scouting for Equality and an Ann Arbor resident.

DETROIT. A letter was sent today by the American Civil Liberties Union to Battle Creek Mayor Mark A. Behnke criticizing his unilateral decision to terminate the public comment portion of the City Commission meetings. Mayor Behnke’s decision was in response to his fears that citizens were making “terrorizing” remarks and verbally attacking city officials.

James Rodbard, an attorney and member of the ACLU Southwestern Michigan Branch Board, requested that the public comment portion be restored to the public access broadcasts of the City Commission meetings. He emphasized that access to television coverage of the meetings may be the only realistic means by which many citizens of Battle Creek have the opportunity to participate in local government and be included in the ongoing debate on many of the issues decided by the Commission. 

“By cutting off the public comment portion of the meetings, you have figuratively taken a ‘sledgehammer’ to a ‘gnat’ of a problem which can otherwise be remedied by far less restrictive means under the Michigan Open Meetings Act (OMA),” Mr. Rodbard wrote.  

“Like the Commissioners and citizens permitted to speak to public matters before the public comment portion of the meeting, citizens exercising their rights during the public comment time are entitled to be heard by all of the public, including the audience of cable access,” he said further. 

Concerns are still being investigated about whether or not the Mayor’s unilateral decision to terminate the broadcast of the public comment portion may be in violation of the Open Meetings Act or the Battle Creek City Charter. 

In 1999, the ACLU of Michigan successfully sued the City of Battle Creek for ejecting citizens from criticizing the police chief during public comment time. Gault v. City of Battle Creek, 72 F.Supp.2d 811 (W.D. Mich. 1999). 

The letter in its entirety follows:

The Honorable Mark A. Behnke
Mayor of the City of Battle Creek
10 North Division Street
Battle Creek, MI 49014

RE: Broadcast of Public Comment

Dear Mayor Behnke:

I am a member of the Lawyers Committee of the ACLU of Michigan, Southwestern Michigan Branch (the “ACLU”), and one of its board members.  The ACLU was recently approached by members of the public regarding your unilateral, and apparently singlehanded decision to terminate the broadcast of the public comment portion of the City Commission meetings.  This decision was ostensibly made because of your reported fear that citizens were making “terrorizing” remarks when addressing the City Commission, and because the meeting had become a place where city officials are verbally attacked. 

I must tell you Mr. Mayor that our organization is deeply troubled by your precipitous response to a critically important and long standing tradition of broadcasting all of the Battle Creek City Commission meetings.  Cable access broadcasts of these meetings are literally the only realistic means by which citizens of Battle Creek can participate in local government, and be included in the ongoing debate regarding the city’s direction.

By cutting off the public comment portion of the meetings, you have figuratively taken a “sledgehammer” to a “gnat” of a problem which can otherwise be remedied by far less restrictive means under the Michigan Open Meetings Act (the “OMA”). The OMA provides that “a person shall be permitted to address a meeting of a public body under rules established and recorded by the public body.”  The Attorney General has ruled that a public body may adopt a rule which prohibits a person from using the board’s and public’s time to make a personal attack on an individual; however,“if the phrase ‘personal attack’ . . . is intended to refer to the manner in which an employee of the . . . [public body] carries out his or her duties, the rule would be invalid. . . .” 1978 OAG 5332; 1978 WL 30762, at page 8 (emphasis added). See also Gault v City of Battle Creek, 73 F Supp 2nd 811, 814-814 (WD Mich 1999). Only if the conduct of the person being attacked is totally unrelated to the manner in which he or she performs his or her duties, may such comments be barred.  Id.

I understand that citizens still have the opportunity to watch public comment time in person.  However, I also believe that by intentionally creating a public forum via cable access broadcast of public comments, the city cannot make a content-based decision, such as yours, to end the forum.  The city has made the forum available to an entire class of speakers, and has cut public comment from it on a basis unrelated to conforming the speech activity to the forum’s purpose. Under these circumstances, the city must show that its content-based censorship of public comment serves a compelling state interest, in a narrowly tailored manner.   This, we believe, it cannot do.

It is extremely disappointing that a public official is so fearful of his constituents. If your constituents’ ideas are bad ideas, no one will listen to them anyway. If speakers violate the OMA, you are free to cut the speaker off and rule the speaker out of order.  There are cases decided by state and federal courts all over the county that will uphold a public body’s right to silence a disturbance.

We have an additional concern about your unilateral decision to direct the termination of broadcast of public comment.  We are reviewing whether you violated either the Open Meetings Act or the Battle Creek City Charter by making this decision independent of the City Commission as a whole. 

This letter serves as the ACLU’s  request that public comment time be restored to the broadcast of City Commission meetings. Whether public comment is accurate or inaccurate will rise and fall on its merit. Like the Commissioners and citizens permitted to speak to public matters before the public comment portion of the meeting, citizens exercising their rights during the public comment time are entitled to be heard by all of the public, including the audience of cable access, and are entitled to the same privileges and immunities, and subject to the same liabilities that accompany the exercise of those rights under the law. 

Please feel free to contact me with any questions you may have. As a courtesy to the City Commission and you, we are sending a copy of this letter to City Attorney Robinson. We would appreciate a response to this letter as soon as possible.

Very truly yours,

AMERICAN CIVIL LIBERTIES UNION
SOUTHWESTERN MICHIGAN BRANCH

 James N. Rodbard

 cc: Michael J. Steinberg, ACLU of Michigan, Clyde J. Robinson, Commissioners of the Battle Creek City Commission

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ACLU Critizes Mayor for Cutting Public Opinion from Meeting Broadcasts

September 04, 2001

DETROIT. A letter was sent today by the American Civil Liberties Union to Battle Creek Mayor Mark A. Behnke criticizing his unilateral decision to terminate the public comment portion of the City Commission meetings. Mayor Behnke’s decision was in response to his fears that citizens were making “terrorizing” remarks and verbally attacking city officials.

James Rodbard, an attorney and member of the ACLU Southwestern Michigan Branch Board, requested that the public comment portion be restored to the public access broadcasts of the City Commission meetings. He emphasized that access to television coverage of the meetings may be the only realistic means by which many citizens of Battle Creek have the opportunity to participate in local government and be included in the ongoing debate on many of the issues decided by the Commission. 

“By cutting off the public comment portion of the meetings, you have figuratively taken a ‘sledgehammer’ to a ‘gnat’ of a problem which can otherwise be remedied by far less restrictive means under the Michigan Open Meetings Act (OMA),” Mr. Rodbard wrote.  

“Like the Commissioners and citizens permitted to speak to public matters before the public comment portion of the meeting, citizens exercising their rights during the public comment time are entitled to be heard by all of the public, including the audience of cable access,” he said further. 

Concerns are still being investigated about whether or not the Mayor’s unilateral decision to terminate the broadcast of the public comment portion may be in violation of the Open Meetings Act or the Battle Creek City Charter. 

In 1999, the ACLU of Michigan successfully sued the City of Battle Creek for ejecting citizens from criticizing the police chief during public comment time. Gault v. City of Battle Creek, 72 F.Supp.2d 811 (W.D. Mich. 1999). 

The letter in its entirety follows:

The Honorable Mark A. Behnke
Mayor of the City of Battle Creek
10 North Division Street
Battle Creek, MI 49014

RE: Broadcast of Public Comment

Dear Mayor Behnke:

I am a member of the Lawyers Committee of the ACLU of Michigan, Southwestern Michigan Branch (the “ACLU”), and one of its board members.  The ACLU was recently approached by members of the public regarding your unilateral, and apparently singlehanded decision to terminate the broadcast of the public comment portion of the City Commission meetings.  This decision was ostensibly made because of your reported fear that citizens were making “terrorizing” remarks when addressing the City Commission, and because the meeting had become a place where city officials are verbally attacked. 

I must tell you Mr. Mayor that our organization is deeply troubled by your precipitous response to a critically important and long standing tradition of broadcasting all of the Battle Creek City Commission meetings.  Cable access broadcasts of these meetings are literally the only realistic means by which citizens of Battle Creek can participate in local government, and be included in the ongoing debate regarding the city’s direction.

By cutting off the public comment portion of the meetings, you have figuratively taken a “sledgehammer” to a “gnat” of a problem which can otherwise be remedied by far less restrictive means under the Michigan Open Meetings Act (the “OMA”). The OMA provides that “a person shall be permitted to address a meeting of a public body under rules established and recorded by the public body.”  The Attorney General has ruled that a public body may adopt a rule which prohibits a person from using the board’s and public’s time to make a personal attack on an individual; however,“if the phrase ‘personal attack’ . . . is intended to refer to the manner in which an employee of the . . . [public body] carries out his or her duties, the rule would be invalid. . . .” 1978 OAG 5332; 1978 WL 30762, at page 8 (emphasis added). See also Gault v City of Battle Creek, 73 F Supp 2nd 811, 814-814 (WD Mich 1999). Only if the conduct of the person being attacked is totally unrelated to the manner in which he or she performs his or her duties, may such comments be barred.  Id.

I understand that citizens still have the opportunity to watch public comment time in person.  However, I also believe that by intentionally creating a public forum via cable access broadcast of public comments, the city cannot make a content-based decision, such as yours, to end the forum.  The city has made the forum available to an entire class of speakers, and has cut public comment from it on a basis unrelated to conforming the speech activity to the forum’s purpose. Under these circumstances, the city must show that its content-based censorship of public comment serves a compelling state interest, in a narrowly tailored manner.   This, we believe, it cannot do.

It is extremely disappointing that a public official is so fearful of his constituents. If your constituents’ ideas are bad ideas, no one will listen to them anyway. If speakers violate the OMA, you are free to cut the speaker off and rule the speaker out of order.  There are cases decided by state and federal courts all over the county that will uphold a public body’s right to silence a disturbance.

We have an additional concern about your unilateral decision to direct the termination of broadcast of public comment.  We are reviewing whether you violated either the Open Meetings Act or the Battle Creek City Charter by making this decision independent of the City Commission as a whole. 

This letter serves as the ACLU’s  request that public comment time be restored to the broadcast of City Commission meetings. Whether public comment is accurate or inaccurate will rise and fall on its merit. Like the Commissioners and citizens permitted to speak to public matters before the public comment portion of the meeting, citizens exercising their rights during the public comment time are entitled to be heard by all of the public, including the audience of cable access, and are entitled to the same privileges and immunities, and subject to the same liabilities that accompany the exercise of those rights under the law. 

Please feel free to contact me with any questions you may have. As a courtesy to the City Commission and you, we are sending a copy of this letter to City Attorney Robinson. We would appreciate a response to this letter as soon as possible.

Very truly yours,

AMERICAN CIVIL LIBERTIES UNION
SOUTHWESTERN MICHIGAN BRANCH

 James N. Rodbard

 cc: Michael J. Steinberg, ACLU of Michigan, Clyde J. Robinson, Commissioners of the Battle Creek City Commission

MT. PLEASANT — The American Civil Liberties Union of Michigan filed a lawsuit today in federal court against the Mt. Pleasant Public Schools on behalf of an honor student who was suspended for writing a humorous commentary criticizing his school’s new tardy policy.

“This case is another example how zero tolerance laws are being used to squelch free expression,” said Kary Moss, executive director of the Michigan ACLU.  “Schools should be teaching students about the Constitution, not punishing them for exercising their rights.”  

Alex Smith, an A-student at Mt. Pleasant High School, was suspended in October, 2000, after he privately read his parody about the tardy policy to a small group of friends in the cafeteria.  The commentary, written at home, criticized the policy, the process leading to its adoption, and several teachers and administrators charged with its enforcement.

“I never intended for the principal to see or hear it.  It was meant as a joke and I’m truly sorry that people were offended,” Alex said.  He has been genuinely cooperative and remorseful throughout this ordeal and delivered written apologies to each of the school personnel he mentioned.

Nevertheless, Alex was suspended for ten days for committing a “verbal assault” because he allegedly assaulted “the dignity of a person.”  Although state law requires that all districts suspend students for committing “verbal assaults,” the law leaves it up to the school to define the term.  Mt. Pleasant appears to be the only school district to define “verbal assault” to include assaults on the dignity of a person.  

“School administrators cannot suspend students and mar their school records for expressing their social and political views -- even if the expression is critical of the school administration,” said ACLU Cooperating Attorney Richard Landau.  “The Mt. Pleasant policy casts too broad a net and permits the school to punish good students for speech that is protected by the First Amendment.”

The ACLU lawsuit asks the court to declare the Mt. Pleasant verbal assault policy and the state verbal assault law unconstitutional.  Read the complaint

To read an article from the Freedom Forum

To read an article from CMU on the web

To read an editorial from CMU on the web

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ACLU Sues Mt. Pleasant Schools for Suspending Critic of Tardy Policy

September 05, 2001

MT. PLEASANT — The American Civil Liberties Union of Michigan filed a lawsuit today in federal court against the Mt. Pleasant Public Schools on behalf of an honor student who was suspended for writing a humorous commentary criticizing his school’s new tardy policy.

“This case is another example how zero tolerance laws are being used to squelch free expression,” said Kary Moss, executive director of the Michigan ACLU.  “Schools should be teaching students about the Constitution, not punishing them for exercising their rights.”  

Alex Smith, an A-student at Mt. Pleasant High School, was suspended in October, 2000, after he privately read his parody about the tardy policy to a small group of friends in the cafeteria.  The commentary, written at home, criticized the policy, the process leading to its adoption, and several teachers and administrators charged with its enforcement.

“I never intended for the principal to see or hear it.  It was meant as a joke and I’m truly sorry that people were offended,” Alex said.  He has been genuinely cooperative and remorseful throughout this ordeal and delivered written apologies to each of the school personnel he mentioned.

Nevertheless, Alex was suspended for ten days for committing a “verbal assault” because he allegedly assaulted “the dignity of a person.”  Although state law requires that all districts suspend students for committing “verbal assaults,” the law leaves it up to the school to define the term.  Mt. Pleasant appears to be the only school district to define “verbal assault” to include assaults on the dignity of a person.  

“School administrators cannot suspend students and mar their school records for expressing their social and political views -- even if the expression is critical of the school administration,” said ACLU Cooperating Attorney Richard Landau.  “The Mt. Pleasant policy casts too broad a net and permits the school to punish good students for speech that is protected by the First Amendment.”

The ACLU lawsuit asks the court to declare the Mt. Pleasant verbal assault policy and the state verbal assault law unconstitutional.  Read the complaint

To read an article from the Freedom Forum

To read an article from CMU on the web

To read an editorial from CMU on the web

Three victories for GLBT rights in Michigan

Efforts to deny civil rights protections for GLBT persons in Michigan were defeated by Michigan voters on November 6, 2001.

In Traverse City and Kalamazoo, voters defeated proposed charter amendments that would have denied civil rights protections to gay, lesbian and bisexual persons, based on orientation, conduct or relationships. In Huntington Woods, voters overwhelmingly supported amending their human rights ordinance to include the sexual orientation and gender identity. 

These anti-gay ballot measures, inspired and initiated by the American Family Association (AFA) were soundly defeated by voters in Kalamazoo 54% to 46% and in Traverse City 58% to 42%. Efforts by the AFA and other local groups to incite fears regarding protections for GLBT persons against discrimination included unfounded statements that cities would be forced to allow men to shower with women and children at city pools, boy scouts would be prohibited from using city services, and that priests would be forced to marry same sex couples.   

Protections against discrimination on the basis of sexual orientation is neither a special right nor radical concept. It is a statement that people are to be judged by their merits- to do a job, to be a responsible neighbor and citizen and not by characteristics unrelated to their ability to contribute to society. Congratulations to the voters in Huntington Woods who demonstrated that they are in step with this core value of our country's constitutional history and to the communities of Traverse City and Kalamazoo who have made it clear that they are not interested in taking backward steps when it comes to civil rights.

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2001 Voting Victories for GLBT Rights in Michigan

November 07, 2001

Three victories for GLBT rights in Michigan

Efforts to deny civil rights protections for GLBT persons in Michigan were defeated by Michigan voters on November 6, 2001.

In Traverse City and Kalamazoo, voters defeated proposed charter amendments that would have denied civil rights protections to gay, lesbian and bisexual persons, based on orientation, conduct or relationships. In Huntington Woods, voters overwhelmingly supported amending their human rights ordinance to include the sexual orientation and gender identity. 

These anti-gay ballot measures, inspired and initiated by the American Family Association (AFA) were soundly defeated by voters in Kalamazoo 54% to 46% and in Traverse City 58% to 42%. Efforts by the AFA and other local groups to incite fears regarding protections for GLBT persons against discrimination included unfounded statements that cities would be forced to allow men to shower with women and children at city pools, boy scouts would be prohibited from using city services, and that priests would be forced to marry same sex couples.   

Protections against discrimination on the basis of sexual orientation is neither a special right nor radical concept. It is a statement that people are to be judged by their merits- to do a job, to be a responsible neighbor and citizen and not by characteristics unrelated to their ability to contribute to society. Congratulations to the voters in Huntington Woods who demonstrated that they are in step with this core value of our country's constitutional history and to the communities of Traverse City and Kalamazoo who have made it clear that they are not interested in taking backward steps when it comes to civil rights.

DETROIT - The American Civil Liberties Union of Michigan grieves with the rest of the nation, and world, over the devastating loss of life resulting from the joint attacks against the World Trade Center, the Pentagon and the crash of the airplane outside of Pittsburgh.

We strongly applaud the words of our national leaders who, in reaction to this unparalleled tragedy, have promised to preserve the free and open society that has made this nation great.

As we face the future and begin to heal, there will understandably be a willingness by many to surrender all freedoms in order to attain a sense of security.  We must recognize, however, the importance of upholding the principles of liberty this nation holds dear as we begin to take necessary security measures.

Eliminating our freedoms and civil liberties could result in a false sense of security and do irreparable damage to innocent citizens.  We must act cautiously and carefully as events unfold.

We have heard of reports of several incidents of retaliation against innocent Arab Americans here in the Detroit community. These reports, as well as reports across the country, are of great concern to the ACLU of Michigan.  I have been speaking to leaders in that community, as well as law enforcement agencies, to be sure that lines of communication are open, especially in the coming weeks.  We will continue to work diligently to protect the freedom of all people in our state, especially for our friends in the Arab community, the largest outside of the Middle East.

Just as New Yorkers remain strong in the face of such adversity, Detroit and our surrounding communities must remain united and remember that we are all equally horrified and disbelieving that such an event could take place on our soil.

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ACLU Grieves with the Nation

September 14, 2008

DETROIT - The American Civil Liberties Union of Michigan grieves with the rest of the nation, and world, over the devastating loss of life resulting from the joint attacks against the World Trade Center, the Pentagon and the crash of the airplane outside of Pittsburgh.

We strongly applaud the words of our national leaders who, in reaction to this unparalleled tragedy, have promised to preserve the free and open society that has made this nation great.

As we face the future and begin to heal, there will understandably be a willingness by many to surrender all freedoms in order to attain a sense of security.  We must recognize, however, the importance of upholding the principles of liberty this nation holds dear as we begin to take necessary security measures.

Eliminating our freedoms and civil liberties could result in a false sense of security and do irreparable damage to innocent citizens.  We must act cautiously and carefully as events unfold.

We have heard of reports of several incidents of retaliation against innocent Arab Americans here in the Detroit community. These reports, as well as reports across the country, are of great concern to the ACLU of Michigan.  I have been speaking to leaders in that community, as well as law enforcement agencies, to be sure that lines of communication are open, especially in the coming weeks.  We will continue to work diligently to protect the freedom of all people in our state, especially for our friends in the Arab community, the largest outside of the Middle East.

Just as New Yorkers remain strong in the face of such adversity, Detroit and our surrounding communities must remain united and remember that we are all equally horrified and disbelieving that such an event could take place on our soil.

The CEO and Executive Vice President of Northwest Airlines have sent a letter to the American Civil Liberties Union of Michigan to apologize for the treatment of three passengers of Middle East descent who were removed from a plane on September 20 because other passengers were uncomfortable about flying with them on a Northwest flight after the September 11th attack.

The letter is in response to criticism by the ACLU, the American-Arab Anti-Discrimination Committee (ADC), Latin Americans for Social and Economic Development (LASED), the Arab Community Center for Economic Social Justice  (ACCESS), the Arab Chamber of Commerce, and the National Lawyers Guild. The groups had written Northwest Airlines to express concern that the treatment of the men violated the Equal Protection Clause of the U.S. Constitution, as well as federal and state public accommodations laws.  

“Removal of passengers based solely on harmful stereotypes is not only illegal, it is an ineffective and insensitive security measure,” said Kary Moss, ACLU of Michigan Executive Director. 

The organizations also asked that steps be taken to ensure that an incident such as that which occurred, not be repeated and that Northwest Airlines refrain from engaging in the practice of racial profiling. 

“We are hopeful that Northwest will learn from its mistake and take affirmative stops and not engage is humiliating acts of racial profiling in the future,” Moss added. 

It appears from the response letter that the airline understands that.  Richard Edlund, Northwest Airlines’ Administrator, wrote, “Security concerns must focus on passenger behavior, not on passenger appearance.”

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Northwest Airlines Apologizes to Civil Rights Groups

November 08, 2001

The CEO and Executive Vice President of Northwest Airlines have sent a letter to the American Civil Liberties Union of Michigan to apologize for the treatment of three passengers of Middle East descent who were removed from a plane on September 20 because other passengers were uncomfortable about flying with them on a Northwest flight after the September 11th attack.

The letter is in response to criticism by the ACLU, the American-Arab Anti-Discrimination Committee (ADC), Latin Americans for Social and Economic Development (LASED), the Arab Community Center for Economic Social Justice  (ACCESS), the Arab Chamber of Commerce, and the National Lawyers Guild. The groups had written Northwest Airlines to express concern that the treatment of the men violated the Equal Protection Clause of the U.S. Constitution, as well as federal and state public accommodations laws.  

“Removal of passengers based solely on harmful stereotypes is not only illegal, it is an ineffective and insensitive security measure,” said Kary Moss, ACLU of Michigan Executive Director. 

The organizations also asked that steps be taken to ensure that an incident such as that which occurred, not be repeated and that Northwest Airlines refrain from engaging in the practice of racial profiling. 

“We are hopeful that Northwest will learn from its mistake and take affirmative stops and not engage is humiliating acts of racial profiling in the future,” Moss added. 

It appears from the response letter that the airline understands that.  Richard Edlund, Northwest Airlines’ Administrator, wrote, “Security concerns must focus on passenger behavior, not on passenger appearance.”

The American Civil Liberties Union of Michigan sent a letter today to oppose a proposed Ferndale Police Department that would permit officers to give breath tests to patrons of restaurants and bars without probable cause to believe that the person committed a crime.

“There is nothing illegal about drinking alcohol in a restaurant or bar,” said Kary L. Moss, Executive Director of the ACLU of Michigan. She added, “This proposal would allow police officers to harass people for no reason. They’re saying it will be voluntary, but we all know how hard it is to not go along with what a policeman asks you to do.” 

In the letter to the Police and Fire Board, Rozanne Sedler, ACLU Oakland County Branch chair, explained that “requiring a patron at a restaurant or bar to submit to a breath test is prohibited absent a search warrant supported by probable cause.” However, since it is not a crime to drink alcohol in a restaurant or bar, there is no basis for issuing such a warrant. Further, unlike drivers who give “implied consent” to submit to a breathalyzer when they get behind the wheel, a person does not give up the right to be free from bodily searches by entering a bar.

Sedler also noted, “The prospect of Ferndale police officers roaming bars and restaurants and demanding that law abiding citizens breath into a machine is more reminiscent of a police state than a freedom-loving society where civil liberties and privacy are cherished.” 

Michael J. Steinberg, legal director of the Michigan ACLU, will attend the Police and Fire Board meeting on Monday to respond to any questions the Board may have about the letter.

The letter in its entirety follows:

 

November 9, 2001

Police and Fire Board
City of Ferndale
300 E. Nine Mile Rd.
Ferndale, MI 48220 

Re: Proposal to Permit Police Officers to Administer Breath Tests to Bar and Restaurant Patrons To the Police and Fire Board of the City of Ferndale:

The Oakland County Branch of American Civil Liberties Union recently learned of the proposal in Ferndale to adopt a policy permitting the police to administer preliminary breath tests (PBT’s) to patrons of commercial establishments where alcohol is served.  We write to urge you to reject the proposal.  Requiring patrons to take PBT’s would not only constitute an unwarranted invasion of privacy and police harassment, but it would also violate the U.S. Constitution.

The Fourth Amendment to the United States Constitution forbids police from conducting unreasonable searches and seizures.  As a general matter, police officers cannot search a person unless they obtain a search warrant from a judge.  A judge cannot issue a warrant to search a person unless the officers establish that there is “probable cause” to believe that the person has committed a crime and that the search will produce evidence of the crime. 

A Breathalyzer or breath test is unquestionably a search within the meaning of the Fourth Amendment.  See, e.g., Skinner v. Railway Labor Executives Ass’n, 489 U.S. 602, 616-17 (1989) (“[s]ubjecting a person to a breathalyzer test . . . implicates concerns about bodily integrity and, like the blood-alcohol test . . . should also be deemed a search.”).  Thus, requiring a patron at a restaurant or bar to submit to a breath test is prohibited absent a search warrant supported by probable cause. 

However, the mere fact that a person has been drinking alcohol in a restaurant or bar cannot serve as sufficient cause to issue a warrant to conduct a breath test.   The reason is simple: it is not a crime for an adult to drink or to drink “too much” in a restaurant or bar. It is worth emphasizing that, from a legal perspective, drinking alcohol in a bar or restaurant is very different from drinking while driving for at least two reasons.  First, a driver violate

Michigan law if he or she drives with a blood-alcohol content of .10 or more.  Mich.Comp.Laws § 257.625(1)(b).  However, there exists no law forbidding restaurant patrons from drinking.  Second, when a person drives a car, he or she gives “implied consent” to submit to chemical tests under certain circumstances.  Mich.Comp.Laws § 257.625c(1);  People v. Bouchard-Ruhland, 460 Mich. 278, 293-95 (1999).  In contrast, a person who enters a bar, like a person walking down the street, does not waive his or her rights to be free of bodily searches. [1]

Additionally, it should be noted that while there are laws that forbid restaurant and bar owners from serving alcohol to patrons that appear to be intoxicated, the determination of whether to serve a person is never made based upon a blood-alcohol test.  Rather, the legal test is whether the patron is “visibly intoxicated” based upon his or her conduct.     Mich.Comp.Laws § 436.1801(2).  Therefore, even if it requiring a patron to give a breath test was constitutional, the mere fact that the patron’s blood alcohol level exceeded .10 would not prove that the bar or restaurant owner violated the law.  Similarly, PBT’s are not necessary to enforce other potentially illegal activities in a bar such as disorderly conduct, serving alcohol to minors, building capacity laws and the like.

Finally, and perhaps most importantly, the proposal should be rejected for policy reasons as well as legal reasons.  The prospect of Ferndale police officers roaming bars and restaurants and demanding that law abiding citizens breath into machines is more reminiscent of a police state than a freedom-loving society where civil liberties and privacy are cherished.  For this reason, and for the legal reasons set forth above, we strongly urge you to reject the proposal permitting police officers to require restaurant and bar patrons to submit to PBT’s.

Sincerely,

Rozanne Sedler, President 
Oakland County ACLU                                    

Jan Leventer and Steve Cozart
Co-Chairs of Oakland Co. ACLU Lawyers Committee

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ACLU Opposes Ferndale Police Plan for Breathalizers at Bars and Restaurants

November 09, 2001

The American Civil Liberties Union of Michigan sent a letter today to oppose a proposed Ferndale Police Department that would permit officers to give breath tests to patrons of restaurants and bars without probable cause to believe that the person committed a crime.

“There is nothing illegal about drinking alcohol in a restaurant or bar,” said Kary L. Moss, Executive Director of the ACLU of Michigan. She added, “This proposal would allow police officers to harass people for no reason. They’re saying it will be voluntary, but we all know how hard it is to not go along with what a policeman asks you to do.” 

In the letter to the Police and Fire Board, Rozanne Sedler, ACLU Oakland County Branch chair, explained that “requiring a patron at a restaurant or bar to submit to a breath test is prohibited absent a search warrant supported by probable cause.” However, since it is not a crime to drink alcohol in a restaurant or bar, there is no basis for issuing such a warrant. Further, unlike drivers who give “implied consent” to submit to a breathalyzer when they get behind the wheel, a person does not give up the right to be free from bodily searches by entering a bar.

Sedler also noted, “The prospect of Ferndale police officers roaming bars and restaurants and demanding that law abiding citizens breath into a machine is more reminiscent of a police state than a freedom-loving society where civil liberties and privacy are cherished.” 

Michael J. Steinberg, legal director of the Michigan ACLU, will attend the Police and Fire Board meeting on Monday to respond to any questions the Board may have about the letter.

The letter in its entirety follows:

 

November 9, 2001

Police and Fire Board
City of Ferndale
300 E. Nine Mile Rd.
Ferndale, MI 48220 

Re: Proposal to Permit Police Officers to Administer Breath Tests to Bar and Restaurant Patrons To the Police and Fire Board of the City of Ferndale:

The Oakland County Branch of American Civil Liberties Union recently learned of the proposal in Ferndale to adopt a policy permitting the police to administer preliminary breath tests (PBT’s) to patrons of commercial establishments where alcohol is served.  We write to urge you to reject the proposal.  Requiring patrons to take PBT’s would not only constitute an unwarranted invasion of privacy and police harassment, but it would also violate the U.S. Constitution.

The Fourth Amendment to the United States Constitution forbids police from conducting unreasonable searches and seizures.  As a general matter, police officers cannot search a person unless they obtain a search warrant from a judge.  A judge cannot issue a warrant to search a person unless the officers establish that there is “probable cause” to believe that the person has committed a crime and that the search will produce evidence of the crime. 

A Breathalyzer or breath test is unquestionably a search within the meaning of the Fourth Amendment.  See, e.g., Skinner v. Railway Labor Executives Ass’n, 489 U.S. 602, 616-17 (1989) (“[s]ubjecting a person to a breathalyzer test . . . implicates concerns about bodily integrity and, like the blood-alcohol test . . . should also be deemed a search.”).  Thus, requiring a patron at a restaurant or bar to submit to a breath test is prohibited absent a search warrant supported by probable cause. 

However, the mere fact that a person has been drinking alcohol in a restaurant or bar cannot serve as sufficient cause to issue a warrant to conduct a breath test.   The reason is simple: it is not a crime for an adult to drink or to drink “too much” in a restaurant or bar. It is worth emphasizing that, from a legal perspective, drinking alcohol in a bar or restaurant is very different from drinking while driving for at least two reasons.  First, a driver violate

Michigan law if he or she drives with a blood-alcohol content of .10 or more.  Mich.Comp.Laws § 257.625(1)(b).  However, there exists no law forbidding restaurant patrons from drinking.  Second, when a person drives a car, he or she gives “implied consent” to submit to chemical tests under certain circumstances.  Mich.Comp.Laws § 257.625c(1);  People v. Bouchard-Ruhland, 460 Mich. 278, 293-95 (1999).  In contrast, a person who enters a bar, like a person walking down the street, does not waive his or her rights to be free of bodily searches. [1]

Additionally, it should be noted that while there are laws that forbid restaurant and bar owners from serving alcohol to patrons that appear to be intoxicated, the determination of whether to serve a person is never made based upon a blood-alcohol test.  Rather, the legal test is whether the patron is “visibly intoxicated” based upon his or her conduct.     Mich.Comp.Laws § 436.1801(2).  Therefore, even if it requiring a patron to give a breath test was constitutional, the mere fact that the patron’s blood alcohol level exceeded .10 would not prove that the bar or restaurant owner violated the law.  Similarly, PBT’s are not necessary to enforce other potentially illegal activities in a bar such as disorderly conduct, serving alcohol to minors, building capacity laws and the like.

Finally, and perhaps most importantly, the proposal should be rejected for policy reasons as well as legal reasons.  The prospect of Ferndale police officers roaming bars and restaurants and demanding that law abiding citizens breath into machines is more reminiscent of a police state than a freedom-loving society where civil liberties and privacy are cherished.  For this reason, and for the legal reasons set forth above, we strongly urge you to reject the proposal permitting police officers to require restaurant and bar patrons to submit to PBT’s.

Sincerely,

Rozanne Sedler, President 
Oakland County ACLU                                    

Jan Leventer and Steve Cozart
Co-Chairs of Oakland Co. ACLU Lawyers Committee

The Michigan ACLU announced today that pamphlets advising people about their rights when stopped or questioned by the FBI, police or INS officials are available in English, Spanish and Arabic.

"Know Your Rights: What to Do If You're Stopped by the Police, the FBI, the INS or the Customs Service" contains information for citizens and non-citizens alike and is intended for those who feel at risk of becoming innocent targets of a government investigation in the wake of the September 11 terrorist attacks.

“There has been great concern that many people don’t really know what their rights are,” said Kary Moss, Michigan ACLU executive director. “Having this information will be even more important after the Justice Department’s announcement that thousands of young men from Middle Eastern countries will be questioned by the FBI, simply because of where they are from and not based on suspicion.”

These brochures answer the vast majority of questions that have been raised about stops, questioning, searches, and rights of non-citizens. None of the advice is meant to stop people from cooperating with proper law enforcement investigations. Advice to those who are being questioned by authorities is to be careful, but truthful in responding to law enforcement.

The brochures are available at no cost to ethnic organizations and community groups at the Michigan ACLU office or can be downloaded in Adobe Acrobat/PDF format from the ACLU of MI website www.aclumich.org

To learn more about your rights, visit: http://www.aclu.org/national-security/know-your-rights-when-encountering....

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Government Prepares to Investigate Thousands

The Michigan ACLU announced today that pamphlets advising people about their rights when stopped or questioned by the FBI, police or INS officials are available in English, Spanish and Arabic.

"Know Your Rights: What to Do If You're Stopped by the Police, the FBI, the INS or the Customs Service" contains information for citizens and non-citizens alike and is intended for those who feel at risk of becoming innocent targets of a government investigation in the wake of the September 11 terrorist attacks.

“There has been great concern that many people don’t really know what their rights are,” said Kary Moss, Michigan ACLU executive director. “Having this information will be even more important after the Justice Department’s announcement that thousands of young men from Middle Eastern countries will be questioned by the FBI, simply because of where they are from and not based on suspicion.”

These brochures answer the vast majority of questions that have been raised about stops, questioning, searches, and rights of non-citizens. None of the advice is meant to stop people from cooperating with proper law enforcement investigations. Advice to those who are being questioned by authorities is to be careful, but truthful in responding to law enforcement.

The brochures are available at no cost to ethnic organizations and community groups at the Michigan ACLU office or can be downloaded in Adobe Acrobat/PDF format from the ACLU of MI website www.aclumich.org

To learn more about your rights, visit: http://www.aclu.org/national-security/know-your-rights-when-encountering....

DETROIT — In a move forward for a civil rights lawsuit challenging Michigan's use of the Michigan Educational Assessment Program (MEAP) High School Test to award college scholarships, a federal judge today rejected the state's attempt to dismiss the case, which was brought by a coalition including the American Civil Liberties Union of Michigan.

"We believe that the judge made the correct decision in allowing this case to go forward," said Kary Moss, Executive Director of the ACLU of Michigan. "It is time that Michigan's scholarship program was redesigned to ensure that it truly rewards merit." 

 The lawsuit, White v. Engler, was originally filed in June 2000 by the ACLU, Trial Lawyers for Public Justice and the Mexican American Legal Defense Fund on behalf of five graduating seniors and the Michigan State Conference of the NAACP.  

The groups initially sought an injunction requiring the state to immediately discontinue use of the MEAP as the sole criterion for awarding Michigan Merit Award Scholarships. They are calling for Michigan to revise its selection criteria, allowing for a fairer method that considers grade point average and other measures of achievement. According to the lawsuit, the use of MEAP test scores discriminates against high school students on the basis of race, ethnicity, and educational disadvantage. The MEAP test has never been validated as a means of assessing individual student achievement but rather was designed to measure school performance. 

The government argued that the defendants -- who include Governor John Engler and members of the Michigan Merit Award Board -- were immune from prosecution and that the coalition could not sue the state because the students did not take advantage of retest opportunities made available to them. The state also maintained that not getting into a first-choice college does not amount to real injury.  

The court today rejected the State's immunity claim and ruled that the loss of opportunity was sufficient reason to allow plaintiffs to pursue the case. 

In an important legal ruling, the court also decided that the coalition need only prove that the scholarship has a "discriminatory effect" on minority and educationally disadvantaged students --a less difficult burden than proving intentional discrimination. Such a ruling keeps open an important path for discrimination lawsuits to be brought in the future, according to cooperating counsel Peggy Pitt. 

"The court's decision to allow the plaintiffs to meet this easier legal burden will help people around the country who believe that they have been victims of discrimination," Pitt said. 

The students in the case are represented by Moss and Michael Steinberg, Legal Director, of the ACLU of Michigan; Leonard Mungo of the Michigan State Conference of the NAACP; Pat Mendoza and Marta Delgado of the Mexican American Legal Defense & Educational Fund; Michael Pitt, Peggy Goldberg Pitt, and Judy Martin, as Cooperating Attorneys for the ACLU of Michigan, and Adele P. Kimmel of Trial Lawyers for Public Justice, P.C.  

Click Here for an analysis of the Michigan Merit Award Scholarship Program. 

Click Here for a National ACLU update on this case.

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Lawsuit Over Race Discrimination in State Scholarship Awards Gains Ground

November 28, 2001

DETROIT — In a move forward for a civil rights lawsuit challenging Michigan's use of the Michigan Educational Assessment Program (MEAP) High School Test to award college scholarships, a federal judge today rejected the state's attempt to dismiss the case, which was brought by a coalition including the American Civil Liberties Union of Michigan.

"We believe that the judge made the correct decision in allowing this case to go forward," said Kary Moss, Executive Director of the ACLU of Michigan. "It is time that Michigan's scholarship program was redesigned to ensure that it truly rewards merit." 

 The lawsuit, White v. Engler, was originally filed in June 2000 by the ACLU, Trial Lawyers for Public Justice and the Mexican American Legal Defense Fund on behalf of five graduating seniors and the Michigan State Conference of the NAACP.  

The groups initially sought an injunction requiring the state to immediately discontinue use of the MEAP as the sole criterion for awarding Michigan Merit Award Scholarships. They are calling for Michigan to revise its selection criteria, allowing for a fairer method that considers grade point average and other measures of achievement. According to the lawsuit, the use of MEAP test scores discriminates against high school students on the basis of race, ethnicity, and educational disadvantage. The MEAP test has never been validated as a means of assessing individual student achievement but rather was designed to measure school performance. 

The government argued that the defendants -- who include Governor John Engler and members of the Michigan Merit Award Board -- were immune from prosecution and that the coalition could not sue the state because the students did not take advantage of retest opportunities made available to them. The state also maintained that not getting into a first-choice college does not amount to real injury.  

The court today rejected the State's immunity claim and ruled that the loss of opportunity was sufficient reason to allow plaintiffs to pursue the case. 

In an important legal ruling, the court also decided that the coalition need only prove that the scholarship has a "discriminatory effect" on minority and educationally disadvantaged students --a less difficult burden than proving intentional discrimination. Such a ruling keeps open an important path for discrimination lawsuits to be brought in the future, according to cooperating counsel Peggy Pitt. 

"The court's decision to allow the plaintiffs to meet this easier legal burden will help people around the country who believe that they have been victims of discrimination," Pitt said. 

The students in the case are represented by Moss and Michael Steinberg, Legal Director, of the ACLU of Michigan; Leonard Mungo of the Michigan State Conference of the NAACP; Pat Mendoza and Marta Delgado of the Mexican American Legal Defense & Educational Fund; Michael Pitt, Peggy Goldberg Pitt, and Judy Martin, as Cooperating Attorneys for the ACLU of Michigan, and Adele P. Kimmel of Trial Lawyers for Public Justice, P.C.  

Click Here for an analysis of the Michigan Merit Award Scholarship Program. 

Click Here for a National ACLU update on this case.

The ACLU of Michigan contends that affirmative action is necessary to both:

  1. achieve educational diversity at the university; and
  2. level the playing field for students of color by offsetting the other discriminatory aspects of U-M's admissions process and by addressing the hostile environment on campus.   

Michael Steinberg, legal director for the ACLU of Michigan, who observed the Appeals Court session said, “The future of diversity at the nations’ top universities hangs in the balance. It would be a national tragedy if the University of Michigan and other schools of its caliber become re-segregated.”  

In 1998, the Michigan ACLU intervened in the lawsuit against the U-M undergraduate admissions program along with the NAACP Legal Defense and Educational Fund, Inc., the Mexican American Legal Defense Fund (MALDEF), Citizens for Affirmative Action’ Preservation (CAAP) and the National ACLU. 

In December, 2000, U.S. District Court Judge Patrick Duggan ruled that U-M's undergraduate admissions program was constitutional because it was "narrowly tailored" to advancing the compelling state interest of creating a diverse student body.  

In his opinion, Judge Duggan said, “The University Defendants have presented this Court with solid evidence regarding the education benefits that flow from a racially and ethnically diverse student body.” However, he later issued an opinion stating that the University could not justify affirmative action as a means to remedy past and present inequalities at the University.

On appeal, the legal team that included the ACLU argued that the U.S. Court of Appeals should affirm Judge Duggan's ruling on diversity, but reverse his ruling on affirmative action as a remedy for discrimination. As long as racism remains a problem there, the University ought to be able to consider race the affirmative-action policies were adopted in response to protests over discrimination on the campus. 

Given the importance of the ruling and the likelihood that, whatever the decision, it will be appealed, the case will be decided by all full-time judges of the Sixth Circuit instead of the usual panel of three judges. Many believe that both the undergraduate and the law school admissions cases may eventually be decided in the U.S. Supreme Court. 

“Affirmative action enhances the educational experience of all students and without it, higher education would suffer. Hopefully, the U.S. Court of Appeals, and ultimately the U.S. Supreme Court, will agree,” Steinberg added further.

Although the U-M Law School affirmative action case was tried before a different district judge than the judge in the undergraduate case, the law school appeal was heard immediately after the undergraduate case on Thursday. After trial in that case, U.S. District Court Judge Bernard Friedman, unlike Judge Duggan, held that the current law school admissions process was unconstitutional. A separate group of organizations that did not include the ACLU intervened in the law school case.

Click Here for U.S. District Court Judge Patrick Duggan's opinion upholding U-M's present admission policy.

Click Here for a complete look at the ACLU's position on Affirmative Action.

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University of Michigan Affirmative Action Case Heard in U.S. Court of Appeals

December 07, 2001

The ACLU of Michigan contends that affirmative action is necessary to both:

  1. achieve educational diversity at the university; and
  2. level the playing field for students of color by offsetting the other discriminatory aspects of U-M's admissions process and by addressing the hostile environment on campus.   

Michael Steinberg, legal director for the ACLU of Michigan, who observed the Appeals Court session said, “The future of diversity at the nations’ top universities hangs in the balance. It would be a national tragedy if the University of Michigan and other schools of its caliber become re-segregated.”  

In 1998, the Michigan ACLU intervened in the lawsuit against the U-M undergraduate admissions program along with the NAACP Legal Defense and Educational Fund, Inc., the Mexican American Legal Defense Fund (MALDEF), Citizens for Affirmative Action’ Preservation (CAAP) and the National ACLU. 

In December, 2000, U.S. District Court Judge Patrick Duggan ruled that U-M's undergraduate admissions program was constitutional because it was "narrowly tailored" to advancing the compelling state interest of creating a diverse student body.  

In his opinion, Judge Duggan said, “The University Defendants have presented this Court with solid evidence regarding the education benefits that flow from a racially and ethnically diverse student body.” However, he later issued an opinion stating that the University could not justify affirmative action as a means to remedy past and present inequalities at the University.

On appeal, the legal team that included the ACLU argued that the U.S. Court of Appeals should affirm Judge Duggan's ruling on diversity, but reverse his ruling on affirmative action as a remedy for discrimination. As long as racism remains a problem there, the University ought to be able to consider race the affirmative-action policies were adopted in response to protests over discrimination on the campus. 

Given the importance of the ruling and the likelihood that, whatever the decision, it will be appealed, the case will be decided by all full-time judges of the Sixth Circuit instead of the usual panel of three judges. Many believe that both the undergraduate and the law school admissions cases may eventually be decided in the U.S. Supreme Court. 

“Affirmative action enhances the educational experience of all students and without it, higher education would suffer. Hopefully, the U.S. Court of Appeals, and ultimately the U.S. Supreme Court, will agree,” Steinberg added further.

Although the U-M Law School affirmative action case was tried before a different district judge than the judge in the undergraduate case, the law school appeal was heard immediately after the undergraduate case on Thursday. After trial in that case, U.S. District Court Judge Bernard Friedman, unlike Judge Duggan, held that the current law school admissions process was unconstitutional. A separate group of organizations that did not include the ACLU intervened in the law school case.

Click Here for U.S. District Court Judge Patrick Duggan's opinion upholding U-M's present admission policy.

Click Here for a complete look at the ACLU's position on Affirmative Action.

Today the Michigan House of Representatives passed legislation to undermine family planning and contraception services provided by pro-choice groups like Planned Parenthood.

The ACLU of Michigan opposes this effort to silence pro-choice groups.

"Increasingly, the actions of the "Right-to-Life" movement show that their goal is not simply to limit access to abortions, nor is it merely to outlaw abortion, but rather, its goal is to outlaw abortion and to block access to and use of contraception as well," said Kary Moss, Executive Director of the ACLU of Michigan. "Right-to-Life's insistence on the passage of House Bill 4655, is an open attempt to destroy Planned Parenthood."

While the bill does nothing to limit abortions or money being spent on abortions because the funding dollars in question are absolutely prohibited from being used for abortions, it will limit access to family planning information and contraception.

The bill would primarily impact family planning grants established under President Nixon and used to support low income health care and family planning clinics (Planned Parenthood is one of only a few organizations that have shown an interest in providing the required services). It would require these grants be offered first to anti-choice providers and that any organization that supports a women's right to choose be moved to the back of the line. Those organizations whose only pro-choice activity is having a written policy that considers "elective" abortion (those performed for any reason other than to prevent the woman's death) as part of family planning or reproductive health services are considered too extreme to be allowed equal consideration with anti-choice organizations. An organization whose public advocacy in favor of abortion rights goes beyond a written policy and actually involves endorsement of candidates, lobbying, or participating in lawsuits moves even further down the list, as do organizations that perform or allow abortions in their clinics or even refer a pregnant woman to an abortion provider (an activity which is required under the federal law creating the family planning grants that would be effected by the bill).

"The bill will have an enormous impact on low income women, said Moss. "It will require the State to give preference to an unknown organization when doling out health care and family planning grants. This preference would be based not on a commitment to health care or family planning or its ability to meet the needs of the community, but would instead be based solely on its animosity towards a woman's right to choose."

House bill 4655 will hold thousands of this state's citizens to Right-to-Life's anti-choice agenda. It may well be unconstitutional for the state to allow to conditional receipt of funds that are dependent upon whether or not a group provides or expresses support of a legally protected health care procedure.

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ACLU Opposes Attempt to Silence Planned Parenthood

December 13, 2001

Today the Michigan House of Representatives passed legislation to undermine family planning and contraception services provided by pro-choice groups like Planned Parenthood.

The ACLU of Michigan opposes this effort to silence pro-choice groups.

"Increasingly, the actions of the "Right-to-Life" movement show that their goal is not simply to limit access to abortions, nor is it merely to outlaw abortion, but rather, its goal is to outlaw abortion and to block access to and use of contraception as well," said Kary Moss, Executive Director of the ACLU of Michigan. "Right-to-Life's insistence on the passage of House Bill 4655, is an open attempt to destroy Planned Parenthood."

While the bill does nothing to limit abortions or money being spent on abortions because the funding dollars in question are absolutely prohibited from being used for abortions, it will limit access to family planning information and contraception.

The bill would primarily impact family planning grants established under President Nixon and used to support low income health care and family planning clinics (Planned Parenthood is one of only a few organizations that have shown an interest in providing the required services). It would require these grants be offered first to anti-choice providers and that any organization that supports a women's right to choose be moved to the back of the line. Those organizations whose only pro-choice activity is having a written policy that considers "elective" abortion (those performed for any reason other than to prevent the woman's death) as part of family planning or reproductive health services are considered too extreme to be allowed equal consideration with anti-choice organizations. An organization whose public advocacy in favor of abortion rights goes beyond a written policy and actually involves endorsement of candidates, lobbying, or participating in lawsuits moves even further down the list, as do organizations that perform or allow abortions in their clinics or even refer a pregnant woman to an abortion provider (an activity which is required under the federal law creating the family planning grants that would be effected by the bill).

"The bill will have an enormous impact on low income women, said Moss. "It will require the State to give preference to an unknown organization when doling out health care and family planning grants. This preference would be based not on a commitment to health care or family planning or its ability to meet the needs of the community, but would instead be based solely on its animosity towards a woman's right to choose."

House bill 4655 will hold thousands of this state's citizens to Right-to-Life's anti-choice agenda. It may well be unconstitutional for the state to allow to conditional receipt of funds that are dependent upon whether or not a group provides or expresses support of a legally protected health care procedure.

In a case that could open the doors to legal proceedings of detainees around the nation, the American Civil Liberties Union today filed a lawsuit on behalf of two local newspapers and Rep. John Conyers, D-MI, saying that a categorical block on public access to immigration hearings is unconstitutional and un-American.

"This isn’t a matter of Haddad’s innocence or guilt that question is for the courts to decide.  But if hearings of this nature are being conducted in secret, how can we be sure that our justice system is really working and that detainees are being treated fairly?” said Kary Moss, Executive Director of the ACLU of Michigan. 

The lawsuit was filed in federal district court here by the national and state offices of the ACLU on behalf of Rep. Conyers, the Detroit News, and the Metro Times, an alternative weekly.   They were among hundreds turned away from three recent deportation hearings in the case of Rabih Haddad, a Muslim community leader from Ann Arbor who co-founded an Islamic charity suspected of supporting terrorist activities.  

At issue is a policy set forth in a September 21, 2001 memo from Chief Immigration Judge Michael Creppy to all immigration judges requiring the closure of all proceedings to the public and the press, when directed by the Justice Department.  That policy was apparently invoked to close all deportation proceedings in Mr. Haddad’s case. 

Under settled First Amendment law, there is a strong presumption that court proceedings must be open to the public and members of the press,” said Steven R. Shapiro, Legal Director of the national ACLU.  “The Justice Department’s policy of blanket secrecy is unconstitutional and incompatible with the values of a free society.” 

Haddad was arrested on December 14, 2001, eight months after he had applied for permanent residency.  Prior to the Sept. 11 terrorist attack , the INS had generally refrained from initiating deportation proceedings against immigrants living in the United States while their applications for permanent residency are pending. 

The ACLU is seeking a ruling from the court by Feb. 19, the date of Haddad’s next scheduled hearing.  The lawsuit also seeks access to transcripts of Haddad’s previous hearings and any other documents related to the proceedings in his case.  Moss said that the ACLU challenge does not address Haddad’s innocence or guilt which is “a question that must be decided by the courts.”

Today’s case is Detroit News, Inc., et al v. Ashcroft et al., filed in U.S. District Court in the Eastern District of Michigan, Southern Division. Named as defendants are U.S. Attorney General John Ashcroft, Michael Creppy, Chief Immigration Judge of the United States, Elizabeth Hacker, United States Immigration Judge. 

 

Update: January 24, 2004, Court Denies Government Request to Rehear Closed Immigration Hearings Case

The Court denied the government's petition for a rehearing in the ACLU's successful challenge to the government's blanket policy of conducting secret deportation hearings in post-9/11 cases.

Last August, a unanimous three-judge panel of the appeals court struck down the policy, declaring in a much-quoted decision that "democracies die behind closed doors." If the government chooses to pursue the case, it now has 90 days from today to file a petition for certiorari with the United States Supreme Court.

The ACLU has also challenged the government's secrecy rules on behalf of a group of New Jersey newspapers. In that case, the Third Circuit Court of Appeals in Philadelphia upheld the government's secrecy policy and recently denied an ACLU request for a full court rehearing.

By reinforcing a split between the Circuits, today's order by the Sixth Circuit increases the likelihood that the Supreme Court will have the final say on the legality of secret deportation hearings. The deadline for filing a petition for certiorari from the Third Circuit decision is the first week of March.

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ACLU Files First Post- Sept. 11 Challenge to Closed Immigration Hearings

In a case that could open the doors to legal proceedings of detainees around the nation, the American Civil Liberties Union today filed a lawsuit on behalf of two local newspapers and Rep. John Conyers, D-MI, saying that a categorical block on public access to immigration hearings is unconstitutional and un-American.

"This isn’t a matter of Haddad’s innocence or guilt that question is for the courts to decide.  But if hearings of this nature are being conducted in secret, how can we be sure that our justice system is really working and that detainees are being treated fairly?” said Kary Moss, Executive Director of the ACLU of Michigan. 

The lawsuit was filed in federal district court here by the national and state offices of the ACLU on behalf of Rep. Conyers, the Detroit News, and the Metro Times, an alternative weekly.   They were among hundreds turned away from three recent deportation hearings in the case of Rabih Haddad, a Muslim community leader from Ann Arbor who co-founded an Islamic charity suspected of supporting terrorist activities.  

At issue is a policy set forth in a September 21, 2001 memo from Chief Immigration Judge Michael Creppy to all immigration judges requiring the closure of all proceedings to the public and the press, when directed by the Justice Department.  That policy was apparently invoked to close all deportation proceedings in Mr. Haddad’s case. 

Under settled First Amendment law, there is a strong presumption that court proceedings must be open to the public and members of the press,” said Steven R. Shapiro, Legal Director of the national ACLU.  “The Justice Department’s policy of blanket secrecy is unconstitutional and incompatible with the values of a free society.” 

Haddad was arrested on December 14, 2001, eight months after he had applied for permanent residency.  Prior to the Sept. 11 terrorist attack , the INS had generally refrained from initiating deportation proceedings against immigrants living in the United States while their applications for permanent residency are pending. 

The ACLU is seeking a ruling from the court by Feb. 19, the date of Haddad’s next scheduled hearing.  The lawsuit also seeks access to transcripts of Haddad’s previous hearings and any other documents related to the proceedings in his case.  Moss said that the ACLU challenge does not address Haddad’s innocence or guilt which is “a question that must be decided by the courts.”

Today’s case is Detroit News, Inc., et al v. Ashcroft et al., filed in U.S. District Court in the Eastern District of Michigan, Southern Division. Named as defendants are U.S. Attorney General John Ashcroft, Michael Creppy, Chief Immigration Judge of the United States, Elizabeth Hacker, United States Immigration Judge. 

 

Update: January 24, 2004, Court Denies Government Request to Rehear Closed Immigration Hearings Case

The Court denied the government's petition for a rehearing in the ACLU's successful challenge to the government's blanket policy of conducting secret deportation hearings in post-9/11 cases.

Last August, a unanimous three-judge panel of the appeals court struck down the policy, declaring in a much-quoted decision that "democracies die behind closed doors." If the government chooses to pursue the case, it now has 90 days from today to file a petition for certiorari with the United States Supreme Court.

The ACLU has also challenged the government's secrecy rules on behalf of a group of New Jersey newspapers. In that case, the Third Circuit Court of Appeals in Philadelphia upheld the government's secrecy policy and recently denied an ACLU request for a full court rehearing.

By reinforcing a split between the Circuits, today's order by the Sixth Circuit increases the likelihood that the Supreme Court will have the final say on the legality of secret deportation hearings. The deadline for filing a petition for certiorari from the Third Circuit decision is the first week of March.

Since this nation's founding, more than 55 million immigrants from every continent have settled in the United States. In fact, with the exception of American Indians, everyone living in this country is either an immigrant or the descendent of voluntary or involuntary immigrants.

Every wave of immigration has faced fear and hostility, especially during times of economic hardship, political turmoil or war. When the newest group of immigrants arrives seeking shelter on our shores, we often object to their presence -- echoing the same objections that were likely raised when our own ancestors first set foot on these shores.

In Michigan, the Legislature is considering legislation that will continue, or even exacerbate, this pattern of bias toward immigrants. Prohibiting illegal immigrants from obtaining driver's licenses or state ID cards may sound reasonable, but is far easier said than done. The results of House Bill 5497 and Senate Bill 931 will be unfair discrimination against legal immigrants and higher costs for the state. They will do nothing to limit terrorist activity.

An immigrant's status is not as clear as one might imagine. The Immigration and Naturalization Service has rules and regulations that rival or exceed the federal tax code in complexity. Current rules identify more than 40 different types of legal immigrant status, and new visa categories are created frequently. In addition, there are many people whose status is not yet determined or whose legal status has lapsed while waiting for overworked immigration officials to finish processing paperwork or schedule their asylum hearings.

If these bills are enacted, each Secretary of State's Office will have to attempt to train employees about the different types of visas and how to recognize the types of documentation supplied to support those visas. This training, in essence, will require employees to become immigration experts and be both costly and time-consuming.

More important, employees may, when in doubt, make decisions to deny licenses or ID cards based on the person's race, ethnicity or apparent religion. As a result, many legal immigrants and even citizens who look or sound "foreign" will be required to undergo extra scrutiny and suspicion, or even wrongful denials.

In fact, instances of overzealous Secretary of State workers questioning the legitimacy of legal immigrants' and even citizens' documentation have already occurred. Before Sept. 11, legal immigrants of Hispanic descent were required to show proof of legal status -- above and beyond what non-Hispanics were required to offer -- and then were publicly quizzed on their legal status.

The vast majority of immigrants have legally entered our country. About 800,000 people are allowed to settle here each year as permanent residents, including about 480,000 allowed to reunite with their spouses, children, parents and/or siblings. About 55,000 are admitted under a "diversity" lottery that began in 1990 and mainly benefits young European and African immigrants.

These immigrants work and pay taxes every day. Many immigrants have lived in this country for decades, have married U.S. citizens and have raised their U.S.-citizen children. In fact, legal immigrants living in this country are subject to the military draft and serve in our armed forces.

Neither our laws nor the Constitution obligates the United States to grant any immigrants the right to stay. However, once here, all immigrants are entitled to certain protections. The U.S. Supreme Court has long held that "the Due Process Clause applies to all persons," not out of sentimentality, but to promote fairness and prevent injustice.

As the children of immigrants, we should oppose legislation that would deny access to driver's licenses or state ID cards for certain classes of immigrants, because such legislation could unjustly and unfairly impact all of us.

By William B. Flory

WILLIAM B. FLORY is assistant director of legislative affairs for the American Civil Liberties of Michigan. Write to him in care of the Free Press Editorial Page, 600 W. Fort St. Detroit, MI 48226.

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In Nation of Immigrants, Plan to Deny Driver's Licenses Would be Injustice

March 05, 2002

Since this nation's founding, more than 55 million immigrants from every continent have settled in the United States. In fact, with the exception of American Indians, everyone living in this country is either an immigrant or the descendent of voluntary or involuntary immigrants.

Every wave of immigration has faced fear and hostility, especially during times of economic hardship, political turmoil or war. When the newest group of immigrants arrives seeking shelter on our shores, we often object to their presence -- echoing the same objections that were likely raised when our own ancestors first set foot on these shores.

In Michigan, the Legislature is considering legislation that will continue, or even exacerbate, this pattern of bias toward immigrants. Prohibiting illegal immigrants from obtaining driver's licenses or state ID cards may sound reasonable, but is far easier said than done. The results of House Bill 5497 and Senate Bill 931 will be unfair discrimination against legal immigrants and higher costs for the state. They will do nothing to limit terrorist activity.

An immigrant's status is not as clear as one might imagine. The Immigration and Naturalization Service has rules and regulations that rival or exceed the federal tax code in complexity. Current rules identify more than 40 different types of legal immigrant status, and new visa categories are created frequently. In addition, there are many people whose status is not yet determined or whose legal status has lapsed while waiting for overworked immigration officials to finish processing paperwork or schedule their asylum hearings.

If these bills are enacted, each Secretary of State's Office will have to attempt to train employees about the different types of visas and how to recognize the types of documentation supplied to support those visas. This training, in essence, will require employees to become immigration experts and be both costly and time-consuming.

More important, employees may, when in doubt, make decisions to deny licenses or ID cards based on the person's race, ethnicity or apparent religion. As a result, many legal immigrants and even citizens who look or sound "foreign" will be required to undergo extra scrutiny and suspicion, or even wrongful denials.

In fact, instances of overzealous Secretary of State workers questioning the legitimacy of legal immigrants' and even citizens' documentation have already occurred. Before Sept. 11, legal immigrants of Hispanic descent were required to show proof of legal status -- above and beyond what non-Hispanics were required to offer -- and then were publicly quizzed on their legal status.

The vast majority of immigrants have legally entered our country. About 800,000 people are allowed to settle here each year as permanent residents, including about 480,000 allowed to reunite with their spouses, children, parents and/or siblings. About 55,000 are admitted under a "diversity" lottery that began in 1990 and mainly benefits young European and African immigrants.

These immigrants work and pay taxes every day. Many immigrants have lived in this country for decades, have married U.S. citizens and have raised their U.S.-citizen children. In fact, legal immigrants living in this country are subject to the military draft and serve in our armed forces.

Neither our laws nor the Constitution obligates the United States to grant any immigrants the right to stay. However, once here, all immigrants are entitled to certain protections. The U.S. Supreme Court has long held that "the Due Process Clause applies to all persons," not out of sentimentality, but to promote fairness and prevent injustice.

As the children of immigrants, we should oppose legislation that would deny access to driver's licenses or state ID cards for certain classes of immigrants, because such legislation could unjustly and unfairly impact all of us.

By William B. Flory

WILLIAM B. FLORY is assistant director of legislative affairs for the American Civil Liberties of Michigan. Write to him in care of the Free Press Editorial Page, 600 W. Fort St. Detroit, MI 48226.

On Wednesday, March 6, the Michigan Court of Appeals will hear the ACLU's appeal in People v. Timothy Boomer. At issue in the case is whether Michigan's "improper language" statute is unconstitutional.

The law, passed in 1897, makes it a 90-day misdemeanor to use "any indecent, immoral . . . vulgar, or insulting language in the presence or hearing of any woman or child."

The ACLU argues that the law is unconstitutionally vague and overbroad and therefore cannot be used to prosecute anyone. It is vague because it does not provide notice about what language might be considered "indecent" or "insulting" or "immoral." It is overbroad because much language that might be considered insulting, indecent or immoral  such as derogatory comments about Osada bin Laden is speech protected by the First Amendment.

"If the First Amendment means anything, it means that the government cannot criminalize speech just because someone finds it insulting or offensive," said Michael J. Steinberg, legal director of the ACLU of Michigan. "The Taliban might support a law giving the police the power to throw people in jail for using ‘improper' language in front of women or children. However, such a law finds no support in the U.S. Constitution. If the law remains on the books, an officer could arrest a person for making an unpopular political statement."

The case arose when Timothy Boomer, who was canoeing in the Rifle River with friends during the summer of 1999, fell out of his canoe after the canoe hit a rock in the shallow part of the river. According to testimony at trial, Mr. Boomer then swore loud enough for a family in a nearby canoe to hear.

Although the trial judge agreed with the ACLU that Mr. Boomer's words were neither obscene nor "fighting words," the judge refused to dismiss the case on constitutional grounds. Rather, the judge instructed the jury that Mr. Boomer's guilt or innocence hinged on the manner in which Mr. Boomer used the word "fuck." If the word was used as an adjective or modifier to describe the river or Mr. Boomer's frustrating day, then it was speech protected by the First Amendment. However, if Mr. Boomer repeatedly shouted the word "fuck" in a manner that did not express a thought, the judge told the jury to find him guilty. The jury found Mr. Boomer guilty. His sentence was stayed pending the outcome of this appeal.

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Michigan Court of Appeals Will Hear Appeal in People v. Timothy Boomer

March 05, 2002

On Wednesday, March 6, the Michigan Court of Appeals will hear the ACLU's appeal in People v. Timothy Boomer. At issue in the case is whether Michigan's "improper language" statute is unconstitutional.

The law, passed in 1897, makes it a 90-day misdemeanor to use "any indecent, immoral . . . vulgar, or insulting language in the presence or hearing of any woman or child."

The ACLU argues that the law is unconstitutionally vague and overbroad and therefore cannot be used to prosecute anyone. It is vague because it does not provide notice about what language might be considered "indecent" or "insulting" or "immoral." It is overbroad because much language that might be considered insulting, indecent or immoral  such as derogatory comments about Osada bin Laden is speech protected by the First Amendment.

"If the First Amendment means anything, it means that the government cannot criminalize speech just because someone finds it insulting or offensive," said Michael J. Steinberg, legal director of the ACLU of Michigan. "The Taliban might support a law giving the police the power to throw people in jail for using ‘improper' language in front of women or children. However, such a law finds no support in the U.S. Constitution. If the law remains on the books, an officer could arrest a person for making an unpopular political statement."

The case arose when Timothy Boomer, who was canoeing in the Rifle River with friends during the summer of 1999, fell out of his canoe after the canoe hit a rock in the shallow part of the river. According to testimony at trial, Mr. Boomer then swore loud enough for a family in a nearby canoe to hear.

Although the trial judge agreed with the ACLU that Mr. Boomer's words were neither obscene nor "fighting words," the judge refused to dismiss the case on constitutional grounds. Rather, the judge instructed the jury that Mr. Boomer's guilt or innocence hinged on the manner in which Mr. Boomer used the word "fuck." If the word was used as an adjective or modifier to describe the river or Mr. Boomer's frustrating day, then it was speech protected by the First Amendment. However, if Mr. Boomer repeatedly shouted the word "fuck" in a manner that did not express a thought, the judge told the jury to find him guilty. The jury found Mr. Boomer guilty. His sentence was stayed pending the outcome of this appeal.

January 20, 2002

Should airports engage in terrorist profiling?

Kary Moss, Executive Director of the ACLU of Michigan says "No: Stereotyping creates false sense of safety; focus instead on behavior."

By Kary L. Moss / Special to The Detroit News

As the nation tries to find the best ways to improve airport security, it is crucial that we resist grabbing onto strategies that only create a sense of false security but not real security. Racial profiling is a key example.

In a widely reported incident shortly after the Sept. 11 attacks for which it later apologized to the ACLU, Northwest Airlines allowed passengers to persuade airline personnel to remove four men of Middle Eastern descent from a flight.

This past week, the ACLU filed a lawsuit on behalf of a Muslim woman at O'Hare International Airport who was singled out and searched because she was wearing traditional Muslim head covering. Recently, a Secret Service agent was removed from a plane because of his ethnicity.

These incidents raise troubling legal and moral questions about how far we are willing to go to increase airport safety. Effective profiling at airports should rest on the behavior of passengers, including the purchasing of one-way tickets, payment methods, date of purchase and other actions, not simply on race and ethnicity.

Many now feel it is acceptable to include a person's place of origin, given that we know people from certain Middle Eastern countries are determined to commit violence in this country.

For those who argue that it is better to be safe than sorry, it is important to recognize that racial profiling in general has been shown to be very ineffective. Look, for example, at the numbers of people of Middle Eastern descent in this country -- more than 6 million people have some connection by descent or religion with Arabs or Islam. But most of the Muslims in the world are not Arabic. So, what exactly are we looking for if we profile Arabs or Muslims? Last name? Skin color? Dress? Men only?

What about those who do not fit the profile but may intend to commit terrorist acts as has been reported as happening several times in the last months. Focusing law enforcement scrutiny in one direction will divert resources from people who may otherwise trigger attention.

As University of Toledo Law School Professor David Harris has pointed out, when the federal Drug Enforcement Administration used racial profiling against African Americans, Latinos and other minorities in the 1980s, the success rates of searches that uncovered evidence of crimes were lower for minorities than for whites.

There are concrete steps to improve airport security at no cost to civil liberties. It is imperative that greater oversight be placed on those companies that hire airport security personnel. Argenbright Holdings, Ltd., the nation's largest provider of airport security services, has admitted it violated terms of probation that had been part of its 2000 conviction for falsifying records, and has continued to hire and employ people with criminal backgrounds. Low wages have exacerbated the problem of attracting skilled people to these jobs. The airport security bill, which mandates hiring 28,000 federal employees to screen passengers and baggage, still provides ample room for private companies to continue this status quo.

We support many additional security measures with proven effectiveness, such as increased screening of and training for airport security personnel, strict control of secured areas of airports and luggage matching of all passengers. We also support using biometric identification techniques (such as iris scans or digital fingerprints) to identify and authenticate airport personnel working in secured areas of airports.

The United States serves as a model of freedom. Individuals are free to practice their respective religions, free to speak their minds and free to travel. People also have a right to expect to be treated equally regardless of one's color, religion or nationality. Let's not travel down the road that panders to prejudice and fear; let's focus on a common goal that protects security and champions freedom.

Kary L. Moss is executive director of the American Civil Liberties Union in Michigan.


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Stereotyping creates false sense of safety

January 20, 2002

Should airports engage in terrorist profiling?

Kary Moss, Executive Director of the ACLU of Michigan says "No: Stereotyping creates false sense of safety; focus instead on behavior."

By Kary L. Moss / Special to The Detroit News

As the nation tries to find the best ways to improve airport security, it is crucial that we resist grabbing onto strategies that only create a sense of false security but not real security. Racial profiling is a key example.

In a widely reported incident shortly after the Sept. 11 attacks for which it later apologized to the ACLU, Northwest Airlines allowed passengers to persuade airline personnel to remove four men of Middle Eastern descent from a flight.

This past week, the ACLU filed a lawsuit on behalf of a Muslim woman at O'Hare International Airport who was singled out and searched because she was wearing traditional Muslim head covering. Recently, a Secret Service agent was removed from a plane because of his ethnicity.

These incidents raise troubling legal and moral questions about how far we are willing to go to increase airport safety. Effective profiling at airports should rest on the behavior of passengers, including the purchasing of one-way tickets, payment methods, date of purchase and other actions, not simply on race and ethnicity.

Many now feel it is acceptable to include a person's place of origin, given that we know people from certain Middle Eastern countries are determined to commit violence in this country.

For those who argue that it is better to be safe than sorry, it is important to recognize that racial profiling in general has been shown to be very ineffective. Look, for example, at the numbers of people of Middle Eastern descent in this country -- more than 6 million people have some connection by descent or religion with Arabs or Islam. But most of the Muslims in the world are not Arabic. So, what exactly are we looking for if we profile Arabs or Muslims? Last name? Skin color? Dress? Men only?

What about those who do not fit the profile but may intend to commit terrorist acts as has been reported as happening several times in the last months. Focusing law enforcement scrutiny in one direction will divert resources from people who may otherwise trigger attention.

As University of Toledo Law School Professor David Harris has pointed out, when the federal Drug Enforcement Administration used racial profiling against African Americans, Latinos and other minorities in the 1980s, the success rates of searches that uncovered evidence of crimes were lower for minorities than for whites.

There are concrete steps to improve airport security at no cost to civil liberties. It is imperative that greater oversight be placed on those companies that hire airport security personnel. Argenbright Holdings, Ltd., the nation's largest provider of airport security services, has admitted it violated terms of probation that had been part of its 2000 conviction for falsifying records, and has continued to hire and employ people with criminal backgrounds. Low wages have exacerbated the problem of attracting skilled people to these jobs. The airport security bill, which mandates hiring 28,000 federal employees to screen passengers and baggage, still provides ample room for private companies to continue this status quo.

We support many additional security measures with proven effectiveness, such as increased screening of and training for airport security personnel, strict control of secured areas of airports and luggage matching of all passengers. We also support using biometric identification techniques (such as iris scans or digital fingerprints) to identify and authenticate airport personnel working in secured areas of airports.

The United States serves as a model of freedom. Individuals are free to practice their respective religions, free to speak their minds and free to travel. People also have a right to expect to be treated equally regardless of one's color, religion or nationality. Let's not travel down the road that panders to prejudice and fear; let's focus on a common goal that protects security and champions freedom.

Kary L. Moss is executive director of the American Civil Liberties Union in Michigan.


DETROIT — On tomorrow night’s ABC’s Prime Time, Rosie O’Donnell will be disclosing her own sexual orientation and how she and her family have been affected by Florida’s law that prohibits gays and lesbians from adopting children.

Unlike Florida, Michigan has no law excluding individual gays and lesbians from adopting children, but there is also no law that allows a same-sex couple to adopt a child together. The ACLU of Michigan is working to change this.

Jay Kaplan, ACLU Staff Attorney for the Gay, Lesbian, Bi-sexual, and Transgender Project, has expressed concern and regret that Michigan law continues to ignore the existence of gay and lesbian families, whose numbers have increased by more than 300 percent in the last decade.  

“Michigan law is contrary to the recent recommendations by the American Association of Pediatrics, endorsing adoption rights for gay and lesbian parents,” said Kaplan. “There is no empirical data to support any risk to children as result of growing up in a family with one or more gay parents.   Adoption rights provide children of gay and lesbian parents with numerous legal protections, including the right to inheritance, health care coverage, and social security benefits.”

The ACLU of Michigan is looking at the possibility of challenging the Michigan courts failure to recognize gay and lesbian families with regards to child custody and parenting time in cases where a parents’ relationship ends.    The Michigan Supreme Court has held that the concept of “equitable” or “psychological” parent should be limited only to those situations involving legalized marriage.  As Michigan law prohibits same-sex couples from marrying, gay and lesbian co-parents are deprived of the ability to petition for child custody and parenting time, regardless of their history and involvement in raising, caring for, and nurturing their children.

“We believe that it is time for both Michigan’s legislature and courts to recognize that there is no such thing as the typical family anymore,” said Kary Moss, ACLU of Michigan executive director.    “Children everywhere need loving and supportive homes, something that many gay and lesbian families are able to provide.    Sexual orientation should never be a litmus test when it comes to the best interests of children.”

The national ACLU is challenging the constitutionality of Florida’s ban in federal court based on the fundamental right of all American citizen’s, regardless of their sexual orientation to have and raise children.  There is no child welfare basis whatsoever to deny children awaiting adoption the opportunity to be adopted by gays and lesbians who are able and willing to provide them with loving, supportive families.  3,400 children remain in limbo in Florida’s foster care system, because there are not enough eligible families to adopt them.

The LGBT Project of the National ACLU has just released the publication Too High A Price:  The Case Against Restricting Gay Parenting.  The book will be online Thursday at a special web site http://www.lethimstay.com/, named for a 10-year-old boy in the ACLU’s case against Florida’s gay adoption ban. 

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ACLU of Michigan Applauds Rosie O'Donnell's Stand on Gay Adoption

March 13, 2002

DETROIT — On tomorrow night’s ABC’s Prime Time, Rosie O’Donnell will be disclosing her own sexual orientation and how she and her family have been affected by Florida’s law that prohibits gays and lesbians from adopting children.

Unlike Florida, Michigan has no law excluding individual gays and lesbians from adopting children, but there is also no law that allows a same-sex couple to adopt a child together. The ACLU of Michigan is working to change this.

Jay Kaplan, ACLU Staff Attorney for the Gay, Lesbian, Bi-sexual, and Transgender Project, has expressed concern and regret that Michigan law continues to ignore the existence of gay and lesbian families, whose numbers have increased by more than 300 percent in the last decade.  

“Michigan law is contrary to the recent recommendations by the American Association of Pediatrics, endorsing adoption rights for gay and lesbian parents,” said Kaplan. “There is no empirical data to support any risk to children as result of growing up in a family with one or more gay parents.   Adoption rights provide children of gay and lesbian parents with numerous legal protections, including the right to inheritance, health care coverage, and social security benefits.”

The ACLU of Michigan is looking at the possibility of challenging the Michigan courts failure to recognize gay and lesbian families with regards to child custody and parenting time in cases where a parents’ relationship ends.    The Michigan Supreme Court has held that the concept of “equitable” or “psychological” parent should be limited only to those situations involving legalized marriage.  As Michigan law prohibits same-sex couples from marrying, gay and lesbian co-parents are deprived of the ability to petition for child custody and parenting time, regardless of their history and involvement in raising, caring for, and nurturing their children.

“We believe that it is time for both Michigan’s legislature and courts to recognize that there is no such thing as the typical family anymore,” said Kary Moss, ACLU of Michigan executive director.    “Children everywhere need loving and supportive homes, something that many gay and lesbian families are able to provide.    Sexual orientation should never be a litmus test when it comes to the best interests of children.”

The national ACLU is challenging the constitutionality of Florida’s ban in federal court based on the fundamental right of all American citizen’s, regardless of their sexual orientation to have and raise children.  There is no child welfare basis whatsoever to deny children awaiting adoption the opportunity to be adopted by gays and lesbians who are able and willing to provide them with loving, supportive families.  3,400 children remain in limbo in Florida’s foster care system, because there are not enough eligible families to adopt them.

The LGBT Project of the National ACLU has just released the publication Too High A Price:  The Case Against Restricting Gay Parenting.  The book will be online Thursday at a special web site http://www.lethimstay.com/, named for a 10-year-old boy in the ACLU’s case against Florida’s gay adoption ban. 

The American Civil Liberties Union of Michigan, who filed an amicus brief in the lawsuit, hailed the Court of Appeals decision as justice at its best. 

“The Court makes clear that the Michigan Department of Corrections’ regulations fall far below the ‘minimum standards of decency’ that every person in our country is entitled to,” said Kary Moss, ACLU of Michigan executive director, “This ruling has implications for prisoners in every state.   The decision clearly and explicitly recognizes that prisoners retain some rights, even when they are behind prison walls.” 

The MDOC’s 1995 regulations banned visits from prisoners’ minor brothers, sisters, nieces and nephews; banned all visits by prisoners’ children when parental rights had been terminated, even when the termination was voluntarily surrendered in the child’s best interest; banned all visits by former prisoners who are not immediate family, even when the former prisoner has been rehabilitated; required that visiting children be accompanied by a parent or legal guardian; and permanently banned visitors, apart from attorneys and clergy, for prisoners who twice violated the department’s drug abuse policies.

The department claimed that the restrictions were needed “to reduce the number of visitors to manageable levels, to stop smuggling, and to protect children from exposure to the prison environment,” according to the opinion.

The Court found that the MDOC was unable to provide definitive evidence to support any of the restrictions.  In fact, the Court determined that the regulations were an exaggerated response to perceived problems where far less severe solutions were available.  They went further by stating that the regulations were applied in a capricious manner, without reviewable standards, harsh, cruel, arbitrary, harmful and applied where there is no reasonable relation between the ban and a legitimate penological interest. 

“It isn’t good for either prisoners or prison officials if inmates are cut off from their lifelines.  These regulations can only prove to be counterproductive and interfered with the prisoners ability to adjust when returning to the community,”  Moss added.  “Thankfully, the Court recognized that restricting visitation like this would do more harm than good.” 

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ACLU Hails Prisoner Rights Decision

The American Civil Liberties Union of Michigan, who filed an amicus brief in the lawsuit, hailed the Court of Appeals decision as justice at its best. 

“The Court makes clear that the Michigan Department of Corrections’ regulations fall far below the ‘minimum standards of decency’ that every person in our country is entitled to,” said Kary Moss, ACLU of Michigan executive director, “This ruling has implications for prisoners in every state.   The decision clearly and explicitly recognizes that prisoners retain some rights, even when they are behind prison walls.” 

The MDOC’s 1995 regulations banned visits from prisoners’ minor brothers, sisters, nieces and nephews; banned all visits by prisoners’ children when parental rights had been terminated, even when the termination was voluntarily surrendered in the child’s best interest; banned all visits by former prisoners who are not immediate family, even when the former prisoner has been rehabilitated; required that visiting children be accompanied by a parent or legal guardian; and permanently banned visitors, apart from attorneys and clergy, for prisoners who twice violated the department’s drug abuse policies.

The department claimed that the restrictions were needed “to reduce the number of visitors to manageable levels, to stop smuggling, and to protect children from exposure to the prison environment,” according to the opinion.

The Court found that the MDOC was unable to provide definitive evidence to support any of the restrictions.  In fact, the Court determined that the regulations were an exaggerated response to perceived problems where far less severe solutions were available.  They went further by stating that the regulations were applied in a capricious manner, without reviewable standards, harsh, cruel, arbitrary, harmful and applied where there is no reasonable relation between the ban and a legitimate penological interest. 

“It isn’t good for either prisoners or prison officials if inmates are cut off from their lifelines.  These regulations can only prove to be counterproductive and interfered with the prisoners ability to adjust when returning to the community,”  Moss added.  “Thankfully, the Court recognized that restricting visitation like this would do more harm than good.” 

In a letter sent today, the American Civil Liberties Union of Michigan charged Mackinac Island officials with violating the Americans With Disabilities Act by refusing to grant a resident with multiple sclerosis his request to use an electric-assisted tricycle.

The resident, Donald Bertrand, cannot ride a bicycle -- the primary form of transportation in the community -- because his disability has affected his stamina and balance.  To accommodate the disability, Mr. Bertrand needs an electric-assisted tricycle; on those occasions when he cannot make it up a hill, he is able to switch on the tricycle’s silent motor to give him a boost.   Bertrand has repeatedly asked the Island for permission to use the tricycle, but the Island has refused, citing its policy prohibiting motorized vehicles. 

“Mackinac Island already makes exceptions to its no-motorized-vehicles policy to allow the use of snowmobiles and golf carts,” said Stewart R. Hakola, cooperating counsel for the ACLU of Michigan.  “Refusing to let Don Bertrand tricycle is both discriminatory and unjust.” 

The ADA requires that government entities accommodate people with disabilities to promote equal enjoyment of, and access to, public services and facilities.  A recent Supreme Court decision found that a case-by-case inquiry was required to determine whether an accommodation such as the use of a golf cart for a golfer with a disability in the PGA tournament would cause a fundamental change to the activity.  The court sided with the golfer.  PGA Tour, Inc. v. Martin

“Riding bicycles is part of Mackinac Island’s tradition,” said Michigan ACLU Executive Director Kary Moss.  “The Island is violating the Americans with Disabilities Act by denying Don Bertand an equal opportunity to participate in that tradition.” 

The ACLU is negotiating with city officials in an effort to resolve this out of court.  However, if negotiations are unsuccessful, the ACLU has threatened legal action. 

 “I love Mackinac Island,” said Bertrand, “but the message I’m getting is that people with disabilities are not welcome on the island.”  Mackinac officials have already issued tickets to other residents with disabilities for using electric-assisted bicycles.

The letter sent follows:

June 7, 2002

David D. Waddell, Esq.
Attorney for Mackinac Island
Fraser Trebilcock Davis & Dunlap, P.C.
1000 Michigan National Tower
124 West Allegan St.
Lansing, MI 48933
Fax: (517) 482-0887

Tom H. Evashevski, Esq.
Attorney for Mackinac Island
Brown & Brown
132 North State St.
Saint Ignace, MI  49781
Fax: (906) 643-7157

 

Re: Donald Bertrand’s Request for a Reasonable Accommodation

Dear Mr. Waddell and Mr. Evashevski: 

As you know, we have been retained by Donald Bertrand in his efforts to secure a reasonable modification, based on his individualized circumstances, to Mackinac Island’s policy barring his use of an electric-assisted tricycle.  Since the beginning of the season, Mr. Bertrand has not ridden his tricycle, but has spent his time pursuing virtually every means of securing a permit that would allow him to enjoy one of the central aspects of Island life.  He has submitted the appropriate forms; he has spoken to the Mayor; he has spoken to the chief of police; and the list goes on.  We strongly urge you to find a reasonable accommodation for Mr. Bertrand.  This situation can and should be resolved out of court. 

Mr. Bertrand has multiple sclerosis, a physically disabling condition that substantially limits his major life activities.  Although people with M.S. may face pain and frustration in the course of their day-to-day activities, they do what they can to keep fit with the knowledge that exercise may slow the degeneration of the central nervous system, a process that can lead to the loss of vision, coordination, speech, and strength.

Riding a traditional two-wheeled bicycle became impracticable when the disease took much of the strength on Mr. Bertrand’s left side.  He could no longer put out his left foot quickly when he stopped at an intersection.  He began to fall.  Mr. Bertrand loves to cycle around Mackinac Island and, because of the Island’s policy, he is forced to confront the possibility of losing that pleasure even before the disease takes it.   

To continue to cycle around the Island, Mr. Bertrand has identified a fundamentally reasonable solution: a tricycle with a virtually silent electric motor.  The three wheels lend him stability and he is able to turn on the motor when he occasionally needs a boost.  The Island has rejected this alternative in the name of tradition.  Instead, the only permitted alternatives are an electric wheelchair or a three-wheeled cart, some of which nearly match the top speeds of the electric motor on Mr. Bertrand’s tricycle. 

Mr. Bertrand does not yet need a wheelchair to get from place to place in everyday life.  He just sometimes needs a little help riding into the beach wind, riding up the steep hill on his way back home, or when the fatigue caused by the disease becomes overwhelming.  He does not aim to circumvent the rules of Mackinac Island he wants to participate in one of its grand traditions.

Mr. Waddell’s letter of May 6 suggests that Mr. Bertrand will undermine the historic atmosphere of Mackinac Island should he be granted authorization to use a “moped.”  However, it is important to note that Mr. Bertrand’s electric-assisted tricycle is very different from traditional mopeds.  By definition, a moped is a motorized bicycle powered by a gasoline engine.  American Heritage Dictionary (3d ed. 1996).  This tricycle is not the loud, smog-spewing, four-stroke moped from World War II movies.  The maximum speed of Mr. Bertrand’s tricycle is just 10 miles per hour and it makes less noise than an electric wheelchair. 

The Island’s refusal to permit Mr. Bertrand to ride his tricycle is irrational given the other exceptions to its no-motorized-vehicle policy.  The most prominent is the policy’s allowance for faster, more dangerous, and far louder snowmobiles.  Construction equipment, golf carts, motorized wheelchairs all travel the Island under certain limitations of time or designated area.  Mr. Bertrand simply seeks a temporary permit to use a device that would allow him to enjoy the Island without unduly burdening the Island or interfering with other Island residents.  It is difficult to see how that would not be a reasonable accommodation.  

The failure to provide Mr. Bertrand with a reasonable accommodation violates Title II of the Americans with Disabilities Act.  Although Mr. Waddell cites Title I employment cases, this is a Title II case for discrimination in providing access to public services.  Title II provides broader protection to individuals with disabilities than Title I.  See, e.g., Popovich v. Cuyahoga County Court of Common Pleas, 276 F.3d 808, 820 (6th Cir. 2002)(Ohio). 

While some Title I cases may be relevant to the present situation, Title III, which addresses discrimination in access to public accommodations, services, and facilities, is more readily analogous.  28 C.F.R. 36.202.  The Title III case of professional golfer Casey Martin provides such an analogous situation.  Martin’s right leg has atrophied due to a degenerative circulatory disorder, rendering him disabled under the definition of the ADA.  PGA Tour, Inc. v. Martin, 532 U.S. 661, 668 (2001).  It was not merely uncomfortable for him to walk the course as required by the Professional Golf Association; it was impossible. Id.  The PGA’s refusal to accommodate him led to a lawsuit that went all the way to the Supreme Court.  As in the present situation, the Martin case was a clash between the ADA and a desire to preserve tradition.  

The PGA argued that making an accommodation for Martin would lead to a golf cart traffic jam along the fairways of the United States.  In fact, that has not come to pass.  In Martin, the Court found that allowing persons with disabilities to use golf carts would not fundamentally change the nature of the PGA tour or the game of golf.  Id. at 690.  Expanding the hole from three inches in diameter to six inches would.   Id. at 682.  The PGA, the Court held, violated the ADA by failing to reasonably accommodate Mr. Martin.  

Both the Supreme Court and the Department of Justice interpret the ADA as demanding an individualized exploration regarding whether a modification of standard policy would cause undue hardship or profoundly change the unique nature of the Mackinac experience.  See, e.g., Martin, 532 U.S. at 668 (“an individualized inquiry must be made to determine whether a specific modification for a particular person’s disability would be reasonable under the circumstances as well as necessary for that person, and yet at the same time not work a fundamental alteration”); Department of Justice, Americans with Disabilities Act Title II Technical Assistance Manual, II-3.4400 (1993).  Such an individualized inquiry into Mr. Bertrand’s tricycle would reveal that its classic styling and virtually silent engine are more in line with the traditional charm of the Island than the other exceptions that have been made.  

To bring suit under Title II of the ADA, the plaintiff must allege he or she is being denied access to a public “service, program, or activity” under the ADA.  42 U.S.C. § 12132.  The opportunity to ride a bicycle in the City is indeed a “service, program, or activity.”  As the Sixth Circuit has found, this provision must be read broadly such that “the phrase ‘services, programs, or activities’ encompasses virtually everything that a public entity does.”  Johnson v. City of Saline, 151 F.3d 564, 569 (6th Cir. 1998).  Accordingly, the licensing of bicycles and prohibition of electric-assisted bicycles constitutes a service, program, or activity. 

Another requirement for coverage under the ADA is that an individual meet both disability and eligibility requirements.  Mr. Bertrand is a qualified individual with a disability.  Multiple sclerosis substantially limits his major life activities.  He is also qualified to ride his bicycle in the City, as he meets the essential eligibility requirements of being a lawful resident who has applied for a bicycle license, but was denied.  See Coleman v. Zatechka, 824 F. Supp. 1360, 1368 (D. Neb. 1993)(disabled university student met essential eligibility criteria to be assigned a roommate, as he was admitted to the university and submitted a proper application for a roommate). 

On the merits, the denial of Mr. Bertrand’s request for a reasonable accommodation violates Title II and its implementing regulations.  

¨      Mr. Bertrand’s opportunity to ride a bicycle in the City is “not equal to that afforded others,” as he cannot ride uphill without an electric assistance due to his disability.   28 C.F.R. 35.130(b)(1)(ii).   

¨      It has been suggested that a stationary bicycle could serve Mr. Bertrand’s exercise needs.  This solution falls far short because it prevents him from participating in a basic feature of Island living transportation by bicycle and he is thereby denied the right to a service which is as effective as that provided to others.  28 C.F.R. 35.130(b)(1)(iii).  

¨      Further, the heart of this case is the City’s refusal to allow a reasonable modification of its policy barring motorized vehicles.  Such an exception would not constitute a fundamental alteration of the nature of transportation on the Island.   28 C.F.R. 35.130(7).  Although such a fundamental alteration is claimed, there has not been an adequate effort to make the individualized inquiry required by the ADA.  See, e.g., PGA Tour, Inc. v. Martin, 532 U.S. 661, 668 (2001). 

We believe that such an individualized consideration of Mr. Bertrand’s case focusing on such factors as the speed at which his tricycle travels, the noise created by the electric motor, how often he uses the electric assist, and other factors would clearly lead to the conclusion that Mr. Bertrand’s use of the electric assist is necessary for him to cycle on the Island and does not impose a threat to the Island’s tradition and tranquility.  As you have been made aware, Mr. Bertrand engages the electric assist only in limited circumstances, such as when fatigued, going up a hill, or along a windy stretch of beach road, and the noise and speed produced by the motor are minimal. 

Mr. Bertrand would rather be able to ride a regular bicycle into a headwind everywhere he goes rather than have multiple sclerosis, but necessity leads to a need for a reasonable accommodation.  Modification of the permit procedure in accordance with the ADA would allow for distinguishing between those who want and those who need an electric-assisted bicycle or tricycle.

In passing the ADA, Congress was explicitly mindful of the existence of more than 43 million citizens with disabilities facing “pervasive” exclusion from the mainstream by means ranging from outright. intentional discrimination to “the failure to make modifications to existing . . . practices.”   42 U.S.C. 12101(a)(1), (2), and (8); Martin, supra at 674-75.   In short, the ADA is a comprehensive national mandate to rework society to allow citizens with disabilities full access to the mainstream.

Accordingly, we ask that you reconsider your refusal to make the requested accommodation.  Mr. Bertrand needs a permit soon if he is to enjoy the season.  Our client wishes to resolve this problem quickly, and that can be done out of court.  However, if an accommodation is not granted soon, we will be forced to take appropriate legal action.

Thank you for your prompt consideration of this matter.

Very truly yours,

 

Stewart R. Hakola
Cooperating Counsel for the ACLU of Michigan
401 N. Front St.
Marquette, MI 49855-3523
(906) 228-9809

Michael Steinberg, Legal Director
Justin Weyerhaeuser, Legal Intern
Direct Dial: (313) 578-6814

cc: Donald Bertrand

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Mackinac Island Charged With Violating Disabilities Act

June 07, 2002

In a letter sent today, the American Civil Liberties Union of Michigan charged Mackinac Island officials with violating the Americans With Disabilities Act by refusing to grant a resident with multiple sclerosis his request to use an electric-assisted tricycle.

The resident, Donald Bertrand, cannot ride a bicycle -- the primary form of transportation in the community -- because his disability has affected his stamina and balance.  To accommodate the disability, Mr. Bertrand needs an electric-assisted tricycle; on those occasions when he cannot make it up a hill, he is able to switch on the tricycle’s silent motor to give him a boost.   Bertrand has repeatedly asked the Island for permission to use the tricycle, but the Island has refused, citing its policy prohibiting motorized vehicles. 

“Mackinac Island already makes exceptions to its no-motorized-vehicles policy to allow the use of snowmobiles and golf carts,” said Stewart R. Hakola, cooperating counsel for the ACLU of Michigan.  “Refusing to let Don Bertrand tricycle is both discriminatory and unjust.” 

The ADA requires that government entities accommodate people with disabilities to promote equal enjoyment of, and access to, public services and facilities.  A recent Supreme Court decision found that a case-by-case inquiry was required to determine whether an accommodation such as the use of a golf cart for a golfer with a disability in the PGA tournament would cause a fundamental change to the activity.  The court sided with the golfer.  PGA Tour, Inc. v. Martin

“Riding bicycles is part of Mackinac Island’s tradition,” said Michigan ACLU Executive Director Kary Moss.  “The Island is violating the Americans with Disabilities Act by denying Don Bertand an equal opportunity to participate in that tradition.” 

The ACLU is negotiating with city officials in an effort to resolve this out of court.  However, if negotiations are unsuccessful, the ACLU has threatened legal action. 

 “I love Mackinac Island,” said Bertrand, “but the message I’m getting is that people with disabilities are not welcome on the island.”  Mackinac officials have already issued tickets to other residents with disabilities for using electric-assisted bicycles.

The letter sent follows:

June 7, 2002

David D. Waddell, Esq.
Attorney for Mackinac Island
Fraser Trebilcock Davis & Dunlap, P.C.
1000 Michigan National Tower
124 West Allegan St.
Lansing, MI 48933
Fax: (517) 482-0887

Tom H. Evashevski, Esq.
Attorney for Mackinac Island
Brown & Brown
132 North State St.
Saint Ignace, MI  49781
Fax: (906) 643-7157

 

Re: Donald Bertrand’s Request for a Reasonable Accommodation

Dear Mr. Waddell and Mr. Evashevski: 

As you know, we have been retained by Donald Bertrand in his efforts to secure a reasonable modification, based on his individualized circumstances, to Mackinac Island’s policy barring his use of an electric-assisted tricycle.  Since the beginning of the season, Mr. Bertrand has not ridden his tricycle, but has spent his time pursuing virtually every means of securing a permit that would allow him to enjoy one of the central aspects of Island life.  He has submitted the appropriate forms; he has spoken to the Mayor; he has spoken to the chief of police; and the list goes on.  We strongly urge you to find a reasonable accommodation for Mr. Bertrand.  This situation can and should be resolved out of court. 

Mr. Bertrand has multiple sclerosis, a physically disabling condition that substantially limits his major life activities.  Although people with M.S. may face pain and frustration in the course of their day-to-day activities, they do what they can to keep fit with the knowledge that exercise may slow the degeneration of the central nervous system, a process that can lead to the loss of vision, coordination, speech, and strength.

Riding a traditional two-wheeled bicycle became impracticable when the disease took much of the strength on Mr. Bertrand’s left side.  He could no longer put out his left foot quickly when he stopped at an intersection.  He began to fall.  Mr. Bertrand loves to cycle around Mackinac Island and, because of the Island’s policy, he is forced to confront the possibility of losing that pleasure even before the disease takes it.   

To continue to cycle around the Island, Mr. Bertrand has identified a fundamentally reasonable solution: a tricycle with a virtually silent electric motor.  The three wheels lend him stability and he is able to turn on the motor when he occasionally needs a boost.  The Island has rejected this alternative in the name of tradition.  Instead, the only permitted alternatives are an electric wheelchair or a three-wheeled cart, some of which nearly match the top speeds of the electric motor on Mr. Bertrand’s tricycle. 

Mr. Bertrand does not yet need a wheelchair to get from place to place in everyday life.  He just sometimes needs a little help riding into the beach wind, riding up the steep hill on his way back home, or when the fatigue caused by the disease becomes overwhelming.  He does not aim to circumvent the rules of Mackinac Island he wants to participate in one of its grand traditions.

Mr. Waddell’s letter of May 6 suggests that Mr. Bertrand will undermine the historic atmosphere of Mackinac Island should he be granted authorization to use a “moped.”  However, it is important to note that Mr. Bertrand’s electric-assisted tricycle is very different from traditional mopeds.  By definition, a moped is a motorized bicycle powered by a gasoline engine.  American Heritage Dictionary (3d ed. 1996).  This tricycle is not the loud, smog-spewing, four-stroke moped from World War II movies.  The maximum speed of Mr. Bertrand’s tricycle is just 10 miles per hour and it makes less noise than an electric wheelchair. 

The Island’s refusal to permit Mr. Bertrand to ride his tricycle is irrational given the other exceptions to its no-motorized-vehicle policy.  The most prominent is the policy’s allowance for faster, more dangerous, and far louder snowmobiles.  Construction equipment, golf carts, motorized wheelchairs all travel the Island under certain limitations of time or designated area.  Mr. Bertrand simply seeks a temporary permit to use a device that would allow him to enjoy the Island without unduly burdening the Island or interfering with other Island residents.  It is difficult to see how that would not be a reasonable accommodation.  

The failure to provide Mr. Bertrand with a reasonable accommodation violates Title II of the Americans with Disabilities Act.  Although Mr. Waddell cites Title I employment cases, this is a Title II case for discrimination in providing access to public services.  Title II provides broader protection to individuals with disabilities than Title I.  See, e.g., Popovich v. Cuyahoga County Court of Common Pleas, 276 F.3d 808, 820 (6th Cir. 2002)(Ohio). 

While some Title I cases may be relevant to the present situation, Title III, which addresses discrimination in access to public accommodations, services, and facilities, is more readily analogous.  28 C.F.R. 36.202.  The Title III case of professional golfer Casey Martin provides such an analogous situation.  Martin’s right leg has atrophied due to a degenerative circulatory disorder, rendering him disabled under the definition of the ADA.  PGA Tour, Inc. v. Martin, 532 U.S. 661, 668 (2001).  It was not merely uncomfortable for him to walk the course as required by the Professional Golf Association; it was impossible. Id.  The PGA’s refusal to accommodate him led to a lawsuit that went all the way to the Supreme Court.  As in the present situation, the Martin case was a clash between the ADA and a desire to preserve tradition.  

The PGA argued that making an accommodation for Martin would lead to a golf cart traffic jam along the fairways of the United States.  In fact, that has not come to pass.  In Martin, the Court found that allowing persons with disabilities to use golf carts would not fundamentally change the nature of the PGA tour or the game of golf.  Id. at 690.  Expanding the hole from three inches in diameter to six inches would.   Id. at 682.  The PGA, the Court held, violated the ADA by failing to reasonably accommodate Mr. Martin.  

Both the Supreme Court and the Department of Justice interpret the ADA as demanding an individualized exploration regarding whether a modification of standard policy would cause undue hardship or profoundly change the unique nature of the Mackinac experience.  See, e.g., Martin, 532 U.S. at 668 (“an individualized inquiry must be made to determine whether a specific modification for a particular person’s disability would be reasonable under the circumstances as well as necessary for that person, and yet at the same time not work a fundamental alteration”); Department of Justice, Americans with Disabilities Act Title II Technical Assistance Manual, II-3.4400 (1993).  Such an individualized inquiry into Mr. Bertrand’s tricycle would reveal that its classic styling and virtually silent engine are more in line with the traditional charm of the Island than the other exceptions that have been made.  

To bring suit under Title II of the ADA, the plaintiff must allege he or she is being denied access to a public “service, program, or activity” under the ADA.  42 U.S.C. § 12132.  The opportunity to ride a bicycle in the City is indeed a “service, program, or activity.”  As the Sixth Circuit has found, this provision must be read broadly such that “the phrase ‘services, programs, or activities’ encompasses virtually everything that a public entity does.”  Johnson v. City of Saline, 151 F.3d 564, 569 (6th Cir. 1998).  Accordingly, the licensing of bicycles and prohibition of electric-assisted bicycles constitutes a service, program, or activity. 

Another requirement for coverage under the ADA is that an individual meet both disability and eligibility requirements.  Mr. Bertrand is a qualified individual with a disability.  Multiple sclerosis substantially limits his major life activities.  He is also qualified to ride his bicycle in the City, as he meets the essential eligibility requirements of being a lawful resident who has applied for a bicycle license, but was denied.  See Coleman v. Zatechka, 824 F. Supp. 1360, 1368 (D. Neb. 1993)(disabled university student met essential eligibility criteria to be assigned a roommate, as he was admitted to the university and submitted a proper application for a roommate). 

On the merits, the denial of Mr. Bertrand’s request for a reasonable accommodation violates Title II and its implementing regulations.  

¨      Mr. Bertrand’s opportunity to ride a bicycle in the City is “not equal to that afforded others,” as he cannot ride uphill without an electric assistance due to his disability.   28 C.F.R. 35.130(b)(1)(ii).   

¨      It has been suggested that a stationary bicycle could serve Mr. Bertrand’s exercise needs.  This solution falls far short because it prevents him from participating in a basic feature of Island living transportation by bicycle and he is thereby denied the right to a service which is as effective as that provided to others.  28 C.F.R. 35.130(b)(1)(iii).  

¨      Further, the heart of this case is the City’s refusal to allow a reasonable modification of its policy barring motorized vehicles.  Such an exception would not constitute a fundamental alteration of the nature of transportation on the Island.   28 C.F.R. 35.130(7).  Although such a fundamental alteration is claimed, there has not been an adequate effort to make the individualized inquiry required by the ADA.  See, e.g., PGA Tour, Inc. v. Martin, 532 U.S. 661, 668 (2001). 

We believe that such an individualized consideration of Mr. Bertrand’s case focusing on such factors as the speed at which his tricycle travels, the noise created by the electric motor, how often he uses the electric assist, and other factors would clearly lead to the conclusion that Mr. Bertrand’s use of the electric assist is necessary for him to cycle on the Island and does not impose a threat to the Island’s tradition and tranquility.  As you have been made aware, Mr. Bertrand engages the electric assist only in limited circumstances, such as when fatigued, going up a hill, or along a windy stretch of beach road, and the noise and speed produced by the motor are minimal. 

Mr. Bertrand would rather be able to ride a regular bicycle into a headwind everywhere he goes rather than have multiple sclerosis, but necessity leads to a need for a reasonable accommodation.  Modification of the permit procedure in accordance with the ADA would allow for distinguishing between those who want and those who need an electric-assisted bicycle or tricycle.

In passing the ADA, Congress was explicitly mindful of the existence of more than 43 million citizens with disabilities facing “pervasive” exclusion from the mainstream by means ranging from outright. intentional discrimination to “the failure to make modifications to existing . . . practices.”   42 U.S.C. 12101(a)(1), (2), and (8); Martin, supra at 674-75.   In short, the ADA is a comprehensive national mandate to rework society to allow citizens with disabilities full access to the mainstream.

Accordingly, we ask that you reconsider your refusal to make the requested accommodation.  Mr. Bertrand needs a permit soon if he is to enjoy the season.  Our client wishes to resolve this problem quickly, and that can be done out of court.  However, if an accommodation is not granted soon, we will be forced to take appropriate legal action.

Thank you for your prompt consideration of this matter.

Very truly yours,

 

Stewart R. Hakola
Cooperating Counsel for the ACLU of Michigan
401 N. Front St.
Marquette, MI 49855-3523
(906) 228-9809

Michael Steinberg, Legal Director
Justin Weyerhaeuser, Legal Intern
Direct Dial: (313) 578-6814

cc: Donald Bertrand

For the second time in four years, a Michigan statute regarding abortion has been stuck down in federal court.

ACLU Press Release: Court Again Upholds A Woman's Right to Choose

A new study shows that gender-based pay inequities cost Michigan women $9 billion a year.

After preventing the 24-hour waiting period/informed consent law from going into effect for nearly six years, the ACLU and the Center for Reproductive Law and Policy settled their respective challenges with the state.

Under the settlement, the harshest provisions of the law have been removed. For example, before the settlement, women living long distances from abortion providers would have been required to make two trips to providers' offices, the first for a doctor to determine the gestational age of the fetus and provide the informed consent materials and the second at least 24 hours later for the procedure. Under the agreement, the informed consent materials may be provided through the mail, fax or e-mail and age of the fetus determinations may be made through a phone interview with physicians' assistants. Additionally under the settlement the law will no longer apply to the "morning after pill" or situations where the life or health of the mother is threatened. Mahaffey v. Attorney General. Cooperating attorneys: Eileen Nowikowski and Elizabeth Gleicher. (2001)

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Right to Choose

April 26, 2001

For the second time in four years, a Michigan statute regarding abortion has been stuck down in federal court.

ACLU Press Release: Court Again Upholds A Woman's Right to Choose

A new study shows that gender-based pay inequities cost Michigan women $9 billion a year.

After preventing the 24-hour waiting period/informed consent law from going into effect for nearly six years, the ACLU and the Center for Reproductive Law and Policy settled their respective challenges with the state.

Under the settlement, the harshest provisions of the law have been removed. For example, before the settlement, women living long distances from abortion providers would have been required to make two trips to providers' offices, the first for a doctor to determine the gestational age of the fetus and provide the informed consent materials and the second at least 24 hours later for the procedure. Under the agreement, the informed consent materials may be provided through the mail, fax or e-mail and age of the fetus determinations may be made through a phone interview with physicians' assistants. Additionally under the settlement the law will no longer apply to the "morning after pill" or situations where the life or health of the mother is threatened. Mahaffey v. Attorney General. Cooperating attorneys: Eileen Nowikowski and Elizabeth Gleicher. (2001)

The ACLU of Michigan, representing Grand Blanc student Micah White, filed a lawsuit today in Genesee County Circuit Court challenging a policy at the school to require drug testing of student athletes.

In the fall of 1999, Mr. White applied to enroll in the wrestling program at Grand Blanc High School. The eligibility requirements required that he and his parents sign a Drug Testing Authorization Form.  After he refused to do so, he was not allowed to participate in the wrestling program.

"We shouldn't be treating students as if they are criminals.  Indiscriminate, suspicionless drug testing violates their privacy rights.  As the Supreme Court said in Tinker v. DesMoines, students do not surrender their constitutional rights at the schoolhouse gates."

Mr. White is a member of the National Honor Society and is a National Merit Commended Student, and a National Achievement Finalist. He has never been suspended, expelled or disciplined at high school due to behavior problems or for other reasons.

Prior to implementation of the policy, the high school had not found any evidence that would justify subjecting athletes to random searches; instead, they found that out of numerous students tested, only one tested positive for drugs.

The State of Michigan has held in a previous case that the right to be free from unreasonable searches and seizures is greater under the Michigan Constitution than under the federal constitution.

The case has been assigned to the Hon. Geoffrey Neithercut.  The cooperating attorney in this case is Gregory T. Gibbs and JeanMarie Miller and Mark Granzatto.

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ACLU Sues Grand Blanc Community Schools Over Drug Testing Policy

March 28, 2000

The ACLU of Michigan, representing Grand Blanc student Micah White, filed a lawsuit today in Genesee County Circuit Court challenging a policy at the school to require drug testing of student athletes.

In the fall of 1999, Mr. White applied to enroll in the wrestling program at Grand Blanc High School. The eligibility requirements required that he and his parents sign a Drug Testing Authorization Form.  After he refused to do so, he was not allowed to participate in the wrestling program.

"We shouldn't be treating students as if they are criminals.  Indiscriminate, suspicionless drug testing violates their privacy rights.  As the Supreme Court said in Tinker v. DesMoines, students do not surrender their constitutional rights at the schoolhouse gates."

Mr. White is a member of the National Honor Society and is a National Merit Commended Student, and a National Achievement Finalist. He has never been suspended, expelled or disciplined at high school due to behavior problems or for other reasons.

Prior to implementation of the policy, the high school had not found any evidence that would justify subjecting athletes to random searches; instead, they found that out of numerous students tested, only one tested positive for drugs.

The State of Michigan has held in a previous case that the right to be free from unreasonable searches and seizures is greater under the Michigan Constitution than under the federal constitution.

The case has been assigned to the Hon. Geoffrey Neithercut.  The cooperating attorney in this case is Gregory T. Gibbs and JeanMarie Miller and Mark Granzatto.

A federal district judge today blocked the country's first-ever law requiring welfare recipients to undergo drug testing, saying that the policy, enacted by Michigan last year, sets a "dangerous precedent" under the Constitution.

The ACLU of Michigan and the national ACLU Drug Policy Litigation Project, which filed a 1999 challenged to the law on behalf of nine welfare recipients and a local rights group, called the decision a welcome check against authoritarianism gone awry.

"The court today reaffirmed the important constitutional principle that all people, rich and poor, are entitled to the same privacy rights," said ACLU Executive Director Kary L. Moss. "No one should have to choose between their constitutional rights and providing for their families."

U.S. District Judge Victoria Roberts found that the ACLU was likely to succeed on the merits of its claim because the Constitution allows random, suspicionless testing only under very limited circumstances.

The state has said it plans to appeal the order; however, today's ruling will prevent any drug testing from taking place until all appeals by the state are exhausted.

Rejecting the state's argument that the desire to move people from welfare to work justified suspending their rights under the Fourth Amendment, Judge Roberts recognized that the Supreme Court has allowed testing in very limited circumstances, such as where public employees operate trains, carry firearms, are involved in the interdiction of controlled substances, or in the case of student athletes.

In a 22-page ruling, Judge Roberts said that "upholding this...suspicionless drug testing would set a dangerous precedent" and that "drug testing under these circumstances must satisfy a special need, and that need must concern public safety."

If the state is allowed to drug test welfare recipients by virtue of its advocacy on behalf of minors, Judge Roberts reasoned, "that excuse could be used for testing the parents of all children who received Medicaid, State Emergency Relief, educational grants or loans, public education or any other benefit from that State."

Although the state argued that drug testing was necessary because substance abuse and child neglect are highly correlated, the court noted that the point of the Temporary Assistance for Needy Families program and Family Independence Program is not to prevent child abuse or neglect.

"Michigan stands alone in making its families guinea pigs in a social experiment," said Graham Boyd, Director of the ACLU's Drug Policy Litigation Project. "Now a federal judge has found that this dubious plan is likely to be unconstitutional."

Michigan was the first state in the country to pass a law requiring drug testing of welfare recipients. The law created a pilot program which required drug testing and treatment for welfare applicants in Alpena and Presque Isle Counties, Berrien County and the Joy/Greenfield district of Wayne County. The legislature also provided that the pilot program would be expanded across the state by April 2003.

The program went into effect on October 1, 1999, but was blocked by a Temporary Restraining Order on November 10, 1999.

Those who tested positive would have been required to participate in substance abuse assessment and comply with a required substance abuse treatment plan. Applicants who refused to submit to drug testing would have had their application for assistance denied.

Additionally, after six months -- or in April 2000 -- 20 percent of adults and minor parent grantees with active cases up for redetermination would have been randomly selected for testing.

The case is Marchwinski et al., v. Family Independence Agency, et al. Attorneys in the case are Moss and Graham Boyd of the ACLU; Prof. Robert A. Sedler of Wayne State University Law School in Detroit and David R. Getto and Cameron R. Getto of Southfield, as cooperating attorneys.

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Federal Judge Blocks Michigan’s Plan to Drug Test Welfare Recipients

September 05, 2000

A federal district judge today blocked the country's first-ever law requiring welfare recipients to undergo drug testing, saying that the policy, enacted by Michigan last year, sets a "dangerous precedent" under the Constitution.

The ACLU of Michigan and the national ACLU Drug Policy Litigation Project, which filed a 1999 challenged to the law on behalf of nine welfare recipients and a local rights group, called the decision a welcome check against authoritarianism gone awry.

"The court today reaffirmed the important constitutional principle that all people, rich and poor, are entitled to the same privacy rights," said ACLU Executive Director Kary L. Moss. "No one should have to choose between their constitutional rights and providing for their families."

U.S. District Judge Victoria Roberts found that the ACLU was likely to succeed on the merits of its claim because the Constitution allows random, suspicionless testing only under very limited circumstances.

The state has said it plans to appeal the order; however, today's ruling will prevent any drug testing from taking place until all appeals by the state are exhausted.

Rejecting the state's argument that the desire to move people from welfare to work justified suspending their rights under the Fourth Amendment, Judge Roberts recognized that the Supreme Court has allowed testing in very limited circumstances, such as where public employees operate trains, carry firearms, are involved in the interdiction of controlled substances, or in the case of student athletes.

In a 22-page ruling, Judge Roberts said that "upholding this...suspicionless drug testing would set a dangerous precedent" and that "drug testing under these circumstances must satisfy a special need, and that need must concern public safety."

If the state is allowed to drug test welfare recipients by virtue of its advocacy on behalf of minors, Judge Roberts reasoned, "that excuse could be used for testing the parents of all children who received Medicaid, State Emergency Relief, educational grants or loans, public education or any other benefit from that State."

Although the state argued that drug testing was necessary because substance abuse and child neglect are highly correlated, the court noted that the point of the Temporary Assistance for Needy Families program and Family Independence Program is not to prevent child abuse or neglect.

"Michigan stands alone in making its families guinea pigs in a social experiment," said Graham Boyd, Director of the ACLU's Drug Policy Litigation Project. "Now a federal judge has found that this dubious plan is likely to be unconstitutional."

Michigan was the first state in the country to pass a law requiring drug testing of welfare recipients. The law created a pilot program which required drug testing and treatment for welfare applicants in Alpena and Presque Isle Counties, Berrien County and the Joy/Greenfield district of Wayne County. The legislature also provided that the pilot program would be expanded across the state by April 2003.

The program went into effect on October 1, 1999, but was blocked by a Temporary Restraining Order on November 10, 1999.

Those who tested positive would have been required to participate in substance abuse assessment and comply with a required substance abuse treatment plan. Applicants who refused to submit to drug testing would have had their application for assistance denied.

Additionally, after six months -- or in April 2000 -- 20 percent of adults and minor parent grantees with active cases up for redetermination would have been randomly selected for testing.

The case is Marchwinski et al., v. Family Independence Agency, et al. Attorneys in the case are Moss and Graham Boyd of the ACLU; Prof. Robert A. Sedler of Wayne State University Law School in Detroit and David R. Getto and Cameron R. Getto of Southfield, as cooperating attorneys.

Fred Lipke picked up $2000 from the City of Wayne Police Department today. A police officer had seized the money from Lipke this June when Lipke brought it to the police station to bail out a friend. The police officer, following department policy, took the bail money and showed it to drug-sniffing dogs. When the dogs "alerted" to the scent of drugs on the money, the officer seized it as the alleged proceeds of a drug sale under the state civil forfeiture law.

Lipke, who does not use drugs, was outraged and called the American Civil Liberties Union of Michigan.  The ACLU was able to successfully negotiate the return the $2000.

"The policy of seizing bail money based solely on a dog sniff is not only unconstitutional, but it is also unconscionable," said Kary L. Moss, Executive Director of the Michigan ACLU.  "The courts have stated that 70% to 90% of the currency in circulation today is contaminated by enough cocaine to alert a trained dog."

In one dramatic study, 11 prominent citizens, including Janet Reno and Jeb Bush, were asked to supply a $20 bill for drug testing.  Ten of the 11 bills were tainted by significant amounts of cocaine - including the bills supplied by Janet Reno, Jeb Bush and an archbishop.  (See Courts Reject Drug-Tainted Evidence, 79 A.B.A. J. 22 (Aug. 1993)).

"Numerous police agencies in Wayne County are seizing money, cars or other property based solely on dog sniffs," stated Cynthia Heenan, the ACLU cooperating attorney who represented Lipke.  "This illegal practice does nothing to stop the 'war on drugs,' but only serves to fill the coffers of the police.  Many people do not have the money to hire a lawyer to get their property back and in many cases the cost of hiring a lawyer would be more than the value of the property seized."

Fred Lipke stated, "I thought I was doing a good deed by getting out of bed in the middle of the night this summer to bail out a friend.  I was completely shocked when the police officer seized the bail money.  If not for the ACLU, the police would have gotten away with grand larceny."

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Man Wins Return of Bail Money Seized by Police

November 14, 2000

Fred Lipke picked up $2000 from the City of Wayne Police Department today. A police officer had seized the money from Lipke this June when Lipke brought it to the police station to bail out a friend. The police officer, following department policy, took the bail money and showed it to drug-sniffing dogs. When the dogs "alerted" to the scent of drugs on the money, the officer seized it as the alleged proceeds of a drug sale under the state civil forfeiture law.

Lipke, who does not use drugs, was outraged and called the American Civil Liberties Union of Michigan.  The ACLU was able to successfully negotiate the return the $2000.

"The policy of seizing bail money based solely on a dog sniff is not only unconstitutional, but it is also unconscionable," said Kary L. Moss, Executive Director of the Michigan ACLU.  "The courts have stated that 70% to 90% of the currency in circulation today is contaminated by enough cocaine to alert a trained dog."

In one dramatic study, 11 prominent citizens, including Janet Reno and Jeb Bush, were asked to supply a $20 bill for drug testing.  Ten of the 11 bills were tainted by significant amounts of cocaine - including the bills supplied by Janet Reno, Jeb Bush and an archbishop.  (See Courts Reject Drug-Tainted Evidence, 79 A.B.A. J. 22 (Aug. 1993)).

"Numerous police agencies in Wayne County are seizing money, cars or other property based solely on dog sniffs," stated Cynthia Heenan, the ACLU cooperating attorney who represented Lipke.  "This illegal practice does nothing to stop the 'war on drugs,' but only serves to fill the coffers of the police.  Many people do not have the money to hire a lawyer to get their property back and in many cases the cost of hiring a lawyer would be more than the value of the property seized."

Fred Lipke stated, "I thought I was doing a good deed by getting out of bed in the middle of the night this summer to bail out a friend.  I was completely shocked when the police officer seized the bail money.  If not for the ACLU, the police would have gotten away with grand larceny."

To stop Grand Blanc High School's drug testing program, the American Civil Liberties Union of Michigan filed a motion on Tuesday in an on-going lawsuit asking that the Genesee County Circuit Court rule the school's policy a violation of the Michigan Constitution's protection against unreasonable searches and seizures.

Under the program, students who want to play sports must provide a urine sample on demand for drug testing. In violation of students' privacy rights, school officials require athletes to provide urine samples even though there is no reason to believe that they have been using drugs.

"Grand Blanc High School has created a 'drug exception' to the Constitution," said Michael J. Steinberg, Michigan ACLU Legal Director. "Fortunately, the Michigan Constitution requires that there be reasonable suspicion before students are drug tested. The school should be very concerned about the lesson it is teaching students when it treats them as if they have no rights at all."

Between 1998 and 2000, 599 students were randomly tested for drugs under Grand Blanc's policy. Only two tested positive. Grand Blanc is the only high school in the state to have such a policy.

"Grand Blanc High School should stop treating its students like criminals," said ACLU cooperating attorney Gregory Gibbs. "The school cannot violate student athletes' privacy rights by making them submit to drug testing unless there is reason to suspect that they are breaking the law."

The lawsuit was filed last spring on behalf of Micah White, a student who was denied an opportunity to join the Grand Blanch wrestling team in 1999 because he and his parents refused to sign a drug testing authorization form. At the time, Mr. White was a member of the National Honor Society, a National Merit Commended Student and a National Achievement Finalist. He had never been suspended, expelled or disciplined at high school due to behavior problems or for other reasons. White now attends Swarthmore College in Pennsylvania.

The Michigan Supreme Court has held that the Michigan Constitution provides greater protection than the federal constitution in this area. Several states courts, including courts in Indiana, Pennsylvania and New Jersey, have held that drug testing of high school students is a violation of their respective state constitutions.

The judge assigned to hear the Grand Blanc High School case, Judge Geoffrey Neithercut, has not yet set a hearing date for the ACLU's motion.

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Court Asked to Strike Down Grand Blanc High School Drug Testing Policy

June 05, 2001

To stop Grand Blanc High School's drug testing program, the American Civil Liberties Union of Michigan filed a motion on Tuesday in an on-going lawsuit asking that the Genesee County Circuit Court rule the school's policy a violation of the Michigan Constitution's protection against unreasonable searches and seizures.

Under the program, students who want to play sports must provide a urine sample on demand for drug testing. In violation of students' privacy rights, school officials require athletes to provide urine samples even though there is no reason to believe that they have been using drugs.

"Grand Blanc High School has created a 'drug exception' to the Constitution," said Michael J. Steinberg, Michigan ACLU Legal Director. "Fortunately, the Michigan Constitution requires that there be reasonable suspicion before students are drug tested. The school should be very concerned about the lesson it is teaching students when it treats them as if they have no rights at all."

Between 1998 and 2000, 599 students were randomly tested for drugs under Grand Blanc's policy. Only two tested positive. Grand Blanc is the only high school in the state to have such a policy.

"Grand Blanc High School should stop treating its students like criminals," said ACLU cooperating attorney Gregory Gibbs. "The school cannot violate student athletes' privacy rights by making them submit to drug testing unless there is reason to suspect that they are breaking the law."

The lawsuit was filed last spring on behalf of Micah White, a student who was denied an opportunity to join the Grand Blanch wrestling team in 1999 because he and his parents refused to sign a drug testing authorization form. At the time, Mr. White was a member of the National Honor Society, a National Merit Commended Student and a National Achievement Finalist. He had never been suspended, expelled or disciplined at high school due to behavior problems or for other reasons. White now attends Swarthmore College in Pennsylvania.

The Michigan Supreme Court has held that the Michigan Constitution provides greater protection than the federal constitution in this area. Several states courts, including courts in Indiana, Pennsylvania and New Jersey, have held that drug testing of high school students is a violation of their respective state constitutions.

The judge assigned to hear the Grand Blanc High School case, Judge Geoffrey Neithercut, has not yet set a hearing date for the ACLU's motion.

The Michigan Department of Natural Resources has tossed out the policy that sparked a dispute over religious activities at Fort Custer Recreation Area this summer.

"This makes it clear that a state park is the same type of public forum for free speech as the courthouse steps," said James Rodbard, an attorney for the Southwest Michigan Chapter of the American Civil Liberties Union. "The people of Michigan should feel secure that they are free to exercise their rights of free speech and worship."

Rodbard represented the Rev. William Stein of Baptism USA Ministries in an effort to obtain permission from the DNR to baptize in Eagle Lake.

DNR officials at Fort Custer Recreation Area cited Parks and Recreation Policy 8.15 when on May 28 they denied a permit for the services at the park. But they did not interfere with baptisms Stein conducted there during the summer.

"In response to the situation, we independently reviewed the policy," said DNR spokesman Brad Wurfel. "The DNR is not about being obstructionist ... it's about fair and equitable use for all groups."

Rodbard on Sept. 12 discussed the policy with Stephen S. Schuesler, the state's assistant attorney general responsible for matters involving the Natural Resources and Environmental Quality Division.

In a letter sent to Schesler before the meeting, Rodbard outlined what he believed were the policy's unconstitutional aspects, including restrictions on soliciting, canvassing and proselytizing. Rodbard also said the policy advanced interdenominationalism, while discriminating against sectarian worship.

"The DNR clearly has the right and responsibility to ... enforce reasonable, content-neutral rules and regulations to protect the public, (but it can't) dictate the nature, extent or content of religious speech in the parks," Rodbard's letter said.

The DNR plans to use existing rules and policies to evaluate future events and activities at state parks.

By Claudia Linsley, The Enquirer

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DNR Backs Off on Battle

July 09, 2002

The Michigan Department of Natural Resources has tossed out the policy that sparked a dispute over religious activities at Fort Custer Recreation Area this summer.

"This makes it clear that a state park is the same type of public forum for free speech as the courthouse steps," said James Rodbard, an attorney for the Southwest Michigan Chapter of the American Civil Liberties Union. "The people of Michigan should feel secure that they are free to exercise their rights of free speech and worship."

Rodbard represented the Rev. William Stein of Baptism USA Ministries in an effort to obtain permission from the DNR to baptize in Eagle Lake.

DNR officials at Fort Custer Recreation Area cited Parks and Recreation Policy 8.15 when on May 28 they denied a permit for the services at the park. But they did not interfere with baptisms Stein conducted there during the summer.

"In response to the situation, we independently reviewed the policy," said DNR spokesman Brad Wurfel. "The DNR is not about being obstructionist ... it's about fair and equitable use for all groups."

Rodbard on Sept. 12 discussed the policy with Stephen S. Schuesler, the state's assistant attorney general responsible for matters involving the Natural Resources and Environmental Quality Division.

In a letter sent to Schesler before the meeting, Rodbard outlined what he believed were the policy's unconstitutional aspects, including restrictions on soliciting, canvassing and proselytizing. Rodbard also said the policy advanced interdenominationalism, while discriminating against sectarian worship.

"The DNR clearly has the right and responsibility to ... enforce reasonable, content-neutral rules and regulations to protect the public, (but it can't) dictate the nature, extent or content of religious speech in the parks," Rodbard's letter said.

The DNR plans to use existing rules and policies to evaluate future events and activities at state parks.

By Claudia Linsley, The Enquirer

The Michigan Department of Natural Resources has done something that government agencies sometimes are reluctant to do: Abandon a rule that was unfair, ineffective and unneeded.

The DNR has dropped a policy, revised in 1999, that required religious groups that wished to "solicit, canvass or proselytize" in a state park to submit a written request for the activity and require participants to wear identification tags.

The policy came to light after the Rev. William Stein of Battle Creek asked permission last May to hold seven summer baptism services at Eagle Lake at Fort Custer Recreation Area. Stein was denied permission for the first two services, which he did not hold. He eventually obtained a permit for the remaining five baptism services and they were held with no problems at Eagle Lake.

The American Civil Liberties Union came to the defense of Stein and his Baptism USA Ministries, challenging the DNR policy as an unconstitutional infringement on the freedoms of speech and religion.

After being challenged, DNR officials conducted an independent review of the policy and came to the conclusion that it was not needed. We agree.

Religious groups should not be singled out for specific treatment regarding use of state parks or other state facilities. They should be subject to the same rules and regulations as any other group. Park officials certainly have the right to establish procedures for large groups to use the facility, but the procedures should apply to all groups, not just those with a religious purpose.

That is what DNR officials concluded after reviewing the policy regarding religious organizations. We are glad that they recognized the unfairness of the situation.

As DNR spokesman Brad Wurfel said, "The DNR is not about being obstructionist ... it's about fair and equitable use for all groups."

We're glad that Stein, the ACLU and the DNR could work together to come up with a solution to the controversy. No doubt groups in the future will benefit from their efforts.

From the Battle Creek Enquirer.

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DNR Right to Abandon Park Policy

October 01, 2002

The Michigan Department of Natural Resources has done something that government agencies sometimes are reluctant to do: Abandon a rule that was unfair, ineffective and unneeded.

The DNR has dropped a policy, revised in 1999, that required religious groups that wished to "solicit, canvass or proselytize" in a state park to submit a written request for the activity and require participants to wear identification tags.

The policy came to light after the Rev. William Stein of Battle Creek asked permission last May to hold seven summer baptism services at Eagle Lake at Fort Custer Recreation Area. Stein was denied permission for the first two services, which he did not hold. He eventually obtained a permit for the remaining five baptism services and they were held with no problems at Eagle Lake.

The American Civil Liberties Union came to the defense of Stein and his Baptism USA Ministries, challenging the DNR policy as an unconstitutional infringement on the freedoms of speech and religion.

After being challenged, DNR officials conducted an independent review of the policy and came to the conclusion that it was not needed. We agree.

Religious groups should not be singled out for specific treatment regarding use of state parks or other state facilities. They should be subject to the same rules and regulations as any other group. Park officials certainly have the right to establish procedures for large groups to use the facility, but the procedures should apply to all groups, not just those with a religious purpose.

That is what DNR officials concluded after reviewing the policy regarding religious organizations. We are glad that they recognized the unfairness of the situation.

As DNR spokesman Brad Wurfel said, "The DNR is not about being obstructionist ... it's about fair and equitable use for all groups."

We're glad that Stein, the ACLU and the DNR could work together to come up with a solution to the controversy. No doubt groups in the future will benefit from their efforts.

From the Battle Creek Enquirer.

Gov. John Engler is likely to soon renew a push to raise the limit on the number of charter schools that can be authorized by Michigan universities. This is in spite of already having been rebuffed by the Legislature, and in spite of recent studies, both in Michigan and elsewhere in the nation, indicating that charter schools are not the success many had hoped for.

Charter school advocates argued that there would be an increase in innovative and experimental programing if charter schools were allowed freedom from some of the restrictions and regulations allegedly hampering public schools. Certainly, some charter schools have served students well. But studies show there is not much innovation occurring, there are failures and, overall, charter schools are not doing any better than the traditional public schools.

More important, there is no accountability to the public because no effective oversight exists. There is confusion over who is responsible for oversight — the chartering agency (universities, local school boards and intermediate school boards), the school’s own board of trustees or the State Board of Education.

Charter schools are required to comply with the same laws applicable to traditional public schools. They may not discriminate in admissions or employment; their records must be available for public inspection; and the meetings of their governing bodies must be open to the public. They must also respect constitutional principles, including the requirement that public schools refrain from promoting religion and proselytizing students.

Charter schools that do not adhere to these laws are operating in effect as private schools, while being supported by taxpayer funds. Under these conditions, the charter school law is a device by which tax dollars are being used to fund private schools and religious education.

The National Heritage Academy, a for-profit company operating charter schools in Michigan and elsewhere, is a perfect example of how a lack of oversight has allowed a public charter school, using tax dollars, to operate as a religious school. In fact, some groups see charter schools as a way to get around constitutional mandates.

In reference to a National Heritage Academy charter school, the Michigan Family Forum, a conservative Christian organization, acknowledged in its newsletter that “Michigan parents who want the best education for their kids, but don’t want or can’t afford a private Christian school, now have another choice in Michigan.”

The Vanguard Academy in Grand Rapids, operated by the National Heritage Academy, stated in its charter application that it intended to teach the biblical creation story as a scientific theory. It is being sued for promoting religious activities, such as distributing religious materials on school grounds during school hours and allowing prayer meetings during school hours within school facilities. Additionally, teachers were required to attend an in-service program that included religious symbols, prayers, religious presentations and directions to incorporate the ideas from this “moral focus” retreat into the classroom curriculum.

These church-state constitutional violations are one direct result of the lack of public accountability. Charter schools are also supposed to be accountable to the public for how tax dollars are spent. But management companies, like National Heritage Academy, do not have to open their finances to the public, do not adhere to the Open Meetings Act and are not subject to the Freedom of Information Act in the same way as traditional public schools.

There is no question that charter schools are here to stay. But the Legislature should not increase the number of charter schools without ensuring that there is sufficient oversight of those charter schools already operating. The governor should be pushing for a good oversight bill, not for more charter schools.

By Wendy Wagenheim, The Detroit News

Wendy Wagenheim is the legislative director for the American Civil Liberties Union of Michigan.

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Should Cap on Number of Charter Schools be Lifted?

March 15, 2000

Gov. John Engler is likely to soon renew a push to raise the limit on the number of charter schools that can be authorized by Michigan universities. This is in spite of already having been rebuffed by the Legislature, and in spite of recent studies, both in Michigan and elsewhere in the nation, indicating that charter schools are not the success many had hoped for.

Charter school advocates argued that there would be an increase in innovative and experimental programing if charter schools were allowed freedom from some of the restrictions and regulations allegedly hampering public schools. Certainly, some charter schools have served students well. But studies show there is not much innovation occurring, there are failures and, overall, charter schools are not doing any better than the traditional public schools.

More important, there is no accountability to the public because no effective oversight exists. There is confusion over who is responsible for oversight — the chartering agency (universities, local school boards and intermediate school boards), the school’s own board of trustees or the State Board of Education.

Charter schools are required to comply with the same laws applicable to traditional public schools. They may not discriminate in admissions or employment; their records must be available for public inspection; and the meetings of their governing bodies must be open to the public. They must also respect constitutional principles, including the requirement that public schools refrain from promoting religion and proselytizing students.

Charter schools that do not adhere to these laws are operating in effect as private schools, while being supported by taxpayer funds. Under these conditions, the charter school law is a device by which tax dollars are being used to fund private schools and religious education.

The National Heritage Academy, a for-profit company operating charter schools in Michigan and elsewhere, is a perfect example of how a lack of oversight has allowed a public charter school, using tax dollars, to operate as a religious school. In fact, some groups see charter schools as a way to get around constitutional mandates.

In reference to a National Heritage Academy charter school, the Michigan Family Forum, a conservative Christian organization, acknowledged in its newsletter that “Michigan parents who want the best education for their kids, but don’t want or can’t afford a private Christian school, now have another choice in Michigan.”

The Vanguard Academy in Grand Rapids, operated by the National Heritage Academy, stated in its charter application that it intended to teach the biblical creation story as a scientific theory. It is being sued for promoting religious activities, such as distributing religious materials on school grounds during school hours and allowing prayer meetings during school hours within school facilities. Additionally, teachers were required to attend an in-service program that included religious symbols, prayers, religious presentations and directions to incorporate the ideas from this “moral focus” retreat into the classroom curriculum.

These church-state constitutional violations are one direct result of the lack of public accountability. Charter schools are also supposed to be accountable to the public for how tax dollars are spent. But management companies, like National Heritage Academy, do not have to open their finances to the public, do not adhere to the Open Meetings Act and are not subject to the Freedom of Information Act in the same way as traditional public schools.

There is no question that charter schools are here to stay. But the Legislature should not increase the number of charter schools without ensuring that there is sufficient oversight of those charter schools already operating. The governor should be pushing for a good oversight bill, not for more charter schools.

By Wendy Wagenheim, The Detroit News

Wendy Wagenheim is the legislative director for the American Civil Liberties Union of Michigan.

Whether or not you agree with all the American Civil Liberties Union does, surely we agree that public education must be defended. Public education is the cornerstone of American democracy. An educated electorate is vital to sustaining a democracy.

Public education is the institution designed to create one nation with shared values out of many different ethnic, racial, and religious groups. We must continue to improve, not abandon, it.

Michigan's constitutional language prohibits the use of public funds for private and parochial schools. But in November 2000 we will be voting to amend the Constitution to:

  • Eliminate the prohibition on indirect funding, allowing parents to receive tuition vouchers for use at private or parochial schools.
  • Require school districts with graduation rates below two-thirds to offer tuition vouchers, and also allow voters or school boards in any school district to approve voucher plans with a minimal number of signatures.
  • Mandate teacher testing in academic subjects.

Allowing indirect funding may be a less obvious violation of the First Amendment, but it is no less unconstitutional. There is no question that tax dollars will eventually flow to church-run schools since 85 percent of private schools in Michigan are parochial.

The argument you'll hear most often from voucher supporters is that vouchers would give parent's a choice. Parents already have the right to choose a religious education for their children. Taxpayers should not be expected to pay for that choice.

Beyond the obvious that vouchers violate the constitutional principle of church/state separation, framing the issue as "school choice" is false advertising.

  • Vouchers offer no guarantee of admission.
  • Vouchers require no change in a school's admission policy. Private schools don't have to admit students or can discriminate on the basis of disability, IQ, achievement scores, income, gender, religion, or sexual orientation. They don't have to offer special education services and most, in fact, do not.
  • Private schools are not forced to accept vouchers. In a new voucher program in one Florida county, only five of 25 schools participate; four are Roman Catholic and one is Montessori. Although 91 children applied for vouchers, only 59 spaces are available.

If there is no guarantee that a voucher can be used and a school, not a parent, gets to choose who attends the school, can this really be considered parental choice?

And what about the cost of this so-called "choice" to Michigan taxpayers and to the 90 percent of the children who will choose to remain in neighborhood schools? Whether or not you have children, vouchers will effect your pocketbook. They are simply bad public policy.

  • At an average cost of at least $3,500 per student, vouchers will cost Michigan taxpayers $700 million per year just for the students who are currently enrolled in private schools, leaving fewer dollars to educate the vast majority of the state's children.
  • A costly new bureaucracy will be needed to administer public funds to private institutions.
  • Property values are largely determined by the quality of neighborhood schools. Values will decline if the public school becomes impoverished.
  • New private schools may be opened for profit, using taxpayer dollars to line the pockets of businessmen, not to educate children.

We can also learn a lot from experiences in Milwaukee and Cleveland. In 1998-99, Milwaukee's voucher program cost $27.8 million for 6,000 children; 5,000 of those were previously in private school or kindergarten. In Cleveland, $1.9 million was misspent and $1.4 million dollars was spent on taxi service in 1997 and in 1998. There was a 41 percent overrun, resulting in a $2.9 million reduction in public school funds; 75 percent of those using vouchers were previously in private school or kindergarten.

Unlike public schools, private and parochial schools are unregulated and unaccountable to taxpayers. Yet public funds will be used to subsidize them.

If the goal is really about improving education we would be discussing smaller class size since the research is quite clear: This is the most effective strategy for increasing student achievement. We would also be talking about improving technology, increasing teacher training, increasing parental involvement, and improving the physical structure of the learning environment.

We are in for the fight of our lives, but you can help us win by talking to your friends, relatives and neighbors. Tell them we need to improve public education for all children, not just the few who may utilize vouchers. If you read a pro-voucher article, opinion piece or letter to the editor, don't let it go unanswered.

With no evidence to indicate that voucher students perform better than comparable public school students, why are we talking about draining funds needed to educate all children? The pro-voucher campaign, "Kids First, Yes!" should really be called "Some Kids First, Yes!" Consider your refusal to sign the ballot initiative petition an early NO vote.

By Wendy Wagenheim, ACLU Legislative Director

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We Should All Agree on Vouchers Issue

September 01, 2000

Whether or not you agree with all the American Civil Liberties Union does, surely we agree that public education must be defended. Public education is the cornerstone of American democracy. An educated electorate is vital to sustaining a democracy.

Public education is the institution designed to create one nation with shared values out of many different ethnic, racial, and religious groups. We must continue to improve, not abandon, it.

Michigan's constitutional language prohibits the use of public funds for private and parochial schools. But in November 2000 we will be voting to amend the Constitution to:

  • Eliminate the prohibition on indirect funding, allowing parents to receive tuition vouchers for use at private or parochial schools.
  • Require school districts with graduation rates below two-thirds to offer tuition vouchers, and also allow voters or school boards in any school district to approve voucher plans with a minimal number of signatures.
  • Mandate teacher testing in academic subjects.

Allowing indirect funding may be a less obvious violation of the First Amendment, but it is no less unconstitutional. There is no question that tax dollars will eventually flow to church-run schools since 85 percent of private schools in Michigan are parochial.

The argument you'll hear most often from voucher supporters is that vouchers would give parent's a choice. Parents already have the right to choose a religious education for their children. Taxpayers should not be expected to pay for that choice.

Beyond the obvious that vouchers violate the constitutional principle of church/state separation, framing the issue as "school choice" is false advertising.

  • Vouchers offer no guarantee of admission.
  • Vouchers require no change in a school's admission policy. Private schools don't have to admit students or can discriminate on the basis of disability, IQ, achievement scores, income, gender, religion, or sexual orientation. They don't have to offer special education services and most, in fact, do not.
  • Private schools are not forced to accept vouchers. In a new voucher program in one Florida county, only five of 25 schools participate; four are Roman Catholic and one is Montessori. Although 91 children applied for vouchers, only 59 spaces are available.

If there is no guarantee that a voucher can be used and a school, not a parent, gets to choose who attends the school, can this really be considered parental choice?

And what about the cost of this so-called "choice" to Michigan taxpayers and to the 90 percent of the children who will choose to remain in neighborhood schools? Whether or not you have children, vouchers will effect your pocketbook. They are simply bad public policy.

  • At an average cost of at least $3,500 per student, vouchers will cost Michigan taxpayers $700 million per year just for the students who are currently enrolled in private schools, leaving fewer dollars to educate the vast majority of the state's children.
  • A costly new bureaucracy will be needed to administer public funds to private institutions.
  • Property values are largely determined by the quality of neighborhood schools. Values will decline if the public school becomes impoverished.
  • New private schools may be opened for profit, using taxpayer dollars to line the pockets of businessmen, not to educate children.

We can also learn a lot from experiences in Milwaukee and Cleveland. In 1998-99, Milwaukee's voucher program cost $27.8 million for 6,000 children; 5,000 of those were previously in private school or kindergarten. In Cleveland, $1.9 million was misspent and $1.4 million dollars was spent on taxi service in 1997 and in 1998. There was a 41 percent overrun, resulting in a $2.9 million reduction in public school funds; 75 percent of those using vouchers were previously in private school or kindergarten.

Unlike public schools, private and parochial schools are unregulated and unaccountable to taxpayers. Yet public funds will be used to subsidize them.

If the goal is really about improving education we would be discussing smaller class size since the research is quite clear: This is the most effective strategy for increasing student achievement. We would also be talking about improving technology, increasing teacher training, increasing parental involvement, and improving the physical structure of the learning environment.

We are in for the fight of our lives, but you can help us win by talking to your friends, relatives and neighbors. Tell them we need to improve public education for all children, not just the few who may utilize vouchers. If you read a pro-voucher article, opinion piece or letter to the editor, don't let it go unanswered.

With no evidence to indicate that voucher students perform better than comparable public school students, why are we talking about draining funds needed to educate all children? The pro-voucher campaign, "Kids First, Yes!" should really be called "Some Kids First, Yes!" Consider your refusal to sign the ballot initiative petition an early NO vote.

By Wendy Wagenheim, ACLU Legislative Director

DETROIT -- The American Civil Liberties Union of Michigan filed a lawsuit today in federal district court on behalf of a Frenchtown Charter Township firefighters’ union challenging the constitutionality of the township ordinance that prohibits firefighters from speaking to the news media about any “fire department matters” -- including matters of public concern.

Last year, Bob Gerlach, a Frenchtown fire fighter, along with other Union members, raised serious issues of public safety at a Township Board meeting. Gerlach expressed concern that staffing levels and incident command procedures contributed to four fatalities at a recent fire.  Instead of acting on the concerns of the fire fighters, the Board passed Ordinance No.158-2 to prohibit similar disclosures in the future.

“We filed this lawsuit because we can’t talk about things that the public should know about,” said Mr. Gerlach.  “If we do, we face being fined or even jailed.”

In December, 2001, the Michigan Department of Consumer & Industry Services General Industry Safety Division issued a report finding the Frenchtown Fire Department to be in violation of MIOSHA rules applicable to fire departments, including three violations characterized as “serious” for inadequate training, inadequate incident command system and inadequate organizational structure.  Mr. Gerlach was unable to respond to a reporter from the Monroe Evening News for fear of discipline and/or criminal prosecution.   

“The citizens of Frenchtown are being deprived of  necessary information and can’t be ensured that public officials are acting responsibly if there is retaliation against public employees who bring issues of public concern to light,” said David R. Radtke, ACLU cooperating attorney.

To date, members of the Frenchtown Fire Department have been unable to speak to the media about the MIOSHA violations or any other fire department matters of public concern for fear of discipline and/or criminal prosecution.

Firefighters are public servants with the same constitutional rights as all other citizens,” said Kary Moss, ALCU of Michigan Executive Director.  “Men and women who give so much to their community deserve far better from their government. We are confident the Ordinance will be found unconstitutional and that this gag order will be removed.”

Read the Complaint

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ACLU Files Lawsuit to Protect Firefighters' Speech Rights

July 10, 2002

DETROIT -- The American Civil Liberties Union of Michigan filed a lawsuit today in federal district court on behalf of a Frenchtown Charter Township firefighters’ union challenging the constitutionality of the township ordinance that prohibits firefighters from speaking to the news media about any “fire department matters” -- including matters of public concern.

Last year, Bob Gerlach, a Frenchtown fire fighter, along with other Union members, raised serious issues of public safety at a Township Board meeting. Gerlach expressed concern that staffing levels and incident command procedures contributed to four fatalities at a recent fire.  Instead of acting on the concerns of the fire fighters, the Board passed Ordinance No.158-2 to prohibit similar disclosures in the future.

“We filed this lawsuit because we can’t talk about things that the public should know about,” said Mr. Gerlach.  “If we do, we face being fined or even jailed.”

In December, 2001, the Michigan Department of Consumer & Industry Services General Industry Safety Division issued a report finding the Frenchtown Fire Department to be in violation of MIOSHA rules applicable to fire departments, including three violations characterized as “serious” for inadequate training, inadequate incident command system and inadequate organizational structure.  Mr. Gerlach was unable to respond to a reporter from the Monroe Evening News for fear of discipline and/or criminal prosecution.   

“The citizens of Frenchtown are being deprived of  necessary information and can’t be ensured that public officials are acting responsibly if there is retaliation against public employees who bring issues of public concern to light,” said David R. Radtke, ACLU cooperating attorney.

To date, members of the Frenchtown Fire Department have been unable to speak to the media about the MIOSHA violations or any other fire department matters of public concern for fear of discipline and/or criminal prosecution.

Firefighters are public servants with the same constitutional rights as all other citizens,” said Kary Moss, ALCU of Michigan Executive Director.  “Men and women who give so much to their community deserve far better from their government. We are confident the Ordinance will be found unconstitutional and that this gag order will be removed.”

Read the Complaint

DETROIT -- Three lawsuits filed by the American Civil Liberties Union of Michigan will be heard this Wednesday, December 11, in three different courts. Two of the cases involve free speech, while the third involves due process.

“It’s obviously a very busy time for the ACLU,” said Kary Moss, ACLU of Michigan Executive Director.  “I’m not sure whether the general public is aware that we fight for the rights of so many different kinds of people, on so many different fronts.”

After a Frenchtown firefighter, along with other Union members, raised serious issues of public safety at a Township Board meeting last year, the Frenchtown Township Board passed an ordinance making it a crime for a firefighter to speak to the media about any fire department matter. The firefighters had expressed concern that staffing levels and incident command procedures contributed to four fatalities at a recent fire.


The ACLU filed a federal case in Detroit on behalf of a Frenchtown Charter Township firefighters’ union and will be arguing on Wednesday that the firefighters have a constitutional right to speak out on matters of public concern.

The U.S. District Court in Ann Arbor will hear a lawsuit against the South Lyon Community Schools for suspending two students who wrote a newspaper entitled The First Amendment. The newspaper contained numerous short articles on a wide variety of topics, including an article criticizing adults for telling jokes about Arabs and Muslims, an article critical of teachers for keeping religion out of the school, an article critical of the football coach, and an article critical of the principal for threatening seniors with criminal charges for carrying out senior pranks. 

Although the students never actually distributed the paper, they were charged with “interfering with the operation of a school building.”  The students were also charged with violating a catchall provision of the Student Code of Conduct stating that corrective measures will be taken “should any student act in such a matter that is detrimental to himself.”  They were suspended for five days.

The lawsuit charges the school district with violating the First Amendment right to freedom of speech and freedom of the press. The suit also challenges the constitutionality of the school regulations controlling the distributions of materials at school as an “unlawful prior restraint” on free expression, as overly broad and vague, and for punishing speech based on its content.

The third ACLU case will be heard by the entire U.S. Court of Appeals for the Sixth Circuit in Cincinnati.

The case, Tesmer v. Granholm, will decide whether Michigan can deny an indigent person who has pleaded guilty to a crime the right to have an attorney assist with his or her appeal from the sentence that the judge imposes after the plea.  Since 1963, the United States Supreme Court has repeatedly held that the poor have the same right as the wealthy to the assistance of an attorney for a first appeal from any criminal conviction, and no State had attempted to take away that right.

In 1999, the Michigan Legislature passed a statute prohibiting the appointment of counsel in guilty plea cases except in limited circumstances. The statute has never taken effect because the federal district court in struck it down in 2000.  In July, a three judge panel reversed the district court ruling, but the entire Sixth Circuit agreed to rehear the case.  Oral argument on Wednesday will be before 12 judges.

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ACLU Busy in Court, From Free Speech to Due Process

December 10, 2002

DETROIT -- Three lawsuits filed by the American Civil Liberties Union of Michigan will be heard this Wednesday, December 11, in three different courts. Two of the cases involve free speech, while the third involves due process.

“It’s obviously a very busy time for the ACLU,” said Kary Moss, ACLU of Michigan Executive Director.  “I’m not sure whether the general public is aware that we fight for the rights of so many different kinds of people, on so many different fronts.”

After a Frenchtown firefighter, along with other Union members, raised serious issues of public safety at a Township Board meeting last year, the Frenchtown Township Board passed an ordinance making it a crime for a firefighter to speak to the media about any fire department matter. The firefighters had expressed concern that staffing levels and incident command procedures contributed to four fatalities at a recent fire.


The ACLU filed a federal case in Detroit on behalf of a Frenchtown Charter Township firefighters’ union and will be arguing on Wednesday that the firefighters have a constitutional right to speak out on matters of public concern.

The U.S. District Court in Ann Arbor will hear a lawsuit against the South Lyon Community Schools for suspending two students who wrote a newspaper entitled The First Amendment. The newspaper contained numerous short articles on a wide variety of topics, including an article criticizing adults for telling jokes about Arabs and Muslims, an article critical of teachers for keeping religion out of the school, an article critical of the football coach, and an article critical of the principal for threatening seniors with criminal charges for carrying out senior pranks. 

Although the students never actually distributed the paper, they were charged with “interfering with the operation of a school building.”  The students were also charged with violating a catchall provision of the Student Code of Conduct stating that corrective measures will be taken “should any student act in such a matter that is detrimental to himself.”  They were suspended for five days.

The lawsuit charges the school district with violating the First Amendment right to freedom of speech and freedom of the press. The suit also challenges the constitutionality of the school regulations controlling the distributions of materials at school as an “unlawful prior restraint” on free expression, as overly broad and vague, and for punishing speech based on its content.

The third ACLU case will be heard by the entire U.S. Court of Appeals for the Sixth Circuit in Cincinnati.

The case, Tesmer v. Granholm, will decide whether Michigan can deny an indigent person who has pleaded guilty to a crime the right to have an attorney assist with his or her appeal from the sentence that the judge imposes after the plea.  Since 1963, the United States Supreme Court has repeatedly held that the poor have the same right as the wealthy to the assistance of an attorney for a first appeal from any criminal conviction, and no State had attempted to take away that right.

In 1999, the Michigan Legislature passed a statute prohibiting the appointment of counsel in guilty plea cases except in limited circumstances. The statute has never taken effect because the federal district court in struck it down in 2000.  In July, a three judge panel reversed the district court ruling, but the entire Sixth Circuit agreed to rehear the case.  Oral argument on Wednesday will be before 12 judges.

DETROIT – The American Civil Liberties Union of Michigan is pleased to announce that Noel Saleh, a prominent and longtime immigration attorney in the Detroit area, joined the staff in January 2003 to expand outreach to the Arab community and coordinate legal work developed in response to new government efforts to control terrorism at the expense of civil liberties.

"Our workload has expanded significantly since John Ashcroft began leading the war on terrorism. Many governmental policies have had a particularly severe effect here in Michigan, where we have the largest Arab population in the country,” said Kary Moss, ACLU of Michigan Executive Director. Having Noel on staff will allow us to expand our work. We know that we haven’t seen the last of discriminatory activities that affect the immigrant population and the attack on civil liberties for all of us, citizens and non-citizens alike.” 

Saleh’s responsibilities will include community education and outreach as well as development of litigation (in coordination with the ACLU national office) to challenge some of the restrictive provisions of the USA PATRIOT Act and other assaults on civil liberties in the wake of 9/11. This one-year position is the result of several grants from the Norman Foundation, Joyce Foundation and Tides Foundation.

Saleh said, “I cannot imagine a more important organization to work for at this moment in time. The ACLU, and particularly the ACLU of Michigan, has been a leader in challenging John Ashcroft’s efforts to increase government surveillance, decrease the power of the courts, and create a separate system of “justice” for immigrants and non-citizens.”

Before joining the ACLU staff, Noel private practice specializing in immigration law. Recognized nationally as a leading immigrant advocate, Noel successfully challenged “secret evidence” and “special interest” cases. In addition, Noel brings with him a long history of community involvement. He is the Vice-President of ACCESS (the major Arab-American community organization); the Detroit American-Arab Anti-Discrimination Committee (ADC); Executive Board of the Fair Housing Center of Metropolitan Detroit and a member of the Michigan Advisory Committee to the U. S. Civil Rights Commission.

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ACLU Adds Staff Attorney to Coordinate Post 9/11 Activities

January 06, 2003

DETROIT – The American Civil Liberties Union of Michigan is pleased to announce that Noel Saleh, a prominent and longtime immigration attorney in the Detroit area, joined the staff in January 2003 to expand outreach to the Arab community and coordinate legal work developed in response to new government efforts to control terrorism at the expense of civil liberties.

"Our workload has expanded significantly since John Ashcroft began leading the war on terrorism. Many governmental policies have had a particularly severe effect here in Michigan, where we have the largest Arab population in the country,” said Kary Moss, ACLU of Michigan Executive Director. Having Noel on staff will allow us to expand our work. We know that we haven’t seen the last of discriminatory activities that affect the immigrant population and the attack on civil liberties for all of us, citizens and non-citizens alike.” 

Saleh’s responsibilities will include community education and outreach as well as development of litigation (in coordination with the ACLU national office) to challenge some of the restrictive provisions of the USA PATRIOT Act and other assaults on civil liberties in the wake of 9/11. This one-year position is the result of several grants from the Norman Foundation, Joyce Foundation and Tides Foundation.

Saleh said, “I cannot imagine a more important organization to work for at this moment in time. The ACLU, and particularly the ACLU of Michigan, has been a leader in challenging John Ashcroft’s efforts to increase government surveillance, decrease the power of the courts, and create a separate system of “justice” for immigrants and non-citizens.”

Before joining the ACLU staff, Noel private practice specializing in immigration law. Recognized nationally as a leading immigrant advocate, Noel successfully challenged “secret evidence” and “special interest” cases. In addition, Noel brings with him a long history of community involvement. He is the Vice-President of ACCESS (the major Arab-American community organization); the Detroit American-Arab Anti-Discrimination Committee (ADC); Executive Board of the Fair Housing Center of Metropolitan Detroit and a member of the Michigan Advisory Committee to the U. S. Civil Rights Commission.

DETROIT — Saying that diversity in higher education is a "compelling government interest," a federal judge today rejected an attempt to dismantle the University of Michigan's affirmative action program.

The ruling in Gratz v. Bollinger was hailed as a total victory by the NAACP Legal Defense and Educational Fund (LDF), American Civil Liberties Union (ACLU), the Mexican American Legal Defense Fund (MALDEF) and the Coalition for Affirmative Action's Preservation (CAP) based in Michigan, who together represented 17 African-American and Latino students as defendant-intervenors in the case.

The groups noted that today's ruling marks the first time in any affirmative action case that students of color have been granted permission to be heard, and marks the second time in as many weeks that a court has put its stamp of approval on affirmative action policies.

"This is a victory for all those concerned about our progress as a nation in incorporating African Americans and Latinos into the mainstream of opportunity," said Theodore M. Shaw, Associate Director-Counsel of LDF. "It is a forceful rejection of the broadside attack on affirmative action programs which, when properly structured, are a reasonable, necessary and legal means to make up for the effects of past and present racial discrimination," he added.

In his 52-page ruling, Federal District Court Judge Patrick Duggan said that "the University defendants have presented this Court with solid evidence regarding the educational benefits that flow from a racially and ethnically diverse student body."

Significantly, Judge Duggan cited a recent decision from the Ninth Circuit Court of Appeals that the University of Washington Law School acted legally when it considered an applicant's race in admissions decisions.

"Taken together, the decisions in Michigan and Washington show that the pendulum is swinging back in support of maintaining a diverse and integrated student body at our top universities," said Kary Moss, Executive Director of the ACLU of Michigan. "That support came not only from virtually every major education association, but from more than 20 Fortune 500 companies including Microsoft, 3M, Eastman Kodak, General Mills and Kellogg."

Patricia Mendoza, Regional Counsel, of MALDEF, added that "the court's decision is entirely consistent with our position that the University of Michigan has properly taken race into account as one of many factors it considers in selecting a diverse group of students from many qualified applicants."

The 17 students, who were granted the right to be represented in the lawsuit, have said that their chances of attending the University of Michigan would inevitably diminish without affirmative action. Race is one of many factors it considers in selecting a diverse group of students from many qualified applicants. Judge Duggan's ruling reinforces the principle followed for decades by hundreds of selective colleges and universities across the nation: a racially and ethnically diverse student body contributes to a quality education.

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Diversity in Education

DETROIT — Saying that diversity in higher education is a "compelling government interest," a federal judge today rejected an attempt to dismantle the University of Michigan's affirmative action program.

The ruling in Gratz v. Bollinger was hailed as a total victory by the NAACP Legal Defense and Educational Fund (LDF), American Civil Liberties Union (ACLU), the Mexican American Legal Defense Fund (MALDEF) and the Coalition for Affirmative Action's Preservation (CAP) based in Michigan, who together represented 17 African-American and Latino students as defendant-intervenors in the case.

The groups noted that today's ruling marks the first time in any affirmative action case that students of color have been granted permission to be heard, and marks the second time in as many weeks that a court has put its stamp of approval on affirmative action policies.

"This is a victory for all those concerned about our progress as a nation in incorporating African Americans and Latinos into the mainstream of opportunity," said Theodore M. Shaw, Associate Director-Counsel of LDF. "It is a forceful rejection of the broadside attack on affirmative action programs which, when properly structured, are a reasonable, necessary and legal means to make up for the effects of past and present racial discrimination," he added.

In his 52-page ruling, Federal District Court Judge Patrick Duggan said that "the University defendants have presented this Court with solid evidence regarding the educational benefits that flow from a racially and ethnically diverse student body."

Significantly, Judge Duggan cited a recent decision from the Ninth Circuit Court of Appeals that the University of Washington Law School acted legally when it considered an applicant's race in admissions decisions.

"Taken together, the decisions in Michigan and Washington show that the pendulum is swinging back in support of maintaining a diverse and integrated student body at our top universities," said Kary Moss, Executive Director of the ACLU of Michigan. "That support came not only from virtually every major education association, but from more than 20 Fortune 500 companies including Microsoft, 3M, Eastman Kodak, General Mills and Kellogg."

Patricia Mendoza, Regional Counsel, of MALDEF, added that "the court's decision is entirely consistent with our position that the University of Michigan has properly taken race into account as one of many factors it considers in selecting a diverse group of students from many qualified applicants."

The 17 students, who were granted the right to be represented in the lawsuit, have said that their chances of attending the University of Michigan would inevitably diminish without affirmative action. Race is one of many factors it considers in selecting a diverse group of students from many qualified applicants. Judge Duggan's ruling reinforces the principle followed for decades by hundreds of selective colleges and universities across the nation: a racially and ethnically diverse student body contributes to a quality education.

DETROIT — Acting on behalf of 21 young African-American men who were stopped by the police while riding their bikes, the American Civil Liberties Union of Michigan today joined in a racial profiling lawsuit against Eastpointe officials and police officers.

The ACLU has joined the case as co-counsel in the suit previously filed by Chuck Chomet of Kelman, Loria, Will, Harvey & Thompson. The case was originally filed in August 2000 on Fourth Amendment and Fourteenth Amendment claims, alleging a clear pattern indicating a practice of discrimination. 

"Racial profiling is especially insidious when it happens to children and it may stigmatize them for the rest of their lives," said Kary Moss, ACLU of Michigan Executive Director. "When some people think about racial profiling, it's usually about 'driving while black', but it can also affect children who aren't even old enough to have a license to drive." 

Police logs and reports in Eastpointe, a suburb of Detroit formerly known as East Detroit, have identified over 100 incidents between 1995 and 1998 in which African American youths, ages 11-18, were detained. In several of the incidents, the young men were searched in addition to being stopped and questioned. Some of the victims' bicycles were seized by the police and later sold at a police auction.

In response to reports of strong-armed robbery and larceny of bicycles, F.E. Deweese, then Eastpointe's Chief of Police, sent a memo to the city manager in February, 1996 saying that he had instructed his officers "to investigate any black youth riding through our subdivision." 

The ACLU recently began a racial justice project and now has legal staff to handle cases such as this, the first racial profiling lawsuit that it has filed. Additionally, the project will work with judges, lawyers, law enforcement agencies and the community about the problem of racial profiling.

Delphia Simpson, ACLU of Michigan Racial Justice Fellow said, "The practice of racial profiling is not only illegal and offensive, but if serious steps are not taken to eliminate it, the necessary trust between the community and the police will be eroded."

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ACLU Joins Racial Profiling Lawsuit

April 10, 2001

DETROIT — Acting on behalf of 21 young African-American men who were stopped by the police while riding their bikes, the American Civil Liberties Union of Michigan today joined in a racial profiling lawsuit against Eastpointe officials and police officers.

The ACLU has joined the case as co-counsel in the suit previously filed by Chuck Chomet of Kelman, Loria, Will, Harvey & Thompson. The case was originally filed in August 2000 on Fourth Amendment and Fourteenth Amendment claims, alleging a clear pattern indicating a practice of discrimination. 

"Racial profiling is especially insidious when it happens to children and it may stigmatize them for the rest of their lives," said Kary Moss, ACLU of Michigan Executive Director. "When some people think about racial profiling, it's usually about 'driving while black', but it can also affect children who aren't even old enough to have a license to drive." 

Police logs and reports in Eastpointe, a suburb of Detroit formerly known as East Detroit, have identified over 100 incidents between 1995 and 1998 in which African American youths, ages 11-18, were detained. In several of the incidents, the young men were searched in addition to being stopped and questioned. Some of the victims' bicycles were seized by the police and later sold at a police auction.

In response to reports of strong-armed robbery and larceny of bicycles, F.E. Deweese, then Eastpointe's Chief of Police, sent a memo to the city manager in February, 1996 saying that he had instructed his officers "to investigate any black youth riding through our subdivision." 

The ACLU recently began a racial justice project and now has legal staff to handle cases such as this, the first racial profiling lawsuit that it has filed. Additionally, the project will work with judges, lawyers, law enforcement agencies and the community about the problem of racial profiling.

Delphia Simpson, ACLU of Michigan Racial Justice Fellow said, "The practice of racial profiling is not only illegal and offensive, but if serious steps are not taken to eliminate it, the necessary trust between the community and the police will be eroded."

Detroit – In anticipation of next week’s Judiciary Committee agenda in the Michigan Senate, the American Civil Liberties Union of Michigan sent a letter today urging legislators to proceed cautiously as they begin the public hearings on the Anti-Terrorism Act.

“We all want to be safe, but the Legislature must resist the temptation to enact proposals in the mistaken belief that anything that may be called anti-terrorist will necessarily provide greater security,” said Kary Moss, ACLU of Michigan Executive Director.  

In coalition with other civil rights, community and labor groups, the ACLU has been in contact with the Attorney General’s office and several legislators in an effort to alter the language first seen in the working drafts of the legislation.  The purpose of these efforts was to prevent the same pitfalls seen in the U.S. Patriot Act passed by Congress in October. 

While more than 30 other bills will also be part of the legislative package, most raise no constitutional issues.  However, the ACLU is particularly concerned with Senate Bill 930 and House Bill 5495 which create a new crime of terrorism and  the potential for unintended consequences.  The definition is so broad that a public protestor in a demonstration that goes awry could be charged as a terrorist.  

“Creating an anti-terrorism law that could be used to arrest a protestor and threaten him or her with life in prison will have a serious chilling effect on the average citizen's decision to take part in any public protest,” Moss added.  “Any definition of terrorism that is enacted in this state should be limited to violent actions like those that occurred on September 11 without including actions that are not generally seen as terrorism.” 

The letter concludes, “Those who have been working on the legislation behind the scenes have worked slowly and deliberately; now, as the bills are examined by the public and our elected officials, we urge that the process of deliberation continue and be subject to open and public discussion.” 

The letter in its entirety:

January 24, 2002

The Honorable William Van Regenmorter
State Senator
P.O. Box 30014
Lansing, MI  48909-7536

Dear Senator Van Regenmorter:

It is our understanding that the legislature will soon take action on a number of bills that have been introduced in both the House and Senate in reaction to the September 11th attacks.  We understand that these bills represent the efforts of both Republicans and Democrats, Senators and Representatives, to enact laws to better deal with potential terrorist threats.  Like the laws passed shortly after September 11th at the federal level, several of these bills will attempt to define and establish punishments for terrorism. 

We need to ensure that actions by our government uphold the principles of a democratic society, accountable government and international law, and that all decisions are taken in a manner consistent with the Constitution. We can, as we have in the past, in times of war and of peace, reconcile the requirements of security with the demands of liberty. And, we should resist the temptation to enact proposals in the mistaken belief that anything that may be called anti-terrorist will necessarily provide greater security. 

Prior to the introduction of these bills, the ACLU and others expressed a number of concerns about draft versions of the main bills, Senate Bill 930 and House Bill 5495.  In particular, problems with the definition of terrorism and the potential for unintended consequences were raised.  Many of these concerns were reflected in an editorial in Detroit News (which I attach). 

Obviously, our first hope is that cooler heads will prevail and only those bills that are actually necessary to improve public safety will be enacted.  The bills (House Bill 5495 and Senate Bill 930) that create a new crime of terrorism are clearly not such bills.  Existing laws against murder, conspiracy, and assault (to name a few) could already be used to deal with any terrorist actions that occur in this state and the threat of life imprisonment is an unlikely deterrent for people who are willing to engage in suicide attacks.  

However, if a new crime of terrorism must be enacted, we urge you to pay particular care when attempting to define the crime. While Webster's defines terrorism as the "use of terror and violence to intimidate, subjugate, etc., especially as a political weapon or policy"  -- arriving at a constitutional legal definition has been difficult.  The United Nations has been trying to arrive at an internationally acceptable definition of terrorism for more than 60 years.  Cynics have often commented that one state's "terrorist" is another state's "freedom fighter" -- in this case the concern is that one prosecutor's "terrorist" could be someone else's "protester". 

In America, people have the right to attempt to influence or effect the conduct of government.  Unfortunately, sometimes those efforts can get out of hand -- struggles ensue, rocks are thrown, etc.  While such behavior is inappropriate and often illegal, existing criminal laws are more than sufficient to deal with such actions.  Unfortunately, the definition of terrorism in these bills, as introduced, is far too broad -- people who are simply protesting could find themselves accused (and possibly even convicted) of terrorism.  Creating an anti-terrorism law that could be used to arrest a protestor and threaten him or her with life in prison will have a serious chilling effect on the average citizen's decision to take part in any public protest. Any definition of terrorism that is enacted in this state should be limited to those violent actions like those that occurred on September 11 – without including actions that are not generally seen as terrorism. 

Those who have been working on the legislation behind the scenes have worked slowly and deliberately; now, as the bills are examined by the public and our elected officials, we urge that the process of deliberation continue and be subject to open and public discussion. 

Very truly yours, 

Kary L. Moss, Esq.
Executive Director  

William Flory, Esq.
Assistant Director for Legislative Affairs

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ACLU Warns Legislature to Proceed Cautiously

January 24, 2002

Detroit – In anticipation of next week’s Judiciary Committee agenda in the Michigan Senate, the American Civil Liberties Union of Michigan sent a letter today urging legislators to proceed cautiously as they begin the public hearings on the Anti-Terrorism Act.

“We all want to be safe, but the Legislature must resist the temptation to enact proposals in the mistaken belief that anything that may be called anti-terrorist will necessarily provide greater security,” said Kary Moss, ACLU of Michigan Executive Director.  

In coalition with other civil rights, community and labor groups, the ACLU has been in contact with the Attorney General’s office and several legislators in an effort to alter the language first seen in the working drafts of the legislation.  The purpose of these efforts was to prevent the same pitfalls seen in the U.S. Patriot Act passed by Congress in October. 

While more than 30 other bills will also be part of the legislative package, most raise no constitutional issues.  However, the ACLU is particularly concerned with Senate Bill 930 and House Bill 5495 which create a new crime of terrorism and  the potential for unintended consequences.  The definition is so broad that a public protestor in a demonstration that goes awry could be charged as a terrorist.  

“Creating an anti-terrorism law that could be used to arrest a protestor and threaten him or her with life in prison will have a serious chilling effect on the average citizen's decision to take part in any public protest,” Moss added.  “Any definition of terrorism that is enacted in this state should be limited to violent actions like those that occurred on September 11 without including actions that are not generally seen as terrorism.” 

The letter concludes, “Those who have been working on the legislation behind the scenes have worked slowly and deliberately; now, as the bills are examined by the public and our elected officials, we urge that the process of deliberation continue and be subject to open and public discussion.” 

The letter in its entirety:

January 24, 2002

The Honorable William Van Regenmorter
State Senator
P.O. Box 30014
Lansing, MI  48909-7536

Dear Senator Van Regenmorter:

It is our understanding that the legislature will soon take action on a number of bills that have been introduced in both the House and Senate in reaction to the September 11th attacks.  We understand that these bills represent the efforts of both Republicans and Democrats, Senators and Representatives, to enact laws to better deal with potential terrorist threats.  Like the laws passed shortly after September 11th at the federal level, several of these bills will attempt to define and establish punishments for terrorism. 

We need to ensure that actions by our government uphold the principles of a democratic society, accountable government and international law, and that all decisions are taken in a manner consistent with the Constitution. We can, as we have in the past, in times of war and of peace, reconcile the requirements of security with the demands of liberty. And, we should resist the temptation to enact proposals in the mistaken belief that anything that may be called anti-terrorist will necessarily provide greater security. 

Prior to the introduction of these bills, the ACLU and others expressed a number of concerns about draft versions of the main bills, Senate Bill 930 and House Bill 5495.  In particular, problems with the definition of terrorism and the potential for unintended consequences were raised.  Many of these concerns were reflected in an editorial in Detroit News (which I attach). 

Obviously, our first hope is that cooler heads will prevail and only those bills that are actually necessary to improve public safety will be enacted.  The bills (House Bill 5495 and Senate Bill 930) that create a new crime of terrorism are clearly not such bills.  Existing laws against murder, conspiracy, and assault (to name a few) could already be used to deal with any terrorist actions that occur in this state and the threat of life imprisonment is an unlikely deterrent for people who are willing to engage in suicide attacks.  

However, if a new crime of terrorism must be enacted, we urge you to pay particular care when attempting to define the crime. While Webster's defines terrorism as the "use of terror and violence to intimidate, subjugate, etc., especially as a political weapon or policy"  -- arriving at a constitutional legal definition has been difficult.  The United Nations has been trying to arrive at an internationally acceptable definition of terrorism for more than 60 years.  Cynics have often commented that one state's "terrorist" is another state's "freedom fighter" -- in this case the concern is that one prosecutor's "terrorist" could be someone else's "protester". 

In America, people have the right to attempt to influence or effect the conduct of government.  Unfortunately, sometimes those efforts can get out of hand -- struggles ensue, rocks are thrown, etc.  While such behavior is inappropriate and often illegal, existing criminal laws are more than sufficient to deal with such actions.  Unfortunately, the definition of terrorism in these bills, as introduced, is far too broad -- people who are simply protesting could find themselves accused (and possibly even convicted) of terrorism.  Creating an anti-terrorism law that could be used to arrest a protestor and threaten him or her with life in prison will have a serious chilling effect on the average citizen's decision to take part in any public protest. Any definition of terrorism that is enacted in this state should be limited to those violent actions like those that occurred on September 11 – without including actions that are not generally seen as terrorism. 

Those who have been working on the legislation behind the scenes have worked slowly and deliberately; now, as the bills are examined by the public and our elected officials, we urge that the process of deliberation continue and be subject to open and public discussion. 

Very truly yours, 

Kary L. Moss, Esq.
Executive Director  

William Flory, Esq.
Assistant Director for Legislative Affairs

DETROIT — Today the American Civil Liberties Union of Michigan sued the Ypsilanti Housing Commission (Commission) for evicting Aronica Warren from her apartment, which was managed by the Commission, after she reported an attack by her ex-boyfriend to the police.

“It’s a travesty when battered women are thrown out on the street because they are the victims of violence,” said Kary Moss, Executive Director of the ACLU of Michigan.  “These ‘zero tolerance’ polices have no compassion and discriminate against women who are by and large the victims of domestic violence.” 

After Ms. Warren reported the attack, which occurred on February 29, 2000, she received an eviction notice citing the lease which has a “one strike policy.”  That policy provides that the tenant “will be responsible for the household regardless of whether or not he or she was personally engaged in the prohibited drug or criminal action on the premises.” 

Pam Kisch, Executive Director of the Fair Housing Center of Washtenaw County, said: “We hope that with the filing of this lawsuit that this reprehensible policy that affects hundreds of women will be ended.  The Housing Commission has no place in re-victimizing victims of domestic violence.” 

The eviction action was later dismissed due to procedural errors. The lawsuit filed today alleges that the eviction violated Ms. Warren’s right to be free from sex discrimination under the Fair Housing Act, Due Process Clause of the United States Constitution, and Elliot-Larsen Civil Rights Act.  It asks that ‘one-strike’ policy be enjoined and the defendants prohibited from evicting tenants because they are victims of domestic violence. 

A similar action was filed by the ACLU Women’s Rights Project and NOW Legal Defense Education Fund in July 2001 in Oregon. Similar zero tolerance policies are used in California, Louisiana, Colorado and Massachusetts.  

Read the complaint

The ACLU of Michigan’s Cooperating Attorneys are Debra McCulloch and William Thacker of Dykema Gossett.

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ACLU Sues Ypsilanti Housing Commission for Evicting Victim of Domestic Violence

February 06, 2002

DETROIT — Today the American Civil Liberties Union of Michigan sued the Ypsilanti Housing Commission (Commission) for evicting Aronica Warren from her apartment, which was managed by the Commission, after she reported an attack by her ex-boyfriend to the police.

“It’s a travesty when battered women are thrown out on the street because they are the victims of violence,” said Kary Moss, Executive Director of the ACLU of Michigan.  “These ‘zero tolerance’ polices have no compassion and discriminate against women who are by and large the victims of domestic violence.” 

After Ms. Warren reported the attack, which occurred on February 29, 2000, she received an eviction notice citing the lease which has a “one strike policy.”  That policy provides that the tenant “will be responsible for the household regardless of whether or not he or she was personally engaged in the prohibited drug or criminal action on the premises.” 

Pam Kisch, Executive Director of the Fair Housing Center of Washtenaw County, said: “We hope that with the filing of this lawsuit that this reprehensible policy that affects hundreds of women will be ended.  The Housing Commission has no place in re-victimizing victims of domestic violence.” 

The eviction action was later dismissed due to procedural errors. The lawsuit filed today alleges that the eviction violated Ms. Warren’s right to be free from sex discrimination under the Fair Housing Act, Due Process Clause of the United States Constitution, and Elliot-Larsen Civil Rights Act.  It asks that ‘one-strike’ policy be enjoined and the defendants prohibited from evicting tenants because they are victims of domestic violence. 

A similar action was filed by the ACLU Women’s Rights Project and NOW Legal Defense Education Fund in July 2001 in Oregon. Similar zero tolerance policies are used in California, Louisiana, Colorado and Massachusetts.  

Read the complaint

The ACLU of Michigan’s Cooperating Attorneys are Debra McCulloch and William Thacker of Dykema Gossett.

The ACLU argues that the law is unconstitutionally vague and overbroad and therefore cannot be used to prosecute anyone. It is vague because it does not provide notice about what language might be considered "indecent" or "insulting" or "immoral." It is overbroad because much language that might be considered insulting, indecent or immoral such as derogatory comments about Osada bin Laden is speech protected by the First Amendment.

"If the First Amendment means anything, it means that the government cannot criminalize speech just because someone finds it insulting or offensive," said Michael J. Steinberg, legal director of the ACLU of Michigan. "The Taliban might support a law giving the police the power to throw people in jail for using ‘improper' language in front of women or children. However, such a law finds no support in the U.S. Constitution. If the law remains on the books, an officer could arrest a person for making an unpopular political statement."

The case arose when Timothy Boomer, who was canoeing in the Rifle River with friends during the summer of 1999, fell out of his canoe after the canoe hit a rock in the shallow part of the river. According to testimony at trial, Mr. Boomer then swore loud enough for a family in a nearby canoe to hear.

Although the trial judge agreed with the ACLU that Mr. Boomer's words were neither obscene nor "fighting words," the judge refused to dismiss the case on constitutional grounds. Rather, the judge instructed the jury that Mr. Boomer's guilt or innocence hinged on the manner in which Mr. Boomer used the word "fuck." If the word was used as an adjective or modifier to describe the river or Mr. Boomer's frustrating day, then it was speech protected by the First Amendment. However, if Mr. Boomer repeatedly shouted the word "fuck" in a manner that did not express a thought, the judge told the jury to find him guilty. The jury found Mr. Boomer guilty. His sentence was stayed pending the outcome of this appeal.

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Michigan Court of Appeals will Hear Appeal in People v. Timothy Boomer

March 05, 2002

The ACLU argues that the law is unconstitutionally vague and overbroad and therefore cannot be used to prosecute anyone. It is vague because it does not provide notice about what language might be considered "indecent" or "insulting" or "immoral." It is overbroad because much language that might be considered insulting, indecent or immoral such as derogatory comments about Osada bin Laden is speech protected by the First Amendment.

"If the First Amendment means anything, it means that the government cannot criminalize speech just because someone finds it insulting or offensive," said Michael J. Steinberg, legal director of the ACLU of Michigan. "The Taliban might support a law giving the police the power to throw people in jail for using ‘improper' language in front of women or children. However, such a law finds no support in the U.S. Constitution. If the law remains on the books, an officer could arrest a person for making an unpopular political statement."

The case arose when Timothy Boomer, who was canoeing in the Rifle River with friends during the summer of 1999, fell out of his canoe after the canoe hit a rock in the shallow part of the river. According to testimony at trial, Mr. Boomer then swore loud enough for a family in a nearby canoe to hear.

Although the trial judge agreed with the ACLU that Mr. Boomer's words were neither obscene nor "fighting words," the judge refused to dismiss the case on constitutional grounds. Rather, the judge instructed the jury that Mr. Boomer's guilt or innocence hinged on the manner in which Mr. Boomer used the word "fuck." If the word was used as an adjective or modifier to describe the river or Mr. Boomer's frustrating day, then it was speech protected by the First Amendment. However, if Mr. Boomer repeatedly shouted the word "fuck" in a manner that did not express a thought, the judge told the jury to find him guilty. The jury found Mr. Boomer guilty. His sentence was stayed pending the outcome of this appeal.

As the nation tries to find the best ways to improve airport security, it is crucial that we resist grabbing onto strategies that only create a sense of false security but not real security. Racial profiling is a key example.

In a widely reported incident shortly after the Sept. 11 attacks for which it later apologized to the ACLU, Northwest Airlines allowed passengers to persuade airline personnel to remove four men of Middle Eastern descent from a flight. 

This past week, the ACLU filed a lawsuit on behalf of a Muslim woman at O'Hare International Airport who was singled out and searched because she was wearing traditional Muslim head covering. Recently, a Secret Service agent was removed from a plane because of his ethnicity. 

These incidents raise troubling legal and moral questions about how far we are willing to go to increase airport safety. Effective profiling at airports should rest on the behavior of passengers, including the purchasing of one-way tickets, payment methods, date of purchase and other actions, not simply on race and ethnicity. 

Many now feel it is acceptable to include a person's place of origin, given that we know people from certain Middle Eastern countries are determined to commit violence in this country. 

For those who argue that it is better to be safe than sorry, it is important to recognize that racial profiling in general has been shown to be very ineffective. Look, for example, at the numbers of people of Middle Eastern descent in this country -- more than 6 million people have some connection by descent or religion with Arabs or Islam. But most of the Muslims in the world are not Arabic. So, what exactly are we looking for if we profile Arabs or Muslims? Last name? Skin color? Dress? Men only?

What about those who do not fit the profile but may intend to commit terrorist acts as has been reported as happening several times in the last months. Focusing law enforcement scrutiny in one direction will divert resources from people who may otherwise trigger attention.

As University of Toledo Law School Professor David Harris has pointed out, when the federal Drug Enforcement Administration used racial profiling against African Americans, Latinos and other minorities in the 1980s, the success rates of searches that uncovered evidence of crimes were lower for minorities than for whites.

There are concrete steps to improve airport security at no cost to civil liberties. It is imperative that greater oversight be placed on those companies that hire airport security personnel. Argenbright Holdings, Ltd., the nation's largest provider of airport security services, has admitted it violated terms of probation that had been part of its 2000 conviction for falsifying records, and has continued to hire and employ people with criminal backgrounds. Low wages have exacerbated the problem of attracting skilled people to these jobs. The airport security bill, which mandates hiring 28,000 federal employees to screen passengers and baggage, still provides ample room for private companies to continue this status quo.

We support many additional security measures with proven effectiveness, such as increased screening of and training for airport security personnel, strict control of secured areas of airports and luggage matching of all passengers. We also support using biometric identification techniques (such as iris scans or digital fingerprints) to identify and authenticate airport personnel working in secured areas of airports.

The United States serves as a model of freedom. Individuals are free to practice their respective religions, free to speak their minds and free to travel. People also have a right to expect to be treated equally regardless of one's color, religion or nationality. Let's not travel down the road that panders to prejudice and fear; let's focus on a common goal that protects security and champions freedom.

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Should Airports Engage in Terrorist Profiling?

March 08, 2002

As the nation tries to find the best ways to improve airport security, it is crucial that we resist grabbing onto strategies that only create a sense of false security but not real security. Racial profiling is a key example.

In a widely reported incident shortly after the Sept. 11 attacks for which it later apologized to the ACLU, Northwest Airlines allowed passengers to persuade airline personnel to remove four men of Middle Eastern descent from a flight. 

This past week, the ACLU filed a lawsuit on behalf of a Muslim woman at O'Hare International Airport who was singled out and searched because she was wearing traditional Muslim head covering. Recently, a Secret Service agent was removed from a plane because of his ethnicity. 

These incidents raise troubling legal and moral questions about how far we are willing to go to increase airport safety. Effective profiling at airports should rest on the behavior of passengers, including the purchasing of one-way tickets, payment methods, date of purchase and other actions, not simply on race and ethnicity. 

Many now feel it is acceptable to include a person's place of origin, given that we know people from certain Middle Eastern countries are determined to commit violence in this country. 

For those who argue that it is better to be safe than sorry, it is important to recognize that racial profiling in general has been shown to be very ineffective. Look, for example, at the numbers of people of Middle Eastern descent in this country -- more than 6 million people have some connection by descent or religion with Arabs or Islam. But most of the Muslims in the world are not Arabic. So, what exactly are we looking for if we profile Arabs or Muslims? Last name? Skin color? Dress? Men only?

What about those who do not fit the profile but may intend to commit terrorist acts as has been reported as happening several times in the last months. Focusing law enforcement scrutiny in one direction will divert resources from people who may otherwise trigger attention.

As University of Toledo Law School Professor David Harris has pointed out, when the federal Drug Enforcement Administration used racial profiling against African Americans, Latinos and other minorities in the 1980s, the success rates of searches that uncovered evidence of crimes were lower for minorities than for whites.

There are concrete steps to improve airport security at no cost to civil liberties. It is imperative that greater oversight be placed on those companies that hire airport security personnel. Argenbright Holdings, Ltd., the nation's largest provider of airport security services, has admitted it violated terms of probation that had been part of its 2000 conviction for falsifying records, and has continued to hire and employ people with criminal backgrounds. Low wages have exacerbated the problem of attracting skilled people to these jobs. The airport security bill, which mandates hiring 28,000 federal employees to screen passengers and baggage, still provides ample room for private companies to continue this status quo.

We support many additional security measures with proven effectiveness, such as increased screening of and training for airport security personnel, strict control of secured areas of airports and luggage matching of all passengers. We also support using biometric identification techniques (such as iris scans or digital fingerprints) to identify and authenticate airport personnel working in secured areas of airports.

The United States serves as a model of freedom. Individuals are free to practice their respective religions, free to speak their minds and free to travel. People also have a right to expect to be treated equally regardless of one's color, religion or nationality. Let's not travel down the road that panders to prejudice and fear; let's focus on a common goal that protects security and champions freedom.

DETROIT -- The Michigan Court of Appeals ruled today that the law used to convict Timothy Boomer, the “cussing canoeist”, was vague, failed to provide fair notice of what conduct is prohibited and impinges on First Amendment freedoms. The decision means that the conviction has been reversed, according to the American Civil Liberties Union of Michigan who defended Mr. Boomer.

Mr. Boomer was convicted in August, 1998 for yelling a stream of profanities in earshot of a woman and her two children after he fell out of his canoe on the Rifle River.  The 1897 law that he allegedly violated prohibited using indecent, immoral, vulgar or insulting language in the presence or hearing of women or children. 

“We knew all along that this law was unconstitutional, but we were willing to take it further because we were confident that the appeals court would rule this way in the end,” said Kary Moss, ACLU of Michigan executive director.  “Mr. Boomer should not have been charged in the first place and I hope that he can now put this behind him.”

Justice William B. Murphy writing for the Court said, “Allowing a prosecution where one utters ‘insulting’ language could possibly subject a vast percentage of the populace to a misdemeanor conviction.” He further added, “…we find it unquestionable that MCL 750.337, as drafted, reaches constitutionally protected speech, and it operates to inhibit the exercise of First Amendment rights.”

Michael J. Steinberg, ACLU of Michigan legal director said, “This decision reaffirms the longstanding principle of the rights of free speech.  The government cannot act as speech police and prosecute a citizen just because someone is offended.”

Also representing Mr. Boomer in the district court and on his first appeal to the circuit court was attorney William Street of Saginaw.  Cori Beckwith and Paul Denenfeld acted as cooperating attorneys on the appeal to the Michigan Court of Appeals.

Read the decision

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"Cussing Canoeist" Conviction Reversed

April 01, 2002

DETROIT -- The Michigan Court of Appeals ruled today that the law used to convict Timothy Boomer, the “cussing canoeist”, was vague, failed to provide fair notice of what conduct is prohibited and impinges on First Amendment freedoms. The decision means that the conviction has been reversed, according to the American Civil Liberties Union of Michigan who defended Mr. Boomer.

Mr. Boomer was convicted in August, 1998 for yelling a stream of profanities in earshot of a woman and her two children after he fell out of his canoe on the Rifle River.  The 1897 law that he allegedly violated prohibited using indecent, immoral, vulgar or insulting language in the presence or hearing of women or children. 

“We knew all along that this law was unconstitutional, but we were willing to take it further because we were confident that the appeals court would rule this way in the end,” said Kary Moss, ACLU of Michigan executive director.  “Mr. Boomer should not have been charged in the first place and I hope that he can now put this behind him.”

Justice William B. Murphy writing for the Court said, “Allowing a prosecution where one utters ‘insulting’ language could possibly subject a vast percentage of the populace to a misdemeanor conviction.” He further added, “…we find it unquestionable that MCL 750.337, as drafted, reaches constitutionally protected speech, and it operates to inhibit the exercise of First Amendment rights.”

Michael J. Steinberg, ACLU of Michigan legal director said, “This decision reaffirms the longstanding principle of the rights of free speech.  The government cannot act as speech police and prosecute a citizen just because someone is offended.”

Also representing Mr. Boomer in the district court and on his first appeal to the circuit court was attorney William Street of Saginaw.  Cori Beckwith and Paul Denenfeld acted as cooperating attorneys on the appeal to the Michigan Court of Appeals.

Read the decision

DETROIT – Freedom of speech and freedom of the press won out when a federal district judge ruled late today that it is unconstitutional to block public access to immigration hearings. The decision ensures that legal proceedings of detainees around the nation will not be conducted in secret unless there is a particularly pressing need for secrecy in a given case, according to the American Civil Liberties Union.

In her opinion, Judge Nancy G. Edmunds wrote, “Openness is necessary for the public to maintain confidence in the value and soundness of the Governments actions, as secrecy only breeds suspicion as to why the Government is proceeding against Haddad and aliens like him.”

“Especially with the large Arab community in the Detroit area this victory is even more important,” said Kary Moss, ACLU of Michigan Executive Director.   “It’s crucial that hearings not be conducted under a veil of secrecy.”

The decision today was important for reasons beyond the issue of secrecy.  Lee Gelernt, ACLU Immigrants’ Rights Project staff counsel, who argued the case before the Court said, “The Court properly rejected the Justice Department's contention that the Judiciary should essentially look the other way when it comes to the government's September 11 policies.” 

The lawsuit filed by the national and state offices of the ACLU against U.S. Attorney General John Ashcroft was on behalf of Representative John Conyers, Jr., the Detroit News, and the Metro Times, an alternative weekly after the public and the press were turned away from the deportation hearings in the case of Rabih Haddad, a Muslim community leader from Ann Arbor who co-founded an Islamic charity suspected of supporting terrorist activities.  Other defendants named in the suit are Michael Creppy, Chief Immigration Judge of the United States and Elizabeth Hacker, United States Immigration Judge. 

Congressman John Conyers, Jr. was elated by the judge's ruling. "This decision is a triumph for American democracy.  By upholding the principle of openness in judicial proceedings, Judge Edmunds has affirmed a basic tenet of our judicial process and struck a blow against the Bush Administration's ill-conceived policy of holding proceedings behind closed doors."

The case is Detroit News, Inc., et al v. Ashcroft et al., filed in U.S. District Court in the Eastern District of Michigan, Southern Division.  At issue is a policy set forth in a September 21, 2001 memo from Chief Immigration Judge Michael Creppy to all immigration judges requiring the closure of all proceedings to the public and the press, when directed by the Justice Department.  That policy was apparently invoked to close all deportation proceedings in Mr. Haddad’s case.

Mr. Haddad’s next deportation hearing is scheduled for April 10.  It is unknown at this time whether the Government will appeal this decision.

Read the legal complaint.

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ACLU Victory Will Open Immigration Proceedings

April 04, 2002

DETROIT – Freedom of speech and freedom of the press won out when a federal district judge ruled late today that it is unconstitutional to block public access to immigration hearings. The decision ensures that legal proceedings of detainees around the nation will not be conducted in secret unless there is a particularly pressing need for secrecy in a given case, according to the American Civil Liberties Union.

In her opinion, Judge Nancy G. Edmunds wrote, “Openness is necessary for the public to maintain confidence in the value and soundness of the Governments actions, as secrecy only breeds suspicion as to why the Government is proceeding against Haddad and aliens like him.”

“Especially with the large Arab community in the Detroit area this victory is even more important,” said Kary Moss, ACLU of Michigan Executive Director.   “It’s crucial that hearings not be conducted under a veil of secrecy.”

The decision today was important for reasons beyond the issue of secrecy.  Lee Gelernt, ACLU Immigrants’ Rights Project staff counsel, who argued the case before the Court said, “The Court properly rejected the Justice Department's contention that the Judiciary should essentially look the other way when it comes to the government's September 11 policies.” 

The lawsuit filed by the national and state offices of the ACLU against U.S. Attorney General John Ashcroft was on behalf of Representative John Conyers, Jr., the Detroit News, and the Metro Times, an alternative weekly after the public and the press were turned away from the deportation hearings in the case of Rabih Haddad, a Muslim community leader from Ann Arbor who co-founded an Islamic charity suspected of supporting terrorist activities.  Other defendants named in the suit are Michael Creppy, Chief Immigration Judge of the United States and Elizabeth Hacker, United States Immigration Judge. 

Congressman John Conyers, Jr. was elated by the judge's ruling. "This decision is a triumph for American democracy.  By upholding the principle of openness in judicial proceedings, Judge Edmunds has affirmed a basic tenet of our judicial process and struck a blow against the Bush Administration's ill-conceived policy of holding proceedings behind closed doors."

The case is Detroit News, Inc., et al v. Ashcroft et al., filed in U.S. District Court in the Eastern District of Michigan, Southern Division.  At issue is a policy set forth in a September 21, 2001 memo from Chief Immigration Judge Michael Creppy to all immigration judges requiring the closure of all proceedings to the public and the press, when directed by the Justice Department.  That policy was apparently invoked to close all deportation proceedings in Mr. Haddad’s case.

Mr. Haddad’s next deportation hearing is scheduled for April 10.  It is unknown at this time whether the Government will appeal this decision.

Read the legal complaint.

In a searing opinion today, the Sixth Circuit Court of Appeals upheld the District Court ruling that restrictions on prison visitation imposed in 1995 violated prisoners’ rights on several grounds, including freedom to associate, cruel and unusual punishment and due process of the law. The American Civil Liberties Union of Michigan, who filed an amicus brief in the lawsuit, hailed the Court of Appeals decision as justice at its best.

“The Court makes clear that the Michigan Department of Corrections’ regulations fall far below the ‘minimum standards of decency’ that every person in our country is entitled to,” said Kary Moss, ACLU of Michigan executive director, “This ruling has implications for prisoners in every state.   The decision clearly and explicitly recognizes that prisoners retain some rights, even when they are behind prison walls.” 

The MDOC’s 1995 regulations banned visits from prisoners’ minor brothers, sisters, nieces and nephews; banned all visits by prisoners’ children when parental rights had been terminated, even when the termination was voluntarily surrendered in the child’s best interest; banned all visits by former prisoners who are not immediate family, even when the former prisoner has been rehabilitated; required that visiting children be accompanied by a parent or legal guardian; and permanently banned visitors, apart from attorneys and clergy, for prisoners who twice violated the department’s drug abuse policies.

The department claimed that the restrictions were needed “to reduce the number of visitors to manageable levels, to stop smuggling, and to protect children from exposure to the prison environment,” according to the opinion.

The Court found that the MDOC was unable to provide definitive evidence to support any of the restrictions.  In fact, the Court determined that the regulations were an exaggerated response to perceived problems where far less severe solutions were available.  They went further by stating that the regulations were applied in a capricious manner, without reviewable standards, harsh, cruel, arbitrary, harmful and applied where there is no reasonable relation between the ban and a legitimate penological interest.  “It isn’t good for either prisoners or prison officials if inmates are cut off from their lifelines.  These regulations can only prove to be counterproductive and interfered with the prisoners ability to adjust when returning to the community,”  Moss added.  “Thankfully, the Court recognized that restricting visitation like this would do more harm than good.”

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ACLU Hails Prisoner Rights Decision-Sixth Circuit Lambastes Michigan Department

In a searing opinion today, the Sixth Circuit Court of Appeals upheld the District Court ruling that restrictions on prison visitation imposed in 1995 violated prisoners’ rights on several grounds, including freedom to associate, cruel and unusual punishment and due process of the law. The American Civil Liberties Union of Michigan, who filed an amicus brief in the lawsuit, hailed the Court of Appeals decision as justice at its best.

“The Court makes clear that the Michigan Department of Corrections’ regulations fall far below the ‘minimum standards of decency’ that every person in our country is entitled to,” said Kary Moss, ACLU of Michigan executive director, “This ruling has implications for prisoners in every state.   The decision clearly and explicitly recognizes that prisoners retain some rights, even when they are behind prison walls.” 

The MDOC’s 1995 regulations banned visits from prisoners’ minor brothers, sisters, nieces and nephews; banned all visits by prisoners’ children when parental rights had been terminated, even when the termination was voluntarily surrendered in the child’s best interest; banned all visits by former prisoners who are not immediate family, even when the former prisoner has been rehabilitated; required that visiting children be accompanied by a parent or legal guardian; and permanently banned visitors, apart from attorneys and clergy, for prisoners who twice violated the department’s drug abuse policies.

The department claimed that the restrictions were needed “to reduce the number of visitors to manageable levels, to stop smuggling, and to protect children from exposure to the prison environment,” according to the opinion.

The Court found that the MDOC was unable to provide definitive evidence to support any of the restrictions.  In fact, the Court determined that the regulations were an exaggerated response to perceived problems where far less severe solutions were available.  They went further by stating that the regulations were applied in a capricious manner, without reviewable standards, harsh, cruel, arbitrary, harmful and applied where there is no reasonable relation between the ban and a legitimate penological interest.  “It isn’t good for either prisoners or prison officials if inmates are cut off from their lifelines.  These regulations can only prove to be counterproductive and interfered with the prisoners ability to adjust when returning to the community,”  Moss added.  “Thankfully, the Court recognized that restricting visitation like this would do more harm than good.”

April 10, 2002 - Press Release

The transcripts to prior immigration hearings regarding Rabih Haddad remain out of the public’s reach, at least for the time being. The Sixth Circuit Court of Appeals ruled today that the portion of the district court’s order requiring the Government to turn over the documents is temporarily stayed pending further order of the Court of Appeals.

"I wouldn’t read too much in to this,” said Kary Moss, ACLU of Michigan executive director.  “The Sixth Circuit is attempting to preserve the status quo as they consider it and they are rightfully taking their time to decide this case in a deliberate and thorough manner.”

 

The Court will hear the merits of the Government’s appeal on an expedited schedule.  Supplemental memos regarding the motion to stay must be delivered to the Court by April 15; the government’s brief is due by April 22; the ACLU’s brief on behalf of the Detroit News, the Metrotimes, and Congressman John Conyer’s Jr. is due by May 2, and the reply brief is due by May 7.

As a result of this development today, Mr. Haddad’s next deportation hearing, rescheduled for April 24, is likely to be moved again to a later date.

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Transcripts of Haddad Hearings Remain Out of Public's Reach

April 10, 2002 - Press Release

The transcripts to prior immigration hearings regarding Rabih Haddad remain out of the public’s reach, at least for the time being. The Sixth Circuit Court of Appeals ruled today that the portion of the district court’s order requiring the Government to turn over the documents is temporarily stayed pending further order of the Court of Appeals.

"I wouldn’t read too much in to this,” said Kary Moss, ACLU of Michigan executive director.  “The Sixth Circuit is attempting to preserve the status quo as they consider it and they are rightfully taking their time to decide this case in a deliberate and thorough manner.”

 

The Court will hear the merits of the Government’s appeal on an expedited schedule.  Supplemental memos regarding the motion to stay must be delivered to the Court by April 15; the government’s brief is due by April 22; the ACLU’s brief on behalf of the Detroit News, the Metrotimes, and Congressman John Conyer’s Jr. is due by May 2, and the reply brief is due by May 7.

As a result of this development today, Mr. Haddad’s next deportation hearing, rescheduled for April 24, is likely to be moved again to a later date.

Representing Michigan prisoners, the American Civil Liberties Union’s National Prison Project filed objections to MDOC’s legal mail policy that was revised shortly after the Anthrax threats that followed the attacks of September 11, 2001.  

The Michigan DOC is entitled to take reasonable security precautions in light of the recent terrorist attacks and Anthrax threats through the mail, but a wholesale disregard for “the oldest of the privileges for confidential communication known to the common law” is unacceptable,” said Elizabeth Alexander, Director of the ACLU National Prison Project.  

Earlier this year, U.S. District Court Judge Richard Alan Enslen ordered the MDOC to institute a new policy after the agency was found to be in violation of two court orders that prohibit the reading of prisoners’ legal mail, MDOC staff continued to open and read prisoners’ privileged legal correspondence outside of the prison facility and outside the presence of prisoners.  (Hadix v. Johnson and Knop v. Johnson) 

"This is one more illustration that we don’t have to sacrifice our constitutional rights to ensure safety in a post 9-11 world," said Kary Moss, Michigan ACLU executive director.  "As the judge recognized, the government can guard against the possibility of anthrax in prison mail without reading confidential letters between inmates and their attorneys." 

In his court order, the judge wrote,  “Neither the Anthrax threats nor the other evidence offered by Defendants is sufficient to justify reading of legal correspondence since contraband such as Anthrax could be discovered by inspection not involving reading.  Furthermore, the Court reiterates that the First Amendment right to access to the courts guarantees confidential relations between attorney and client against decisions by prison administrators to read such correspondence when those intrusions are unsupported by probable cause.” 

The new DOC policy also requires staff to log all legal mail opened outside of the presence of the addressee.  Log entries indicate the date the mail was received, when it was inspected and processed, the name of the prisoner to whom the mail was sent and the name of the sender.  The log also notes whether any physical contraband was confiscated and, if so, what was confiscated. 

The new policy protecting the attorney-client privilege is an important victory for its prisoners and sets a meaningful precedent for prisoners' rights nationwide.

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Judge Orders Prison Staff to Stop Reading Mail Between Prisoners and Lawyers

Representing Michigan prisoners, the American Civil Liberties Union’s National Prison Project filed objections to MDOC’s legal mail policy that was revised shortly after the Anthrax threats that followed the attacks of September 11, 2001.  

The Michigan DOC is entitled to take reasonable security precautions in light of the recent terrorist attacks and Anthrax threats through the mail, but a wholesale disregard for “the oldest of the privileges for confidential communication known to the common law” is unacceptable,” said Elizabeth Alexander, Director of the ACLU National Prison Project.  

Earlier this year, U.S. District Court Judge Richard Alan Enslen ordered the MDOC to institute a new policy after the agency was found to be in violation of two court orders that prohibit the reading of prisoners’ legal mail, MDOC staff continued to open and read prisoners’ privileged legal correspondence outside of the prison facility and outside the presence of prisoners.  (Hadix v. Johnson and Knop v. Johnson) 

"This is one more illustration that we don’t have to sacrifice our constitutional rights to ensure safety in a post 9-11 world," said Kary Moss, Michigan ACLU executive director.  "As the judge recognized, the government can guard against the possibility of anthrax in prison mail without reading confidential letters between inmates and their attorneys." 

In his court order, the judge wrote,  “Neither the Anthrax threats nor the other evidence offered by Defendants is sufficient to justify reading of legal correspondence since contraband such as Anthrax could be discovered by inspection not involving reading.  Furthermore, the Court reiterates that the First Amendment right to access to the courts guarantees confidential relations between attorney and client against decisions by prison administrators to read such correspondence when those intrusions are unsupported by probable cause.” 

The new DOC policy also requires staff to log all legal mail opened outside of the presence of the addressee.  Log entries indicate the date the mail was received, when it was inspected and processed, the name of the prisoner to whom the mail was sent and the name of the sender.  The log also notes whether any physical contraband was confiscated and, if so, what was confiscated. 

The new policy protecting the attorney-client privilege is an important victory for its prisoners and sets a meaningful precedent for prisoners' rights nationwide.

DETROIT— Continuing its strong advocacy of online free speech, the American Civil Liberties Union of Michigan along with the ACLU National office filed a friend-of-the-court brief in the U.S. Court of Appeals opposing the Taubman Company’s attempt to silence a critic of the corporation.

The case involves a man who was ordered to shut down a website called www.taubmansucks.com.  It is the first appellate case in the country to address whether a “cybergripe” site may adopt a domain name that includes the name of a corporation and a disparaging word. 

 "The ACLU has become increasingly concerned about the growing tendency of large corporations and governments to use their powers to suppress legitimate protected speech and intimidate critics in the online context," said Ann Beeson, litigation director of the ACLU's new Technology and Liberty Program. 

Ironically, the creator of the website, Henry Mishkoff, started out as a fan of the Taubman Company.  He created a website to support a new mall built by the corporation called The Shops at Willow Bend opening near his home in Plano, Texas. The developer did not appreciate the site and successfully sued him in Michigan for trademark infringement, both for his original fan site and for his subsequent "gripe" site, www.taubmansucks.  Mishkoff established the sites to voice his disapproval of the company's abusive litigation tactics. 

The ACLU argues in the brief that the lower court’s order to shut down the gripe cite violated the First Amendment as an unlawful restraint of free speech.  The ACLU also argues that there was no trademark infringement because there is no conceivable way that Mishkoff's gripe sites could be perceived as commercial or sponsored by the Taubman group. "The only content on his site is criticism of Taubman and legal documents about the current dispute," the ACLU brief notes. 

"Consumer criticism and commentary has long been recognized as core protected speech," said Kary Moss, Executive Director of the ACLU of Michigan.  "Consumers don’t forfeit their right to free speech simply because they post their criticism of corporations online.”  

The ACLU has defended against attempts to restrict free speech in cyberspace since the Internet’s inception both at the national level and in Michigan.  In 2001, in a case filed by the ACLU of Michigan, a federal just struck down the Michigan Internet censorship law as unconstitutional in the case Cyberspace Communications v. Engler

Read the Taubman Company brief.

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ACLU Seeks to Halt Internet Censorship by the Taubman Company

DETROIT— Continuing its strong advocacy of online free speech, the American Civil Liberties Union of Michigan along with the ACLU National office filed a friend-of-the-court brief in the U.S. Court of Appeals opposing the Taubman Company’s attempt to silence a critic of the corporation.

The case involves a man who was ordered to shut down a website called www.taubmansucks.com.  It is the first appellate case in the country to address whether a “cybergripe” site may adopt a domain name that includes the name of a corporation and a disparaging word. 

 "The ACLU has become increasingly concerned about the growing tendency of large corporations and governments to use their powers to suppress legitimate protected speech and intimidate critics in the online context," said Ann Beeson, litigation director of the ACLU's new Technology and Liberty Program. 

Ironically, the creator of the website, Henry Mishkoff, started out as a fan of the Taubman Company.  He created a website to support a new mall built by the corporation called The Shops at Willow Bend opening near his home in Plano, Texas. The developer did not appreciate the site and successfully sued him in Michigan for trademark infringement, both for his original fan site and for his subsequent "gripe" site, www.taubmansucks.  Mishkoff established the sites to voice his disapproval of the company's abusive litigation tactics. 

The ACLU argues in the brief that the lower court’s order to shut down the gripe cite violated the First Amendment as an unlawful restraint of free speech.  The ACLU also argues that there was no trademark infringement because there is no conceivable way that Mishkoff's gripe sites could be perceived as commercial or sponsored by the Taubman group. "The only content on his site is criticism of Taubman and legal documents about the current dispute," the ACLU brief notes. 

"Consumer criticism and commentary has long been recognized as core protected speech," said Kary Moss, Executive Director of the ACLU of Michigan.  "Consumers don’t forfeit their right to free speech simply because they post their criticism of corporations online.”  

The ACLU has defended against attempts to restrict free speech in cyberspace since the Internet’s inception both at the national level and in Michigan.  In 2001, in a case filed by the ACLU of Michigan, a federal just struck down the Michigan Internet censorship law as unconstitutional in the case Cyberspace Communications v. Engler

Read the Taubman Company brief.

Today the ACLU of Michigan, in a letter to district court judges across the state, requested that steps be taken to free prisoners who were either convicted on or who pled guilty to misdemeanor charges and not afforded or waived right to counsel prior to the sentencing.

The request comes two days after the United States Supreme Court ruled that Alabama courts violated a man’s Sixth Amendment rights when it imposed a suspended jail sentence on him without providing him with counsel or giving him the opportunity to waive his right to counsel.

In the letter, ACLU Executive Director Kary Moss stated: “Since we believe hundreds of Michigan misdemeanants are currently serving jail sentences that have become null and void as a result of Shelton, we are writing you, along with every other district judge in Michigan, to request that you immediately identify and order the release of all such persons you have committed to jail.”

The Shelton decision unquestionably invalidates a practice that was common in Alabama and several other states, including Michigan. See People v. Reichenbach, 459 Mich 109, 120-122 (1998). Governmental authorities responsible for continuing the incarceration of anyone who has been held under these circumstances could find themselves in a civil lawsuit and/or claims for injunctive relief.

The Supreme Court's ruling is unambiguous: "Deprived of counsel when tried, convicted and sentenced, and unable to challenge the original judgment at a subsequent probation revocation hearing, a defendant in Shelton's circumstances faces incarceration on a conviction that has never been subjected to `the crucible of meaningful adversarial testing.' The Sixth Amendment does not countenance this result." Shelton, slip op. at 5.

The Supreme Court makes clear that any portion of such a person's sentence that could result in future imprisonment is invalid per se and must be vacated, but the conviction itself remains valid.

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High Court Ruling Could Free Hundreds of Michigan Prisoners

May 22, 2002

Today the ACLU of Michigan, in a letter to district court judges across the state, requested that steps be taken to free prisoners who were either convicted on or who pled guilty to misdemeanor charges and not afforded or waived right to counsel prior to the sentencing.

The request comes two days after the United States Supreme Court ruled that Alabama courts violated a man’s Sixth Amendment rights when it imposed a suspended jail sentence on him without providing him with counsel or giving him the opportunity to waive his right to counsel.

In the letter, ACLU Executive Director Kary Moss stated: “Since we believe hundreds of Michigan misdemeanants are currently serving jail sentences that have become null and void as a result of Shelton, we are writing you, along with every other district judge in Michigan, to request that you immediately identify and order the release of all such persons you have committed to jail.”

The Shelton decision unquestionably invalidates a practice that was common in Alabama and several other states, including Michigan. See People v. Reichenbach, 459 Mich 109, 120-122 (1998). Governmental authorities responsible for continuing the incarceration of anyone who has been held under these circumstances could find themselves in a civil lawsuit and/or claims for injunctive relief.

The Supreme Court's ruling is unambiguous: "Deprived of counsel when tried, convicted and sentenced, and unable to challenge the original judgment at a subsequent probation revocation hearing, a defendant in Shelton's circumstances faces incarceration on a conviction that has never been subjected to `the crucible of meaningful adversarial testing.' The Sixth Amendment does not countenance this result." Shelton, slip op. at 5.

The Supreme Court makes clear that any portion of such a person's sentence that could result in future imprisonment is invalid per se and must be vacated, but the conviction itself remains valid.

The ACLU of Michigan and the Michigan Poverty Law Program (MPLP) are seeking the release of a father who has been unjustly jailed for not complying with a grandparent visitation order.  The order was based on a Michigan law that has since been struck down as unconstitutional.

“Holding Gregory White in jail for nearly two months based on an unconstitutional visitation order is clearly unjust,” said Peter Armstrong, the ACLU cooperating attorney representing Mr. White.  “The Supreme Court has been very clear that parents, not the state, are presumptively entitled to make decisions about the best interests of their children.”

In 2000, following the death of White’s wife, the wife’s parents, over White’s objections, obtained a court order granting them liberal visitation privileges.  White followed the order until he moved to Colorado in October, 2001 with his four-year old twins.  After the move he remarried and his new wife has since adopted the children as a second parent.

The grandparents went to court seeking to enforce the visitation order and when Mr. White returned to Michigan in March for a court date, a Berrien County Trial Court judge held him in contempt for failing to comply with the visitation order.

According to the ACLU and MPLP, the visitation order is void and unenforceable because the Michigan Court of Appeals struck down the Michigan grandparent visitation law in January as violative of the rights of parents.  Specifically, the Court of Appeals, relying on U.S. Supreme Court precedent, held that “so long as a parent adequately cares for his or her children, there will normally be no reason for the State to inject itself into the realm of the family.”  DeRose v DeRose.

“A judge does not have the ability to hold a person in contempt indefinitely for failure to obey an unconstitutional order,” said Lorray Brown, MPLP managing attorney.  “Mr. White should be released from jail as soon as possible and reunited with his family.”

A hearing is scheduled in the case tomorrow, Wednesday, May 29 at 8:30 a.m., in Judge Thomas Nelson’s courtroom where the ACLU and MPLP will ask the court to release the father, Gregory White, The address of the courthouse is 811 Port St. in St. Joseph.

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Parent Jailed For Refusing to Obey Unconstitutional Visitation Order

The ACLU of Michigan and the Michigan Poverty Law Program (MPLP) are seeking the release of a father who has been unjustly jailed for not complying with a grandparent visitation order.  The order was based on a Michigan law that has since been struck down as unconstitutional.

“Holding Gregory White in jail for nearly two months based on an unconstitutional visitation order is clearly unjust,” said Peter Armstrong, the ACLU cooperating attorney representing Mr. White.  “The Supreme Court has been very clear that parents, not the state, are presumptively entitled to make decisions about the best interests of their children.”

In 2000, following the death of White’s wife, the wife’s parents, over White’s objections, obtained a court order granting them liberal visitation privileges.  White followed the order until he moved to Colorado in October, 2001 with his four-year old twins.  After the move he remarried and his new wife has since adopted the children as a second parent.

The grandparents went to court seeking to enforce the visitation order and when Mr. White returned to Michigan in March for a court date, a Berrien County Trial Court judge held him in contempt for failing to comply with the visitation order.

According to the ACLU and MPLP, the visitation order is void and unenforceable because the Michigan Court of Appeals struck down the Michigan grandparent visitation law in January as violative of the rights of parents.  Specifically, the Court of Appeals, relying on U.S. Supreme Court precedent, held that “so long as a parent adequately cares for his or her children, there will normally be no reason for the State to inject itself into the realm of the family.”  DeRose v DeRose.

“A judge does not have the ability to hold a person in contempt indefinitely for failure to obey an unconstitutional order,” said Lorray Brown, MPLP managing attorney.  “Mr. White should be released from jail as soon as possible and reunited with his family.”

A hearing is scheduled in the case tomorrow, Wednesday, May 29 at 8:30 a.m., in Judge Thomas Nelson’s courtroom where the ACLU and MPLP will ask the court to release the father, Gregory White, The address of the courthouse is 811 Port St. in St. Joseph.

DETROIT — Today the American Civil Liberties Union of Michigan filed a lawsuit in federal court against the South Lyon Community Schools for suspending two students who wrote a newspaper entitled The First Amendment. The school suspended the students for five days.

"The students engaged in classic speech that is protected by the First Amendment.  It is ironic that the school would see fit to suppress a publication entitled The First Amendment,” said Kary Moss, Executive Director of the ACLU of Michigan. 

The newspaper contained numerous short articles on a wide variety of topics, including an article criticizing adults for telling jokes about Arabs and Muslims, an article critical of teachers for keeping religion out of the school, an article critical of the football coach, and an article critical of the principal for threatening seniors with criminal charges for carrying out senior pranks. 

Dan Woodcock, father of Joshua Woodcock, a junior at the school said: “We are filing this lawsuit because our children’s free speech rights are being stolen by an administration that is intolerant of any criticism.  As educators, they are missing the important principle that students learn through the exchange of ideas.”  

Although the students never actually distributed the paper, they were charged with “interfering with the operation of a school building.”  They were also suspended for attempting to distribute materials before obtaining prior approval from the principal even though this rule was not published in the student handbook and the students had no notice of such a rule.  Finally, the students were charged with violating a catchall provision of the Student Code of Conduct stating that corrective measures will be taken “should any student act in such a matter that is detrimental to himself.” 

The lawsuit charges the school district with violating the First Amendment right to freedom of speech and freedom of the press. The suit also challenges the constitutionality of the school regulations controlling the distributions of materials at school as an “unlawful prior restraint” on free expression, as overly broad and vague, and for punishing speech based on its content.

The students seek a court order declaring that the regulations used to punish them are unconstitutional, a court order permitting the students to distribute The First Amendment on campus next school year, and a court order directing the schools to expunge the student records of the suspension. 

A link to the newspaper that students were suspended for attempting to distribute.

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ACLU Sues South Lyon Community Schools for Suspending Student Authors

June 06, 2002

DETROIT — Today the American Civil Liberties Union of Michigan filed a lawsuit in federal court against the South Lyon Community Schools for suspending two students who wrote a newspaper entitled The First Amendment. The school suspended the students for five days.

"The students engaged in classic speech that is protected by the First Amendment.  It is ironic that the school would see fit to suppress a publication entitled The First Amendment,” said Kary Moss, Executive Director of the ACLU of Michigan. 

The newspaper contained numerous short articles on a wide variety of topics, including an article criticizing adults for telling jokes about Arabs and Muslims, an article critical of teachers for keeping religion out of the school, an article critical of the football coach, and an article critical of the principal for threatening seniors with criminal charges for carrying out senior pranks. 

Dan Woodcock, father of Joshua Woodcock, a junior at the school said: “We are filing this lawsuit because our children’s free speech rights are being stolen by an administration that is intolerant of any criticism.  As educators, they are missing the important principle that students learn through the exchange of ideas.”  

Although the students never actually distributed the paper, they were charged with “interfering with the operation of a school building.”  They were also suspended for attempting to distribute materials before obtaining prior approval from the principal even though this rule was not published in the student handbook and the students had no notice of such a rule.  Finally, the students were charged with violating a catchall provision of the Student Code of Conduct stating that corrective measures will be taken “should any student act in such a matter that is detrimental to himself.” 

The lawsuit charges the school district with violating the First Amendment right to freedom of speech and freedom of the press. The suit also challenges the constitutionality of the school regulations controlling the distributions of materials at school as an “unlawful prior restraint” on free expression, as overly broad and vague, and for punishing speech based on its content.

The students seek a court order declaring that the regulations used to punish them are unconstitutional, a court order permitting the students to distribute The First Amendment on campus next school year, and a court order directing the schools to expunge the student records of the suspension. 

A link to the newspaper that students were suspended for attempting to distribute.

Detroit - Today the ACLU of Michigan, together with concerned attorneys, asked Archie C. Brown, Chief Judge of the Washtenaw County Trial Court, to rescind a directive that he issued on June 4, 2002 to judges within his district. The directive orders those judges to not process petitions for second parent adoptions, including any petitions that are currently pending.

In the letter, the ACLU questioned Judge Brown’s authority to issue such a directive without an actual case before him.  The letter states: “The chief circuit court judge is an administrator, not a ‘roaming appellate court, and cannot substitute his judgment for that of other judges in the circuit whenever he sees fit.” 

ACLU Executive Director Kary Moss said: “It is completely inappropriate for a judge to interpret the law without an actual case before the court.  This is law by fiat and completely contrary to our system of justice which depends on each judge considering the facts before him or her and hearing arguments from both sides.” 

In his directive, Judge Brown admits that he arrived at his decision after soliciting the opinion of only one adoption specialist attorney.       

The letter also states that Judge Brown erred by not considering the best interests of  children, as Michigan’s Adoption law requires, but only the legal status of the parents’ relationship. Because second parent adoptions are so clearly in the best interests of children, every major child welfare organization in the country supports them. See, e.g., American Academy of Pediatrics (AAP) Technical Report: Coparent or Second-Parent Adoption by Same-Sex Parents (available at aap.org); American Psychological Association (APA), Lesbian and Gay Parenting: A Resource for Psychologists. 

Read the letter.

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ACLU of Michigan and Concerned Attorneys Object to Chief Judge's Directive

June 11, 2002

Detroit - Today the ACLU of Michigan, together with concerned attorneys, asked Archie C. Brown, Chief Judge of the Washtenaw County Trial Court, to rescind a directive that he issued on June 4, 2002 to judges within his district. The directive orders those judges to not process petitions for second parent adoptions, including any petitions that are currently pending.

In the letter, the ACLU questioned Judge Brown’s authority to issue such a directive without an actual case before him.  The letter states: “The chief circuit court judge is an administrator, not a ‘roaming appellate court, and cannot substitute his judgment for that of other judges in the circuit whenever he sees fit.” 

ACLU Executive Director Kary Moss said: “It is completely inappropriate for a judge to interpret the law without an actual case before the court.  This is law by fiat and completely contrary to our system of justice which depends on each judge considering the facts before him or her and hearing arguments from both sides.” 

In his directive, Judge Brown admits that he arrived at his decision after soliciting the opinion of only one adoption specialist attorney.       

The letter also states that Judge Brown erred by not considering the best interests of  children, as Michigan’s Adoption law requires, but only the legal status of the parents’ relationship. Because second parent adoptions are so clearly in the best interests of children, every major child welfare organization in the country supports them. See, e.g., American Academy of Pediatrics (AAP) Technical Report: Coparent or Second-Parent Adoption by Same-Sex Parents (available at aap.org); American Psychological Association (APA), Lesbian and Gay Parenting: A Resource for Psychologists. 

Read the letter.

The ACLU of Michigan filed a motion today requesting that Chief Judge Archie Brown return the second parent adoption cases to Judge Donald E. Shelton. Judge Brown had removed the cases from Judge Shelton's docket because he disagreed with Shelton's rulings on these kinds of cases. If Judge Brown is unwilling to grant the motion, the ACLU is requesting that he disqualify himself due to bias.

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ACLU Files Motion Requesting Chief Judge Return Second Parent Adoption Cases

June 14, 2002

The ACLU of Michigan filed a motion today requesting that Chief Judge Archie Brown return the second parent adoption cases to Judge Donald E. Shelton. Judge Brown had removed the cases from Judge Shelton's docket because he disagreed with Shelton's rulings on these kinds of cases. If Judge Brown is unwilling to grant the motion, the ACLU is requesting that he disqualify himself due to bias.

The American Civil Liberties Union of Michigan filed a lawsuit today against the City of Mackinac Island for refusing to grant a resident with a Multiple Sclerosis his request to use an electric-assisted tricycle.

The resident, Donald Bertrand, has multiple sclerosis and cannot ride a bicycle -- the primary form of transportation in the community -- because he lacks the strength, stamina, and balance.  However, Mr. Bertrand is able to ride an electric-assisted tricyle because it allows him to turn on a silent motor on those occasions when he needs assistance riding up hills.  Bertrand has repeatedly asked the Island for permission to use the tricycle, but the Island has refused, citing its policy prohibiting motorized vehicle. 

“Mackinac Island already makes exceptions to its no-motorized vehicle policy to allow the use of snowmobiles and golf carts,” said Stewart R. Hakola, cooperating counsel for the ACLU of Michigan.  “Refusing to let Don Bertrand tricycle is both discriminatory and unjust.” 

The ACLU also filed a motion for an order that would permit Mr. Bertrand to ride his tricycle until the court could hold a evidentiary hearing.  Judge Martin B. Breighner, visiting judge for the Mackinac County Circuit Court, granted the ACLU motion.  An evidentiary hearing is scheduled for August 14 and 15. 

“I love Mackinac Island,” said Bertrand, “but the message I’m getting is that people with disabilities are not welcome on the island.”    

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ACLU Sues Mackinac Island for Disability Law Violations

June 20, 2002

The American Civil Liberties Union of Michigan filed a lawsuit today against the City of Mackinac Island for refusing to grant a resident with a Multiple Sclerosis his request to use an electric-assisted tricycle.

The resident, Donald Bertrand, has multiple sclerosis and cannot ride a bicycle -- the primary form of transportation in the community -- because he lacks the strength, stamina, and balance.  However, Mr. Bertrand is able to ride an electric-assisted tricyle because it allows him to turn on a silent motor on those occasions when he needs assistance riding up hills.  Bertrand has repeatedly asked the Island for permission to use the tricycle, but the Island has refused, citing its policy prohibiting motorized vehicle. 

“Mackinac Island already makes exceptions to its no-motorized vehicle policy to allow the use of snowmobiles and golf carts,” said Stewart R. Hakola, cooperating counsel for the ACLU of Michigan.  “Refusing to let Don Bertrand tricycle is both discriminatory and unjust.” 

The ACLU also filed a motion for an order that would permit Mr. Bertrand to ride his tricycle until the court could hold a evidentiary hearing.  Judge Martin B. Breighner, visiting judge for the Mackinac County Circuit Court, granted the ACLU motion.  An evidentiary hearing is scheduled for August 14 and 15. 

“I love Mackinac Island,” said Bertrand, “but the message I’m getting is that people with disabilities are not welcome on the island.”    

The ACLU of Michigan has intervened on behalf of a Baptist minister who was unconstitutionally denied a permit to conduct baptisms at a lake operated by the Department of Natural Resources (DNR).

In a letter to William Kosmider, the park manager for the Fort Custer Recreation Area in Augusta, MI, the ACLU has requested that the DNR reconsider their denial of a permit to Rev. William Stein, the founder of Baptism USA Ministries.  Rev. Stein submitted a request for a permit in order to perform baptisms on Eagle Lake. 

“We’re hopeful that this can be resolved amicably,” said Jim Rodbard, the ACLU cooperating attorney handling the matter.  “However, we are prepared to file a lawsuit against the DNR for violating Rev. Stein’s right to freely exercise his religious beliefs if they continue to deny the permit.

According to a letter sent to Rev. Stein by the DNR, the permit was denied because it was “. . . assumed that [Baptism USA Ministries’] activities would dominate the activities of a popular beach on several summer weekends, and may conflict with other user’s enjoyment.”  The letter also stated that the baptisms would violate Department of Natural Resources (“DNR”), Parks and Recreation Bureau Policy 8.15 which requires that any religious activity in the park be interdenominational in nature, and that such activities not conflict with other users. 

“The reason the DNR may be denying permits to religious groups (other than so-called ‘interdenominational’ groups) is to steer clear from the appearance that it is endorsing one religion over another.  While perhaps well-meaning, such action is a clear violation of the free speech clause of the First Amendment.  This is not a case where the government is sponsoring or endorsing religious activities; rather it is one where government is denying a private group the right to engage in speech based on the content of the speech.,” wrote Mr. Rodbard in his letter to the DNR.    

The ACLU is requesting that a permit be immediately issued to Rev. Stein and Baptism USA Ministries so that baptism services can be conducted at Eagle Lake on July 13 and 20, and on August 3, 10 and 17, 2002. 

For more information visit: The Battle Creek Enquirer

DNR Backs Off on Battle by Claudia Linsley of the Battle Creek Enquirer.

From the Battle Creek Enquirer DNR right to abandon park policy

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ACLU Fights to Get Minister a Permit to Baptize

July 09, 2002

The ACLU of Michigan has intervened on behalf of a Baptist minister who was unconstitutionally denied a permit to conduct baptisms at a lake operated by the Department of Natural Resources (DNR).

In a letter to William Kosmider, the park manager for the Fort Custer Recreation Area in Augusta, MI, the ACLU has requested that the DNR reconsider their denial of a permit to Rev. William Stein, the founder of Baptism USA Ministries.  Rev. Stein submitted a request for a permit in order to perform baptisms on Eagle Lake. 

“We’re hopeful that this can be resolved amicably,” said Jim Rodbard, the ACLU cooperating attorney handling the matter.  “However, we are prepared to file a lawsuit against the DNR for violating Rev. Stein’s right to freely exercise his religious beliefs if they continue to deny the permit.

According to a letter sent to Rev. Stein by the DNR, the permit was denied because it was “. . . assumed that [Baptism USA Ministries’] activities would dominate the activities of a popular beach on several summer weekends, and may conflict with other user’s enjoyment.”  The letter also stated that the baptisms would violate Department of Natural Resources (“DNR”), Parks and Recreation Bureau Policy 8.15 which requires that any religious activity in the park be interdenominational in nature, and that such activities not conflict with other users. 

“The reason the DNR may be denying permits to religious groups (other than so-called ‘interdenominational’ groups) is to steer clear from the appearance that it is endorsing one religion over another.  While perhaps well-meaning, such action is a clear violation of the free speech clause of the First Amendment.  This is not a case where the government is sponsoring or endorsing religious activities; rather it is one where government is denying a private group the right to engage in speech based on the content of the speech.,” wrote Mr. Rodbard in his letter to the DNR.    

The ACLU is requesting that a permit be immediately issued to Rev. Stein and Baptism USA Ministries so that baptism services can be conducted at Eagle Lake on July 13 and 20, and on August 3, 10 and 17, 2002. 

For more information visit: The Battle Creek Enquirer

DNR Backs Off on Battle by Claudia Linsley of the Battle Creek Enquirer.

From the Battle Creek Enquirer DNR right to abandon park policy

DETROIT — The ACLU of Michigan announced today that a settlement has been reached with the City of Detroit in a constitutional challenge of the undercover sting operations in Rouge Park that targeted gay men or men perceived to be gay.

"This agreement will result in a much needed change in the Department’s practices that were based on unconstitutional ordinances,” said Jay Kaplan, staff attorney for the ACLU Gay, Lesbian, Bisexual, Transgender Project.  “We’re obviously very pleased with the outcome.” 

The settlement stipulates that the “Annoying Persons” misdemeanor ordinance used to charge the men will be repealed; the plaintiffs’ arrest records, including their fingerprints, will be purged from the police department’s computer and records system; and the officers in the Sixth Precinct will undergo sensitivity training related to gay, lesbian, bisexual and transgender issues. The City has also agreed to pay $170,000 in damages and attorneys fees in the settlement of the lawsuit filed by the ACLU on behalf of six men and the Triangle Foundation.  

“This is a good end to a terrible episode of anti-gay profiling by the Detroit Police,” said Jeffrey Montgomery, executive director of Triangle Foundation.  “We can only hope that this settlement signals a real move toward understanding the challenges faced by gay people, and an end to preying on and profiting from our vulnerability.” 

In order to entrap men throughout the park, undercover officers would follow or approach men they perceived to be gay, make eye contact and encourage the men to respond in a sexual manner.   If a man merely responded with a look, gesture or conversation that the officers perceived to have sexual connotations, the man was arrested under the “Annoying Persons” or “Solicitation and Accosting” ordinance and his vehicle would be impounded.  He was then required to pay $900, plus towing and storage costs for the return of his vehicle.  The money was not refunded, even if the court dismissed charges under these ordinances. 

None of these arrests, under these ordinances and through the Rouge Park undercover decoy operation involved public sexual activity or prostitution. The undercover operation was part of the “morality units” operations conducted city-wide by all precincts to eliminate public sexual activity and prostitution.  

There is a history to these types of operations where the police have used undercover operations to target and arrest gay men.  In 1997, the ACLU of Maryland filed a similar lawsuit against police for sting operations in parks Baltimore-area.  The ACLU of Northern California challenged ordinances that would have allowed police to seize, claim and sell the vehicles driven by people accused -- even if they are later found innocent.  

Deborah A. LaBelle, ACLU Cooperating Attorney, was counsel on this case along with Jay Kaplan, Michael J. Steinberg, ACLU of Michigan Legal Director and Kary L. Moss, ACLU of Michigan Executive Director. 

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Detroit Settles ACLU Lawsuit Challenging Police Sting Operation Against Gay Men

July 23, 2002

DETROIT — The ACLU of Michigan announced today that a settlement has been reached with the City of Detroit in a constitutional challenge of the undercover sting operations in Rouge Park that targeted gay men or men perceived to be gay.

"This agreement will result in a much needed change in the Department’s practices that were based on unconstitutional ordinances,” said Jay Kaplan, staff attorney for the ACLU Gay, Lesbian, Bisexual, Transgender Project.  “We’re obviously very pleased with the outcome.” 

The settlement stipulates that the “Annoying Persons” misdemeanor ordinance used to charge the men will be repealed; the plaintiffs’ arrest records, including their fingerprints, will be purged from the police department’s computer and records system; and the officers in the Sixth Precinct will undergo sensitivity training related to gay, lesbian, bisexual and transgender issues. The City has also agreed to pay $170,000 in damages and attorneys fees in the settlement of the lawsuit filed by the ACLU on behalf of six men and the Triangle Foundation.  

“This is a good end to a terrible episode of anti-gay profiling by the Detroit Police,” said Jeffrey Montgomery, executive director of Triangle Foundation.  “We can only hope that this settlement signals a real move toward understanding the challenges faced by gay people, and an end to preying on and profiting from our vulnerability.” 

In order to entrap men throughout the park, undercover officers would follow or approach men they perceived to be gay, make eye contact and encourage the men to respond in a sexual manner.   If a man merely responded with a look, gesture or conversation that the officers perceived to have sexual connotations, the man was arrested under the “Annoying Persons” or “Solicitation and Accosting” ordinance and his vehicle would be impounded.  He was then required to pay $900, plus towing and storage costs for the return of his vehicle.  The money was not refunded, even if the court dismissed charges under these ordinances. 

None of these arrests, under these ordinances and through the Rouge Park undercover decoy operation involved public sexual activity or prostitution. The undercover operation was part of the “morality units” operations conducted city-wide by all precincts to eliminate public sexual activity and prostitution.  

There is a history to these types of operations where the police have used undercover operations to target and arrest gay men.  In 1997, the ACLU of Maryland filed a similar lawsuit against police for sting operations in parks Baltimore-area.  The ACLU of Northern California challenged ordinances that would have allowed police to seize, claim and sell the vehicles driven by people accused -- even if they are later found innocent.  

Deborah A. LaBelle, ACLU Cooperating Attorney, was counsel on this case along with Jay Kaplan, Michael J. Steinberg, ACLU of Michigan Legal Director and Kary L. Moss, ACLU of Michigan Executive Director. 

August 7, 2002 - Press Release

Detroit - Tomorrow, a Wayne County Circuit Court will hear the American Civil Liberties Union of Michigan’s request to disqualify Washtenaw County Chief Judge Archie Brown from deciding whether or not to allow unmarried couples to adopt based on his declared bias and prejudice on the issue of second parent adoption. The ACLU is representing six couples who had filed second parent adoption petitions in Washtenaw County.

"According to state law, second parent adoptions should be granted when it is in the best interest of the child,” said Kary Moss, ACLU of Michigan Executive Director.  “Judge Brown’s admission that the marital status of parents is the only important factor to consider is wrong and clearly demonstrates his lack of regard for the families involved.” 

 

The Washtenaw County Trial Court has interpreted Michigan’s Adoption Code to permit second parent adoptions by unmarried couples for more than ten years.  In most instances one of the couple is already legally recognized as the child’s parent.  Until Judge Brown re-assigned the cases to himself, all of the petitions were heard by Judge Donald Shelton, the presiding Juvenile Court Judge.  The ACLU motion requests that all cases be returned to Judge Shelton. 

Illinois, Massachusetts, New Jersey, New York, and Vermont have adoption law language similar to Michigan’s and have permitted second parent adoptions by unmarried couples. 

The hearing on the motion will take place on Thursday, August 8, 2002 at 11:30 a.m. in Judge Kenny’s courtroom, located at 1441 St. Antoine, Room 302 in Detroit. 


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ACLU Urges Court to Disqualify Judge from Second Parent Adoption Hearings

August 07, 2002

August 7, 2002 - Press Release

Detroit - Tomorrow, a Wayne County Circuit Court will hear the American Civil Liberties Union of Michigan’s request to disqualify Washtenaw County Chief Judge Archie Brown from deciding whether or not to allow unmarried couples to adopt based on his declared bias and prejudice on the issue of second parent adoption. The ACLU is representing six couples who had filed second parent adoption petitions in Washtenaw County.

"According to state law, second parent adoptions should be granted when it is in the best interest of the child,” said Kary Moss, ACLU of Michigan Executive Director.  “Judge Brown’s admission that the marital status of parents is the only important factor to consider is wrong and clearly demonstrates his lack of regard for the families involved.” 

 

The Washtenaw County Trial Court has interpreted Michigan’s Adoption Code to permit second parent adoptions by unmarried couples for more than ten years.  In most instances one of the couple is already legally recognized as the child’s parent.  Until Judge Brown re-assigned the cases to himself, all of the petitions were heard by Judge Donald Shelton, the presiding Juvenile Court Judge.  The ACLU motion requests that all cases be returned to Judge Shelton. 

Illinois, Massachusetts, New Jersey, New York, and Vermont have adoption law language similar to Michigan’s and have permitted second parent adoptions by unmarried couples. 

The hearing on the motion will take place on Thursday, August 8, 2002 at 11:30 a.m. in Judge Kenny’s courtroom, located at 1441 St. Antoine, Room 302 in Detroit. 


In a unanimous decision today, a federal appeals court struck down the government's blanket policy of conducting secret deportation hearings inpost-9/11 cases as a violation of the First Amendment. It is the first such decision by a federal appellate court anywhere in the country.

"We applaud this decision for recognizing the importance of the right of the press and the public to know what's going on in our courts," said Kary Moss, ACLU of Michigan executive director. "As Judge Keith said, writing for the court, 'Democracies die behind closed doors,’ and the court sent a clear message that this administration can't run a secret government." 

Under the challenged policy, the press and public (including family members) were automatically excluded from any deportation hearing designated by the Justice Department as a "special interest case."  In declaring that policy unconstitutional, the United States Court of Appeals for the Sixth Circuit emphasized the value of open proceedings and stressed that any legitimate security concerns must be addressed on a case-by-case basis and not through a categorical closure order. 

According to the Court opinion, "The only safeguard on this extraordinary governmental power is the public, deputizing the press as the guardians of their liberty....the Executive Branch seeks to take this safeguard away from the public by placing its actions beyond public scrutiny. Against non-citizens, it seeks the power to secretly deport a class if it unilaterally calls them 'special interest' cases.  The Executive Branch seeks to uproot people's lives, outside the public eye, and behind a closed door." 

Lee Gelernt, Senior Staff Counsel with the National ACLU Immigrants Rights Project, who argued the case before the Appeals Court said, "The court's opinion makes clear that blanket closure orders are unconstitutional and that the government may not simply unilaterally declare that an entire category of cases will be conducted behind closed doors without any public scrutiny." 

The lawsuit, Detroit News, Inc., et al v. Ashcroft et al, was filed by the national and state offices of the ACLU on behalf of Representative John Conyers Jr., the Detroit News, and the Metro Times, an alternative weekly after the public and the press were turned away from the deportation hearings in the case of Rabih Haddad. 

The plaintiffs in the Detroit News case were represented by Lee Gelernt, Lucas Guttentag, and Steven R. Shapiro of the national ACLU; Michael J. Steinberg and Kary Moss of the ACLU of Michigan, Leonard M. Niehoff of Butzel, Long, P.C.; and John J. Romayne, III of Kasiborski, Romayne & Flaska. 

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Federal Appeals Court Declares Secret Deportation Hearings Unconstitutional

August 26, 2002

In a unanimous decision today, a federal appeals court struck down the government's blanket policy of conducting secret deportation hearings inpost-9/11 cases as a violation of the First Amendment. It is the first such decision by a federal appellate court anywhere in the country.

"We applaud this decision for recognizing the importance of the right of the press and the public to know what's going on in our courts," said Kary Moss, ACLU of Michigan executive director. "As Judge Keith said, writing for the court, 'Democracies die behind closed doors,’ and the court sent a clear message that this administration can't run a secret government." 

Under the challenged policy, the press and public (including family members) were automatically excluded from any deportation hearing designated by the Justice Department as a "special interest case."  In declaring that policy unconstitutional, the United States Court of Appeals for the Sixth Circuit emphasized the value of open proceedings and stressed that any legitimate security concerns must be addressed on a case-by-case basis and not through a categorical closure order. 

According to the Court opinion, "The only safeguard on this extraordinary governmental power is the public, deputizing the press as the guardians of their liberty....the Executive Branch seeks to take this safeguard away from the public by placing its actions beyond public scrutiny. Against non-citizens, it seeks the power to secretly deport a class if it unilaterally calls them 'special interest' cases.  The Executive Branch seeks to uproot people's lives, outside the public eye, and behind a closed door." 

Lee Gelernt, Senior Staff Counsel with the National ACLU Immigrants Rights Project, who argued the case before the Appeals Court said, "The court's opinion makes clear that blanket closure orders are unconstitutional and that the government may not simply unilaterally declare that an entire category of cases will be conducted behind closed doors without any public scrutiny." 

The lawsuit, Detroit News, Inc., et al v. Ashcroft et al, was filed by the national and state offices of the ACLU on behalf of Representative John Conyers Jr., the Detroit News, and the Metro Times, an alternative weekly after the public and the press were turned away from the deportation hearings in the case of Rabih Haddad. 

The plaintiffs in the Detroit News case were represented by Lee Gelernt, Lucas Guttentag, and Steven R. Shapiro of the national ACLU; Michael J. Steinberg and Kary Moss of the ACLU of Michigan, Leonard M. Niehoff of Butzel, Long, P.C.; and John J. Romayne, III of Kasiborski, Romayne & Flaska. 

DETROIT — The American Civil Liberties Union of Michigan filed a motion today asking a federal judge to order the South Lyon Community Schools to permit the distribution of a student newspaper entitled The First Amendment. The motion also asks the judge to order the school to expunge the records of three students who were suspended last spring for trying to distribute the paper.

The lawsuit on which this motion is based was filed in June, 2002.  It charges the school district with violating the First Amendment right to freedom of speech and freedom of the press. The suit also challenges the constitutionality of the school regulations controlling the distributions of materials at school as an “unlawful prior restraint” on free expression, as overly broad and vague, and for punishing speech based on its content.

“This kind of speech is protected by the First Amendment and the school’s actions are clearly unconstitutional,” said Andrew Nicklehoff, the ACLU Cooperating Attorney who is handling the case.  “These students are about to apply to college and should not have to have a suspension on their record.”

The newspaper contained numerous short articles on a wide variety of topics, including an article criticizing adults for telling jokes about Arabs and Muslims, an article critical of teachers for keeping religion out of the school, an article critical of the football coach, and an article critical of the principal for threatening seniors with criminal charges for carrying out senior pranks. 

Dan Woodcock, father of Joshua Woodcock, a senior at the school said “We filed this lawsuit because our children’s free speech rights are being stolen by an administration that is intolerant of any criticism.  As educators, they are missing the important principle that students learn through the exchange of ideas.”  

Although the students never actually distributed the paper, they were charged with “interfering with the operation of a school building.”  The students were also charged with violating a catchall provision of the Student Code of Conduct stating that corrective measures will be taken “should any student act in such a matter that is detrimental to himself.”

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ACLU Files Motion in Case of Students’ Right to Publish Underground Newspaper

October 02, 2002

DETROIT — The American Civil Liberties Union of Michigan filed a motion today asking a federal judge to order the South Lyon Community Schools to permit the distribution of a student newspaper entitled The First Amendment. The motion also asks the judge to order the school to expunge the records of three students who were suspended last spring for trying to distribute the paper.

The lawsuit on which this motion is based was filed in June, 2002.  It charges the school district with violating the First Amendment right to freedom of speech and freedom of the press. The suit also challenges the constitutionality of the school regulations controlling the distributions of materials at school as an “unlawful prior restraint” on free expression, as overly broad and vague, and for punishing speech based on its content.

“This kind of speech is protected by the First Amendment and the school’s actions are clearly unconstitutional,” said Andrew Nicklehoff, the ACLU Cooperating Attorney who is handling the case.  “These students are about to apply to college and should not have to have a suspension on their record.”

The newspaper contained numerous short articles on a wide variety of topics, including an article criticizing adults for telling jokes about Arabs and Muslims, an article critical of teachers for keeping religion out of the school, an article critical of the football coach, and an article critical of the principal for threatening seniors with criminal charges for carrying out senior pranks. 

Dan Woodcock, father of Joshua Woodcock, a senior at the school said “We filed this lawsuit because our children’s free speech rights are being stolen by an administration that is intolerant of any criticism.  As educators, they are missing the important principle that students learn through the exchange of ideas.”  

Although the students never actually distributed the paper, they were charged with “interfering with the operation of a school building.”  The students were also charged with violating a catchall provision of the Student Code of Conduct stating that corrective measures will be taken “should any student act in such a matter that is detrimental to himself.”

Detroit - A federal judge ruled today that an immigration court did violate the due process of Rabih Haddad when closing a portion of his bond hearing last week without following procedure of finding facts on the record, according to the ACLU of Michigan. Though she determined that the hearing could be closed with respect to the testimony of one witness, she ruled that the immigration court failed to follow proper due process procedure in the future.

"The immigration judge simply took the government’s word and chose not to follow the required procedures of fact finding,” said Kary Moss, ACLU of Michigan executive director. “Judge Edmunds’ ruling will hopefully prevent such due process violations in the future".

A federal appeals court, in August, struck down the government's blanket policy of conducting secret deportation hearings in post-9/11 cases, on the basis that it violated the First Amendment.  The appeals court acknowledged that portions of a hearing can be closed if there was evidence that national security is at risk.

The government has never publicly linked Haddad to terrorism or charged him with any related crime during the course of the many hearings held to keep the process open to the public and press.  Additionally, the government concluded last April that the release of transcripts "will not cause irreparable harm" to national security.  

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Court Rules Immigration Judge Erred in Closing Rabih Haddad's Bond Hearing

October 06, 2002

Detroit - A federal judge ruled today that an immigration court did violate the due process of Rabih Haddad when closing a portion of his bond hearing last week without following procedure of finding facts on the record, according to the ACLU of Michigan. Though she determined that the hearing could be closed with respect to the testimony of one witness, she ruled that the immigration court failed to follow proper due process procedure in the future.

"The immigration judge simply took the government’s word and chose not to follow the required procedures of fact finding,” said Kary Moss, ACLU of Michigan executive director. “Judge Edmunds’ ruling will hopefully prevent such due process violations in the future".

A federal appeals court, in August, struck down the government's blanket policy of conducting secret deportation hearings in post-9/11 cases, on the basis that it violated the First Amendment.  The appeals court acknowledged that portions of a hearing can be closed if there was evidence that national security is at risk.

The government has never publicly linked Haddad to terrorism or charged him with any related crime during the course of the many hearings held to keep the process open to the public and press.  Additionally, the government concluded last April that the release of transcripts "will not cause irreparable harm" to national security.  

The American Civil Liberties Union of Michigan criticized a court ruling issued today that will permit random drug testing of welfare recipients. The 3-judge panel of U.S. Court of Appeals reversed a 2000 district court opinion that Michigan’s welfare drug testing law is an unconstitutional invasion of privacy rights.

Being poor is not a crime in this country and poor parents should not be required to choose between providing for their children and relinquishing their constitutional rights,” said Kary Moss, executive director of the Michigan ACLU and an attorney in the case.  

“The appellate court decision has frightening implications for the privacy rights of all Americans, not just the poor,” added Moss.  “Reversing Judge Roberts’ earlier decision opens the door to drug testing of virtually any person who receives government benefits including those who receive business loans, student loans or tax deductions for mortgage payments.” 

In October 1999, Michigan’s Family Independence Agency instituted the nation’s first program requiring welfare applicants and recipients to take a urine test, regardless of whether they were suspected of using drugs.  Refusal to submit to random drug testing would lead to denial of income support and other FIA benefits for poor families with children.   

The program was in effect for five weeks before the Michigan court struck down the program as violating the Fourth Amendment prohibition against unreasonable searches.  During that time, the drug tests were positive in only 8% of the cases, a percentage that is consistent with drug use in the general population.  Of 268 people tested, only 21 tested positive for drugs and all by 3 were for marijuana. 

“There is no precedent for the proposition that a group of adults must relinquish their rights simply because they are poor,” said Graham Boyd, director of the National ACLU Drug Policy Litigation Project, who worked on the case with the Michigan ACLU.  “We will be seeking a rehearing of the three-judge decision by the entire U.S. Court of Appeals for the Sixth Circuit.” 

Read the decision in the case, Marchwinski v. Howard.  

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ACLU Decries Court Ruling on Welfare Drug Testing

October 18, 2002

The American Civil Liberties Union of Michigan criticized a court ruling issued today that will permit random drug testing of welfare recipients. The 3-judge panel of U.S. Court of Appeals reversed a 2000 district court opinion that Michigan’s welfare drug testing law is an unconstitutional invasion of privacy rights.

Being poor is not a crime in this country and poor parents should not be required to choose between providing for their children and relinquishing their constitutional rights,” said Kary Moss, executive director of the Michigan ACLU and an attorney in the case.  

“The appellate court decision has frightening implications for the privacy rights of all Americans, not just the poor,” added Moss.  “Reversing Judge Roberts’ earlier decision opens the door to drug testing of virtually any person who receives government benefits including those who receive business loans, student loans or tax deductions for mortgage payments.” 

In October 1999, Michigan’s Family Independence Agency instituted the nation’s first program requiring welfare applicants and recipients to take a urine test, regardless of whether they were suspected of using drugs.  Refusal to submit to random drug testing would lead to denial of income support and other FIA benefits for poor families with children.   

The program was in effect for five weeks before the Michigan court struck down the program as violating the Fourth Amendment prohibition against unreasonable searches.  During that time, the drug tests were positive in only 8% of the cases, a percentage that is consistent with drug use in the general population.  Of 268 people tested, only 21 tested positive for drugs and all by 3 were for marijuana. 

“There is no precedent for the proposition that a group of adults must relinquish their rights simply because they are poor,” said Graham Boyd, director of the National ACLU Drug Policy Litigation Project, who worked on the case with the Michigan ACLU.  “We will be seeking a rehearing of the three-judge decision by the entire U.S. Court of Appeals for the Sixth Circuit.” 

Read the decision in the case, Marchwinski v. Howard.  

BAY CITY — The ACLU of Michigan filed a federal lawsuit today challenging a police practice of forcing pedestrians under age 21 to take a Breathalyzer test without first obtaining a search warrant. The case was filed against the City of Bay City on behalf of Jamie Spencer, a 20-year-old woman who was forced by an officer to take a breath test or pay a $100 fine even though she had not been drinking alcohol.

"It is time stop the widespread practice in this state of punishing young people who are walking down the street for refusing to submit to a Breathalyzer test,” said Kary Moss, executive director of the Michigan ACLU.  “The Constitution is clear no search warrant, no Breathalyzer.  Police cannot force pedestrians to submit to an unconstitutional search.” 

The case stems from an encounter that Mrs. Spencer had with the Bay City police in August, 2001, when she was 19 years old.  She, her husband and some friends had just finished rollerblading in a Bay City park and were preparing to leave, when two officers approached Mrs. Spencer and demanded that she blow into a breathalyzer machine.   

She told the officers that she had not been drinking and that she did not want to take the test.  However, when the officers threatened her with a $100 fine, she felt that she had no choice, and submitted to the test.  The test indicated that she had not been drinking.   

“The entire experience was demeaning.  Even though I had done nothing wrong, the police invaded my privacy,” said Mrs. Spencer.  “I want to make sure that police stop harassing innocent young people by forcing them to take Breathalyzer tests.” 

The ACLU lawsuit challenges a Bay City ordinance that makes it illegal for a person to refuse to consent to a breath test when asked to do so by the police.  According to the ACLU, the ordinance violates the Fourth Amendment prohibition against illegal searches because (1) a breath test is a search, (2) no search warrant is required, and (3) no exceptions to the search warrant requirement are present.   The suit does not challenge the requirement that drivers submit to breath tests when there is evidence of drinking because driving is a privilege, not a right.  

The Bay City ordinance being challenged is nearly identical to a state law and the case is likely to have statewide impact.  “It is common at the University of Michigan for police to stop students walking across campus and force them to breathe into a Breathalyzer machine,” said Robert Goodspeed, a University of Michigan student and president of the campus ACLU.  “The police also come into house parties and force everyone present to give a breath test whether they have been drinking or not.” 

Mrs. Spencer is represented by David A. Moran, a volunteer ACLU attorney and Wayne State University law professor, Michael J. Steinberg, Legal Director of the Michigan ACLU, and William T. Street, a volunteer ACLU lawyer from Saginaw.  

Read the article in MSU newspaper.

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ACLU Lawsuit Challenges Unconstitutional Breathalyzer Tests for Pedestrians

October 18, 2002

BAY CITY — The ACLU of Michigan filed a federal lawsuit today challenging a police practice of forcing pedestrians under age 21 to take a Breathalyzer test without first obtaining a search warrant. The case was filed against the City of Bay City on behalf of Jamie Spencer, a 20-year-old woman who was forced by an officer to take a breath test or pay a $100 fine even though she had not been drinking alcohol.

"It is time stop the widespread practice in this state of punishing young people who are walking down the street for refusing to submit to a Breathalyzer test,” said Kary Moss, executive director of the Michigan ACLU.  “The Constitution is clear no search warrant, no Breathalyzer.  Police cannot force pedestrians to submit to an unconstitutional search.” 

The case stems from an encounter that Mrs. Spencer had with the Bay City police in August, 2001, when she was 19 years old.  She, her husband and some friends had just finished rollerblading in a Bay City park and were preparing to leave, when two officers approached Mrs. Spencer and demanded that she blow into a breathalyzer machine.   

She told the officers that she had not been drinking and that she did not want to take the test.  However, when the officers threatened her with a $100 fine, she felt that she had no choice, and submitted to the test.  The test indicated that she had not been drinking.   

“The entire experience was demeaning.  Even though I had done nothing wrong, the police invaded my privacy,” said Mrs. Spencer.  “I want to make sure that police stop harassing innocent young people by forcing them to take Breathalyzer tests.” 

The ACLU lawsuit challenges a Bay City ordinance that makes it illegal for a person to refuse to consent to a breath test when asked to do so by the police.  According to the ACLU, the ordinance violates the Fourth Amendment prohibition against illegal searches because (1) a breath test is a search, (2) no search warrant is required, and (3) no exceptions to the search warrant requirement are present.   The suit does not challenge the requirement that drivers submit to breath tests when there is evidence of drinking because driving is a privilege, not a right.  

The Bay City ordinance being challenged is nearly identical to a state law and the case is likely to have statewide impact.  “It is common at the University of Michigan for police to stop students walking across campus and force them to breathe into a Breathalyzer machine,” said Robert Goodspeed, a University of Michigan student and president of the campus ACLU.  “The police also come into house parties and force everyone present to give a breath test whether they have been drinking or not.” 

Mrs. Spencer is represented by David A. Moran, a volunteer ACLU attorney and Wayne State University law professor, Michael J. Steinberg, Legal Director of the Michigan ACLU, and William T. Street, a volunteer ACLU lawyer from Saginaw.  

Read the article in MSU newspaper.

Monday the U.S. Supreme Court agreed to decide whether the University of Michigan's use of race or ethnicity as one of several factors in its admissions process is constitutional. Not since the seminal 1978 decision in University of California vs. Baake has the highest court in the land looked squarely at the issue of affirmative action.

Affirmative action is about many things. It is about racial equality and integration. It is about the recognition that standardized test scores and grades do not necessarily capture qualification and merit. It is about the recognition that the playing field is not level in our society; some schools are better than others and parental income inevitably influences a child's scholastic ability.

Affirmative action has brought to light that admissions programs have never been "pure." Schools routinely recruit international students, children of alumni, or applicants from different parts of the country and do so in the absence of any public criticism even though several of these criteria negatively effect African-American and Latino applicants.

And affirmative action is about the value of a diverse society. This is the core issue that has been fundamental to this case from the start.

According to Patricia Y. Gurin, professor of psychology at the University of Michigan and interim dean of the LSA, diversity in higher education serves to break "patterns of racial segregation and separation historically rooted in our national life." Moreover, students who experienced the most racial and ethnic diversity in classroom settings and in informal interactions with peers showed the greatest engagement in active thinking processes, growth in intellectual engagement and motivation, and growth in intellectual and academic skills.

For these reasons, a number of our largest corporations, such as General Motors, supported the university despite the controversy of the issue.

They understand that eliminating affirmative action will deprive businesses of better employees in the business world. GM has said, "Only a well-educated, highly diverse workforce, comprised of people who have learned to work productively and creatively with individuals from a multitude of races and ethnic, religious and cultural histories, can maintain America's global competitiveness in the increasingly diverse and interconnected world economy."

Just look at schools that have recently stopped using affirmative action and the impact is clear. Latino and African-American admissions at the University of Texas dropped by 88 percent in one year.

Latino students declined by 35 percent and the number of African Americans declined by nearly 72 percent at schools in California. It doesn't take a rocket scientist to know that if the Supreme Court rules against the University the results will be as catastrophic here in Michigan.

In 1964 U-M's law school class was all white and all male. Of the students who graduated from the law school between l950 and l970, only 44 were black; none were Latino or Native American. By the late 1960s the law school adopted an affirmative action plan and still only reports that 8 percent of its 38,000 students are black and 4.3 percent are Hispanic.

There is no doubt that we have come a long way. And along that way we learned that the university only admits students, of any race, who are qualified and deserve to be there. I sure hope the Supreme Court doesn't turn the clock back.

By Kary L. Moss, Special to The Detroit News

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Affirmative Action Case Goes to the U.S. Supreme Court

December 06, 2002

Monday the U.S. Supreme Court agreed to decide whether the University of Michigan's use of race or ethnicity as one of several factors in its admissions process is constitutional. Not since the seminal 1978 decision in University of California vs. Baake has the highest court in the land looked squarely at the issue of affirmative action.

Affirmative action is about many things. It is about racial equality and integration. It is about the recognition that standardized test scores and grades do not necessarily capture qualification and merit. It is about the recognition that the playing field is not level in our society; some schools are better than others and parental income inevitably influences a child's scholastic ability.

Affirmative action has brought to light that admissions programs have never been "pure." Schools routinely recruit international students, children of alumni, or applicants from different parts of the country and do so in the absence of any public criticism even though several of these criteria negatively effect African-American and Latino applicants.

And affirmative action is about the value of a diverse society. This is the core issue that has been fundamental to this case from the start.

According to Patricia Y. Gurin, professor of psychology at the University of Michigan and interim dean of the LSA, diversity in higher education serves to break "patterns of racial segregation and separation historically rooted in our national life." Moreover, students who experienced the most racial and ethnic diversity in classroom settings and in informal interactions with peers showed the greatest engagement in active thinking processes, growth in intellectual engagement and motivation, and growth in intellectual and academic skills.

For these reasons, a number of our largest corporations, such as General Motors, supported the university despite the controversy of the issue.

They understand that eliminating affirmative action will deprive businesses of better employees in the business world. GM has said, "Only a well-educated, highly diverse workforce, comprised of people who have learned to work productively and creatively with individuals from a multitude of races and ethnic, religious and cultural histories, can maintain America's global competitiveness in the increasingly diverse and interconnected world economy."

Just look at schools that have recently stopped using affirmative action and the impact is clear. Latino and African-American admissions at the University of Texas dropped by 88 percent in one year.

Latino students declined by 35 percent and the number of African Americans declined by nearly 72 percent at schools in California. It doesn't take a rocket scientist to know that if the Supreme Court rules against the University the results will be as catastrophic here in Michigan.

In 1964 U-M's law school class was all white and all male. Of the students who graduated from the law school between l950 and l970, only 44 were black; none were Latino or Native American. By the late 1960s the law school adopted an affirmative action plan and still only reports that 8 percent of its 38,000 students are black and 4.3 percent are Hispanic.

There is no doubt that we have come a long way. And along that way we learned that the university only admits students, of any race, who are qualified and deserve to be there. I sure hope the Supreme Court doesn't turn the clock back.

By Kary L. Moss, Special to The Detroit News

On January 21, 2003 , seven people incarcerated in Michigan prisons filed a class action lawsuit against officials in the Michigan Department of Corrections (MDOC), and against Correctional Medical Services, Inc. (CMS), the company contractually obligated to provide medical care to MDOC inmates.  The suit was brought by one woman and six male inmates who claim that they, and possibly as many as 14,000 other inmates, are being seriously harmed by the defendants’ failure to adequately test and treat them for Hepatitis C.  Hepatitis C is often a life threatening disease and a burgeoning public health care crisis that the surgeon general has declared a national epidemic.

What is Hepatitis C?[1]

Hepatitis C, also called “non-A, non-B Hepatitis,” is a blood-borne illness caused by the Hepatitis C virus (or “HCV”).  First discovered in 1988, HCV is now the most common chronic blood-borne viral infection in the United States .  According to conservative estimates, 3.9 million Americans, or 1.8% of the population, have been infected with HCV.[2]  The disease now causes 8,000 to 10,000 deaths each year in the United States , a death rate that is expected to triple in the next two decades.[3]

Until its discovery, the Hepatitis C virus was often transmitted through blood transfusions. [4]  Once blood banks began to screen for HCV in 1990, however, that method of transmission fell off.  Today, HCV is most often passed between intravenous drug users who share needles.  The virus can also be transmitted through sexual contact—sexual transmission is most common among promiscuous people.  Infected mothers also occasionally transmit HCV to fetuses.  Perhaps most frighteningly, 10% of all people infected with HCV show no risk factors for the disease; it is unclear how they contracted it.[5]  Some of these may have contracted the disease through exposure to the blood of infected people—for example, by sharing a toothbrush or razor with an HCV-positive person.[6]

The Hepatitis C virus infects and damages the liver, an organ that takes part in the body’s energy production, detoxification, immune functions and digestion.  A small portion (about 15-25%) of people who contract HCV resolve their infection without further problems.  All others become chronically infected.  Once chronic infection sets in, it is almost never cleared without treatment.  Of people who are chronically infected with the HCV virus, a majority (70%) develop chronic liver disease.  Some chronically infected people eventually develop irreversible cirrhosis of the liver, end-stage liver disease or liver cancer.[7]

Cirrhosis of the Liver: Hepatitis C is one of the leading causes of cirrhosis.  In a person who has cirrhosis of the liver, scar tissue begins to replace normal liver tissue, blocking the flow of blood through the organ and preventing it from working properly.  According to the National Digestive Diseases Information Clearinghouse, cirrhosis may lead to numerous complications, some of which can be deadly.  The complications include: ascites and edema, the accumulation of water in the abdomen and leg; bruising and bleeding; jaundice; itching; gallstones; toxins in the blood or brain, which can dull mental functioning and cause personality changes, coma, and even death; increased sensitivity to medication and its side effects; portal hypertension; varices, a condition characterized by blood from the intestines and spleen backing up into blood vessels in the stomach and esophagus (these vessels may burst); infections in other organs; ascites, when fluid in the abdomen becomes infected with bacteria normally present in the intestines; and kidney dysfunction and failure.  Cirrhosis is the eighth-leading cause of death by disease in the United States , taking about 25,000 lives each year.[8]

Liver Cancer:  Both Hepatitis C itself and cirrhosis of the liver, which is caused by HCV, can lead to liver cancer.  According to the CDC, people who suffer from chronic Hepatitis C infections have a 1-4% chance of developing liver cancer over a period of several decades.  For those who suffer from cirrhosis, however, the rate may be as high as 1-4% per year.[9]  Only about 10% of all liver cancer patients live longer than five years after the disease is diagnosed.[10]

Liver Transplants:  A Hepatitis C infection can eventually damage a person’s liver so badly that it cannot function at all.  The CDC reports that HCV-associated liver disease is the most frequent indication for liver transplantation among adults,[11] accounting for almost half of the approximately 4,000 transplants performed each year.[12]  

Hepatitis C: “An Awakening Giant”

Hepatitis C chronically infects an estimated 170 million people worldwide (three percent of the world’s population), with as many as 180,000 new cases occurring each year.  Health experts agree that Hepatitis C will become an increasingly expensive and deadly disease over the next several decades. 

In the United States , many HCV infections occurred through blood transfusions before 1990, when the disease was finally identified and blood banks began screening for HCV.  Death from HCV-caused liver disease often occurs more than 20 years after initial infection, however, so public health experts expect the death rate from Hepatitis C to triple over the next two decades.[13]  Moreover, most people with chronic HCV infections have yet to be diagnosed.  Researchers expect many of these undiagnosed carriers to come to the attention of medical personnel within the next decade.  Doctors at the National Institutes of Health therefore predict a fourfold increase in the number of adults diagnosed with chronic Hepatitis C between 1990 and 2015.[14]

The burgeoning Hepatitis C problem is likely to be very expensive.  The CDC estimated in 1998 that the United States already suffered medical and work-loss costs in excess of $600 million each year (not including the cost of liver transplants).  More importantly, perhaps, the researchers calculated that 8,000-10,000 Americans die each year from the disease.[15]

A recent study published in the American Journal of Public Health, however, predicts that current losses will be dwarfed by the costs the country is likely to experience from HCV-related illness between 2010 and 2019.  The paper reports that during that decade, 165,000 people will die from HCV-caused liver disease and another 27,200 will die from liver cancer related to Hepatitis C.  The researchers also predict that the United States will experience HCV-related medical care costs exceeding $8.9 billion from 2010 through 2019.  In all, the authors of the study calculated that the nation will suffer a societal cost of $21.3 to $54.2 billion, accounting for premature deaths and lost work productivity caused by the disease.  According to the researchers, the “results confirmed that Hepatitis C may be an awakening giant.”[16] 

Because Hepatitis C becomes more expensive to treat when it is not dealt with in its early stages, the best way for the nation to avert some of the costs associated with HCV is to undertake a campaign to diagnose and treat carriers of the virus.  As discussed more fully in Part IV, below, prisons are excellent places to implement such a strategy because a large proportion of Hepatitis C sufferers pass through prisons at some point during their lives.  The United States and Michigan Constitutions also require such humane treatment of inmates.  

Hepatitis C Diagnosis and Treatment

Detecting HCV infection can be a complicated procedure.  Treating it is also difficult, especially for more acute cases.

Diagnosing Hepatitis C

When HCV is present in a patient’s blood stream, it is detectable in several ways.  Within a few weeks of initial exposure, RNA (genetic material) from the virus can usually be detected.  Infected patients also develop antibodies as their bodies attempt to combat HCV; this reaction can be detected by enzyme immunoassay (EIA) tests with increasing levels of accuracy as time goes on.  Finally, within a few months of infection, patients begin to develop liver cell damage—often, but not always, manifested by high serum alanine aminotransferase (ALT) levels.[17]

At a recent conference of experts on Hepatitis C at the National Institutes of Health, the participants identified several methods of testing for the disease, and evaluated their relative merits.  The experts looked at the following options:

  • Testing for serum ALT levels.  Doctors may gain information about HCV by looking for the presence of elevated ALT levels.  This method is the cheapest and least invasive, making it attractive in some ways.  Serum ALT level testing, however, is insensitive and subject to error.  This is due to the fact that some people infected with the Hepatitis C virus do not have elevated ALT levels, and because ALT levels can fluctuate considerably over time.

  • Serologic Assays.  Hepatitis C infection can also be detected by looking for the presence of anti-HCV antibodies in a patient’s blood.  These tests, called EIA tests, are highly sensitive in most cases, and are relatively inexpensive.  False-positive and false-negative results are both very rare, and many medical experts consider a negative EIA test sufficient to rule out a Hepatitis C diagnosis.  The NIH conference participants recommended this method as an initial test for patients with chronic liver disease of some kind.

  • HCV RNA Assays.  Doctors should confirm a possible Hepatitis C diagnosis by doing a test to look for the presence of the virus’ genetic material in the patient’s blood.  Experts recommend that this test always be performed to confirm positive serologic tests, because an HCV RNA test will rule out false-positive results and helps to provide prognostic information for patients that are HCV-positive.[18]

  • Liver Biopsy.  The experts noted that only a liver biopsy can provide certain important information about the severity of a patient’s liver disease, allowing a patient to make a more informed decision about treatment.[19]

The Centers for Disease Control recommend that public health officials perform diagnostic tests for anyone who presents a risk factor for HCV infection. [20]  This would include many among the Michigan prison population.

Treating Hepatitis C

The CDC reports that therapy for Hepatitis C is a rapidly changing area of medical science; new drugs for the treatment of chronic HCV infection are presently being tested.[21]  Nonetheless, it is possible to make several generalizations about treating Hepatitis C.

The CDC recommends that all HCV-positive patients be evaluated for chronic liver disease.  In patients with fairly severe symptoms or progressed disease, experts recommend antiviral drug therapy.  The most commonly used drug is alpha-interferon.  Clinical trials have found that interferon has some success in normalizing serum ALT levels and suppressing the amount of detectable HCV RNA in patients’ blood streams.  Between 15-25% of people treated with the drug have a sustained response to the treatment—that is, they show improvements in ALT levels or other indicators of HCV infection for more than one year.  The remaining people either show no response to interferon at all, or relapse when treatment is stopped.[22]

The FDA has also approved a new drug therapy for Hepatitis C that involves the use of interferon and another drug, ribavirin, in combination.  This new therapy was more successful than interferon alone in clinical trials, boosting patients’ sustained-response rate to 40-50%.  A group of experts at the NIH conference recommend that doctors employ the combination treatment. [23]

The drug therapies have several drawbacks, including flu-like symptoms, fatigue, bone marrow suppression and neuropsychiatric effects such as apathy, irritability and depression.[24]   The drug therapies are usually not effective for patients with acute Hepatitis C or those with serious complications like cirrhosis,[25] so drug intervention early in the disease is medically advisable.

Cirrhosis, which can be caused by HCV infection, cannot be reversed.  Drug treatments can halt or delay further liver deterioration in Hepatitis C patients if combined with a healthy diet and abstinence from alcohol and drugs.  Cirrhosis itself also has many dangerous side-effects, each of which has its own symptoms and requires its own treatment, often with drug therapy, and sometimes including surgery.[26]

Complications from cirrhosis may become so severe, or the liver may become so damaged by scarring, that the patient requires a liver transplant.  According to the United Network of Organ Sharing, in 1996 a transplant patient faced about $314,600 in costs in the first year of treatment, and $21,900 each year thereafter.[27]  Of course, by treating the disease early in its progression, the need for more-expensive treatments like transplantation may be avoided.

Hepatitis C in Prison

Hepatitis C is a major problem in U.S. prisons; the prevalence of the disease in inmates is many times higher than in the population in general.  Because of the burgeoning social problem with HCV infection, and because prisons represent the frontline of the Hepatitis C battle, medical experts recommend that prison systems undertake programs to diagnose and treat prisoners. 

The Prevalence of HCV Infection Among Prisoners

A recent report to Congress by the National Commission on Correctional Health Care found a 17.0-18.6 percent prevalence of Hepatitis C infection among U.S. prisoners.  That would be 9 to 10 times higher than the prevalence in the population in general.  The Commission stated, however, that the estimate is likely to be quite low, given that studies conducted in individual prisons have found infection rates of 30-40%.[28]  These higher figures are confirmed by the CDC, which reports that between 15 and 40% of prisoners may be infected.[29]  Studies in California prisons show that over 41% of all prisoners in that state are infected with Hepatitis C.[30]  Other states have rates almost as bad.[31]

There does not appear to be any specific data on the prevalence of Hepatitis C in Michigan ’s prisons.  If Michigan conforms with the national estimate of a 15-40% prevalence, however, MDOC prisons likely contain at least 7,275 people infected with HCV, and may house more than 19,400.

Some researchers suggest that the high prevalence of HCV infection among prisoners derives from the confluence of two circumstances: Hepatitis C is very common among injection drug users, and a large proportion of prison inmates have a history of injection drug use.[32]  No matter what the cause, though, prisons clearly represent a major locus of HCV incidence.  A large percentage of all people infected with HCV pass through prisons at some point.  The National Commission on Correctional Health Care estimates that 1.3-1.4 million people released from prison in 1997 were infected with Hepatitis C.  This would mean that 29-32% of all people in the U.S. infected with the virus served time in a correctional facility during that year.[33]  As many as 68% of people infected with HCV may have served time at some point.[34]

Public Health Experts Recommend Testing and Treatment for Prisoners

The fact that so many people infected with HCV pass through prisons has prompted many public health experts to recommend that prisons institute proactive programs to test prisoners for HCV and treat those who suffer from the disease.  As one set of researchers put it, “Correctional facilities are critical settings in which to provide interventions for the prevention and treatment of infectious diseases.  Such interventions stand to benefit not only the inmates and their families and partners, but also the public health of the communities to which the vast majority of inmates return.”[35]

The experts who convened at the NIH in the Summer of 2002 recommended that prison officials implement programs to “prevent, diagnose, and treat HCV infection” among inmates.[36]  The National Commission on Correctional Health Care, too, recommended to Congress that prisons improve education of inmates about Hepatitis C and its spread through injection drug use and provide antiviral treatments for infected prisoners.[37]  Even the Federal Bureau of Prisons recommends screening of at-risk prisoners and prescribes various treatment guidelines for federal prisons.[38] 

Current Policy in Michigan Prisons

The Michigan Department of Corrections (MDOC) is not doing enough to diagnose and treat prisoners who carry Hepatitis C.  This failure, if it continues, will mean that numerous inmates suffer unnecessarily, and will contribute to a growing public-health crisis outside the prison walls.

Every prisoner’s blood is drawn and analyzed when he or she enters the MDOC system.  Blood samples are used to establish prisoners’ ALT levels at the time of their admittance.  MDOC Guidelines for HCV Treatment, however, state that MDOC will only test prisoners for HCV infection if they: (1) received blood products before 1990, or (2) were intravenous drug users, but then only when the prisoner has increased ALT levels as determined by the blood draw.[39]  That policy is clearly insufficient to catch many of the HCV infections that pass through prisons each year. 

The Federal Bureau of Prisons, based on medical evidence from the CDC and NIH, among other sources, recommends testing of all inmates that demonstrate elevated ALT levels of unknown etiology or signs and symptoms of hepatitis or any of the following:

  • History of ever injecting illicit drugs

  • Recipient of blood transfusion or organ transplant before 1992

  • Recipient of clotting factor transfusion prior to 1987

  • Receiving chronic hemodialysis: screen ALT levels monthly and anti-HCV antibodies semiannually

  • Percutaneous exposures to HCV-positive blood

  • History of tattoos or body piercings received while in jail or prison.[40]

MDOC’s guidelines fall well short of this standard. Even if it followed its own policy to the letter, the Department would not test any prisoners who fall into many of these categories. Also, it would test only a small proportion of intravenous drug users, the population of individuals most likely to be carrying HCV. Finally, it would not test many prisoners who have elevated ALT levels, nor would it re-screen at-risk prisoners after their initial blood draw to get later ALT level readings. All of these steps are necessary to properly screen for and diagnose HCV infection.

Moreover, even when it provides Hepatitis C testing, MDOC has in the past failed to inform some inmates of their HCV positive status. The Department has also often failed to provide further testing to determine the severity of the disease and other important facts to prisoners that test positive for the virus. The effectiveness of the limited testing MDOC does perform is therefore further restricted by the Department’s failure to take elementary follow-up steps.

Furthermore, despite the recommendations of the National Commission on Correctional Health Care and the Centers for Disease Control, MDOC does not provide education about Hepatitis C to inmates.  Prisoners do not learn about the risk factors for HCV, nor are they informed of its prevalence within the prison system. 

The CDC notes that prisons are an important front on which Hepatitis C infection can be addressed through education:

To identify persons who should be counseled and tested for HCV, health care professionals in primary care, specialty, and public health settings should routinely question patients about risk factors for infection, including history of injecting drug use. Current injection drug users are often not seen in primary care or other traditional health care settings. However, targeted outreach in other settings may be particularly effective in reaching this population. These settings include correctional institutions…[41]  

MDOC’s lack of testing thus represents an important missed opportunity for intervention in a growing public health problem.

The Department’s failures are very dangerous for prisoners and imperil the community outside the prison walls.  Prisoners who are infected with untreated Hepatitis C are at an increased risk of developing harmful, and potentially life threatening, complications from HCV, including cirrhosis and cancer.  Furthermore, people infected with the virus who are unaware of their HCV positive status are more likely to unknowingly transmit the disease to others within the prison system and, once they are released (the great majority of prisoners are eventually released), in the general population.  

The Eighth Amendment and Prison Medical Care

The Eighth Amendment to the United States Constitution reads, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”  In 1976, in Estelle v. Gamble, the Supreme Court ruled that “deliberate indifference to serious medical needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain,’” and is thus “proscribed by the Eighth Amendment.”[42]  According to the court, the government has an obligation to provide medical care for those whom it is punishing by incarceration. An inmate must rely on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met.  In the worst cases, such a failure may actually produce physical “torture or a lingering death” … the evils of most immediate concern to the drafters of the Amendment. In less serious cases, denial of medical care may result in pain and suffering which no one suggests would serve any penological purpose ... The infliction of such unnecessary suffering is inconsistent with contemporary standards of decency.[43]  

Courts have subsequently ruled that medical deprivations that pose a “substantial risk of serious harm” implicate prisoners’ Eighth Amendment rights.  If a prison official has a “sufficiently culpable state of mind”—that is, if he or she knows of and disregards an excessive risk to inmate health or safety—the official has violated the prisoner’s constitutionally-guaranteed rights.[44]

The Eighth Amendment duties of state officials apply to any person acting “under color of state law.”[45]  A “physician who is under contract with the State to provide medical services to inmates at a state-prison hospital, even on a part time basis, acts under color of state law … when he treats an inmate.”[46]  Thus, private individuals or corporations that contract with the state to provide medical care to prison inmates must also follow the strictures of the Eighth Amendment.

* Student, University of Michigan Law School and Gerald R. Ford School of Public Policy.

[1] This report provides only general information gathered from public documents and medical literature, and is not designed or intended to replace the advice of a licensed physician.

[2] Centers for Disease Control and Prevention, “National Hepatitis C Prevention Strategy.”  Summer, 200.

[3] National Foundation for Infectious Diseases, “Hepatitis C Fact Sheet.”  Available at http://www.nfid.org/factsheets/hepc.html.

[4] Centers for Disease Control and Prevention, “National Hepatitis C Prevention Strategy.” 

[5] Centers for Disease Control, “Recommendations for Prevention and Control of Hepatitis C Virus (HCV) Infection and HCV-Related Chronic Disease.”  MMWR, October 16, 1998 , Vol 47, p. 1.

[6] Worman, Howard J., “Hepatitis C,” (2002), available at http://cpmcnet.columbia.edu/dept/gi/hepC.html.

[7] Ibid; Centers for Disease Control, “National Hepatitis C Prevention Strategy.” 

[8] National Digestive Diseases Information Clearinghouse, “Cirrhosis of the Liver.”  Apr., 2000.  NIH Pub. No. 00-1134, available at http://www.niddk.nih.gov/health/digest/pubs/cirrhosi/cirrhosi.htm.

[9] Centers for Disease Control and Prevention, “National Hepatitis C Prevention Strategy.”

[10] American Society of Clinical Oncology website, http://www.oncology.com.

[11] Centers for Disease Control and Prevention, “National Hepatitis C Prevention Strategy.”

[12] National Foundation for Infectious Diseases, “Hepatitis C Fact Sheet.”

[13] Centers for Disease Control and Prevention, “National Hepatitis C Prevention Strategy.”

[14] National Institutes of Health Consensus Development Conference Final Statement, “Management of Hepatitis C: 2002,” June 10-12, 2002 (revision made Sept. 12, 2002 ).

[15] Centers for Disease Control, “Recommendations for Prevention and Control of Hepatitis C Virus (HCV) Infection and HCV-Related Chronic Disease.”

[16] Wong, John B., Geraldine N. McQuillan, John G. McHutchison, Thierry Poynard, “Estimating Future Hepatitis C Morbidity, Mortality, and Costs in the United States .”  American Journal of Public Health, Vol. 90, Issue 10, Oct. 2000, p. 1562.

[17] National Institutes of Health Consensus Development Conference Final Statement, “Management of Hepatitis C: 2002.” Issued June 10-12, 2002 (revision made September 12, 2002 ).

[18] Herrine, S.  “Approach to the Patient with Chronic Hepatitis C Infection,” Annals of Internal Medicine, May 21, 2002 ; 135: 747-757.

[19] National Institutes of Health Consensus Development Conference Final Statement, “Management of Hepatitis C: 2002.”

[20] Centers for Disease Control, “Recommendations for Prevention and Control of Hepatitis C Virus (HCV) Infection and HCV-Related Chronic Disease.”

[21] Ibid.

[22] Ibid.

[23] National Institutes of Health Consensus Development Conference Final Statement, “Management of Hepatitis C: 2002.”

[24] Centers for Disease Control, “Recommendations for Prevention and Control of Hepatitis C Virus (HCV) Infection and HCV-Related Chronic Disease.”

[25] National Institutes of Health Consensus Development Conference Final Statement, “Management of Hepatitis C: 2002”;  Centers for Disease Control, “Recommendations for Prevention and Control of Hepatitis C Virus (HCV) Infection and HCV-Related Chronic Disease.”

[26] National Digestive Diseases Information Clearinghouse, “Cirrhosis of the Liver.”

[27] Cited by California Pacific Medical Center , “Financial Matters: Liver Transplant Costs.”  Available at http://www.cpmc.org/advanced/liver/patients/topics/finance.html.

[28] National Commission on Correctional Health Care, “The Health Status of Soon-to-be-Released Inmates: A Report to Congress,” Vol. 1, March 2002.

[29] Centers for Disease Control and Prevention, “National Hepatitis C Prevention Strategy.”

[30] Ruiz, J.D., and J. Mikanda, “Seroprevalence of HIV, Hepatitis B, Hepatitis C, and Risk Behaviors

Among Inmates Entering the California Correctional System,” California Department of Health Services,

Office of AIDS, HIV/AIDS Epidemiology Office, March 1996.

[31] Maryland : 38%; Rhode Island : 33%; Washington: 30-40%.  See Hammett, Theodore M., Patricia Harmon and William Rhodes, “The Burden of Infectious Disease Among Inmates and Releasees from Correctional Facilities.”  Printed in National Commission on Correctional Health Care, “The Health Status of Soon-to-be-Released Inmates: A Report to Congress,” Vol. 2, March 2002.

[32] Ibid.

[33] National Commission on Correctional Health Care, “The Health Status of Soon-to-be-Released Inmates: A Report to Congress.”

[34] Hammett, Harmon and Rhodes , “The Burden of Infectious Disease Among Inmates and Releasees from Correctional Facilities.”

[35] Ibid.

[36] National Institutes of Health Consensus Development Conference Final Statement, “Management of Hepatitis C: 2002.” 

[37] National Commission on Correctional Health Care, “The Health Status of Soon-to-be-Released Inmates: A Report to Congress.”

[38] Federal Bureau of Prisons, Treatment Guidelines for Viral Hepatitis.

[39] Michigan Department of Corrections’ HCV Treatment Guidelines, issued March 29, 1999 .

[40] Federal Bureau of Prisons, Treatment Guidelines for Viral Hepatitis.

[41] Centers for Disease Control and Prevention, “National Hepatitis C Prevention Strategy.” 

[42] 429 U.S. 97, 104.

[43] Ibid. at 103.

[44] See Farmer v. Brennan, 511 U.S. 825 (1994); Napier v. Madison Cty., 238 F.3d 739 (6th Cir. 2001); Brown v. Bargery, 207 F.3d 863 (6th Cir. 2000).

[45] Doe v. Wiggington, 21 F.3d 733, 738 (6th Cir. 1994).

[46] West v. Atkins, 487 U.S. 42, 48 (1988).

[field_select_taxonomy1]

Hepatitis in Michigan Prisons

January 21, 2003

On January 21, 2003 , seven people incarcerated in Michigan prisons filed a class action lawsuit against officials in the Michigan Department of Corrections (MDOC), and against Correctional Medical Services, Inc. (CMS), the company contractually obligated to provide medical care to MDOC inmates.  The suit was brought by one woman and six male inmates who claim that they, and possibly as many as 14,000 other inmates, are being seriously harmed by the defendants’ failure to adequately test and treat them for Hepatitis C.  Hepatitis C is often a life threatening disease and a burgeoning public health care crisis that the surgeon general has declared a national epidemic.

What is Hepatitis C?[1]

Hepatitis C, also called “non-A, non-B Hepatitis,” is a blood-borne illness caused by the Hepatitis C virus (or “HCV”).  First discovered in 1988, HCV is now the most common chronic blood-borne viral infection in the United States .  According to conservative estimates, 3.9 million Americans, or 1.8% of the population, have been infected with HCV.[2]  The disease now causes 8,000 to 10,000 deaths each year in the United States , a death rate that is expected to triple in the next two decades.[3]

Until its discovery, the Hepatitis C virus was often transmitted through blood transfusions. [4]  Once blood banks began to screen for HCV in 1990, however, that method of transmission fell off.  Today, HCV is most often passed between intravenous drug users who share needles.  The virus can also be transmitted through sexual contact—sexual transmission is most common among promiscuous people.  Infected mothers also occasionally transmit HCV to fetuses.  Perhaps most frighteningly, 10% of all people infected with HCV show no risk factors for the disease; it is unclear how they contracted it.[5]  Some of these may have contracted the disease through exposure to the blood of infected people—for example, by sharing a toothbrush or razor with an HCV-positive person.[6]

The Hepatitis C virus infects and damages the liver, an organ that takes part in the body’s energy production, detoxification, immune functions and digestion.  A small portion (about 15-25%) of people who contract HCV resolve their infection without further problems.  All others become chronically infected.  Once chronic infection sets in, it is almost never cleared without treatment.  Of people who are chronically infected with the HCV virus, a majority (70%) develop chronic liver disease.  Some chronically infected people eventually develop irreversible cirrhosis of the liver, end-stage liver disease or liver cancer.[7]

Cirrhosis of the Liver: Hepatitis C is one of the leading causes of cirrhosis.  In a person who has cirrhosis of the liver, scar tissue begins to replace normal liver tissue, blocking the flow of blood through the organ and preventing it from working properly.  According to the National Digestive Diseases Information Clearinghouse, cirrhosis may lead to numerous complications, some of which can be deadly.  The complications include: ascites and edema, the accumulation of water in the abdomen and leg; bruising and bleeding; jaundice; itching; gallstones; toxins in the blood or brain, which can dull mental functioning and cause personality changes, coma, and even death; increased sensitivity to medication and its side effects; portal hypertension; varices, a condition characterized by blood from the intestines and spleen backing up into blood vessels in the stomach and esophagus (these vessels may burst); infections in other organs; ascites, when fluid in the abdomen becomes infected with bacteria normally present in the intestines; and kidney dysfunction and failure.  Cirrhosis is the eighth-leading cause of death by disease in the United States , taking about 25,000 lives each year.[8]

Liver Cancer:  Both Hepatitis C itself and cirrhosis of the liver, which is caused by HCV, can lead to liver cancer.  According to the CDC, people who suffer from chronic Hepatitis C infections have a 1-4% chance of developing liver cancer over a period of several decades.  For those who suffer from cirrhosis, however, the rate may be as high as 1-4% per year.[9]  Only about 10% of all liver cancer patients live longer than five years after the disease is diagnosed.[10]

Liver Transplants:  A Hepatitis C infection can eventually damage a person’s liver so badly that it cannot function at all.  The CDC reports that HCV-associated liver disease is the most frequent indication for liver transplantation among adults,[11] accounting for almost half of the approximately 4,000 transplants performed each year.[12]  

Hepatitis C: “An Awakening Giant”

Hepatitis C chronically infects an estimated 170 million people worldwide (three percent of the world’s population), with as many as 180,000 new cases occurring each year.  Health experts agree that Hepatitis C will become an increasingly expensive and deadly disease over the next several decades. 

In the United States , many HCV infections occurred through blood transfusions before 1990, when the disease was finally identified and blood banks began screening for HCV.  Death from HCV-caused liver disease often occurs more than 20 years after initial infection, however, so public health experts expect the death rate from Hepatitis C to triple over the next two decades.[13]  Moreover, most people with chronic HCV infections have yet to be diagnosed.  Researchers expect many of these undiagnosed carriers to come to the attention of medical personnel within the next decade.  Doctors at the National Institutes of Health therefore predict a fourfold increase in the number of adults diagnosed with chronic Hepatitis C between 1990 and 2015.[14]

The burgeoning Hepatitis C problem is likely to be very expensive.  The CDC estimated in 1998 that the United States already suffered medical and work-loss costs in excess of $600 million each year (not including the cost of liver transplants).  More importantly, perhaps, the researchers calculated that 8,000-10,000 Americans die each year from the disease.[15]

A recent study published in the American Journal of Public Health, however, predicts that current losses will be dwarfed by the costs the country is likely to experience from HCV-related illness between 2010 and 2019.  The paper reports that during that decade, 165,000 people will die from HCV-caused liver disease and another 27,200 will die from liver cancer related to Hepatitis C.  The researchers also predict that the United States will experience HCV-related medical care costs exceeding $8.9 billion from 2010 through 2019.  In all, the authors of the study calculated that the nation will suffer a societal cost of $21.3 to $54.2 billion, accounting for premature deaths and lost work productivity caused by the disease.  According to the researchers, the “results confirmed that Hepatitis C may be an awakening giant.”[16] 

Because Hepatitis C becomes more expensive to treat when it is not dealt with in its early stages, the best way for the nation to avert some of the costs associated with HCV is to undertake a campaign to diagnose and treat carriers of the virus.  As discussed more fully in Part IV, below, prisons are excellent places to implement such a strategy because a large proportion of Hepatitis C sufferers pass through prisons at some point during their lives.  The United States and Michigan Constitutions also require such humane treatment of inmates.  

Hepatitis C Diagnosis and Treatment

Detecting HCV infection can be a complicated procedure.  Treating it is also difficult, especially for more acute cases.

Diagnosing Hepatitis C

When HCV is present in a patient’s blood stream, it is detectable in several ways.  Within a few weeks of initial exposure, RNA (genetic material) from the virus can usually be detected.  Infected patients also develop antibodies as their bodies attempt to combat HCV; this reaction can be detected by enzyme immunoassay (EIA) tests with increasing levels of accuracy as time goes on.  Finally, within a few months of infection, patients begin to develop liver cell damage—often, but not always, manifested by high serum alanine aminotransferase (ALT) levels.[17]

At a recent conference of experts on Hepatitis C at the National Institutes of Health, the participants identified several methods of testing for the disease, and evaluated their relative merits.  The experts looked at the following options:

  • Testing for serum ALT levels.  Doctors may gain information about HCV by looking for the presence of elevated ALT levels.  This method is the cheapest and least invasive, making it attractive in some ways.  Serum ALT level testing, however, is insensitive and subject to error.  This is due to the fact that some people infected with the Hepatitis C virus do not have elevated ALT levels, and because ALT levels can fluctuate considerably over time.

  • Serologic Assays.  Hepatitis C infection can also be detected by looking for the presence of anti-HCV antibodies in a patient’s blood.  These tests, called EIA tests, are highly sensitive in most cases, and are relatively inexpensive.  False-positive and false-negative results are both very rare, and many medical experts consider a negative EIA test sufficient to rule out a Hepatitis C diagnosis.  The NIH conference participants recommended this method as an initial test for patients with chronic liver disease of some kind.

  • HCV RNA Assays.  Doctors should confirm a possible Hepatitis C diagnosis by doing a test to look for the presence of the virus’ genetic material in the patient’s blood.  Experts recommend that this test always be performed to confirm positive serologic tests, because an HCV RNA test will rule out false-positive results and helps to provide prognostic information for patients that are HCV-positive.[18]

  • Liver Biopsy.  The experts noted that only a liver biopsy can provide certain important information about the severity of a patient’s liver disease, allowing a patient to make a more informed decision about treatment.[19]

The Centers for Disease Control recommend that public health officials perform diagnostic tests for anyone who presents a risk factor for HCV infection. [20]  This would include many among the Michigan prison population.

Treating Hepatitis C

The CDC reports that therapy for Hepatitis C is a rapidly changing area of medical science; new drugs for the treatment of chronic HCV infection are presently being tested.[21]  Nonetheless, it is possible to make several generalizations about treating Hepatitis C.

The CDC recommends that all HCV-positive patients be evaluated for chronic liver disease.  In patients with fairly severe symptoms or progressed disease, experts recommend antiviral drug therapy.  The most commonly used drug is alpha-interferon.  Clinical trials have found that interferon has some success in normalizing serum ALT levels and suppressing the amount of detectable HCV RNA in patients’ blood streams.  Between 15-25% of people treated with the drug have a sustained response to the treatment—that is, they show improvements in ALT levels or other indicators of HCV infection for more than one year.  The remaining people either show no response to interferon at all, or relapse when treatment is stopped.[22]

The FDA has also approved a new drug therapy for Hepatitis C that involves the use of interferon and another drug, ribavirin, in combination.  This new therapy was more successful than interferon alone in clinical trials, boosting patients’ sustained-response rate to 40-50%.  A group of experts at the NIH conference recommend that doctors employ the combination treatment. [23]

The drug therapies have several drawbacks, including flu-like symptoms, fatigue, bone marrow suppression and neuropsychiatric effects such as apathy, irritability and depression.[24]   The drug therapies are usually not effective for patients with acute Hepatitis C or those with serious complications like cirrhosis,[25] so drug intervention early in the disease is medically advisable.

Cirrhosis, which can be caused by HCV infection, cannot be reversed.  Drug treatments can halt or delay further liver deterioration in Hepatitis C patients if combined with a healthy diet and abstinence from alcohol and drugs.  Cirrhosis itself also has many dangerous side-effects, each of which has its own symptoms and requires its own treatment, often with drug therapy, and sometimes including surgery.[26]

Complications from cirrhosis may become so severe, or the liver may become so damaged by scarring, that the patient requires a liver transplant.  According to the United Network of Organ Sharing, in 1996 a transplant patient faced about $314,600 in costs in the first year of treatment, and $21,900 each year thereafter.[27]  Of course, by treating the disease early in its progression, the need for more-expensive treatments like transplantation may be avoided.

Hepatitis C in Prison

Hepatitis C is a major problem in U.S. prisons; the prevalence of the disease in inmates is many times higher than in the population in general.  Because of the burgeoning social problem with HCV infection, and because prisons represent the frontline of the Hepatitis C battle, medical experts recommend that prison systems undertake programs to diagnose and treat prisoners. 

The Prevalence of HCV Infection Among Prisoners

A recent report to Congress by the National Commission on Correctional Health Care found a 17.0-18.6 percent prevalence of Hepatitis C infection among U.S. prisoners.  That would be 9 to 10 times higher than the prevalence in the population in general.  The Commission stated, however, that the estimate is likely to be quite low, given that studies conducted in individual prisons have found infection rates of 30-40%.[28]  These higher figures are confirmed by the CDC, which reports that between 15 and 40% of prisoners may be infected.[29]  Studies in California prisons show that over 41% of all prisoners in that state are infected with Hepatitis C.[30]  Other states have rates almost as bad.[31]

There does not appear to be any specific data on the prevalence of Hepatitis C in Michigan ’s prisons.  If Michigan conforms with the national estimate of a 15-40% prevalence, however, MDOC prisons likely contain at least 7,275 people infected with HCV, and may house more than 19,400.

Some researchers suggest that the high prevalence of HCV infection among prisoners derives from the confluence of two circumstances: Hepatitis C is very common among injection drug users, and a large proportion of prison inmates have a history of injection drug use.[32]  No matter what the cause, though, prisons clearly represent a major locus of HCV incidence.  A large percentage of all people infected with HCV pass through prisons at some point.  The National Commission on Correctional Health Care estimates that 1.3-1.4 million people released from prison in 1997 were infected with Hepatitis C.  This would mean that 29-32% of all people in the U.S. infected with the virus served time in a correctional facility during that year.[33]  As many as 68% of people infected with HCV may have served time at some point.[34]

Public Health Experts Recommend Testing and Treatment for Prisoners

The fact that so many people infected with HCV pass through prisons has prompted many public health experts to recommend that prisons institute proactive programs to test prisoners for HCV and treat those who suffer from the disease.  As one set of researchers put it, “Correctional facilities are critical settings in which to provide interventions for the prevention and treatment of infectious diseases.  Such interventions stand to benefit not only the inmates and their families and partners, but also the public health of the communities to which the vast majority of inmates return.”[35]

The experts who convened at the NIH in the Summer of 2002 recommended that prison officials implement programs to “prevent, diagnose, and treat HCV infection” among inmates.[36]  The National Commission on Correctional Health Care, too, recommended to Congress that prisons improve education of inmates about Hepatitis C and its spread through injection drug use and provide antiviral treatments for infected prisoners.[37]  Even the Federal Bureau of Prisons recommends screening of at-risk prisoners and prescribes various treatment guidelines for federal prisons.[38] 

Current Policy in Michigan Prisons

The Michigan Department of Corrections (MDOC) is not doing enough to diagnose and treat prisoners who carry Hepatitis C.  This failure, if it continues, will mean that numerous inmates suffer unnecessarily, and will contribute to a growing public-health crisis outside the prison walls.

Every prisoner’s blood is drawn and analyzed when he or she enters the MDOC system.  Blood samples are used to establish prisoners’ ALT levels at the time of their admittance.  MDOC Guidelines for HCV Treatment, however, state that MDOC will only test prisoners for HCV infection if they: (1) received blood products before 1990, or (2) were intravenous drug users, but then only when the prisoner has increased ALT levels as determined by the blood draw.[39]  That policy is clearly insufficient to catch many of the HCV infections that pass through prisons each year. 

The Federal Bureau of Prisons, based on medical evidence from the CDC and NIH, among other sources, recommends testing of all inmates that demonstrate elevated ALT levels of unknown etiology or signs and symptoms of hepatitis or any of the following:

  • History of ever injecting illicit drugs

  • Recipient of blood transfusion or organ transplant before 1992

  • Recipient of clotting factor transfusion prior to 1987

  • Receiving chronic hemodialysis: screen ALT levels monthly and anti-HCV antibodies semiannually

  • Percutaneous exposures to HCV-positive blood

  • History of tattoos or body piercings received while in jail or prison.[40]

MDOC’s guidelines fall well short of this standard. Even if it followed its own policy to the letter, the Department would not test any prisoners who fall into many of these categories. Also, it would test only a small proportion of intravenous drug users, the population of individuals most likely to be carrying HCV. Finally, it would not test many prisoners who have elevated ALT levels, nor would it re-screen at-risk prisoners after their initial blood draw to get later ALT level readings. All of these steps are necessary to properly screen for and diagnose HCV infection.

Moreover, even when it provides Hepatitis C testing, MDOC has in the past failed to inform some inmates of their HCV positive status. The Department has also often failed to provide further testing to determine the severity of the disease and other important facts to prisoners that test positive for the virus. The effectiveness of the limited testing MDOC does perform is therefore further restricted by the Department’s failure to take elementary follow-up steps.

Furthermore, despite the recommendations of the National Commission on Correctional Health Care and the Centers for Disease Control, MDOC does not provide education about Hepatitis C to inmates.  Prisoners do not learn about the risk factors for HCV, nor are they informed of its prevalence within the prison system. 

The CDC notes that prisons are an important front on which Hepatitis C infection can be addressed through education:

To identify persons who should be counseled and tested for HCV, health care professionals in primary care, specialty, and public health settings should routinely question patients about risk factors for infection, including history of injecting drug use. Current injection drug users are often not seen in primary care or other traditional health care settings. However, targeted outreach in other settings may be particularly effective in reaching this population. These settings include correctional institutions…[41]  

MDOC’s lack of testing thus represents an important missed opportunity for intervention in a growing public health problem.

The Department’s failures are very dangerous for prisoners and imperil the community outside the prison walls.  Prisoners who are infected with untreated Hepatitis C are at an increased risk of developing harmful, and potentially life threatening, complications from HCV, including cirrhosis and cancer.  Furthermore, people infected with the virus who are unaware of their HCV positive status are more likely to unknowingly transmit the disease to others within the prison system and, once they are released (the great majority of prisoners are eventually released), in the general population.  

The Eighth Amendment and Prison Medical Care

The Eighth Amendment to the United States Constitution reads, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”  In 1976, in Estelle v. Gamble, the Supreme Court ruled that “deliberate indifference to serious medical needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain,’” and is thus “proscribed by the Eighth Amendment.”[42]  According to the court, the government has an obligation to provide medical care for those whom it is punishing by incarceration. An inmate must rely on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met.  In the worst cases, such a failure may actually produce physical “torture or a lingering death” … the evils of most immediate concern to the drafters of the Amendment. In less serious cases, denial of medical care may result in pain and suffering which no one suggests would serve any penological purpose ... The infliction of such unnecessary suffering is inconsistent with contemporary standards of decency.[43]  

Courts have subsequently ruled that medical deprivations that pose a “substantial risk of serious harm” implicate prisoners’ Eighth Amendment rights.  If a prison official has a “sufficiently culpable state of mind”—that is, if he or she knows of and disregards an excessive risk to inmate health or safety—the official has violated the prisoner’s constitutionally-guaranteed rights.[44]

The Eighth Amendment duties of state officials apply to any person acting “under color of state law.”[45]  A “physician who is under contract with the State to provide medical services to inmates at a state-prison hospital, even on a part time basis, acts under color of state law … when he treats an inmate.”[46]  Thus, private individuals or corporations that contract with the state to provide medical care to prison inmates must also follow the strictures of the Eighth Amendment.

* Student, University of Michigan Law School and Gerald R. Ford School of Public Policy.

[1] This report provides only general information gathered from public documents and medical literature, and is not designed or intended to replace the advice of a licensed physician.

[2] Centers for Disease Control and Prevention, “National Hepatitis C Prevention Strategy.”  Summer, 200.

[3] National Foundation for Infectious Diseases, “Hepatitis C Fact Sheet.”  Available at http://www.nfid.org/factsheets/hepc.html.

[4] Centers for Disease Control and Prevention, “National Hepatitis C Prevention Strategy.” 

[5] Centers for Disease Control, “Recommendations for Prevention and Control of Hepatitis C Virus (HCV) Infection and HCV-Related Chronic Disease.”  MMWR, October 16, 1998 , Vol 47, p. 1.

[6] Worman, Howard J., “Hepatitis C,” (2002), available at http://cpmcnet.columbia.edu/dept/gi/hepC.html.

[7] Ibid; Centers for Disease Control, “National Hepatitis C Prevention Strategy.” 

[8] National Digestive Diseases Information Clearinghouse, “Cirrhosis of the Liver.”  Apr., 2000.  NIH Pub. No. 00-1134, available at http://www.niddk.nih.gov/health/digest/pubs/cirrhosi/cirrhosi.htm.

[9] Centers for Disease Control and Prevention, “National Hepatitis C Prevention Strategy.”

[10] American Society of Clinical Oncology website, http://www.oncology.com.

[11] Centers for Disease Control and Prevention, “National Hepatitis C Prevention Strategy.”

[12] National Foundation for Infectious Diseases, “Hepatitis C Fact Sheet.”

[13] Centers for Disease Control and Prevention, “National Hepatitis C Prevention Strategy.”

[14] National Institutes of Health Consensus Development Conference Final Statement, “Management of Hepatitis C: 2002,” June 10-12, 2002 (revision made Sept. 12, 2002 ).

[15] Centers for Disease Control, “Recommendations for Prevention and Control of Hepatitis C Virus (HCV) Infection and HCV-Related Chronic Disease.”

[16] Wong, John B., Geraldine N. McQuillan, John G. McHutchison, Thierry Poynard, “Estimating Future Hepatitis C Morbidity, Mortality, and Costs in the United States .”  American Journal of Public Health, Vol. 90, Issue 10, Oct. 2000, p. 1562.

[17] National Institutes of Health Consensus Development Conference Final Statement, “Management of Hepatitis C: 2002.” Issued June 10-12, 2002 (revision made September 12, 2002 ).

[18] Herrine, S.  “Approach to the Patient with Chronic Hepatitis C Infection,” Annals of Internal Medicine, May 21, 2002 ; 135: 747-757.

[19] National Institutes of Health Consensus Development Conference Final Statement, “Management of Hepatitis C: 2002.”

[20] Centers for Disease Control, “Recommendations for Prevention and Control of Hepatitis C Virus (HCV) Infection and HCV-Related Chronic Disease.”

[21] Ibid.

[22] Ibid.

[23] National Institutes of Health Consensus Development Conference Final Statement, “Management of Hepatitis C: 2002.”

[24] Centers for Disease Control, “Recommendations for Prevention and Control of Hepatitis C Virus (HCV) Infection and HCV-Related Chronic Disease.”

[25] National Institutes of Health Consensus Development Conference Final Statement, “Management of Hepatitis C: 2002”;  Centers for Disease Control, “Recommendations for Prevention and Control of Hepatitis C Virus (HCV) Infection and HCV-Related Chronic Disease.”

[26] National Digestive Diseases Information Clearinghouse, “Cirrhosis of the Liver.”

[27] Cited by California Pacific Medical Center , “Financial Matters: Liver Transplant Costs.”  Available at http://www.cpmc.org/advanced/liver/patients/topics/finance.html.

[28] National Commission on Correctional Health Care, “The Health Status of Soon-to-be-Released Inmates: A Report to Congress,” Vol. 1, March 2002.

[29] Centers for Disease Control and Prevention, “National Hepatitis C Prevention Strategy.”

[30] Ruiz, J.D., and J. Mikanda, “Seroprevalence of HIV, Hepatitis B, Hepatitis C, and Risk Behaviors

Among Inmates Entering the California Correctional System,” California Department of Health Services,

Office of AIDS, HIV/AIDS Epidemiology Office, March 1996.

[31] Maryland : 38%; Rhode Island : 33%; Washington: 30-40%.  See Hammett, Theodore M., Patricia Harmon and William Rhodes, “The Burden of Infectious Disease Among Inmates and Releasees from Correctional Facilities.”  Printed in National Commission on Correctional Health Care, “The Health Status of Soon-to-be-Released Inmates: A Report to Congress,” Vol. 2, March 2002.

[32] Ibid.

[33] National Commission on Correctional Health Care, “The Health Status of Soon-to-be-Released Inmates: A Report to Congress.”

[34] Hammett, Harmon and Rhodes , “The Burden of Infectious Disease Among Inmates and Releasees from Correctional Facilities.”

[35] Ibid.

[36] National Institutes of Health Consensus Development Conference Final Statement, “Management of Hepatitis C: 2002.” 

[37] National Commission on Correctional Health Care, “The Health Status of Soon-to-be-Released Inmates: A Report to Congress.”

[38] Federal Bureau of Prisons, Treatment Guidelines for Viral Hepatitis.

[39] Michigan Department of Corrections’ HCV Treatment Guidelines, issued March 29, 1999 .

[40] Federal Bureau of Prisons, Treatment Guidelines for Viral Hepatitis.

[41] Centers for Disease Control and Prevention, “National Hepatitis C Prevention Strategy.” 

[42] 429 U.S. 97, 104.

[43] Ibid. at 103.

[44] See Farmer v. Brennan, 511 U.S. 825 (1994); Napier v. Madison Cty., 238 F.3d 739 (6th Cir. 2001); Brown v. Bargery, 207 F.3d 863 (6th Cir. 2000).

[45] Doe v. Wiggington, 21 F.3d 733, 738 (6th Cir. 1994).

[46] West v. Atkins, 487 U.S. 42, 48 (1988).

In a lawsuit that may impact thousands of Michigan citizens, the American Civil Liberties Union of Michigan is charging that Michigan prison officials and the Department of Corrections are allowing an infectious disease to reach epidemic proportions by failing to adequately test and treat inmates with the Hepatitis C Virus (HCV). The class action lawsuit was filed today in federal district court.

HCV is a blood-borne virus that causes liver disease and other life-threatening problems. It is spread primarily through contact with the blood of an infected person by, for example, sharing of intravenous or tattoo needles or the sharing of bodily fluids, including during sex. It may also be spread through the sharing razors and toothbrushes.  

“This is a very serious problem for everyone in Michigan. Unless the prisons begin to follow appropriate protocols for testing and treating Hepatitis C among inmates, HCV will continue to spread well beyond the prison walls,” said Kary Moss, executive director of the Michigan ACLU.  “And unless it is treated in the early stages of the disease, the cost of treating the disease will undoubtedly rise dramatically.”  

The surgeon general has declared the disease to be a national epidemic. It now causes between 8,000 and 10,000 deaths each year in the U.S., a death rate that is expected to triple in the next two decades.  The nation’s prisons are a focal point for Hepatitis C infection and transmission, with an estimated 15 to 40% infection rate, as compared to a rate of 2% for those outside prison.  

At the end of 2002, Michigan’s inmate population exceeded 49,000. National and other state estimates suggest that 7,350 –19,600 of these inmates (fifteen to forty percent) may be infected with HCV, and many more are likely to have elevated risk factors for HCV infection that indicate HCV testing would be appropriate.  

The ACLU lawsuit asserts that not only does the Michigan Department of Corrections’ protocol for testing and treating inmates for HCV “fall[s] far short of nationally accepted medical standards,” MDOC also fails to follow its own inadequate standards.  According to the complaint, some inmates are not even notified that the have Hepatitis C or educated about how to prevent the transmission of the disease.  

“Not only does the MDOC’s approach to HCV constitute cruel and unusual punishment, but it is also extremely short-sighted,” said Michael J. Steinberg, legal director of the Michigan ACLU. “Inmates with Hepatitis C will eventually be released from prison. If they are not diagnosed or told that they are infected, they will unknowingly spread this deadly disease throughout society.”  

In addition to Moss and Steinberg, ACLU Cooperating Attorney Daniel Manville will be working on the case, as well as student attorneys from the University of Michigan Clinical Law Program supervised by Professor David Santacroce.                     

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State Prisons Fail to Stop Spread of Hepatitis C Epidemic

January 21, 2003

In a lawsuit that may impact thousands of Michigan citizens, the American Civil Liberties Union of Michigan is charging that Michigan prison officials and the Department of Corrections are allowing an infectious disease to reach epidemic proportions by failing to adequately test and treat inmates with the Hepatitis C Virus (HCV). The class action lawsuit was filed today in federal district court.

HCV is a blood-borne virus that causes liver disease and other life-threatening problems. It is spread primarily through contact with the blood of an infected person by, for example, sharing of intravenous or tattoo needles or the sharing of bodily fluids, including during sex. It may also be spread through the sharing razors and toothbrushes.  

“This is a very serious problem for everyone in Michigan. Unless the prisons begin to follow appropriate protocols for testing and treating Hepatitis C among inmates, HCV will continue to spread well beyond the prison walls,” said Kary Moss, executive director of the Michigan ACLU.  “And unless it is treated in the early stages of the disease, the cost of treating the disease will undoubtedly rise dramatically.”  

The surgeon general has declared the disease to be a national epidemic. It now causes between 8,000 and 10,000 deaths each year in the U.S., a death rate that is expected to triple in the next two decades.  The nation’s prisons are a focal point for Hepatitis C infection and transmission, with an estimated 15 to 40% infection rate, as compared to a rate of 2% for those outside prison.  

At the end of 2002, Michigan’s inmate population exceeded 49,000. National and other state estimates suggest that 7,350 –19,600 of these inmates (fifteen to forty percent) may be infected with HCV, and many more are likely to have elevated risk factors for HCV infection that indicate HCV testing would be appropriate.  

The ACLU lawsuit asserts that not only does the Michigan Department of Corrections’ protocol for testing and treating inmates for HCV “fall[s] far short of nationally accepted medical standards,” MDOC also fails to follow its own inadequate standards.  According to the complaint, some inmates are not even notified that the have Hepatitis C or educated about how to prevent the transmission of the disease.  

“Not only does the MDOC’s approach to HCV constitute cruel and unusual punishment, but it is also extremely short-sighted,” said Michael J. Steinberg, legal director of the Michigan ACLU. “Inmates with Hepatitis C will eventually be released from prison. If they are not diagnosed or told that they are infected, they will unknowingly spread this deadly disease throughout society.”  

In addition to Moss and Steinberg, ACLU Cooperating Attorney Daniel Manville will be working on the case, as well as student attorneys from the University of Michigan Clinical Law Program supervised by Professor David Santacroce.                     

The American Civil Liberties Union of Michigan filed a federal lawsuit against the City of Dearborn today challenging the constitutionality of a city ordinance that makes it a crime to protest unless a permit is obtained at least 30 days before the event.

“The 30-day waiting period prevents citizens from demonstrating at a time when they can be most effective in influencing public policy,” said Kary Moss, director of the Michigan ACLU. “If the Dearborn City Council schedules a vote next week on a proposal to fire half of the City employees, should the workers have to wait a month to protest that proposal?”

The lawsuit was filed on behalf of the American-Arab Anti-Discrimination Committee (ADC), a national civil rights organization with offices in Dearborn, and Imad Chammout, a Dearborn resident and business owner.

The City of Dearborn prosecuted Imad Chammout last spring for participating in a march without a permit, a crime punishable by up to 90 days in prison and a $500 fine. The march, which was not organized by Chammout, was held to protest Israeli policies a few days after Israeli soldiers entered into a Palestinian refugee camp in Jenin.

“It was important to me to be able to speak out about what was happening,” said Chammout. “Now I want to make sure that others have the right to do that without the fear of being arrested or jailed."

Both ADC and Chammout would like to organize marches in the future to promptly respond to national or international events, including the potential U.S. invasion of Iraq . However, the Dearborn ordinance may chill any effort of that kind.

“A march a couple of days after an event would attract far more protesters and enthusiasm than a march a month later and is therefore more likely to sway the undecided,” said Nabih Ayad, general counsel for ADC and an attorney on this case.

“We’re hopeful that we’ll be successful in this case since the courts have previously struck down ordinances with waiting periods as short as 3 days when political speech was at stake,” said ACLU cooperating attorney Bill Wertheimer. “Cities certainly have a legitimate interest in controlling traffic and large crowds, but a 30-day waiting period is extreme.”

Other attorneys working on the case are Cynthia Heenan, a cooperating attorney for the National Lawyers Guild, ACLU Cooperating Attorney Majed Moughni and ACLU Attorneys Noel Saleh and Michael J. Steinberg. In addition to filing a complaint, the plaintiffs filed a motion for a preliminary injunction. Both documents are available below. No date for a hearing has been set.

To read the complaint, go to: aclumich.org/sites/default/files/file/pdf/briefs/dearborncomplaint.pdf

 

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ACLU, ADC Sue Dearborn Over Protest Rules

January 21, 2003

The American Civil Liberties Union of Michigan filed a federal lawsuit against the City of Dearborn today challenging the constitutionality of a city ordinance that makes it a crime to protest unless a permit is obtained at least 30 days before the event.

“The 30-day waiting period prevents citizens from demonstrating at a time when they can be most effective in influencing public policy,” said Kary Moss, director of the Michigan ACLU. “If the Dearborn City Council schedules a vote next week on a proposal to fire half of the City employees, should the workers have to wait a month to protest that proposal?”

The lawsuit was filed on behalf of the American-Arab Anti-Discrimination Committee (ADC), a national civil rights organization with offices in Dearborn, and Imad Chammout, a Dearborn resident and business owner.

The City of Dearborn prosecuted Imad Chammout last spring for participating in a march without a permit, a crime punishable by up to 90 days in prison and a $500 fine. The march, which was not organized by Chammout, was held to protest Israeli policies a few days after Israeli soldiers entered into a Palestinian refugee camp in Jenin.

“It was important to me to be able to speak out about what was happening,” said Chammout. “Now I want to make sure that others have the right to do that without the fear of being arrested or jailed."

Both ADC and Chammout would like to organize marches in the future to promptly respond to national or international events, including the potential U.S. invasion of Iraq . However, the Dearborn ordinance may chill any effort of that kind.

“A march a couple of days after an event would attract far more protesters and enthusiasm than a march a month later and is therefore more likely to sway the undecided,” said Nabih Ayad, general counsel for ADC and an attorney on this case.

“We’re hopeful that we’ll be successful in this case since the courts have previously struck down ordinances with waiting periods as short as 3 days when political speech was at stake,” said ACLU cooperating attorney Bill Wertheimer. “Cities certainly have a legitimate interest in controlling traffic and large crowds, but a 30-day waiting period is extreme.”

Other attorneys working on the case are Cynthia Heenan, a cooperating attorney for the National Lawyers Guild, ACLU Cooperating Attorney Majed Moughni and ACLU Attorneys Noel Saleh and Michael J. Steinberg. In addition to filing a complaint, the plaintiffs filed a motion for a preliminary injunction. Both documents are available below. No date for a hearing has been set.

To read the complaint, go to: aclumich.org/sites/default/files/file/pdf/briefs/dearborncomplaint.pdf

 

In an interesting turn of events this week, the ACLU of Michigan was victorious on two different cases that are before the Sixth Circuit Court of Appeals in Cincinnati.

The Sixth Circuit has agreed to rehear the case regarding the drug testing of welfare recipients, Marchwinski et al., v. Family Independence Agency, et al, but has denied the government’s request for an en banc court to rehear the closed immigration hearings decision.

The ACLU filed a class-action lawsuit in September 1999 on behalf of all Michigan welfare recipients who would be denied income support and other benefits under the state's "Family Independence Assistance" program for families with dependent children if they refused to submit to random drug testing or failed to comply with a mandatory "substance abuse treatment plan."    

The ACLU argued that the State’s pilot program violates the Fourth Amendment's requirement that people not be subjected to "searches and seizures" without probable cause or suspicion that illegal activity has occurred.  Federal District Court Judge Victoria Roberts agreed with the ACLU, but the State appealed to the Sixth Circuit and Roberts’ ruling was overturned.   

The decision to rehear the case by an en banc panel indicates that there are justices who believe that the earlier outcome warrants a second look.  It is anticipated the case will be argued on March 26.  

In the second ACLU case to receive the Court’s attention, the Court denied the government's petition for a rehearing in the ACLU's successful challenge to the government's blanket policy of conducting secret deportation hearings in post-9/11 cases. 

Last August, a unanimous three-judge panel of the appeals court struck down the policy, declaring in a much-quoted decision that "democracies die behind closed doors." If the government chooses to pursue the case, it now has 90 days from today to file a petition for certiorari with the United States Supreme Court. 

The ACLU has also challenged the government's secrecy rules on behalf of a group of New Jersey newspapers.  In that case, the Third Circuit Court of Appeals in Philadelphia upheld the government's secrecy policy and recently denied an ACLU request for a full court rehearing.  

By reinforcing a split between the Circuits, today's order by the Sixth Circuit increases the likelihood that the Supreme Court will have the final say on the legality of secret deportation hearings.  The deadline for filing a petition for certiorari from the Third

Circuit decision is the first week of March.

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ACLU Gains Attention of Sixth Circuit Court of Appeals

January 24, 2003

In an interesting turn of events this week, the ACLU of Michigan was victorious on two different cases that are before the Sixth Circuit Court of Appeals in Cincinnati.

The Sixth Circuit has agreed to rehear the case regarding the drug testing of welfare recipients, Marchwinski et al., v. Family Independence Agency, et al, but has denied the government’s request for an en banc court to rehear the closed immigration hearings decision.

The ACLU filed a class-action lawsuit in September 1999 on behalf of all Michigan welfare recipients who would be denied income support and other benefits under the state's "Family Independence Assistance" program for families with dependent children if they refused to submit to random drug testing or failed to comply with a mandatory "substance abuse treatment plan."    

The ACLU argued that the State’s pilot program violates the Fourth Amendment's requirement that people not be subjected to "searches and seizures" without probable cause or suspicion that illegal activity has occurred.  Federal District Court Judge Victoria Roberts agreed with the ACLU, but the State appealed to the Sixth Circuit and Roberts’ ruling was overturned.   

The decision to rehear the case by an en banc panel indicates that there are justices who believe that the earlier outcome warrants a second look.  It is anticipated the case will be argued on March 26.  

In the second ACLU case to receive the Court’s attention, the Court denied the government's petition for a rehearing in the ACLU's successful challenge to the government's blanket policy of conducting secret deportation hearings in post-9/11 cases. 

Last August, a unanimous three-judge panel of the appeals court struck down the policy, declaring in a much-quoted decision that "democracies die behind closed doors." If the government chooses to pursue the case, it now has 90 days from today to file a petition for certiorari with the United States Supreme Court. 

The ACLU has also challenged the government's secrecy rules on behalf of a group of New Jersey newspapers.  In that case, the Third Circuit Court of Appeals in Philadelphia upheld the government's secrecy policy and recently denied an ACLU request for a full court rehearing.  

By reinforcing a split between the Circuits, today's order by the Sixth Circuit increases the likelihood that the Supreme Court will have the final say on the legality of secret deportation hearings.  The deadline for filing a petition for certiorari from the Third

Circuit decision is the first week of March.

A federal district court judge ruled today that a Frenchtown Charter Township ordinance that prohibits firefighters from speaking to the news media about any “fire department matters” — including matters of public concern is unconstitutional. The American Civil Liberties Union of Michigan had filed the lawsuit on behalf of the Township’s firefighters’ union.

Bob Gerlach, a Frenchtown fire fighter, along with other Union members, raised serious issues of public safety at a Township Board meeting in the summer of 2001. Gerlach expressed concern that staffing levels and incident command procedures contributed to four fatalities at a recent fire.  Instead of acting on the concerns of the fire fighters, the Board passed Ordinance No.158-2 to restrict the speech of the firefighters, including that which is of public concern.  The lawsuit focused on two particular topics of public concern, those concerning safety violations and labor-relations matters within the Fire Department.

“This is a great decision for the firefighters and for the people we protect.” said Mr. Gerlach.  “The public has a right to know about what’s happening in this department that affects them.”

In December, 2001, the Michigan Department of Consumer & Industry Services General Industry Safety Division issued a report finding the Frenchtown Fire Department to be in violation of MIOSHA rules applicable to fire departments, including three violations characterized as “serious” for inadequate training, inadequate incident command system and inadequate organizational structure.  After the ordinance was passed, Mr. Gerlach was unable to respond to a reporter from the Monroe Evening News for fear of discipline and/or criminal prosecution.

In her ruling, Judge Marianne O. Battani wrote, “Plaintiffs are correct that speech dealing generally with ‘the policies, procedures, practices and/or operation of the fire department,’ or ‘the business or policy affairs of the fire department,’ covers topics of public concern. Cases from the various Circuits confirm that the performance of public works and agencies, including the fire department specifically, is of public importance. "Firefighters don’t lose their speech rights when they become government employees,” said David R. Radtke, ACLU cooperating attorney “Men and women who give so much to their community deserve far better from their government. We are very pleased that the Ordinance was found unconstitutional and that this gag order will be removed.”  

“We expect this case to have an impact far beyond Frenchtown Township ,” said Kary Moss , ACLU of Michigan Executive Director. "We know of other municipalities, including Lyon Township , with similar gag rules and we urge them to amend them to comply with the Constitution."  

Read the entire complaint.

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Firefighters Can Now Speak Out

January 29, 2003

A federal district court judge ruled today that a Frenchtown Charter Township ordinance that prohibits firefighters from speaking to the news media about any “fire department matters” — including matters of public concern is unconstitutional. The American Civil Liberties Union of Michigan had filed the lawsuit on behalf of the Township’s firefighters’ union.

Bob Gerlach, a Frenchtown fire fighter, along with other Union members, raised serious issues of public safety at a Township Board meeting in the summer of 2001. Gerlach expressed concern that staffing levels and incident command procedures contributed to four fatalities at a recent fire.  Instead of acting on the concerns of the fire fighters, the Board passed Ordinance No.158-2 to restrict the speech of the firefighters, including that which is of public concern.  The lawsuit focused on two particular topics of public concern, those concerning safety violations and labor-relations matters within the Fire Department.

“This is a great decision for the firefighters and for the people we protect.” said Mr. Gerlach.  “The public has a right to know about what’s happening in this department that affects them.”

In December, 2001, the Michigan Department of Consumer & Industry Services General Industry Safety Division issued a report finding the Frenchtown Fire Department to be in violation of MIOSHA rules applicable to fire departments, including three violations characterized as “serious” for inadequate training, inadequate incident command system and inadequate organizational structure.  After the ordinance was passed, Mr. Gerlach was unable to respond to a reporter from the Monroe Evening News for fear of discipline and/or criminal prosecution.

In her ruling, Judge Marianne O. Battani wrote, “Plaintiffs are correct that speech dealing generally with ‘the policies, procedures, practices and/or operation of the fire department,’ or ‘the business or policy affairs of the fire department,’ covers topics of public concern. Cases from the various Circuits confirm that the performance of public works and agencies, including the fire department specifically, is of public importance. "Firefighters don’t lose their speech rights when they become government employees,” said David R. Radtke, ACLU cooperating attorney “Men and women who give so much to their community deserve far better from their government. We are very pleased that the Ordinance was found unconstitutional and that this gag order will be removed.”  

“We expect this case to have an impact far beyond Frenchtown Township ,” said Kary Moss , ACLU of Michigan Executive Director. "We know of other municipalities, including Lyon Township , with similar gag rules and we urge them to amend them to comply with the Constitution."  

Read the entire complaint.

After Brett Barber, a junior at Dearborn High School, was told to take off his anti-Bush t-shirt or go home, he called the ACLU of Michigan to ask for help. Understanding that the school violated Barber’s free speech rights, the ACLU is now looking at possible litigation if the matter cannot be resolved any other way.

On February 17, Barber wore a t-shirt that with a picture of President Bush that reads, "International Terrorist" to express his concern about the President’s policies on the potential war in Iraq .  School administrators asked him to remove the t-shirt, turn it inside out, or go home.  The school’s justification was that the shirt might cause a disruption despite the fact that he wore the shirt for three hours without incident.  

“It’s a gutsy thing for a high school student to take on a school administration in this way,” said Kary Moss, ACLU of Michigan Executive Director.  “It’s obvious that Bretton feels very strongly about this issue and we want to make sure that his ability to express his political opinion isn’t hindered in any way.”  

Barber is an excellent student, with nearly a 4.0 average, and was second in his class last semester.  He’s hoping to go to the University of Michigan in Ann Arbor and is particularly interested in pursuing a career in constitutional law.  

Barber’s political views have been developing for quite a while.  He has been a “card-carrying member” of the ACLU since the 10th grade, and has contributed whatever he could afford since middle school.  Though he’s given up wearing his shirt for the time being, he hopes to organize a group of students to protest the banning of the t-shirt.  

“The shirt was meant to emphasize the message “no war” and I feel that I’ve been successful in getting that message out,” said Barber. “I really want to thank the ACLU for the help they’ve given me.”  

“I’m hoping that we can resolve this issue without going to court,” Ms. Moss added. “However, if the school is unwilling to allow students the right to political expression, we’ll have no choice.”

Read the article from the New York Times

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ACLU Supports Dearborn Student’s Right to Protest

February 01, 2003

After Brett Barber, a junior at Dearborn High School, was told to take off his anti-Bush t-shirt or go home, he called the ACLU of Michigan to ask for help. Understanding that the school violated Barber’s free speech rights, the ACLU is now looking at possible litigation if the matter cannot be resolved any other way.

On February 17, Barber wore a t-shirt that with a picture of President Bush that reads, "International Terrorist" to express his concern about the President’s policies on the potential war in Iraq .  School administrators asked him to remove the t-shirt, turn it inside out, or go home.  The school’s justification was that the shirt might cause a disruption despite the fact that he wore the shirt for three hours without incident.  

“It’s a gutsy thing for a high school student to take on a school administration in this way,” said Kary Moss, ACLU of Michigan Executive Director.  “It’s obvious that Bretton feels very strongly about this issue and we want to make sure that his ability to express his political opinion isn’t hindered in any way.”  

Barber is an excellent student, with nearly a 4.0 average, and was second in his class last semester.  He’s hoping to go to the University of Michigan in Ann Arbor and is particularly interested in pursuing a career in constitutional law.  

Barber’s political views have been developing for quite a while.  He has been a “card-carrying member” of the ACLU since the 10th grade, and has contributed whatever he could afford since middle school.  Though he’s given up wearing his shirt for the time being, he hopes to organize a group of students to protest the banning of the t-shirt.  

“The shirt was meant to emphasize the message “no war” and I feel that I’ve been successful in getting that message out,” said Barber. “I really want to thank the ACLU for the help they’ve given me.”  

“I’m hoping that we can resolve this issue without going to court,” Ms. Moss added. “However, if the school is unwilling to allow students the right to political expression, we’ll have no choice.”

Read the article from the New York Times

Almost every African-American or Latino can tell a story about being pulled over by the police for no apparent reason other than the color of his or her skin, especially if he or she happened to be driving in the "wrong place" at the "wrong time" or even driving the "wrong car." Victims of these racially motivated traffic stops rarely receive a traffic ticket or are found guilty of any violation of the law. It’s a practice called Driving While Black and it is emerging as a seminal civil rights issue.

O.J. Simpson prosecutor Christopher Darden has been pulled over many times. Actors Wesley Snipes and Blair Underwood and athletes Joe Morgan and Al Joyner have also been stopped for "DWB."

 Darden now a Law Professor at Southwestern University spoke of being stopped on countless occasions since the age of 16. "After each of these stops I would ask myself, 'Why? Why was I stopped?' After each of these stops I reflected on the speed and manner in which I drove my vehicle. 'Was I speeding? No. Was I following too closely the vehicle in front of me? No. An unsafe lane chance, perhaps? No. Couldn't be.' Had that been the case, the officer would surely have written me a ticket. Most often, there was no 'good' reason for stopping me. Only the wrong reason. I was the wrong color."

While anecdotal evidence like Darden’s is plentiful, few formal studies of racially motivated traffic stops have been done. One of the few, an ACLU study in Maryland, revealed an alarming disparity in motorist stops and searches. Although African American drivers were 72% of those pulled over, they represented only 14% of drivers.

The ACLU -- both nationally and in Michigan — has made eradicating the DWB phenomenon a high priority, including the establishment of a national toll-free hot line for DWB victims: 1-877-6-PROFILE.

In April, U.S. Rep. John Conyers (D-Detroit) introduced a bill in the House of Representatives that would mandate a study on racial profiling of motorists by the U.S. Department of Justice. That bill passed on voice vote in the House and is awaiting action by the Senate.

The U.S. Supreme Court established an open season on motorists in 1996 when it ruled that police could use any traffic offense as an excuse to pull a car over. This roadside detention may then be used as a pretext for searching the car and its occupants. In Michigan, as in most states, the vehicle code is a voluminous detailing of driving regulations, from the required depth of tire tread to the distance over which a driver must signal before turning. Virtually every driver will violate the vehicle code in some way during a short drive. These relatively minor offenses must necessarily be enforced on a selective basis and no other area of policing involves a greater use of officer discretion.

Some of these pretextual stops lead to arrests for drug possession or other crimes and it may be hard to feel sorry for someone caught with contraband who complains about the way he was apprehended. But we should certainly be concerned about all the law-abiding Americans who are stopped on our roads every day so that a few guilty people can be found. When they disproportionately visit these stops upon people of color, this practice violates the constitutional principal of equal justice under the law in a most fundamental way.

Ironically, even if it were permissible, racial profiling is an ineffective law enforcement technique. An ACLU study of traffic stops along a Maryland freeway showed that police searches uncovered contraband from African-American and white motorists at about the same rate — 28.4% in searches of blacks and 28.8% in searches of whites.

For most Michigan residents, their most frequent interaction — often their only interaction — with police officers involves minor traffic violations. These encounters heavily influence lasting perceptions of law enforcement. When decisions about enforcing traffic laws appear to be based on race, confidence in law enforcement erodes. For many years, the ACLU urged police departments across the nation to increase their effectiveness through community-based policing strategies. Now that these strategies are in place in many areas, they start with two strikes against them because of the perception that race plays a role in who gets stopped by the police.

It is to the benefit of all Americans, not just minority citizens, that the unjust and unfair practice of racial profiling of motorists be brought to a swift and permanent end.

Click Here for an overview of the National ACLU's policy on Racial Profiling.

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Driving While Black: What it is and Why it’s Important

Almost every African-American or Latino can tell a story about being pulled over by the police for no apparent reason other than the color of his or her skin, especially if he or she happened to be driving in the "wrong place" at the "wrong time" or even driving the "wrong car." Victims of these racially motivated traffic stops rarely receive a traffic ticket or are found guilty of any violation of the law. It’s a practice called Driving While Black and it is emerging as a seminal civil rights issue.

O.J. Simpson prosecutor Christopher Darden has been pulled over many times. Actors Wesley Snipes and Blair Underwood and athletes Joe Morgan and Al Joyner have also been stopped for "DWB."

 Darden now a Law Professor at Southwestern University spoke of being stopped on countless occasions since the age of 16. "After each of these stops I would ask myself, 'Why? Why was I stopped?' After each of these stops I reflected on the speed and manner in which I drove my vehicle. 'Was I speeding? No. Was I following too closely the vehicle in front of me? No. An unsafe lane chance, perhaps? No. Couldn't be.' Had that been the case, the officer would surely have written me a ticket. Most often, there was no 'good' reason for stopping me. Only the wrong reason. I was the wrong color."

While anecdotal evidence like Darden’s is plentiful, few formal studies of racially motivated traffic stops have been done. One of the few, an ACLU study in Maryland, revealed an alarming disparity in motorist stops and searches. Although African American drivers were 72% of those pulled over, they represented only 14% of drivers.

The ACLU -- both nationally and in Michigan — has made eradicating the DWB phenomenon a high priority, including the establishment of a national toll-free hot line for DWB victims: 1-877-6-PROFILE.

In April, U.S. Rep. John Conyers (D-Detroit) introduced a bill in the House of Representatives that would mandate a study on racial profiling of motorists by the U.S. Department of Justice. That bill passed on voice vote in the House and is awaiting action by the Senate.

The U.S. Supreme Court established an open season on motorists in 1996 when it ruled that police could use any traffic offense as an excuse to pull a car over. This roadside detention may then be used as a pretext for searching the car and its occupants. In Michigan, as in most states, the vehicle code is a voluminous detailing of driving regulations, from the required depth of tire tread to the distance over which a driver must signal before turning. Virtually every driver will violate the vehicle code in some way during a short drive. These relatively minor offenses must necessarily be enforced on a selective basis and no other area of policing involves a greater use of officer discretion.

Some of these pretextual stops lead to arrests for drug possession or other crimes and it may be hard to feel sorry for someone caught with contraband who complains about the way he was apprehended. But we should certainly be concerned about all the law-abiding Americans who are stopped on our roads every day so that a few guilty people can be found. When they disproportionately visit these stops upon people of color, this practice violates the constitutional principal of equal justice under the law in a most fundamental way.

Ironically, even if it were permissible, racial profiling is an ineffective law enforcement technique. An ACLU study of traffic stops along a Maryland freeway showed that police searches uncovered contraband from African-American and white motorists at about the same rate — 28.4% in searches of blacks and 28.8% in searches of whites.

For most Michigan residents, their most frequent interaction — often their only interaction — with police officers involves minor traffic violations. These encounters heavily influence lasting perceptions of law enforcement. When decisions about enforcing traffic laws appear to be based on race, confidence in law enforcement erodes. For many years, the ACLU urged police departments across the nation to increase their effectiveness through community-based policing strategies. Now that these strategies are in place in many areas, they start with two strikes against them because of the perception that race plays a role in who gets stopped by the police.

It is to the benefit of all Americans, not just minority citizens, that the unjust and unfair practice of racial profiling of motorists be brought to a swift and permanent end.

Click Here for an overview of the National ACLU's policy on Racial Profiling.

The ACLU has established a national toll-free hotline to report incidents of racial profiling of motorists. Calling 1-877-6-PROFILE will allow callers to begin a registration process that will help the ACLU compile the statistical data it needs to fight Driving While Black violations. People who have been the victim of DWB violations in Michigan can download a complaint form now and mail it to the ACLU of Michigan.

A special ACLU report: "Skin Color as Evidence: The ‘Crime’ of Driving While Black" will be available on line here on May 26. The report is being prepared by Prof. David Harris of the University of Toledo Law School. Prof. Harris is an expert on discriminatory traffic stops and has testified in Congress on behalf of the ACLU.

An article in the June issue of Emerge magazine highlights the growing problem of Driving While Black and credits the ACLU with being "one of the most tenacious and aggressive opponents of racial profiling."

Radio ads which illustrate the DWB phenomenon have begun airing in major markets around country. They will debut soon in Detroit. In the English-language version, two men are driving in a car and the police are following them.

First man: Aw, man!

Second man: What?

First man: The police are followin’ us.

Second man: You sure?

First man: Everywhere I go, they're there. I'm tellin' you.

Second man: All right be cool. Hold on. . . . Why are we scared? We didn't do anything wrong.

First man: Yeah. (pause) So why are they pulling us over?

Announcer: The sight of a police car shouldn't scare you. Driving while black or brown isn't against the law. But police officers stopping drivers because of the color of their skin is.

In one case, it was found that minorities made up 16% of drivers, but were 74% of those stopped and searched. Enough. Call the ACLU hotline and tell us your story at 1-877-6-PROFILE. Together we have the power to end discrimination by the police. Call 1-877-6-PROFILE and let's arrest the racism.

Click Here for the National ACLU's report "Driving While Black: Racial Profiling on Our Nation's Highways"

Click Here for the ACLU's guide on what to do if you are stopped by Police, Immigration Authorities or the FBI.

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DWB: What the ACLU is Doing

The ACLU has established a national toll-free hotline to report incidents of racial profiling of motorists. Calling 1-877-6-PROFILE will allow callers to begin a registration process that will help the ACLU compile the statistical data it needs to fight Driving While Black violations. People who have been the victim of DWB violations in Michigan can download a complaint form now and mail it to the ACLU of Michigan.

A special ACLU report: "Skin Color as Evidence: The ‘Crime’ of Driving While Black" will be available on line here on May 26. The report is being prepared by Prof. David Harris of the University of Toledo Law School. Prof. Harris is an expert on discriminatory traffic stops and has testified in Congress on behalf of the ACLU.

An article in the June issue of Emerge magazine highlights the growing problem of Driving While Black and credits the ACLU with being "one of the most tenacious and aggressive opponents of racial profiling."

Radio ads which illustrate the DWB phenomenon have begun airing in major markets around country. They will debut soon in Detroit. In the English-language version, two men are driving in a car and the police are following them.

First man: Aw, man!

Second man: What?

First man: The police are followin’ us.

Second man: You sure?

First man: Everywhere I go, they're there. I'm tellin' you.

Second man: All right be cool. Hold on. . . . Why are we scared? We didn't do anything wrong.

First man: Yeah. (pause) So why are they pulling us over?

Announcer: The sight of a police car shouldn't scare you. Driving while black or brown isn't against the law. But police officers stopping drivers because of the color of their skin is.

In one case, it was found that minorities made up 16% of drivers, but were 74% of those stopped and searched. Enough. Call the ACLU hotline and tell us your story at 1-877-6-PROFILE. Together we have the power to end discrimination by the police. Call 1-877-6-PROFILE and let's arrest the racism.

Click Here for the National ACLU's report "Driving While Black: Racial Profiling on Our Nation's Highways"

Click Here for the ACLU's guide on what to do if you are stopped by Police, Immigration Authorities or the FBI.

It’s called DWB — Driving While Black. And while it is not a crime, too many police officers treat it as if it were.

U.S. Rep. John Conyers, D-Detroit, and others say officers stop an unwarranted number of blacks and Hispanics for alleged traffic violations, hoping to find evidence of other criminal activity. The practice is known as racial profiling.

"We must stop the invidious practice of racial profiling. All citizens, regardless of their race, should be free to travel America's highways without undue harassment," Conyers said.

 Conyers spoke in May to the Detroit Bar Association about DWB and the legislation he has introduced that would require the U.S. Justice Department to study racial profiling by acquiring data from law enforcement agencies about the characteristics of people stopped for alleged traffic violations.

Conyers' bill was passed in the House by a voice vote. A similar bill is working its way through the Senate.

"One congressman from Baltimore threw his arm around me after the vote and said he had been stopped seven times in the last two years commuting between his hometown and Washington. He drives an expensive car; he dresses better than me; he fits the profile -- a drug lord," said Conyers.

Conyers, the ranking member of the House Judiciary Committee, said that suburbanites who doubt that racial profiling exists should check out their local traffic courts. "If you examine many of the suburban courtrooms, you would think that a third to a half of the population is black, because there are so many black citizens being stopped while driving," he said.

Conyers offered compelling data from three states to illustrate the problem. The Orlando Sentinel studied 140 hours of Florida State Police videotape of traffic stops. The paper found that 70 percent of those stopped on I-95 were African-American, even though blacks made up only 10 percent of drivers.

A court-ordered study in Maryland found that more than 70 percent of drivers stopped on I-95 were African-Americans. They made up 17.5 percent of the driver population.

Testimony in a New Jersey civil rights lawsuit indicated that minorities were nearly five times as likely as whites to be stopped for traffic violations along that state's turnpike.

Conyers said he has no concrete plans for the type of studies that need to be done on DWB, and that it is important to make the study as fair as possible.

"Every statistical study is subject to how fair and subjective it is. The only check that can come is from people who are complaining. We haven't figured out any lie-proof system," Conyers said. "But I'm pleased that the discussion itself has had an inhibiting effect on DWBs. This is how we make progress."

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Conyers Moves to Stop Driving While Black Violations

It’s called DWB — Driving While Black. And while it is not a crime, too many police officers treat it as if it were.

U.S. Rep. John Conyers, D-Detroit, and others say officers stop an unwarranted number of blacks and Hispanics for alleged traffic violations, hoping to find evidence of other criminal activity. The practice is known as racial profiling.

"We must stop the invidious practice of racial profiling. All citizens, regardless of their race, should be free to travel America's highways without undue harassment," Conyers said.

 Conyers spoke in May to the Detroit Bar Association about DWB and the legislation he has introduced that would require the U.S. Justice Department to study racial profiling by acquiring data from law enforcement agencies about the characteristics of people stopped for alleged traffic violations.

Conyers' bill was passed in the House by a voice vote. A similar bill is working its way through the Senate.

"One congressman from Baltimore threw his arm around me after the vote and said he had been stopped seven times in the last two years commuting between his hometown and Washington. He drives an expensive car; he dresses better than me; he fits the profile -- a drug lord," said Conyers.

Conyers, the ranking member of the House Judiciary Committee, said that suburbanites who doubt that racial profiling exists should check out their local traffic courts. "If you examine many of the suburban courtrooms, you would think that a third to a half of the population is black, because there are so many black citizens being stopped while driving," he said.

Conyers offered compelling data from three states to illustrate the problem. The Orlando Sentinel studied 140 hours of Florida State Police videotape of traffic stops. The paper found that 70 percent of those stopped on I-95 were African-American, even though blacks made up only 10 percent of drivers.

A court-ordered study in Maryland found that more than 70 percent of drivers stopped on I-95 were African-Americans. They made up 17.5 percent of the driver population.

Testimony in a New Jersey civil rights lawsuit indicated that minorities were nearly five times as likely as whites to be stopped for traffic violations along that state's turnpike.

Conyers said he has no concrete plans for the type of studies that need to be done on DWB, and that it is important to make the study as fair as possible.

"Every statistical study is subject to how fair and subjective it is. The only check that can come is from people who are complaining. We haven't figured out any lie-proof system," Conyers said. "But I'm pleased that the discussion itself has had an inhibiting effect on DWBs. This is how we make progress."

DETROIT — The American Civil Liberties Union of Michigan announced that a settlement agreement has been reached between the South Lyon Community Schools and the students who were suspended for distributing a newspaper entitled The First Amendment.

“The students engaged in classic speech that is protected by the First Amendment.  We are very pleased that this has been resolved and that the school now understands that students’ have some free speech rights that cannot be suppressed,” said Kary Moss, Executive Director of the ACLU of Michigan.

According to Andrew Nicklehoff, the ACLU cooperating attorney who worked on the case, the settlement is not perfect, but “a near total victory.” “We negotiated at length with the district to come up with a policy that is light years better from what was there before," Nicklehoff said.

The newspaper contained numerous short articles on a wide variety of topics, including an article criticizing adults for telling jokes about Arabs and Muslims, an article critical of teachers for keeping religion out of the school, an article critical of the football coach, and an article critical of the principal for threatening seniors with criminal charges for carrying out senior pranks. 

Although the students never actually distributed the paper, they were charged with “interfering with the operation of a school building.”  They were also suspended for attempting to distribute materials before obtaining prior approval from the principal even though this rule was not published in the student handbook and the students had no notice of such a rule.  Finally, the students were charged with violating a catchall provision of the Student Code of Conduct stating that corrective measures will be taken “should any student act in such a matter that is detrimental to himself.”

Under the agreement, the student suspensions will be rescinded and expunged from the student’s records.  In addition, the School’s regulations will be revised so that students may distribute approved materials during lunch from a pre-determined area in the commons area.   The term “offensive” used in the school policy’s “Content-Based Restrictions” will also be revised to “grossly offensive to a reasonable person.”

“The policy allows administrators to do their jobs,” added Nickelhoff.  "But it puts in place restrictions and controls so that the school administrators don’t violate students' free speech rights."

Read the Detroit Free Press story about the settlement.

Read The Oakland Press story about the settlement.

Read the Detroit News story about the settlement.

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Settlement Reached Between South Lyon Schools and Students Regarding Free Speech

March 19, 2003

DETROIT — The American Civil Liberties Union of Michigan announced that a settlement agreement has been reached between the South Lyon Community Schools and the students who were suspended for distributing a newspaper entitled The First Amendment.

“The students engaged in classic speech that is protected by the First Amendment.  We are very pleased that this has been resolved and that the school now understands that students’ have some free speech rights that cannot be suppressed,” said Kary Moss, Executive Director of the ACLU of Michigan.

According to Andrew Nicklehoff, the ACLU cooperating attorney who worked on the case, the settlement is not perfect, but “a near total victory.” “We negotiated at length with the district to come up with a policy that is light years better from what was there before," Nicklehoff said.

The newspaper contained numerous short articles on a wide variety of topics, including an article criticizing adults for telling jokes about Arabs and Muslims, an article critical of teachers for keeping religion out of the school, an article critical of the football coach, and an article critical of the principal for threatening seniors with criminal charges for carrying out senior pranks. 

Although the students never actually distributed the paper, they were charged with “interfering with the operation of a school building.”  They were also suspended for attempting to distribute materials before obtaining prior approval from the principal even though this rule was not published in the student handbook and the students had no notice of such a rule.  Finally, the students were charged with violating a catchall provision of the Student Code of Conduct stating that corrective measures will be taken “should any student act in such a matter that is detrimental to himself.”

Under the agreement, the student suspensions will be rescinded and expunged from the student’s records.  In addition, the School’s regulations will be revised so that students may distribute approved materials during lunch from a pre-determined area in the commons area.   The term “offensive” used in the school policy’s “Content-Based Restrictions” will also be revised to “grossly offensive to a reasonable person.”

“The policy allows administrators to do their jobs,” added Nickelhoff.  "But it puts in place restrictions and controls so that the school administrators don’t violate students' free speech rights."

Read the Detroit Free Press story about the settlement.

Read The Oakland Press story about the settlement.

Read the Detroit News story about the settlement.

DETROIT – The FBI has told the ACLU that they will refuse to follow their previous practice in Michigan of providing assurances of the men's rights, specifically the right to an attorney, in advance of questioning Arab men. Wednesday night, the FBI announced that they will immediately begin questioning all Iraqis who have entered the United States since the Gulf War.

"We are very concerned that the FBI would proceed with this mission to question such a large group of people without any individualized suspicion that any of these people have knowledge of terrorism or terrorist acts,"said ACLU Executive Director Kary Moss.

On March 19 the ACLU of Michigan had asked the Michigan FBI to follow a practice agreed to by the Philadelphia FBI this week that would involve providing a letter from a local religious leader to every Iraqi to be interviewed. The letter assured those to be interviewed that they would not be considered the subject of an investigation or a terrorist; that they would not be arrested based on an immigration violation; and that the interviews would be voluntary.

In response, the FBI has indicated that they will not agree to duplicate this effort in any way. This decision makes little practical sense given official acknowledgment by the government that most Iraqis in the U.S. are hostile to Saddam Hussein and are unlikely candidates for terrorism. 

"Metropolitan Detroit has the largest Iraqi population in the United States. This new policy of FBI questioning, as the war begins, is certain to increase the perception that Iraqi-Americans are our enemies; or more likely to be criminals simply based on their national origin. These government actions only increase risks of hate crimes against Iraqis in the U.S.," Moss stated.

The ACLU opposes the use of profiles based on race, religion or ethnicity. According to the ACLU, targeting people for investigation, interrogation or detention based on immutable characteristics like national origin, ethnicity or religion alone is unconstitutional and inappropriate in all circumstances. Targeting people because of distinguishing characteristics due to their behavior, is not. While the FBI announcement asks that the questioning be viewed as benign, this questioning must be viewed in the context of all of the other Arab and Muslim questioning that the government has engaged in since 9/11. This is part of a targeted program of government harassment of the Arab, Muslim and South Asian communities.

A hotline to provide legal information and representation to anyone contacted by the FBI has been reestablished by the ACLU of Michigan, in collaboration with the Arab Community Center for Economic & Social Services (ACCESS), American Arab Anti-Discrimination Committee (ADC) and the National Lawyers Guild (NLG). The number is (313) 578-6806.

The flyer that has been distributed to the community follows:

IF THE FBI OR POLICE CONTACT YOU FOR QUESTIONING

  • The FBI has announced plans to interview more than one out of every five people of Iraqi origin living in the United States. This bulletin informs you how to respond when the FBI, INS, or police contact you for questioning.
  • If an FBI, INS or police officer asks to speak with you, write down their name, title and phone number. Then CONTACT US IMMEDIATELY. We have a free hotline that provides confidential legal assistance. THE NUMBER IS: (313) 578-6806
  • If an FBI agent or police officer asks to speak with you tell him or her that you want to consult with an attorney first. Your attorney can contact them to set up the interview if you decide that you would like to talk to them. An attorney is a legal witness who will protect your rights.
  • Any information that you give to an officer, even if it seems harmless, can be used against you or someone else. Lying to an officer is a crime. Remaining silent is not a crime. Do not talk without an attorney.
  • You do not have to let an officer into your home or office without a warrant. Ask to see the warrant. If the officer will not show you the warrant, do not physically stop him or her from entering. If the officer insists, be sure to say that the officer does not have your permission to enter.
  • If the officer claims to have a warrant for your arrest, ask to see the warrant. You must go with the officer. Do not answer questions until you consult with an attorney.
  • Keep a copy of all immigration documentation in a safe place where a trusted friend or family member can access it and send it to you if needed.

PLEASE CALL US FOR ASSISTANCE-
LET OTHERS KNOW ABOUT THIS HOTLINE NUMBER

Co-Sponsored by:
American Arab Anti Discrimination Committee, Michigan Chapter
American Civil Liberties Union of Michigan
Arab Community Center for Economic & Social Services
National Lawyers Guild, Michigan Chapter

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ACLU Condemns FBI Decision to Question Iraqis Not Under Suspicion

March 20, 2003

DETROIT – The FBI has told the ACLU that they will refuse to follow their previous practice in Michigan of providing assurances of the men's rights, specifically the right to an attorney, in advance of questioning Arab men. Wednesday night, the FBI announced that they will immediately begin questioning all Iraqis who have entered the United States since the Gulf War.

"We are very concerned that the FBI would proceed with this mission to question such a large group of people without any individualized suspicion that any of these people have knowledge of terrorism or terrorist acts,"said ACLU Executive Director Kary Moss.

On March 19 the ACLU of Michigan had asked the Michigan FBI to follow a practice agreed to by the Philadelphia FBI this week that would involve providing a letter from a local religious leader to every Iraqi to be interviewed. The letter assured those to be interviewed that they would not be considered the subject of an investigation or a terrorist; that they would not be arrested based on an immigration violation; and that the interviews would be voluntary.

In response, the FBI has indicated that they will not agree to duplicate this effort in any way. This decision makes little practical sense given official acknowledgment by the government that most Iraqis in the U.S. are hostile to Saddam Hussein and are unlikely candidates for terrorism. 

"Metropolitan Detroit has the largest Iraqi population in the United States. This new policy of FBI questioning, as the war begins, is certain to increase the perception that Iraqi-Americans are our enemies; or more likely to be criminals simply based on their national origin. These government actions only increase risks of hate crimes against Iraqis in the U.S.," Moss stated.

The ACLU opposes the use of profiles based on race, religion or ethnicity. According to the ACLU, targeting people for investigation, interrogation or detention based on immutable characteristics like national origin, ethnicity or religion alone is unconstitutional and inappropriate in all circumstances. Targeting people because of distinguishing characteristics due to their behavior, is not. While the FBI announcement asks that the questioning be viewed as benign, this questioning must be viewed in the context of all of the other Arab and Muslim questioning that the government has engaged in since 9/11. This is part of a targeted program of government harassment of the Arab, Muslim and South Asian communities.

A hotline to provide legal information and representation to anyone contacted by the FBI has been reestablished by the ACLU of Michigan, in collaboration with the Arab Community Center for Economic & Social Services (ACCESS), American Arab Anti-Discrimination Committee (ADC) and the National Lawyers Guild (NLG). The number is (313) 578-6806.

The flyer that has been distributed to the community follows:

IF THE FBI OR POLICE CONTACT YOU FOR QUESTIONING

  • The FBI has announced plans to interview more than one out of every five people of Iraqi origin living in the United States. This bulletin informs you how to respond when the FBI, INS, or police contact you for questioning.
  • If an FBI, INS or police officer asks to speak with you, write down their name, title and phone number. Then CONTACT US IMMEDIATELY. We have a free hotline that provides confidential legal assistance. THE NUMBER IS: (313) 578-6806
  • If an FBI agent or police officer asks to speak with you tell him or her that you want to consult with an attorney first. Your attorney can contact them to set up the interview if you decide that you would like to talk to them. An attorney is a legal witness who will protect your rights.
  • Any information that you give to an officer, even if it seems harmless, can be used against you or someone else. Lying to an officer is a crime. Remaining silent is not a crime. Do not talk without an attorney.
  • You do not have to let an officer into your home or office without a warrant. Ask to see the warrant. If the officer will not show you the warrant, do not physically stop him or her from entering. If the officer insists, be sure to say that the officer does not have your permission to enter.
  • If the officer claims to have a warrant for your arrest, ask to see the warrant. You must go with the officer. Do not answer questions until you consult with an attorney.
  • Keep a copy of all immigration documentation in a safe place where a trusted friend or family member can access it and send it to you if needed.

PLEASE CALL US FOR ASSISTANCE-
LET OTHERS KNOW ABOUT THIS HOTLINE NUMBER

Co-Sponsored by:
American Arab Anti Discrimination Committee, Michigan Chapter
American Civil Liberties Union of Michigan
Arab Community Center for Economic & Social Services
National Lawyers Guild, Michigan Chapter

The challenge to Michigan’s welfare drug testing law will be reviewed again, this time by all active judges of the U.S. Court of Appeals, when oral argument is heard on Wednesday, March 26. The law has not been enforced since 2000 when a U.S. district judge ruled that random drug testing violated welfare recipients' privacy rights.

“Being poor is not a crime in this country and poor parents should not be required to choose between providing for their children and relinquishing their constitutional rights,” said Kary Moss, executive director of the Michigan ACLU and an attorney in the case.

The ACLU filed a class-action lawsuit in September 1999 on behalf of all Michigan welfare recipients who would be denied income support and other benefits under the state's "Family Independence Assistance" program for families with dependent children if they refused to submit to random drug testing or failed to comply with a mandatory "substance abuse treatment plan."    

The ACLU argued that the State’s pilot program violates the Fourth Amendment's requirement that people not be subjected to "searches and seizures" without probable cause or suspicion that illegal activity has occurred. Federal District Court Judge Victoria Roberts agreed with the ACLU, but the State appealed to the Sixth Circuit and Judge Roberts’ ruling was reversed. The decision to re-hear the case in an en banc (or by all Court of Appeals judges) hearing is unusual and not often done.

In the five weeks that the program was in effect, the drug tests were positive in only 8% of the cases, a percentage that is consistent with drug use in the general population. Of 268 people tested, only 21 tested positive for drugs and all by 3 were for marijuana.

WHAT: Oral Argument in Marchwinski v. Howard, Docket No. 00-2115. 
WHERE: U.S. Court of Appeals, Potter Stewart U.S. Courthouse, 100 E. Fifth Street, Cincinnati, Ohio
WHEN: March 26 at 1:30 p.m. 
WHO: Graham Boyd, director of the National ACLU Drug Policy Litigation Project, arguing the case for the Michigan ACLU. 

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Welfare Drug Testing Case Re-Heard by Appeals Court

March 26, 2003

The challenge to Michigan’s welfare drug testing law will be reviewed again, this time by all active judges of the U.S. Court of Appeals, when oral argument is heard on Wednesday, March 26. The law has not been enforced since 2000 when a U.S. district judge ruled that random drug testing violated welfare recipients' privacy rights.

“Being poor is not a crime in this country and poor parents should not be required to choose between providing for their children and relinquishing their constitutional rights,” said Kary Moss, executive director of the Michigan ACLU and an attorney in the case.

The ACLU filed a class-action lawsuit in September 1999 on behalf of all Michigan welfare recipients who would be denied income support and other benefits under the state's "Family Independence Assistance" program for families with dependent children if they refused to submit to random drug testing or failed to comply with a mandatory "substance abuse treatment plan."    

The ACLU argued that the State’s pilot program violates the Fourth Amendment's requirement that people not be subjected to "searches and seizures" without probable cause or suspicion that illegal activity has occurred. Federal District Court Judge Victoria Roberts agreed with the ACLU, but the State appealed to the Sixth Circuit and Judge Roberts’ ruling was reversed. The decision to re-hear the case in an en banc (or by all Court of Appeals judges) hearing is unusual and not often done.

In the five weeks that the program was in effect, the drug tests were positive in only 8% of the cases, a percentage that is consistent with drug use in the general population. Of 268 people tested, only 21 tested positive for drugs and all by 3 were for marijuana.

WHAT: Oral Argument in Marchwinski v. Howard, Docket No. 00-2115. 
WHERE: U.S. Court of Appeals, Potter Stewart U.S. Courthouse, 100 E. Fifth Street, Cincinnati, Ohio
WHEN: March 26 at 1:30 p.m. 
WHO: Graham Boyd, director of the National ACLU Drug Policy Litigation Project, arguing the case for the Michigan ACLU. 

Detroit – The Michigan Court of Appeals ruled unanimously that Mackinac Island violated the Americans With Disabilities Act by refusing to grant a resident with multiple sclerosis his request to use an electric-assisted tricycle, the ACLU of Michigan announced today.

"The decision is a victory for both people with disabilities and the City of Mackinac Island,” said Michael J. Steinberg, legal director of the ACLU of Michigan.  “The Court essentially stated that the City can easily accommodate bicycle riders with disabilities without destroying the charm of the island.”
 
Mackinac Island is well-known as a bicycling haven and cycling is the primary form of transportation on the island.  Because of his multiple sclerosis, Donald Bertrand does not have the stamina or balance to ride a typical two-wheel bicycle.  Accordingly, his doctor told him to purchase an electric-assist tricycle so that he could make it up a hill on those occasions when he did not have the strength to make it on his own.  The tricycle has a virtually silent motor and does not travel more than 10 miles per hour.  Bertrand repeatedly asked the Island for permission to use the tricycle, but the Island refused, citing its policy prohibiting motorized vehicles.
 
According the published decision, the Court found that the use of an electric-assist tricycle on the streets of Mackinac Island “does not fundamentally or substantially alter the character…”   They further agreed that the Island “has demonstrated its capacity to preserve its unique environment through the use of permits and enforcement” since they already allow electric wheelchairs and Amigo carts. 

“The decision embraces the principle of equality for people with disabilities,” said Stewart Hakola, an ACLU Cooperating Attorney who argued the case in the Court of Appeals.  “Don Bertrand should be allowed to enjoy cycling on the streets of Mackinaw Island just like everyone else.”
 
“I love Mackinac Island,” said Bertrand, “and I hated to feel unwelcome on the Island.  I am so happy that I’ll now be able to ride my tricycle.”

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Court of Appeals Backs Disability Rights

March 27, 2003

Detroit – The Michigan Court of Appeals ruled unanimously that Mackinac Island violated the Americans With Disabilities Act by refusing to grant a resident with multiple sclerosis his request to use an electric-assisted tricycle, the ACLU of Michigan announced today.

"The decision is a victory for both people with disabilities and the City of Mackinac Island,” said Michael J. Steinberg, legal director of the ACLU of Michigan.  “The Court essentially stated that the City can easily accommodate bicycle riders with disabilities without destroying the charm of the island.”
 
Mackinac Island is well-known as a bicycling haven and cycling is the primary form of transportation on the island.  Because of his multiple sclerosis, Donald Bertrand does not have the stamina or balance to ride a typical two-wheel bicycle.  Accordingly, his doctor told him to purchase an electric-assist tricycle so that he could make it up a hill on those occasions when he did not have the strength to make it on his own.  The tricycle has a virtually silent motor and does not travel more than 10 miles per hour.  Bertrand repeatedly asked the Island for permission to use the tricycle, but the Island refused, citing its policy prohibiting motorized vehicles.
 
According the published decision, the Court found that the use of an electric-assist tricycle on the streets of Mackinac Island “does not fundamentally or substantially alter the character…”   They further agreed that the Island “has demonstrated its capacity to preserve its unique environment through the use of permits and enforcement” since they already allow electric wheelchairs and Amigo carts. 

“The decision embraces the principle of equality for people with disabilities,” said Stewart Hakola, an ACLU Cooperating Attorney who argued the case in the Court of Appeals.  “Don Bertrand should be allowed to enjoy cycling on the streets of Mackinaw Island just like everyone else.”
 
“I love Mackinac Island,” said Bertrand, “and I hated to feel unwelcome on the Island.  I am so happy that I’ll now be able to ride my tricycle.”

DETROIT — Challenging a school’s decision to prohibit a student from wearing an anti-President Bush t-shirt, the American Civil Liberties Union of Michigan filed a lawsuit today in federal court against the Dearborn Public School for violating the First Amendment rights of their students.

Bretton Barber, a junior at Dearborn High School, wore a t-shirt to school on February 17 which displayed a photograph of George W. Bush with the caption, “International Terrorist.”  He was told to turn it inside out or go home.  Barber went home for the day and in order to avoid further discipline by the school, he has not worn the t-shirt since.

“The school administration could have chosen to use the safe environment of an educational institution for debate and discussion and to create an opportunity to talk about the issue. Unfortunately, they chose to ban political speech,” said Kary Moss, ACLU of Michigan Executive Director.  “The Supreme Court has made clear that students don’t lose their constitutional rights at the schoolhouse gates,” Moss added.

The school’s assistant principal claimed that the shirt promoted terrorism and would cause a disruption, despite the fact that he wore the shirt for three hours without incident. According the ACLU, there are strong indications that the reaction of Dearborn High School officials to Barber’s t-shirt was prompted by their disagreement with its message. 

“The school’s actions in this case have not only curtailed Brett’s free expression of his political views, but undoubtedly they also have inhibited the expression of controversial or unpopular viewpoints by other students,” said Andrew Nickelhoff, the ACLU cooperating attorney handling this case.

Barber is an excellent student, with nearly a 4.0 average, and was second in his class last semester.  He’s hoping to go to the University of Michigan in Ann Arbor and is particularly interested in pursuing a career in constitutional law.

“The shirt was meant to emphasize the message “no war” and I feel that I’ve been successful in getting that message out,” said Barber. “I think it’s especially important for students who may be asked to fight at some point, to have the right to say how we feel.”

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ACLU Files Suit to Protect Student’s Right to Free Speech

March 27, 2003

DETROIT — Challenging a school’s decision to prohibit a student from wearing an anti-President Bush t-shirt, the American Civil Liberties Union of Michigan filed a lawsuit today in federal court against the Dearborn Public School for violating the First Amendment rights of their students.

Bretton Barber, a junior at Dearborn High School, wore a t-shirt to school on February 17 which displayed a photograph of George W. Bush with the caption, “International Terrorist.”  He was told to turn it inside out or go home.  Barber went home for the day and in order to avoid further discipline by the school, he has not worn the t-shirt since.

“The school administration could have chosen to use the safe environment of an educational institution for debate and discussion and to create an opportunity to talk about the issue. Unfortunately, they chose to ban political speech,” said Kary Moss, ACLU of Michigan Executive Director.  “The Supreme Court has made clear that students don’t lose their constitutional rights at the schoolhouse gates,” Moss added.

The school’s assistant principal claimed that the shirt promoted terrorism and would cause a disruption, despite the fact that he wore the shirt for three hours without incident. According the ACLU, there are strong indications that the reaction of Dearborn High School officials to Barber’s t-shirt was prompted by their disagreement with its message. 

“The school’s actions in this case have not only curtailed Brett’s free expression of his political views, but undoubtedly they also have inhibited the expression of controversial or unpopular viewpoints by other students,” said Andrew Nickelhoff, the ACLU cooperating attorney handling this case.

Barber is an excellent student, with nearly a 4.0 average, and was second in his class last semester.  He’s hoping to go to the University of Michigan in Ann Arbor and is particularly interested in pursuing a career in constitutional law.

“The shirt was meant to emphasize the message “no war” and I feel that I’ve been successful in getting that message out,” said Barber. “I think it’s especially important for students who may be asked to fight at some point, to have the right to say how we feel.”

DETROIT – A Birmingham, MI high school senior has been chosen to receive a $4,000 college scholarship in recognition of his activist work in civil liberties, the American Civil Liberties Union announced today. The national scholarships were awarded to fourteen high school seniors from across the country.

Matthew Erard, an eighteen year-old senior at Wylie E. Groves High School in Beverly Hills, Michigan, has been involved in a myriad of activities, from hosting a website on censorship issues to writing on civil liberties for his school newspaper to chairing the Socialist Party of Michigan. He has fought the school district’s installation of Internet blocking software on school computers and championed the need for student representation on the school board. As a result of his activism, Matthew has been interviewed on both French and American television.

“There will never be a true labor movement, environmental movement, or anti-globalization movement in this country if those who advocate them are silenced through censorship, intimidated into inaction by government spying, imprisoned arbitrarily, denied the vote, or divided through government sponsored discrimination,” Erard said. “Without civil liberties, there is no more room for any other form of dissent.”

The 14 winners were judged on the strength and depth of their contributions to civil liberties and the rights of young people, the likelihood of their continuing commitment in the future, and the obstacles they had to overcome in their activist work.

“Matt is not one to shy away from controversy and has been outspoken and forthright about his passion for civil liberties,” said Kary Moss, ACLU of Michigan Executive Director.  “He truly epitomizes the type of student who will become an ACLU leader in the future and it appears that he is heading in that direction.”

Scholarship candidates are nominated by their local ACLU affiliates.  Each of the ACLU’s 53 affiliates is allowed to nominate one student for the award; the nominations are then presented to the ACLU’s national scholarship selection board, which selects the year’s winners.

"I am inspired and impressed by the courage and commitment of our scholarship winners,” said Nadine Strossen, President of the National ACLU.  “It is a comfort to know that the next generation of civil libertarians is so promising.”

The ACLU’s Youth Activist Scholarship Award was created in 2000 to recognize the efforts of graduating high school seniors who have demonstrated a strong commitment to civil liberties.  The award, which is given annually, was made possible by a generous grant from an anonymous donor.

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ACLU Announces 2003 Youth Activism College Scholarship Recipient

March 31, 2003

DETROIT – A Birmingham, MI high school senior has been chosen to receive a $4,000 college scholarship in recognition of his activist work in civil liberties, the American Civil Liberties Union announced today. The national scholarships were awarded to fourteen high school seniors from across the country.

Matthew Erard, an eighteen year-old senior at Wylie E. Groves High School in Beverly Hills, Michigan, has been involved in a myriad of activities, from hosting a website on censorship issues to writing on civil liberties for his school newspaper to chairing the Socialist Party of Michigan. He has fought the school district’s installation of Internet blocking software on school computers and championed the need for student representation on the school board. As a result of his activism, Matthew has been interviewed on both French and American television.

“There will never be a true labor movement, environmental movement, or anti-globalization movement in this country if those who advocate them are silenced through censorship, intimidated into inaction by government spying, imprisoned arbitrarily, denied the vote, or divided through government sponsored discrimination,” Erard said. “Without civil liberties, there is no more room for any other form of dissent.”

The 14 winners were judged on the strength and depth of their contributions to civil liberties and the rights of young people, the likelihood of their continuing commitment in the future, and the obstacles they had to overcome in their activist work.

“Matt is not one to shy away from controversy and has been outspoken and forthright about his passion for civil liberties,” said Kary Moss, ACLU of Michigan Executive Director.  “He truly epitomizes the type of student who will become an ACLU leader in the future and it appears that he is heading in that direction.”

Scholarship candidates are nominated by their local ACLU affiliates.  Each of the ACLU’s 53 affiliates is allowed to nominate one student for the award; the nominations are then presented to the ACLU’s national scholarship selection board, which selects the year’s winners.

"I am inspired and impressed by the courage and commitment of our scholarship winners,” said Nadine Strossen, President of the National ACLU.  “It is a comfort to know that the next generation of civil libertarians is so promising.”

The ACLU’s Youth Activist Scholarship Award was created in 2000 to recognize the efforts of graduating high school seniors who have demonstrated a strong commitment to civil liberties.  The award, which is given annually, was made possible by a generous grant from an anonymous donor.

DETROIT — In a landmark case being argued tomorrow before the Supreme Court, the American Civil Liberties Union will urge the Justices to uphold the admission policies of the University of Michigan, which seeks to promote a diverse student body by employing affirmative action programs.

The Court will actually hear two cases: one involving the University’s undergraduate admissions policy (Gratz v. Bollinger, 02-51), and one involving its law school admissions policy (Grutter v. Bollinger 02-241).

“There’s no way that the University of Michigan would be able to maintain their preeminence as an educational institution without an affirmative action program. Universities must be reflective of the world around them,” said Kary Moss, ACLU of Michigan Executive Director.

In an attempt to increase diversity within its student body, the University of Michigan has for several years included race as one factor among many in admissions. At issue in the undergraduate case is the University's point system. While the University awards points to applicants on a range of academic and non-academic factors, it also considers the applicant's race by awarding points to African-Americans, Latinos and Native Americans in the admissions process. Conservatives have dismissed this process as a racial quota, and the Bush Administration has filed a brief with the Justices opposing the University's consideration of race in this case and in college admissions in general.

However, the brief filed by the ACLU and its co-counsel in Gratz notes that the University also awards points if the applicant’s parents are alumni or if applicants come from the upper peninsula of the state, which is predominantly white, skewing the admissions system toward white--and often affluent--applicants. School officials are right to counterbalance the discriminatory effect of their other criteria by considering race as a factor in admissions, the ACLU said.

The Supreme Court will also address the law school’s admissions policy. The law school admissions process does not work on a point system but seeks to admit enough minority applicants to serve the interests of a diverse academic community, a prerequisite to ensuring that all students, regardless of background, experience an intellectual and social environment akin to what they will see in American life.
 
“Even in this hotly contested case no one has challenged the basic proposition that a diverse school is a better school,” said Steven R. Shapiro, the ACLU's National Legal Director. “It would be a perverse result if the Constitution were interpreted to require the University to forego the educational benefits of a diverse student body that are extensively documented in the record before the Court.”
 
Hundreds of groups and individuals have filed briefs with the Supreme Court in support of the University of Michigan’s admission policies specifically and race-conscious affirmative action programs in general. Many are saying that it is crucial that all segments of society receive the education and training they need to become the leaders of tomorrow. 

Notables include former military leaders: General Norman Schwarzkopf and General John M. Shalikashvili, former chairman of the Joint Chiefs of Staff; business executives from General Motors, 3M, Pfizer and Northrop Grumman; Democratic Senators including Minority Leader Tom Daschle, Hillary Rodham Clinton and Ted Kennedy as well as 60 members of the House. 

In Gratz, the ACLU is co-counsel for a group of minority students with a coalition of civil rights lawyers and groups, including the NAACP Legal Defense and Education Fund (LDF) and the Mexican American Legal Defense and Education Fund (MALDEF). In Grutter, the ACLU has joined a friend-of-the-court brief filed by LDF.

The ACLU's amicus briefs and other material can be seen at:
Gratz v. Bollinger (Decision 02-516) and Grutter v. Bollinger (Decision 02-241)

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ACLU Urges Supreme Court to Uphold Affirmative Action

March 31, 2003

DETROIT — In a landmark case being argued tomorrow before the Supreme Court, the American Civil Liberties Union will urge the Justices to uphold the admission policies of the University of Michigan, which seeks to promote a diverse student body by employing affirmative action programs.

The Court will actually hear two cases: one involving the University’s undergraduate admissions policy (Gratz v. Bollinger, 02-51), and one involving its law school admissions policy (Grutter v. Bollinger 02-241).

“There’s no way that the University of Michigan would be able to maintain their preeminence as an educational institution without an affirmative action program. Universities must be reflective of the world around them,” said Kary Moss, ACLU of Michigan Executive Director.

In an attempt to increase diversity within its student body, the University of Michigan has for several years included race as one factor among many in admissions. At issue in the undergraduate case is the University's point system. While the University awards points to applicants on a range of academic and non-academic factors, it also considers the applicant's race by awarding points to African-Americans, Latinos and Native Americans in the admissions process. Conservatives have dismissed this process as a racial quota, and the Bush Administration has filed a brief with the Justices opposing the University's consideration of race in this case and in college admissions in general.

However, the brief filed by the ACLU and its co-counsel in Gratz notes that the University also awards points if the applicant’s parents are alumni or if applicants come from the upper peninsula of the state, which is predominantly white, skewing the admissions system toward white--and often affluent--applicants. School officials are right to counterbalance the discriminatory effect of their other criteria by considering race as a factor in admissions, the ACLU said.

The Supreme Court will also address the law school’s admissions policy. The law school admissions process does not work on a point system but seeks to admit enough minority applicants to serve the interests of a diverse academic community, a prerequisite to ensuring that all students, regardless of background, experience an intellectual and social environment akin to what they will see in American life.
 
“Even in this hotly contested case no one has challenged the basic proposition that a diverse school is a better school,” said Steven R. Shapiro, the ACLU's National Legal Director. “It would be a perverse result if the Constitution were interpreted to require the University to forego the educational benefits of a diverse student body that are extensively documented in the record before the Court.”
 
Hundreds of groups and individuals have filed briefs with the Supreme Court in support of the University of Michigan’s admission policies specifically and race-conscious affirmative action programs in general. Many are saying that it is crucial that all segments of society receive the education and training they need to become the leaders of tomorrow. 

Notables include former military leaders: General Norman Schwarzkopf and General John M. Shalikashvili, former chairman of the Joint Chiefs of Staff; business executives from General Motors, 3M, Pfizer and Northrop Grumman; Democratic Senators including Minority Leader Tom Daschle, Hillary Rodham Clinton and Ted Kennedy as well as 60 members of the House. 

In Gratz, the ACLU is co-counsel for a group of minority students with a coalition of civil rights lawyers and groups, including the NAACP Legal Defense and Education Fund (LDF) and the Mexican American Legal Defense and Education Fund (MALDEF). In Grutter, the ACLU has joined a friend-of-the-court brief filed by LDF.

The ACLU's amicus briefs and other material can be seen at:
Gratz v. Bollinger (Decision 02-516) and Grutter v. Bollinger (Decision 02-241)

In response to a discovery request, the state of Michigan on October 16 produced a data file of the Michigan Merit Award Scholarship qualifiers and non-qualifiers from the high school graduating class of 2002. I analyzed those data to calculate scholarship qualification rates by race, and compared the rates to the earlier cohort of students (high school class of 2000) that I analyzed for the initial filing of the White, et al. v. Engler, et al. lawsuit. The Scholarship rules mandate that students take all four subtests of the MEAP high school test to qualify for an award. The results are in Table 1 below.

Table 1: Scholarship Eligibility by Racial Group in 2000 and 2002

 

A

B

C

D

E




Racial/Ethnic Group

Total # of students taking all 4 subtests - 2002


# qualifying for scholarship - 2002

% qualifying for scholarship – 2002
(B/A)


% qualifying for scholarship – 2000*

Difference – 2002 to 2000
(C – D)

Native American

861

318

36.9%

29.0%

7.9%

Asian/Pacific Islander

2,290

1,421

62.1%

57.2%

4.9%

African American

9,636

1,675

17.4%

12.2%

5.2%

Hispanic

2,282

852

37.3%

33.3%

4.0%

White

72,863

44,012

60.4%

53.3%

7.1%

Multiracial

1,577

762

48.3%

39.9%

8.4%

Other

2,222

887

39.9%

39.6%

0.3%

Missing

3,781

1,744

46.1%

48.4%

–2.3%

Total

95,512

51,671

54.1%

46.9%

7.2%

4/5 of White rate

 

 

48.3%

42.6%

 

* From my report Supplementary Analysis of the Michigan Merit Scholarship Program First Cohort (High School Class of 2000), dated April 12, 2001, Table 1, column E, for students taking all four sections of the MEAP test.

For all students the scholarship qualification rate increased from 46.9% in 2000 to 54.1% in 2002.  Even though all racial groups increased their scholarship qualification rate, a large disparate impact still exists (as measured by the 4/5 rule) between white students and racial minority students in the 2002 data.  Four-fifths of the white qualification rate of 60.4% in 2002 is 48.3%; the African American (17.4%), Hispanic (37.3%), and Native American (36.9%) qualification rates all fell well below 4/5 of the white rate, as they did in the 2000 cohort of students.

While white students saw a gain in their qualification rate from 2000 to 2002 of 7.1 percentage points, African American students and Hispanic students saw gains of only 5.2 and 4.0 percentage points, respectively.  Of underrepresented minority students, only Native Americans saw a gain exceeding that of white students.

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Analysis of the Michigan Merit Award Scholarship Program

January 28, 2003

In response to a discovery request, the state of Michigan on October 16 produced a data file of the Michigan Merit Award Scholarship qualifiers and non-qualifiers from the high school graduating class of 2002. I analyzed those data to calculate scholarship qualification rates by race, and compared the rates to the earlier cohort of students (high school class of 2000) that I analyzed for the initial filing of the White, et al. v. Engler, et al. lawsuit. The Scholarship rules mandate that students take all four subtests of the MEAP high school test to qualify for an award. The results are in Table 1 below.

Table 1: Scholarship Eligibility by Racial Group in 2000 and 2002

 

A

B

C

D

E




Racial/Ethnic Group

Total # of students taking all 4 subtests - 2002


# qualifying for scholarship - 2002

% qualifying for scholarship – 2002
(B/A)


% qualifying for scholarship – 2000*

Difference – 2002 to 2000
(C – D)

Native American

861

318

36.9%

29.0%

7.9%

Asian/Pacific Islander

2,290

1,421

62.1%

57.2%

4.9%

African American

9,636

1,675

17.4%

12.2%

5.2%

Hispanic

2,282

852

37.3%

33.3%

4.0%

White

72,863

44,012

60.4%

53.3%

7.1%

Multiracial

1,577

762

48.3%

39.9%

8.4%

Other

2,222

887

39.9%

39.6%

0.3%

Missing

3,781

1,744

46.1%

48.4%

–2.3%

Total

95,512

51,671

54.1%

46.9%

7.2%

4/5 of White rate

 

 

48.3%

42.6%

 

* From my report Supplementary Analysis of the Michigan Merit Scholarship Program First Cohort (High School Class of 2000), dated April 12, 2001, Table 1, column E, for students taking all four sections of the MEAP test.

For all students the scholarship qualification rate increased from 46.9% in 2000 to 54.1% in 2002.  Even though all racial groups increased their scholarship qualification rate, a large disparate impact still exists (as measured by the 4/5 rule) between white students and racial minority students in the 2002 data.  Four-fifths of the white qualification rate of 60.4% in 2002 is 48.3%; the African American (17.4%), Hispanic (37.3%), and Native American (36.9%) qualification rates all fell well below 4/5 of the white rate, as they did in the 2000 cohort of students.

While white students saw a gain in their qualification rate from 2000 to 2002 of 7.1 percentage points, African American students and Hispanic students saw gains of only 5.2 and 4.0 percentage points, respectively.  Of underrepresented minority students, only Native Americans saw a gain exceeding that of white students.

On March 24, 2003, the Department of Justice (DOJ) published a final rule without public comment that exempts the FBI's National Crime Information Center database from the Privacy Act.  This means that the FBI no longer needs to ensure the accuracy and timeliness before loading incriminating information about a particular individual into the nation's most comprehensive law enforcement database.

Summary as published in Federal Register (68 FR 14140, 3/24/02):  The Department of Justice (DOJ), Federal Bureau of Investigation (FBI), is exempting the FBI's National Crime Information Center (NCIC), Central Records System (CRS), and National Center for the Analysis of Violent Crime (NCAVC) systems of records from the Privacy Act.  The exemption is necessary to avoid interference with law enforcement functions and responsibilities of the FBI.

What does this mean to you?

If you have a 35 year old arrest that was resolved it could still appear on the NCIC database as an open charge. [1]  Similarly, false arrest information, which is not unknown now, will become even more prevalent. [2]  The inaccurate information could result in the denial of a job, a passport or entry into Canada [3]; to name but a few examples.

Challenging inaccurate NCIC records is a daunting task.  Since the records are presumed accurate you are required to prove a negative -- that the information is not true.  Often old records are no longer available. [4]  Many old court and police records were not microfilmed or transferred to computer database.  And, even if you are fortunate enough to have your copy of a dismissal, this document would not be accepted -- only "certified" documents sent directly from the agency or court involved are accepted as rebuttal.  Even after successfully proving the negative, it often takes six or more months for the corrected information to appear on the NCIC database.

What can you do? Join the ACLU now!

[1] The example is based upon a true case of a university professor who, as a graduate student, was arrested in 1968 for possession of less than 1 gram of marijuana. The case was dismissed. The NCIC record showed that he had been arrested for trafficking in narcotics. This inaccurate information almost caused the loss of a teaching position at a major east coast university.

[2] An ACLU volunteer at a neighborhood legal clinic reported that a woman (call her Alice) complained that her sister (call her Brenda) had been arrested years ago in California and gave her name as Alice. When Brenda told Alice about it, Alice called the jail and was told by the sheriff that it was all straightened out. Brenda was convicted and imprisoned. Now, years later after she moved to Washington, Alice discovered that Brenda's conviction is still recorded under Alice's name, even though California knows that Brenda used Alice's name. The inaccurate conviction data is being relied upon to Alice's detriment in various settings.

[3] NCIC records are shared with Canadian authorities.

[4] In the case cited in fn1, the Central Depository of Criminal Records for the State where the arrest occurred had no record of any arrest and the records of the court, which had dismissed the case, had been destroyed in a courthouse fire.

[field_select_taxonomy1]

DOJ Exempts FBI Database from Privacy Act

On March 24, 2003, the Department of Justice (DOJ) published a final rule without public comment that exempts the FBI's National Crime Information Center database from the Privacy Act.  This means that the FBI no longer needs to ensure the accuracy and timeliness before loading incriminating information about a particular individual into the nation's most comprehensive law enforcement database.

Summary as published in Federal Register (68 FR 14140, 3/24/02):  The Department of Justice (DOJ), Federal Bureau of Investigation (FBI), is exempting the FBI's National Crime Information Center (NCIC), Central Records System (CRS), and National Center for the Analysis of Violent Crime (NCAVC) systems of records from the Privacy Act.  The exemption is necessary to avoid interference with law enforcement functions and responsibilities of the FBI.

What does this mean to you?

If you have a 35 year old arrest that was resolved it could still appear on the NCIC database as an open charge. [1]  Similarly, false arrest information, which is not unknown now, will become even more prevalent. [2]  The inaccurate information could result in the denial of a job, a passport or entry into Canada [3]; to name but a few examples.

Challenging inaccurate NCIC records is a daunting task.  Since the records are presumed accurate you are required to prove a negative -- that the information is not true.  Often old records are no longer available. [4]  Many old court and police records were not microfilmed or transferred to computer database.  And, even if you are fortunate enough to have your copy of a dismissal, this document would not be accepted -- only "certified" documents sent directly from the agency or court involved are accepted as rebuttal.  Even after successfully proving the negative, it often takes six or more months for the corrected information to appear on the NCIC database.

What can you do? Join the ACLU now!

[1] The example is based upon a true case of a university professor who, as a graduate student, was arrested in 1968 for possession of less than 1 gram of marijuana. The case was dismissed. The NCIC record showed that he had been arrested for trafficking in narcotics. This inaccurate information almost caused the loss of a teaching position at a major east coast university.

[2] An ACLU volunteer at a neighborhood legal clinic reported that a woman (call her Alice) complained that her sister (call her Brenda) had been arrested years ago in California and gave her name as Alice. When Brenda told Alice about it, Alice called the jail and was told by the sheriff that it was all straightened out. Brenda was convicted and imprisoned. Now, years later after she moved to Washington, Alice discovered that Brenda's conviction is still recorded under Alice's name, even though California knows that Brenda used Alice's name. The inaccurate conviction data is being relied upon to Alice's detriment in various settings.

[3] NCIC records are shared with Canadian authorities.

[4] In the case cited in fn1, the Central Depository of Criminal Records for the State where the arrest occurred had no record of any arrest and the records of the court, which had dismissed the case, had been destroyed in a courthouse fire.

DETROIT — Challenging Utica High School for censoring a school-sponsored newspaper article, the ACLU of Michigan has filed a lawsuit on behalf of the student journalist whose First Amendment rights have been violated. The suit was filed in Federal District Court on April 4, 2003, and will be heard by Judge George E. Woods.

Katherine Dean, a seventeen year old senior at Utica High School, is currently the managing editor of the Arrow, the school paper. Last year, Katy wrote an article for the paper about a lawsuit filed against Utica Community Schools by a Shelby Township resident. The resident lived next to the school district’s bus garage, and complained that diesel fumes from idling busses had caused him to become ill. The subject of the article was approved by a faculty advisor, but eventually censored by the school principal.

“I wrote a good, thoroughly researched article and tried to present both sides of the story,” said Katy. “When school officials wouldn’t talk about the case, I didn’t think it meant that they wouldn’t let me talk about it."

Even though the story was approved by the faculty advisor, one day before the paper was to go to the printer, the principal ordered that the story be stricken from the publication and the Arrow went to press without it.

“It appears that the only reason that Katy’s article was censored is that it might embarrass the school district,” said Kary Moss, ACLU of Michigan Executive Director. “It is not the normal practice of this principal to review a student’s writing for the newspaper and there is no legitimate educational reason for the censorship,” Moss added.

In 1988, the Supreme Court ruled in Hazelwood School District v. Kuhlmeier that school officials may censor articles in school-sponsored newspapers only if they have a "legitimate pedagogical reason."

"This is an important case to illustrate that student journalists don't forfeit their First Amendment rights when they write for school newspapers," said Michael J. Steinberg, legal director of the Michigan ACLU. "Katy Dean's article met high journalistic standards and school officials had no valid educational reason to prevent her from writing about a lawsuit against the school district."

Dean is represented by Andrew Nickelhoff, an ACLU cooperating attorney, and Steinberg.

Read the complaint online, go to: aclumich.org/sites/default/files/file/DEANComplaint.pdf

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ACLU Files Lawsuit Against Utica Community Schools

April 07, 2003

DETROIT — Challenging Utica High School for censoring a school-sponsored newspaper article, the ACLU of Michigan has filed a lawsuit on behalf of the student journalist whose First Amendment rights have been violated. The suit was filed in Federal District Court on April 4, 2003, and will be heard by Judge George E. Woods.

Katherine Dean, a seventeen year old senior at Utica High School, is currently the managing editor of the Arrow, the school paper. Last year, Katy wrote an article for the paper about a lawsuit filed against Utica Community Schools by a Shelby Township resident. The resident lived next to the school district’s bus garage, and complained that diesel fumes from idling busses had caused him to become ill. The subject of the article was approved by a faculty advisor, but eventually censored by the school principal.

“I wrote a good, thoroughly researched article and tried to present both sides of the story,” said Katy. “When school officials wouldn’t talk about the case, I didn’t think it meant that they wouldn’t let me talk about it."

Even though the story was approved by the faculty advisor, one day before the paper was to go to the printer, the principal ordered that the story be stricken from the publication and the Arrow went to press without it.

“It appears that the only reason that Katy’s article was censored is that it might embarrass the school district,” said Kary Moss, ACLU of Michigan Executive Director. “It is not the normal practice of this principal to review a student’s writing for the newspaper and there is no legitimate educational reason for the censorship,” Moss added.

In 1988, the Supreme Court ruled in Hazelwood School District v. Kuhlmeier that school officials may censor articles in school-sponsored newspapers only if they have a "legitimate pedagogical reason."

"This is an important case to illustrate that student journalists don't forfeit their First Amendment rights when they write for school newspapers," said Michael J. Steinberg, legal director of the Michigan ACLU. "Katy Dean's article met high journalistic standards and school officials had no valid educational reason to prevent her from writing about a lawsuit against the school district."

Dean is represented by Andrew Nickelhoff, an ACLU cooperating attorney, and Steinberg.

Read the complaint online, go to: aclumich.org/sites/default/files/file/DEANComplaint.pdf

At the urging of the American Civil Liberties Union of Michigan, the Michigan Department of Corrections (MDOC) will no longer identify prisoners as homosexual on prison forms and records.

In a letter dated March 31, 2003 from William S. Overton, Director of MDOC, the Department indicated that an internal investigation had been conducted in response to concerns raised by Jay Kaplan, Staff Attorney for the ACLU Gay, Lesbian, Bisexual and Transgender Project.  Mr. Kaplan’s letter was followed up by a letter from the ACLU Northwest Branch which included a detailed legal analysis.

“While there is a concern and need to identify inmates who are sexual predators, there is no rational for distinguishing homosexual prisoners alone,” said Kaplan.  “Being gay cannot be equated with criminal behavior.”

According the letter from Mr. Overton, the results of the investigation “revealed there is no longer the need to identify prisoners on the basis of sexual orientation.  The Michigan Department of Corrections will soon cease collecting such information and discontinue identifying prisoners as homosexual on forms used by the Department.  The Department will, however, continue to label violent prisoners with some form of “sexual predator” designation when appropriate.”

“This is indeed a significant policy change,” said Steve Morse, President of the ACLU Northwest Branch Board.  “Unfortunately, it may not reach the true underlying problem which affects gay and lesbian inmates.  The abuse that they experience needs to end and we will continue to monitor that.”

Arbitrarily identifying people as gay and communicating this to staff on forms and records could result in placing a prisoner, who is otherwise unlikely to be preyed upon, in danger of violence inspired solely by animus against someone who has been identified as gay.

The ACLU received information that MDOC staff disclosed information contained in the forms about a prisoner’s sexual orientation to other staff members and inmates, resulting in identified inmates being violently attacked and subjected to verbal abuse and threats of violence. 

According to the ACLU, the MDOC policy puts prisoners at greater risk for abuse and violence.  Kaplan’s letter  requested that the MDOC policy be revised, that current forms be changed to remove reference to sexual orientation, and that existing files be revised to remove information pertaining to sexual orientation.

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Michigan Department of Corrections Agrees to Stop Identifying Prisoners as Gay

April 08, 2003

At the urging of the American Civil Liberties Union of Michigan, the Michigan Department of Corrections (MDOC) will no longer identify prisoners as homosexual on prison forms and records.

In a letter dated March 31, 2003 from William S. Overton, Director of MDOC, the Department indicated that an internal investigation had been conducted in response to concerns raised by Jay Kaplan, Staff Attorney for the ACLU Gay, Lesbian, Bisexual and Transgender Project.  Mr. Kaplan’s letter was followed up by a letter from the ACLU Northwest Branch which included a detailed legal analysis.

“While there is a concern and need to identify inmates who are sexual predators, there is no rational for distinguishing homosexual prisoners alone,” said Kaplan.  “Being gay cannot be equated with criminal behavior.”

According the letter from Mr. Overton, the results of the investigation “revealed there is no longer the need to identify prisoners on the basis of sexual orientation.  The Michigan Department of Corrections will soon cease collecting such information and discontinue identifying prisoners as homosexual on forms used by the Department.  The Department will, however, continue to label violent prisoners with some form of “sexual predator” designation when appropriate.”

“This is indeed a significant policy change,” said Steve Morse, President of the ACLU Northwest Branch Board.  “Unfortunately, it may not reach the true underlying problem which affects gay and lesbian inmates.  The abuse that they experience needs to end and we will continue to monitor that.”

Arbitrarily identifying people as gay and communicating this to staff on forms and records could result in placing a prisoner, who is otherwise unlikely to be preyed upon, in danger of violence inspired solely by animus against someone who has been identified as gay.

The ACLU received information that MDOC staff disclosed information contained in the forms about a prisoner’s sexual orientation to other staff members and inmates, resulting in identified inmates being violently attacked and subjected to verbal abuse and threats of violence. 

According to the ACLU, the MDOC policy puts prisoners at greater risk for abuse and violence.  Kaplan’s letter  requested that the MDOC policy be revised, that current forms be changed to remove reference to sexual orientation, and that existing files be revised to remove information pertaining to sexual orientation.

In passing the USA PATRIOT Act (PATRIOT Act I), Congress expanded the powers of the government to spy on individuals, reduce the oversight of such activities, and ultimately increase the secrecy with which the Justice Department operates. The Domestic Security Enhancement Act (PATRIOT Act II) threatens to fundamentally alter the constitutional protections that allow us as Americans to be both safe and free.

There are many egregious provisions in the bill that will affect every one of us. Among them are:

The destruction of the Fourth Amendment - Fourth Amendment freedoms cannot properly be guaranteed if domestic security surveillances are conducted solely within the discretion of the Executive Branch and without judicial review. Patriot II is an unprecedented assault that would roll back years of protections gained after the FBI and CIA had, in the past, conducted massive surveillance of individual and groups engaged in lawful protest and speech.

Increased power of a secret court - Under PATRIOT Act I, the Foreign Intelligence Surveillance Act (FISA) was expanded to allow secret searches where foreign intelligence gathering was merely a "significant purpose. PATRIOT Act II would remove any distinction between "foreign" and "domestic" surveillance to include "unaffiliated individuals" and all persons, regardless of whether they are affiliated with an international terrorist group. (Section 101).

Library surveillance - Section 215 of PATRIOT Act I authorizes the FBI to order the production of "any tangible things" (including books, records, papers, documents, and other items). The FBI can now require a library to produce records showing who has borrowed a particular book; require a bookstore to produce purchasing records; require an internet service provider to reveal who has visited a particular web site; require a magazine to disclose its list of subscribers; or require the ACLU to disclose its list of members. Section 215 might also be used to obtain material that implicates privacy interests, such as medical records, other than those protected by the First Amendment. Under PATRIOT Act II these same loose standards would be expanded and apply to investigations of wholly domestic crimes. For example, time allowed for electronic surveillance would be extended; it will be easier to initiate surveillance and wiretapping of U.S. citizens; American citizens can be wiretapped of for up to 15 days without court order and at the sole discretion of the Attorney General under certain circumstances; law enforcement officers who initiate surveillance without judicial approval, a power that would be greatly expanded under Patriot II, would never be accountable should they violate anyone's constitutional rights.

Loss of citizenship - The bill would allow the government to strip citizenship from any American who provides support for a group designated by the federal government as a "terrorist organization. " It would not be required that the person knew or intended his/her actions were to support a terrorist group. Under this provision an innocent donation to an overseas orphanage that the Attorney General believes is affiliated with a "terrorist" organization could result in loss of citizenship. (Section 501).

Secret detentions - The bill would give statutory authority to allow secret arrests in immigration and other cases where the detained person is not criminally charged. There is no time limit as to how long a person could be secretly detained. It would also include a provision that would prohibit federal litigation challenging any detention and even disclosure of basic information about such detainees. (Sections 201 and 405).

This provision is in direct response to the successful ACLU litigation that sought to acquire the names of those being held in New Jersey jails in November 2001.

Expanded use of the death penalty - The bill dramatically expands the death penalty, creating fifteen separate new death penalty crimes including a conviction as a "domestic terrorist." Under the law, if an anti-war protestor broke the law during a demonstration and someone died as a result, the protestor could be subject to the death penalty and the protest organizers with domestic terrorism. (Section 411).

Lawful residents deported without a hearing - The bill would allow the INS to conduct deportations without a hearing, even of lawful permanent residents, whom the Attorney General says are a threat to national security. (Section 503).

Government spying on lawful political demonstrations - Federal and state court orders that had placed limits on police spying on community activists would be immediately cancelled. (Section 312).

Secret access to credit reports without consent - The law would expand access to credit reports by authorizing the government to obtain reports without consent, notice to the person to whom the credit report pertains, and without a court order. The consequences of an erroneous credit report are far more serious than when credit reports are used for business purposes since there is no opportunity for the person to contest an erroneous report. (Section 126).

Creation of a DNA database of "suspected terrorists" - The bill would create a DNA database of individuals who are suspected of association with terrorism or terrorist groups. The Attorney General could designate persons who have neither been charged nor convicted of any crime as "suspected terrorists" and require the "voluntary" taking of a DNA sample. Failure to comply with the "voluntary" request is a crime. (Sections 301-306).

The public will be denied access to environmental reports - Communities and environmental organizations seeking to protect public health and safety and the environment will not have access to critical information concerning risks to the community. The Clean Air Act, for example, requires corporations that use potentially dangerous chemicals to prepare a "worst case scenarios" analysis to surrounding communities. Such information helps ensure compliance by private corporations with environmental and health standards and alerts local residents to potential hazards. Access will be restricted to reading rooms only; --copies could not be made and notes could not be taken, and the reports would be excised of the very information required. Significantly, a government official who reveals any information restricted under this section commits a criminal offense, even if their motivation was to protect the public from an inherently dangerous environmental hazard, corporate wrongdoing or government neglect. (Section 202).

The larger implications of the bill include a severe diminishment of basic checks and balances on the power of the executive branch, as well as untested and likely ineffective security measures that infringe on basic liberties -- especially personal privacy and the freedoms of speech, association and religion.

For more information, go to www.aclumich.org. and, if you aren't already a member, join the ACLU.

For a detailed section-by-section analysis of the draft bill, go to:
http://www.aclu.org/SafeandFree/SafeandFree.cfm?ID=11835&c=206

 

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Summarized Highlights of Patriot II

In passing the USA PATRIOT Act (PATRIOT Act I), Congress expanded the powers of the government to spy on individuals, reduce the oversight of such activities, and ultimately increase the secrecy with which the Justice Department operates. The Domestic Security Enhancement Act (PATRIOT Act II) threatens to fundamentally alter the constitutional protections that allow us as Americans to be both safe and free.

There are many egregious provisions in the bill that will affect every one of us. Among them are:

The destruction of the Fourth Amendment - Fourth Amendment freedoms cannot properly be guaranteed if domestic security surveillances are conducted solely within the discretion of the Executive Branch and without judicial review. Patriot II is an unprecedented assault that would roll back years of protections gained after the FBI and CIA had, in the past, conducted massive surveillance of individual and groups engaged in lawful protest and speech.

Increased power of a secret court - Under PATRIOT Act I, the Foreign Intelligence Surveillance Act (FISA) was expanded to allow secret searches where foreign intelligence gathering was merely a "significant purpose. PATRIOT Act II would remove any distinction between "foreign" and "domestic" surveillance to include "unaffiliated individuals" and all persons, regardless of whether they are affiliated with an international terrorist group. (Section 101).

Library surveillance - Section 215 of PATRIOT Act I authorizes the FBI to order the production of "any tangible things" (including books, records, papers, documents, and other items). The FBI can now require a library to produce records showing who has borrowed a particular book; require a bookstore to produce purchasing records; require an internet service provider to reveal who has visited a particular web site; require a magazine to disclose its list of subscribers; or require the ACLU to disclose its list of members. Section 215 might also be used to obtain material that implicates privacy interests, such as medical records, other than those protected by the First Amendment. Under PATRIOT Act II these same loose standards would be expanded and apply to investigations of wholly domestic crimes. For example, time allowed for electronic surveillance would be extended; it will be easier to initiate surveillance and wiretapping of U.S. citizens; American citizens can be wiretapped of for up to 15 days without court order and at the sole discretion of the Attorney General under certain circumstances; law enforcement officers who initiate surveillance without judicial approval, a power that would be greatly expanded under Patriot II, would never be accountable should they violate anyone's constitutional rights.

Loss of citizenship - The bill would allow the government to strip citizenship from any American who provides support for a group designated by the federal government as a "terrorist organization. " It would not be required that the person knew or intended his/her actions were to support a terrorist group. Under this provision an innocent donation to an overseas orphanage that the Attorney General believes is affiliated with a "terrorist" organization could result in loss of citizenship. (Section 501).

Secret detentions - The bill would give statutory authority to allow secret arrests in immigration and other cases where the detained person is not criminally charged. There is no time limit as to how long a person could be secretly detained. It would also include a provision that would prohibit federal litigation challenging any detention and even disclosure of basic information about such detainees. (Sections 201 and 405).

This provision is in direct response to the successful ACLU litigation that sought to acquire the names of those being held in New Jersey jails in November 2001.

Expanded use of the death penalty - The bill dramatically expands the death penalty, creating fifteen separate new death penalty crimes including a conviction as a "domestic terrorist." Under the law, if an anti-war protestor broke the law during a demonstration and someone died as a result, the protestor could be subject to the death penalty and the protest organizers with domestic terrorism. (Section 411).

Lawful residents deported without a hearing - The bill would allow the INS to conduct deportations without a hearing, even of lawful permanent residents, whom the Attorney General says are a threat to national security. (Section 503).

Government spying on lawful political demonstrations - Federal and state court orders that had placed limits on police spying on community activists would be immediately cancelled. (Section 312).

Secret access to credit reports without consent - The law would expand access to credit reports by authorizing the government to obtain reports without consent, notice to the person to whom the credit report pertains, and without a court order. The consequences of an erroneous credit report are far more serious than when credit reports are used for business purposes since there is no opportunity for the person to contest an erroneous report. (Section 126).

Creation of a DNA database of "suspected terrorists" - The bill would create a DNA database of individuals who are suspected of association with terrorism or terrorist groups. The Attorney General could designate persons who have neither been charged nor convicted of any crime as "suspected terrorists" and require the "voluntary" taking of a DNA sample. Failure to comply with the "voluntary" request is a crime. (Sections 301-306).

The public will be denied access to environmental reports - Communities and environmental organizations seeking to protect public health and safety and the environment will not have access to critical information concerning risks to the community. The Clean Air Act, for example, requires corporations that use potentially dangerous chemicals to prepare a "worst case scenarios" analysis to surrounding communities. Such information helps ensure compliance by private corporations with environmental and health standards and alerts local residents to potential hazards. Access will be restricted to reading rooms only; --copies could not be made and notes could not be taken, and the reports would be excised of the very information required. Significantly, a government official who reveals any information restricted under this section commits a criminal offense, even if their motivation was to protect the public from an inherently dangerous environmental hazard, corporate wrongdoing or government neglect. (Section 202).

The larger implications of the bill include a severe diminishment of basic checks and balances on the power of the executive branch, as well as untested and likely ineffective security measures that infringe on basic liberties -- especially personal privacy and the freedoms of speech, association and religion.

For more information, go to www.aclumich.org. and, if you aren't already a member, join the ACLU.

For a detailed section-by-section analysis of the draft bill, go to:
http://www.aclu.org/SafeandFree/SafeandFree.cfm?ID=11835&c=206

 

In a victory for privacy rights, the ACLU of Michigan announced today that a special 12-member panel of the U.S. Sixth Circuit Court of Appeals has halted the State’s attempt to impose mandatory drug tests on all welfare recipients. Michigan is the only state in the country to require drug testing without reason to suspect drug use.

“It was a long time coming, but this ruling affirms that being poor is not a crime.  Low-income parents should not be required to choose between providing for their children and relinquishing their privacy rights,” said Kary Moss, Executive Director of the Michigan ACLU and an attorney in the case.

The ruling affirms District Court Judge Victoria Roberts’ opinion that random drug testing violates welfare recipients' privacy rights.

“This ruling should send a message to the rest of the nation that drug testing programs like these are neither an appropriate or effective use of a state’s limited resources,” said Graham Boyd, director of National ACLU Director of the Drug Policy Litigation Project, who argued the case before the en banc panel in Cincinnati.

The estimated cost of the Michigan program is $7 million.   Currently, Arizona and Vermont are considering similar legislation.  Other states that have some form of drug-testing for welfare recipients include Florida, Illinois, Indiana, Louisiana, Maryland, Nevada, New Jersey, New York, North Carolina, Oklahoma and Oregon, but none of these states test without reasonable suspicion.

The ACLU filed the class-action lawsuit in September 1999 on behalf of all Michigan welfare recipients who would be denied income support and other benefits for other children if they refused to submit to random drug testing or failed to comply with a mandatory "substance abuse treatment plan."   The law has not been enforced since 2000.

Selma Goode, the director of Westside Mothers, a plaintiff in the case, said of today’s decision, “We’re glad that justice prevailed. I work with welfare recipients every day and it’s simply unfair to assume that people in dire need use drugs.”

The ACLU argued that the State’s pilot program violates the Fourth Amendment's requirement that people not be subjected to "searches and seizures" without probable cause or suspicion that illegal activity has occurred.  Federal District Court Judge Victoria Roberts agreed with the ACLU, but the State appealed to the Sixth Circuit Court of Appeals and Judge Roberts’ ruling was reversed by a 3-judge panel of the Court. When the Court decided to re-hear the case, the appeals court decision was vacated. 

In the five weeks that the program was in effect, the drug tests were positive in only 8% of the cases, a percentage that is consistent with drug use in the general population.  Of 268 people tested, only 21 tested positive for drugs and all but 3 were for marijuana.

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ACLU Wins Drug Testing Lawsuit in Court of Appeals

In a victory for privacy rights, the ACLU of Michigan announced today that a special 12-member panel of the U.S. Sixth Circuit Court of Appeals has halted the State’s attempt to impose mandatory drug tests on all welfare recipients. Michigan is the only state in the country to require drug testing without reason to suspect drug use.

“It was a long time coming, but this ruling affirms that being poor is not a crime.  Low-income parents should not be required to choose between providing for their children and relinquishing their privacy rights,” said Kary Moss, Executive Director of the Michigan ACLU and an attorney in the case.

The ruling affirms District Court Judge Victoria Roberts’ opinion that random drug testing violates welfare recipients' privacy rights.

“This ruling should send a message to the rest of the nation that drug testing programs like these are neither an appropriate or effective use of a state’s limited resources,” said Graham Boyd, director of National ACLU Director of the Drug Policy Litigation Project, who argued the case before the en banc panel in Cincinnati.

The estimated cost of the Michigan program is $7 million.   Currently, Arizona and Vermont are considering similar legislation.  Other states that have some form of drug-testing for welfare recipients include Florida, Illinois, Indiana, Louisiana, Maryland, Nevada, New Jersey, New York, North Carolina, Oklahoma and Oregon, but none of these states test without reasonable suspicion.

The ACLU filed the class-action lawsuit in September 1999 on behalf of all Michigan welfare recipients who would be denied income support and other benefits for other children if they refused to submit to random drug testing or failed to comply with a mandatory "substance abuse treatment plan."   The law has not been enforced since 2000.

Selma Goode, the director of Westside Mothers, a plaintiff in the case, said of today’s decision, “We’re glad that justice prevailed. I work with welfare recipients every day and it’s simply unfair to assume that people in dire need use drugs.”

The ACLU argued that the State’s pilot program violates the Fourth Amendment's requirement that people not be subjected to "searches and seizures" without probable cause or suspicion that illegal activity has occurred.  Federal District Court Judge Victoria Roberts agreed with the ACLU, but the State appealed to the Sixth Circuit Court of Appeals and Judge Roberts’ ruling was reversed by a 3-judge panel of the Court. When the Court decided to re-hear the case, the appeals court decision was vacated. 

In the five weeks that the program was in effect, the drug tests were positive in only 8% of the cases, a percentage that is consistent with drug use in the general population.  Of 268 people tested, only 21 tested positive for drugs and all but 3 were for marijuana.

New so-called partial birth abortion bill passes the House

UPDATED May 9, 2003 Another so-called "partial birth abortion" ban passed the House yesterday. The new bill is called the "legal birth definition act." This is at attempt to ban all abortions and will put doctors in jeopardy of facing criminal charges even in cases of completing a miscarriage.

HB 4603 will now go to the Senate and then to Governor Granholm for her to either sign or veto.

The bill is unconstitutional, lacking a provision that protects the life and HEALTH of a woman. An insufficient and meaningless "physical health" exception, crafted by Right to Life, is now part of the bill.

The amendment does nothing to eliminate the extreme danger this bill poses to Michigan’s women, and nothing to cure its glaring constitutional defects.

The government should not be in the business of legislating good medical practice and involving itself in decisions that must be made by a doctor in concert with the woman and her family.

Please let the Governor know that you cannot accept a pro-choice governor signing an anti-choice bill!

WRITE HER AT:

Governor Jennifer M. Granholm
P.O. Box 30013
Lansing, Michigan 48909

Our thanks to the 29 Representatives who voted against the bill: Accavitti, Elkins, Kolb, Tobocman, Adamini,Farrah, Law, Vagnozzi, Anderson, Gieleghem, Lipsey, Waters, Byrum, Gillard, Meisner, Whitmer, Clack, Hardman, Minore, Williams, Condino, Hopgood, Murphy, Woodward, Daniels, Jamnick, Phillips, Zelenko, Dennis Read the letter from Timothy Johnson, M.D. below.

Dr. Timothy Johnson's letter to the Senate Judiciary Committee:

April 25, 2003

Senator Alan Cropsey
Senate Judiciary Committee, Chair
P.O. Box 3036
Lansing, Michigan  48909-7536

Re: Senate Bill 395

Dear Senator Cropsey and Members of the Senate Judiciary Committee,

I am writing as a physician dedicated to women’s health to alert you to the extreme harm the Legislature would cause to women in Michigan if Senate Bill 395, the “Legal Birth Definition Act,” becomes law.

Seven years ago, Federal District Judge Gerald Rosen selected me to serve as the court’s expert in a case in which the court ultimately struck down a similar Michigan law; just three years ago, I was a plaintiff in a lawsuit in which the court struck down another Michigan law that in my opinion was nearly identical in effect to Senate Bill 395.  In each instance, the court acted to protect women from medical harm.

As Chairman of the Department of Obstetrics and Gynecology at the University of Michigan, I provide comprehensive obstetrical and gynecological services, including prenatal care, labor and delivery, abortion, and treatment of miscarriage.  Based on my medical experience, I know that Senate Bill 395 would, like the previous two laws, put women in grave danger: it contains non-medical language that is too vague to be comprehensible to physicians; it would ban abortions throughout pregnancy and treatment of miscarriage; and it would deny women essential, even lifesaving care.

Senate Bill 395 redefines a fetus as a person, for legal purposes, once even the tiniest part of the fetus is outside the woman’s body as long as that part is still attached, and there is still, for example, a fetal heartbeat.  But this scenario is absolutely routine: it can occur any time a woman miscarries or in any abortion performed from the earliest stages of pregnancy.  For example, I often treat women who arrive at the hospital miscarrying, with part of the fetus already outside the woman’s body while there is still a fetal heartbeat.  This routinely occurs well before the fetus is developed enough to have any chance of survival.  At that point, I must complete the miscarriage swiftly to protect the woman from infection and to control bleeding.  Providing that care would inevitably result in the death of the non-viable fetus.

Under Senate Bill 395, providing that care would also put me at risk of prosecution.  In any abortion or miscarriage, once the fetus is in the designated position, the bill makes the physician liable for performing any procedure that results in injury or death of the fetus.  Thus, in the common miscarriage scenario just mentioned, the bill would leave me no way to treat my patient without facing prosecution for causing the death of a person as defined in the bill.

Such an extreme, broad ban blatantly disregards women’s health and lives.  Indeed, it provides no immunity for care necessary to protect a woman’s health.  The physician is immune only if the procedure was necessary to save the woman’s life and every reasonable effort was made to preserve the life of the fetus.  First, this means that rather than complete an abortion or miscarriage, the physician must do anything else that would keep the woman alive, no matter the consequences for her health or fertility.  Second, the bill forbids a physician from acting to save a woman’s life unless the physician also tries to preserve the life of a fetus with no chance of survival.  This is enigmatic, and it is cruel.

I am deeply concerned about the passage of Senate Bill 395.  I cannot protect the health of my patients under such restrictions on my exercise of medical judgment, and you should not expect me to.  I urge you to defeat this dangerous bill.

Sincerely,

Timothy R.B. Johnson
Bates Professor of the Diseases of Women and Children
Research Scientist, Center for Human Growth and Development
Professor, Women’s Studies

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New Abortion Ban Legislation Passes the House

May 09, 2003

New so-called partial birth abortion bill passes the House

UPDATED May 9, 2003 Another so-called "partial birth abortion" ban passed the House yesterday. The new bill is called the "legal birth definition act." This is at attempt to ban all abortions and will put doctors in jeopardy of facing criminal charges even in cases of completing a miscarriage.

HB 4603 will now go to the Senate and then to Governor Granholm for her to either sign or veto.

The bill is unconstitutional, lacking a provision that protects the life and HEALTH of a woman. An insufficient and meaningless "physical health" exception, crafted by Right to Life, is now part of the bill.

The amendment does nothing to eliminate the extreme danger this bill poses to Michigan’s women, and nothing to cure its glaring constitutional defects.

The government should not be in the business of legislating good medical practice and involving itself in decisions that must be made by a doctor in concert with the woman and her family.

Please let the Governor know that you cannot accept a pro-choice governor signing an anti-choice bill!

WRITE HER AT:

Governor Jennifer M. Granholm
P.O. Box 30013
Lansing, Michigan 48909

Our thanks to the 29 Representatives who voted against the bill: Accavitti, Elkins, Kolb, Tobocman, Adamini,Farrah, Law, Vagnozzi, Anderson, Gieleghem, Lipsey, Waters, Byrum, Gillard, Meisner, Whitmer, Clack, Hardman, Minore, Williams, Condino, Hopgood, Murphy, Woodward, Daniels, Jamnick, Phillips, Zelenko, Dennis Read the letter from Timothy Johnson, M.D. below.

Dr. Timothy Johnson's letter to the Senate Judiciary Committee:

April 25, 2003

Senator Alan Cropsey
Senate Judiciary Committee, Chair
P.O. Box 3036
Lansing, Michigan  48909-7536

Re: Senate Bill 395

Dear Senator Cropsey and Members of the Senate Judiciary Committee,

I am writing as a physician dedicated to women’s health to alert you to the extreme harm the Legislature would cause to women in Michigan if Senate Bill 395, the “Legal Birth Definition Act,” becomes law.

Seven years ago, Federal District Judge Gerald Rosen selected me to serve as the court’s expert in a case in which the court ultimately struck down a similar Michigan law; just three years ago, I was a plaintiff in a lawsuit in which the court struck down another Michigan law that in my opinion was nearly identical in effect to Senate Bill 395.  In each instance, the court acted to protect women from medical harm.

As Chairman of the Department of Obstetrics and Gynecology at the University of Michigan, I provide comprehensive obstetrical and gynecological services, including prenatal care, labor and delivery, abortion, and treatment of miscarriage.  Based on my medical experience, I know that Senate Bill 395 would, like the previous two laws, put women in grave danger: it contains non-medical language that is too vague to be comprehensible to physicians; it would ban abortions throughout pregnancy and treatment of miscarriage; and it would deny women essential, even lifesaving care.

Senate Bill 395 redefines a fetus as a person, for legal purposes, once even the tiniest part of the fetus is outside the woman’s body as long as that part is still attached, and there is still, for example, a fetal heartbeat.  But this scenario is absolutely routine: it can occur any time a woman miscarries or in any abortion performed from the earliest stages of pregnancy.  For example, I often treat women who arrive at the hospital miscarrying, with part of the fetus already outside the woman’s body while there is still a fetal heartbeat.  This routinely occurs well before the fetus is developed enough to have any chance of survival.  At that point, I must complete the miscarriage swiftly to protect the woman from infection and to control bleeding.  Providing that care would inevitably result in the death of the non-viable fetus.

Under Senate Bill 395, providing that care would also put me at risk of prosecution.  In any abortion or miscarriage, once the fetus is in the designated position, the bill makes the physician liable for performing any procedure that results in injury or death of the fetus.  Thus, in the common miscarriage scenario just mentioned, the bill would leave me no way to treat my patient without facing prosecution for causing the death of a person as defined in the bill.

Such an extreme, broad ban blatantly disregards women’s health and lives.  Indeed, it provides no immunity for care necessary to protect a woman’s health.  The physician is immune only if the procedure was necessary to save the woman’s life and every reasonable effort was made to preserve the life of the fetus.  First, this means that rather than complete an abortion or miscarriage, the physician must do anything else that would keep the woman alive, no matter the consequences for her health or fertility.  Second, the bill forbids a physician from acting to save a woman’s life unless the physician also tries to preserve the life of a fetus with no chance of survival.  This is enigmatic, and it is cruel.

I am deeply concerned about the passage of Senate Bill 395.  I cannot protect the health of my patients under such restrictions on my exercise of medical judgment, and you should not expect me to.  I urge you to defeat this dangerous bill.

Sincerely,

Timothy R.B. Johnson
Bates Professor of the Diseases of Women and Children
Research Scientist, Center for Human Growth and Development
Professor, Women’s Studies

DETROIT - The ACLU of Michigan announced today that a federal judge rejected Meijer’s attempt to halt distribution of flyers criticizing a Meijer gas station clerk for anti-Arab bias. The judge, adopting the position of the American Civil Liberties Union of Michigan, ruled that “peaceful pamphleteering is a form of communication protected by the First Amendment.”

“Distributing flyers drawing attention to injustice is a precious freedom in this country,” said Michael J. Steinberg, legal director of the American Civil Liberties Union of Michigan. “The judge’s opinion reaffirms the longstanding principle that a corporation cannot squelch speech simply because it disagrees with the message.”

The court decision stems from an ugly confrontation at a Meijer gas station in Frasier last February. Mohammed and Bilal Karhani claimed that they were mistreated by the cashier because of their ethnicity. Although Meijer disputes the facts, the Karhanis claim that the clerk initially refused to serve them and then shouted, “You Arabs get out of here, we don’t want to serve you guys, we don’t have to serve you. Go back to your country . . . Dirty Arabs.”

The Karhanis, who are suing Meijer for discrimination, began to distribute flyers in the Arab community explaining their version of the events and encouraging people to “call Meijer and let them know how you feel.” Meijer responded by seeking a court order stopping the flyers on the ground that the flyers were hurting the corporation’s business reputation and they were untrue. The ACLU of Michigan agreed to represent the Karhanis solely on the free speech issue.

U.S. District Court Judge Paul D. Borman, in a written opinion, noted that if Meijer thought that the flyers were inaccurate, it has the option of suing for defamation and seeking damages. However, issuing an injunction at this point “would constitute a wholly inappropriate and unconstitutional prior restraint” on free speech.

“If Meijer disagrees with the message in the flyers, it is fully capable of reaching the public and giving its own version of what happened,” said Steinberg. “In this country, the solution to speech with which one disagrees, is more speech, not censorship.”

ACLU volunteer attorneys Kenneth Mogill and Robert Sedler worked on the case with Steinberg and Noel Saleh, staff attorney for the ACLU Post 9-11 Project.

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Judge Rejects Meijer's Attempt to Censor Accusations of Anti-Arab Bias

June 10, 2003

DETROIT - The ACLU of Michigan announced today that a federal judge rejected Meijer’s attempt to halt distribution of flyers criticizing a Meijer gas station clerk for anti-Arab bias. The judge, adopting the position of the American Civil Liberties Union of Michigan, ruled that “peaceful pamphleteering is a form of communication protected by the First Amendment.”

“Distributing flyers drawing attention to injustice is a precious freedom in this country,” said Michael J. Steinberg, legal director of the American Civil Liberties Union of Michigan. “The judge’s opinion reaffirms the longstanding principle that a corporation cannot squelch speech simply because it disagrees with the message.”

The court decision stems from an ugly confrontation at a Meijer gas station in Frasier last February. Mohammed and Bilal Karhani claimed that they were mistreated by the cashier because of their ethnicity. Although Meijer disputes the facts, the Karhanis claim that the clerk initially refused to serve them and then shouted, “You Arabs get out of here, we don’t want to serve you guys, we don’t have to serve you. Go back to your country . . . Dirty Arabs.”

The Karhanis, who are suing Meijer for discrimination, began to distribute flyers in the Arab community explaining their version of the events and encouraging people to “call Meijer and let them know how you feel.” Meijer responded by seeking a court order stopping the flyers on the ground that the flyers were hurting the corporation’s business reputation and they were untrue. The ACLU of Michigan agreed to represent the Karhanis solely on the free speech issue.

U.S. District Court Judge Paul D. Borman, in a written opinion, noted that if Meijer thought that the flyers were inaccurate, it has the option of suing for defamation and seeking damages. However, issuing an injunction at this point “would constitute a wholly inappropriate and unconstitutional prior restraint” on free speech.

“If Meijer disagrees with the message in the flyers, it is fully capable of reaching the public and giving its own version of what happened,” said Steinberg. “In this country, the solution to speech with which one disagrees, is more speech, not censorship.”

ACLU volunteer attorneys Kenneth Mogill and Robert Sedler worked on the case with Steinberg and Noel Saleh, staff attorney for the ACLU Post 9-11 Project.

Joint Advisory From Gay & Lesbian Advocates & Defenders, Lambda Legal Defense & Education Fund, National Center for Lesbian Rights, ACLU Lesbian & Gay Rights Project, and Freedom to Marry - June 2003

On June 10, the high court of Ontario, Canada's most populous province, ruled that the exclusion of same-sex couples from civil marriage infringes human dignity, harms families, and violates the constitution. The court ordered an immediate end to this cruel discrimination. Within hours, same-sex couples began marrying. American couples, different-sex or same-sex, may go to Canada to marry. Canada, like the United States, has no residency requirement for marriage (though it does have a one-year residency requirement for divorce).

 

American couples who go to Canada to marry should realize that the decision is not just a political gesture, but rather is about taking on all the responsibilities, legal obligations, joys, and wonder of being married. When couples who marry in Canada come home -- although they might face uncertainties and discrimination -- they will be as married as any people on the planet. That means, for example, the couples will identify as married on applications/forms for jobs, apartments, credit, mortgages, insurance, medical treatment, and taxes.

 

The good news is that couples returning home married will have a unique chance every day to role model what married same-sex couples look like, and show that marriages of same-sex couples strengthen those families and the larger community while harming no one. This is critically important because as GLBT Americans, we are involved in a civil rights struggle and have not yet won the freedom to marry in any state -- although that may soon change with cases pending in the Massachusetts high court (GLAD) and in the New Jersey courts (Lambda Legal). As in any civil rights struggle, we still have other layers of discrimination to undo, both in the states and with the federal law that discriminates against the marriages of same-sex couples.

 

While many marriages will be respected to varying degrees in various places, and even in surprising places, many married couples will also experience discrimination. Some but not all businesses, states, and others will refuse to honor these lawful marriages, along with the federal government. And couples with a member in the military, or on public assistance, or in the U.S. on a visa will face particular complexities. Couples must be prepared to live with a level of uncertainty while we continue our work to end marriage discrimination here.

 

But we can and we will peel away the layers of discrimination we now face. It is simply no longer debatable that our families exist and that we need the same protections marriage provides for our families and our children. Everyone can help. People can join and work with local, state, and national organizations to repeal discriminatory state laws and the federal anti-marriage law as unfair and harmful to GLBT families and their children. (Contact us to get a list of organizations.). They can focus public attention on how they have been treated – the discrimination and harms the marriage exclusion causes their families and the proof that the sky does not fall when a community respects same-sex couples’ marriages. And people should continue to use the available legal tools such as wills and health-care proxies, and should consult with attorneys and financial advisors, to protect their families during the lengthy process of sorting these issues out.

 

For those who contemplate litigation as a response to discrimination against their marriage, it is critical to remember that any legal case has profound implications beyond the individuals involved. Please contact the organizations below who have the most experience litigating on marriage, civil unions and the rights of GLBT people and who have definite thoughts about what, when and where litigation is and is not advisable for taking our movement forward. Couples should absolutely not race across the border just to set up lawsuits; the wrong cases could set us back for years. We will be strongest if we work together.

 

Again, this is a civil rights struggle, and we must bring all of our resources to each part of the struggle: telling stories, politically organizing, engaging non-gay allies, working in legislatures, and very selectively litigating. Together we can win marriage equality here in the United States.

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Thinking of Getting Married in Canada?

June 01, 2003

Joint Advisory From Gay & Lesbian Advocates & Defenders, Lambda Legal Defense & Education Fund, National Center for Lesbian Rights, ACLU Lesbian & Gay Rights Project, and Freedom to Marry - June 2003

On June 10, the high court of Ontario, Canada's most populous province, ruled that the exclusion of same-sex couples from civil marriage infringes human dignity, harms families, and violates the constitution. The court ordered an immediate end to this cruel discrimination. Within hours, same-sex couples began marrying. American couples, different-sex or same-sex, may go to Canada to marry. Canada, like the United States, has no residency requirement for marriage (though it does have a one-year residency requirement for divorce).

 

American couples who go to Canada to marry should realize that the decision is not just a political gesture, but rather is about taking on all the responsibilities, legal obligations, joys, and wonder of being married. When couples who marry in Canada come home -- although they might face uncertainties and discrimination -- they will be as married as any people on the planet. That means, for example, the couples will identify as married on applications/forms for jobs, apartments, credit, mortgages, insurance, medical treatment, and taxes.

 

The good news is that couples returning home married will have a unique chance every day to role model what married same-sex couples look like, and show that marriages of same-sex couples strengthen those families and the larger community while harming no one. This is critically important because as GLBT Americans, we are involved in a civil rights struggle and have not yet won the freedom to marry in any state -- although that may soon change with cases pending in the Massachusetts high court (GLAD) and in the New Jersey courts (Lambda Legal). As in any civil rights struggle, we still have other layers of discrimination to undo, both in the states and with the federal law that discriminates against the marriages of same-sex couples.

 

While many marriages will be respected to varying degrees in various places, and even in surprising places, many married couples will also experience discrimination. Some but not all businesses, states, and others will refuse to honor these lawful marriages, along with the federal government. And couples with a member in the military, or on public assistance, or in the U.S. on a visa will face particular complexities. Couples must be prepared to live with a level of uncertainty while we continue our work to end marriage discrimination here.

 

But we can and we will peel away the layers of discrimination we now face. It is simply no longer debatable that our families exist and that we need the same protections marriage provides for our families and our children. Everyone can help. People can join and work with local, state, and national organizations to repeal discriminatory state laws and the federal anti-marriage law as unfair and harmful to GLBT families and their children. (Contact us to get a list of organizations.). They can focus public attention on how they have been treated – the discrimination and harms the marriage exclusion causes their families and the proof that the sky does not fall when a community respects same-sex couples’ marriages. And people should continue to use the available legal tools such as wills and health-care proxies, and should consult with attorneys and financial advisors, to protect their families during the lengthy process of sorting these issues out.

 

For those who contemplate litigation as a response to discrimination against their marriage, it is critical to remember that any legal case has profound implications beyond the individuals involved. Please contact the organizations below who have the most experience litigating on marriage, civil unions and the rights of GLBT people and who have definite thoughts about what, when and where litigation is and is not advisable for taking our movement forward. Couples should absolutely not race across the border just to set up lawsuits; the wrong cases could set us back for years. We will be strongest if we work together.

 

Again, this is a civil rights struggle, and we must bring all of our resources to each part of the struggle: telling stories, politically organizing, engaging non-gay allies, working in legislatures, and very selectively litigating. Together we can win marriage equality here in the United States.

DETROIT - Today, in a significant victory for the right to counsel, the Sixth Circuit U.S. Court of Appeals struck down a Michigan law that would have prevented judges from appointing lawyers to represent poor people on appeal in guilty plea cases. The challenge to the law was brought by the American Civil Liberties Union of Michigan.

“The opinion embraces the important principle that poor people should have the same access to justice in this country as those who can afford attorneys,” said Kary Moss, Executive Director of the Michigan ACLU.  “Many indigent criminal defendants have not graduated high school and simply do not have the ability to navigate the legal system without a lawyer.”

In 2000, the Michigan legislature enacted a statute forbidding the appointment of counsel to represent indigent people in appeals of their sentence or conviction in guilty plea cases except in very limited circumstances.  In doing so, Michigan became the first state since the landmark 1963 Supreme Court case of Gideon v. Wainwright to take away the right of counsel for poor people for their first appeal.

In March, 2000, U.S. District Judge Victoria Roberts declared the law unconstitutional.  In today’s opinion, which was heard before the entire bench of the Sixth Circuit of the U.S. Court of Appeals, the court voted 7-5 to affirm Judge Roberts’ ruling. 

Chief Judge Boyce F. Martin, Jr., writing for the majority, said, “Michigan’s statute creates unequal access . . . to the first part of the appellate system. . . . [The law’s] “effect is to create a different opportunity for access to the appellate system based upon indigency.”

ACLU Cooperating Attorney David Moran, who argued the case said, “Michigan attempted to do something radical that no other state has done in 40 years take away the right of poor people to have the same access to the Court of Appeals that wealthy people enjoy.  We are happy that the Sixth Circuit refused to let the state do that.”

The opinion will have a far-reaching impact.  There are over a thousand requests for counsel in guilty plea cases every year in Michigan.  Although the vast majority of Michigan judges have been appointing appellate counsel in guilty plea cases since Judge Roberts’ ruling in 2000, there are over 500 cases where requests for counsel were denied.  Many of these 500 individuals may decide to go back to state court and seek an appointed attorney so that they may appeal.

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U.S. Court of Appeals Strikes Down Law

DETROIT - Today, in a significant victory for the right to counsel, the Sixth Circuit U.S. Court of Appeals struck down a Michigan law that would have prevented judges from appointing lawyers to represent poor people on appeal in guilty plea cases. The challenge to the law was brought by the American Civil Liberties Union of Michigan.

“The opinion embraces the important principle that poor people should have the same access to justice in this country as those who can afford attorneys,” said Kary Moss, Executive Director of the Michigan ACLU.  “Many indigent criminal defendants have not graduated high school and simply do not have the ability to navigate the legal system without a lawyer.”

In 2000, the Michigan legislature enacted a statute forbidding the appointment of counsel to represent indigent people in appeals of their sentence or conviction in guilty plea cases except in very limited circumstances.  In doing so, Michigan became the first state since the landmark 1963 Supreme Court case of Gideon v. Wainwright to take away the right of counsel for poor people for their first appeal.

In March, 2000, U.S. District Judge Victoria Roberts declared the law unconstitutional.  In today’s opinion, which was heard before the entire bench of the Sixth Circuit of the U.S. Court of Appeals, the court voted 7-5 to affirm Judge Roberts’ ruling. 

Chief Judge Boyce F. Martin, Jr., writing for the majority, said, “Michigan’s statute creates unequal access . . . to the first part of the appellate system. . . . [The law’s] “effect is to create a different opportunity for access to the appellate system based upon indigency.”

ACLU Cooperating Attorney David Moran, who argued the case said, “Michigan attempted to do something radical that no other state has done in 40 years take away the right of poor people to have the same access to the Court of Appeals that wealthy people enjoy.  We are happy that the Sixth Circuit refused to let the state do that.”

The opinion will have a far-reaching impact.  There are over a thousand requests for counsel in guilty plea cases every year in Michigan.  Although the vast majority of Michigan judges have been appointing appellate counsel in guilty plea cases since Judge Roberts’ ruling in 2000, there are over 500 cases where requests for counsel were denied.  Many of these 500 individuals may decide to go back to state court and seek an appointed attorney so that they may appeal.

DETROIT - An 82-year-old farmer who complained to the Michigan Department of Agriculture by voice-mail over its failure to stop a nearby agribusiness from creating a sickening smell, has been charged him with making “obscene” phone calls. The American Civil Liberties Union of Michigan has filed a brief on the farmer’s behalf arguing that his speech was protected by the First Amendment.

“The law is clear that citizens are not required to be polite when they complain to government officials,” said Michael J. Steinberg, legal director of the Michigan ACLU.  “It is disturbing that the state would charge a person with a crime for leaving messages on a complaint line about a legitimate problem simply because he expressed himself in a way that some might find offensive.”

Gerald Henning lives in Hudson Township, Lenawee County, on land farmed by his family for generations, and still being farmed by his son and daughter-in-law.  Mr. Henning’s farm is surrounded on three sides by an enormous agribusiness.  Mr. Henning says that the agribusiness has sprayed liquid manure for more than two years without incorporating it into the soil – a manner that is inconsistent with state law.  The liquid manure emits a putrid smell that can cause serious health consequences.

According to Mr. Henning, state investigators have observed the infractions of Michigan law, yet have not fulfilled their responsibility to ensure compliance on the part of the agribusiness, and to protect Mr. Henning and his family.

In an effort to obtain the help of the Michigan Department of Agriculture (MDA), Mr. Henning began calling an MDA complaint hot line, leaving numerous voicemail messages.  The MDA’s failure to respond resulted in increasing frustration on the part of Mr. Henning, leading him to use increasingly strong language. 

The ACLU has filed a friend-of-the-court brief asking Lansing District Court Judge Frank J. Deluca to dismiss the criminal charges because Mr. Henning’s speech is constitutionally protected.  The motion to dismiss will be heard tomorrow, June 19, at 8:30 a.m. in Judge Deluca’s courtroom at Lansing City Hall, 124 W. Michigan Avenue.

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Frustrated Farmer Charged for Complaining to the State

June 18, 2003

DETROIT - An 82-year-old farmer who complained to the Michigan Department of Agriculture by voice-mail over its failure to stop a nearby agribusiness from creating a sickening smell, has been charged him with making “obscene” phone calls. The American Civil Liberties Union of Michigan has filed a brief on the farmer’s behalf arguing that his speech was protected by the First Amendment.

“The law is clear that citizens are not required to be polite when they complain to government officials,” said Michael J. Steinberg, legal director of the Michigan ACLU.  “It is disturbing that the state would charge a person with a crime for leaving messages on a complaint line about a legitimate problem simply because he expressed himself in a way that some might find offensive.”

Gerald Henning lives in Hudson Township, Lenawee County, on land farmed by his family for generations, and still being farmed by his son and daughter-in-law.  Mr. Henning’s farm is surrounded on three sides by an enormous agribusiness.  Mr. Henning says that the agribusiness has sprayed liquid manure for more than two years without incorporating it into the soil – a manner that is inconsistent with state law.  The liquid manure emits a putrid smell that can cause serious health consequences.

According to Mr. Henning, state investigators have observed the infractions of Michigan law, yet have not fulfilled their responsibility to ensure compliance on the part of the agribusiness, and to protect Mr. Henning and his family.

In an effort to obtain the help of the Michigan Department of Agriculture (MDA), Mr. Henning began calling an MDA complaint hot line, leaving numerous voicemail messages.  The MDA’s failure to respond resulted in increasing frustration on the part of Mr. Henning, leading him to use increasingly strong language. 

The ACLU has filed a friend-of-the-court brief asking Lansing District Court Judge Frank J. Deluca to dismiss the criminal charges because Mr. Henning’s speech is constitutionally protected.  The motion to dismiss will be heard tomorrow, June 19, at 8:30 a.m. in Judge Deluca’s courtroom at Lansing City Hall, 124 W. Michigan Avenue.

Strip Search Unconsitutional

DETROIT – In a victory for student rights, a federal judge has ruled that the strip search of more than twenty students that took place at Whitmore Lake High School was unconstitutional and has rejected the school district’s argument that a lawsuit against teachers and administrators should be dismissed before trial.

"The opinion reaffirms the well-established principle that teachers cannot search a student without reason to believe that the individual possesses contraband," said Kary Moss, Executive Director of the American Civil Liberties Union of Michigan. "There was simply no excuse for teachers to conduct a mass strip search of students in a fishing expedition to recover lost money."


The case stems from a May, 2000 incident where a high school student reported that money had been taken from her gym bag during gym class. In an unsuccessful attempt to find the money, teachers, at the direction of the acting principal, strip-searched all members of the gym class. The boys were forced to pull down their pants and underwear while they were examined by a teacher. The girls were forced to stand in a circle and pull up their shirts and pull down their shorts.

The ACLU filed a lawsuit on behalf of eight students, alleging that the strip searches violated the students’ right to be free of unreasonable searches. The school district filed a motion to dismiss the case arguing that the teachers and administrators should be "immune" from responsibility of violating students’ rights because it was not "clearly established" at the time of the strip searches that the practice was unconstitutional.

In rejecting the district’s argument, the U.S. District Court Judge George E. Woods relied on Supreme Court cases and cases from throughout the country as well as the district’s own policy prohibiting such searches. Judge Woods wrote: "This right was clearly established at the time of the incident in question, and the Court finds that case law and common sense lead to only one conclusion: A strip search of students for missing money in the absence of individualized suspicion is not reasonable and precludes Defendant teachers’ request for qualified immunity."

Judge Woods also held that a Northfield Township police officer could be liable for the constitutional rights of the girls who were strip searched. The officer told school officials that if they searched the boys, they should search the girls as well "so there would be no discrimination."

The next step in the case is a jury trial. A precise trial date has not been set.

The case is being litigated by ACLU Cooperating Attorneys Matthew Krichbaum and Richard Soble of Soble & Rowe in Ann Arbor.

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Judge Rules For Whitmore Lake High School Students

June 19, 2003

Strip Search Unconsitutional

DETROIT – In a victory for student rights, a federal judge has ruled that the strip search of more than twenty students that took place at Whitmore Lake High School was unconstitutional and has rejected the school district’s argument that a lawsuit against teachers and administrators should be dismissed before trial.

"The opinion reaffirms the well-established principle that teachers cannot search a student without reason to believe that the individual possesses contraband," said Kary Moss, Executive Director of the American Civil Liberties Union of Michigan. "There was simply no excuse for teachers to conduct a mass strip search of students in a fishing expedition to recover lost money."


The case stems from a May, 2000 incident where a high school student reported that money had been taken from her gym bag during gym class. In an unsuccessful attempt to find the money, teachers, at the direction of the acting principal, strip-searched all members of the gym class. The boys were forced to pull down their pants and underwear while they were examined by a teacher. The girls were forced to stand in a circle and pull up their shirts and pull down their shorts.

The ACLU filed a lawsuit on behalf of eight students, alleging that the strip searches violated the students’ right to be free of unreasonable searches. The school district filed a motion to dismiss the case arguing that the teachers and administrators should be "immune" from responsibility of violating students’ rights because it was not "clearly established" at the time of the strip searches that the practice was unconstitutional.

In rejecting the district’s argument, the U.S. District Court Judge George E. Woods relied on Supreme Court cases and cases from throughout the country as well as the district’s own policy prohibiting such searches. Judge Woods wrote: "This right was clearly established at the time of the incident in question, and the Court finds that case law and common sense lead to only one conclusion: A strip search of students for missing money in the absence of individualized suspicion is not reasonable and precludes Defendant teachers’ request for qualified immunity."

Judge Woods also held that a Northfield Township police officer could be liable for the constitutional rights of the girls who were strip searched. The officer told school officials that if they searched the boys, they should search the girls as well "so there would be no discrimination."

The next step in the case is a jury trial. A precise trial date has not been set.

The case is being litigated by ACLU Cooperating Attorneys Matthew Krichbaum and Richard Soble of Soble & Rowe in Ann Arbor.

NEW YORK — The American Civil Liberties Union today applauded the Supreme Court's decisions today upholding the principle that public universities may continue to use affirmative action to ensure a diverse student body. In two landmark rulings, the Supreme Court upheld the race-conscious admissions policies of the University of Michigan's law school while rejecting as unconstitutional the undergraduate school's "point system."

"Today the Court has reiterated America's commitment to affirmative action, and the nation is better off for it," said Vincent Warren, an ACLU staff attorney who worked on both cases. "Although the Court rejected the manner in which race was considered by the undergraduate school, it made clear that race could be considered as one factor in the admissions process. This is a tremendous victory."

The ACLU and its Michigan affiliate were co-counsel on behalf of a group of minority students in the challenge to the University's undergraduate admissions affirmative action policy, Gratz v. Bollinger, 02-51, and joined a friend-of-the-court brief in support of the University's law school admissions policy in Grutter v. Bollinger, 02-241.

"Today's ruling recognizes that there is still work that needs to be done to fulfill the promise of equal educational opportunity that the Court set in motion nearly 50 years ago in another landmark case, Brown v. Board of Education," said ACLU Legal Director Steven R. Shapiro. "With today's ruling, the Court has kept the door open for thousands of academically qualified students of color to continue to pursue the American dream through our nation's colleges and universities."

Hundreds of groups and individuals filed briefs with the Supreme Court in support of the University of Michigan's admissions policies and race-conscious affirmative action programs. Notables include former military leaders General Norman Schwarzkopf and General John M. Shalikashvili; business executives from General Motors, 3M, Pfizer and Northrop Grumman; and the West Point military academy, whose affirmative action policies produced one of its most famous graduates, Secretary of State Colin Powell.

The ACLU's amicus briefs and other material can be seen at:
Gratz v. Bollinger (Decision 02-516) and Grutter v. Bollinger (Decision 02-241)

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ACLU Lauds Landmark Supreme Court Decisions Upholding Affirmative Action

NEW YORK — The American Civil Liberties Union today applauded the Supreme Court's decisions today upholding the principle that public universities may continue to use affirmative action to ensure a diverse student body. In two landmark rulings, the Supreme Court upheld the race-conscious admissions policies of the University of Michigan's law school while rejecting as unconstitutional the undergraduate school's "point system."

"Today the Court has reiterated America's commitment to affirmative action, and the nation is better off for it," said Vincent Warren, an ACLU staff attorney who worked on both cases. "Although the Court rejected the manner in which race was considered by the undergraduate school, it made clear that race could be considered as one factor in the admissions process. This is a tremendous victory."

The ACLU and its Michigan affiliate were co-counsel on behalf of a group of minority students in the challenge to the University's undergraduate admissions affirmative action policy, Gratz v. Bollinger, 02-51, and joined a friend-of-the-court brief in support of the University's law school admissions policy in Grutter v. Bollinger, 02-241.

"Today's ruling recognizes that there is still work that needs to be done to fulfill the promise of equal educational opportunity that the Court set in motion nearly 50 years ago in another landmark case, Brown v. Board of Education," said ACLU Legal Director Steven R. Shapiro. "With today's ruling, the Court has kept the door open for thousands of academically qualified students of color to continue to pursue the American dream through our nation's colleges and universities."

Hundreds of groups and individuals filed briefs with the Supreme Court in support of the University of Michigan's admissions policies and race-conscious affirmative action programs. Notables include former military leaders General Norman Schwarzkopf and General John M. Shalikashvili; business executives from General Motors, 3M, Pfizer and Northrop Grumman; and the West Point military academy, whose affirmative action policies produced one of its most famous graduates, Secretary of State Colin Powell.

The ACLU's amicus briefs and other material can be seen at:
Gratz v. Bollinger (Decision 02-516) and Grutter v. Bollinger (Decision 02-241)

WASHINGTON - In an historic decision with wide-ranging implications, the U.S. Supreme Court today struck down a Texas law that makes some kinds of sexual intimacy a crime, but only for gay people.

The decision overrules the court's 1986 decision in Bowers v. Hardwick, which was widely condemned for treating gay people as second-class citizens. It was hailed by the American Civil Liberties Union as a major milestone in the fight for constitutional rights.

"This decision will affect virtually every important legal and social question involving lesbians and gay men," said James Esseks, Litigation Director of the ACLU's Lesbian and Gay Rights Project. "For years, whenever we have sought equality, we've been answered both in courts of law and in the court of public opinion with the claim that we are not entitled to equality because our love makes us criminals. That argument - which has been a serious block to progress -- is now a dead letter." Esseks added, "from now on, cases and political debates about employment, custody and the treatment of same-sex couples should be about merit, not about who you love."

In sweeping language, the Court said the Constitution protects the right of gay people to form intimate relationships and "retain their dignity as free persons." Gay people, the Court said, have the same right to "define one's concept of existence, of meaning, or the universe, and of the mystery of human life," that heterosexuals do. The Bowers decision, the Court said, "demeans the lives of homosexual persons."

Since 1986, lower courts have relied on Bowers v. Hardwick to take away or limit custody to gay parents and to uphold firing or refusing to hire gay people. Bowers has frequently been invoked in legislative debates as a reason not to protect gay people from discrimination.

"With this decision, the Court has finally recognized that we are part of the American family. Now it's time for the rest of society to do the same," Esseks said. "Our civil rights laws need to make the workplace fair, our schools safe, and to give basic respect to the relationships at the core of our lives--with our partners and our children. By acknowledging that we are not criminals, this decision will make it far easier for us to get society to change."

In an 18-page opinion, the Court held that the Texas law violates the fundamental right to privacy protected by the U.S. Constitution. The decision means that similar laws against sexual intimacy in the 12 other states that have them are also invalid. These include laws in Kansas, Missouri and Oklahoma that apply only to gay people as well as laws in Alabama, Florida, Idaho, Louisiana, Mississippi, North Carolina, South Carolina, Virginia and Utah, which make "sodomy" a crime for all people.

"Justice Brandeis said over 75 years ago that the 'right to be let alone' is the right most valued by civilized people, and most Americans agree," said Anthony D. Romero, Executive Director of the ACLU. "This decision is all the more important because it comes at a time when the right to privacy is under one of the greatest assaults it has ever faced."

“Michigan’s sodomy law can no longer be used to discriminate against gay people,” said Kary Moss, Executive Director of the ACLU of Michigan.  “Even though technically the law has always applied to all couples, straight and gay, the courts and agencies have treated it as if it were a justification for discrimination against gay people.  They can’t do that anymore.”

The Court overruled its 1986 decision in Bowers v. Hardwick in unusually strong terms. "Bowers was not correct when it was decided, and it is not correct today," the Court said.   Bowers was an ACLU challenge to Georgia's "sodomy" law, which applied to all couples. In Bowers, the Court held that the right to privacy did not invalidate Georgia's sodomy law.

"Although Georgia's sodomy law applied to straight and gay couples," said Steven R. Shapiro, Legal Director of the ACLU, "the Court treated it as a case about the constitutionality of laws making same-sex intimacy a crime." The lower courts, Shapiro explained, "understood Bowers to permit discrimination against gay people in criminal laws and in many other areas as well. This decision establishes that the state has no place in anybody's bedroom, straight or gay."

It is not immediately clear what effect the Court's decision will have on Matthew Limon, whose case is still pending before the Supreme Court. Limon, who is represented by the ACLU, was convicted of having consensual oral sex with another male when they were both teenagers. Had the other teenager been a girl, Limon would be serving no more than a 15-month sentence. Because the other teenager was boy, Kansas law required that Limon be sentenced to 17 years in Kansas state prison. Limon's case is based not on the right to privacy, but on the constitutional guarantee of equal protection of the law. However, the Kansas Courts relied on Bowers in rejecting Limon's appeal. The Supreme Court could send his case back to the Kansas courts, which should free him.

The ACLU has developed a public education campaign designed to help LGBT people take advantage of this historic decision to push for equality. To support the campaign, the ACLU has launched a new website, www.aclu.org/getequal, that provides tools for fighting anti-gay discrimination, making schools safer for LGBT youth and getting equality for LGBT relationships.

The petitioners in Lawrence, two Texas men who were arrested after police broke into their home to investigate an anonymous tip that turned out to be false, were represented by Lambda Legal.

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U.S. Supreme Court Strikes Down Sodomy Law

WASHINGTON - In an historic decision with wide-ranging implications, the U.S. Supreme Court today struck down a Texas law that makes some kinds of sexual intimacy a crime, but only for gay people.

The decision overrules the court's 1986 decision in Bowers v. Hardwick, which was widely condemned for treating gay people as second-class citizens. It was hailed by the American Civil Liberties Union as a major milestone in the fight for constitutional rights.

"This decision will affect virtually every important legal and social question involving lesbians and gay men," said James Esseks, Litigation Director of the ACLU's Lesbian and Gay Rights Project. "For years, whenever we have sought equality, we've been answered both in courts of law and in the court of public opinion with the claim that we are not entitled to equality because our love makes us criminals. That argument - which has been a serious block to progress -- is now a dead letter." Esseks added, "from now on, cases and political debates about employment, custody and the treatment of same-sex couples should be about merit, not about who you love."

In sweeping language, the Court said the Constitution protects the right of gay people to form intimate relationships and "retain their dignity as free persons." Gay people, the Court said, have the same right to "define one's concept of existence, of meaning, or the universe, and of the mystery of human life," that heterosexuals do. The Bowers decision, the Court said, "demeans the lives of homosexual persons."

Since 1986, lower courts have relied on Bowers v. Hardwick to take away or limit custody to gay parents and to uphold firing or refusing to hire gay people. Bowers has frequently been invoked in legislative debates as a reason not to protect gay people from discrimination.

"With this decision, the Court has finally recognized that we are part of the American family. Now it's time for the rest of society to do the same," Esseks said. "Our civil rights laws need to make the workplace fair, our schools safe, and to give basic respect to the relationships at the core of our lives--with our partners and our children. By acknowledging that we are not criminals, this decision will make it far easier for us to get society to change."

In an 18-page opinion, the Court held that the Texas law violates the fundamental right to privacy protected by the U.S. Constitution. The decision means that similar laws against sexual intimacy in the 12 other states that have them are also invalid. These include laws in Kansas, Missouri and Oklahoma that apply only to gay people as well as laws in Alabama, Florida, Idaho, Louisiana, Mississippi, North Carolina, South Carolina, Virginia and Utah, which make "sodomy" a crime for all people.

"Justice Brandeis said over 75 years ago that the 'right to be let alone' is the right most valued by civilized people, and most Americans agree," said Anthony D. Romero, Executive Director of the ACLU. "This decision is all the more important because it comes at a time when the right to privacy is under one of the greatest assaults it has ever faced."

“Michigan’s sodomy law can no longer be used to discriminate against gay people,” said Kary Moss, Executive Director of the ACLU of Michigan.  “Even though technically the law has always applied to all couples, straight and gay, the courts and agencies have treated it as if it were a justification for discrimination against gay people.  They can’t do that anymore.”

The Court overruled its 1986 decision in Bowers v. Hardwick in unusually strong terms. "Bowers was not correct when it was decided, and it is not correct today," the Court said.   Bowers was an ACLU challenge to Georgia's "sodomy" law, which applied to all couples. In Bowers, the Court held that the right to privacy did not invalidate Georgia's sodomy law.

"Although Georgia's sodomy law applied to straight and gay couples," said Steven R. Shapiro, Legal Director of the ACLU, "the Court treated it as a case about the constitutionality of laws making same-sex intimacy a crime." The lower courts, Shapiro explained, "understood Bowers to permit discrimination against gay people in criminal laws and in many other areas as well. This decision establishes that the state has no place in anybody's bedroom, straight or gay."

It is not immediately clear what effect the Court's decision will have on Matthew Limon, whose case is still pending before the Supreme Court. Limon, who is represented by the ACLU, was convicted of having consensual oral sex with another male when they were both teenagers. Had the other teenager been a girl, Limon would be serving no more than a 15-month sentence. Because the other teenager was boy, Kansas law required that Limon be sentenced to 17 years in Kansas state prison. Limon's case is based not on the right to privacy, but on the constitutional guarantee of equal protection of the law. However, the Kansas Courts relied on Bowers in rejecting Limon's appeal. The Supreme Court could send his case back to the Kansas courts, which should free him.

The ACLU has developed a public education campaign designed to help LGBT people take advantage of this historic decision to push for equality. To support the campaign, the ACLU has launched a new website, www.aclu.org/getequal, that provides tools for fighting anti-gay discrimination, making schools safer for LGBT youth and getting equality for LGBT relationships.

The petitioners in Lawrence, two Texas men who were arrested after police broke into their home to investigate an anonymous tip that turned out to be false, were represented by Lambda Legal.

Ann Arbor -- Last night the Ann Arbor City Council passed, by a 9-2 vote, a resolution to safeguard the civil liberties of Ann Arbor residents in the wake of post-9/11 anti-terrorism legislation and executive orders.  Passage of the resolution makes Ann Arbor the 137th city in the U.S. to pass such a measure. The states of Alaska, Vermont and Hawaii have also enacted statewide resolutions.  The City of Detroit passed a similar measure in January of 2003.

“More and more people around the country that are objecting to the way that this Administration is conducting its “war on terrorism,” said ACLU of Michigan Executive Director Kary Moss.   “The number of local resolutions and ordinances that are passing in city councils show that there is a growing suspicion that the powers granted to federal authorities under the USA PATRIOT Act are not necessary for combating terrorism.”

The Ann Arbor resolution, which was sponsored by City Council members Kim Groome, Jean Carlberg, and Heidi Herrell, requires the City Administrator to request from the federal government, on a semi-annual basis, information regarding: the number of "sneak and peek" search warrants executed within the city by federal authorities pursuant to Section 213 of the USA PATRIOT Act; the extent to which federal authorities are monitoring political meetings, religious gatherings or other activities protected by the First Amendment within the city; and the number of times library records and records of the books purchased by bookstore patrons have been obtained in the city under Section 215 of the USA PATRIOT Act.  The resolution also requires the Ann Arbor Police Department to decline invitations from federal authorities to participate in post-9/11 activities that are believed to be unconstitutional.

Public comment on the resolution lasted for 30 minutes of the lengthy three hour meeting. The Ann Arbor City Council chambers were filled to capacity.

Mary Bejian, President of the ACLU Chapter in Washtenaw County and the local leader in the Safe and Free Campaign, said: "This resolution is important for two reasons. One, to ensure community trust in local law enforcement, and two, to send a message to Washington that yet another city in the United States does not support the current dismantling of the Constitution in the name of national security."  

The Office of the Inspector General of the Department of Justice released a report in May highly critical of the Department's own treatment of the 762 immigrants detained in the weeks following September 11, 2001. None of the 762 individuals detained were charged with terrorist activities, yet remained in custody for months at a time, many without access to legal counsel. 

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Ann Arbor City Council Passes Civil Liberties Resolution

July 08, 2003

Ann Arbor -- Last night the Ann Arbor City Council passed, by a 9-2 vote, a resolution to safeguard the civil liberties of Ann Arbor residents in the wake of post-9/11 anti-terrorism legislation and executive orders.  Passage of the resolution makes Ann Arbor the 137th city in the U.S. to pass such a measure. The states of Alaska, Vermont and Hawaii have also enacted statewide resolutions.  The City of Detroit passed a similar measure in January of 2003.

“More and more people around the country that are objecting to the way that this Administration is conducting its “war on terrorism,” said ACLU of Michigan Executive Director Kary Moss.   “The number of local resolutions and ordinances that are passing in city councils show that there is a growing suspicion that the powers granted to federal authorities under the USA PATRIOT Act are not necessary for combating terrorism.”

The Ann Arbor resolution, which was sponsored by City Council members Kim Groome, Jean Carlberg, and Heidi Herrell, requires the City Administrator to request from the federal government, on a semi-annual basis, information regarding: the number of "sneak and peek" search warrants executed within the city by federal authorities pursuant to Section 213 of the USA PATRIOT Act; the extent to which federal authorities are monitoring political meetings, religious gatherings or other activities protected by the First Amendment within the city; and the number of times library records and records of the books purchased by bookstore patrons have been obtained in the city under Section 215 of the USA PATRIOT Act.  The resolution also requires the Ann Arbor Police Department to decline invitations from federal authorities to participate in post-9/11 activities that are believed to be unconstitutional.

Public comment on the resolution lasted for 30 minutes of the lengthy three hour meeting. The Ann Arbor City Council chambers were filled to capacity.

Mary Bejian, President of the ACLU Chapter in Washtenaw County and the local leader in the Safe and Free Campaign, said: "This resolution is important for two reasons. One, to ensure community trust in local law enforcement, and two, to send a message to Washington that yet another city in the United States does not support the current dismantling of the Constitution in the name of national security."  

The Office of the Inspector General of the Department of Justice released a report in May highly critical of the Department's own treatment of the 762 immigrants detained in the weeks following September 11, 2001. None of the 762 individuals detained were charged with terrorist activities, yet remained in custody for months at a time, many without access to legal counsel. 

DETROIT – In a blatant attack on personal privacy rights, a Lapeer County judge ordered a woman to submit to a medically "verifiable" method of birth control in an abuse and neglect proceeding regarding her other children, according to the American Civil Liberties Union of Michigan who filed a friend-of-the-court brief on behalf of the woman. The Michigan Court of Appeals will decide the case without oral argument on Wednesday, July 9.

“This kind of unwarranted government intrusion is precisely what was found to be unconstitutional by the U.S. Supreme Court last week,” said Kary Moss, ACLU of Michigan Executive Director.  “Imagine if a woman was pregnant, and the family court had ordered that she have an abortion against her will.  Such a requirement would clearly violate her constitutional rights, just as the order requiring Ms. Gamez to use contraception violates her right to reproductive choice. Women are not chattel.” 

In January 2003, the Lapeer County Family Court held a formal hearing on allegations against Renee Gamez of possible physical neglect of her two minor children due to drug use.  During this hearing, Judge Michael P. Higgins, stated that he wanted to prevent Ms. Gamez from having any further children.  He indicated that he wanted to place Ms. Gamez on a form of birth control that could be verified by a doctor, such as an intrauterine device (IUD) or Depo Provera.  Ms. Gamez objected because of personal concerns and prior medical complications. 

Both Depo Provera injections and intrauterine device’s (IUD), are intrusive measures with potentially serious side effects, including depression, repeated and very painful headaches, decreased bone density, which leads to an increased risk of osteoporosis, and irregular menstrual bleeding.  For certain women, Depo Provera should never be prescribed.  Studies have also associated Depo Provera with an increased risk of breast cancer in some women.  IUDs may also cause hemorrhaging, anemia, and increased menstrual bleeding.

Judge Higgins also justified a prohibition on Ms. Gamez having an additional child because there could be a risk that the child might have "special needs."  “Does this mean that the state may limit the procreation of parents whose families have a history of genetic disorders and who therefore risk having a ‘special needs’ child?” asked Moss.  “The state interest in protecting children and promoting healthy families is best served by providing them with access to health care, education, and social services, not by imposing unconstitutional conditions on mothers.” 

The case will be decided by Judge William B. Murphy, Judge Jessica R. Cooper and former Justice Charles L. Levin.

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Judge Imposes Birth Control To Prevent Lapeer Woman from Having More Children

July 08, 2003

DETROIT – In a blatant attack on personal privacy rights, a Lapeer County judge ordered a woman to submit to a medically "verifiable" method of birth control in an abuse and neglect proceeding regarding her other children, according to the American Civil Liberties Union of Michigan who filed a friend-of-the-court brief on behalf of the woman. The Michigan Court of Appeals will decide the case without oral argument on Wednesday, July 9.

“This kind of unwarranted government intrusion is precisely what was found to be unconstitutional by the U.S. Supreme Court last week,” said Kary Moss, ACLU of Michigan Executive Director.  “Imagine if a woman was pregnant, and the family court had ordered that she have an abortion against her will.  Such a requirement would clearly violate her constitutional rights, just as the order requiring Ms. Gamez to use contraception violates her right to reproductive choice. Women are not chattel.” 

In January 2003, the Lapeer County Family Court held a formal hearing on allegations against Renee Gamez of possible physical neglect of her two minor children due to drug use.  During this hearing, Judge Michael P. Higgins, stated that he wanted to prevent Ms. Gamez from having any further children.  He indicated that he wanted to place Ms. Gamez on a form of birth control that could be verified by a doctor, such as an intrauterine device (IUD) or Depo Provera.  Ms. Gamez objected because of personal concerns and prior medical complications. 

Both Depo Provera injections and intrauterine device’s (IUD), are intrusive measures with potentially serious side effects, including depression, repeated and very painful headaches, decreased bone density, which leads to an increased risk of osteoporosis, and irregular menstrual bleeding.  For certain women, Depo Provera should never be prescribed.  Studies have also associated Depo Provera with an increased risk of breast cancer in some women.  IUDs may also cause hemorrhaging, anemia, and increased menstrual bleeding.

Judge Higgins also justified a prohibition on Ms. Gamez having an additional child because there could be a risk that the child might have "special needs."  “Does this mean that the state may limit the procreation of parents whose families have a history of genetic disorders and who therefore risk having a ‘special needs’ child?” asked Moss.  “The state interest in protecting children and promoting healthy families is best served by providing them with access to health care, education, and social services, not by imposing unconstitutional conditions on mothers.” 

The case will be decided by Judge William B. Murphy, Judge Jessica R. Cooper and former Justice Charles L. Levin.

DETROIT – The American Civil Liberties Union today filed the first legal challenge to the USA PATRIOT Act, taking aim at a section of the controversial law that vastly expands the power of FBI agents to secretly obtain records and personal belongings of innocent people in the United States, including citizens and permanent residents.

“Ordinary Americans should not have to worry that the FBI is rifling through their medical records, seizing their personal papers, or forcing charities and advocacy groups to divulge membership lists,” said Ann Beeson, Associate Legal Director of the ACLU and the lead attorney in the lawsuit.

“We know from our clients that the FBI is once again targeting ethnic, religious, and political minority communities disproportionately,” she added. “Investing the FBI with unchecked authority to monitor the activities of innocent people is an invitation to abuse, a waste of resources, and is certainly not making any of us any safer.”
 
As the ACLU described in a report released today, Section 215 of the PATRIOT Act violates constitutional protections against unreasonable searches and seizures as well as the rights to freedom of speech and association. The report, Unpatriotic Acts: The FBI’s Power to Rifle Through Your Records and Personal Belongings Without Telling You, describes how the law:

  • Violates the Fourth Amendment by allowing the FBI to search and seize records or personal belongings without a warrant, without showing probable cause -- and without ever notifying even innocent people of the searches;
  • Violates the First Amendment because it allows the FBI to easily obtain information about a person’s reading habits, religious affiliations, Internet surfing and other expressive activities that would be “chilled” by the threat of investigation;
  • Violates the First Amendment by imposing a “gag order” that prohibits those served with Section 215 orders from telling anyone -- ever -- that the FBI demanded information, even if the information is not tied to a particular suspect and poses no risk to national security.

The ACLU filed the lawsuit in federal court here today on behalf of six advocacy and community groups from across the country whose members and clients believe they are currently the targets of investigations because of their ethnicity, religion and political associations. The lawsuit names Attorney General John Ashcroft and FBI Director Robert Mueller as the defendants.
 
The groups participating in the lawsuit are: Muslim Community Association of Ann Arbor (MCA), which operates a mosque and school in Ann Arbor, MI; American-Arab Anti-Discrimination Committee (ADC), a national civil rights organization based in Washington, DC; Arab Community Center for Economic and Social Services (ACCESS), a human services organization based in Dearborn, MI that operates a medical clinic as well as a center for refugees and torture victims; Bridge Refugee and Sponsorship Services (“Bridge”), based in Knoxville, TN; Council on American-Islamic Relations, a grassroots membership organization based in Washington, DC; and The Islamic Center of Portland, Masjed As-Saber, which operates a mosque and school, based in Portland, OR. 
 
Mary Lieberman, executive director of Bridge, was approached twice by FBI agents seeking information about Iraqi refugees. The second time, the FBI served Bridge with a subpoena for all records relating to its Iraqi clients. 
 
“Many of our Iraqi clients were granted asylum here because they helped the American military during Desert Storm and were then persecuted by Saddam Hussein,” Lieberman said. “It is unacceptable that the United States government is now treating them like criminals and terrorists.”
 
Because the FBI subpoena served on Bridge was not issued under the PATRIOT Act, Bridge was able to fight it in court. However, Lieberman said she is concerned that the FBI could return with a PATRIOT Act order that she and her staff could not challenge or even discuss publicly.
 
Nazih Hassan, president of MCA of Ann Arbor, said that the leadership of his local mosque has been vocal in its criticism of the wide net that has been cast over the Muslim community. “We are very concerned that the FBI is investigating us because of our political activities even though we have done nothing wrong,” he said. 
 
In addition to litigation, the ACLU is supporting coalitions around the country that are working to adopt community resolutions opposing the PATRIOT Act. To date, 143 communities in 27 states have passed such resolutions and dozens more are preparing to do so.
 
Lawmakers of all political stripes have finally begun to reconsider controversial portions of the PATRIOT Act. Just last week, an overwhelming majority of the U.S. House of Representatives voted to bar the Department of Justice from executing “sneak and peek” searches in criminal investigations. That particular PATRIOT Act provision allowed the government to secretly search people’s homes or offices without telling them until weeks later.

Significantly, the launch of the ACLU’s suit coincides with a Justice Department public forum set for tonight at Wayne State University in Ann Arbor. The event appears to be a strategy by the Justice Department to ease rising public concern about its use of the PATRIOT Act and other post-9/11 anti-civil liberties measures.

As at similar events around the country, protesters are expected at the forum. The ACLU will also hold a media availability outside the forum venue featuring one of the litigators in the PATRIOT lawsuit and members of the state affiliate. Michigan Rep. John Conyers (D) - one of the main opponents of the Justice Department’s expanded surveillance and enforcement powers -- will also be present.
 
In addition to Beeson, attorneys in the case are Jameel Jaffer of the national ACLU and Michael Steinberg, Noel Saleh and Kary Moss of the ACLU of Michigan.

For more on this lawsuit, go to http://www.aclu.org/safeandfree

To read the complaint, go to http://www.aclu.org/SafeandFree/SafeandFree.cfm?ID=13248&c=206

 

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ACLU Files First Challenge to USA PATRIOT Act

July 30, 2003

DETROIT – The American Civil Liberties Union today filed the first legal challenge to the USA PATRIOT Act, taking aim at a section of the controversial law that vastly expands the power of FBI agents to secretly obtain records and personal belongings of innocent people in the United States, including citizens and permanent residents.

“Ordinary Americans should not have to worry that the FBI is rifling through their medical records, seizing their personal papers, or forcing charities and advocacy groups to divulge membership lists,” said Ann Beeson, Associate Legal Director of the ACLU and the lead attorney in the lawsuit.

“We know from our clients that the FBI is once again targeting ethnic, religious, and political minority communities disproportionately,” she added. “Investing the FBI with unchecked authority to monitor the activities of innocent people is an invitation to abuse, a waste of resources, and is certainly not making any of us any safer.”
 
As the ACLU described in a report released today, Section 215 of the PATRIOT Act violates constitutional protections against unreasonable searches and seizures as well as the rights to freedom of speech and association. The report, Unpatriotic Acts: The FBI’s Power to Rifle Through Your Records and Personal Belongings Without Telling You, describes how the law:

  • Violates the Fourth Amendment by allowing the FBI to search and seize records or personal belongings without a warrant, without showing probable cause -- and without ever notifying even innocent people of the searches;
  • Violates the First Amendment because it allows the FBI to easily obtain information about a person’s reading habits, religious affiliations, Internet surfing and other expressive activities that would be “chilled” by the threat of investigation;
  • Violates the First Amendment by imposing a “gag order” that prohibits those served with Section 215 orders from telling anyone -- ever -- that the FBI demanded information, even if the information is not tied to a particular suspect and poses no risk to national security.

The ACLU filed the lawsuit in federal court here today on behalf of six advocacy and community groups from across the country whose members and clients believe they are currently the targets of investigations because of their ethnicity, religion and political associations. The lawsuit names Attorney General John Ashcroft and FBI Director Robert Mueller as the defendants.
 
The groups participating in the lawsuit are: Muslim Community Association of Ann Arbor (MCA), which operates a mosque and school in Ann Arbor, MI; American-Arab Anti-Discrimination Committee (ADC), a national civil rights organization based in Washington, DC; Arab Community Center for Economic and Social Services (ACCESS), a human services organization based in Dearborn, MI that operates a medical clinic as well as a center for refugees and torture victims; Bridge Refugee and Sponsorship Services (“Bridge”), based in Knoxville, TN; Council on American-Islamic Relations, a grassroots membership organization based in Washington, DC; and The Islamic Center of Portland, Masjed As-Saber, which operates a mosque and school, based in Portland, OR. 
 
Mary Lieberman, executive director of Bridge, was approached twice by FBI agents seeking information about Iraqi refugees. The second time, the FBI served Bridge with a subpoena for all records relating to its Iraqi clients. 
 
“Many of our Iraqi clients were granted asylum here because they helped the American military during Desert Storm and were then persecuted by Saddam Hussein,” Lieberman said. “It is unacceptable that the United States government is now treating them like criminals and terrorists.”
 
Because the FBI subpoena served on Bridge was not issued under the PATRIOT Act, Bridge was able to fight it in court. However, Lieberman said she is concerned that the FBI could return with a PATRIOT Act order that she and her staff could not challenge or even discuss publicly.
 
Nazih Hassan, president of MCA of Ann Arbor, said that the leadership of his local mosque has been vocal in its criticism of the wide net that has been cast over the Muslim community. “We are very concerned that the FBI is investigating us because of our political activities even though we have done nothing wrong,” he said. 
 
In addition to litigation, the ACLU is supporting coalitions around the country that are working to adopt community resolutions opposing the PATRIOT Act. To date, 143 communities in 27 states have passed such resolutions and dozens more are preparing to do so.
 
Lawmakers of all political stripes have finally begun to reconsider controversial portions of the PATRIOT Act. Just last week, an overwhelming majority of the U.S. House of Representatives voted to bar the Department of Justice from executing “sneak and peek” searches in criminal investigations. That particular PATRIOT Act provision allowed the government to secretly search people’s homes or offices without telling them until weeks later.

Significantly, the launch of the ACLU’s suit coincides with a Justice Department public forum set for tonight at Wayne State University in Ann Arbor. The event appears to be a strategy by the Justice Department to ease rising public concern about its use of the PATRIOT Act and other post-9/11 anti-civil liberties measures.

As at similar events around the country, protesters are expected at the forum. The ACLU will also hold a media availability outside the forum venue featuring one of the litigators in the PATRIOT lawsuit and members of the state affiliate. Michigan Rep. John Conyers (D) - one of the main opponents of the Justice Department’s expanded surveillance and enforcement powers -- will also be present.
 
In addition to Beeson, attorneys in the case are Jameel Jaffer of the national ACLU and Michael Steinberg, Noel Saleh and Kary Moss of the ACLU of Michigan.

For more on this lawsuit, go to http://www.aclu.org/safeandfree

To read the complaint, go to http://www.aclu.org/SafeandFree/SafeandFree.cfm?ID=13248&c=206

 

August 8, 2003

A drive to amend the Michigan Constitution to define marriage as strictly between a man and a woman, invalidate all local domestic partnership laws and nullify Michigan civil rights protections based on marital status is beginning. State Senator Alan Cropsey, R-DeWitt has announced that he will introduce legislation for a constitutional amendment when the Legislature returns to work in September.

Spurred by Canada’s recent decision to legalize gay marriages, the American Family Association led by Gary Glenn, a right-wing anti-gay organization is leading this effort.

Now is the time to oppose such an amendment to Michigan’s Constitution.  Please feel free to use any of the following talking points when you call, write, fax, or e-mail your state senator and representative.

-- Michigan already has a law that limits marriage to opposite-sex couples. Some cities, such as Ann Arbor, Detroit, and Kalamazoo have chosen to recognize same-sex couples for certain city employment benefits and protections. Recognizing same-sex couples for such benefits treats people equally and does not undermine the sanctity of a heterosexual marriage. A constitutional amendment would wipe out these benefits and protections.

-- Such a constitutional amendment would wipe out state and local protections against discrimination based on marital status. Landlords could legally refuse to rent to any unmarried couple, both opposite sex and same-sex couples.  Employers could be prevented from providing domestic partner benefits.

-- It would forbid local governments from serving their traditional role as testing ground for stronger civil rights laws.

-- The amendment would reverse the constitutional tradition of protecting, not harming individual freedoms.  The proposed amendment, by contrast, would deny all protection for the most personal decisions made by thousands of families in Michigan.

-- This amendment would harm same-sex households in every county in Michigan. 

Amending the Michigan Constitution is an extreme act.  ACT NOW!

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Stop the Drive to Write Intolerance into Michigan's Constitution

August 08, 2003

August 8, 2003

A drive to amend the Michigan Constitution to define marriage as strictly between a man and a woman, invalidate all local domestic partnership laws and nullify Michigan civil rights protections based on marital status is beginning. State Senator Alan Cropsey, R-DeWitt has announced that he will introduce legislation for a constitutional amendment when the Legislature returns to work in September.

Spurred by Canada’s recent decision to legalize gay marriages, the American Family Association led by Gary Glenn, a right-wing anti-gay organization is leading this effort.

Now is the time to oppose such an amendment to Michigan’s Constitution.  Please feel free to use any of the following talking points when you call, write, fax, or e-mail your state senator and representative.

-- Michigan already has a law that limits marriage to opposite-sex couples. Some cities, such as Ann Arbor, Detroit, and Kalamazoo have chosen to recognize same-sex couples for certain city employment benefits and protections. Recognizing same-sex couples for such benefits treats people equally and does not undermine the sanctity of a heterosexual marriage. A constitutional amendment would wipe out these benefits and protections.

-- Such a constitutional amendment would wipe out state and local protections against discrimination based on marital status. Landlords could legally refuse to rent to any unmarried couple, both opposite sex and same-sex couples.  Employers could be prevented from providing domestic partner benefits.

-- It would forbid local governments from serving their traditional role as testing ground for stronger civil rights laws.

-- The amendment would reverse the constitutional tradition of protecting, not harming individual freedoms.  The proposed amendment, by contrast, would deny all protection for the most personal decisions made by thousands of families in Michigan.

-- This amendment would harm same-sex households in every county in Michigan. 

Amending the Michigan Constitution is an extreme act.  ACT NOW!

Click on this new ACLU website created to help you take advantage of one a once-in-a-lifetime chance to make significant changes in the way America treats LGBT people.

This website provides tools to: 1) get better treatment for same-sex relationships; 2) get safe schools; 3) get civil rights/discrimination policies that include LGBT people. The tools include simple but important steps that will take only a few minutes-like sending an electronic message to your representatives in Congress supporting a law to protect LGBT people from discrimination. The tools also include more ambitious things, like a step-by-step guide showing how to get a an anti-harassment policy from your school district or a domestic partnership policy in your town or your workplace. There are also tools to help you protect your own relationship, or to get a gay/straight alliance at your school. And more.  http://www.aclu.org/getequal/
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Get Busy. Get Equal Campaign

Click on this new ACLU website created to help you take advantage of one a once-in-a-lifetime chance to make significant changes in the way America treats LGBT people.

This website provides tools to: 1) get better treatment for same-sex relationships; 2) get safe schools; 3) get civil rights/discrimination policies that include LGBT people. The tools include simple but important steps that will take only a few minutes-like sending an electronic message to your representatives in Congress supporting a law to protect LGBT people from discrimination. The tools also include more ambitious things, like a step-by-step guide showing how to get a an anti-harassment policy from your school district or a domestic partnership policy in your town or your workplace. There are also tools to help you protect your own relationship, or to get a gay/straight alliance at your school. And more.  http://www.aclu.org/getequal/

DETROIT – The American Civil Liberties Union learned today that Attorney General John Ashcroft will only be addressing law enforcement officials on his new national tour to defend the Patriot Act and the government’s war on terrorism when he comes to Detroit on Thursday.

“It is interesting that Mr. Ashcroft does not seem interested in the public’s concern about the war on terrorism and limits his speaking engagements to a constituency that will be inclined to support him,” said Kary Moss, ACLU of Michigan Executive Director.  “The Justice Department must be worried about the public backlash but is unwilling to subject its policies to open public debate, a quality that has pervaded this entire administration.”

The Patriot Act has come under increasing criticism, not only from the ACLU, but from Congress as well.  Most recently, legislation passed in the U.S. House of Representatives, by a vote of 309 to 118, to repeal one of the more egregious parts of the USA Patriot Act, the “sneak and peek” provision which allows law enforcement to search a home without telling the targeted individual.

On July 30, the ACLU filed a lawsuit challenging Section 215 that vastly expands the power of FBI agents to secretly obtain records and personal belongings of innocent people in the United States, including citizens and permanent residents.  “I would imagine,” said Moss, “that this lawsuit is one of the reasons that he chose Detroit for his national tour.”

Americans are responding to the ever-growing list of examples of civil liberties abuses in the post-9/11 fight against terrorism, including:

  • The June DOJ Inspector General report detailing widespread and systematic abuses of the hundreds of Arab, Muslim and South Asian men detained in the weeks after 9/11.  The report showed that, even though the men were found to have no connection whatsoever to the attacks on September 11, they were held for extreme amounts of time in cases for several months under a quasi-official “no-bond, no-lawyers” policy.  Although the Justice Department’s response has been a pat “we did nothing illegal,” it’s clear that most of the detainees were held on pretext immigration violations like an expired visa or incomplete paperwork.
  • The proposed neighbor-spying-on-neighbor program called Operation TIPS, which would have recruited Americans whose jobs grant them easy access to our homes like cable repair persons and postal workers as government informers, charged with reporting “suspicious activity” to a dedicated tips hotline.
  • The plan to base the number of investigations in any given FBI jurisdiction on demographic criteria, including the number of mosques in the area.
  • The initiative at the DOJ to force local and state police to enforce immigration laws, a plan opposed not only by immigrants’ advocates but also by law enforcement officials themselves.

Several of the cities on the Ashcroft’s itinerary have already joined in a national movement to pass local and regional resolutions calling for increased civil liberties protections, including Detroit and Ann Arbor.  To date, 152 communities across the country have passed these resolutions, including three states, Alaska, Hawaii and Vermont.  Significantly, the list of communities isn’t exclusive to “liberal college towns,” as DOJ officials charge.  Resolution movements are cropping up everywhere from East Coast to West and from the Heartland to the South (note Castle Valley, UT, the state of Alaska).

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Ashcroft Visit to Detroit Will Not Include Seeing the Public

August 19, 2003

DETROIT – The American Civil Liberties Union learned today that Attorney General John Ashcroft will only be addressing law enforcement officials on his new national tour to defend the Patriot Act and the government’s war on terrorism when he comes to Detroit on Thursday.

“It is interesting that Mr. Ashcroft does not seem interested in the public’s concern about the war on terrorism and limits his speaking engagements to a constituency that will be inclined to support him,” said Kary Moss, ACLU of Michigan Executive Director.  “The Justice Department must be worried about the public backlash but is unwilling to subject its policies to open public debate, a quality that has pervaded this entire administration.”

The Patriot Act has come under increasing criticism, not only from the ACLU, but from Congress as well.  Most recently, legislation passed in the U.S. House of Representatives, by a vote of 309 to 118, to repeal one of the more egregious parts of the USA Patriot Act, the “sneak and peek” provision which allows law enforcement to search a home without telling the targeted individual.

On July 30, the ACLU filed a lawsuit challenging Section 215 that vastly expands the power of FBI agents to secretly obtain records and personal belongings of innocent people in the United States, including citizens and permanent residents.  “I would imagine,” said Moss, “that this lawsuit is one of the reasons that he chose Detroit for his national tour.”

Americans are responding to the ever-growing list of examples of civil liberties abuses in the post-9/11 fight against terrorism, including:

  • The June DOJ Inspector General report detailing widespread and systematic abuses of the hundreds of Arab, Muslim and South Asian men detained in the weeks after 9/11.  The report showed that, even though the men were found to have no connection whatsoever to the attacks on September 11, they were held for extreme amounts of time in cases for several months under a quasi-official “no-bond, no-lawyers” policy.  Although the Justice Department’s response has been a pat “we did nothing illegal,” it’s clear that most of the detainees were held on pretext immigration violations like an expired visa or incomplete paperwork.
  • The proposed neighbor-spying-on-neighbor program called Operation TIPS, which would have recruited Americans whose jobs grant them easy access to our homes like cable repair persons and postal workers as government informers, charged with reporting “suspicious activity” to a dedicated tips hotline.
  • The plan to base the number of investigations in any given FBI jurisdiction on demographic criteria, including the number of mosques in the area.
  • The initiative at the DOJ to force local and state police to enforce immigration laws, a plan opposed not only by immigrants’ advocates but also by law enforcement officials themselves.

Several of the cities on the Ashcroft’s itinerary have already joined in a national movement to pass local and regional resolutions calling for increased civil liberties protections, including Detroit and Ann Arbor.  To date, 152 communities across the country have passed these resolutions, including three states, Alaska, Hawaii and Vermont.  Significantly, the list of communities isn’t exclusive to “liberal college towns,” as DOJ officials charge.  Resolution movements are cropping up everywhere from East Coast to West and from the Heartland to the South (note Castle Valley, UT, the state of Alaska).

The Michigan Judicial Institute has just published its Adoption Benchbook, which provides recommendations to judges regarding the interpretation of adoption law.

One provision of the bench book addresses the issue of second parent adoption and recommends that Michigan’s adoption code be interpreted to mean that only single persons or married couples (husband and wife) may adopt a child or adult in Michigan.  Under this interpretation same-sex and unmarried couples cannot adopt children together.


The ACLU of Michigan strongly disagrees with this recommendation and believes that it does not accurately reflect Michigan’s current law on the subject, and is misleading to judges who will have to address this issue.  We believe that Michigan law permits unmarried couples to adopt children together and that this interpretation is consistent with interpretations of other state courts that have adoption laws with language similar to Michigan’s.  We are also concerned with the process that was used to arrive at this recommendation.


In July 2003 we sent a letter to all probate and family judges, articulating our criticisms of the MJI recommendations regarding second parent adoption, as well as advocating for an interpretation of Michigan’s law that permits second parent adoptions by unmarried couples.


The letter reads as follows:

July 25, 2003

Dear Judge:


You will soon be receiving a bench book published by the Michigan Judicial Institute, which provides recommendations to judges regarding the interpretation of various Michigan statutes.


The Michigan Judicial Institute (MJI) was developed by the Michigan Supreme Court in 1977 to provide judges and court personnel with the opportunity to develop and enhance their professional skills.  MJI is a training division of the State Court Administrator’s Office of the Michigan Supreme Court.


One provision of this bench book addresses the issue of second parent adoption.  The book recommends that Michigan’s adoption code be interpreted to mean that only single persons or married couples (husband and wife) may adopt a child or adult in Michigan.


We strongly disagree with this recommendation and believe that it does not accurately reflect Michigan’s current law on the subject, and is misleading to judges who will have to address this issue. 


Furthermore, we are concerned with the process by which this provision was written.  It is our understanding that chapters for the bench book are written in consultation with an advisory committee where members have the opportunity to comment on certain provisions and subsequent revised drafts are submitted for approval.  A final draft on second parent adoption, which had been reviewed and approved by the advisory committee, was suddenly and drastically revised, presenting a different analysis than had been agreed upon by the entire committee.   This draft was sent to one committee member with the statement that he could comment on it, but regardless of his concerns, the draft was going to the printer that day.

Second-parent adoption law and the best interests of the child


No higher court in Michigan has addressed the issue of whether the language of Michigan’s adoption code (MCL 710.24(1)) permits unmarried couples to adopt children.   Michigan’s statutory language is similar if not identical to adoption statutes in the District of Columbia, Illinois, Massachusetts, New Jersey, New York and Vermont.  Their higher courts have interpreted such statutory language as permitting second parent adoptions by unmarried couples.  See e.g., In the Matter of Jacob/In the Matter of Dana, 660 NE 2d 397 (NY 1995) (interpreting similar statutory language to permit co-parent adoption); Adoption of Children by H.N.R., 666 A 2d 535 (NJ App 1995) (same); In re M.M.D.  & B.H.M., 662 A 2d 837 (DC App 1995) (same); In re Petition of K.M. & D.M., 653 NE 2d 888 (Ill App Ct 1995)(same); Adoption of Tammy, 619 NE 2d 315 (Mass 1993)(same), Adoptions of B.L.V.B. & E.L.V.B., 628 A 2d 1271 (Vt 1993)(same).

The bench book treats this issue as if it has been ultimately decided by a higher court. Given the interpretations of other state courts of similar adoption laws, we believe that it is premature for the bench book to treat this as a settled issue. 

In fact, the chapter refers to only one Michigan case in support of its analysis, In re Adams, 189 Mich App 540(1991), and that case did not involve an adoption by unmarried partners.  In re Adams involved an adoption by two married individuals. 

However, the individuals were not married to each other; they were married to other people.  Furthermore, Adams was decided prior to the 1995 amendments to Michigan’s adoption code, which now allow for direct placement adoptions for children.  The purpose of these amendments was to increase the number of adoptive families for children remaining in Michigan’s foster care system.


“(T) He concept of the best interests of the child has long been the polar star for judicial guidance in cases involving children.”  Matter of Schejbal, 131 Mich App 833,835 (1984), citing Corrie v Corrie, 42 Mich 509 (1964).  MCL 710.46 (1)(a) requires all adoption proceedings to consider the best interests of the adoptee, which include the capacity and disposition of the adoptive parties to provide the adoptee with love, affection and guidance.  MCL 722.23. 

The analysis of second parent adoption contained in the bench book disregards these best interest standards, solely focusing on the marital status of the adoptive parents, which we believe takes the focus away from the needs of the child to be adopted.


In conclusion, we believe that the provision on second adoption that you will receive in your bench book is inaccurate.  We urge you to consider the issues raised in this letter, when reviewing the bench book provision on second parent adoption.


Sincerely



Kary L. Moss, Esquire                                                 Jay Kaplan, Staff Attorney

Executive Director                                                                    LGBT Project

Henry Grix, Esquire                                                                  Hanley Gurwin, Esquire

Deborah Labelle, Esquire                                                          Monica Linkner, Esquire

Monika Sacks, Esquire

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ACLU Disagrees with Second Parent Adoption Judicial Recommendations

The Michigan Judicial Institute has just published its Adoption Benchbook, which provides recommendations to judges regarding the interpretation of adoption law.

One provision of the bench book addresses the issue of second parent adoption and recommends that Michigan’s adoption code be interpreted to mean that only single persons or married couples (husband and wife) may adopt a child or adult in Michigan.  Under this interpretation same-sex and unmarried couples cannot adopt children together.


The ACLU of Michigan strongly disagrees with this recommendation and believes that it does not accurately reflect Michigan’s current law on the subject, and is misleading to judges who will have to address this issue.  We believe that Michigan law permits unmarried couples to adopt children together and that this interpretation is consistent with interpretations of other state courts that have adoption laws with language similar to Michigan’s.  We are also concerned with the process that was used to arrive at this recommendation.


In July 2003 we sent a letter to all probate and family judges, articulating our criticisms of the MJI recommendations regarding second parent adoption, as well as advocating for an interpretation of Michigan’s law that permits second parent adoptions by unmarried couples.


The letter reads as follows:

July 25, 2003

Dear Judge:


You will soon be receiving a bench book published by the Michigan Judicial Institute, which provides recommendations to judges regarding the interpretation of various Michigan statutes.


The Michigan Judicial Institute (MJI) was developed by the Michigan Supreme Court in 1977 to provide judges and court personnel with the opportunity to develop and enhance their professional skills.  MJI is a training division of the State Court Administrator’s Office of the Michigan Supreme Court.


One provision of this bench book addresses the issue of second parent adoption.  The book recommends that Michigan’s adoption code be interpreted to mean that only single persons or married couples (husband and wife) may adopt a child or adult in Michigan.


We strongly disagree with this recommendation and believe that it does not accurately reflect Michigan’s current law on the subject, and is misleading to judges who will have to address this issue. 


Furthermore, we are concerned with the process by which this provision was written.  It is our understanding that chapters for the bench book are written in consultation with an advisory committee where members have the opportunity to comment on certain provisions and subsequent revised drafts are submitted for approval.  A final draft on second parent adoption, which had been reviewed and approved by the advisory committee, was suddenly and drastically revised, presenting a different analysis than had been agreed upon by the entire committee.   This draft was sent to one committee member with the statement that he could comment on it, but regardless of his concerns, the draft was going to the printer that day.

Second-parent adoption law and the best interests of the child


No higher court in Michigan has addressed the issue of whether the language of Michigan’s adoption code (MCL 710.24(1)) permits unmarried couples to adopt children.   Michigan’s statutory language is similar if not identical to adoption statutes in the District of Columbia, Illinois, Massachusetts, New Jersey, New York and Vermont.  Their higher courts have interpreted such statutory language as permitting second parent adoptions by unmarried couples.  See e.g., In the Matter of Jacob/In the Matter of Dana, 660 NE 2d 397 (NY 1995) (interpreting similar statutory language to permit co-parent adoption); Adoption of Children by H.N.R., 666 A 2d 535 (NJ App 1995) (same); In re M.M.D.  & B.H.M., 662 A 2d 837 (DC App 1995) (same); In re Petition of K.M. & D.M., 653 NE 2d 888 (Ill App Ct 1995)(same); Adoption of Tammy, 619 NE 2d 315 (Mass 1993)(same), Adoptions of B.L.V.B. & E.L.V.B., 628 A 2d 1271 (Vt 1993)(same).

The bench book treats this issue as if it has been ultimately decided by a higher court. Given the interpretations of other state courts of similar adoption laws, we believe that it is premature for the bench book to treat this as a settled issue. 

In fact, the chapter refers to only one Michigan case in support of its analysis, In re Adams, 189 Mich App 540(1991), and that case did not involve an adoption by unmarried partners.  In re Adams involved an adoption by two married individuals. 

However, the individuals were not married to each other; they were married to other people.  Furthermore, Adams was decided prior to the 1995 amendments to Michigan’s adoption code, which now allow for direct placement adoptions for children.  The purpose of these amendments was to increase the number of adoptive families for children remaining in Michigan’s foster care system.


“(T) He concept of the best interests of the child has long been the polar star for judicial guidance in cases involving children.”  Matter of Schejbal, 131 Mich App 833,835 (1984), citing Corrie v Corrie, 42 Mich 509 (1964).  MCL 710.46 (1)(a) requires all adoption proceedings to consider the best interests of the adoptee, which include the capacity and disposition of the adoptive parties to provide the adoptee with love, affection and guidance.  MCL 722.23. 

The analysis of second parent adoption contained in the bench book disregards these best interest standards, solely focusing on the marital status of the adoptive parents, which we believe takes the focus away from the needs of the child to be adopted.


In conclusion, we believe that the provision on second adoption that you will receive in your bench book is inaccurate.  We urge you to consider the issues raised in this letter, when reviewing the bench book provision on second parent adoption.


Sincerely



Kary L. Moss, Esquire                                                 Jay Kaplan, Staff Attorney

Executive Director                                                                    LGBT Project

Henry Grix, Esquire                                                                  Hanley Gurwin, Esquire

Deborah Labelle, Esquire                                                          Monica Linkner, Esquire

Monika Sacks, Esquire

Another deceptive bill to eliminate a woman’s right to choose passed the Senate today. The new bill, called the "legal birth definition act," is an attempt to ban all abortions and will put doctors in jeopardy of facing criminal charges even in cases of completing a miscarriage. SB 395 will now go to Governor Granholm and is likely to be vetoed because it contains no health exception.

This bill is clearly part of a larger campaign to end a woman’s access to a safe and legal medical procedure,” said Kary Moss, ACLU of Michigan Executive Director."The reference to a particular procedure is misleading – courts throughout the country, including the U.S. Supreme Court, have struck down the bans in part because their actual language is so broad as to prohibit far more than a single procedure.”

In spite of previous court decisions, two in Michigan, the bill remains unconstitutional, lacking a provision that protects the life and health of a woman. An insufficient and meaningless "physical health" exception, crafted by Right to Life, is now part of the bill. The amendment does nothing to eliminate the extreme danger this bill poses to women, and nothing to cure its glaring constitutional defects.

In a letter to the Senate in April, Dr. Timothy Johnson, Professor and Chair of the University of Michigan Department of Obstetrics and Gynecology, wrote, “Based on my medical experience, I know that Senate Bill 395 would, like the previous two laws, put women in grave danger: it contains non-medical language that is too vague to be comprehensible to physicians; it would ban abortions throughout pregnancy and treatment of miscarriage; and it would deny women essential, even lifesaving care.”

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Another Unconstitutional Abortion Bill Passes Michigan Senate

September 30, 2003

Another deceptive bill to eliminate a woman’s right to choose passed the Senate today. The new bill, called the "legal birth definition act," is an attempt to ban all abortions and will put doctors in jeopardy of facing criminal charges even in cases of completing a miscarriage. SB 395 will now go to Governor Granholm and is likely to be vetoed because it contains no health exception.

This bill is clearly part of a larger campaign to end a woman’s access to a safe and legal medical procedure,” said Kary Moss, ACLU of Michigan Executive Director."The reference to a particular procedure is misleading – courts throughout the country, including the U.S. Supreme Court, have struck down the bans in part because their actual language is so broad as to prohibit far more than a single procedure.”

In spite of previous court decisions, two in Michigan, the bill remains unconstitutional, lacking a provision that protects the life and health of a woman. An insufficient and meaningless "physical health" exception, crafted by Right to Life, is now part of the bill. The amendment does nothing to eliminate the extreme danger this bill poses to women, and nothing to cure its glaring constitutional defects.

In a letter to the Senate in April, Dr. Timothy Johnson, Professor and Chair of the University of Michigan Department of Obstetrics and Gynecology, wrote, “Based on my medical experience, I know that Senate Bill 395 would, like the previous two laws, put women in grave danger: it contains non-medical language that is too vague to be comprehensible to physicians; it would ban abortions throughout pregnancy and treatment of miscarriage; and it would deny women essential, even lifesaving care.”

DETROIT — A federal judge has ruled that the Dearborn student who was prohibited from wearing a t-shirt with a picture of President Bush that reads, "International Terrorist" must be allowed to wear the shirt to school. The American Civil Liberties Union of Michigan filed the lawsuit in federal court last February against the Dearborn Public Schools for violating the First Amendment rights of the student.

“The court's decision reaffirms the principle that students don't give up their right to express opinions on matters of public importance once they enter school," said Kary Moss, ACLU of Michigan Executive Director.  "Schools are not speech-free zones."

Judge Patrick J. Duggan granted the preliminary injunction stating that “there is no evidence that the t-shirt created any disturbance or disruption” in the school and that “the record…does not reveal any basis for [the assistant principal’s] fear aside from his belief that the t-shirt conveyed an unpopular political message.”

Judge Duggan further rejected the school district’s argument that the schoolyard is an inappropriate place for political debate. As he wrote in the decision, “In fact, as [the courts] have emphasized, students benefit when school officials provide an environment where they can openly express their diverging viewpoints and when they learn to tolerate the opinions of others.”

Bretton Barber, a senior at Dearborn High School, wore the t-shirt to express his concern about the President’s policies on the potential war in Iraq.  School administrators asked him to remove the t-shirt, turn it inside out, or go home.  The school’s justification was that the shirt might cause a disruption despite the fact that he wore the shirt for three hours without incident.

“I wore the shirt to spark discussion among the students on an issue I cared deeply about,” Barber said.  “I haven’t decided when I’ll wear the shirt again, but now I have the confidence of knowing that I have the right to wear it.”

"The ruling is an important civics lesson for students everywhere. This case teaches that the First Amendment protects our right to express our opinions, and that sometimes we must have the courage -- as Brett Barber did to defend our rights," said Andrew Nickelhoff, the ACLU of Michigan Cooperating Attorney who argued the case.

Read the decision here.

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Judge Rules In Favor of Dearborn Student’s Right to Political Speech

October 01, 2003

DETROIT — A federal judge has ruled that the Dearborn student who was prohibited from wearing a t-shirt with a picture of President Bush that reads, "International Terrorist" must be allowed to wear the shirt to school. The American Civil Liberties Union of Michigan filed the lawsuit in federal court last February against the Dearborn Public Schools for violating the First Amendment rights of the student.

“The court's decision reaffirms the principle that students don't give up their right to express opinions on matters of public importance once they enter school," said Kary Moss, ACLU of Michigan Executive Director.  "Schools are not speech-free zones."

Judge Patrick J. Duggan granted the preliminary injunction stating that “there is no evidence that the t-shirt created any disturbance or disruption” in the school and that “the record…does not reveal any basis for [the assistant principal’s] fear aside from his belief that the t-shirt conveyed an unpopular political message.”

Judge Duggan further rejected the school district’s argument that the schoolyard is an inappropriate place for political debate. As he wrote in the decision, “In fact, as [the courts] have emphasized, students benefit when school officials provide an environment where they can openly express their diverging viewpoints and when they learn to tolerate the opinions of others.”

Bretton Barber, a senior at Dearborn High School, wore the t-shirt to express his concern about the President’s policies on the potential war in Iraq.  School administrators asked him to remove the t-shirt, turn it inside out, or go home.  The school’s justification was that the shirt might cause a disruption despite the fact that he wore the shirt for three hours without incident.

“I wore the shirt to spark discussion among the students on an issue I cared deeply about,” Barber said.  “I haven’t decided when I’ll wear the shirt again, but now I have the confidence of knowing that I have the right to wear it.”

"The ruling is an important civics lesson for students everywhere. This case teaches that the First Amendment protects our right to express our opinions, and that sometimes we must have the courage -- as Brett Barber did to defend our rights," said Andrew Nickelhoff, the ACLU of Michigan Cooperating Attorney who argued the case.

Read the decision here.

DETROIT — In a case with implications throughout the state, a federal judge has struck down the Michigan “verbal assault” law as violating the free speech rights of students. The American Civil Liberties Union of Michigan challenged the law on behalf of Alex Smith, an honor student at Mt. Pleasant High School who was suspended for committing a “verbal assault” by writing a parody of the school’s tardy policy.

“Unfortunately, some schools have taken these zero tolerance policies to the extreme,” said Kary Moss, ACLU of Michigan Executive Director. “We’re pleased that the court has recognized that the statute was so vague and broad as to seriously curtail students’ speech rights.”

 The 1999 law at issue required all school districts in the state to suspend or expel students for committing a “verbal assault.”  However, the law did not define what constituted a “verbal assault.”  Mt. Pleasant adopted a policy requiring a 10-day suspension of all students who, among other things, “assault the dignity of a person.”

U.S. District Court Judge David M. Lawson held that the verbal assault law and policy were “unconstitutionally overbroad and vague,” and therefore could not be enforced.  The judge wrote that while the state law and the Mt. Pleasant school district policy may have had a laudable purpose, they could not be used to punish criticism that is protected by the First Amendment such as “speech that questions the wisdom or judgment of school administrators and their policies.”  Judge Lawson further stated that “the mere fact that someone might take offense at the content of speech is not sufficient justification for prohibiting it.”

Alex Smith, a junior at the high school in 2000 when he wrote the parody, is now a student at Michigan State University.  He said, "Although I won't benefit directly from the court’s decision because I'm in college now, I feel vindicated because the law was struck down.  Students will be able to freely discuss politics and school policies in school without fear of being charged with verbal assault."

“Even laws enacted with the best intentions must be judged by standards of the First Amendment,” said Richard Landau, the ACLU of Michigan cooperating attorney who argued the case.  “School districts across the state should reexamine their policies in light of this opinion to make certain they don’t run afoul of the Constitution.”

In addition to Landau, other attorneys representing Smith were Bradley Smith, Thomas Bromell and Michael J. Steinberg.

Read the decision here.

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Court Strikes Down Michigan Verbal Assault Law

October 03, 2003

DETROIT — In a case with implications throughout the state, a federal judge has struck down the Michigan “verbal assault” law as violating the free speech rights of students. The American Civil Liberties Union of Michigan challenged the law on behalf of Alex Smith, an honor student at Mt. Pleasant High School who was suspended for committing a “verbal assault” by writing a parody of the school’s tardy policy.

“Unfortunately, some schools have taken these zero tolerance policies to the extreme,” said Kary Moss, ACLU of Michigan Executive Director. “We’re pleased that the court has recognized that the statute was so vague and broad as to seriously curtail students’ speech rights.”

 The 1999 law at issue required all school districts in the state to suspend or expel students for committing a “verbal assault.”  However, the law did not define what constituted a “verbal assault.”  Mt. Pleasant adopted a policy requiring a 10-day suspension of all students who, among other things, “assault the dignity of a person.”

U.S. District Court Judge David M. Lawson held that the verbal assault law and policy were “unconstitutionally overbroad and vague,” and therefore could not be enforced.  The judge wrote that while the state law and the Mt. Pleasant school district policy may have had a laudable purpose, they could not be used to punish criticism that is protected by the First Amendment such as “speech that questions the wisdom or judgment of school administrators and their policies.”  Judge Lawson further stated that “the mere fact that someone might take offense at the content of speech is not sufficient justification for prohibiting it.”

Alex Smith, a junior at the high school in 2000 when he wrote the parody, is now a student at Michigan State University.  He said, "Although I won't benefit directly from the court’s decision because I'm in college now, I feel vindicated because the law was struck down.  Students will be able to freely discuss politics and school policies in school without fear of being charged with verbal assault."

“Even laws enacted with the best intentions must be judged by standards of the First Amendment,” said Richard Landau, the ACLU of Michigan cooperating attorney who argued the case.  “School districts across the state should reexamine their policies in light of this opinion to make certain they don’t run afoul of the Constitution.”

In addition to Landau, other attorneys representing Smith were Bradley Smith, Thomas Bromell and Michael J. Steinberg.

Read the decision here.

NEW YORK—The American Civil Liberties Union today filed simultaneous state “Freedom of Information Act” requests in Michigan, Connecticut, New York, Ohio and Pennsylvania about those states’ participation in the new “MATRIX” database surveillance system. It also released an Issue Brief explaining the problems with the program, which also operates in Florida and Utah.

“This is an end-run around the Pentagon’s ‘Total Information Awareness’ program that Congress rightly put a stop to last year,” said Kary Moss, ACLU of Michigan Executive Director.  “Simply put, this is a state-run equivalent of a bad federal plan.

“In essence, the government is replacing an unpopular Big Brother initiative with a lot of Little Brothers,” he added, noting that the program is receiving $12 million from the Departments of Justice and Homeland Security.  “What does it take for the message to get through that government spying on the activities of innocent Americans will not be tolerated?”

The ACLU’s requests, which were filed under individual states’ open-records laws, come on the heels of a federal Freedom of Information Act request it filed October 17. A similar request was also filed in Florida, where the program originated.   The goal of the requests is to find out what information sources the system is drawing on as well as who has access to the database and how it is being used, information program officials have refused to disclose.

According to Congressional testimony and news reports, the Matrix (which stands for “Multistate Anti-Terrorism Information Exchange”) creates dossiers about individuals from government databases and private-sector information companies that compile files on Americans’ activities for profit.  It then makes those dossiers available for search by federal and state law enforcement officers.  In addition, Matrix workers comb through the millions of files in a search for “anomalies” that may be indicative of terrorist or other criminal activity.

While company officials have refused to disclose details of the program, according to news reports the kind of information to be searched includes credit histories, driver’s license photographs, marriage and divorce records, Social Security numbers, dates of birth, and the names and addresses of family members, neighbors and business associates.

Raising even more issues, the Matrix is operated by a private company, Seisint Inc. of Boca Raton, Florida.  Ironically, the company’s founder was forced to resign after buried information about his own past came to light: according to Florida police, he was formerly a drug smuggler who had piloted multiple planeloads of cocaine from Colombia to the U.S.

Members of Congress who voted to close down TIA in the belief that they were ending this kind of data mining surveillance must demand more information about the Matrix,” said Steinhardt.  “And then they should shut it down too.”

Click Here for copies of the ACLU’s state and federal FOIA requests as well as a fact sheet about the Matrix. 

 

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What Is The Matrix? ACLU Seeks Answers on New State-Run Surveillance Program

October 30, 2003

NEW YORK—The American Civil Liberties Union today filed simultaneous state “Freedom of Information Act” requests in Michigan, Connecticut, New York, Ohio and Pennsylvania about those states’ participation in the new “MATRIX” database surveillance system. It also released an Issue Brief explaining the problems with the program, which also operates in Florida and Utah.

“This is an end-run around the Pentagon’s ‘Total Information Awareness’ program that Congress rightly put a stop to last year,” said Kary Moss, ACLU of Michigan Executive Director.  “Simply put, this is a state-run equivalent of a bad federal plan.

“In essence, the government is replacing an unpopular Big Brother initiative with a lot of Little Brothers,” he added, noting that the program is receiving $12 million from the Departments of Justice and Homeland Security.  “What does it take for the message to get through that government spying on the activities of innocent Americans will not be tolerated?”

The ACLU’s requests, which were filed under individual states’ open-records laws, come on the heels of a federal Freedom of Information Act request it filed October 17. A similar request was also filed in Florida, where the program originated.   The goal of the requests is to find out what information sources the system is drawing on as well as who has access to the database and how it is being used, information program officials have refused to disclose.

According to Congressional testimony and news reports, the Matrix (which stands for “Multistate Anti-Terrorism Information Exchange”) creates dossiers about individuals from government databases and private-sector information companies that compile files on Americans’ activities for profit.  It then makes those dossiers available for search by federal and state law enforcement officers.  In addition, Matrix workers comb through the millions of files in a search for “anomalies” that may be indicative of terrorist or other criminal activity.

While company officials have refused to disclose details of the program, according to news reports the kind of information to be searched includes credit histories, driver’s license photographs, marriage and divorce records, Social Security numbers, dates of birth, and the names and addresses of family members, neighbors and business associates.

Raising even more issues, the Matrix is operated by a private company, Seisint Inc. of Boca Raton, Florida.  Ironically, the company’s founder was forced to resign after buried information about his own past came to light: according to Florida police, he was formerly a drug smuggler who had piloted multiple planeloads of cocaine from Colombia to the U.S.

Members of Congress who voted to close down TIA in the belief that they were ending this kind of data mining surveillance must demand more information about the Matrix,” said Steinhardt.  “And then they should shut it down too.”

Click Here for copies of the ACLU’s state and federal FOIA requests as well as a fact sheet about the Matrix. 

 

NEW YORK – Fear of the PATRIOT Act has caused a dramatic decline in memberships and donations at mosques and forced a church-sponsored group that aids refugees to change its record-keeping practices, the American Civil Liberties Union said in legal papers filed today in Detroit.

This First Amendment “chill” is reminiscent of an earlier era when the government attempted to shut down dissent by investigating groups like the NAACP and the Japanese American Citizens League, the ACLU said.  Notably, those groups and other civil rights, immigrant and free speech advocates today filed briefs supporting the ACLU’s challenge to the law.
 
“Sadly, our government has an ugly history of using its investigative powers to squelch dissent,” said ACLU Associate Legal Director Ann Beeson.  “We saw it during the Japanese internments of World War II, the Red Scare of the 1950’s and the civil rights movement of the 1960’s, and now we see it in the post-9/11 investigations and detention of Arabs and Muslims.”
 
“The degree to which people are afraid to speak out or practice their religion is very hard to identify in this climate of secrecy, particularly given the fact that Section 215 makes it a felony for people to tell anyone if they have been served with a warrant,” said Kary Moss, ACLU of Michigan Executive Director. 
 
In a brief filed before a federal court in Detroit, the ACLU opposed the government’s motion to dismiss its challenge to Section 215 of the PATRIOT Act, a law that vastly expands the power of FBI agents to secretly obtain records and personal belongings of innocent people in the United States, including citizens and permanent residents.
 
The case was filed in Detroit on July 30 on behalf of six nonprofit organizations that provide a wide range of religious, medical, social and educational services to communities around the country. The lawsuit names Attorney General John Ashcroft and FBI Director Robert Mueller as defendants. A hearing in the case is scheduled for December 3 before Judge Denise Page Hood of the U.S. District Court in Detroit.
 
Coalitions representing more than two dozen civil rights, immigrant and First Amendment advocacy organizations today filed three separate “friend-of-the-court” briefs saying that the law also violates their members’ First Amendment rights to free speech and free association as well as their right to privacy under the Fourth Amendment. 
 
The NAACP, whose members include people of Arab, Muslim and South Asian backgrounds, noted in its brief that during the 1960’s, its members “feared they would lose their jobs and be attacked physically if their membership in the organization was disclosed.” A government requirement that the organization disclose the names of its members “caused membership in Louisiana to drop from 12,000 to 1,700.” 
 
The threat of similar government actions today has had a similar effect on the Arab and Muslim community and organizations that serve them, the ACLU said in legal papers – all the more so because those actions take place in secret.
 
The Muslim Community Association of Ann Arbor (MCA), the lead plaintiff in the ACLU lawsuit, said in an affidavit that “attendance at prayer services, educational forums and social events has substantially dropped” and donations to the group are almost half of what they were before 2001. The group also said that some members have curtailed their political speech, and one member asked that all records pertaining to himself and his family be deleted from MCA’s database.
 
Mary Lieberman, executive director of Bridge Refuge and Sponsorship Services, a church-affiliated organization in Tennessee, has directed her staff to change the way they keep records in order to minimize the chance that personal information will be disclosed to government investigators on fishing expeditions for information about clients from Iraq and Iran. 
 
Other groups that signed the “friend-of-the-court” briefs filed today include American Booksellers Fund for Free Expression, American Friends Service Committee, Japanese American Citizens League and Episcopal Migration Ministries. 
 
The case is Muslim Community Association of Ann Arbor et al. v. John Ashcroft, Civil Action No. 03-72913, filed in U.S. District Court for the Eastern District of Michigan, Southern Division. In addition to Beeson, attorneys in the case are Jameel Jaffer of the national ACLU and Michael J. Steinberg, Noel Saleh and Kary Moss of the ACLU of Michigan.

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PATRIOT Act Fears Are Stifling Free Speech, ACLU Says in Challenge to Law

November 03, 2003

NEW YORK – Fear of the PATRIOT Act has caused a dramatic decline in memberships and donations at mosques and forced a church-sponsored group that aids refugees to change its record-keeping practices, the American Civil Liberties Union said in legal papers filed today in Detroit.

This First Amendment “chill” is reminiscent of an earlier era when the government attempted to shut down dissent by investigating groups like the NAACP and the Japanese American Citizens League, the ACLU said.  Notably, those groups and other civil rights, immigrant and free speech advocates today filed briefs supporting the ACLU’s challenge to the law.
 
“Sadly, our government has an ugly history of using its investigative powers to squelch dissent,” said ACLU Associate Legal Director Ann Beeson.  “We saw it during the Japanese internments of World War II, the Red Scare of the 1950’s and the civil rights movement of the 1960’s, and now we see it in the post-9/11 investigations and detention of Arabs and Muslims.”
 
“The degree to which people are afraid to speak out or practice their religion is very hard to identify in this climate of secrecy, particularly given the fact that Section 215 makes it a felony for people to tell anyone if they have been served with a warrant,” said Kary Moss, ACLU of Michigan Executive Director. 
 
In a brief filed before a federal court in Detroit, the ACLU opposed the government’s motion to dismiss its challenge to Section 215 of the PATRIOT Act, a law that vastly expands the power of FBI agents to secretly obtain records and personal belongings of innocent people in the United States, including citizens and permanent residents.
 
The case was filed in Detroit on July 30 on behalf of six nonprofit organizations that provide a wide range of religious, medical, social and educational services to communities around the country. The lawsuit names Attorney General John Ashcroft and FBI Director Robert Mueller as defendants. A hearing in the case is scheduled for December 3 before Judge Denise Page Hood of the U.S. District Court in Detroit.
 
Coalitions representing more than two dozen civil rights, immigrant and First Amendment advocacy organizations today filed three separate “friend-of-the-court” briefs saying that the law also violates their members’ First Amendment rights to free speech and free association as well as their right to privacy under the Fourth Amendment. 
 
The NAACP, whose members include people of Arab, Muslim and South Asian backgrounds, noted in its brief that during the 1960’s, its members “feared they would lose their jobs and be attacked physically if their membership in the organization was disclosed.” A government requirement that the organization disclose the names of its members “caused membership in Louisiana to drop from 12,000 to 1,700.” 
 
The threat of similar government actions today has had a similar effect on the Arab and Muslim community and organizations that serve them, the ACLU said in legal papers – all the more so because those actions take place in secret.
 
The Muslim Community Association of Ann Arbor (MCA), the lead plaintiff in the ACLU lawsuit, said in an affidavit that “attendance at prayer services, educational forums and social events has substantially dropped” and donations to the group are almost half of what they were before 2001. The group also said that some members have curtailed their political speech, and one member asked that all records pertaining to himself and his family be deleted from MCA’s database.
 
Mary Lieberman, executive director of Bridge Refuge and Sponsorship Services, a church-affiliated organization in Tennessee, has directed her staff to change the way they keep records in order to minimize the chance that personal information will be disclosed to government investigators on fishing expeditions for information about clients from Iraq and Iran. 
 
Other groups that signed the “friend-of-the-court” briefs filed today include American Booksellers Fund for Free Expression, American Friends Service Committee, Japanese American Citizens League and Episcopal Migration Ministries. 
 
The case is Muslim Community Association of Ann Arbor et al. v. John Ashcroft, Civil Action No. 03-72913, filed in U.S. District Court for the Eastern District of Michigan, Southern Division. In addition to Beeson, attorneys in the case are Jameel Jaffer of the national ACLU and Michael J. Steinberg, Noel Saleh and Kary Moss of the ACLU of Michigan.

In a ruling that will impact young adults throughout the state, a federal judge ruled that the police may no longer force pedestrians under age 21 to take a Breathalyzer test without obtaining a search warrant. The decision comes in a case filed by the American Civil Liberties Union of Michigan.

“For years, police officers throughout Michigan have violated the rights of countless college students and others under age 21 by forcing them to submit breathalyzers without a warrant,” said Kary Moss, ACLU of Michigan Executive Director.  “This is a tremendous victory for the civil liberties of young adults.”

The case stems from an encounter by Jamie Spencer, a Bay City resident, with the Bay City police in August, 2001, when she was 19 years old.  She, her husband and some friends were leaving a city park after rollerblading, when two officers approached Mrs. Spencer and demanded that she blow into a Breathalyzer machine.  

She told the officers she had not been drinking and she did not want to take the test.  However, when the officers threatened her with a $100 fine, she felt she had no choice.  The test indicated that she had not been drinking.  

“Even though I had done nothing wrong, the police invaded my privacy,” said Mrs. Spencer.  “I am glad that because of this decision, the police will not harass innocent young people in the future by forcing them into such a demeaning situation.”

U.S. District Court Judge David M. Lawson, in a 23-page opinion issued on Thursday, struck down the Bay City ordinance that makes it illegal for people under age 21 to refuse to consent to a Breathalyzer test.  The ruling does not apply to drivers of a motor vehicle.  Judge Lawson held that the ordinance violates the Fourth Amendment because (1) a breath test is a search, (2) the Fourth Amendment ordinarily prohibits searches without search warrants, and (3) no exceptions to the search warrant requirement apply. 

Judge Lawson further emphasized that “the right to be left alone in public places ranks high on the hierarchy of entitlements that citizens in a free society have come to expect at least in the context of citizen-police encounters.” 

Since the Bay City ordinance is identical to state law, the decision will bring welcome relief to college students across the state, according to Jonathan Knapp, president of the Central Michigan University Chapter of the ACLU.

 “It is a well-known and common procedure on campuses across the state for the police to stop students walking across campus on weekend nights and force them to take Breathalysers whether or not they have been drinking," said Knapp. "This is a great student rights decision."

“Michigan is the only state in the country to make it illegal for a minor walking down the street to refuse a Breathalyzer test when the police do not have a search warrant,” said ACLU cooperating attorney David Moran.  “We are gratified that the federal court has recognized that the state cannot take away the privacy rights of people just because they are under age 21.

In addition to Moran, Mrs. Spencer is represented by Michael J. Steinberg, ACLU of Michigan Legal Director, and William T. Street, a volunteer ACLU lawyer from Saginaw. 

Read the complaint.

Read the brief.

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Court Strikes Down Breathalyzer Tests for Pedestrians As Unconstitutional

November 25, 0200

In a ruling that will impact young adults throughout the state, a federal judge ruled that the police may no longer force pedestrians under age 21 to take a Breathalyzer test without obtaining a search warrant. The decision comes in a case filed by the American Civil Liberties Union of Michigan.

“For years, police officers throughout Michigan have violated the rights of countless college students and others under age 21 by forcing them to submit breathalyzers without a warrant,” said Kary Moss, ACLU of Michigan Executive Director.  “This is a tremendous victory for the civil liberties of young adults.”

The case stems from an encounter by Jamie Spencer, a Bay City resident, with the Bay City police in August, 2001, when she was 19 years old.  She, her husband and some friends were leaving a city park after rollerblading, when two officers approached Mrs. Spencer and demanded that she blow into a Breathalyzer machine.  

She told the officers she had not been drinking and she did not want to take the test.  However, when the officers threatened her with a $100 fine, she felt she had no choice.  The test indicated that she had not been drinking.  

“Even though I had done nothing wrong, the police invaded my privacy,” said Mrs. Spencer.  “I am glad that because of this decision, the police will not harass innocent young people in the future by forcing them into such a demeaning situation.”

U.S. District Court Judge David M. Lawson, in a 23-page opinion issued on Thursday, struck down the Bay City ordinance that makes it illegal for people under age 21 to refuse to consent to a Breathalyzer test.  The ruling does not apply to drivers of a motor vehicle.  Judge Lawson held that the ordinance violates the Fourth Amendment because (1) a breath test is a search, (2) the Fourth Amendment ordinarily prohibits searches without search warrants, and (3) no exceptions to the search warrant requirement apply. 

Judge Lawson further emphasized that “the right to be left alone in public places ranks high on the hierarchy of entitlements that citizens in a free society have come to expect at least in the context of citizen-police encounters.” 

Since the Bay City ordinance is identical to state law, the decision will bring welcome relief to college students across the state, according to Jonathan Knapp, president of the Central Michigan University Chapter of the ACLU.

 “It is a well-known and common procedure on campuses across the state for the police to stop students walking across campus on weekend nights and force them to take Breathalysers whether or not they have been drinking," said Knapp. "This is a great student rights decision."

“Michigan is the only state in the country to make it illegal for a minor walking down the street to refuse a Breathalyzer test when the police do not have a search warrant,” said ACLU cooperating attorney David Moran.  “We are gratified that the federal court has recognized that the state cannot take away the privacy rights of people just because they are under age 21.

In addition to Moran, Mrs. Spencer is represented by Michael J. Steinberg, ACLU of Michigan Legal Director, and William T. Street, a volunteer ACLU lawyer from Saginaw. 

Read the complaint.

Read the brief.

DETROIT — In an unusual coalition of partners, three groups have jointly filed a friend-of-the-court brief in support of the Ann Arbor Public School District who is being sued by a conservative legal foundation for providing domestic partner health benefits to gay and lesbian employees of the district.

In response to the challenge brought against the school district by the Thomas More Law Center, a brief has been filed by the American Civil Liberties Union of Michigan and the Women Lawyers Association of Michigan. 

The lawsuit alleges that the provision of such benefits is in violation of current Michigan law which prohibits same-sex marriages. The brief asserts that the lawsuit should be dismissed, arguing that the provision of domestic partner benefits by a local government entity is not the legal equivalent of marriage, and that domestic partner benefits are good for business, allowing employers to respond to employee needs.  There are currently 30,000 uninsured persons in Washtenaw County and over 43 million in the United States. 

The Washtenaw County Medical Society (WCMS) Executive Committee has also joined in the brief.  “Access to health care is a serious national and local problem,” said Washtenaw County Medical Society President, Richard Burney, M.D., acknowledging the critical role employer-based health care benefits play in the health system.  “Employer-based health insurance is one of the primary ways of securing access to health care, and the Washtenaw County Medical Society strongly supports the right of employers to extend health insurance coverage to meet their employees' needs."

Kary Moss, Executive Director of the ACLU of Michigan, echoed Dr. Burney’s concern.  “This is an effort to deprive gay and lesbian families and their children of important benefits by limiting the authority of local governments and schools. The Thomas More Center, in its attempt to create a society in accord with its own religious values, is trying to use the statute which defines marriage to deny access to health care to gay and lesbian families.”

The ACLU believes that the current lawsuit is part of a continuing effort by the Thomas More Law Center to prohibit employers from recognizing gay and lesbian employees and affording them equal opportunities in the workplace. 

Similar lawsuits in Florida, Colorado, Illinois, Georgia, Washington, and Wisconsin have failed, according to Kara Jennings, staff attorney for the ACLU’s LGBT Project.

The case, Rhode et al v. Ann Arbor Public Schools, was filed in the Washtenaw County Circuit Court. A motion to dismiss the lawsuit will be heard on December 3, 2003.

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Amicus Brief Filed to Support Ann Arbor Public School District

November 24, 2003

DETROIT — In an unusual coalition of partners, three groups have jointly filed a friend-of-the-court brief in support of the Ann Arbor Public School District who is being sued by a conservative legal foundation for providing domestic partner health benefits to gay and lesbian employees of the district.

In response to the challenge brought against the school district by the Thomas More Law Center, a brief has been filed by the American Civil Liberties Union of Michigan and the Women Lawyers Association of Michigan. 

The lawsuit alleges that the provision of such benefits is in violation of current Michigan law which prohibits same-sex marriages. The brief asserts that the lawsuit should be dismissed, arguing that the provision of domestic partner benefits by a local government entity is not the legal equivalent of marriage, and that domestic partner benefits are good for business, allowing employers to respond to employee needs.  There are currently 30,000 uninsured persons in Washtenaw County and over 43 million in the United States. 

The Washtenaw County Medical Society (WCMS) Executive Committee has also joined in the brief.  “Access to health care is a serious national and local problem,” said Washtenaw County Medical Society President, Richard Burney, M.D., acknowledging the critical role employer-based health care benefits play in the health system.  “Employer-based health insurance is one of the primary ways of securing access to health care, and the Washtenaw County Medical Society strongly supports the right of employers to extend health insurance coverage to meet their employees' needs."

Kary Moss, Executive Director of the ACLU of Michigan, echoed Dr. Burney’s concern.  “This is an effort to deprive gay and lesbian families and their children of important benefits by limiting the authority of local governments and schools. The Thomas More Center, in its attempt to create a society in accord with its own religious values, is trying to use the statute which defines marriage to deny access to health care to gay and lesbian families.”

The ACLU believes that the current lawsuit is part of a continuing effort by the Thomas More Law Center to prohibit employers from recognizing gay and lesbian employees and affording them equal opportunities in the workplace. 

Similar lawsuits in Florida, Colorado, Illinois, Georgia, Washington, and Wisconsin have failed, according to Kara Jennings, staff attorney for the ACLU’s LGBT Project.

The case, Rhode et al v. Ann Arbor Public Schools, was filed in the Washtenaw County Circuit Court. A motion to dismiss the lawsuit will be heard on December 3, 2003.

The American Civil Liberties Union will present arguments in the first case to review the constitutionality of a controversial section of the PATRIOT Act. The December 3rd hearing in federal district court will mark the first time the Justice Department has been called upon to defend the law in court.

The ACLU lawsuit, filed on July 30, challenges Section 215 of the PATRIOT Act, which vastly expands the power of FBI agents to secretly obtain records and personal belongings of innocent people in the United States, including citizens and permanent residents. 

The ACLU will argue against the government’s motion to dismiss its lawsuit, which was filed on behalf of six nonprofit organizations that provide a wide range of religious, medical, social and educational services to communities around the country. 

In briefs filed earlier this month, the ACLU said that fear of the PATRIOT Act has already caused a dramatic decline in memberships and donations at mosques and forced a church-sponsored group that aids refugees to change its record-keeping practices. 

Judge Denise Page Hood will hear the case.  The court hearing is open to the public.

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Court Will Hear Arguments on December 3 in Challenge to PATRIOT Act

November 26, 2003

The American Civil Liberties Union will present arguments in the first case to review the constitutionality of a controversial section of the PATRIOT Act. The December 3rd hearing in federal district court will mark the first time the Justice Department has been called upon to defend the law in court.

The ACLU lawsuit, filed on July 30, challenges Section 215 of the PATRIOT Act, which vastly expands the power of FBI agents to secretly obtain records and personal belongings of innocent people in the United States, including citizens and permanent residents. 

The ACLU will argue against the government’s motion to dismiss its lawsuit, which was filed on behalf of six nonprofit organizations that provide a wide range of religious, medical, social and educational services to communities around the country. 

In briefs filed earlier this month, the ACLU said that fear of the PATRIOT Act has already caused a dramatic decline in memberships and donations at mosques and forced a church-sponsored group that aids refugees to change its record-keeping practices. 

Judge Denise Page Hood will hear the case.  The court hearing is open to the public.

DETROIT – In a precedent-setting settlement, the Ypsilanti Housing Commission (YHC) has agreed to end a policy that led to the eviction of domestic violence victims. The YHC had relied on a “one-strike rule” in its lease that permitted it to evict tenants if there was any violence in a tenant’s apartment – even if the tenant was the victim of the violence.

“Ending this policy will prevent women from being twice victimized, first by an abuser and again by the housing authority,” said Kary Moss, ACLU of Michigan Executive Director.  “This settlement should send a message to landlords throughout the state that they cannot throw women out on the street because they are victims of domestic violence.”

In 2002, the ACLU filed a case in both federal court and Washtenaw County Circuit Court on behalf of Aaronica Warren, a single mother and then-VISTA volunteer who was living in public housing run by the Ypsilanti Housing Commission (YHC).

On February 29, 2000, after Ms. Warren had put her son down to bed, a former boyfriend forced his way into the apartment and immediately became abusive.  He threw Ms. Warren into the entertainment center and then picked her off the ground, dragged her outside and threw her face first into the pavement.

Ms. Warren called the police to report the assault.  When the YHC learned about the incident, it went to court in an unsuccessful attempt to evict Ms. Warren and her son from the apartment. 

The ACLU argued in its lawsuits that since victims of domestic violence are almost always women, the policy of evicting domestic violence victims was unlawful sex discrimination in violation of the federal fair housing act and the Michigan civil rights law.

Under the settlement agreement, the YHC has agreed to no longer enforce the no-strike rule against domestic violence victims.  It also agreed to pay Ms. Warren money damages for the stress and humiliation she faced in having to defend against the eviction. 

“I’m grateful that nobody else will have to go through the humiliation of facing eviction because they get attacked in their own apartment,” said Ms. Warren.  “I thought the housing commission would help me, but instead they tried to throw me and my son out on the street.”

Pam Kisch, director of the Fair Housing Center of Washtenaw County, who worked on the case with the ACLU said, “Congratulations to Aaronica Warren on her victory. She has opened the door for all victims of domestic violence who have been evicted or denied housing because they have been battered.”

While the settlement was the first of its kind in the state and the second in the country, it is not the first time the ACLU has heard of this practice.

“We have received reports of landlords evicting domestic violence evictions in other parts of the state, including Oakland County and Ingham County,” said Michael J. Steinberg, legal director of the Michigan ACLU.  “If this settlement does not deter landlords from continuing this horrendous practice, we stand ready to file additional cases.”

In 2001, a similar case was settled in a case filed against a private landlord in Oregon by the Department of Justice, the National ACLU and others. See http://www.aclu.org/WomensRights/WomensRights.cfm?ID=10235&c=173.
 
The case was litigated by ACLU Cooperating Attorneys Debra McCulloch, William Thacker and Michael Honeycutt from the law firm of Dykema Gosset.

Read the article in the Ann Arbor News.

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Domestic Violence Victims Will No Longer Be Evicted

December 10, 2003

DETROIT – In a precedent-setting settlement, the Ypsilanti Housing Commission (YHC) has agreed to end a policy that led to the eviction of domestic violence victims. The YHC had relied on a “one-strike rule” in its lease that permitted it to evict tenants if there was any violence in a tenant’s apartment – even if the tenant was the victim of the violence.

“Ending this policy will prevent women from being twice victimized, first by an abuser and again by the housing authority,” said Kary Moss, ACLU of Michigan Executive Director.  “This settlement should send a message to landlords throughout the state that they cannot throw women out on the street because they are victims of domestic violence.”

In 2002, the ACLU filed a case in both federal court and Washtenaw County Circuit Court on behalf of Aaronica Warren, a single mother and then-VISTA volunteer who was living in public housing run by the Ypsilanti Housing Commission (YHC).

On February 29, 2000, after Ms. Warren had put her son down to bed, a former boyfriend forced his way into the apartment and immediately became abusive.  He threw Ms. Warren into the entertainment center and then picked her off the ground, dragged her outside and threw her face first into the pavement.

Ms. Warren called the police to report the assault.  When the YHC learned about the incident, it went to court in an unsuccessful attempt to evict Ms. Warren and her son from the apartment. 

The ACLU argued in its lawsuits that since victims of domestic violence are almost always women, the policy of evicting domestic violence victims was unlawful sex discrimination in violation of the federal fair housing act and the Michigan civil rights law.

Under the settlement agreement, the YHC has agreed to no longer enforce the no-strike rule against domestic violence victims.  It also agreed to pay Ms. Warren money damages for the stress and humiliation she faced in having to defend against the eviction. 

“I’m grateful that nobody else will have to go through the humiliation of facing eviction because they get attacked in their own apartment,” said Ms. Warren.  “I thought the housing commission would help me, but instead they tried to throw me and my son out on the street.”

Pam Kisch, director of the Fair Housing Center of Washtenaw County, who worked on the case with the ACLU said, “Congratulations to Aaronica Warren on her victory. She has opened the door for all victims of domestic violence who have been evicted or denied housing because they have been battered.”

While the settlement was the first of its kind in the state and the second in the country, it is not the first time the ACLU has heard of this practice.

“We have received reports of landlords evicting domestic violence evictions in other parts of the state, including Oakland County and Ingham County,” said Michael J. Steinberg, legal director of the Michigan ACLU.  “If this settlement does not deter landlords from continuing this horrendous practice, we stand ready to file additional cases.”

In 2001, a similar case was settled in a case filed against a private landlord in Oregon by the Department of Justice, the National ACLU and others. See http://www.aclu.org/WomensRights/WomensRights.cfm?ID=10235&c=173.
 
The case was litigated by ACLU Cooperating Attorneys Debra McCulloch, William Thacker and Michael Honeycutt from the law firm of Dykema Gosset.

Read the article in the Ann Arbor News.

DETROIT – After anti-choice groups filed their language with the Board of Canvassers today for a citizen’s initiative to ban so-called “partial birth abortion,” the ACLU of Michigan announced today that it is prepared to take this issue to court again, if necessary.

“The initiative is an end-run around Governor Granholm’s effort to protect women’s reproductive rights in Michigan,” said Kary Moss, ACLU of Michigan Executive Director. “This effort to eliminate all abortions, like all the legislation before it, remains unconstitutional.  Medical decisions should still only be made by a woman in consult with her physician.”

Right to Life and the Catholic Conference are driving the petition initiative after SB 395, the "legal birth definition act," passed the House and Senate, but was vetoed by the Governor in October.  Like the previous two Michigan bills, successfully challenged by the ACLU in federal courts, SB 395 contained no health exception. 

A citizen initiative requires collecting, in a 180-day period, an amount of valid signatures equal to or greater than 8 percent of the number of people who voted in the most recent gubernatorial election.  The signatures would then be submitted to the Legislature.  A majority of both houses is all that is needed to approve the constitutional amendment and it is not subject to a gubernatorial override.

“Considering the current heavily Right-to-Life endorsed legislature, there is little doubt that the citizen’s initiative will pass the legislature and become part of the Michigan Constitution,” Moss added. “Every signature on a petition is akin to a vote – the ACLU of Michigan urges citizens to refuse to sign the petition.” 

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ACLU Prepared to Fight Anti-Choice Initiative

December 11, 2003

DETROIT – After anti-choice groups filed their language with the Board of Canvassers today for a citizen’s initiative to ban so-called “partial birth abortion,” the ACLU of Michigan announced today that it is prepared to take this issue to court again, if necessary.

“The initiative is an end-run around Governor Granholm’s effort to protect women’s reproductive rights in Michigan,” said Kary Moss, ACLU of Michigan Executive Director. “This effort to eliminate all abortions, like all the legislation before it, remains unconstitutional.  Medical decisions should still only be made by a woman in consult with her physician.”

Right to Life and the Catholic Conference are driving the petition initiative after SB 395, the "legal birth definition act," passed the House and Senate, but was vetoed by the Governor in October.  Like the previous two Michigan bills, successfully challenged by the ACLU in federal courts, SB 395 contained no health exception. 

A citizen initiative requires collecting, in a 180-day period, an amount of valid signatures equal to or greater than 8 percent of the number of people who voted in the most recent gubernatorial election.  The signatures would then be submitted to the Legislature.  A majority of both houses is all that is needed to approve the constitutional amendment and it is not subject to a gubernatorial override.

“Considering the current heavily Right-to-Life endorsed legislature, there is little doubt that the citizen’s initiative will pass the legislature and become part of the Michigan Constitution,” Moss added. “Every signature on a petition is akin to a vote – the ACLU of Michigan urges citizens to refuse to sign the petition.” 

DETROIT – The ACLU of Michigan emailed letters today to 425 city, village, and university attorneys in Michigan urging them to instruct their respective police forces to stop forcing minors to take unconstitutional Breathalyzer tests. The request is based on a recent federal court ruling that forbids officers to compel pedestrians to submit to a breath test unless they first obtain a search warrant from a judge.

“The police may not ignore the Bill of Rights in an attempt to identify and punish underage drinkers,” said Michael J. Steinberg, ACLU of Michigan Legal Director.  “We are confident that when the city, village, and university attorneys read the federal court decision, they will instruct the police to change their practices and abide by the Constitution.”

The court ruling was issued in an ACLU case brought on behalf of a 19-year-old rollerblader, Jamie Spencer, who was forced to take a breath test by the Bay City police even though she had not been drinking.

U.S. District Court Judge David M. Lawson, in a 23-page opinion, struck down the Bay City ordinance that makes it illegal for people under age 21 to refuse to consent to a Breathalyzer test.  The ruling does not apply to drivers of a motor vehicle. Judge Lawson held that the ordinance violates the Fourth Amendment because (1) a breath test is a search, (2) the Fourth Amendment ordinarily prohibits searches without search warrants, and (3) no exceptions to the search warrant requirement apply.

Judge Lawson further emphasized that “the right to be left alone in public places ranks high on the hierarchy of entitlements that citizens in a free society have come to expect at least in the context of citizen-police encounters.”

The ACLU letter states that while Judge Lawson’s decision struck down a Bay City Ordinance, the ordinance is identical to a state law and many ordinances throughout the state, including in Ann Arbor and East Lansing.  It urges the attorneys to instruct police chiefs and campus directors of public safety to change their policies to conform to the Constitution.

“We are asking police to comply with the Constitution and to stop using a tactic that has become common in Michigan, but isn’t used anywhere else in the country,” said cooperating attorney David Moran, who signed the letter with Steinberg.  Michigan is the only state in the country to make it illegal for a minor walking down the street to refuse a Breathalyzer test when the police do not have a search warrant.

For the text of the letter, see: breathalyzercityattorneyletter.pdf

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ACLU Urges That Police Be Instructed to Stop Unconstitutional Breathalyzer Tests

DETROIT – The ACLU of Michigan emailed letters today to 425 city, village, and university attorneys in Michigan urging them to instruct their respective police forces to stop forcing minors to take unconstitutional Breathalyzer tests. The request is based on a recent federal court ruling that forbids officers to compel pedestrians to submit to a breath test unless they first obtain a search warrant from a judge.

“The police may not ignore the Bill of Rights in an attempt to identify and punish underage drinkers,” said Michael J. Steinberg, ACLU of Michigan Legal Director.  “We are confident that when the city, village, and university attorneys read the federal court decision, they will instruct the police to change their practices and abide by the Constitution.”

The court ruling was issued in an ACLU case brought on behalf of a 19-year-old rollerblader, Jamie Spencer, who was forced to take a breath test by the Bay City police even though she had not been drinking.

U.S. District Court Judge David M. Lawson, in a 23-page opinion, struck down the Bay City ordinance that makes it illegal for people under age 21 to refuse to consent to a Breathalyzer test.  The ruling does not apply to drivers of a motor vehicle. Judge Lawson held that the ordinance violates the Fourth Amendment because (1) a breath test is a search, (2) the Fourth Amendment ordinarily prohibits searches without search warrants, and (3) no exceptions to the search warrant requirement apply.

Judge Lawson further emphasized that “the right to be left alone in public places ranks high on the hierarchy of entitlements that citizens in a free society have come to expect at least in the context of citizen-police encounters.”

The ACLU letter states that while Judge Lawson’s decision struck down a Bay City Ordinance, the ordinance is identical to a state law and many ordinances throughout the state, including in Ann Arbor and East Lansing.  It urges the attorneys to instruct police chiefs and campus directors of public safety to change their policies to conform to the Constitution.

“We are asking police to comply with the Constitution and to stop using a tactic that has become common in Michigan, but isn’t used anywhere else in the country,” said cooperating attorney David Moran, who signed the letter with Steinberg.  Michigan is the only state in the country to make it illegal for a minor walking down the street to refuse a Breathalyzer test when the police do not have a search warrant.

For the text of the letter, see: breathalyzercityattorneyletter.pdf

UPDATE: December 18
Muskegon Community College has indicated that they will approve the GSA's application to sponsor a "drag show" on campus.


DETROIT -- The ACLU of Michigan sent a letter to the Muskegon Community College's attorney today urging the colllege to reverse its position and to permit that a gay student group to stage a “drag” show on campus.

The Gay Straight Alliance, a school-recognized group who hope to have the show, followed appropriate procedure for requesting the use of the college cafeteria to present a fundraiser talent show that would include cross-dressing performers.

“Public colleges cannot censor the speech of a particular student organization because it finds such speech to be offensive,” said Jay Kaplan, staff attorney for the Lesbian, Gay, Bisexual and Transgender (LGBT) Project.  “As long as the performance would not materially and substantially disrupt the work and functioning of the college, a talent show sponsored by the GSA and featuring cross-dressing performers is protected by the First Amendment.”

President Marczak denied the student group’s request for the show calling it “sleazy”, citing concerns about the show’s possible sexual innuendo and that such a show would discourage potential financial donors to the college.  Marczak admitted in an interview with the Muskegon Chronicle that his knowledge of “drag” shows is limited to “what I’ve heard and seen on TV.”  Marczak has told the students that they can have a talent show as long as the show does not include “drag” performers.

The ACLU is asking the college to reverse its decision by December 23, 2003, stating  that they are prepared to go to court should MCC not do so.

The text of the letter reads:

December 17, 2003
Donald Veldman
Warner Norcross and Judd LLP
400 Terrace Street
P.O. Box 900
Muskegon, MI 49440
Re:  Muskegon Community College GSA

Dear Mr. Veldman:

As we discussed over the phone, I am the staff attorney for the ACLU of Michigan’s Lesbian Gay Bisexual and Transgender Project.   We are concerned regarding Muskegon Community College (MCC) President Frank Marczak’s decision to deny MCC’s  Gay-Straight Alliance student group the use of cafeteria to present a fundraiser talent show that would include cross-dressing performers.

According to an account in the December 5, 2003 issue of the Muskegon Chronicle and interviews with students and staff, President Marczak vetoed plans for a “drag show,” calling such an event “sleazy.”  It is our understanding that pursuant to MCC’s Student Organization Committee Guidelines for Clubs, the GSA followed the appropriate procedure in requesting use of the cafeteria for its proposed December show, including filling out an event proposal form.  However, Mr. Marczak, upon hearing of a proposed “drag show,” took it upon himself to intervene in this procedure and to deny the GSA’s request.   Mr. Marczak stated that he was concerned that a “drag show” would reflect negatively on MCC’s image and might discourage possible financial donors.  Since the Muskegon Chronicle article’s publication, Mr. Marczak has informed the GSA that it may hold a talent show as long as no cross-dressing performers are part of the show.

In addition, according the GSA’s faculty advisor, Mr. Marczak stated that he would more likely to permit other non-gay groups to hold a “drag show.”  Mr. Marczak now denies having made such statement, but the faculty advisor stands by his account of this conversation.

We believe that Mr. Marcazk’s action denying the GSA members use of the cafeteria because they wish to present a “drag show,” raises serious First Amendment concerns.  Students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”  Tinker v Des Moines Independent Community School District, 393

US 503, 506 (1969).  State community colleges and universities “are not enclaves immune from the sweep of the First Amendment.”  Healy v James, 408 US 169 (1972).     The college classroom and campus facilities are the “marketplace of ideas.”  Keyishian v Board of Regents, 385 US 589, 603 (1967)..

Public colleges are recognized as limited public forums open to students and other selected groups.  Widmar v Vincent, 454 US 263 (1981).   When permitting student organizations to utilize school facilities for activities and events, appropriate time, place and manner restrictions on free speech are permissible.  However, a state college many not suppress expression because it finds that expression offensive.  See Iota IX Chapter of Sigma Chi v George Mason University, 773 F Supp 792 (ED Va 1991) (Fraternity’s sponsorship of contest in which members dress as caricatures of “ugly women” expression protected by the First Amendment);   See also  Swope v Lubbers, 560 F Supp 1021 (WD Mich 1983) (Grand Valley State’s refusal to transfer funds requested by student group to show X-rated film held to violate First Amendment rights).

This is not a situation where the GSA failed to follow proper procedures for requesting the use of school facilities to hold an event.  Mr. Marczak has denied the GSA’s request solely because he disagrees with the type of talent show the GSA wishes to produce.   A community college may not censor the speech of a particular student organization because it finds such speech to be abhorrent.   Healey, 408 US at 179.  The First Amendment does not recognize exceptions for ideas or matters some may deem trivial, vulgar or profane.  Iota IX Chapter of Sigma Chi, 773 F Supp  at 795.  

While President Marczak has cited his concerns that permitting the GSA to hold a “drag show” may deter some potential funders to the state college, this is not a compelling interest to satisfy the strict scrutiny standard for denial of First Amendment rights.  Widmar, 454 US at 272.     Furthermore, President Marczak has failed to allege that such performance would materially and substantially disrupt the work and functioning of MCC.  See Tinker, 393 US at 513.

We are requesting that President Marczak reverse his decision and permit the GSA to hold a “drag show” on campus.   Mr. Marczak’s suggestions that the GSA can have a talent show without cross-dressing performers or that he would permit a show without “sexual innuendo” are unacceptable.  We believe that the law is very clear on this matter and are prepared to litigate this issue.  Accordingly, we would appreciate a response to our request by December 23, 2003.  Thank you for your attention to this matter.

Sincerely,
Jay Kaplan, LGBT Project Staff Attorney
Peter J. Armstrong, President, Western Branch ACLU of Michigan

To read the story in the Muskegon Chronicle, click on http://www.mlive.com/news/muchronicle/index.ssf?/base/news-3/107176412911808

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Muskegon Community College President Urged to Allow "Drag Show" on Campus

December 17, 2003

UPDATE: December 18
Muskegon Community College has indicated that they will approve the GSA's application to sponsor a "drag show" on campus.


DETROIT -- The ACLU of Michigan sent a letter to the Muskegon Community College's attorney today urging the colllege to reverse its position and to permit that a gay student group to stage a “drag” show on campus.

The Gay Straight Alliance, a school-recognized group who hope to have the show, followed appropriate procedure for requesting the use of the college cafeteria to present a fundraiser talent show that would include cross-dressing performers.

“Public colleges cannot censor the speech of a particular student organization because it finds such speech to be offensive,” said Jay Kaplan, staff attorney for the Lesbian, Gay, Bisexual and Transgender (LGBT) Project.  “As long as the performance would not materially and substantially disrupt the work and functioning of the college, a talent show sponsored by the GSA and featuring cross-dressing performers is protected by the First Amendment.”

President Marczak denied the student group’s request for the show calling it “sleazy”, citing concerns about the show’s possible sexual innuendo and that such a show would discourage potential financial donors to the college.  Marczak admitted in an interview with the Muskegon Chronicle that his knowledge of “drag” shows is limited to “what I’ve heard and seen on TV.”  Marczak has told the students that they can have a talent show as long as the show does not include “drag” performers.

The ACLU is asking the college to reverse its decision by December 23, 2003, stating  that they are prepared to go to court should MCC not do so.

The text of the letter reads:

December 17, 2003
Donald Veldman
Warner Norcross and Judd LLP
400 Terrace Street
P.O. Box 900
Muskegon, MI 49440
Re:  Muskegon Community College GSA

Dear Mr. Veldman:

As we discussed over the phone, I am the staff attorney for the ACLU of Michigan’s Lesbian Gay Bisexual and Transgender Project.   We are concerned regarding Muskegon Community College (MCC) President Frank Marczak’s decision to deny MCC’s  Gay-Straight Alliance student group the use of cafeteria to present a fundraiser talent show that would include cross-dressing performers.

According to an account in the December 5, 2003 issue of the Muskegon Chronicle and interviews with students and staff, President Marczak vetoed plans for a “drag show,” calling such an event “sleazy.”  It is our understanding that pursuant to MCC’s Student Organization Committee Guidelines for Clubs, the GSA followed the appropriate procedure in requesting use of the cafeteria for its proposed December show, including filling out an event proposal form.  However, Mr. Marczak, upon hearing of a proposed “drag show,” took it upon himself to intervene in this procedure and to deny the GSA’s request.   Mr. Marczak stated that he was concerned that a “drag show” would reflect negatively on MCC’s image and might discourage possible financial donors.  Since the Muskegon Chronicle article’s publication, Mr. Marczak has informed the GSA that it may hold a talent show as long as no cross-dressing performers are part of the show.

In addition, according the GSA’s faculty advisor, Mr. Marczak stated that he would more likely to permit other non-gay groups to hold a “drag show.”  Mr. Marczak now denies having made such statement, but the faculty advisor stands by his account of this conversation.

We believe that Mr. Marcazk’s action denying the GSA members use of the cafeteria because they wish to present a “drag show,” raises serious First Amendment concerns.  Students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”  Tinker v Des Moines Independent Community School District, 393

US 503, 506 (1969).  State community colleges and universities “are not enclaves immune from the sweep of the First Amendment.”  Healy v James, 408 US 169 (1972).     The college classroom and campus facilities are the “marketplace of ideas.”  Keyishian v Board of Regents, 385 US 589, 603 (1967)..

Public colleges are recognized as limited public forums open to students and other selected groups.  Widmar v Vincent, 454 US 263 (1981).   When permitting student organizations to utilize school facilities for activities and events, appropriate time, place and manner restrictions on free speech are permissible.  However, a state college many not suppress expression because it finds that expression offensive.  See Iota IX Chapter of Sigma Chi v George Mason University, 773 F Supp 792 (ED Va 1991) (Fraternity’s sponsorship of contest in which members dress as caricatures of “ugly women” expression protected by the First Amendment);   See also  Swope v Lubbers, 560 F Supp 1021 (WD Mich 1983) (Grand Valley State’s refusal to transfer funds requested by student group to show X-rated film held to violate First Amendment rights).

This is not a situation where the GSA failed to follow proper procedures for requesting the use of school facilities to hold an event.  Mr. Marczak has denied the GSA’s request solely because he disagrees with the type of talent show the GSA wishes to produce.   A community college may not censor the speech of a particular student organization because it finds such speech to be abhorrent.   Healey, 408 US at 179.  The First Amendment does not recognize exceptions for ideas or matters some may deem trivial, vulgar or profane.  Iota IX Chapter of Sigma Chi, 773 F Supp  at 795.  

While President Marczak has cited his concerns that permitting the GSA to hold a “drag show” may deter some potential funders to the state college, this is not a compelling interest to satisfy the strict scrutiny standard for denial of First Amendment rights.  Widmar, 454 US at 272.     Furthermore, President Marczak has failed to allege that such performance would materially and substantially disrupt the work and functioning of MCC.  See Tinker, 393 US at 513.

We are requesting that President Marczak reverse his decision and permit the GSA to hold a “drag show” on campus.   Mr. Marczak’s suggestions that the GSA can have a talent show without cross-dressing performers or that he would permit a show without “sexual innuendo” are unacceptable.  We believe that the law is very clear on this matter and are prepared to litigate this issue.  Accordingly, we would appreciate a response to our request by December 23, 2003.  Thank you for your attention to this matter.

Sincerely,
Jay Kaplan, LGBT Project Staff Attorney
Peter J. Armstrong, President, Western Branch ACLU of Michigan

To read the story in the Muskegon Chronicle, click on http://www.mlive.com/news/muchronicle/index.ssf?/base/news-3/107176412911808

Michigan’s attempt to impose mandatory drug tests on all welfare recipients has finally come to an end, the American Civil Liberties Union announced today after a settlement was reached with the Family Independence Agency (FIA). The FIA can now require drug testing of welfare recipients only where there is a reasonable suspicion that the recipient is using drugs.

“We’re very pleased that State the now recognizes that being poor is not a crime,” said Kary Moss, Executive Director of the Michigan ACLU and an attorney in the case.  “Low-income parents can be assured that they won’t have to choose between providing for their children and relinquishing their privacy rights.”
 
The settlement ends a seven year battle that began in the Michigan Legislature in 1997.  The ACLU filed the class-action lawsuit in September 1999 on behalf of all Michigan welfare recipients who would be denied income support and other benefits for other children if they refused to submit to random drug testing or failed to comply with a mandatory "substance abuse treatment plan."  

“This settlement should send a message to the rest of the nation that drug testing programs like these are neither an appropriate nor effective use of a state’s limited resources,” said Graham Boyd, director of the National ACLU Drug Policy Litigation Project, who argued the case in the U.S. Court of Appeals for the Sixth Circuit.

In April 2000, U.S. District Court Judge Victoria Roberts issued a preliminary injunction against enforcement of the law.  She wrote that drug testing an entire class of citizens simply because they are poor “would be dangerously at odds with the tenets of our democracy.”  In April 2003, appeals court affirmed that decision.

Before the ACLU filed its lawsuit, Michigan was the only state in the country that required all welfare applicants to submit to drug testing without suspicion of drug use. 

In the five weeks that the program was in effect, the drug tests were positive in only 8 percent of the cases, a percentage that is consistent with drug use in the general population.  Of 268 people tested, only 21 tested positive for drugs and all but 3 were for marijuana.

In addition to Moss and Boyd, other attorneys who litigated the case for the ACLU were Robert Sedler, Cameron Getto, David Getto and Michael J. Steinberg.

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Settlement Reached in Lawsuit Over Mandatory Drug Testing of Welfare Recipients

December 18, 2003

Michigan’s attempt to impose mandatory drug tests on all welfare recipients has finally come to an end, the American Civil Liberties Union announced today after a settlement was reached with the Family Independence Agency (FIA). The FIA can now require drug testing of welfare recipients only where there is a reasonable suspicion that the recipient is using drugs.

“We’re very pleased that State the now recognizes that being poor is not a crime,” said Kary Moss, Executive Director of the Michigan ACLU and an attorney in the case.  “Low-income parents can be assured that they won’t have to choose between providing for their children and relinquishing their privacy rights.”
 
The settlement ends a seven year battle that began in the Michigan Legislature in 1997.  The ACLU filed the class-action lawsuit in September 1999 on behalf of all Michigan welfare recipients who would be denied income support and other benefits for other children if they refused to submit to random drug testing or failed to comply with a mandatory "substance abuse treatment plan."  

“This settlement should send a message to the rest of the nation that drug testing programs like these are neither an appropriate nor effective use of a state’s limited resources,” said Graham Boyd, director of the National ACLU Drug Policy Litigation Project, who argued the case in the U.S. Court of Appeals for the Sixth Circuit.

In April 2000, U.S. District Court Judge Victoria Roberts issued a preliminary injunction against enforcement of the law.  She wrote that drug testing an entire class of citizens simply because they are poor “would be dangerously at odds with the tenets of our democracy.”  In April 2003, appeals court affirmed that decision.

Before the ACLU filed its lawsuit, Michigan was the only state in the country that required all welfare applicants to submit to drug testing without suspicion of drug use. 

In the five weeks that the program was in effect, the drug tests were positive in only 8 percent of the cases, a percentage that is consistent with drug use in the general population.  Of 268 people tested, only 21 tested positive for drugs and all but 3 were for marijuana.

In addition to Moss and Boyd, other attorneys who litigated the case for the ACLU were Robert Sedler, Cameron Getto, David Getto and Michael J. Steinberg.

In a televised interview with Diane Sawyer that aired on December 16, 2003 President Bush stated that he would support a United States Constitutional Amendment to ban same-sex marriage.

Given the great influence that presidential support can have on proposed legislation in Congress, now more than ever it is essential that you contact both your United States Senators (Carl Levin and Debbie Stabenow) and your Representative (see link to find your representative) to voice your opposition to this proposed amendment.

The proposed federal amendment to the United States Constitution goes much further than banning same-sex marriage (which already is banned by the current federal law, entitled the Defense of Marriage Act). The amendment would ban any form of governmental recognition of same-sex relationships, including civil unions. States such as Vermont which provide for civil unions, as well as California and Hawaii which provide for domestic partner benefits would be precluded from doing so.

Such an amendment would foreclose any constitutional legal challenge to the denial of recognition of same-sex relationships.

The proposed amendment goes against the history and tradition of amendments to our United States Constitution which has been amended only 17 times in more than 225 years. Unlike this proposal which would codify discrimination against a certain group of individuals, the constitution has only been amended to expand the rights of United States citizens. Polls show that a majority of Americans, even those who oppose same-sex marriage, are against tinkering with the Constitution to promote discrimination.

Call your Senators and Representatives and let them know your opposition.

To find your Representative:

http://www.house.gov/representatives/

http://www.senate.gov/general/contact_information/senators_cfm.cfm

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Write to Congress Now About Anti-Marriage Amendment

In a televised interview with Diane Sawyer that aired on December 16, 2003 President Bush stated that he would support a United States Constitutional Amendment to ban same-sex marriage.

Given the great influence that presidential support can have on proposed legislation in Congress, now more than ever it is essential that you contact both your United States Senators (Carl Levin and Debbie Stabenow) and your Representative (see link to find your representative) to voice your opposition to this proposed amendment.

The proposed federal amendment to the United States Constitution goes much further than banning same-sex marriage (which already is banned by the current federal law, entitled the Defense of Marriage Act). The amendment would ban any form of governmental recognition of same-sex relationships, including civil unions. States such as Vermont which provide for civil unions, as well as California and Hawaii which provide for domestic partner benefits would be precluded from doing so.

Such an amendment would foreclose any constitutional legal challenge to the denial of recognition of same-sex relationships.

The proposed amendment goes against the history and tradition of amendments to our United States Constitution which has been amended only 17 times in more than 225 years. Unlike this proposal which would codify discrimination against a certain group of individuals, the constitution has only been amended to expand the rights of United States citizens. Polls show that a majority of Americans, even those who oppose same-sex marriage, are against tinkering with the Constitution to promote discrimination.

Call your Senators and Representatives and let them know your opposition.

To find your Representative:

http://www.house.gov/representatives/

http://www.senate.gov/general/contact_information/senators_cfm.cfm

DETROIT – The California-based Pacific Legal Foundation and the American Civil Liberties Union of Michigan joined forces today by filing a friend of the court brief to ask the Michigan Supreme Court to overrule a 20-year-old decision that allows powerful corporations to seize private property for their own private interests.

In an unusual alliance, the two organizations, both nationally recognized for their defense of individual liberties, jointly filed in Wayne County v. Hathcock, urging the court to overturn the landmark case, Poletown Neighborhood Council v. City of Detroit, that allowed Detroit to condemn a low-income neighborhood known as Poletown, and sell the land at a discount to auto giant General Motors in 1981.

"The consequences of the Poletown decision for property owners across America have been disastrous, especially in low-income neighborhoods," said PLF attorney Timothy Sandefur. "It has created an inequitable policy of corporate welfare allowing wealthy and powerful interests to take other people’s land for their own profit usually at the expense of the poor and underrepresented."

"The government should not be in the business of taking private property to sell to private interests," said ACLU Executive Director Kary Moss. "The Poletown decision has been abused and private land has been given away to the detriment of the poor."

Wayne County is currently seeking to condemn 1,300 acres of land to construct a business park adjacent to Detroit Metro Airport, including a conference center and hotel. The county contends that the business park would increase tax revenue and generate employment, a "public benefit" that satisfies the Michigan Constitution’s public use limitation under Poletown.

As was true in the case involving Poletown, this case has captured national attention since the Michigan Supreme Court invited comment on their previous decision. In Poletown, the court agreed with Detroit that the public benefit of taking the land outweighed the arguments of the people living in the community.

Detroit condemned the neighborhood known as Poletown and sold the land to General Motors (GM) to build an auto plant. Homeowners sued, arguing that the Michigan Constitution declares government may only take property for "a public use," such as a post office or a road, and that GM would be using the property for a private use instead. The city argued that the GM plant would create jobs, and that this public benefit was good enough under the state Constitution.

According to the brief, over the last twenty years, many courts across the nation have followed the Poletown decision, often finding that anything the legislature considers beneficial is a "public use." The organizations argue that the use of eminent domain impacts the poor and minorities more harshly because they have less political influence and fewer resources to fight the government.

"The Pacific Legal Foundation hopes that the court will use this case as an opportunity to give Michiganders more security for their private property rights," added Sandefur.

The brief can be found online at: www.aclumich.org/pdf/briefs/poletownamicusbrief.pdf

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Liberties Groups Ask Court to Overturn Poletown Decision

January 12, 2004

DETROIT – The California-based Pacific Legal Foundation and the American Civil Liberties Union of Michigan joined forces today by filing a friend of the court brief to ask the Michigan Supreme Court to overrule a 20-year-old decision that allows powerful corporations to seize private property for their own private interests.

In an unusual alliance, the two organizations, both nationally recognized for their defense of individual liberties, jointly filed in Wayne County v. Hathcock, urging the court to overturn the landmark case, Poletown Neighborhood Council v. City of Detroit, that allowed Detroit to condemn a low-income neighborhood known as Poletown, and sell the land at a discount to auto giant General Motors in 1981.

"The consequences of the Poletown decision for property owners across America have been disastrous, especially in low-income neighborhoods," said PLF attorney Timothy Sandefur. "It has created an inequitable policy of corporate welfare allowing wealthy and powerful interests to take other people’s land for their own profit usually at the expense of the poor and underrepresented."

"The government should not be in the business of taking private property to sell to private interests," said ACLU Executive Director Kary Moss. "The Poletown decision has been abused and private land has been given away to the detriment of the poor."

Wayne County is currently seeking to condemn 1,300 acres of land to construct a business park adjacent to Detroit Metro Airport, including a conference center and hotel. The county contends that the business park would increase tax revenue and generate employment, a "public benefit" that satisfies the Michigan Constitution’s public use limitation under Poletown.

As was true in the case involving Poletown, this case has captured national attention since the Michigan Supreme Court invited comment on their previous decision. In Poletown, the court agreed with Detroit that the public benefit of taking the land outweighed the arguments of the people living in the community.

Detroit condemned the neighborhood known as Poletown and sold the land to General Motors (GM) to build an auto plant. Homeowners sued, arguing that the Michigan Constitution declares government may only take property for "a public use," such as a post office or a road, and that GM would be using the property for a private use instead. The city argued that the GM plant would create jobs, and that this public benefit was good enough under the state Constitution.

According to the brief, over the last twenty years, many courts across the nation have followed the Poletown decision, often finding that anything the legislature considers beneficial is a "public use." The organizations argue that the use of eminent domain impacts the poor and minorities more harshly because they have less political influence and fewer resources to fight the government.

"The Pacific Legal Foundation hopes that the court will use this case as an opportunity to give Michiganders more security for their private property rights," added Sandefur.

The brief can be found online at: www.aclumich.org/pdf/briefs/poletownamicusbrief.pdf

Michigan’s anti-gay organizations have mobilized to pressure Michigan’s Senators to take action on Senate Joint Resolution E (SJR E), a pending amendment to the state Constitution, by mid-February.

Your help is needed to ensure that the resolution fails.

The proposed amendment would amend Michigan’s Declaration of Rights to prohibit the recognition of not only same-sex marriage, but also civil unions and domestic partnerships – gay or straight.

Hearings will be held in the next few weeks and anti-gay groups hope a vote will occur by the end of February.

SJR E needlessly creates a divisive issue during difficult times, duplicates existing statutes, limits the authority of local governments, and creates ambiguities in the law, it must be rejected.  Please speak out in favor of tolerance and urge your Senator to reject this proposal.

Contact your state senator and representative (see update below) now and keep the letters coming until the end of February.  Please forward this alert on. 

Find your senator at:  http://www.senate.state.mi.us/SenatorInfo/find-your-senator.htm

Find your representative at: http://house.michigan.gov/find_a_rep.asp

Sample comments:

*Senator Cropsey’s proposal would seize authority from democratically elected local officials, state school board members, and university regents who have adopted policies which treat gay, lesbian, bisexual, and transgender individuals and their families equally. 

*The proposal is discriminatory and unnecessary.  A constitution should be amended only when clearly necessary.  If the goal of the proposed amendment is to ensure that marriage is limited to opposite sex couples, that goal has already been accomplished by statute.

*The proposed state constitutional amendment will needlessly divide the community. Even those who do not think the institution of marriage should be extended to same-sex couples oppose the idea of amending the constitution in this fashion, according to a September 22, 2003 ABC News poll (6 out of 10 Americans oppose a constitutional amendment banning same-sex marriage even if they're generally opposed to such unions).

*Regardless of one’s perspective of the propriety of homosexuality, gay and lesbian families – including the parents and children of gay and lesbian individuals – suffer when the law does not recognize such relationships. 

*This struggle is not about special rights, but equality.  By altering Michigan’s Declaration of Rights in this way, little is done to “preserve the benefits of marriage for [Michigan’s] children,” as Senator Cropsey claims. 

UPDATE - House Joint Resolution U Introduced in Michigan House of Representatives

On January 22, 2004 Representative Gary Newell introduced the House companion piece to Senator Alan Cropsey’s proposed constitutional amendment to ban same-sex marriage and any form of recognition of same-sex relationships. 

The House bill has the same wording as the Senate version and would prevent local governments and colleges from recognizing domestic partners of both hetereosexual and homosexual individuals. 

The current strategy appears to be letting the amendment first pass the House, in order to put pressure on the Senate to follow suit. 

Contact your state representative and let her/him know that you oppose writing discrimination into the state constitution and putting LGBT families and their children at risk. 

UPDATED ON 1/30/04

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Hearings Likely on Anti-Same Sex Marriage Amendment

January 16, 2004

Michigan’s anti-gay organizations have mobilized to pressure Michigan’s Senators to take action on Senate Joint Resolution E (SJR E), a pending amendment to the state Constitution, by mid-February.

Your help is needed to ensure that the resolution fails.

The proposed amendment would amend Michigan’s Declaration of Rights to prohibit the recognition of not only same-sex marriage, but also civil unions and domestic partnerships – gay or straight.

Hearings will be held in the next few weeks and anti-gay groups hope a vote will occur by the end of February.

SJR E needlessly creates a divisive issue during difficult times, duplicates existing statutes, limits the authority of local governments, and creates ambiguities in the law, it must be rejected.  Please speak out in favor of tolerance and urge your Senator to reject this proposal.

Contact your state senator and representative (see update below) now and keep the letters coming until the end of February.  Please forward this alert on. 

Find your senator at:  http://www.senate.state.mi.us/SenatorInfo/find-your-senator.htm

Find your representative at: http://house.michigan.gov/find_a_rep.asp

Sample comments:

*Senator Cropsey’s proposal would seize authority from democratically elected local officials, state school board members, and university regents who have adopted policies which treat gay, lesbian, bisexual, and transgender individuals and their families equally. 

*The proposal is discriminatory and unnecessary.  A constitution should be amended only when clearly necessary.  If the goal of the proposed amendment is to ensure that marriage is limited to opposite sex couples, that goal has already been accomplished by statute.

*The proposed state constitutional amendment will needlessly divide the community. Even those who do not think the institution of marriage should be extended to same-sex couples oppose the idea of amending the constitution in this fashion, according to a September 22, 2003 ABC News poll (6 out of 10 Americans oppose a constitutional amendment banning same-sex marriage even if they're generally opposed to such unions).

*Regardless of one’s perspective of the propriety of homosexuality, gay and lesbian families – including the parents and children of gay and lesbian individuals – suffer when the law does not recognize such relationships. 

*This struggle is not about special rights, but equality.  By altering Michigan’s Declaration of Rights in this way, little is done to “preserve the benefits of marriage for [Michigan’s] children,” as Senator Cropsey claims. 

UPDATE - House Joint Resolution U Introduced in Michigan House of Representatives

On January 22, 2004 Representative Gary Newell introduced the House companion piece to Senator Alan Cropsey’s proposed constitutional amendment to ban same-sex marriage and any form of recognition of same-sex relationships. 

The House bill has the same wording as the Senate version and would prevent local governments and colleges from recognizing domestic partners of both hetereosexual and homosexual individuals. 

The current strategy appears to be letting the amendment first pass the House, in order to put pressure on the Senate to follow suit. 

Contact your state representative and let her/him know that you oppose writing discrimination into the state constitution and putting LGBT families and their children at risk. 

UPDATED ON 1/30/04

Decline to Sign the Petition

In Michigan, Right to Life and the Catholic Conference have just begun a petition drive in an attempt to do an end-run around SB 395, the "legal birth definition act" – legislation vetoed by Governor Granholm last October.

Supporters of this initiative mischaracterize this as a ban on so-called “partial birth abortions,” an emotive and deceptive term invented by anti-choice activists, but the bill does not identify a particular abortion procedure and would outlaw even 1st and 2nd trimester abortions. 

According to a letter to the governor urging her veto, 28 doctors and nurses from the University of Michigan Health System stated that the act “misstates medical fact and could adversely impact the medical management of birth.” 

Private and personal medical decisions, including those regarding reproductive health, should only be made by a woman in consult with her physician. A woman’s interests are best served when a physician, not a politician, determines the best course for her medical treatment.

If sufficient signatures are collected, the legislature can enact the law with a simple majority vote which is not subject to a gubernatorial veto. If the legislature does not enact the law, the issue automatically goes to a ballot proposal in the next general election.

If asked to sign this petition, DECLINE TO SIGN. Your signature on a petition is akin to a vote.

To review the bill: http://mileg.org/mileg.asp?page=getObject&objName=2003-SB-0395

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Petition to Ban Safe and Legal Abortions

January 27, 2004

Decline to Sign the Petition

In Michigan, Right to Life and the Catholic Conference have just begun a petition drive in an attempt to do an end-run around SB 395, the "legal birth definition act" – legislation vetoed by Governor Granholm last October.

Supporters of this initiative mischaracterize this as a ban on so-called “partial birth abortions,” an emotive and deceptive term invented by anti-choice activists, but the bill does not identify a particular abortion procedure and would outlaw even 1st and 2nd trimester abortions. 

According to a letter to the governor urging her veto, 28 doctors and nurses from the University of Michigan Health System stated that the act “misstates medical fact and could adversely impact the medical management of birth.” 

Private and personal medical decisions, including those regarding reproductive health, should only be made by a woman in consult with her physician. A woman’s interests are best served when a physician, not a politician, determines the best course for her medical treatment.

If sufficient signatures are collected, the legislature can enact the law with a simple majority vote which is not subject to a gubernatorial veto. If the legislature does not enact the law, the issue automatically goes to a ballot proposal in the next general election.

If asked to sign this petition, DECLINE TO SIGN. Your signature on a petition is akin to a vote.

To review the bill: http://mileg.org/mileg.asp?page=getObject&objName=2003-SB-0395

DETROIT – In a victory for women prisoners, the American Civil Liberties Union of Michigan announced today that a tentative settlement agreement was reached in a class-action lawsuit to remedy Livingston County’s refusal to allow women in the jail to use the work release program and mistreatment of women prisoners. Though the final agreement is awaiting the judge’s signature, news of the settlement was disclosed by the Livingston County Undersheriff yesterday.

“This settlement will be a real victory for women inmates who were denied access to the jail’s work release program and who were victims of extreme privacy violations by male guards,” said Kary Moss, ACLU of Michigan Executive Director.

Michael Pitt, one of the ACLU cooperating attorneys involved in the case, added, “This settlement not only benefits the 131 women who are currently part of this class-action lawsuit, but will have enormous impact on any women who are in the Livingston County Jail in the future.”

The settlement includes:

  •  $850,000 settlement for privacy violations and denial of access to the work release program
  • The building of a six-bed dormitory-style unit to accommodate work release inmates, similar to the existing unit for men, for women charged with lesser offenses;
  • Shower curtains to ensure privacy in the shower area;
  • A privacy wall surrounding the toilet area in the holding area;
  • Prohibition on cross-gender pat-downs when a same gender corrections officer is on shift;
  • Pads or mattresses consistent with health and safety concerns for inmates housed overnight in the holding area;
  • Trustee assignments for qualified female inmates, similar to those assignments given to male inmates;
  • Sensitivity training for new personnel pursuant to the standards of the Michigan Department of Corrections.

 The case, Cox v. Horman, was filed in 2000 only after significant efforts were made to get jail authorities to improve treatment without a lawsuit. 

 Deborah LaBelle, a nationally known expert on women in prison was a cooperating attorney in addition to Michael and Peggy Pitt of Pitt, Dowty, McGehee, Mirer and Palmer.

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Agreement Near in Livingston County Jail Lawsuit

February 10, 2004

DETROIT – In a victory for women prisoners, the American Civil Liberties Union of Michigan announced today that a tentative settlement agreement was reached in a class-action lawsuit to remedy Livingston County’s refusal to allow women in the jail to use the work release program and mistreatment of women prisoners. Though the final agreement is awaiting the judge’s signature, news of the settlement was disclosed by the Livingston County Undersheriff yesterday.

“This settlement will be a real victory for women inmates who were denied access to the jail’s work release program and who were victims of extreme privacy violations by male guards,” said Kary Moss, ACLU of Michigan Executive Director.

Michael Pitt, one of the ACLU cooperating attorneys involved in the case, added, “This settlement not only benefits the 131 women who are currently part of this class-action lawsuit, but will have enormous impact on any women who are in the Livingston County Jail in the future.”

The settlement includes:

  •  $850,000 settlement for privacy violations and denial of access to the work release program
  • The building of a six-bed dormitory-style unit to accommodate work release inmates, similar to the existing unit for men, for women charged with lesser offenses;
  • Shower curtains to ensure privacy in the shower area;
  • A privacy wall surrounding the toilet area in the holding area;
  • Prohibition on cross-gender pat-downs when a same gender corrections officer is on shift;
  • Pads or mattresses consistent with health and safety concerns for inmates housed overnight in the holding area;
  • Trustee assignments for qualified female inmates, similar to those assignments given to male inmates;
  • Sensitivity training for new personnel pursuant to the standards of the Michigan Department of Corrections.

 The case, Cox v. Horman, was filed in 2000 only after significant efforts were made to get jail authorities to improve treatment without a lawsuit. 

 Deborah LaBelle, a nationally known expert on women in prison was a cooperating attorney in addition to Michael and Peggy Pitt of Pitt, Dowty, McGehee, Mirer and Palmer.

Put a human face on LGBT issues be part of
The Story Project.

Send us your story! Identifying information will be kept anonymous upon request. The ACLU of Michigan’s LGBT Project is collecting stories from individuals who have experienced bias because of their sexual orientation or gender identity.

The stories will be used to help educate both the straight and LGBT communities about the ways in which Michigan’s laws put same-gender-loving and LGBT families at risk and to help create a broad-based alliance of community members who can help secure fundamental legal protections for all Michigan residents. Stories, poems, oral histories, and other forms of expression will be compiled for inclusion in an educational publication.

You may complete a confidential and secure on-line form, or contact Kara Jennings, Project Staff Attorney (Tom Steel Fellow), if you’d prefer to share your story by telephone at 313.578.6817.

Please include information about the ways in which your experiences have been influenced by your race, ethnic identity, sex, religion, economic status, ability, age, or immigration status.

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The Story Project

Put a human face on LGBT issues be part of
The Story Project.

Send us your story! Identifying information will be kept anonymous upon request. The ACLU of Michigan’s LGBT Project is collecting stories from individuals who have experienced bias because of their sexual orientation or gender identity.

The stories will be used to help educate both the straight and LGBT communities about the ways in which Michigan’s laws put same-gender-loving and LGBT families at risk and to help create a broad-based alliance of community members who can help secure fundamental legal protections for all Michigan residents. Stories, poems, oral histories, and other forms of expression will be compiled for inclusion in an educational publication.

You may complete a confidential and secure on-line form, or contact Kara Jennings, Project Staff Attorney (Tom Steel Fellow), if you’d prefer to share your story by telephone at 313.578.6817.

Please include information about the ways in which your experiences have been influenced by your race, ethnic identity, sex, religion, economic status, ability, age, or immigration status.

DETROIT— Following a news report released yesterday in which the Michigan State Police admit that it has released information to a multistate police database, the American Civil Liberties Union of Michigan today submitted a third “Freedom of Information Act” request about Michigan’s participation in the new “MATRIX” surveillance system. This admission comes on the heels of the state denying involvement in the program in response to two previous FOIA requests.

“The state has been less than honest in their responses to our FOIA requests,” said Kary Moss, ACLU of Michigan Executive Director.  “Clearly, they have already released personal information and are about to release more.  Why is it that they are denying the state’s involvement in their responses?”

The goal of the requests was to find out what information sources the MATRIX system is drawing on as well as who has access to the database and how the information is being used .  A letter from Dave Fedewa, Assistant FOIA Coordinator for the Department of State Police, denied all ten items of the request including information regarding usage of the MATRIX and procedures used to protect the privacy of the individuals whose data is accessed.  In its conclusion, the letter states, “Finally, please be informed that the MSP currently is not a user of MATRIX.”

“Even the Michigan Secretary of State has raised the privacy issue of a program such as MATRIX and has warned the MSP that it may be in violation of the 1997 Michigan Driver Privacy Protection Act,” added Moss. 

According to Congressional testimony and news reports, the MATRIX (which stands for “Multistate Anti-Terrorism Information Exchange”) creates dossiers about individuals from government databases and private-sector information companies that compile files on Americans’ activities for profit.  It then makes those dossiers available for search by federal and state law enforcement officers.  In addition, MATRIX computer programs comb through the millions of files in a search for “anomalies” that may be indicative of terrorist or other criminal activity. 

While company officials have refused to disclose details of the program, according to news reports the kind of information to be searched includes credit histories, driver’s license photographs, marriage and divorce records, Social Security numbers, dates of birth, and the names and addresses of family members, neighbors and business associates.

Raising even more issues, the Matrix is operated by a private company, Seisint Inc. of Boca Raton, Florida.  Ironically, the company’s founder was forced to resign after buried information about his own past came to light: according to Florida police, he was formerly a drug smuggler who had piloted multiple planeloads of cocaine from Colombia to the U.S.

Two other states, Georgia and Texas, have already withdrawn their involvement because of legal and financial concerns.  According to a letter from the Texas Department of Public Safety, “The fiscal responsibility in participating in this endeavor cannot be reconciled in view of existing budget constraints and the potential recurring out year cost of over $140,000 per month. Further, there are other legal, ethical and financial considerations in providing non-public data sets at our expense to a private company to sell back to us.”

“We’re concerned that the state may be in violation of more than one law and we will be looking toward litigation, if necessary, to protect the privacy of Michigan citizens,” Moss stated.

Click Here for copies of the ACLU’s state and federal FOIA requests as well as a fact sheet about the Matrix. 

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ACLU Questions Michigan State Police Involvement in Data Surveillance Program

February 17, 2004

DETROIT— Following a news report released yesterday in which the Michigan State Police admit that it has released information to a multistate police database, the American Civil Liberties Union of Michigan today submitted a third “Freedom of Information Act” request about Michigan’s participation in the new “MATRIX” surveillance system. This admission comes on the heels of the state denying involvement in the program in response to two previous FOIA requests.

“The state has been less than honest in their responses to our FOIA requests,” said Kary Moss, ACLU of Michigan Executive Director.  “Clearly, they have already released personal information and are about to release more.  Why is it that they are denying the state’s involvement in their responses?”

The goal of the requests was to find out what information sources the MATRIX system is drawing on as well as who has access to the database and how the information is being used .  A letter from Dave Fedewa, Assistant FOIA Coordinator for the Department of State Police, denied all ten items of the request including information regarding usage of the MATRIX and procedures used to protect the privacy of the individuals whose data is accessed.  In its conclusion, the letter states, “Finally, please be informed that the MSP currently is not a user of MATRIX.”

“Even the Michigan Secretary of State has raised the privacy issue of a program such as MATRIX and has warned the MSP that it may be in violation of the 1997 Michigan Driver Privacy Protection Act,” added Moss. 

According to Congressional testimony and news reports, the MATRIX (which stands for “Multistate Anti-Terrorism Information Exchange”) creates dossiers about individuals from government databases and private-sector information companies that compile files on Americans’ activities for profit.  It then makes those dossiers available for search by federal and state law enforcement officers.  In addition, MATRIX computer programs comb through the millions of files in a search for “anomalies” that may be indicative of terrorist or other criminal activity. 

While company officials have refused to disclose details of the program, according to news reports the kind of information to be searched includes credit histories, driver’s license photographs, marriage and divorce records, Social Security numbers, dates of birth, and the names and addresses of family members, neighbors and business associates.

Raising even more issues, the Matrix is operated by a private company, Seisint Inc. of Boca Raton, Florida.  Ironically, the company’s founder was forced to resign after buried information about his own past came to light: according to Florida police, he was formerly a drug smuggler who had piloted multiple planeloads of cocaine from Colombia to the U.S.

Two other states, Georgia and Texas, have already withdrawn their involvement because of legal and financial concerns.  According to a letter from the Texas Department of Public Safety, “The fiscal responsibility in participating in this endeavor cannot be reconciled in view of existing budget constraints and the potential recurring out year cost of over $140,000 per month. Further, there are other legal, ethical and financial considerations in providing non-public data sets at our expense to a private company to sell back to us.”

“We’re concerned that the state may be in violation of more than one law and we will be looking toward litigation, if necessary, to protect the privacy of Michigan citizens,” Moss stated.

Click Here for copies of the ACLU’s state and federal FOIA requests as well as a fact sheet about the Matrix. 

DETROIT -- An Ingham County judge has dismissed the “obscene” phone call charges against an 82-year farmer who left voicemail messages on the Michigan Department of Agriculture’s complaint line complaining about a sickening smell emanating from a nearby agribusiness. The farmer, Gerald Henning, was represented by the American Civil Liberties Union of Michigan.

“The judge’s ruling sends a message to the state officials that they cannot charge a citizen with a crime simply because they are not polite when criticizing the government,” said Michael J. Steinberg, Legal Director of the ACLU of Michigan. “The prosecution of Mr. Henning was particularly disturbing because he left complaints on a hotline that was established for the sole purpose of receiving complaints.”

Ingham County Circuit Judge Paula J.M. Manderfied ruled yesterday that Mr. Henning could not be prosecuted for the voicemail messages because the speech was protected by the First Amendment.  She held that while Mr. Henning was “disgruntled” and his language was “somewhat feisty” and contained some profanity, the complaints were not threatening or obscene and they did not constitute “fighting words.”  Judge Manderfied’s ruling reverses the order of a lower court judge who refused to dismiss the charges.

“The only reason I called the hotline was to get the government to enforce the law and stop the stench coming from farm next door,” said Henning.  “It’s good to know that I am free to speak my mind.”

In an effort to obtain the help of the Michigan Department of Agriculture (MDA), Henning, who lives in Hudson Township, Lenawee County, began calling an MDA complaint hot line to leave voicemail messages.  The MDA’s failure to respond resulted in increasing frustration on the part of Mr. Henning, leading him to use increasingly strong language. 

Mr. Henning’s farm is surrounded on three sides by an enormous agribusiness.  Mr. Henning says that the agribusiness has sprayed liquid manure for more than two years without incorporating it into the soil a manner that is inconsistent with state law.  The liquid manure emits a putrid smell that can cause serious health consequences.

According to Mr. Henning, state investigators have observed the infractions of Michigan law, yet have not fulfilled their responsibility to ensure compliance on the part of the agribusiness, and to protect Mr. Henning and his family.

In addition to Steinberg, Henning was represented by ACLU Cooperating Attorney Sarah Zearfoss.

To read the transcript of the phone calls, go to: http://aclumich.org/sites/default/files/file/pdf/briefs/henningtranscriptofprosecutorstape.pdf

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Judge Dismisses "Obscene" Phone Call Charge Against Frustrated Farmer

February 20, 2004

DETROIT -- An Ingham County judge has dismissed the “obscene” phone call charges against an 82-year farmer who left voicemail messages on the Michigan Department of Agriculture’s complaint line complaining about a sickening smell emanating from a nearby agribusiness. The farmer, Gerald Henning, was represented by the American Civil Liberties Union of Michigan.

“The judge’s ruling sends a message to the state officials that they cannot charge a citizen with a crime simply because they are not polite when criticizing the government,” said Michael J. Steinberg, Legal Director of the ACLU of Michigan. “The prosecution of Mr. Henning was particularly disturbing because he left complaints on a hotline that was established for the sole purpose of receiving complaints.”

Ingham County Circuit Judge Paula J.M. Manderfied ruled yesterday that Mr. Henning could not be prosecuted for the voicemail messages because the speech was protected by the First Amendment.  She held that while Mr. Henning was “disgruntled” and his language was “somewhat feisty” and contained some profanity, the complaints were not threatening or obscene and they did not constitute “fighting words.”  Judge Manderfied’s ruling reverses the order of a lower court judge who refused to dismiss the charges.

“The only reason I called the hotline was to get the government to enforce the law and stop the stench coming from farm next door,” said Henning.  “It’s good to know that I am free to speak my mind.”

In an effort to obtain the help of the Michigan Department of Agriculture (MDA), Henning, who lives in Hudson Township, Lenawee County, began calling an MDA complaint hot line to leave voicemail messages.  The MDA’s failure to respond resulted in increasing frustration on the part of Mr. Henning, leading him to use increasingly strong language. 

Mr. Henning’s farm is surrounded on three sides by an enormous agribusiness.  Mr. Henning says that the agribusiness has sprayed liquid manure for more than two years without incorporating it into the soil a manner that is inconsistent with state law.  The liquid manure emits a putrid smell that can cause serious health consequences.

According to Mr. Henning, state investigators have observed the infractions of Michigan law, yet have not fulfilled their responsibility to ensure compliance on the part of the agribusiness, and to protect Mr. Henning and his family.

In addition to Steinberg, Henning was represented by ACLU Cooperating Attorney Sarah Zearfoss.

To read the transcript of the phone calls, go to: http://aclumich.org/sites/default/files/file/pdf/briefs/henningtranscriptofprosecutorstape.pdf

DETROIT – The American Civil Liberties Union of Michigan welcomed the Supreme Court’s ruling today that states could withhold scholarship money for the purpose of religious training without violating the Free Exercise Clause of the First Amendment. A case in Michigan similar to Locke v. Davey, the case in question, prompted a package of legislation which the ACLU is opposing.

Senate Bills 625, 626, 627, 628, 629, 661 and 662 would allow students to receive taxpayer dollars for such training.  According to the ACLU, the proposed legislation is not consistent with Michigan’s Constitution and would improperly entangle government with religion.   Michigan, as well 36 other states, goes further than federal law and explicitly prohibits state funding of religious training.  

 “The Supreme Court’s decision reaffirms the wisdom of Michigan citizens who overwhelmingly rejected a voucher proposal in 2000 that would have forced taxpayers to fund religious and private schools,” said Shelli Weisberg, ACLU of Michigan Legislative Director.

“There is a distinction between studying religion and studying to become a clergy in one particular religion. Prohibiting the use of public funding for religious training cannot be equated with religious discrimination,” Weisberg added.

Writing for the majority in the decision issued today, Chief Justice Rehnquist wrote, "Training someone to lead a congregation is an essentially religious endeavor. Indeed, majoring in devotional theology is akin to a religious calling as well as an academic pursuit."

The dispute arose in 1999, when Joshua Davey of Washington State sought to use the scholarship towardhis studies in the pastoral ministry at Northwest College, which is affiliated with the Assemblies of God church, a Pentecostal denomination. Washington students are only permitted to use the scholarship at issue to study religion as an academic subject, such as comparative religion or the history of religion, not in the pursuit of a particular pulpit.

In testimony presented in January to the Michigan Senate, the ACLU cautioned the Legislature to wait until the Supreme Court rendered a decision on the Locke v Davey case.  In spite of the warning, the Senate passed the package of bills which are now scheduled for a hearing in the House.  If the bills are enacted, the ACLU of Michigan will seriously consider challenging the use of state funds to pursue post-secondary religious training. 

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Michigan Legislation Flies in the Face of U.S. Supreme Court Ruling

February 25, 2004

DETROIT – The American Civil Liberties Union of Michigan welcomed the Supreme Court’s ruling today that states could withhold scholarship money for the purpose of religious training without violating the Free Exercise Clause of the First Amendment. A case in Michigan similar to Locke v. Davey, the case in question, prompted a package of legislation which the ACLU is opposing.

Senate Bills 625, 626, 627, 628, 629, 661 and 662 would allow students to receive taxpayer dollars for such training.  According to the ACLU, the proposed legislation is not consistent with Michigan’s Constitution and would improperly entangle government with religion.   Michigan, as well 36 other states, goes further than federal law and explicitly prohibits state funding of religious training.  

 “The Supreme Court’s decision reaffirms the wisdom of Michigan citizens who overwhelmingly rejected a voucher proposal in 2000 that would have forced taxpayers to fund religious and private schools,” said Shelli Weisberg, ACLU of Michigan Legislative Director.

“There is a distinction between studying religion and studying to become a clergy in one particular religion. Prohibiting the use of public funding for religious training cannot be equated with religious discrimination,” Weisberg added.

Writing for the majority in the decision issued today, Chief Justice Rehnquist wrote, "Training someone to lead a congregation is an essentially religious endeavor. Indeed, majoring in devotional theology is akin to a religious calling as well as an academic pursuit."

The dispute arose in 1999, when Joshua Davey of Washington State sought to use the scholarship towardhis studies in the pastoral ministry at Northwest College, which is affiliated with the Assemblies of God church, a Pentecostal denomination. Washington students are only permitted to use the scholarship at issue to study religion as an academic subject, such as comparative religion or the history of religion, not in the pursuit of a particular pulpit.

In testimony presented in January to the Michigan Senate, the ACLU cautioned the Legislature to wait until the Supreme Court rendered a decision on the Locke v Davey case.  In spite of the warning, the Senate passed the package of bills which are now scheduled for a hearing in the House.  If the bills are enacted, the ACLU of Michigan will seriously consider challenging the use of state funds to pursue post-secondary religious training. 

YOUR ACTION NEEDED TODAY!!!

FLOOR VOTE EXPECTED ON SAME-SEX MARRIAGE AMENDMENT
HEARING ON DEATH PENALTY IN HOUSE COMMITTEE

After much on-again/off-again conversation about a Michigan House of Representatives vote on the proposed constitutional amendment to deny legal recognition for same-sex couples and their families, it is very likely to happen tomorrow.

If the resolution passes by a 2/3 majority in both the House and Senate, the issue of amending the constitution will be put on the November 2004 ballot.

The language of the proposed amendment not only prohibits same-sex marriage, but also civil unions and domestic partner benefits.

Call your state representative TODAY to oppose writing discrimination against gays and lesbians into our state constitution.

Urge a NO vote:

  • This resolution singles out LGBT people for discrimination.
  •  Michigan already has laws that prohibit same-sex marriage.
  • Legal civil marriage provides more than 1,000 federal and state benefits and protections. Same-sex couples in committed relationships or their families should not be denied these benefits and protections.
  • The amendment would take away the authority of local governments and educational institutions to recognize domestic partners.

ALSO TOMORROW: HEARING ON THE DEATH PENALTY

At a time when other states are placing a moratorium on capital punishment, Michigan is considering a move to restore it. A hearing is scheduled tomorrow on HJR W, a constitutional amendment to allow the death penalty in Michigan. The hearing is at 9:00 a.m. before the House Committee on Regulatory Reform, 519 House Office Bldg., Lansing. HJR W, introduced by Representative Larry Julian (R)-Lennon, requires passage by 2/3 members of both the House and Senate in order to be placed on the ballot for a vote by Michigan citizens.

View HJR W at: http://mileg.org/documents/2003-2004/jointresolutionintroduced/house/pdf...

  •  Michigan has “life without parole” eliminating the fear that someone convicted of murder could be released.
  •  Michigan was the first state in the union to ban the death penalty when it eliminated capital punishment in 1846 after an innocent man had been hanged. The ban became part of Michigan’s Constitution in 1963.
  • As of December 2003, 113 inmates have been found innocent and released from death row. More than half of these have been released in the last 10 years. That means one person has been exonerated for every eight people executed.

Contact the following Regulatory Reform committee members and urge them to vote NO on HJR W: Sal Rocca -R, Sterling Heights 517-373-7768 srocca@house.mi.gov

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Action in the Michigan House Tomorrow!

March 08, 2004

YOUR ACTION NEEDED TODAY!!!

FLOOR VOTE EXPECTED ON SAME-SEX MARRIAGE AMENDMENT
HEARING ON DEATH PENALTY IN HOUSE COMMITTEE

After much on-again/off-again conversation about a Michigan House of Representatives vote on the proposed constitutional amendment to deny legal recognition for same-sex couples and their families, it is very likely to happen tomorrow.

If the resolution passes by a 2/3 majority in both the House and Senate, the issue of amending the constitution will be put on the November 2004 ballot.

The language of the proposed amendment not only prohibits same-sex marriage, but also civil unions and domestic partner benefits.

Call your state representative TODAY to oppose writing discrimination against gays and lesbians into our state constitution.

Urge a NO vote:

  • This resolution singles out LGBT people for discrimination.
  •  Michigan already has laws that prohibit same-sex marriage.
  • Legal civil marriage provides more than 1,000 federal and state benefits and protections. Same-sex couples in committed relationships or their families should not be denied these benefits and protections.
  • The amendment would take away the authority of local governments and educational institutions to recognize domestic partners.

ALSO TOMORROW: HEARING ON THE DEATH PENALTY

At a time when other states are placing a moratorium on capital punishment, Michigan is considering a move to restore it. A hearing is scheduled tomorrow on HJR W, a constitutional amendment to allow the death penalty in Michigan. The hearing is at 9:00 a.m. before the House Committee on Regulatory Reform, 519 House Office Bldg., Lansing. HJR W, introduced by Representative Larry Julian (R)-Lennon, requires passage by 2/3 members of both the House and Senate in order to be placed on the ballot for a vote by Michigan citizens.

View HJR W at: http://mileg.org/documents/2003-2004/jointresolutionintroduced/house/pdf...

  •  Michigan has “life without parole” eliminating the fear that someone convicted of murder could be released.
  •  Michigan was the first state in the union to ban the death penalty when it eliminated capital punishment in 1846 after an innocent man had been hanged. The ban became part of Michigan’s Constitution in 1963.
  • As of December 2003, 113 inmates have been found innocent and released from death row. More than half of these have been released in the last 10 years. That means one person has been exonerated for every eight people executed.

Contact the following Regulatory Reform committee members and urge them to vote NO on HJR W: Sal Rocca -R, Sterling Heights 517-373-7768 srocca@house.mi.gov

The American Civil Liberties Union of Michigan spoke out against a newly proposed constitutional amendment to reinstate the death penalty in Michigan debated today in a House of Representatives hearing.

“The recent death of two Detroit police officers was indeed tragic and the ACLU mourns their deaths along with all Michigan citizens,” said Kary Moss, ACLU of Michigan Executive Director. “But at a time when other states are placing a moratorium on capital punishment, Michigan should not consider the death penalty to be the answer.”

Michigan was the first state in the union to ban the death penalty when it eliminated capital punishment in 1846 after an innocent man had been hanged. The ban became part of Michigan’s Constitution in 1963.  Michigan currently has “life without parole” eliminating the fear that someone convicted of murder could be released.

In 1976, the Supreme Court found capital punishment to be constitutional with the qualification that it be fairly and consistently administered.  “More than 27 years later, it is clear that this goal has not been achieved,” added Moss. 

Since most defendants cannot afford a lawyer, they must rely on the state to provide them with representation. Few states provide adequate funds to compensate lawyers for their work or to investigate cases properly.  As a result, capital defendants are frequently represented by inexperienced, often over-worked, and in many cases incompetent, lawyers.

As of December 2003, 113 inmates have been found innocent and released from death row. More than half of these people have been released in the last 10 years. For every eight people executed, one has been exonerated.  The vast majority of those exonerated were found innocent because someone came forward to confess committing the crime; key witness testimony was found to be illegitimate; or new evidence was found to support innocence.

HJR W, introduced by Representative Larry Julian (R)-Lennon, requires passage by 2/3 of the members of both the House and Senate to be placed on the ballot for a vote by Michigan citizens.

View HJR W at: http://mileg.org/mileg.asp?page=getObject&objName=2004-HJR-W

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ACLU Opposes Death Penalty Response to Detroit Tragedy

March 09, 2004

The American Civil Liberties Union of Michigan spoke out against a newly proposed constitutional amendment to reinstate the death penalty in Michigan debated today in a House of Representatives hearing.

“The recent death of two Detroit police officers was indeed tragic and the ACLU mourns their deaths along with all Michigan citizens,” said Kary Moss, ACLU of Michigan Executive Director. “But at a time when other states are placing a moratorium on capital punishment, Michigan should not consider the death penalty to be the answer.”

Michigan was the first state in the union to ban the death penalty when it eliminated capital punishment in 1846 after an innocent man had been hanged. The ban became part of Michigan’s Constitution in 1963.  Michigan currently has “life without parole” eliminating the fear that someone convicted of murder could be released.

In 1976, the Supreme Court found capital punishment to be constitutional with the qualification that it be fairly and consistently administered.  “More than 27 years later, it is clear that this goal has not been achieved,” added Moss. 

Since most defendants cannot afford a lawyer, they must rely on the state to provide them with representation. Few states provide adequate funds to compensate lawyers for their work or to investigate cases properly.  As a result, capital defendants are frequently represented by inexperienced, often over-worked, and in many cases incompetent, lawyers.

As of December 2003, 113 inmates have been found innocent and released from death row. More than half of these people have been released in the last 10 years. For every eight people executed, one has been exonerated.  The vast majority of those exonerated were found innocent because someone came forward to confess committing the crime; key witness testimony was found to be illegitimate; or new evidence was found to support innocence.

HJR W, introduced by Representative Larry Julian (R)-Lennon, requires passage by 2/3 of the members of both the House and Senate to be placed on the ballot for a vote by Michigan citizens.

View HJR W at: http://mileg.org/mileg.asp?page=getObject&objName=2004-HJR-W

On Thursday, March 18, the House Joint Appropriations Committee will discuss the MATRIX (Multi State Anti Terrorism Information Exchange) system, a program that ties together government and commercial databases in order to allow state and local police to conduct detailed searches on particular individuals.   Expected to provide information is John Ort, Director of the Emergency Management Division of the Department of State Police.

The program’s creators have refused to describe the contents of their database, except to concede that it includes both government and commercial data.  For more information about MATRIX, see www.aclu.org.  The MATRIX program developed after Congress, last September, voted to close down the Pentagon's Total Information Awareness (TIA) program. TIA would have allowed the federal government to search and combine the vast amount of data that currently exists in government with commercial databases to create individual profiles of each of us. The program was then renamed Terrorist Information Awareness. Congress shut down that program as well. 

“Unfortunately, the same data mining ideas that inspired TIA have appeared again in the guise of the MATRIX, “ said Kary Moss, Executive Director of the ACLU of Michigan.  “We have real civil liberties concerns; it is unclear what data will be compiled, who else may have access to it, or what standards would trigger the creation of a dossier on an individual.  Moreover, the public has no idea of what costs might be involved, an issue of special importance when every state and local governmental body is having their budgets slashed.” In an effort to understand the breadth of Michigan’s participation in MATRIX the ACLU has sent multiple FOIA requests to the Michigan State Police.  In response to these requests, the State Police have denied any knowledge of the costs associated with the program.

Several states around the country have withdrawn from the MATRIX program, citing the high cost of annual fees for participation. Texas, for example, withdrew citing, among other things, the anticipated recurring $140,000 per month usage charge.  It has been reported that the cost to participating states would be $1.7 million annually. In addition, participating states would incur costs to code and transmit data. In Georgia those costs were estimated as being in excess of $300,000. See the Atlanta Journal Constitution, “2 More States Back off Matrix”, October 17, 2003. Georgia has recently withdrawn citing both privacy and financial concerns. See, Atlanta Journal Constitution, article dated 1/31/04.