Federal judge allows case involving Ten Commandments display to advance
U.S. District Court Judge Michael Urbanski yesterday denied a motion to dismiss the ACLU of Virginia and Freedom from Religion Foundation’s case challenging the posting of the Ten Commandments at Narrows High School in Giles County.
“We’re pleased that the court has allowed us to move forward with our case,” said ACLU of Virginia Legal Director Rebecca Glenberg. “We intend to show that the School Board cannot simply shroud its religious purpose for posting the Ten Commandments by surrounding it with historical documents.”
The court also heard arguments in the plaintiffs’ motion to proceed using pseudonyms. The ACLU and FFRF argue that the use of pseudonyms protects the plaintiffs from the vitriol of community members who support the Ten Commandments display. Judge Urbanski asked counsel to work out an agreement that would provide safeguards to protect the plaintiffs, and said he would enter a protective order himself if the parties could not agree.
“The community has already shown significant animosity toward our clients,” added Glenberg. “We have no doubt that if their identities were revealed that they would be the targets of more direct harassment.”
The controversy began in late 2010, when the Freedom from Religion Foundation received complaints about the posting of the Ten Commandments with the Constitution in Giles County public schools, a practice that had been in place for years. Over the next six months a dispute ensued in which the Ten Commandments were removed, reposted, then removed again, and ultimately posted in a display with historical documents relating to American history, such as the Declaration of Independence, the Star-Spangled Banner, and the Virginia Statute for Religious Freedom.
The ACLU and FFRF filed suit on September 13, 2011 on behalf of a student and the student’s parent arguing that the display amounts to government endorsement of religion and therefore violates the Establishment Clause of the First Amendment.
The Ten Commandments are posted on a main hallway at the high school, near the trophy case and on the way to the cafeteria, where it is seen by students every day.
Court to hear arguments in challenge to Ten Commandments display
U.S. District Court Judge Michael Urbanski will hear arguments on Monday, Nov. 28, in the ACLU of Virginia and Freedom from Religion Foundation’s challenge to the posting of the Ten Commandments at Narrows High School in Giles County.
The court will consider arguments in the defendant’s motion to dismiss the case and plaintiffs’ motion to proceed using pseudonyms.
The ACLU and FFRF argue that the use of pseudonyms protects the plaintiffs from the vitriol of community members who support the School Board’s decision to have the display.
“The community has already expressed considerable animus toward these plaintiffs,” said ACLU of Virginia Legal Director Rebecca Glenberg. “If their identities are revealed, there is no doubt they will become the targets of much more direct harassment.”
The controversy began in late 2010, when the Freedom from Religion Foundation received complaints about the posting of the Ten Commandments in Giles County public schools, a practice that had been in place for years. Over the next six months a dispute ensued in which the Ten Commandments were removed, reposted, then removed again, and ultimately posted in a display with historical documents relating to American history, such as the Declaration of Independence, the Star-Spangled Banner, and the Virginia Statute for Religious Freedom.
The ACLU of Virginia and the Freedom from Religion Foundation filed suit on Sept. 13, on behalf of a student and the student’s parent arguing that the display amounts to government endorsement of religion and therefore violates the Establishment Clause of the First Amendment.
The Ten Commandments are posted on a main hallway at the high school, near the trophy case and on the way to the cafeteria, where it is seen by students every day.
ACLU asks Richmond to allow Occupy protests
The ACLU of Virginia has asked Mayor Dwight Jones of Richmond to reconsider his decision to toss Occupy Richmond campers from a Downtown Richmond public park.
In a letter faxed earlier today, ACLU of Virginia Executive Director Kent Willis notes that the Richmond police had originally told demonstrators they would be allowed to remain overnight. This is in keeping with many other cities, including Washington, D.C. and Cleveland, where campers have been allowed to camp overnight in public parks.
In D.C., campers in Freedom Plaza were told they may remain as long as four months. In Cleveland, protestors are not only camping overnight, but police have apparently distributed camping gear to demonstrators.
“There is nothing more American than the First Amendment right to protest in public, and it is incumbent upon public leaders to make sure that both the letter and spirit of that constitutional right are protected and perpetuated,” said Willis.
“We’re asking Mayor Jones to listen to his police department, which apparently sees no problem with the overnight campers, and to his conscience, and to reverse his decision to throw out the campers,” added Willis. “It’s not too late to be a help to demonstrators, rather than a hindrance.”
Members of the Occupy Richmond group met with ACLU representatives today to report that they had first been told they could remain overnight but that the mayor had overruled the police department’s decision.
ACLU: Sidewalk in front of Roanoke City Market is public forum
The ACLU of Virginia on Friday informed the Chairman and the Legal Counsel for the Market Building Foundation that it cannot ban demonstrations from the sidewalk in front of the Roanoke City Market Building.
The Foundation, which leases the property from the City of Roanoke, recently voted to deny all requests to assemble on the sidewalk.
The sidewalk has been used on numerous occasions over many years for demonstrations and protests.
In a letter, ACLU of Virginia Legal Director Rebecca K. Glenberg points to court rulings holding that traditional public forums, such as sidewalks and town squares, that are leased to private organizations are still public forums.
Glenberg notes that attempts to ban demonstrators from the cobblestone walkways in Boston’s Faneuil Hall complex and preachers from the Rose Quarter Commons in Portland failed even though the properties in question were leased by private companies. In both cases, the court held that private groups renting public forums from the city government must follow the First Amendment’s dictates of free speech.
“The right to free speech in a government-owned public forum does not dissolve merely because the forum is leased to a private entity,” said ACLU of Virginia Executive Director Kent Willis. “It still belongs to the public and the public still has a right to use it.”
Glenberg writes, “… the Market Building Foundation Board must follow constitutional norms when regulating speech on the sidewalk in front of the City Market Building. The First Amendment allows for reasonable time, place and manner regulations of speech, but an outright ban on assemblies on the sidewalk is not permissible.”
ACLU encourages non-disruptive protests at Va. high school
The ACLU of Virginia has informed school officials at Colonial Forge High School in Stafford County that they must allow students to wear “Free Banana Man” t-shirts to protest the suspension of a fellow student who sprinted around the football field wearing a banana costume last Friday night.
The student, Bryan Thompson, apparently did not interfere with the game or any other official activity, but according to press reports was suspended by Principal Karen Spillman for 10 days. Spillman is recommending that the suspension be extended until the end of the school year.
The ACLU received inquiries today from students who were affected by, or knew of, the ban on the t-shirts. Students wearing or carrying the t-shirts were told to remove them or had them confiscated by school officials.
“It is well established law that students do not lose their free speech rights at the schoolhouse door,” said ACLU of Virginia Executive Director Kent Willis. “Students are not permitted to engage in an activity that disrupts the educational process, but they can express their views in school.”
In 1968, the Supreme Court in Tinker vs. Des Moines Independent Community School District upheld the right of junior high school student Mary Beth Tinker to wear to school an armband protesting the war in Vietnam.
“If the Supreme Court says the First Amendment allows a student to protest a highly controversial war by wearing an armband to school, then Colonial Forge High School students can certainly wear t-shirts demonstrating their displeasure with the school’s decision to suspend a fellow classmate,” added Willis.
In a letter faxed to Spillman, ACLU of Virginia Legal Director Rebecca Glenberg wrote: “Based on our understanding of the facts, it appears that some students at your school have strong feelings about the discipline of a fellow student, and that they have chosen to express those feelings in a passive, non-disruptive manner. We ask that you respect their constitutional right to free speech.”
ACLU sues Giles County over Ten Commandments display
The ACLU of Virginia today filed suit against the Giles County School Board for posting the Ten Commandments on the wall at Narrows High School in Narrows, Virginia. The lawsuit contends that the display violates the Establishment Clause of the First Amendment to the United States Constitution.
The Ten Commandments is posted on a main hallway at the high school, near the trophy case and on the way to the cafeteria, where it can be seen by students every day. It is surrounded by historical documents relating to American history, such as the Declaration of Independence, the Star-Spangled Banner, and the Virginia Statute for Religious Freedom.
The lawsuit was filed today on behalf of a Narrows High School student, suing under the name Doe 1, and the student’s parent, suing under the name Doe 2. The plaintiffs do not want to use their real name because they fear retaliation from community members who have displayed scorn and anger toward those who have complained about the Ten Commandments display.
The complaint explains that the Ten Commandments display makes Doe 1 feel like an outsider in his own school, because the school is endorsing religious beliefs to which he does not subscribe. Doe 1′s parent, Doe 2, objects to the display because it usurps the parent’s right to control the religious education of Doe 1.
“The Ten Commandments were clearly placed in Giles County public schools to promote religion, and that violates the First Amendment of the Constitution,” said ACLU of Virginia Executive Director Kent Willis. “School board members cannot camouflage their religious purpose by hiding the Ten Commandments among other documents.”
For years, Giles County schools posted a framed copy of the Ten Commandments along with the U.S. Constitution, but after complaints from the Freedom From Religion Foundation last fall, the school superintendent ordered them taken down. The school board, however, in a meeting attended by 200 residents urging restoration of the display, voted to overturn the superintendent’s decision. Only after the ACLU and the Freedom From Religion Foundation threatened litigation did the school board reverse itself and order the Ten Commandments taken down again. Then, in June, the school board authorized the posting of the Ten Commandments with historical documents. However, Narrows High School is the only school so far to post the display.
“Schools best respect religious freedom when they allow students to express their religious beliefs, but refrain from expressing religious opinions of their own,” said Willis. “That is not what has happened here.”
ACLU seeks details on government’s phone tracking
In a massive coordinated information-seeking campaign, the American Civil Liberties Union of Virginia and 33 other affiliates across the nation today are sending requests to more than 375 local law enforcement agencies large and small demanding to know when, why and how they are using cell phone location data to track Americans. The Virginia affiliate submitted its request to the Fairfax County Police Department.
“Cell phones today are an everyday accessory for most people,” said ACLU of Virginia Legal Director Rebecca Glenberg. “The idea of law enforcement engaging in unfettered cell phone location monitoring of Americans without probable cause or a warrant raises major privacy concerns.”
The campaign is one of the largest coordinated information act requests in American history. The requests, being filed under the states’ freedom of information laws, are an effort to strip away the secrecy that has surrounded law enforcement use of cell phone tracking capabilities.
“The ability to access cell phone location data is an incredibly powerful tool and its use is shrouded in secrecy. The public has a right to know how and under what circumstances their location information is being accessed by the government,” said Catherine Crump, staff attorney for the ACLU Speech, Privacy and Technology Project. “A detailed history of someone’s movements is extremely personal and is the kind of information the Constitution protects.”
Law enforcement agencies are being asked for information including:
· whether law enforcement agents demonstrate probable cause and obtain a warrant to
access cell phone location data;
· statistics on how frequently law enforcement agencies obtain cell phone location data;
· how much money law enforcement agencies spend tracking cell phones and
· other policies and procedures used for acquiring location data.
Law enforcement’s use of cell phone location data has been widespread for years, although it has become increasingly controversial. Just last week, the general counsel of the National Security Agency suggested to members of Congress that the NSA might have the authority to collect the location information of American citizens inside the U.S. Also, this spring, researchers revealed that iPhones were collecting and storing location information in unknown files on the phone.
During the 2011 session, the Virginia General Assembly considered a bill that would prohibit the placement of electronic tracking devices on motor vehicles without the permission of the vehicle’s owner, unless placed by the vehicle manufacturer, law enforcement, or a parent of a minor. The ACLU of Virginia advocated for an amendment requiring law enforcement to first obtain a warrant. The bill passed the House of Delegates, but failed in the Senate Courts of Justice Committee.
While the legislature may again consider such a bill in the 2012 session, it is unlikely to pass one with a case pending in the U.S. Supreme Court. The high court has agreed to decide whether police need a warrant to place a GPS tracking device on a person’s vehicle. While that case does not involve cell phones, it could influence the rules police have to follow for cell phone tracking.
Congress is considering the Geolocation Privacy and Surveillance Act, a bill supported by the ACLU that would require police to get a warrant to obtain personal location information. The bill would protect both historical and real-time location data, and would also require customers’ consent for telecommunications companies to collect location data.
Today’s requests are part of the ACLU’s Demand Your dotRights Campaign, the organization’s campaign to make sure that as technology advances, privacy rights are not left behind.
Requests were also filed by ACLU affiliates in Alabama, Arizona, Northern California, Southern California, San Diego and Imperial Counties, Connecticut, Washington D.C., Delaware, Florida, Hawaii, Illinois, Iowa, Kentucky, Maine, Massachusetts, Michigan, Eastern Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, North Carolina, Oklahoma, Oregon, Rhode Island, South Carolina, South Dakota, Utah, Washington, Wisconsin and Wyoming.
ACLU tells jail officials to accommodate Muslim inmates during Ramadan
The ACLU of Virginia today sent an email to local and regional jail officials reminding them that they must allow Muslim inmates to take their meals between sundown and sunrise during the holy month of Ramadan. Ramadan begins on August 1 and ends with the celebration of Eid ul-Fitr on August 30.
The ACLU’s warning is based on past complaints from inmates that they have not been allowed to change the times at which they take meals in order to comply with the fasting rules of Ramadan.
“Incarceration does not include the suppression of faith,” said ACLU of Virginia Executive Director Kent Willis. “The courts and Congress have made it absolutely clear that the right of inmates to practice their religion is protected so long as it is within reason and does not impose a security threat.”
In his email, ACLU of Virginia Dunn Fellow Thomas Okuda Fitzpatrick reminds jail officials that during Ramadan the Virginia Department of Corrections provides Muslim inmates in its custody with a morning meal that is served before dawn, a meal after sunset, and a bagged meal that can be consumed during the night.
“This is a simple, inexpensive accommodation of religious beliefs that is available for most incarcerated persons in Virginia,” said Fitzpatrick. “Unfortunately, it is not a practice universally followed by local jails and prisons. We’re hoping that this reminder will serve as a wake-up call for jail officials, but we are prepared to provide assistance to inmates who tell us they are not being accommodated.”
Fitzpatrick also notes that courts have upheld the right of prisoners to practice their religious belief under both the First Amendment of the Constitution and under the Religious Land Use and Institutionalized Persons Act where federal financial support is involved.
“Today we write about Muslims because we have received complaints that their requests for religious accommodation have been ignored by jail officials,” added Willis. “But the real issue here is every person of faith who is incarcerated in Virginia. Each has a right to practice his or her religion under the Constitution and federal law.”
ACLU raises issue with McDonnell letter on judicial appointments
The ACLU of Virginia has asked Gov. Bob McDonnell to revise or remove from his questionnaire for judicial applicants two questions regarding mental and physical disabilities that may violate the American with Disabilities Act.
“These questions are unnecessary, inappropriate, invasive, and very likely illegal,” said ACLU of Virginia Executive Director Kent Willis. “Persons with disabilities fought for many years to eliminate employment and other forms of discrimination against them. The governor’s questions are an affront to them and the law, and we hope he will move swiftly to remove them.”
ACLU of Virginia Legal Director Rebecca K. Glenberg made the request in a letter sent on July 7, but as of this writing has not received a response. A recent check of the governor’s website for judicial appointments indicates that the application is still in use.
Question 38(c) of the Judicial Selection Questionnaire asks, “Have you ever been treated for any emotional or mental illness or condition. If so, please give the particulars.” Question 38(d) asks, “Do you suffer from any impairment of eyesight or hearing or any other physical limitation?”
Addressing the question about mental disabilities, Glenberg wrote: “The question …is highly intrusive and far broader than necessary to identify individuals who may lack judicial judgment or temperament….The vast number of persons who suffer (or have suffered) from some kind of mental or emotional impairment would not…be prevented from acting competently as a judge.”
On the issue of physical impairments, Glenberg wrote: “Manifestly, hearing and vision impairments have nothing to do with the ability to function as a judge. They do not affect a person’s judgment, intelligence, or temperament. With the availability of Braille, sign language interpreters, and a multitude of assistive technologies, there is no reason why a person with hearing or vision problems should be unable to perform judicial duties.”
ACLU suit challenges restrictions on begging on Charlottesville Downtown Mall
Lawyers for the ACLU of Virginia today filed a lawsuit in U.S. district court challenging a City of Charlottesville ordinance that unconstitutionally restricts begging on the city’s Downtown Mall.
Passed in August 2010, the ordinance prohibits the soliciting of persons sitting in outdoor cafes or within 50 feet of the two streets that cross the mall. It also bans the soliciting of individuals conducting business at any vendor table or cart.
“Charlottesville’s Downtown Mall is a public forum where the right of people to assemble and communicate is protected by the First Amendment,” said ACLU of Virginia Executive Director Kent Willis. “The ordinance is too vaguely worded to understand, unreasonably restricts freedom of expression, and clearly discriminates based on the content of speech, allowing many kinds of expressive activity but not panhandling.”
In recent years, the ACLU of Virginia has actively opposed ordinances that restrict panhandling and/or roadside solicitations in Richmond, Herndon, Newport News, and Hampton. In most of these jurisdictions, proposals were dropped or amended during the legislative process that enabled the ordinances to pass constitutional muster.
In Hampton and Newport News anti-panhandling ordinances that would have prevented solicitation of vehicles by pedestrians were modified to ban such solicitations only when panhandlers entered traffic. In Herndon, the town council dropped a proposal that would have prevented Latino day laborers from soliciting for work near roadways. Several years ago, Richmond attempted to ban all panhandling in the central business district, but withdrew the proposal after the ACLU threatened to file a lawsuit.
Charlottesville lawyers Jeff Fogel and Steve Rosenfield, along with ACLU of Virginia Legal Director Rebecca Glenberg and Dunn Fellow Tom Fitzpatrick, represent five homeless men who depend on panhandling for at least part of their income.
“Anti-solicitation ordinances are not about public safety, as they are purported to be, but about removing the reminders of poverty from our sight,” said Fogel. “Fortunately, in this country, every citizen, rich or poor, has the same right to use our sidewalks, parks and malls.”
The plaintiffs in the lawsuit are Albert Clatterbuck, Christopher Martin, Earl McCraw, John Jordan, and Michael Sloan. They are seeking an injunction to prevent Charlottesville from continuing to enforce the ordinance, damages and attorney’s fees.
Groups threaten suit if Giles County reposts Ten Commandments in schools
The ACLU of Virginia and the Freedom From Religion Foundation today warned the Giles County School Board not to follow through with a proposal to mount displays featuring the Ten Commandments and several historical documents in public schools. The two religious rights groups say they intend to file a lawsuit challenging the displays if they are authorized by the school board.
“The Ten Commandments were clearly placed in Giles County public schools to promote religion, and that violates the First Amendment of the Constitution,” said ACLU of Virginia Executive Director Kent Willis. “School board members can’t now camouflage their religious purpose by hiding the Ten Commandments among other documents.”
According to recent news reports, the school board is voting on June 7 on whether to post in all schools displays that would include the Ten Commandments, the Bill of Rights, the Virginia Statute for Religious Freedom, the Declaration of Independence, the Virginia Declaration of Rights, the Mayflower Compact, the Magna Carta, Lady Justice, and the National Anthem.
For years, Giles County schools posted side-by-side copies of the Ten Commandments and the U.S. Constitution, but after complaints from the Freedom From Religion Foundation last fall, the school superintendent ordered them taken down. The school board, however, in a meeting attended by 200 residents urging restoration of the display, voted to overturn the superintendent’s decision. Only after the ACLU and the Freedom From Religion Foundation threatened litigation did the school board reverse itself and order the Ten Commandments taken down again.
In the letter emailed this morning, ACLU of Virginia Legal Director Rebecca Glenberg and Freedom From Religion Foundation Staff Attorney Patrick Elliott note that the Ten Commandments has sometimes been allowed in public buildings when it is part of a secular display. However, the courts have made it clear that when such displays have a religious purpose, they are unconstitutional. The courts have been especially sensitive to such displays in public schools, where government promotion of religion is most strictly prohibited.
Prince William school officials agree to remove LGBT web filter in response to ACLU complaint
The American Civil Liberties Union and the ACLU of Virginia have received confirmation from the Prince William County School Board that it is deactivating web filtering software that blocks students’ access to educational information geared toward the lesbian, gay, bisexual and transgender communities.
The school board’s decision came approximately six weeks after the ACLU sent a demand letter as part of the “Don’t Filter Me” program, an ACLU initiative designed to combat unconstitutional censorship of LGBT information on public school computer systems around the country.
Software provided by filtering companies to public schools frequently includes a filter specifically designed to censor LGBT-related information. Such filters are entirely separate from legitimate filters used to block sexually explicit or pornographic websites.
The ACLU was informed through the “Don’t Filter Me” program that Prince William County school officials had activated the LGBT filter on its Blue Coat Systems software, leaving students, teachers and others who use the schools’ computers unable to access educational LGBT and anti-bullying resources such as GSA Network, Gay Lesbian and Straight Education Network, and the It Gets Better Project.
“We commend Prince William school officials for removing this discriminatory LGBT filter, which serves no purpose but to deprive students of important educational materials and resources,” said ACLU of Virginia Executive Director Kent Willis. “Of course, if the software company the school used had not provided them with the tools to specifically censor LGBT websites this might never have occurred.”
Last week, a widely used filtering company, Lightspeed System, announced that it would remove a similar software filter that blocks access to educational LGBT websites. Five filtering companies, including Blue Coat, continue to use specialized filters designed to censor LGBT content that is not pornographic or sexually explicit.
This is not the first time Blue Coat’s LGBT filter has exposed its clients to legal liability. In 2009, two Tennessee school districts agreed to disable the LGBT filter on their Blue Coat software after being sued by the ACLU. In 2010, a Maryland school district agreed to disable its LGBT filter after receiving a demand letter from the ACLU. During this year’s “Don’t Filter Me” campaign, schools in New Jersey and Texas agreed to disable their LGBT filter after being contacted by the ACLU.
“We hope that Blue Coat follows Lightspeed’s lead and removes the ‘LGBT’ filter, which serves no educational purpose and is designed to discriminate against LGBT viewpoints,” said Joshua Block, staff attorney with the ACLU LGBT Project. “The vast majority of school districts have no desire to discriminate against LGBT-related content and are simply trying to protect their students from pornographic or sexually explicit materials. Why should a software company include a feature that could be mistakenly activated and cause the school to violate the Constitution? By failing to step in to remove the ‘LGBT’ filter, Blue Coat is doing a disservice to its customers and the students they serve.”
When used by a public school, programs that block all LGBT content not only violate the First Amendment right of free speech, but also the federal Equal Access Act, which prohibits public schools from viewpoint discrimination in the allocation of resources for extracurricular clubs. Under the Equal Access Act, student gay-straight alliances and LGBT support groups must be allowed access to national organizational websites that help them function, just as other groups, such as the Key Clubs and the chess clubs, are able to use their national websites for assistance.
