New Policy at Charter School in Delhi Louisiana Forces Out Students Suspected of Pregnancy

NOTE: See below for update.

From our friends at the ACLU of Louisiana:

The ACLU issued a letter today to the administration at Delhi Charter School in Delhi, Louisiana in response to its Student Pregnancy Policy. The policy requires female students even suspected of being pregnant to submit to a pregnancy exam – and if they are pregnant or refuse to take the test, it forces them out of school.

The pregnancy policy it states that if a teacher or administrator suspects a female student of being pregnant (whether she is pregnant or not) the school can require her to have a pregnancy test and even select the physician. If the student is pregnant, according to the plan, “the student will not be permitted to attend classes on the campus of Delhi Charter School…and will be required to pursue a course of home study.” It goes on to state further, “Any student who is suspected of being pregnant and who refuses to submit to a pregnancy test shall be treated as a pregnant student and will be offered home study opportunities. If home study opportunities are not acceptable, the student will be counseled to seek other educational opportunities.”

“The pregnancy policy violates the rights of every girl at Delhi Charter School, ” said Marjorie R. Esman, Executive Director of the ACLU.  “Every girl is at risk of being subject to intrusive medical testing, and possibly forced out of school, for reasons that have nothing to do with her education.”

Delhi’s policy stands in violation of, among other things:

·         Title IX of the Education Amendments of 1972 and its implementing regulations because it excludes students from educational programs and activities on the basis of sex.

·         The Equal Protection Clause of the U.S. Constitution, because it treats female students differently than male students and because it relies on impermissible sex stereotypes

·         The right to procreate, and to decide whether to continue or terminate a pregnancy

·         The Due Process Clause of the Constitution by imposing the presumption that pregnant students are unable to continue to attend classes.

Esman says the policy is just a pretext for sex discrimination. “It is based on the archaic and pernicious stereotype that a girl’s pregnancy sets a ‘bad example’ for her peers.” The law is clear that no one can be excluded from participation in, be denied the benefits of, or be subjected to discrimination in education on the basis of sex,’” Esman said. She says the policy subjects all and, of course, only female students to the possibility of mandatory pregnancy testing, based on a subjective ‘suspicion’ that they might be pregnant. “Male students who might also have engaged in sexual activity or be expecting children are not subjected to similar action or risk,” says Esman.

“The right to attend school and to participate fully in activities cannot be denied a student simply because she is, or may be, pregnant,” said Galen Sherwin of the ACLU’s Women’s Rights Project.  “Pregnancy is not a disease, and schools may not treat it that way.  To force a student to home study simply because she is pregnant is to deny her the equal right to a full education.  The administrators of Delhi Charter School should be ashamed that they seek to deprive students of the benefits of going to school every day.”

In addition to its discrimination against girls, the policy is unlawfully vague and subjective by stating that “all students will learn and exhibit acceptable character traits that govern language, gestures, physical actions, and written words.”  “This provision, which clearly trenches on protected speech and expression, fails to define ‘acceptable character traits,’ leaving students of common intelligence [to] necessarily guess at its meaning. It fails to regulate First Amendment freedoms ‘with narrow specificity,’ rendering it impermissibly vague and in violation of the First Amendment.”

The ACLU of Louisiana issued the letter to the Delhi Charter School in hopes they revise the policy so that it complies with the U.S. Constitution and Federal law.  The letter asks the school to suspend the policy until it is revised and to notify parents and students of the policy change. Esman says if Delhi refuses to incorporate the changes the ACLU of Louisiana will consider taking further legal action, including filing a lawsuit or a complaint with the appropriate state or federal enforcement agencies.

UPDATE:  On Thursday, August 9, Delhi Charter School announced that it will eliminate the policy that required female students even suspected of being pregnant to submit to a pregnancy exam and forced them out of school if they refused or tested positive. Delhi Charter School President Albert Christman claimed that the policy was intended to protect students from ridicule and harassment. The school rescinded the policy after receiving a letter from the American Civil Liberties Union and the ACLU of Louisiana.

ACLU of Louisiana Sues NOPD Over Use of Tasers

From our friends at the ACLU of Louisiana:
Combat veteran was hit with Taser while seeking emotional support; ACLU seeks remedy in federal court

Today the ACLU of Louisiana assumed representation of Geoffrey Clayton, a resident of the state of Washington and a combat veteran of the Iraq war. During a May 2009 visit to New Orleans, Mr. Clayton suffered an episode brought on by post-traumatic stress disorder, a condition that has plagued him since his military service. While in the French Quarter talking on the phone with his former Army Sergeant, Mr. Clayton flagged down a passing police car to ask for help. In return, he was Tasered by Officer David Zullo, who had asked him to put his phone down. As a result of the Tasering, Mr. Clayton fell to the ground and suffered serious and lasting head injuries that left him unable to perform his military duties and forced him to resign from service.

“This is the second lawsuit brought by the ACLU over NOPD Taser practices since 2007,” said Marjorie R. Esman, ACLU of Louisiana Executive Director. “Last year, the City of New Orleans paid monetary damages to Steven Elloie, who in 2006 was Tasered by police officers while tending to his family-owned business in Central City. While that case was pending, the officer in this case misused a dangerous weapon against an innocent combat veteran who did nothing more than ask the police for help. It’s clear that the New Orleans Police Department hadn’t changed its practices, and the reward to Mr. Clayton for seeking help was grave personal injury instead of the assistance that he sought and needed.”

The lawsuit, Clayton v. City of New Orleans, was filed last year. Today the ACLU of Louisiana assumed representation of Mr. Clayton to ensure that his rights are fully protected. “Tasers are dangerous weapons that can inflict serious, even fatal injury,” Esman continued. “Tasers should not be used on someone who poses no threat. Using one on a combat veteran in distress, who simply needed assistance from a police officer, shows flagrant disregard for the rights of the public and of the intended use of this dangerous device. It's past time for the New Orleans Police Department to ensure the safety of the public it is sworn to serve, and to stop using dangerous weapons on people who pose no threat.”

The case is pending in the U. S. District Court for the Eastern District of Louisiana.

A copy of the lawsuit is available here.

Louisiana Prison Bans Final Call Newspaper

From our friends at the ACLU of Louisiana:
Hearing on Tuesday Over First Amendment Rights in Louisiana Prison

The US Court of Appeals for the Fifth Circuit will hear arguments tomorrow, August 30th, in the case of an inmate's right to receive a religious publication, “The Final Call,” which has been denied to him.

Henry Leonard, a prisoner held at the David Wade Correctional Center, is a member of the Nation of Islam, the religious order which publishes “The Final Call.” The Louisiana Department of Public Safety and Corrections denied Mr. Leonard “The Final Call” because prison officials found the content offensive. On March 31, 2010, Judge Donald Walter of the U.S. District Court for the Western District of Louisiana ruled that denying the publication to Mr. Leonard violates his First Amendment rights and ordered the State of Louisiana to allow him to resume receiving it.

The State of Louisiana appealed to the U.S. Fifth Circuit, which hears oral arguments on Tuesday. The ACLU continues to maintain that the First Amendment protects Mr. Leonard's exercise of religion, even in prison.

Arguing for Henry Leonard is Justin Harrison, ACLU Foundation of Louisiana Staff Attorney.

The suit is styled “Henry Leonard v. State of Louisiana et al.” The ACLU of Louisiana's brief on Mr. Leonard's behalf may be found at this link.

The David Wade Correctional Center is in Homer Louisiana, near the Arkansas border.

Muslim Woman in Lafayette Parish Forced by Sheriff to Remove Hijab

From our friends at ACLU of Louisiana:
When a Muslim woman was incarcerated in the Lafayette Parish Jail last year, she was forced by the Sheriff to remove her religiously mandated head covering, known as a hijab, because jail policies do not provide for head coverings of any kind. Today the ACLU of Louisiana sent a letter to Lafayette Sheriff Michael W. Neustrom seeking a change of policy to allow jail inmates to wear head coverings mandated by their religious beliefs.

“For a Muslim woman wearing a hijab, being denied it is akin to being stripped naked,” said Marjorie R. Esman, Executive Director of the ACLU of Louisiana. “This woman asked nothing more than to wear religiously mandated garb, and she was denied that fundamental right. Louisiana law and the US Constitution, require governments to accommodate religious beliefs unless there is a compelling interest, which simply does not exist in this case.”

The woman in question, arrested for traffic violations, asked Sheriff agents to allow her to wear her hijab in public and when men were present, to protect her modesty as her religion requires. Even that request was denied. “Even in prison, religion must be respected,” said Esman. “There can be no reason to deny someone the basic right to wear religious garb. Governments, including Lafayette Parish, must do what they can to accommodate sincere religious beliefs, if religion is to thrive.”

The ACLU has asked Sheriff Neustrom to amend his policies within fourteen days to accommodate religiously mandated head coverings.

A copy of the ACLU’s letter is available online at this link.

Louisiana Health Department Told Mother No Birth Certificate For Newborn Unless She Divulged Private Medical Information

From our friends at the ACLU of Louisiana:
ACLU Asks Louisiana To Clarify That New Mothers Do Not Need To Sacrifice Privacy To Obtain Birth Certificates

The American Civil Liberties Union and the ACLU of Louisiana called on the Louisiana Department of Health and Hospitals (DHH) today to clarify that new mothers do not have to disclose private medical information before birth certificates are issued for their newborns. Earlier this year, a Shreveport mother was told she would not be given a birth certificate for her newborn after she refused to answer intrusive questions about her private medical history, including alcohol and tobacco use during pregnancy, whether she had ever had an abortion and other medical information.

“Every single child born in this state is entitled to a birth certificate,” said Marjorie Esman, Executive Director of the ACLU of Louisiana. “The state cannot leverage the child’s birth certificate to extract information from a mother. That kind of coercive conduct by health officials has no place in a free society.”

The mother – Laird Sapir – was told by DHH and staff of the Willis-Knighton Health System in Shreveport that her child would be denied a birth certificate unless she disclosed private information on a hospital form called “Birth Certificate Worksheet.” The worksheet, whose contents are dictated by DHH, is issued by the hospital to all expectant mothers. The hospital transmits mothers’ answers directly to state authorities.

“I was shocked when I saw those questions,” said Sapir. “They felt like an invasion of privacy. I couldn’t believe the state was threatening to deny my baby a birth certificate unless I gave up my privacy rights.”

Despite the threats by state and hospital authorities, Sapir printed “I refuse to answer” next to the intrusive questions. The ACLU launched an investigation and demanded that Sapir’s baby receive a birth certificate. The certificate was issued in March, six weeks after Sapir’s baby was born.

Birth certificates are basic vital documents necessary to prove a person’s United States citizenship, and they are the key to obtaining other important documents such as a passport, driver’s license and marriage certificate. Birth certificates can also be essential for school enrollment and the addition of a child to his or her parents’ health insurance plan.

In Louisiana and other states, authorities conduct statistical research through the birth registration process, but do not distinguish between data actually necessary for birth registration – such as the parents’ names and addresses – and the additional statistical information used for research. Often, both types of questions are included in the same form, and parents are erroneously told that they must answer all of the questions on the form.

“A lot of mothers just don’t know that they have the right to refuse to answer,” said Mie Lewis, Senior Staff Attorney with the ACLU Women’s Rights Project. “They’re just handed a form by hospital staff and told to fill it out. State officials have no right to withhold a child’s birth certificate in order to extract private medical information from the child’s mother. The state should make it clear what information is required and what isn’t, and shouldn’t exploit new mothers to gain personal information.”

“The ACLU will continue to monitor the situation,” said Katie Schwartzmann, Legal Director of the ACLU of Louisiana. “The decision to become a mother should not require a woman to abandon her privacy and dignity. It is unacceptable for the state and hospitals to coerce mothers into divulging private medical information by threatening to withhold babies’ birth certificates.”

DeSoto Parish Middle School Student Punished for Gay-Friendly T-Shirt Message

From our friends at ACLU of Louisiana:
Last week, student Dawn Henderson of DeSoto Middle School wore a shirt to school bearing the message “Some Kids are Gay. That's OK.” In return for her support of the gay community, the school's principal ordered her to change her shirt or go home, censoring her speech in violation of her legal rights.

The ACLU of Louisiana has sent a letter to the Principal, Keith Simmons, explaining that students have the First Amendment right to express their opinions, including on t-shirt slogans, as long as the school allows clothing with slogans. “Students do not give up their free speech rights at the schoolhouse gate,” said ACLU of Louisiana Executive Director Marjorie R. Esman. “To allow students to express one kind of opinion but not another is the very definition of censorship, and it violates the Constitutional rights of students like Dawn Henderson, who may have views different from those of her school principal.”

DeSoto school officials claimed that the shirt slogan was “distracting,” although no incident of disruption was attributed to it. “Had there been a disruption because of Dawn's shirt slogan, those causing the trouble are the ones who would properly be subject to discipline,” said Esman. “To punish the speaker for how others react is to blame the victim, and forces people to restrict their speech only to what they think others may want to hear. This is not the way a free society engages in public debate.”

“Schools should encourage discussion of issues of public concern, and especially issues about which there may be conflicting opinions,” Esman continued. “Sending Dawn home for wearing a shirt with the word ‘gay’ on it not only trampled her right to freedom of expression, but also sent a destructive message to all students that there is something wrong with being gay or even saying the word 'gay.' A school is the best place to encourage young people to share opinions. It is not the place to violate the legal rights of students whose views might differ from those of school authorities.”

Native American Student Suspended for Refusal to Cut Hair

From our friends at ACLU of Louisiana:
In a fight for religious freedom, the ACLU of Louisiana has enrolled to represent a Native American student at Juban Parc Junior High School in Denham Springs, LA. Seth Chaisson, a member of the United Houma Nation, grows his hair long for cultural and religious reasons. Although he told school authorities of his beliefs and his heritage, Seth has repeatedly been reprimanded for the length of his hair, and on March 15, 2011 he was suspended from school and told that he would remain suspended every day until he cut his hair.

On March 15, the ACLU of Louisiana wrote to the principal of Juban Parc Junior High explaining that the First Amendment guarantee of religious freedom prohibits the interference with Seth's religious practice, including the length of his hair. Having received no reply, today the ACLU submitted a formal appeal on behalf of the student, seeking reversal of all disciplinary actions against him and demanding that his record be cleared.

“Everyone, including junior high school students, is guaranteed the right to practice his or her religion,” said ACLU of Louisiana Executive Director Marjorie R. Esman. “Schools may not discriminate against a student whose religion is not that of the majority. In fact, the schools have an obligation to protect students from religious and other forms of discrimination.”

Louisiana law provides strong protection for religious practices. Recognizing that religious training should be left to parents, schools may not interfere without a particularly compelling reason; adherence to a dress code is not a strong enough reason to override Seth's right to religious freedom. “Preventing a Native American from wearing his hair long is like preventing a Christian from wearing a cross,” Esman continued. “The law protects all faiths, including that of Seth Chaisson. Seth should be commended for his courage in standing up for his religious beliefs and cultural heritage.”

Controversy Over Baton Rouge Plan for Further Criminalization of Sex Workers

Baton Rouge-area politicians recently released a plan to increase jail time and other penalties for accused sex workers, including a 90-day minimum sentence. Louisiana is already the only US state that forces sex workers to register as sex offenders, and this call for increased criminalization has raised alarms among advocates. Below is a response from the ACLU of Louisiana:

Dear Mayor-President Holden and Members of the East Baton Rouge Metropolitan Council:

I understand that a committee of the Metropolitan Council is urging a crackdown on prostitution in East Baton Rouge Parish. According to the Advocate, an ordinance has been proposed to impose a mandatory sentence of a minimum of 90 days in jail or supervised probation, as well as "john school" for customers.

I write to urge the Council to exercise great care in enacting laws that will penalize poor women in ways that might ultimately harm the community. Sending nonviolent offenders to jail is widely recognized as the wrong approach to criminal justice, and one that will not only increase costs for the people of Baton Rouge but also ultimately increase crime. Seeking to change Louisiana's status as the largest per capita jailer in the world, Gov. Jindal recently requested the Pew Center for Study on the States to assist in enacting reforms that will decrease the incarceration rate while maintaining public safety. Careful study is necessary before adopting any laws that will further incarcerate or punish anyone for whom alternatives are available.

The Advocate suggests that one stated purpose of the proposed ordinance is to eliminate human trafficking. However, the ordinance will do nothing to stop trafficking, because the traffickers themselves are not affected. This is a classic case of punishing the victim, by imposing punishment only on the woman who has been trafficked. In fact, criminalizing prostitution can hurt victims of trafficking by steering them away from the police when they need help. Fear of arrest can send a victim of violence further away from support services that can help her. Trafficking, and forcing juveniles into "modern day slavery," is already a crime, subject to state and federal laws. This proposal will do nothing to stop any trafficking that might occur and can hurt those victimized.

The article also states that the proposal includes adoption of "john schools" to teach customers about the "destructive impact of prostitution." Yet studies have shown that "john schools" and programs to reduce demand for prostitution frequently target low-income and minority men, and are not successful in protecting women or in eliminating prostitution. The Best Practices Policy Project reports, among other things, a higher than average recidivism rate among men who have been subject to "john schools." Moreover, these programs may increase violence against women, and therefore cause more harm.

Nor will this stop the spread of HIV/AIDS. A jail sentence will do nothing to protect a prostitute from contracting HIV from a client, or vice versa. The solution to the HIV/AIDS epidemic is better treatment, education, and condom use, not incarceration for those living with the disease.

I urge the Council to consider this issue carefully, to consult best practices and experts nationwide on the both the criminal justice and the public health implications of incarcerating sex workers and their customers, and to be mindful of the dangers of incarcerating more people for nonviolent offenses.

Sincerely,
Marjorie R. Esman
Executive Director
ACLU of Louisiana

Lawsuit Alleges Prisoner Abuse at Tangipahoa Parish Prison

From our friends at the ACLU of Louisiana:
Roger Mason is a 52-year-old man with Schizophrenia. On August 18, 2009, Mr. Mason was arrested and placed in Tangipahoa Parish Prison. Despite clear evidence of Mr. Mason’s mental illness, the prison staff provided grossly inadequate care to him for 5 months. Without treatment, Mr. Mason became increasingly psychotic and delusional and suffered significant physical injuries.

Mr. Mason was found incompetent to stand trial and was transferred to Eastern Louisiana Mental Health System in January 2010. He arrived in a filthy jumpsuit with a strip of rag tied around his right wrist. A stench issued from his wrist which appeared infected and which emitted a green discharge. The rag was embedded in Mr. Mason's arm, with skin growing over the rag in places. Mr. Mason also had an ulcerous wound on the right side of his back and fractured ribs. These wounds were obviously long standing and had been left untreated during his months of imprisonment.

Miranda Tait, Attorney with the Advocacy Center states, “Mr. Mason was clearly unable to care for himself or to differentiate illusion from reality. For 5 months, he lived a nightmare locked in a cell 23 hours a day, unable to communicate with anyone or ask for help.”

On January 24, 2011, the Advocacy Center and the ACLU of Louisiana filed a lawsuit against Tangipahoa Parish officials alleging that their failure to provide Mr. Mason with necessary psychiatric care mental health medication is a violation of his rights under the 14th Amendment. In addition, the suit alleges that Mr. Mason suffered discrimination on the basis of his disability and that parish and prison officials were negligent of their responsibilities to Mr. Mason under state law.

Lois Simpson, Executive Director of the Advocacy Center, states, ”Jails may be overcrowded and understaffed but no budgetary constraints can excuse the heartless treatment experienced by Mr. Mason.”

“Our public officials have an obligation to care for the most vulnerable among us,” said Marjorie R. Esman, Executive Director of the ACLU of Louisiana. “Denying basic care to someone unable to care for himself is an unconscionable abuse of authority.”

A copy of the complaint is available at this link.

Wheelchair-Bound Man Denied Basic Medical Care at Iberia Parish Correctional Center

From our friends at ACLU of Louisiana:
Seeking immediate help for a disabled man held since April in inhumane conditions at the Iberia Parish Correctional Center (“ICC”), the ACLU of Louisiana today submitted an emergency second request for relief on his behalf. Reginald Peters, who requires a wheelchair due to his muscular dystrophy and needs assistance for basic bodily functions, has been denied adequate medical care, forcing him to lie on the ground, unable to perform basic tasks such as going to the bathroom.

On November 29, 2010, the ACLU of Louisiana submitted an Administrative Remedy Procedure (“ARP”) on his behalf, demanding that he be moved to another prison facility with adequate medical care. Although prison officials promised to move Mr. Peters to Elayn Hunt Correctional Center for better care, Mr. Peters remains at ICC and his condition has worsened. He remains unable to attend to his basic bodily functions, must lie on the floor, and his muscles have continued to deteriorate. Today the ACLU submitted an Emergency Second Step ARP, as a step toward litigation if Mr. Peters is not transferred promptly.

“For over a month, officials in Iberia Parish have been on notice that they are forcing a disabled man to lie on the ground, without a mattress, unable to take care of his basic bodily needs,” said Katie Schwartzmann, Legal Director of the ACLU of Louisiana. “Mr. Peters has been forced to live under conditions that can truly be described as inhumane. He is forced to ask other prisoners to help him with basic needs like going to the bathroom or taking a bath. There is no excuse for denying basic medical care, or for the needless delay in transferring him to a facility where he can receive better care. Nobody should be subjected to the treatment that Mr. Peters has received in this jail.”

Schwartzmann and other ACLU staff members have made several trips to Iberia Parish Correctional Center to investigate Mr. Peters’ case. Although there is no known cure for muscular dystrophy, physical therapy is vital to slowing the progression of the disease. Without it, patients with some types of muscular dystrophy rapidly begin to lose muscle mass. This atrophy is oftentimes permanent and irreversible. Since being at ICC, Mr. Peters’ muscles have atrophied to the point of near complete loss of the use of his limbs.

This is not the first time that ICC has subjected a disabled inmate to inhumane conditions. In 2005, Nelson Landry sued over his denial of medical and other care at ICC. That case, Landry v. Hebert, resolved with Iberia Parish paying substantial damages to compensate Mr. Landry for his mistreatment.

Marjorie Esman, Executive Director of the ACLU of Louisiana, said: “Iberia Parish should have learned that it cannot ignore the basic human needs of the people in its care. Apart from the human cost, the taxpayers of Iberia Parish should not have to pay the price in damages if their officials simply fail to provide care that is available.”

Copies of the ACLU's letters on behalf of Reginald Peters are available at these links:

First Letter

Second Letter

Third Letter

Sixth Grader Handcuffed at Elementary/Middle School in Shreveport

From our friends at ACLU of Louisiana:

Today the ACLU of Louisiana requested records from the Caddo Parish School Board and Walnut Hill Elementary/Middle School, seeking information about handcuffing children at school. Acting in response to the handcuffing of a sixth grader four days after the child was hit by another student at the school bus stop, the ACLU wants to know why the child was handcuffed by the police at school, and why police action was taken days after the child was a victim of an attack by another student.

“School discipline problems should be resolved by school disciplinarians, not by turning a child into a criminal,” said Marjorie R. Esman, Executive Director of the ACLU of Louisiana. “A sixth grader is a child, not an adult. The police have no business enforcing rules of an elementary school, and schools have no business involving law enforcement in disciplinary matters.”

In this case, the child was ordered to the principal's office at Walnut Hill four days after he was assaulted, where he was greeted by the police who led him, in handcuffs, to his grandmother's car. “The only possible justification for the handcuffs was to humiliate or frighten the child, which is an abuse of law enforcement authority,” continued Esman.

In its public records requests to Walnut Hill and the Caddo Parish School Board, the ACLU seeks information about other incidents of handcuffing within the past two years, as well as copies of agreements with the Shreveport Police Department. “We want to know how often children are handcuffed at school,” said Esman.

On December 22, 2010 the ACLU requested documents from the Shreveport Police Department seeking its records of similar agreements and practices. Those documents have not yet been received.

Copies of the public records requests can be found here:

To Walnut Hill School.

To Caddo Parish School Board.

To Shreveport Police Department.

State of Louisiana Attempts to Deny Legal Birth Cerificate to Child Adopted by Gay Couple

From our friends at the ACLU of Louisiana:

Today the American Civil Liberties Union filed a friend-of-the-court brief urging a federal appeals court to uphold its earlier decision ordering Louisiana to issue a birth certificate with the names of both parents to a boy who was adopted by a gay couple in New York.

On February 10, 2010, a three-judge panel of the U.S. Fifth Circuit ruled that the State of Louisiana must treat the boy, born in Louisiana but legally adopted by his two fathers in New York, exactly as it treats other adopted children born in Louisiana, and issue a birth certificate with the names of both of the child's legal parents. The court affirmed the lower court's order requiring the Louisiana Registrar of Vital Records, Darlene Smith, to issue a new birth certificate reflecting the information required by state statute.

Upon request of the Registrar, the case was accepted by the entire U.S. Fifth Circuit acting “en banc” and is set for hearing on January 19, 2011. “It is morally wrong, as well as a violation of longstanding constitutional law, to deny a child an accurate birth certificate just because a state official objects to the child's parents,” said Marjorie Esman, Executive Director of the ACLU of Louisiana. "Punishing a child for who his parents are defies all logic as well as all legal principles, long upheld by the U.S. Supreme Court. Louisiana officials should stop trying to dictate morality at the expense of children who need their protection."

The child's parents, Oren Adar and Mickey Smith, adopted their Louisiana-born son in 2006 in a New York court. Although Louisiana law requires issuing a new birth certificate to adoptive parents listing both of their names, the Louisiana Attorney General objected and advised the Registrar that she didn't have to issue the birth certificate because the couple is unmarried and the adoption would not have been granted if they lived in Louisiana. Two courts have already ruled that the Register must issue the birth certificate as requested by the parents, who have hoped to use it to demonstrate Mickey Smith's status as the child's father for health insurance purposes..

It its friend-of-the-court brief, the ACLU charges that denying a child of unmarried parents a birth certificate that accurately reflects his or her relationship to his or her legal parents singles these children out for discrimination. According to the brief, the only possible reason for the state to deny children of unmarried couples a birth certificate is to express moral disapproval of unmarried couples, which is unconstitutional. Only adopted children of unmarried couples are denied accurate birth certificates under the Registrar's policy, which consigns those children to a less-than-equal status in violation of their rights.

"The Fifth Circuit has already recognized that discrimination against children based on their parents' status is against the law,” added Esman. “We hope that the entire court will rule as its panel did previously, when it upheld the district court's ruling in favor of fairness and equality for all Louisiana-born children.”

Oral argument in the case will be held on January 19, 2011. Lawyers on the ACLU's brief include Katie Schwartzmann, legal director of the ACLU of Louisiana, and Noah Levine, P. Patty Li, and Matthew D. Benedetto of the New York law firm Wilmer Cutler Pickering Hale and Dorr LLP.

A copy of the ACLU's brief can be found at this link.

ACLU of LA Seeks Sheriff's Records Related To FEMA Funding Of Orleans Parish Prison Expansion

From our friends at the ACLU of Louisiana:
Following up on last week's post about a Freedom of Information Act request filed with FEMA, the American Civil Liberties Union yesterday submitted a similar request to Sheriff Marlin Gusman. The FOIA request seeks public records concerning the resources allocated by FEMA for the proposed expansion of the Orleans Parish Prison (OPP).

Despite his plans to dramatically expand the capacity of OPP to 5,800 prisoners, Orleans Parish Sheriff Marlin Gusman has provided no documents showing the funding that he says is committed to the project. Although Sheriff Gusman asserts that the project will be underwritten by FEMA, he has never disclosed the extent of FEMA funds or the conditions imposed upon those funds.

“The public still has no idea where the hundreds of millions of dollars needed to expand the prison is coming from,” said Marjorie Esman, Executive Director of the ACLU of Louisiana. “We've asked FEMA for their records, but Sheriff Gusman must account to New Orleans residents so we will know what we will have to pay for his planned expansion. Without that information we can't know whether the money will be well spent.”

Among other things, the ACLU asks for plans or proposals concerning the demolition, rebuilding, repair or expansion of OPP and documents related to funds FEMA has allocated or disbursed for such projects as well as how the use of those funds might be restricted.

The proposed new size of OPP would be large enough to incarcerate one out of every 60 residents of New Orleans. Yet outside experts have shown that the jail's size could easily be reduced if New Orleans were to adopt commonsense criminal justice policies like expanding pre-trial release options, providing community service sentencing, and setting more appropriate and cost-effective sanctions for minor municipal offenses.

New Orleans residents have expressed mounting concerns during the past year about whether this massive expansion of OPP is warranted. These concerns prompted the New Orleans City Council to postpone in July final approval of Gusman’s expansion plans until a special working group convened by Mayor Mitch Landrieu determines the optimal size for OPP. The working group is expected to release its findings in late November.

“We continue to seek independent scrutiny of Sheriff Gusman’s plans, as well as full disclosure of all of the information,” Esman said. “The public simply doesn't know where the money will come from and whether there are strings attached to it. The people of New Orleans deserve to know how much this will cost. Now may be the final window of opportunity to access that information.”

A copy of the ACLU’s request is available online at this link.

ACLU Seeks FEMA Records Related To Proposed Expansion Of Orleans Parish Prison

From our friends at the ACLU of Louisiana:
Increasing Already Excessive Capacity Of Prison Could Be Waste Of Taxpayer Money

The American Civil Liberties Union today filed a Freedom of Information Act (FOIA) request with the Federal Emergency Management Agency (FEMA) to determine what resources it has allocated to the proposed expansion of the Orleans Parish Prison (OPP).

Despite his plans to dramatically expand the capacity of OPP to 5,800 prisoners, Orleans Parish Sheriff Marlin Gusman has provided no documents showing the funding that he says is committed to the project. Although Sheriff Gusman asserts that the project will be underwritten by FEMA, he has never disclosed the extent of FEMA funds or the conditions imposed upon those funds.

“There is a massive expansion planned for OPP yet the public has no idea where the hundreds of millions of dollars needed to expand the prison is coming from,” said Marjorie Esman, Executive Director of the ACLU of Louisiana. “We need a better understanding of the source of the funds, how much the City of New Orleans will have to pay, and whether there are better ways to put this kind of money to use. To do that we need more information.”

Among other things, the ACLU’s FOIA request seeks the disclosure of any plans or proposals concerning the demolition, rebuilding, repair or expansion of OPP and any documents related to funds FEMA has allocated or disbursed for such projects as well as how the use of those funds might be restricted.

The proposed new size of OPP would be large enough to incarcerate one out of every 60 residents of New Orleans. Yet outside experts have shown that the jail's size could easily be reduced if New Orleans were to adopt commonsense criminal justice policies like expanding pre-trial release options, providing community service sentencing, and setting more appropriate and cost-effective sanctions for minor municipal offenses.

New Orleans residents have expressed mounting concerns during the past year about whether this massive expansion of OPP is warranted. These concerns prompted the New Orleans City Council to postpone in July final approval of Gusman’s expansion plans until a special working group convened by Mayor Mitch Landrieu determines the optimal size for OPP. The working group is expected to release its findings in late November.

“Independent scrutiny of Sheriff Gusman’s plans is vital to this policy debate,” Esman said. “There is a lot of essential information about the planned expansion of OPP that we don't have. An important component is where the money will come from and whether there are strings attached to it. At a time when the City of New Orleans is struggling for resources, the public deserves to know how much this will cost. Now may be the final window of opportunity to access that information.”

A copy of the ACLU’s FOIA request is available online at this link.

Exposing Unconstitutional Police Practices From New York to New Orleans

By Alison McCrary
As violent crime continues to surge and dozens of New Orleans police offers are under indictment, investigation, or have already pled guilty to serious crimes, the New Orleans Police Department has expanded policies that effectively undermine the already-challenged public confidence in the NOPD.

The Louisiana Justice Institute (LJI) and the American Civil Liberties Union of Louisiana (ACLU) have received numerous complaints from law abiding citizens who have been stopped and interrogated by NOPD officers in apparent violation of the U.S. Constitution. A similar policy of the New York Police Department was challenged in court as unconstitional and racially discriminatory. As a result, the NYPD made substantive changes to the policy and its implementation.

What will it take for the New Orleans Police Department to learn from the costly lessons taught to New York Police Department by civil rights litigation?

Police officers may stop individuals but only in compliance with a 1968 U.S. Supreme Court ruling, Terry v. Ohio, which held an officer may stop an individual and conduct a field interview or carefully limited search only if the officer has reasonable suspicion that a crime has occurred or is about to occur. Such constitutional stops are referred to as “Terry stops.”

While limited Terry stops are needed to investigate “reasonably suspicious” criminal activity on our streets, under the leadership of the newly appointed Superintendent Ronal Serpas, numerous law abiding citizens have reported an increase in unconstitutional stops not warranted by the reasonable suspicion requirement. Such “Serpas stops” violate the law and the constitutional protections guaranteed to citizens.

NYPD is facing a federal civil rights class action lawsuit challenging the NYPD’s stop-and-frisk practices, which among other policing issues was the topic of a New York Times article earlier this year.

Through Floyd v. City of New York, which stems from Center for Constitutional Right's landmark racial profiling case, Daniels v. City of New York that led to the disbanding of the notorious NYPD Street Crime Unit, the organization collected over ten years worth of the NYPD’s own data on officer stop-and-frisk activity.

The data collected by the Center for Constitutional rights revealed that in New York City:

· Over 80 percent of NYPD initiated stops are of Blacks and Latinos while Whites comprised only 20 percent;
· Nearly 90 percent of all stops uncovered no weapons, contraband or evidence of criminal activity;
· Blacks and Latinos are more likely to be frisked after a NYPD-initiated stop than Whites, and,
· Blacks and Latinos are more likely to have physical force used against them during a NYPD-initiated stop than Whites.

In New Orleans, the ACLU of Louisiana last week raised the question of whether all the stops being conducted by NOPD officers were proper. The ACLU received numerous reports from New Orleanians who said they were stopped for no apparent reason and were required to provide identification. New Orleans police officers are collecting personal information on residents.

However, NOPD could not answers questions raised relating to exactly how many stops the New Orleans police officers are making and whether there has been an increase since NOPD leaders have begun scrutinizing the stops at the Comstat meetings. NOPD said that long-term data is not readily available because officers have been slowly shifting to entering the information into a centralized database instead of the district ones. However, such information is legally required to remain on file at NOPD according to case precendent.

What will it take for NOPD to recognize and respect the rights of citizens who are protected by the Constitution of the United States? Respect for the legal rights of the citizens they serve is essential to the NOPD restoring public trust and being successful in making New Orleans a safer place for everyone to live and work.

If you believe you have been improperly stopped, please share your story with the Louisiana Justice Institute by calling 504-872-9134 and/or file a complaint through the ACLU’s website.

Alison McCrary is an attorney and Soros Justice Advocacy Fellow at the Louisiana Justice Institute. She received her Juris Doctor of Law from Loyola University College of Law where she served as a member of Moot Court and president of the Public Interest Law Group. Alison is a member of the National Lawyers Guild.