Archive | September, 2011

Madison School Board Drug-Dog Policy Raises More Questions Than Provides Answers

27 Sep

Last night the Madison Metropolitan School District Board approved a school search policy that expanded the powers of police, upon request of school officials, to sweep the campuses of middle and high schools. The vote was 5 to 1 with a dissenting vote from Board President James Howard who expressed his concerns with the presence of police dogs in middle schools. That idea was also shared by board member Marj Passman who ultimately cast a “yes” vote despite her concerns about students’ rights.

The ACLU of Wisconsin’s Stacy Harbaugh was there to speak about the civil liberties implications of the policy. Here’s what she said:

The last time I was in front of the board to talk about the expansion of the school’s police/K9 policy, I shared some of the bad stories of poorly-written or poorly-implemented policies that prompted litigation in other schools when drug-dog searches started making news around a decade ago (read more about ACLU litigation and drug-dog opposition in New Mexico, South Dakota, South Carolina, Washington). Clearly this policy-as-written takes into consideration the mistakes of the past.

However, I feel that this proposed policy still brings up more questions than it provides answers.

1. What if it doesn’t work? Will the number of drug incidents be the only determining factor for success? Varying studies show that drug-sniffing dogs can either miss the presence of illegal drugs OR give false alerts when drugs aren’t actually present (read more in the Chicago Tribune about racial bias in the use of dog searches in traffic stops and the University of Massachusetts, Dartmouth study that echoed a couple of decades of the documentation of evidence that our paper currency can trigger dog alerts due to widespread cocaine residue). What happens if students bring drugs into school that the police dogs miss or if drug use shifts to a form that is harder for drug-sniffing dogs to detect such as prescription drugs? Will students then become desensitized to the sweeps and lockdowns? Is anyone considering a sunset provision?

2. At what point will we know this is too much? What does “periodic” mean? Will articulated suspicion trigger a Principal to contact police for a K9 sweep or will they just happen on a Principal’s whim? At what point will parents and students have a right to say that the presence of police and drug dogs in their schools have gone too far?

3. Will students be targeted for further search? If a police dog alerts, will students be pulled out of class to be searched? When banned items are confiscated and an “a police investigation conducted,” will students be informed of their right to remain silent? To call a parent? To an attorney? Students don’t give up 4th and 5th Amendment rights when they go to school, but their rights aren’t written into this policy.

4. What is the complaint procedure for false alerts? Even the most well-written policies could be poorly implemented. What is the complaint mechanism for students who are targeted for embarrassing and anxiety-producing searches by school officials and possibly police officers if a dog falsely alerts to the students’ locker or vehicle?

Finally, I would like the board to find a policy that respects civil liberties and avoids the lockdown. School lockdowns should be used only in emergencies such as bomb or weapons threats. Otherwise, the lockdown is a very punitive approach that is the opposite of supportive, nurturing atmosphere our schools should be.

What would this policy look like in practice if students knew drug-dog sweeps were possible or that they had happened, but were not aware of the presence of police dogs while they were in class? How can we ensure that the classroom learning experience of students who aren’t breaking the rules remains unaffected? The other side of “deterrent” or “prevention” is intimidation. And lockdowns intimidate all students, including innocent ones.

Ultimately, what does this teach our youth about their rights?

There were about eight other people who shared their thoughts during the public comments section of the meeting. Two supportive individuals decried the increase of drugs in school and in the community. One mother who also worked as a police officer told the board that she was equally concerned about the presence of drugs in school (and the potential for gun violence that comes with drug trade) as she was that students didn’t seem to think the policy was a big deal or that there could be human bias in the decision to bring in drug dogs to schools with a more diverse student body. Other policy opponents raised questions about how students whose families with more financial resources would better survive getting busted rather than not having equal treatment in the criminal justice system.

Ultimately, the policy-as-written doesn’t present an immediate violation of student privacy rights. Hopefully the school system will do as much diligence in reporting on the impact of K9 sweeps (including keeping data on how many students are pulled out of class for additional searches even if dogs falsely alert) as they did in reporting back on their engagement strategy to gather community feedback.

At some point in the future our community will scratch its head and wonder why there are so many young people in our criminal justice system. We will ask ourselves why it seemed like a veritable school-to-prison pipeline was constructed one decision and one policy at a time. We will wonder why we sought out a law enforcement solution to eliminating drugs when trends in drug availability and abuse were so clearly tied with an increase in poverty and a decrease in access to health care (neither of which our public schools have the power to fix). And in the future, we may look admirably at other school districts’ policies that took huge risks to ease up on zero-tolerance and find commonsense solutions to addiction and criminalizing youth.

The school board’s decision was also covered on

(Also read about what happened when a drug dog alerted to a Pennsylvania student’s car, the car was searched and the student expelled, not for drugs, but for having work-related knives locked in his vehicle – this editorial says that zero-tolerance shouldn’t mean zero thought)

Sex-Segregation in Schools is a Misguided Trend, Says Science Journal Report

23 Sep

An article debunking the research behind the trend of sex-segregated schools was published in the journal Science this week. The article explains that there is no legitimate research backing the effectiveness of sex-segregated schools and that the trend “is deeply misguided, and often justified by weak, cherry-picked, or misconstrued scientific claims rather than by valid scientific evidence. However “there is evidence that sex segregation increases gender stereotyping and legitimizes institutional sexism.”

Read a PDF of the article.

Questioning brain research, the lack of comparable studies and differences among school programs, the article says that what characteristics make a good public school lie not in sex-segregation but “the quality of the student body, demanding curricula, and many other features also known to promote achievement at coeducational schools.”

The Science journal report comes out just as the Madison Metro School District is closing in on a decision over an Urban League proposal to establish a sex-segregated charter school. The school proposal has faced criticism over its cost, lack of unionized staff and legal concerns over sex discrimination in the sex-segregated classes.

Ideally the district will find an alternative plan to make measurable steps to close the racial achievement gap by investing in public programs that are proven to work and don’t rely on sex-segregation of students, breaking teachers’ union contracts or diverting crucial funding away from local public schools. Today’s coverage of this issue can be found in the State Journal and the Cap Times.

Selling your DVDs and CDs in Madison? Police Want Your Photo and to Know What You’ve Been Watching

16 Sep

The Madison city council’s Public Safety Review Committee met on Wednesday to consider a change to the law governing the licenses of secondhand dealers. The ordinance change would create an electronic reporting system where secondhand dealers, such as used bookstores or pawn shops, would report daily to police what was sold and would include a digital picture of the person who brought in the items. The list includes things like jewelry and electronics but it also includes recorded materials such as CDs, DVDs and audiobooks.

Whenever a change to this law comes up, the ACLU of Wisconsin’s Madison Area Office pays attention. In 2007, a campus-area alder suggested that used book dealers report their book buy-backs to police after a rash of textbook thefts. Bookstores objected saying that the reporting would be burdensome and costly. Police said they needed more tools to fight crime. The idea of electronic reporting came back in 2009 when Madison police held a listening session with stakeholders and explained the need for modernization but also heard concerns about data security, cost and customer privacy.

This proposal is an example of how whenever the government has access to a list of what we read or what we watch or the websites we visit, the ACLU must respond. Remember how librarians fought back when the Patriot Act would have required them to offer our library records for inspection? They protected our right to read because it was a core privacy issue. Our choice to posses any expressive material, be it a book or a CD or a film on DVD, is something we may choose to keep private. Especially if that material is controversial.

Government inspection of lists of such materials, even after they have been sold to a secondhand dealer, can create a profile of an individual’s personal selection or possession of intellectual or entertainment choices. We have a First Amendment protected tradition in this country to allow people to pursue and exchange information anonymously, even if that information is controversial. The only exception to this is in the realm of child pornography, although in the surveillance culture of post-9/11 America, the government now labels some information sharing as suspicious activity. The infrastructure for intelligence gathering has grown exponentially in the past ten years and our government literally has more data than it knows what to do with despite the estimated 2,000 private companies it has hired to data mine all of the cell phone records, suspicious activity reports and other bits of surveillance it has gathered from innocent people in the homeland. Our government does not need another database to spy on our personal choices.

Also whenever the government imposes on the First Amendment or the privacy rights of individuals, it has the responsibility to prove a compelling justification for that imposition. Police say theft, particularly related to drug use, justifies the need for this database. But requiring secondhand dealers to maintain electronic records and digital photographs of media sales specific to sellers and turn those records over to police daily treats all customers as potential criminals without suspicion that any particular person has stolen the CDs, DVDs, audiobooks or other media. The best way to balance fighting crime and protecting privacy is through individualized investigations by police who obtain warrants to search dealers’ own records. Database hacking or fishing expeditions or through electronic lists of who sold what would become easier and no less unacceptable under this proposed ordinance change.

Madison residents should ask their Common Council Alder to support an amendment that exempts “audio tapes, compact discs, laser discs, records, videotapes, digital video discs, portable media players or other similar audio or audio-visual recording devices,” “computer games” and digital pictures of customers who sell them from the daily electronic reporting to local police. Such an amendment would allow secondhand dealers and the city to comply with state law without compromising innocent people’s rights to privacy and freedom to exchange expressive materials.

Read the proposed ordinance online.

Madison residents can find their city council representative’s contact information on the city’s website.

While thinking about controversial materials, remember that September 24 through October 1 is Banned Books Week. We take one week out of the year to acknowledge how the work to defend our right to privacy and our right to read happens 365 days a year. Join us in Madison for a Banned Books Week kick off happy hour at Mickey’s on Friday, September 23 from 5:30 – 7:30 p.m. We will co-host a reading of banned books at Woodland Pattern Book Center in Milwaukee on Wednesday, September 28 with a reception starting at 6:30 p.m. Both events are free, but donations are welcome.

Incarcerated Women at Taycheedah Now Have More Options for Psychiatric Care

12 Sep

The recent opining of the Wisconsin Women’s Resource Center, an inpatient psychiatric hospital for women prisoners, will go a long way towards providing desperately needed mental health care, the ACLU said today. Previously, the services that will be offered at the WWRC were available only to male prisoners. The ACLU filed a law suit in 2006 that challenged this unequal and unfair treatment. The WWRC, which can house 45 prisoners, will begin accepting patients this month.

“Until now, the Wisconsin prison system could not provide critical treatment to women suffering from severe and debilitating mental illnesses,” said Gabriel Eber, staff counsel with the ACLU National Prison Project in Washington, DC, who represented women at the Taycheedah Correctional Institution in a lawsuit against the state. The class action lawsuit challenged unconstitutional conditions at Taycheedah, the state’s maximum security women’s prison in Fond du Lac. In November 2009, federal district Judge Rudolph Randa found there was sufficient evidence that the lack of inpatient resources for female prisoners violated the Equal Protection clause of the Constitution to hold a trial.

The ACLU and the state settled the lawsuit in December 2010. The agreement requires the state to make substantial improvements to medical care and mental health care and to increase access to programs for women prisoners with disabilities. The agreement also enabled the ACLU to seek court sanctions if the Wisconsin Women’s Resource Center was not completed in a timely manner.

“For too long, female prisoners needing psychiatric care in a hospital setting were treated by overworked staff in poorly equipped facilities at Taycheedah,” said Larry Dupuis, Legal Director of the ACLU of Wisconsin, who represented prisoners in the litigation. “We commend the Department of Corrections and are pleased that women prisoners will now have access to desperately needed inpatient mental health care services.” The WWRC is located in Waupun.

We Must Now Reclaim Our Liberties: Ten Years After 9/11

10 Sep

Ten years after the horrific events of September 11, 2001 the American people are right to remember and honor those who died in at the World Trade Center, at the Pentagon and in Pennsylvania.  The ten-year mark of the 9/11 attacks also importantly provides an opportunity to reflect on the turbulent decade behind us, and to recommit ourselves to values that define our nation, including justice, due process, and the rule of law.

Nearly ten years ago on September 23, 2001, I wrote in the Journal Sentinel, “Americans, in and out of the Congress, will have to evaluate carefully, ‘anti-terrorism’ proposals that may have an impact on the civil liberties that protect our freedom.”   Much of the government’s response to the attacks against us was done without proper deliberation.  Much of the government’s response was initiated without the benefit of the 9/11 Commission’s investigation and report.  It is no wonder that we are still facing challenges, despite a “global war on terrorism” that seems to be an everywhere and forever war.

The records of the Bush and the Obama administrations reveal many actions that have undermined our ability to remain safe and free.  Congress has done no better.  Some in Congress are attempting to undermine the Constitution by giving the president a blank check for a worldwide, endless war.  This would be a clear abdication of Congress’s role in our system of checks and balances – the Constitution clearly gives only Congress the power to declare war.

Targeted killings in the name of our security continue without any way for us to know whether people our government kills are truly a threat to our country. Prisoners who have never had a trial are still held at Guantanamo.  Although evidence of torture and death at U.S.-run detention facilities like Abu Ghraib, Bagram and CIA “black sites” exists, no single victim of torture has had a day in court due to the “states secrets” privilege and immunity doctrines our government invokes to defend itself from being held accountable for these human rights abuses.

And, we need not look overseas to see how American freedoms are threatened in ways that may not make us safer, much less safe.

At the Mitchell Field, you get to choose between full-body scanners that reveal near-naked outlines of our bodies or an offensive pat-down by TSA workers. Phone companies are willing to hand over your call records to the government without warrants or suspicion of criminal activity of individuals. Taking pictures of landmarks is enough to make you the subject of a “suspicious activity report” in a terrorist behavior data base. Surveillance by the government has tracked racial minorities, religious groups, peace protesters, college students and journalists.

Government policies that target groups by race, ethnicity or religion are counterproductive and make us less safe.  Experienced intelligence and law-enforcement officials agree that profiling based on race, religion and ideology is ineffective, inefficient, and counter-productive.

This anniversary is a fitting time to remember and stirs deep emotion and concern among our fellow Americans.   This is entirely legitimate and to be expected ten years into a war. But, despite the passing of a decade and the changing of leadership in the White House and Congress, we continue to allow the fear of terrorism to cloud our political discourse.   We must have the courage to affirm what makes  America great.  What I wrote in 2001 is still valid: “Freedom is more than just a goal; it is the bulwark of our democracy and the spirit that lifts individuals and families in countless ways.  It makes us safer and stronger.”

– Chris Ahmuty, Executive Director, ACLU of Wisconsin

Read the report: A Call to Courage – Reclaiming Our Liberty Ten Years After 9/11 from the national American Civil Liberties Union

This opinion piece was also featured in the Milwaukee Journal Sentinel’s Crossroads on Sunday, September 11, 2011.

Student Free Speech Includes “Boobies” Bracelets: Lawsuit Filed Against Sauk Prairie Middle School Bracelet Ban

8 Sep
I heart boobies bracelets

Keep A Breast Foundation's I heart Boobies Bracelets

Student free speech should include the right to wear breast cancer awareness bracelets, according to a lawsuit filed by the American Civil Liberties Union of Wisconsin Foundation and cooperating attorneys today. The suit was filed on behalf of a middle school student at Sauk Prairie Middle School who along with many classmates wore an “I Boobies! (Keep A Breast)” bracelet to school and prompted a school ban.

“While a public school can put some reasonable limits on expression that poses a credible threat of a disruption of its educational activities or school mission, the mere discomfort some may have with the bracelets’ slang language is not a justification for banning the bracelets and punishing students who wear them,” said Attorney Tamara Packard.

“I Boobies! (Keep A Breast)” bracelets are a part of a national campaign by the Keep A Breast Foundation. The rubber bracelets are similar to other bracelets that promote awareness of health or social issues and are geared to educate young women about the need for breast cancer research, education and early detection of the disease.

The Sauk Prairie Middle School had deemed the term “boobies” to be inappropriate slang for the school setting. However, the term, especially in the context of the serious issue of breast cancer awareness, is not lewd, vulgar or indecent and should be allowed as a form of free student expression.

“It is the very social stigma of discussing women’s breasts that keeps breast cancer prevention, education and research from moving forward,” said Attorney Lori Eshleman, who is also a breast cancer survivor. “When nearly 40,000 Americans will die of breast cancer this year, we should engage in a national discussion about prevention rather than suppress young women’s speech that includes the term boobies.”

This spring a federal court issued an injunction stopping a similar bracelet ban and agreed that the “boobies” bracelets were not indecent or disruptive student expression. Pennsylvania’s Easton Area School District has appealed that decision.

The lawsuit against the Sauk Prairie Middle School comes after repeated requests for the school to drop the bracelet ban were ignored and rejected. The ACLU of Wisconsin Foundation and cooperating attorneys hope the school will rescind the ban and allow this form of student expression without further legal action.

The ACLU of Wisconsin Foundation is a non-profit civil liberties and civil rights organization working to protect the rights of Wisconsinites. Cullen Weston Pines & Bach LLP is a well-respected full-service Madison law firm with a passion for the constitutional principles upon which our nation was founded, including free speech, equal protection, and participatory democracy.  Attorney Lori Eshleman specializes in health care and disability discrimination law at Traver, Haass & Eshleman.

For more on the work of the American Civil Liberties Union and Foundation of Wisconsin, visit our webpage. You can also get news and opinion on civil liberties in Wisconsin on our Forward for Liberty blog. Find us on Facebook and Twitter.