Lancaster refugee lawsuit: A whistleblower speaks out

By Matt Stroud, Criminal Justice Researcher/Writer, ACLU of Pennsylvania

Plaintiffs and their attorneys from ACLU-PA, Education Law Center and Pepper Hamilton, LLC.

Plaintiffs and their attorneys from ACLU-PA, Education Law Center and Pepper Hamilton, LLC.

Elise Chesson hadn’t been working more than a few weeks when she noticed refugee students were having trouble enrolling in the School District of Lancaster. Her testimony Wednesday offered further insights into how older refugee students in Lancaster, Pa. have been diverted away from a local public high school, the J.P. McCaskey Campus, and into Phoenix Academy, a disciplinary school run by private company Camelot Education.

In early December 2015, Chesson began as employment program manager for Lutheran Immigrant and Refugee Services in Lancaster, Pa. Among her responsibilities were refugee social services; she helped find education and employment options for refugees. That’s when she met 17-year-old Qasin Hassan.

A Somali refugee who’d come to Lancaster, with his family through Cairo, his documents showed that he neither spoke nor read English; Somali and Arabic were his means of communication. And he had no official education records.

When refugees arrive in the U.S., there’s typically a 90-day case management period when caseworkers like Chesson help them settle in, get accustomed to local culture, and acclimate to daily tasks such as going to the bank and buying groceries. Caseworkers are also often responsible for making sure they find a place to work or attend school.

Qasin had been in the U.S. for months and still wasn’t in school. The School District had thus far refused to enroll him.

Chesson took over the case from her colleague in late December and in her first contact with Qasin, school district officials doubled down on their refusal to enroll him. Administrators said, instead, that he should go to the local Literacy Council, a private organization, and take English classes there and get his GED instead.

Part of the reason for this decision, Chesson testified, was that the district official in charge of enrollment thought Qasin’s body language suggested he didn’t want to go to school.

Chesson responded by explaining that cultural barriers and differences might’ve suggested to SDOL administrators that Qasin didn’t want to go to school, but those were likely misinterpretations; Qasin wanted to go to school.

So Chesson continued to push for him. And eventually the district relented. They sent him to Phoenix Academy. Other options were not discussed — including the district’s public high school, McCaskey, which offered more English classes and a program called the “International School” specially tailored for newly arrived immigrants, like Qasin.

Other students in similar situations went to Chesson as well. She observed a pattern: older students with limited English language skills would experience delays being enrolled into SDOL. Or their enrollment would be denied outright. And when people like Chesson would speak out and push to get them enrolled, those kids would be sent to Phoenix Academy.

With a little research, Chesson learned that Phoenix wasn’t optimal. The students-to-teacher ratio at Phoenix was nearly four times the amount at McClaskey, for one. “Highly qualified teachers,” as defined by the Pennsylvania Department of Education, taught 92 percent of McCaskey classes, while 0 percent taught Phoenix classes. Phoenix did not offer Advanced Placement or International Baccalaureate classes, and while 83 percent of McCaskey’s students were “college ready,” none were “college ready” at Phoenix.

Reading these stats, she asked to sit in on an orientation class at Phoenix. What she saw shocked her.

“I would have described it … like a detention center,” Chesson told the court Wednesday. Instead of emphasizing what kids would be taught, administrators emphasized how they would be disciplined — what tactics so-called “behavioral specialists” at the school would use to keep kids in line. They demonstrated “handle with care” tactics — which ended with kids being pressed face first against a “clean wall” with their hands restrained behind their backs. Phoenix administrators demonstrated this to the students at orientation — a gesture that amounted to an open threat.

“This was the first impression these kids were getting,” Chesson testified.

School administrators, she said, emphasized that “this is a school of last resort.”

They also discussed that there is no homework because students can’t bring anything into or out of the school. Girls weren’t even allowed to bring feminine hygiene products.

“Education did not appear to be a focus,” Chesson said.

“I was shocked. I was disappointed that these students who had been through so much were being placed in a school like this,” she said.

“We asked why they couldn’t go to international school at McCaskey,” Chesson said. “They just said, ‘This is how it is.’”

The pattern that had been established with Qasin and Khadidja, a seventeen-year-old refugee from Sudan who had been denied enrollment and then delayed admission to Phoenix for months, continued with more refugee students — delays, enrollment denials, then after extensive advocacy, they were reluctantly placed in Phoenix.

As time passed, Qasin went to school at Phoenix. Not only did he not receive adequate English language instruction, according to Chesson, he also found himself bullied — kids would yell at him, pull his hair, and use racial slurs against him. He eventually decided to stop going to school.

Qasin told her: ‘If you give me a choice between a prison and Phoenix Academy, I’ll choose a prison.”

Chesson is a lead witness in the case against SDOL. After more than two hours of testimony, it was revealed that her job was recently eliminated — and that she continues to advocate for refugee children to get an education, despite not being paid to do so. The district’s defense attorney, Sharon O’Donnell asked her about this — why she was still advocating on behalf of refugee students like Hassan and others when she had no official agency to represent.

“I don’t need an agency to advocate for what I feel is an injustice,” Chesson said.

In day one of Lancaster immigrant testimony, a broken school emerges

By Matt Stroud, Criminal Justice Researcher/Writer, ACLU of Pennsylvania

Alembe and Anyemu Dumia

ACLU of Pennsylvania clients, Alembe and Anyemu Dunia. (credit: Molly Tack-Hooper)

When hundreds of refugees enter Lancaster, Pa. every year from countries all over the world, their first contact is often Sheila Mastropietro.

Mastropietro is the director of the immigration and refugee program at the Lancaster branch of the Church World Service. Her work involves finding housing, food, clothing and shelter for refugees — people who have fled war and adversity in their home countries, and landed in the Keystone State.

It also often involves finding them educational opportunities.

In 2010, Mastropietro started hearing complaints from case workers saying that refugee students — young people from ages 17 to 21 — were either being denied enrollment into the School District of Lancaster (SDOL), or sent to a disciplinary school, Phoenix Academy, run by a private company called Camelot Education. Mastropietro arranged a meeting with SDOL’s superintendent to ask about it.

When the superintendent didn’t deny the complaints outright, Mastropietro suggested things needed to change. Refugee students needed to be enrolled in SDOL’s main high school, the J.P. McCaskey Campus, she said, for many reasons — including that McCaskey offers a full course selection, Advanced Placement courses, an International Baccalaureate program, and extracurricular sports and other programs. Phoenix had none of that. There was another reason, too, Mastropietro said: A mainstream school like McCaskey — one with more than six times the overall enrollment numbers of Phoenix — would better help to socialize refugee students to the society they were now a part of.

The response Mastropietro received appalled her.

“If socialization is what [these students] want,” said the district’s director of pupil services, “they should go to church.”

That exchange was front and center Tuesday during the first day of testimony in Issa v. the School District of Lancaster — a lawsuit centered around how SDOL has treated young refugees attempting to enroll in the district. A class action brought by the American Civil Liberties Union of Pennsylvania along with the law firm of Pepper Hamilton LLP and the Education Law Center, the case alleges that SDOL established a pattern of doing exactly what Mastropietro had heard: Either discouraging older immigrant students from enrolling in school, or diverting them to Phoenix Academy.

And Tuesday’s testimony went further still. It described an atmosphere at Phoenix in which students were searched and patted down before school, and in which teachers would fill out correct test answers for students who weren’t able to read or understand English. It described a school where students received no homework and weren’t allowed to bring books home, and where they were forced through an accelerated curriculum regardless of whether they understood the material they were being taught. Interpreters were not provided for students, and English as a second language was more theory than practice.

“[These students] want to be educated so they can create a better life for themselves and for their families,” said Eric Rothschild, an attorney with Pepper Hamilton, presenting to the court Tuesday.

Instead, he continued, they’re speeding through high school at a break-neck pace toward diplomas that are essentially meaningless.

“A diploma without meaningful education is not going to be useful for them,” he said.

***

Sitting on the stand Tuesday, grinning wide, with her head covered in a white hijab, Khadidja Issa explained through an interpreter that she was born in Sudan, and that her family fled home when she was five years old because of “extreme heat and insecurity” in the war-torn northeast African nation. From there, she moved to Chad, where she lived with her family in a refugee camp until she was 17 years old. She’d attended school in Chad before her family left for Lancaster. None of her classes at the refugee camp were taught in English or involved learning English. But she thought the U.S. education system would help her get beyond the language barrier.

She was wrong.

She started the application process to enroll in SDOL in November, she said, and was told that she “was too old for school and that I should get a job,” she said.

“I responded that I didn’t want a job without an education,” she said.

She persisted. With the help of social workers, she was eventually told she would be enrolled in Phoenix Academy.

Despite knowing very little English, she was enrolled into eleventh grade at Phoenix, taking classes taught in English.

There were other problems with Phoenix, too, she said.

“First thing when you arrive at school is the pat down,” she said.

Issa and three other students who were recently enrolled at Phoenix all described an elaborate search procedure in which students had their shoes searched every morning before school. The students were also not allowed to bring bags, notebooks, or anything else to or from school — eliminating the possibility that they might receive or complete homework.

Sharon M. O’Donnell, representing the district, in the case, countered such testimony, arguing that search procedures in public schools are commonplace.

“I had to come into this court today and take off my shoes,” O’Donnell told the court.

Going further, O’Donnell said: “If [the students] don’t like the security, McCaskey has two full time school resource officers and … they have Tasers. And, yes, sometimes they have to use them.”

Issa nonetheless found Phoenix’s search procedures invasive.

“I have been to school before and I’ve never seen a place where they pat you down in order to enter school, and they do it every day,” she said.

The pat downs weren’t the only thing that shocked her about Phoenix.

Issa’s 16-year-old sister wasn’t “too old” for McCaskey, so that’s where she was assigned to attend school. Issa admitted that her sister has a much better grasp of English than she does.

Two young women from Burma, 19 and 17, who testified Tuesday, made the same claim; their younger brother attends McCaskey and speaks better English than they do.

Since they don’t attend McCaskey, none could testify exactly about what makes McCaskey a better school for non-English speakers, but each explained why Phoenix wasn’t getting the job done. Phoenix does not provide interpreters to students, they said, and the one period a day devoted to teaching English as a second language isn’t enough to accomplish anything approaching that goal.

Qasin Hassan, a 17-year-old Somali student, said his family fled home after his father was killed by Al-Shabab militants. They lived in Egypt for five years before immigrating to Lancaster in late 2015. Like Issa, he said class worksheets were not translated into Arabic for him at Phoenix, despite his inability to read or speak English. His English teacher would show him pictures to help him understand, he said, through an interpreter in court, but no other teacher tried this method. And both he and Issa described having teachers fill in answers on tests when they were unable to read or provide answers themselves.

Issa pointed out something potentially worse for an eager student: She said she doesn’t do anything at school; she just sits there.

“In America, if you don’t have an education, you have a very hard life,” she said.

***

Pennsylvania law dictates that students can enroll in free public education toward a high school diploma until they turn 21 years old.

Repeatedly, SDOL’s representative, O’Donnell, stressed that Phoenix Academy provides students with the opportunity to receive a diploma.

Phoenix can also act as a bridge toward going to McCaskey, she said. But only “if the students choose to go.”

“Many don’t make that choice,” she said, “because they’re able to get their education” and then “move onto jobs where they can make money.”

“Some students do very well,” she insisted, and the district’s policy is to consult with students when they arrive to determine the best course of action. “Once they show up at our door, then the idea is to assess them and figure out how best to serve them,” she said. They are not sent to Phoenix or McCaskey based on language proficiency, she said, but based on their ability to graduate on time.

“To educate and graduate” is the school’s premise, she said.

And while students and people like Sheila Mastropietro — the Church World Service refugee coordinator — may quibble with Phoenix’s approach to education, O’Donnell said, the commonwealth of Pennsylvania “has told us that the magnet school, Phoenix Academy, is just fine.”

“If we hear testimony that kids aren’t getting help, it’s because they’re not asking,” O’Donnell said.

“It’s not that they’re being lost or that they’re being pushed aside,” she continued. “They’re being attended to, and being attended to very well.”

To Issa, O’Donnell stressed these ideas. Going further, she said that transferring to McCaskey — a school with a much slower academic schedule — might not allow Issa to receive a diploma and graduate.
Issa responded: “I don’t just want the graduation. I want an actual education.”

***

ACLU-PA, along with lawyers from Pepper Hamilton, and the Education Law Center, are asking that the Honorable Edward G. Smith, U.S. District Judge for the U.S. District Court for the Eastern District of Pennsylvania, certify a class for students like Issa and Hassan; declare that the district has violated federal education law; and, more simply, that they provide sufficient language supports to give older immigrant students a fighting chance at understanding a curriculum taught in English. They’re also asking that kids not be funneled into Phoenix based on their language ability and age. “Phoenix is supposed to be a ‘choice’ school,” said ACLU-PA staff attorney Molly Tack-Hooper, “but the district doesn’t give these kids a choice.” The plaintiffs argue that SDOL’s treatment of these older immigrant students constitutes “irreparable harm.”

But for people like Hassan, it’s about something more than that.

Tuesday he described being bullied by Phoenix students who would do things like kick the door of the bathroom stall while he was inside. They would yell things at him — things he didn’t understand — and then walk away, laughing. He felt like he couldn’t tell anyone that he was being messed with. He had no one who he could turn to. First he avoided using the bathroom. Eventually, pushed by his frustrations about learning nothing at Phoenix and being bullied, he simply decided to stop attending school.

In an exchange with Judge Smith toward the end of his testimony, the judge asked Qasin Hassan how he felt when he learned that his family would be moving to the U.S. His interpreter, a woman with white hair, transmitting his testimony to the court, interpreted for him.

“Happiest person in the world,” she said, speaking for Hassan. “America is number one.”

Then Judge Smith asked Hassan whether his experience at Phoenix had made him think less of the country he and his family had waited so long to be a part of. Was he disappointed, the judge asked, when Hassan got to America and realized it wasn’t what he expected?

In the courtroom, Hassan replied in Arabic, but the woman interpreting Hassan’s answers raised her hand to her mouth and turned away. She’d begun to cry and needed a moment to gather herself. A few seconds later she looked toward Judge Smith and translated what Hassan said.

“I didn’t get the education or opportunity I’d expected.”

——-

Matt Stroud joined the ACLU of Pennsylvania in 2016 as a criminal justice researcher and writer. Prior to joining the ACLU, Matt held staff reporting positions with the Associated Press and Bloomberg News, and has written for publications including Esquire, The Intercept, Politico, The Atlantic, and The Nation, as well as newspapers and magazines throughout Pennsylvania.

“One of the Most Transformative Years of My Life”

By Michael Kokozos, 2015 Frankel-Adair Scholarship Winner

Michael Kokozos

Michael Kokozos

I have learned this past year that classroom walls are not magical barriers to the harsh, painful, and at times tragic realities taking place in our society particularly as a facilitator this summer through LEDA (Leadership Enterprise for a Diverse America) at Princeton University. The student scholars remind me, however, that paralysis is not an option. We can ignore problems or choose to tackle them. If we attempt to tackle them, we have so much to learn from each other to raise awareness and foster critical reflection preparing the groundwork towards action.

Their unceasing energy and wisdom transport me to the annual ACLU Bill of Rights Dinner — a much-needed jolt in the life of a doctoral student who can easily forget modern-day heroes do exist tirelessly fighting on behalf of all of us for better tomorrows. I recall the Q&A with New York Times Op-Ed columnist, Charles M. Blow, and my awe of his willingness to even take on his political allies for their complicity in persisting inequalities causing undue harm especially to people of color. Truly, we must be willing to see far beyond the fog of fairness and with keen eyes.

These days I also live in the library writing my dissertation, reading and analyzing texts. I examine school textbooks in hopes that the representation of so many missing LGBTQ voices will finally find a heading. I peruse legislative documents in hopes that American policy will focus more on how we can include rather than exclude when it comes to national belonging. I reflect upon my journal entries looking forward to the life I imagined in my head as a boy still yet to come. History, I have learned, takes time to catch up to matters of the heart.

Thus, I see my pursuit of an Education, Culture, & Society degree enhanced by the Frankel-Adair scholarship as symbolic of a lifelong commitment to social justice. One of my favorite quotes is when the scientist and mathematician Archimedes would awe listeners by exclaiming: “Give me a place to stand, and I will move the earth.” Harnessing a seriousness of purpose and collaborating with others to move this world with all our might — this is what it means to me to be a part of something bigger than the self, and this is what it means to me to be a member of the ACLU.

This award has made a lot of things possible for me. For example, I will continue teaching my passions to educators across the country from elementary school students and teachers to college students and professors. I will continue to develop my research and leadership acumen to interrogate curriculum, assessing its effectiveness including and integrating diverse LGBTQ voices and perspectives, and securing the rights and liberties of my community and anyone else hurt by a system that can transcend its fears by committing to love. I will continue to bridge gaps between theory and practice by listening to and supporting the voices tied to a past that launched this movement in the first place.

So, thank you ACLU of Pennsylvania family. Thank you, Peggy Curchack, for your support and kindness. Thank you, Alli Harper, for your passionate dedication to the Young Leaders Outreach Team (YLOT). Thank you, Ben Weimer, for advocating for an ACLU presence at the University of Pennsylvania. And thank you to my co-scholar, D’Angelo Cameron, for your activism — past, present, and future. This year has been one of the most transformative years of my life. Your spirits and that of teaching and learning are imbued within this award and now within me.

Thank you.

Pennsylvania’s Proposed Blue Lives Matter Law is Redundant, Unnecessary

By Matt Stroud, Criminal Justice Researcher/Writer, ACLU of Pennsylvania

(13th and Locust, Philadelphia, PA. October 21, 2014, credit: Ben Bowens)

(13th and Locust, Philadelphia, PA. October 21, 2014, credit: Ben Bowens)

Pennsylvania could soon have its own Blue Lives Matter law.

Taking cues from Louisiana — which became the first state in the country to pass legislation deeming law enforcement officers a protected class — Pa. Representative Frank Burns (D-Cambria) introduced legislation July 13 to do the same in the Keystone State.

“I respect the difficult job police and corrections officers perform keeping us safe from criminals and I’m appalled that all too often, officers themselves are targeted for assault, ambush or – as we found out in Dallas – death,” Burns said in a prepared statement prior to releasing text of the proposed bill. “If ever there was a group in need of being a protected class, it’s those who put their lives on the line everyday to keep the rest of us safe from the criminal element.”

Burns’ bill would amend the portion of Pennsylvania’s crimes and offenses law that deals with assault. Under that portion of the law, a criminal penalty can be made more severe if it’s “motivated by hatred toward the actual or perceived race, color, religion or national origin, ancestry, mental or physical disability, sexual orientation, gender or gender identity of another individual or group of individuals.” Burns’ bill would add “employment as a law enforcement officer” to that list of protected groups. Not only would it include officers working the streets of municipalities, cities, and the state police; it would also encompass “a corrections officer, a parole agent, and a member of a park police department in a county of the third class.”

Similar proposals have been advanced in Kentucky, Wisconsin, and Florida.

At least one American Civil Liberties Union chapter has spoken out against the premise behind such proposals. When an alderman put forward Blue Lives Matter legislation in Chicago, the ACLU of Illinois issued a statement calling the measure a “distraction” that attempts “to shift attention from the work of the Black Lives Matter movement, which has challenged police abuse.”

But the ACLU isn’t the only group pointing to the uselessness of such laws.

When Texas senators John Cornyn and Ted Cruz teamed up with North Carolina Senator Thom Tillis to introduce the “Back The Blue Act of 2016,” the response from conservative thought leaders was tepid. The federal version of Pennsylvania’s Blue Lives law would enact a 30-year minimum sentence for killing a federal judge, or law enforcement officer. Conservative author and Manhattan Institute fellow Heather MacDonald told Christian Science Monitor that these bills were more about pandering to cops than solving any significant policing issues. She said it’s “easy for legislators to pass legislation and they feel like they’re accomplishing something…” Former cop and current University of South Carolina assistant law professor told CSM, “I’m not really sure what establishing a mandatory minimum of 30 years is going to do, unless you really want to get them into the federal system for some reason.” Conservative blogger and Hot Air contributor Taylor Millard put it more bluntly:

“There is no reason whatsoever to make killing a police officer a federal crime. FBI stats show they’ve gone down on a pretty steady rate, with spikes here and there. It’s an unpopular sentiment to have following the murder of five Dallas police officers (and last night’s shootout in Baltimore), but what Cornyn, Cruz, and Tillis are trying to do is score brownie points with the law enforcement community.”

Pennsylvania’s law is similarly unneeded, explains ACLU-PA’s Deputy Legal Director, Mary Catherine Roper. “The current criminal code actually provides stronger penalties than the ‘hate crimes’ designation,” she said. “Hate crimes is a one level enhancement, the crimes code provides in some places for two levels difference between, say, simple assault on [a citizen] and simple assault on a cop.”

“There are more important ways to support police,” she continued. “Like pay them a professional salary.”

It’s a tough time to be a cop, that’s certain. With deranged killers taking out their homicidal anger on police in Baton Rouge and Dallas — killing eight officers in total — there’s no doubt that good cops need our support. But proposing redundant laws isn’t the way to do that.

Read Rep. Burns’ Pennsylvania bill here. Track its progress here.

Matt Stroud joined the ACLU of Pennsylvania in 2016 as a criminal justice researcher and writer. Prior to joining the ACLU, Matt held staff reporting positions with the Associated Press and Bloomberg News, and has written for publications including Esquire, The Intercept, Politico, The Atlantic, and The Nation, as well as newspapers and magazines throughout Pennsylvania.

S. 3100 Is BAD For Pennsylvania

On Tuesday, July 5, the ACLU of Pennsylvania sent letters to Senators Pat Toomey and Bob Casey asking them to oppose proposed anti-immigrant legislation.

READ THE LETTERS

S. 3100 would punish 32 Pennsylvania counties for upholding constitutional safeguards against unlawful detention. Unfortunately, Pennsylvania’s own senator, Patrick Toomey, is the sponsor of the bill.

Senator Toomey has derided Philadelphia for policies that keep local law enforcement officials out of the deportation business. But deportation is a job that should be left to the federal government. When local police and sheriffs take on immigration enforcement duties, trust and cooperation with immigrants is eroded, undermining public safety.

While Philadelphia may make for a convenient target of criticism, at least 32 Pennsylvania counties — like hundreds of other counties across the U.S. — rightly require Immigration and Customs Enforcement (ICE) to get a warrant like any other law enforcement agency if they want to detain individuals, for deportation purposes. S. 3100 would require local police to share information about immigrants in their jails, even if ICE does not have a warrant for their arrest.

As punishment for noncompliance, S. 3100 would take over $62 million in federal funding away from these Pennsylvania counties, funds that pay for low-income housing, disaster recovery, public works and economic development. This is bad for Pennsylvania.

Take action on behalf of Pennsylvania and let your senators know that this bill is no good.

PA House Rushes to Vote on Extreme Anti-Abortion Bill

By Julie Zaebst, Director, Clara Bell Duvall Reproductive Freedom Project

IMG_2110

Update: June 21, 2016

Soon after this post was originally published in early April, HB 1948 stalled in the House. Now, the House is poised to take a final vote on the bill as early as this afternoon, Tuesday, June 21st. A companion bill, SB 888, has also been introduced in the Senate and has been referred to the Judiciary Committee.

April 6, 2016

Yesterday, the House Health Committee moved with breath-taking speed to vote on an extreme anti-abortion bill that would make it illegal to provide abortion care to some of the most vulnerable women in some of the most difficult circumstances. House Bill 1948 would ban abortion after 20 weeks and would ban the safest and most common method of second trimester abortion, preventing doctors from making decisions based on medical science and putting women’s health at risk.

The bill contains only a very narrow exception of the health and life of the woman – one that could force doctors to wait until the woman’s health deteriorates before providing her with the abortion care she desperately needs. And the bill includes no exception for rape, incest or fetal anomalies, which often aren’t discovered until a woman’s 20-week ultrasound.

Make no mistake – this is one of the most extreme abortion bans we’ve seen in any state legislature. Only two other states – Kansas and Oklahoma – have enacted this type of “method ban,” and both of these laws have been put on hold by the courts because they raise serious constitutional issues. Method bans substitute a political agenda for a doctor’s expert opinion about which procedure is best for their patient – and threaten doctors with criminal charges if they follow their professional training and conscience and perform an abortion using this method.

But the House Health Committee didn’t pause to consider the expert opinions of doctors or to ask themselves whether this bill would pass constitutional muster. The committee voted to advance HB 1948 just one business day after the legislation was introduced and after just an hour of debate. Members voted against holding a public hearing that would have provided an opportunity for the real experts – medical professionals and families who have sought later abortion care – to share their knowledge and experience with lawmakers.

Anti-choice lawmakers claim that abortion restrictions don’t “punish women,” as Donald Trump recently suggested they should. It’s true that HB 1948 wouldn’t impose criminal penalties on women – only on the medical professionals who are addressing women’s medical needs using evidence-based protocols that are the standard of care for their profession.

But let’s be clear, these types of restrictions do punish women. Just last week, we heard the story of a woman in Texas who was forced to wait for her fetus to die in utero and endure a stillbirth because of a similar type of restriction on later abortion care. When women and their families are confronted with complex medical issues like this, they deserve compassionate care guided by the best medical science – not political interference.

We can’t stand by while lawmakers ram through a dangerous bill with callous disregard for the health and well-being of women seeking later abortion care or for the medical expertise of the doctors who are doing their best to serve them. Contact your lawmaker today and let them know you believe a woman’s health, not politics, should drive important medical decisions.

——-

Julie Julie Zaebst has served as director of the Clara Bell Duvall Reproductive Freedom Project since 2014, bringing more than 10 years of experience as a program manager and advocate. A social worker by training, she previously worked in child welfare and as the associate director of the civic engagement Office at Bryn Mawr College.

Marijuana Deform at the State Capitol

By Andy Hoover, Legislative Director, ACLU of Pennsylvania

Weed_Capitol_AH

In June of last year, members of the state House received this co-sponsorship memo from one of their colleagues. The opening paragraph reads:

I hope you join me in sponsoring legislation that will reduce the penalty for a first or second offense of possessing a small quantity of marijuana (under 30 grams) from a misdemeanor to a summary offense. Downgrading this offense from a misdemeanor to a summary offense would have a positive effect on local law enforcement efforts, allowing police and prosecutors to focus their time and resources on more serious offenses.

At first glance, you might think, ‘Wow! This is progress.’ The memo concludes:

As a former law enforcement officer, I strongly believe in cracking down on drug dealers and those who prey on the young or weak with drugs. But those defendants are addressed elsewhere in the Controlled Substances Act. For individuals who merely possess small amounts of marijuana, I believe this adjusted grading makes sense, saving taxpayers thousands of dollars in court costs.

‘Reason is breaking out at the General Assembly,’ you’re thinking.

Well, don’t get out your Ben Harper records and get ready to burn one down just yet. Like anything at the legislature, details matter. And the details here ain’t good.

House Bill 1422, introduced by Representative Barry Jozwiak of Berks County, does indeed lower the grading of possession of a small amount of marijuana, defined as less than 30 grams. Of course, a summary offense is still a criminal offense, though it is the lowest Pennsylvania can go in state law, short of full-blown legalization.

But that’s not the real story with HB 1422. The real story is the massive increase in the fines for possession. Under current law, a person charged with possession faces a maximum fine of $500. There is no minimum fine. According to Jozwiak’s own co-sponsorship memo, the typical fine is around $200.

His bill, though, turns that concept on its head and institutes a minimum fine of $500. With no maximum fine. And it climbs from there. For a second offense, the minimum fine is $750, and a third offense brings a minimum fine of $1000.

If you’re a member of the ACLU or have any cursory knowledge about civil rights, you can see where this is going. If implemented, HB 1422 gives the police perverse incentive to excessively stop, search, and harass people to generate revenue from marijuana users, people who are no more danger (and maybe less) to public safety than people who use the legal drug of alcohol. (Access to which the legislature just expanded. FYI.) And that will disproportionately impact people of color and people from certain neighborhoods.

This is not mere conjecture. In 2013, the ACLU released our report The War on Marijuana in Black and White. The report analyzed nationwide data on arrests for marijuana and found that Pennsylvania had the sixth-highest rate of racial disparity in marijuana arrests between 2001 and 2010. A black Pennsylvanian was nearly six times more likely than a white Pennsylvanian to be arrested for a marijuana offense, even though research consistently shows parity in usage among people of different races.

Plus, without a ceiling set on the fine, it is easy to imagine some cowboy judge who thinks that the War on Drugs was a swell idea dishing out fines of thousands of dollars for a single offense. After all, the bill gives judges discretion to implement any fine they want, as long as it is not below $500.

Of course, this is going in the exact opposite direction of the national trend. In December, Delaware became the 19th state to decriminalize marijuana possession, creating a civil offense with a fine not exceeding $100. Maryland followed in February. In November, Maine, Florida, and Nevada will vote on ballot initiatives to start some form of legalization.

Meanwhile, the city of Philadelphia has saved millions of dollars with its local decriminalization ordinance that created a civil offense with a fine of $25 for possession and $100 for smoking in public. And in 2015, Colorado generated $135 million in tax revenue from its tax-and-regulate initiative.

I give Rep. Jozwiak and the House Judiciary Committee credit for continuing to think about ways to reform marijuana laws. But tagging cannabis users with fines many times larger than current law is not the way to go.

There is a smart way to do this. Representative Ed Gainey of Pittsburgh has introduced House Bill 2076. That bill also lowers the grading of possession to a summary offense and lowers the maximum fine to $100 without risk of incarceration or the suspension of the person’s driver’s license, which is currently one of the penalties for possession.

Two months ago, the legislature acknowledged the reality that cannabis can help patients by passing Senate Bill 3, what became Act 16. It was a small but significant recognition that the commonwealth has handled marijuana in the wrong way for decades. It’s time to fix the mistakes that have been made and get smart on cannabis.


Andy_Blog_HeadhshotAndy Hoover joined the ACLU of Pennsylvania in December 2004, as a community organizer and became legislative director in 2008. As the organization’s lead lobbyist, Andy largely deals with civil liberties and civil rights issues at the state capitol.

In the Struggle for Equality, We Choose Dignity and Respect

By Andy Hoover, Legislative Director, ACLU of Pennsylvania

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For more than a decade, the ACLU of Pennsylvania has advocated for protections from discrimination for gay and transgender Pennsylvanians. We have always known that the opposition would get uglier as we got closer to passage. And now that we have a coalition of business and academic interests at our back called Pennsylvania Competes and some of the most prominent members of the General Assembly in support, “the antis” – in the parlance of advocates- have sunk to their lowest level yet, as was inevitable.

The Pennsylvania Fairness Act- House Bill 1510 and Senate Bill 974- amends the commonwealth’s non-discrimination law to include sexual orientation and gender identity or expression as protected classes in employment, housing, and public services. It levels the playing field for gay and transgender Pennsylvanians. We’re the only state in the northeast that does not have some form of this protection.

A few weeks ago the Pennsylvania Family Institute- the state’s leading anti-gay, anti-trans, anti-woman advocacy group- launched a new campaign called “defend my privacy” that claims that the Pennsylvania Fairness Act would make it illegal to have gender-specific public restrooms. That’s not a joke and it’s not from The Onion. That’s actually what they say.

The areas in which the Pennsylvania Human Relations Act provides protection from discrimination include “public accommodations.” This means that people cannot be denied services based on the protected classes in the act. Think of an interracial couple being denied a wedding cake from a baker because of their race. Or a public golf course refusing to allow women to play there.

The antis have taken a bill that is intended to stop discrimination against gay and transgender people in their daily lives and twisted it into an attack on the simple act of peeing in peace. Last year Brae Carnes, a trans woman from Canada, and Michael Hughes, a trans man from Minnesota, took on the absurdity of the antis’ argument by posting pictures of themselves in public bathrooms of their assigned gender at birth.

Transgender women are women. And transgender men are men. That’s it.

At the ACLU of Pennsylvania, we share the values of privacy and public safety. In my 11 years here, I cannot think of another organization in this state that has done more to protect the right to privacy than us. The issues are too numerous to list.*

Privacy and public safety are not compromised by ensuring that people can use public services based on their gender identity. The city of Harrisburg has had an ordinance like the Pennsylvania Fairness Act for more than 30 years without complaint. If there were problems in Harrisburg or in any of the 30+ municipalities with such ordinances, I can assure you that the antis would tell us.

But the rhetoric of the antis- from the Pennsylvania Family Institute to the advocates and politicians behind recent anti-LGBT legislation in North Carolina and Mississippi- does compromise public safety. It inflames hostility toward transgender Americans. According to the FBI, hate crimes against transgender people tripled in 2014. And advocates believe the actual victimization number is much higher.

In advocating for the Pennsylvania Fairness Act, the ACLU of Pennsylvania and its allies have chosen a campaign of respect, dignity, and basic human decency. It is a shame that the people who oppose this bill cannot offer transgender Pennsylvanians the same.
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*But here are a few. Women’s reproductive healthcare, the Real ID Act, two-party consent in the state Wiretap Act, DNA collection from people not convicted of a crime, protecting data in prescription drug monitoring, the PATRIOT Act, anonymity for parents who give their biological children for adoption, access to location data gathered by EZPass. Etc., etc., etc.

Andy_Blog_HeadhshotAndy Hoover joined the ACLU of Pennsylvania in December 2004, as a community organizer and became legislative director in 2008. As the organization’s lead lobbyist, Andy largely deals with civil liberties and civil rights issues at the state capitol.

The Most Important Criminal Justice Reform Case You’ve Never Heard Of

By Mary Catherine Roper, Deputy Legal Director, ACLU of Pennsylvania

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On Wednesday, the Supreme Court of Pennsylvania (SCOPA) heard argument in Kuren v. Luzerne County, which may be the most important case you’ve never heard of. The one question before SCOPA in Kuren is whether clients of an understaffed public defender office who know their lawyers do not have time to fight for them can ask any court to protect their rights.

Like many places around the country, public defender offices in Pennsylvania are chronically underfunded and understaffed. If you are one of the 80% of people charged with a crime who cannot afford to hire a lawyer, that means you will be represented by a lawyer who has so many cases that he or she has little or no time to talk with you, no time to hunt down documents or witnesses who can help with your defense, no time to argue for a reduction in your bail or your release without bail, and no time to consider your case on an individual basis. You will see your lawyer only for a few minutes at court before your case is called – or, if you can’t make bail, through a video link while your lawyer stands in a courtroom and you sit in jail.

In most counties in Pennsylvania, your local PD office is a “plea mill.” That means that your lawyer will have no chance to investigate your case, but will bring you a deal and tell you that’s the best you will get from the prosecutor. He or she will tell you that the sentence, if you lose at trial, will be much worse, and that you will wait a year – likely in jail – for that trial, during which time you will lose your job, your home, and custody of your children.

But unlike any other state in the country, Pennsylvania has NO statewide funding for or oversight of PD offices. The local county government decides how much funding to give its PD office. Now, if Luzerne County and the Pennsylvania Commonwealth Court have their way, no court can order them to provide more resources.

In April 2012, the ACLU-PA and Dechert LLP filed suit against Luzerne County on behalf of Al Flora, Jr., who was then the Chief Public Defender of Luzerne County, and indigent criminal defendants whom the overloaded PD could not represent.

Al Flora, Jr. |  ©Marco Calderon Photography

Al Flora, Jr. | ©Marco Calderon Photography


The ACLU presented the court with huge amounts of evidence that the Luzerne County PD office couldn’t keep up with all of the people who needed help. Most of the lawyers in the PD office worked without desks, computers or even phones. The administrative staff could not even keep track of files, much less help the lawyers with investigations or client communications. Two months after we filed suit, the trial judge ordered the county to allow Flora to hire more lawyers as a first step, and to come up with a plan to deal with the “crisis” in the PD office.

Luzerne County’s “plan” to deal with the crisis? Firing Al Flora and hiring a new Chief Public Defender who tried to stop the case from moving forward.

When the ACLU continued the suit on behalf of the indigent clients who rely on the PD office, the county argued that criminal defendants aren’t allowed to file suit to protect their right to adequate representation – that as long as they have a lawyer in name, they have to wait to be convicted, then appeal their case, then file a “post-conviction relief” petition claiming their lawyer didn’t do a good enough job. The trial court agreed and dismissed the claims. The Commonwealth Court agreed and affirmed. Now it is for the Pennsylvania Supreme Court to decide.

But the court will have some help. The United States Department of Justice filed a brief with the Pennsylvania Supreme Court saying that PD clients in Pennsylvania should be able to sue to improve the PD office, just as PD clients in many other states have done. The American Bar Association also chimed in, as did the National and Pennsylvania Associations of Criminal Defense Lawyers. And the Innocence Project, which has proven the innocence of hundreds of wrongly convicted people, filed a brief saying that inadequately prepared lawyers are “the biggest factor” leading to wrongful convictions.

Al Flora lobbied the county for additional funds for two years before resorting to filing suit. If the county can fire any chief public defender who is willing to sue, and can stop PD clients from suing, then there will be no protection for the rights of thousands of poor people in Pennsylvania who are charged with crimes.

We need the PA Supreme Court to get this one right.

Mary CatherineMary Catherine Roper is the deputy legal director at the ACLU of Pennsylvania, where she coordinates litigation on a broad range of civil liberties issues, including freedom of speech, religious liberty, racial and ethnic justice, equality for lesbians and gay men, student rights, privacy, prisoners’ rights, and police misconduct.

No, It’s Not Illegal to Record the Philadelphia Police!—Fields/Geraci Ruling Explained

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By Molly Tack-Hooper, Staff Attorney, ACLU of Pennsylvania

On February 19, 2016, a federal trial court judge in Philadelphia ruled that there is no First Amendment right to record the police—unless you make it clear that you are recording for the purpose of criticizing the police. The ruling has confused lawyers and non-lawyers alike. We’ll break it all down for you.

What was the case about?

The ACLU-PA has filed several lawsuits against the City of Philadelphia on behalf of people who were arrested or detained for attempting to photograph or record the Philadelphia police performing their duties in public. The ACLU alleges that, for years, the City has ignored substantial evidence that Philadelphia police officers routinely retaliate against people who record them, and has failed to adequately train, supervise, or discipline officers. The two plaintiffs in these cases, Rick Fields and Amanda Geraci, filed the fourth and fifth lawsuits in the series.

In September 2013, Rick Fields, a Temple undergraduate student, observed approximately 20 police officers clearing out a house party across the street. He paused on the sidewalk to take a photo of the scene with his iPhone, and a police officer asked him whether he enjoyed photographing grown men and ordered him to leave. The officer then arrested Fields and cited him with obstructing a highway.

In September 2012, Amanda Geraci was serving as a legal observer at an anti-fracking protest at the Convention Center. When a protestor got arrested, Geraci tried to take photos of the arrest (as legal observers are trained to do), and a police officer pinned her up against a column and restrained her across the neck.

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What happened in the trial court?

The trial court granted what’s known as “summary judgment” to the defendants, throwing out Fields’ and Geraci’s First Amendment claims. Here’s how the judge who decided the case, the Honorable Mark A. Kearney, framed the issue:

[Rick Fields and Amanda Geraci] never told the police why they were capturing images of the police interacting with people they did not know. They were watching their police officers in action and wanted to capture the images because, at least for one of the citizens, “[i]t was an interesting scene. It would make a good picture” and for the other because she is a legal observer trained to observe the police. The question is whether citizens also enjoy a First Amendment right to photograph police absent any criticism or challenge to police conduct.

Judge Kearney’s answer was “no.” Here are excerpts of his explanation:

Neither [Fields nor Geraci] uttered any words to the effect he or she sought to take pictures to oppose police activity. Their particular behavior is only afforded First Amendment protection if we construe it as expressive conduct. . . .

Fields and Geraci essentially concede they spoke no words or conduct expressing criticism of the police before or during their image capture. They instead want to persuade us “observing” and “recording” police activity is expressive conduct entitled to First Amendment protection as a matter of law. In their view, observing is a component of “criticizing” and citizens may engage in speech critical of the government. We find no controlling authority compelling this broad a reading of First Amendment precedent.

Is the ACLU appealing?

Heck yes. We filed notices of appeal on March 21, 2016.

What have other courts said about whether there’s a First Amendment right to record the police?

The ability to scrutinize the actions of public officials is at the core of what the First Amendment is supposed to protect. The First Amendment protects access to information about the government as well as free expression. So every federal appeals court in the last decade and a half that has considered whether there’s a First Amendment right to record the police has ruled that, yes, there is. In other words, Judge Kearney’s ruling goes against the weight of authority. The U.S. Court of Appeals for the Third Circuit (the federal appeals court that covers Pennsylvania) hasn’t yet addressed that question. But the Fields and Geraci appeals will allow the Third Circuit a chance to weigh in soon.

Does the trial court decision in Fields and Geraci mean it is currently illegal to record the police in Philadelphia? Can I now be arrested in Philadelphia for taking pictures of the police?

NO! Even if there were no constitutional right to record the police (and, again, we think there absolutely is such a right), that doesn’t make it illegal to record the police. There is no law that prohibits you from recording the police. Police can only stop you or arrest you if they suspect you of a crime. Recording the police is not a crime. So it’s not a valid basis for a stop or an arrest.

And it’s worth noting that the Philadelphia Police Department agrees with the ACLU’s view of the First Amendment. Since November 2012, the official written policy of the Philadelphia Police Department has said that civilians do have a First Amendment right to record the police, and that police officers should expect to be recorded when they are out in public, and should not interfere with attempts to record them.

So by all means, go download our Mobile Justice app, and use it to record the police in public places. Civilian recordings are a vital tool for deterring police abuse and holding the police accountable when they cross the line. And if you have any questions about what you can and can’t do in Pennsylvania, read our “Know Your Rights” brochure about the right to record the police. Judge Kearney’s ruling doesn’t change anything in there.

So if I am still free to record the police, why does it matter whether or not the First Amendment protects that right?

Without a recognized First Amendment right to record the police, a legislature could pass a law making it illegal. Sound crazy? Well, Texas already tried to pass a law that would prohibit anyone standing within 25 feet of a police officer from recording them—whether or not they were in any way interfering with police activities. Constitutional protection is necessary to prevent that kind of legislative attack on our fundamental freedoms.

In addition, having the courts recognize a First Amendment right to record the police sends an important message. Like many public officials, police officers take an oath to uphold the Constitution. It’s important to establish that protecting the Constitution means respecting the public’s right to observe and record the police—a critical means of holding the police accountable for misconduct.

Molly-Tack-HooperMolly Tack-Hooper started at the ACLU of Pennsylvania as a volunteer legal fellow in 2010-2011 and returned in 2013 as a staff attorney focusing on civil liberties issues arising in Central Pennsylvania and on immigrants’ rights. Molly is an active member of the Philadelphia Bar Association, serving as co-chair of the Civil Rights Committee in 2015 and 2016 and vice-chair of the Public Interest Section in 2016.