Press Release: ACLU Report Exposes Unjust Detention Of Youth

Pre-Trial Juvenile Lockup In Massachusetts Disproportionately Impacts Youth Of Color

BOSTON - A widespread practice in Massachusetts of locking up youth accused of minor offenses and who pose little or no danger to their communities is unfair, threatens public safety and wastes public money, according to a report released today by the American Civil Liberties Union's Racial Justice Program and the ACLU of Massachusetts.

The report, entitled "Locking Up Our Children: The Secure Detention Of Massachusetts Youth After Arraignment And Before Adjudication," documents the use of detention by state judges as a rehabilitative tool to frighten youth never convicted of wrongdoing. The report also addresses the woeful lack of placement availability in the state's child welfare and mental health systems that leave detention as the only viable option for youth who cannot safely be returned to their homes.

"Massachusetts is simply locking up too many kids charged with delinquent behavior before a formal determination of their guilt or innocence," said Robin Dahlberg, senior staff attorney with the ACLU Racial Justice Project and the principal author of the report. "Thousands of youth who are neither flight risks nor dangers to their communities are detained while they await trial. This only exacerbates any existing behavioral problems or educational difficulties and is a significant and wasted expense to taxpayers."

According to the report, Massachusetts detains a higher percentage of youth pre-trial than 33 other states. The Commonwealth detains 5,000 to 6,000 youth in secure facilities each year, many of whom do not appear to be high-risk. Last year, 78 percent of them were charged with misdemeanors or low-level felonies, and more than 80 percent of them were eventually released back into their communities after spending an average of 25 days in lockup awaiting arraignment.

Additionally, youth of color make up 60 percent of those in detention, even though they comprise only 20 percent of Massachusetts' juvenile population.

The report also concludes that the overuse of pre-trial lockup wastes taxpayer dollars. In 2006, it cost roughly $16,000 to detain a youth for 16 days in a secure lockup. By comparison, it costs taxpayers less than $1,500 to provide six to eight weeks of supervision to ensure that youth permitted to remain at home return to court.

"Far from assisting youth in dealing with the issues that may have gotten them into trouble, secure detention is one of the most accurate predictors of future criminal behavior and other problems," said Amy Reichbach, racial justice advocate with the ACLU of Massachusetts. "This approach is failing both youth and our communities."

Key communities in Massachusetts are particularly affected by the over-reliance on detention of youth. For example, youth in Worcester County are detained at a higher rate than youth in other counties: 83 percent of detained kids are charged with misdemeanors or low-level felonies. In Springfield, 40 percent of all youth arrests are for misbehaving or acting out at school. And in Holyoke, 25 percent of all kids are arrested for school-based offenses.

"Massachusetts should create effective alternatives to pre-trial lockup and reserve secure detention for the relatively small number of children who truly need it," said Carol Rose, Executive Director of the ACLU of Massachusetts. "We should invest our scarce tax dollars more wisely to keep our kids in school rather than in lockup and, in so doing, make our communities safer in the long run."

A full copy of the report can be found online at

http://www.aclu.org/crimjustice/juv/35216res20080514.html or
http://www.aclum.org/lockingupkids

Additional information about the ACLU Racial Justice Project can be found online at:
http://www.aclu.org/racialjustice/index.html

Additional information about the ACLU of Massachusetts can be found online:
http://www.aclum.org

News: ACLU queries Harvard's police

Reporter David Abel of the Boston Globe has written this story on our work to find out why the Harvard University Police Department has apparently been using an undercover photographer to take pictures of political protestors. The story quotes John Reinstein, our Legal Director, and refers to the fact that the ACLU of Massachusetts is representing two protestors who were arrested in March after trying to take pictures of Harvard's undercover photographer himself.

We'd like to know what they're doing and why, and whether Harvard is part of the FBI's Joint Terrorism Task Force, which some other schools around the country have joined.

Reporter Jamison A Hill of the Harvard Crimson broke the story yesterday, and followed up today with an HUPD rebuttal that raises new questions.

News: When school needs counter student rights

The Boston Globe's Kay Lazar wrote this excellent front-page story on what we often call the "school to prison pipeline." The piece quotes Amy Reichbach, our Racial Justice Legal Fellow.

Poll on Lexington decision in favor of books encouraging tolerance for gay people

The Lexington Minuteman is running a poll now, asking whether people support the recent court decision in favor of teaching about diverse families, including families with gay and lesbian parents.

A "yes" vote favors the side the ACLU was on -- and for now, the "yes" votes are a little ahead.

News: Federal Court: No Parent Notification on Gay-Themed Books OK

Joan Oleck at School Library Journal quotes Sarah Wunsch, our Staff Attorney, in this article about the federal court rulings allowing schools to continue using books that teach about diverse families, including families headed by gays and lesbians.

News: Speaker policy criticized

Brenda J. Buote of the Boston Globe cites the work of the ACLU of Massachusetts in this article about a School Committee policy requiring teachers to get approval from the principal before bringing outside speakers to class.

News: State forsakes speech appeal

The Springfield Republican cites Bill Newman and Sarah Wunsch, attorneys for the ACLU of Massachusetts, in this article about the State dropping its appeal of a ruling that the Department of Education violated the free-speech rights of Alfie Kohn, a speaker invited to a 2001 education conference.

New York Times spotlights Anthony Romero at BU for Constitution Day

In 2004, Congress passed a law requiring any school or college receiving federal funds to teach about the Constitution on or around Sept. 17, the day "We the People" adopted the Constitution in 1787.

Today's New York Times has an article about how most students still don't know much about the Day -- but BU and the ACLU get special mention for bucking the trend. Anthony Romero, Executive Director of the national ACLU, will speak Monday night at Boston University's Constitution Day observance.

Justice in Jena

The Supreme Court session that just ended underscores the importance and timeliness of our curriculum for schools, Rights Matter: The Story of the Bill of Rights.

Rights Matter traces the long struggle, with repeated setbacks, to make this country live up to the promise of its founding documents. Among other things, it describes the role played by the Supreme Court in rolling back the gains of the post Civil War Reconstruction period. And now the Court is at it again, invoking Brown v. Board of Education as it accelerates the re-segregation of schools.

"The past is not dead," William Faulkner had written in 1951. "In fact, it's not even past."

More than a half century later, these words still ring true. What is happening in the mainly white town of Jena, Louisiana, population 2,500, reveals just how much work needs to be done to overcome this nation's deep racial divisions.

Nooses hung from tree
On August 31, 2006 a group of African-American students asked the vice-principal of the high school if they could sit under "the white tree." Traditionally, it was the hang-out spot for white students, who made up 80 percent of the school. The following day there were three nooses hanging from the tree.

The next week, Black students staged a sit-in protest under the tree. At a school assembly soon after, La Salle Parish district attorney Reed Walters, appearing with local police officers, warned Black students to stop making a fuss about an "innocent prank." He told them, "I can make your lives disappear with a stroke of my pen."

Throughout the fall, tensions simmered, occasionally leading to fights and other incidents, including an arson attack on November 30, which damaged a school building. No white students were charged with serious offenses. The students who were found to have been responsible for hanging the nooses—which the superintendent said was a silly prank—were given a three-day suspension.

Incident that leads to attempted murder charges
Early in December, a Black student was assaulted by a group of white students, and a white graduate of Jena High School threatened several Black students with a shotgun. On Monday, December 4, white students taunted the Black student who had been assaulted over the weekend. A fight broke out in a crowded area of the school and one of the white students was beaten up and kicked. He was treated in the hospital, and appeared at a social function that night.

Six Black students were immediately arrested, charged with attempted second-degree murder and conspiracy to commit second-degree murder, and expelled from school. The charges could bring them 20-100 years in prison. Their bails were set at $70,000 and higher and because their families could not raise these amounts, two of the defendants have remained in jail.

An all-white jury convicts
In late June, 2007, an all-white jury took only a few hours to convict Mychal Bell, who was 16 years old at the time of his arrest, of "lesser" charges of aggravated battery and conspiracy to commit aggravated battery. The prosecutor had called only white witnesses, some of whom said they didn't see anything. The victim testified that he did not know if Bell hit him or not. Bell's public defender called no witnesses and offered no evidence.

Bell faces up to 22 years in prison when he is sentenced on July 31. The trials of 17-year–old Robert Bailey, Jr., 17-year-old Theo Shaw, 18-year-old Carwin Jones, 17-year-old Bryant Purvis and a still unidentified minor are yet to come.

What we can do
There are two things we can immediately do to confront this injustice: we can call the District Attorney of La Salle Parish, J. Reed Walters, and voice our outrage: telephone (318) 992 8282.

And we can send funds to the Jena Six Defense Committee: PO Box 2798, Jena, LA 71342. Donations can also be made through the Friends of Justice website: http://friendsofjustice.wordpress.com/

Nancy Murray
Director of Education
ACLU of Massachusetts

To view the Rights Matter curriculum and order copies, visit www.rightsmatter.org.

Press Release: Boston Agrees to Settle Lawsuit Alleging Retaliation Against Teacher for Testifying Against Funding of JROTC in Public Schools

BOSTON - Attorneys for the ACLU of Massachusetts and the Boston Teachers Union today announced the settlement of their lawsuit in federal court on behalf of long time substitute teacher Jeffrey Herman against Jose Duarte, the headmaster of Boston's English High School. Herman was put on a "Do Not Call" substitute teacher list for English High School after he testified at a Boston City Council hearing in opposition to the City spending over one million dollars for Junior Reserve Officer Training Corps (JROTC) programs in the Boston public schools. Duarte, a member of the U.S. military who has Reveille played over the school loudspeaker at the start of school each day, was angered by Herman's views and ordered him out of the school.

"I testified at City Hall that taxpayer dollars would be better spent on teaching kids how to stop the violence that is plaguing our city," said Herman. "After that, Duarte screamed at me to get out of his school. Since schools are supposed to teach respect for the Constitution, I believed Mr. Duarte needed a lesson himself," he said.

In settling the lawsuit, the City did not admit to any wrongdoing by the headmaster, but agreed to a monetary payment to Herman and his attorneys in exchange for Herman agreeing to the dismissal of his lawsuit. Herman, who has been outspoken about his criticisms of Duarte's leadership of the school in general, also agreed he would not return to substituting at English High School as long as Duarte is still headmaster there. The School Department has agreed that when Duarte is no longer the headmaster, Herman's name will be removed from the "Do Not Call" list for that high school. English High School is being restructured to become a Commonwealth Pilot School to avoid the label, "chronically underperforming."

"The Boston Teachers Union, which supported Jeff's right to speak out in this case, is pleased that the matter has been amicably resolved," said attorney Matthew Dwyer. "The union always takes seriously any infringement, actual or threatened, on the First Amendment rights of its members," he said.

Sarah Wunsch, ACLUM staff attorney, was also glad the case had been settled. "Teachers are entitled to political opinions just like everyone else. We need them to feel free to share those opinions with the public and elected officials, outside the school, without fear of losing their jobs for doing so," she said. "Especially with great public debate going on right now about the war in Iraq and the lack of alternatives for poor kids to pay for college, Jeff Herman had a right to speak out at City Hall about Boston spending over a million dollars on JROTC."

Press Statement: U.S. Supreme Court Decision Allows Further Progress for Equal Educational Opportunity

We delivered this statement this morning as part of a press conference with a variety of concerned organizations at the Massachusetts State House.

Statement by Carol Rose, Executive Director of the ACLU of Massachusetts

BOSTON - Yesterday's Supreme Court decision on the Seattle and Louisville case neither reversed Brown v. Board of Education nor prohibited measures designed to ensure equality in education. Instead, the Court's decision provides a road map for efforts to desegregate public education so that students of all races can have equal educational opportunities.

Under the Court's 5-4 ruling, voluntary desegregation plans at Massachusetts schools may continue as long as they meet the Court's criteria. Though the Court ruled that school integration plans may not rely solely on racial considerations and must take into account other factors, such as income disparities, a majority of the Supreme Court still recognized that racially diverse schools are a compelling interest of our government. Justice Kennedy agreed to strike down the particulars of the Seattle and Louisville plans, but he agreed with the ultimate goal of using race-conscious means to achieve integration.

The ACLU of Massachusetts is sad, however, that four justices turned a blind eye to continuing racial divisions and inequality in present-day American society, and were largely indifferent to efforts to find a remedy. Massachusetts schools are already more segregated today than they have been in more than a decade, and problems caused by racial disparities plague our state. It is foolish to think that these racial disparities can be addressed without consideration of race. We must continue the work of removing barriers to equality in education.

News: Court official 'was masterful' in handling student assault case

The Worcester Telegram mentions ACLU involvement in a case involving a middle school student who had assault and battery charges brought against him after a school fight:

"The ACLU has expressed concern about the criminalization of school discipline when youths end up in Juvenile Court or the criminal-justice system for behavior that in the past wouldn’t have led to the intervention of law enforcement."

News: Boy faces charges in school fight

The Worcester Telegram cites our attorney Sarah Wunsch in a story about the criminalization of the school discipline process. She told the Telegram:

“What used to be a shoving match on the school playground ends up in juvenile court or criminal proceedings. It’s crazy.”

News: Unlikely Bedfellows

Inside Higher Ed cites our Legal Director, John Reinstein, in its story on the national controversy over an FBI program to "set up meetings with college leaders to discuss strategies for safeguarding academic research from unfriendly foreign interests." Sci-Tech Today.com does too, along with the journal photonics.com.

The story has also been noticed abroad as well, in countries including India, Canada and the Netherlands.

News: FBI warns universities to watch for spies

This AP story quotes ACLUM's Legal Director, John Reinstein, on the FBI program asking universities to keep a lookout for "suspicious" behavior. It made national news.

News: Police and schools' memo of understanding sparks debate

The Needham Times examines a push in Needham schools to revive a "zero tolerance" policy and invited ACLUM to weigh in on concerns with racial disparities and other problems with how these policies can be applied.

News: Principal says yes, then no, to drug test

The Newton Tab cites ACLUM in its story on cancellation of a plan to use random testing for drugs and alcohol before Newton South High School's prom next month.

News: Judge orders DOE to pay $155,000 to MCAS critic

The Assocated Press also ran a story on our win this week in court.

News: Dept. of Education must pay $155,000 for violating First Amendment

The Globe cites ACLUM Staff Attorney Sarah Wunsch about our win yesterday. A Superior Court judge ordered the Massachusetts Dept. of Education to pay $155,000 after forcing the cancellation of a speech at an education conference in 2001 by Alfie Kohn, a speaker at odds with department policies. The Dept. of Education threatened to pull funding for the entire conference if Kohn were allowed to speak, even though state funds were not being used to bring him.

Press Release: State Court Judge Orders Massachusetts Dept. of Education to Pay $155,000 for Unconstitutional Censorship of Conference Speaker

BOSTON - A Middlesex Superior Court judge yesterday ordered the Massachusetts Department of Education to pay $155,000 in attorneys fees and costs for violating the First Amendment when they coerced an education conference into canceling the keynote speech of Alfie Kohn, a well-known critic of high stakes graduation exams like the MCAS.

In response to yesterday's ruling, Kohn said, "It's too bad that the Department of Education was so committed to its agenda of high-stakes testing that it would violate the Constitution to silence those who disagree." Kohn noted that "at a time when the No Child Left Behind law with its punitive testing requirements is up for reauthorization, there's an urgent need for vigorous discussion of the downside of testing without fear of retribution as we saw here in Massachusetts under David Driscoll's Department of Education," referring to the outgoing commissioner of education.

Judge Hiller Zobel had ruled last August that DOE had forced the canceling of Kohn's speech because they did not like his views on MCAS, and in doing so, they violated the rights of Kohn as well as the rights of a school principal, a counselor, and a parent who had wanted to hear Kohn speak at the conference. In yesterday's ruling, Judge Zobel put last summer's decision into a final judgment, awarded the fees, and issued an injunction prohibiting the DOE from denying future grant monies for any conference unless the topic of a speaker was clearly unrelated to the subject matter of the conference.

The case was filed by the American Civil Liberties Union (ACLU) of Massachusetts and cooperating attorneys at Boston's Wolf, Greenfield & Sacks, P.C. on behalf of Kohn, Leslie Edinson, a Springfield public school principal, David Sprague, a school counselor, and parent Jan Shotwell, who had planned to attend Kohn's keynote speech. The right to receive information is also protected by the First Amendment, and Judge Zobel found that right was also violated by the cancellation of the speech.

Sarah Wunsch, ACLUM staff attorney, expressed the hope "that our new governor will ensure we have a state education department that will be more thoughtful about what makes for good education and more respectful of constitutional rights."

Kohn, author of "The Case Against Standardized Testing: Raising the Scores, Ruining the Schools," had been invited to deliver a keynote address on that topic at a May 2001 education conference in Northampton, Massachusetts, aimed at creating a dialogue between charter school and regular public school educators. One of the main areas under discussion at the conference was the subject of testing, including the MCAS. The conference was co-sponsored by Western Massachusetts educators, including some from area charter schools and colleges such as Smith, Mount Holyoke and the University of Massachusetts-Amherst, and more than a dozen community groups committed to improving high school education in Massachusetts.

Shortly before the conference was to take place, Susan Miller Barker of the DOE threatened conference organizers that they would lose the partial funding the DOE was providing unless Kohn were barred from delivering the keynote speech, even though DOE funding was not paying for the speakers. In an e-mail uncovered during the lawsuit and specifically cited in the Court's earlier decision, Barker wrote, "It was stupid... to use state funds in a way... diametrically opposed to the state's and the board of ed's legislative and policy agenda."

Kohn and the other plaintiffs were represented by Boston attorneys Michael Rader and Michael Albert of Wolf, Greenfield & Sacks, who acted as cooperating attorneys with ACLUM staff attorneys Sarah Wunsch and William Newman. The Department of Education has 60 days to decide if it will appeal the ruling.