Tag: aclu

ACLU v. Nevada Children

The American Civil Liberties Union announced today that it is filing a legal challenge against Nevada’s new education savings account program. The ACLU argues that using the ESA funds at religious institutions would violate the state’s historically anti-Catholic Blaine Amendment, which states “No public funds of any kind or character whatever…shall be used for sectarian purposes.”  

What “for sectarian purposes” actually means (beyond thinly veiled code for “Catholic schools”) is a matter of dispute. Would that prohibit holding Bible studies at one’s publicly subsidized apartment? Using food stamps to purchase Passover matzah? Using Medicaid at a Catholic hospital with a crucifix in every room and priests on the payroll? Would it prohibit the state from issuing college vouchers akin to the Pell Grant? Or pre-school vouchers? If not, why are K-12 subsidies different?

While the legal eagles mull those questions over, let’s consider what’s at stake. Children in Nevada–particularly Las Vegas–are trapped in overcrowded and underperforming schools. Nevada’s ESA offers families much greater freedom to customize their children’s education–a freedom they appear to appreciate. Here is how Arizona ESA parents responded when asked about their level of satisfaction with the ESA program:

 Parental satisfaction with Arizona's ESA program

And here’s how those same parents rated their level of satisfaction with the public schools that their children previously attended:

Parental satisfaction among AZ ESA families with their previous public schools 

Note that the lowest-income families were the least satisfied with their previous public school and most satisfied with the providers they chose with their ESA funds.

Similar results are not guaranteed in Nevada and there are important differences between the programs–when the survey was administered, eligibility for Arizona’s ESA was limited only to families of students with special needs who received significantly more funding than the average student (though still less than the state would have spent on them at a public school). By contrast, Nevada’s ESA program is open to all public school students, but payments to low-income families are capped at the average state funding per pupil ($5,700). Nevertheless, it is the low-income students who have the most to gain from the ESA–and therefore the most to lose from the ACLU’s ill-considered lawsuit.

Colorado Supreme Court Strikes Down School Vouchers

Earlier today, the Colorado Supreme Court ruled that Douglas County’s school voucher program violates the state constitution. 

The Douglas County Board of Education unanimously voted to enact the Choice Scholarship Pilot (CSP) Program in 2011, making it the first district-level school voucher program in the nation. The program granted 500 school vouchers worth up to 75 percent of the district schools’ per-pupil revenue, which was approximately $6,100 in the last academic year. Students could use the $4,575 vouchers at the private school of their choice and the district retained the remaining 25 percent of the funding ($1,525 per voucher student).

However, the ACLU, Americans United for Separation of Church and State, and several local organizations that wanted to protect district schools from competition filed a legal challenge almost immediately. Although they won an injunction from a trial court, it was later overturned on appeal in 2013. Plaintiffs then appealed to the state supreme court.

In a narrow 4-3 decision*, the Colorado Supreme Court held that the voucher law ran afoul of the state constitution’s historically anti-Catholic Blaine Amendment, which says:

Neither the general assembly, nor any county, city, town, township, school district or other public corporation, shall ever make any appropriation, or pay from any public fund or moneys whatever, anything in aid of any church or sectarian society, or for any sectarian purpose, or to help support or sustain any school, academy, seminary, college, university or other literary or scientific institution, controlled by any church or sectarian denomination whatsoever…

The court held that “aiding religious schools is exactly what the CSP does.” Even though “CSP does not explicitly funnel money directly religious schools, instead providing financial aid to student,” the court ruled that the Blaine Amendment’s prohibitions “are not limited to direct funding.”

School Choice Lawsuit Roundup

School choice advocates have been winning in the halls of state legislatures and in the court of public opinion, so opponents have taken to the courts of law. Since the U.S. Supreme Court ruled in Zelman v. Simmons-Harris (2002) that school vouchers are consistent with the First Amendment’s Establishment Clause, opponents of choice have been scrambling to find novel reasons to challenge school choice programs. Here’s a brief summary of school choice lawsuits around the nation:

1) In Louisiana, the U.S. Department of Justice has sued to halt the state’s school voucher program, arguing that it hurts the desegregation effort. The DOJ’s already weak case was further undermined by a new study released today showing that school choice actually improves integration. Since 90 percent of the voucher recipients are black, the DOJ’s lawsuit would have the effect of keeping low-income blacks from attending the schools of their choice.

Earlier this year, Louisiana’s state supreme court ruled that the voucher program was unconstitutionally funded, but otherwise left the program intact. The governor and state legislators adjusted the funding mechanism in response.

2) Two days ago, a group of activists in Oklahoma sued the state over its special needs voucher program, arguing that it violates the state constitution’s ban on using public funds at religious schools. Last year, the state supreme court tossed out a challenge to the program by public school districts, ruling that they did not have standing since they are not taxpayers.

3) On the same day, the Arizona Court of Appeals ruled unanimously that the state’s education savings account program, the first in the nation, is constitutional. Anti-school choice activists had argued that it violates the state constitution’s ban on publicly funding religious schools. The court held that students are the primary beneficiaries and that any “aid to religious schools would be a result of the genuine and independent private choices of the parents.” The decision will likely be appealed to the state supreme court.

DHS Fusion Centers: Small Part of Homeland Security Waste

Fusion centers are “pools of ineptitude, waste and civil liberties intrusions.” That’s the Washington Post’s summary of a report, two years in the making, released Tuesday by the Senate Homeland Security and Governmental Affairs permanent subcommittee on investigation.

With all due respect to the Senate investigators, who did thorough and commendable work here, it does not take two years and 140 pages to reach their conclusion. Along with the ACLU, Cato scholars have made similar arguments for years.

Fusion centers grew from the revelation in the wake of the September 11, 2001 attacks that federal security agencies, states governments, and local law enforcement were failing to share information about terrorists. Although the attacks resulted as much from the difficulty of distinguishing pertinent information from the rest as from impediments in information-sharing, it was reasonable to address the second problem. But whether that required physical spaces devoted to information sharing—let alone the 70-plus of them we now have spread across the country—is another story.

The wisdom of that spasm of bureaucratic creation turned largely on the truth of the official insistence in the panicky aftermath of the attacks that the United States was rife with thousands of hidden al Qaeda operatives and that mass casualty attacks would occur with the regularity of extreme hurricanes. Predictably, there weren’t enough terrorists to go around. And it doesn’t take Max Weber to see that their dearth wouldn’t cause the searchers to slacken their efforts. Fusion centers became a classic solution in search of a problem.

One way to justify fusion centers was to expand their enemy to “all hazards.” A second was to exaggerate the terrorist menace, for example by insisting that its quiescence indicated that it was not weak or absent, but well-hidden and patient (note: the absence of evidence is evidence of absence, especially when you are searching a lot; it’s just not proof of absence). Of course, advocates overstated the fusion centers’ contribution to terrorism arrests. And even without arrests, they could conflate activity with success, by pointing to, for example, leads pursued and cases opened as if they were security itself. That last technique continues today in the pushback  to the Senate report.

Keep in mind that fusion centers, which cost federal taxpayers at most a few hundred million a year, are symptoms of a larger problem. The entire national security apparatus has grown by leaps and bounds since 2001 thanks to a threat that has, thankfully, proved vastly weaker than most thought.

The Muzzle Awards

The Boston Phoenix announces its 15th Annual Muzzle Awards:

The Muzzle Awards were inspired by noted civil-liberties lawyer and Phoenix contributor Harvey Silverglate, who wrote the sidebar accompanying this article. They are named after similar awards given by the Thomas Jefferson Center for the Protection of Freedom of Expression.

This year’s edition, as always, was compiled by tracking the previous year’s free-speech stories in New England. Nominations were also solicited from American Civil Liberties Union (ACLU) chapters in Massachusetts, Maine, and Rhode Island. This article is based on reporting by various news organizations and Web sites — including the Boston Globe, the Cambridge Chronicle, the Providence Journal, the Portland Press Herald, the Bangor Daily News, the Enterprise of Brockton, the Associated Press, Down East, the Republican of Springfield, the New York Times, GoLocalProv, the North Providence Breeze, OpenCourt, wbur.org, the New England First Amendment Center at Northeastern University, and Talking Points Memo.

The envelopes, please.

I Second That Skepticism

The ACLU’s Chris Calabrese notes that nominations to the Privacy and Civil Liberties Board were forwarded from the Senate Judiciary Committee to the full Senate this morning. Congress created the Board in August 2007, and we have waited, and waited, and waited while the Bush and Obama administrations neglected to appoint anyone to it.

Calabrese is rightly skeptical that the “PCLOB” can make a difference:

[T]he national security establishment is huge, with tens of thousands of employees and a budget of more than $60 billion. The NSA alone has more than 30,000 employees. Contrast that with the PCLOB. It’s currently authorized (if it finally gets filled) to spend a whopping $900,000 and hire ten full-time employees for the 2012 fiscal year. With this level of staffing, it’s hard to imagine that the Board and its investigators can even begin to understand this vast national security infrastructure, never mind properly oversee it.

I have a fair amount of experience with privacy oversight in the U.S. government, having served on the Department of Homeland Security’s Data Privacy and Integrity Advisory Committee. That experience has fairly well validated my thinking in 2001, before there were “privacy officers”:

The appointment of a privacy czar or creation of a privacy office is a poor substitute for directly addressing the voraciousness of many government programs for citizens’ personal information. Political leaders themselves should incorporate privacy into their daily consideration of policy options, rather than farming out that responsibility to officials who may or may not have a say in government policy.

To see how the PCLOB fits into government thinking, we can look at a 2007 speech given by Donald Kerr, principal deputy director of National Intelligence. To him, “privacy” is giving the government access to all the data it wants, subject to oversight.

[P]rivacy, I would offer, is a system of laws, rules, and customs with an infrastructure of Inspectors General, oversight committees, and privacy boards on which our intelligence community commitment is based and measured. And it is that framework that we need to grow and nourish and adjust as our cultures change.

That’s not privacy.

So don’t think for a minute that privacy will be better protected with a PCLOB in place, except perhaps marginally in the few programs that the Board dips into.

The membership of the board is slated to be: Jim Dempsey of the Center for Democracy and Technology, a sincere and knowledgeable privacy player, whose “player” role I find incompatible with producing good privacy outcomes; Elisebeth Collins Cook, a former Department of Justice lawyer who I had never heard of before her nomination; Rachel Brand, an attorney for the U.S. Chamber of Commerce also unknown to me; Patricia Wald, a former federal judge for the D.C. Circuit whose privacy work is unknown to me; and David Medine, currently a WilmerHale partner who will chair the board. Medine is unquestionably government-friendly. He was a Federal Trade Commission bureaucrat who helped draft the Gramm-Leach-Bliley financial privacy and the Children’s Online Privacy Protection Act (COPPA) regulations.

TSA: If You Object to Giving Up Your Rights, We Should Take a Closer Look at You

TSA screeners and behavior detection officers may give you extra attention if you complain about security protocols (video at the jump). Former FBI agent Michael German sums up my feelings pretty well:

It’s circular reasoning where, you know, I’m going to ask someone to surrender their rights; if they refuse, that’s evidence that I need to take their rights away from them. And it’s simply inappropriate.

In related news, the GAO recently told Congress that the TSA’s Screening Passengers by Observation Technique (SPOT) is not scientifically grounded. The GAO testimony is available here.

More Cato work on TSA screening here, here and here.

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