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Every 25 Seconds: Human Rights Watch and the ACLU Document More Harms from Drug Prohibition

A new report from the ACLU and Human Rights Watch details many of the harms associated with the criminalization of drug possession. The most striking finding from the report is that police in the United States arrest more people for marijuana offenses than for all violent crimes combined. The title of the report, “Every 25 Seconds,” refers to how often police arrest someone for drug possession in this country.

The full report can be found here, but other key findings include:

Nevada Supreme Court: Education Savings Accounts Are Constitutional, Funding Mechanism Isn’t

In a landmark decision, the Supreme Court of Nevada today upheld the constitutionality of the nation’s most expansive educational choice law. However, the court ruled that the funding mechanism the legislature adopted is unconstitutional. If the legislature creates a new funding mechanism–as it could and should in a special session–then the ESA program could be implemented right away.

Enacted in 2015, Nevada’s education savings account (ESA) policy was originally scheduled to launch at the beginning of this year, but it immediately drew two separate legal challenges from the government schooling establishment and the ACLU and its allies. Nevada’s ESA provides students with $5,100 per year (plus an additional $600 for low-income students or students with special needs) to use for a wide variety of approved educational expenditures, including private school tuition, tutoring, text books, online courses, homeschool curricula, and more. Families can also roll over unspent funds from year to year. As the Heritage Foundation’s Lindsey Burke and I have explained, the ability to customize a child’s education and save funds for later are significant improvements over school vouchers:

ESAs offer several key advantages over traditional school-choice programs. Because families can spend ESA funds at multiple providers and can save unspent funds for later, ESAs incentivize families to economize and maximize the value of each dollar spent, in a manner similar to the way they would spend their own money. ESAs also create incentives for education providers to unbundle services and products to better meet students’ individual learning needs. 

Of the five existing ESA programs, Nevada’s is the most expansive. Florida, Mississippi, and Tennessee restrict their ESAs to students with special needs. Arizona originally restricted ESA eligibility to students with special needs, but has since included foster children, children of active-duty military personnel, students assigned to district schools rated D or F, and children living in Native American reservations. In Nevada, all students who attended a public school for at least 100 days in the previous academic year are eligible. 

In two separate lawsuits, opponents of educational choice alleged that Nevada’s ESA violated the state constitution’s mandate that the state provide a “uniform system of common schools” (Article 11, Section 2), its prohibition against using public funds for sectarian purposes (Article 11, Section 6), and a clause requiring the state to appropriate funds to operate the district schools before any other appropriation is enacted for the biennium (Article 11, Section 10). The court found that the ESA was constitutional under the first two constitutional provisions, but the way it was funded violated the third.

Nevada Judge: Education Savings Accounts Are Constitutional

Dismissing a challenge from the ACLU, yesterday Las Vegas District Court Judge Eric Johnson ruled that Nevada’s education savings account (ESA) program is constitutional. However, the ESA program is still on hold due to a second lawsuit against the ESA program in which the judge issued an injunction against issuing the accounts. That case is currently pending before the Nevada Supreme Court, and it is possible that the two legal challenges will be merged.

The ACLU challenged the ESA law on two grounds, claiming that the ESA violated the Nevada Constitution’s “uniformity” clause and the state’s historically anti-Catholic Blaine Amendment. Siding with the state of Nevada and the Institute for Justice, the court rejected these claims. 

“Uniform” Does Not Mean “Exclusive”

Nevada’s state constitution requires that the legislature “shall provide for a uniform system of common schools.” These schools must “be established and maintained in each school district at least six months in every year” and it is forbidden for these schools to “allow instruction of a sectarian character therein.” In a separate clause, the state constitution enjoins the legislature to “encourage” education “by all suitable means.”

The ACLU argued the “suitable means” mentioned in Article XI, Section 1 are defined by uniformity clause in Section 2. The ACLU cited the infamous Bush v. Holmes decision in Florida, in which Florida’s state supreme court struck down the state’s voucher program by interpreting the state’s duty to create a “uniform” system of public schools to mean that the state had a duty to provide a system of schooling exclusively according to the means described in the state constitution, despite the state constitution empowering the legislation to create “other public education programs that the needs of the people may require.” (The Florida Education Association is now suing to halt the state’s tax-credit scholarship program on the same grounds.)

However,  the judge rejected this interpretation, holding instead that that in these two clauses, “the framers indicated that they intended to create two duties, a broad one to encourage education by ‘all suitable means,’ and a specific, but separate, one to create a uniform public school system.” The judge noted that the framers’ “use of two different sections to set out the Legislature’s responsibilities without reference in either section to the other plainly suggests the sections are separate and distinct.” By contrast, adopting the ACLU’s clever but strained interpretation would, according to the judge, “make section 1 superfluous, without any meaning or purpose.”

In other words, the Nevada constitution requires the state to establish a non-sectarian system of public schools, but it is also empowered to encourage education by other means that are not limited to non-sectarian schooling. 

Border Patrol Out Of Control

Today, the ACLU’s Border Litigation Project released a damning report on the Department of Homeland Security’s Customs and Border Protection “interior operations” that should serve as a wake up call for Washington policy makers.

Titled “Record of Abuse: Lawlessness and Impunity in Border Patrol’s Interior Enforcement Operations”, the 31 page report is supplemented by hundreds of pages of documents obtained through an ongoing Freedom of Information Act lawsuit. The ACLU Arizona chapter’s summary of the report noted the following: 

Border Patrol’s records contain recurring examples of agents terrorizing motorists far into the interior of the country; detaining and searching innocent travelers after false alerts by service canines; threatening motorists with assault rifles and other weapons; destroying personal property; and interfering with attempts to video record agents. These abuse records substantially outnumber the annual complaint totals DHS oversight agencies disclosed to Congress.

Border Patrol does not record stops of motorists that do not result in arrest, or false canine alerts that lead to searches of innocent suspects.  Substantive investigations into civil rights violations are rare and almost never result in disciplinary consequences. Despite numerous reports of abuse and corruption, the records contain only one example of disciplinary action of any kind.

Border Patrol’s own data undermines the agency’s public claims that checkpoints are efficient and effective: in 2013, Tucson Sector checkpoint apprehensions accounted for only 0.67 percent of the sector’s total apprehensions. The same year, Yuma Sector checkpoint arrests of U.S. citizens exceeded those of non-citizens by a factor of nearly eight (and in 2011, by a factor of eleven).

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.

Where to Report and Discuss TSA Abuses

With the TSA sticking by its policy of requiring select air travelers to submit to visual observation or physical touching of their private areas before they can fly, a number of groups are collecting reports and facilitating public discussion.

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