News & Commentary

With Spring comes prom season for our nation’s high schools and for some Lesbian, Gay, Bisexual and Transgender students, with prom season comes controversy as they try to bring a same gender date to the prom. LGBT students, like other students, have the right to participate in this rite of passage and to bring dates of their choice. But even in 2009, some public high schools have a problem with this. What schools may not know is that who you decide to bring to the prom is constitutionally protected speech, guaranteed by the First Amendment in our constitution. In 1980, a federal court upheld the right of student, Aaron Fricke, to bring a same-sex date to his Rhode Island high school prom. It didn’t matter that some students and parents disapproved of Aaron’s choice because his decision was constitutionally protected freedom of expression. The First Amendment not only protects your choice date, but it also protects what students wear to the prom. For instance, female students have the right to wear a tuxedo instead of a dress. The same rule applies if a male student decided to wear a formal dress. School districts can have dress codes, but if tuxedos and formal dress are a part of that dress code then any student should be allowed to wear them. The ACLU has assisted countless LGBT students who experienced problems around prom time through the years and has even developed a website to provide assistance to students encountering difficulties because of their choice of date or dress: www.aclu.org/lgbtprom. If you’re experiencing any problems with your school administration over your date or dress at the prom contact me at kaplan@aclumich.org or 313-578-6812.

Barbara Hernandez was 14 years old when she ran away from home to escape sexual abuse. Like many teenage runaways, she became involved with an older man who pushed her into prostitution and drugs. He eventually manipulated her into luring a man into the house they shared and after Barbara left the room, killed the man. Barbara Hernandez was tried and sentenced to life without any possibility of parole and will almost certainly die in Michigan’s prison system. Barbara Hernandez is one of close to 350 people in Michigan prisons who, as children under 18, have been given life without possibility of parole sentences. Henry Hill, whose story was told on Sunday in the Detroit Free Press, is another of these young people – disproportionately poor, Black or Latino, cognitively impaired and/or survivors of abuse and neglect – who, under current law in Michigan, simply do not qualify for a second chance. This Wednesday, May 6, the Michigan House Judiciary Committee will take up several reform bills that would put an end to the mandatory sentencing law that has tied judges’ hands in Michigan since the 1980’s.

It takes an incredible amount of courage to face one’s attacker in court – to look them in the eye and tell the truth as you have experienced it. According to one study, between five and twenty-five percent of rape cases are reported to the police, and only one in five of this small percentage actually reaches trial. It is hard enough for survivors to come forward. We should not erect additional barriers to prevent individuals from exercising their fundamental right to access our justice system. And yet that is exactly what the Michigan Supreme Court’s proposed rule of evidence would do. The Court is considering a rule that would authorize judges to control a witness’s appearance in the courtroom. While seemingly innocuous on its face, it is clear that it was proposed to specifically authorize judges to bar Muslim women who wear niqab, a veil that covers the lover part of the face to testify in court unless they remove their veil. The rule was proposed in reaction to a lawsuit brought on by a Muslim woman whose small claims lawsuit was dismissed because she refused to remove her veil. However, it is easy to imagine a situation where the individual could be a victim of a violent crime or a rape survivor. In this situation, a woman who would like to bring a criminal claim against her assailant would have to choose between justice and religious beliefs – a choice that no one should have to make. In essence, imposing this requirement could mean women who wear a niqab could be raped with impunity. This is unacceptable. Our constitution simply cannot tolerate conditioning one of our most protected rights upon the abandonment of the free exercise of religion. It is sometimes easy to distance ourselves from discrimination against individuals who exercise religious beliefs that are foreign from our own behavior. “My religion doesn’t require me to do X,” we say, “so what do I care if the government discriminates against people who do X.” We all suffer, however, when individuals lose their right of access to the courts. The goddess of justice may be blind, but we cannot turn a blind eye to this type of religious discrimination.

It’s no surprise that women tend to be hurt first and worst during economic downturns. The reasons may be multifaceted, but one thing is apparent – despite 45 years since the passage of the Equal Pay Act – women still earn only 78 cents for every dollar that men earn. The statistics are even worse for women of color. And as we commemorate Equal Pay Day, the point into the year that a woman must work to earn as much as a man earned in the past year, we must urge Congress to make long-lasting changes. For too long, women have not been able to bring home all of what they rightfully earn. But there is a legislative solution - the Paycheck Fairness Act – a bill that would finally close the loopholes and weak remedies that have made the Equal Pay Act less effective in combating wage discrimination. Passing this law is especially critical for the women of Michigan during this economic crisis. And because of the rising unemployment rates, families are relying more than ever on women’s income – making pay equity even more necessary, not only to families’ economic security, but also to the nation's economic recovery. You can make a difference by taking these easy steps:

The Supreme Court once famously said that students do not shed their constitutional rights at the schoolhouse gate. But that principle is all too often ignored in schools all over the country including here in Michigan. This morning, the Supreme Court heard oral argument in an ACLU case from Arizona in which Savana Redding, an eighth-grade honor student with no history of disciplinary problems, was strip searched by school administrators in a futile hunt for prescription-strength ibuprofen pills. After a search of Savana's backpack turned up nothing, school administrators -- despite a lack of any evidence that Savana might be hiding the pills on her body -- forced her to undress and expose her private parts to prove she had done nothing wrong. This was a thoroughly humiliating, degrading, and invasive experience for Savana. What's more, it was completely unnecessary. It defies reason to suspect that school officials were going to find ibuprofen pills in Savana's underwear or under her bra. But school officials have gone all the way to the Supreme Court to defend their actions, insisting they did nothing wrong. One might hope that Savana's experience is unusual. But at the ACLU of Michigan we have received several complaints in recent years about unjustifiable strip searches of students in Michigan schools. School officials in Whitmore Lake, Ecorse, and Roseville have subjected students to humiliating and unreasonable strip searches in blatant disregard of their constitutional rights. Could what happened to Savana Redding happen to your son or daughter? If your child attends public school in Michigan, now is a good time to call your principal, superintendent, or school board to learn about your school system's strip search policies and practices. Ask them under what circumstances a school official is allowed to strip search a student without permission from a parent or a judge. If you don't like the answer, organize a coalition of parents to demand that the school board adopt a reasonable and sane policy to protect students' privacy rights. The Supreme Court was right – students do not shed their constitutional rights at the schoolhouse gate. Let's make sure those rights are maintained and respected.

The Oakland County showdown that pits the First Baptist Church of Ferndale (FBC) and its partner, the South Oakland Shelter (SOS), against angry residents who do not want services for the homeless in their neighborhood, may have reached a long-awaited conclusion. After a harrowing, four hour meeting and public comment period on March 17, the Ferndale Board of Zoning Appeals (BZA) licked their wounds, called their lawyers and soul-searched for nearly three weeks before making a decision and on March 31, the BZA elected not to be caught on the “fool” side of an April 1st joke and voted 6 – 1 in favor of a resolution to allow FBC/SOS to continue with its plans to provide day services to homeless folks in Ferndale. The board is expected to finalize its decision this week. The opposed residents have promised that the fight is not over. While I admire their tenacity, I respectfully wonder how they think they are going to succeed in striking the next blow. They have already performed breath taking acrobatics in their zoning arguments. Who knows? The zoning may or may not be on their side. But the more important point is that the Religious Land Use Act of 2000 (RLUIPA) supersedes local ordinances and protects FBC’s religious expression of fulfilling its charitable mission and assisting the work of SOS, whether or not the church does so by entering into a contract with a secular entity. A common tactic in the war for hearts and minds is to characterize rulings that involve Federal Law as a David & Goliath battle. The fearless homeowners have pulled out their slingshots, ready to slay any giant who dares assert the charitable mission of a local church in their backyard. We all love the little guy – as Detroiters we’re the nation’s little guy. But these particular Ferndale residents have the ideas – and the characters – all mixed-up. Righteousness is better characterized by values than the size of its teeth. Just because one side is supposedly represented by Washington and the other by Mayberry, doesn’t universally make the latter the good guy. The Constitution may have lofty origins, but it was designed to ensure justice. Furthermore, it is utilized to intervene on behalf of the even smaller of two little guys. The truth of the matter is that FBC and SOS are also local interests. Their constituents in this case (homeless service users) are among the most powerless local interests that exist. The Constitution ensures that all these other little guys are protected, whether the attack comes from beyond or next door. As a little guy and a Ferndale homeowner, I’m happy to see this small city is continuing its tradition of diversity and inclusiveness and, that over 200 years later, parties on all sizes continue to value and protect religious expression, telling the story of “David & Goliath” and the “Good Samaritan.”

In the waning days of Women’s History Month, I’ve tried to sit down and take stock of some of the progress that we have made. It is of course important to recognize that we have made some important strides in areas such as reproductive health, violence against women, and employment discrimination. But we still have a long way to go. In January, President Obama signed the Lilly Ledbetter Fair Pay Act. The Act extends the time period in which a petitioner can challenge discriminatory compensation practices, and is an important step towards eradicating wage discrimination. Yet today, female Detroit police officers still lack something that is perhaps even more basic than equal pay: an equal opportunity to work. Under current Detroit Police Department policy, pregnant officers are immediately placed on unpaid leave as soon as their pregnancy is disclosed. Instead of being given the opportunity to continue working at one of the many administrative positions available at the DPD, these women lose their paycheck, and in many cases, their only source of insurance. As a result, what is under normal circumstances a time of celebration is often marred by economic struggles. The ACLU of Michigan has filed a complaint against the DPD on behalf of five female officers challenging this discriminatory practice. These women do not want special treatment or extra benefits – they simply want the opportunity to continue to do their job. One officer, Angelica Robinson, was already working at a desk when she was placed on unpaid leave. Others were denied the opportunity to transfer to administrative duty during their pregnancy, notwithstanding the fact that several injured male officers were granted such positions. As a result, Officer Sha-mar Woods was forced to apply for welfare and go on Medicaid to obtain health insurance for herself and her unborn child. Unfortunately, these stories are not unique. As soon as the complaint was made public, additional stories poured into our office. Just this Sunday, the Detroit Free Press reported that seven Detroit Police officers who allegedly falsified arrest reports have been re-assigned to administrative desk duties during internal and criminal investigations of their behavior. It may be that crime does not pay, but under current DPD policy, alleged crimes do afford more opportunity to work for wages than pregnancy. This highlights the extreme disparity in treatment that pregnant women in the DPD continue to face. In today’s economy, the DPD’s policies have created a situation where couples literally cannot afford to expand their family. Recognizing the victories that we have already achieved, this represents the next hurdle that we must overcome in our path towards true equality for women.