In The Courts

Church and State

In August 1999, we received a disappointing decision from Multnomah County Circuit Court Judge Ceniceros in Powell v. Portland Public School District. The judge rejected the ACLUâs legal arguments that the school district, by permitting the Boy Scouts to recruit on school property during the school day, violated the constitutionally required separation of church and state.

We filed on behalf of Nancy Powell and her son, Remington, who object to the in-school recruitment because the Scouts list "duty to God" as a central tenet of their organization and represent themselves as a "religious organization." These factors are objectionable to Nancy and Remington, who are atheists.

Judge Ceniceros ruled that the Scoutâs religious requirements are only a secondary organizational purpose. However, even though we are disappointed by the judgeâs ruling we believe it had a silver lining for the ACLU and our clients. In his ruling, Judge Ceniceros said the "most disturbing aspect of this case is the Boy Scoutsâ denial of membership to boys and scoutmasters who do not acknowledge the existence of God." The judgeâs factual finding is important because school officials have denied any knowledge of the Boy Scoutsâ long-standing policy of denying membership to atheists.

When Portland schools give special privileges to a religious organization that discriminates against some of its students based on religion, they are promoting that discrimination. It is particularly offensive that the Boys Scouts are given access, during the school day, to a "captive audience" of elementary school-aged children.

We have formally asked the Portland School Board to reconsider its position and to enforce District policies and state laws that prohibit this kind of discrimination. While we are hopeful that the school board will do the right thing to protect young students by changing its practices, we are preparing to appeal the judgeâs decision to the Oregon Court of Appeals.

Andrea Meyer is directly representing the Powells and is the lead ACLU cooperating attorney on this case. Long-time cooperating attorney Paul Meyer assisted her, in our first daughter-father cooperating attorney team.

In 1995, the Oakridge School District rejected a request by The Good News Club, an adult-run national Bible study program for children, to hold meetings with students at Oakridge Elementary School right after school. Several hearings were held and preliminary injunctions issued in 1996 and 1997 in support of the club. On Jan. 5, 1999, Judge Michael R. Hogan of the U.S. District Court for the District of Oregon ordered the school district to provide the same access to school facilities, and to allow students to distribute information and permission slips as afforded to all other non-school community groups.

In June the judgeâs order was appealed to the U.S. Court of Appeals for the Ninth Circuit. Cooperating attorney Charles F. Hinkle, in conjunction with the Anti-Defamation League, filed an amicus brief in Cuthbertson, Armstrong et al. v. Oakridge School District No. 76 et al, arguing that Judge Hoganâs order violated the Establishment Clause of the U.S. Constitution. In addition we argued that the school district may place restrictions on speech if it is necessary to avoid violating the Establishment Clause and that the district did not violate the Free Speech rights of the club organizers. The Court has not set a date for oral arguments.

Free Speech

The ACLU of Oregon played a significant role as a friend of the court in the Planned Parenthood "wanted posters" case. In February, a Portland jury found that the activities of the named anti-abortion protesters constituted actual threats to the physiciansâ lives and safety.

Following the jury verdict, U.S. District Court Judge Robert E. Jones issued an injunction against anti-abortion activists that we believe draws the appropriate line between political speech protected by the First Amendment as opposed to threats of physical harm that are outside the bounds of free speech. We believe the judge was correct to limit the scope of the injunction to future publications by the activists which are similar to the "wanted posters" that spawned the lawsuit and are made "with a specific intent to threaten." The Oregon ACLU had filed a friend of the court brief on the First Amendment implications of the injunction which had been proposed by lawyers for Planned Parenthood and the other abortion providers in the case.

The ACLU has maintained throughout this case that the safety of abortion providers can be secured without violating the First Amendment rights of anti-abortion protesters. We believe that the essential element is whether the defendants in this case intended the "wanted" posters they issued to be perceived as threats of physical harm by those who were named in the posters. Judge Jones satisfied this element when he made a specific finding of fact that the anti-abortion activists did have the necessary "specific intent and malice" to threaten the physical safety of the physicians and clinics and also intended to intimidate them from providing abortions in the future.

The defendants are appealing the decision and briefing before the Ninth Circuit Court of Appeals will take place this fall. The ACLU friend-of-the-court briefs were prepared by volunteer lawyers Michael H. Simon and Chin See Ming of the law firm Perkins Coie LLP in Oregon. They will continue as our amicus counsel in the appeal to the Ninth Circuit.

Equal Protection and Immigration

Are immigrants deadbeats? The Congress and the Immigration and Naturalization Service seem to think so. One of our fellow Oregonians, an Irish immigrant who worked hard at his government job, was fired solely because he is not a citizen and is an immigrant. We thought that was unfair, so we stepped in to help in McGuigan v.State of Oregon Dept. of Corrections

Sean McGuigan, a corrections officer at the Snake River Corrections Institution, was fired because the INS had not ruled on the worthiness of his citizenship request within the one-year deadline required by Oregon law. McGuigan is represented by ACLU cooperating attorneys Mary Lou Boelcke and Anne Davies.

Boelcke said: "Federal and state laws are very clear that police officers who perform political functions like making arrests and enforcing the laws must be citizens. But the law is unclear on prison employees. We wanted to make sure Sean was being treated fairly. The most irrational part of Oregon's law is that it allows a non-citizen to work at the prison for a year without penalty. What disqualifies Sean from a job he had done well on day 363 of his employment, but disqualifies him at day 367? Nothing but an unconstitutional law. The Fourteenth Amendment guarantees that everyone is treated equally by the government and that guarantee includes legal immigrants as well as citizens."

The complaint was filed in U.S. District Court in Eugene on Jan. 25, 1999, with a request for a jury trial. We are waiting for the Attorney Generalâs office to answer the complaint. No court date has been set.

Free Press and Capital Punishment

In an important victory this July, the Oregon Supreme Court reversed the decision of the Oregon Court of Appeals and established that 1) the Oregon Department of Corrections cannot restrain witnesses to an execution from discussing what they observe with others; and 2) the Department of Corrections cannot prevent witnesses to an execution from observing the procedures by which a condemned inmate is prepared for the administration of the fatal drug. This ruling in Oregon Newspaper Publishers Assoc., et al v. Oregon Department of Corrections is the result of our challenge to Department of Corrections rules for witnesses to executions.

The rules were designed to prevent witnesses from observing any of the preparations of an inmate for execution. A condemned inmate is prepared for execution behind closed curtains. Only after the inmate has been hooked up to the IV tubing and has been partially sedated are the curtains opened for witnesses to observe the final step of the execution. Additionally, the rules required all witnesses (including members of the news media) to sign contracts promising not to divulge any "personally identifying" information about any of the prison officials who participate in the execution.

We challenged the rules on statutory and constitutional grounds. We argued that the non-disclosure rule amounts to prior restraint of personâs right to speak and that the limited access rule to observing an execution inappropriately limited the activities the witnesses may see. The Oregon Supreme Court invalidated the rules for statutory reasons and therefore didn't reach the constitutional issues. Les Swanson, Jr. was our cooperating attorney in this case and directly represented our client/petitioners.

School Uniforms

In another disappointing loss for studentsâ rights, we lost our challenge to the Gervais Elementary School uniform dress code. Last year, Gervais Elementary School adopted a mandatory uniform policy that was seriously flawed. In addition to our claim that the policy violates the studentsâ right to free expression, the policy did not provide a reasonable opt out provision, no financial assistance was available to families who could not afford to purchase the required clothing and the policy has been unevenly enforced. Unfortunately, Marion County Circuit Court Judge Terry Leggert disagreed and ruled that school board has broad authority to impose such requirements on students. We are preparing an appeal of her decision to the Oregon Court of Appeals. Jossi Davidson of Silverton is our cooperating attorney and is directly representing the families who seek to challenge the uniform policy.