Volume XXVIII, Number 1
ACLU CHALLENGES NORTH CLACKAMAS SCHOOL DISTRICT'S
POLICY OF CENSORING STUDENT SPEECHES Campaign Speech About
Censorship Is Censored
ANATOMY OF A BALLOT MEASURE CAMPAIGN IN OREGON
From the Inside
CIVIL LIBERTIES UP FOR A VOTE Ballot Measures
Oregonians Are Likely To Face This November
IN THE COURTS
CONGRESSIONAL UPDATE Civil Liberties At Stake in the
FREE SPEECH & EXPRESSION: Challenge to
Measure 9, 1994's Campaign Finance Measure
SEPARATION OF CHURCH & STATE: Religious
holiday programs in public schools.
FACES OF LIBERTY Two Sets On The Road in 1996
ACLU CHALLENGES NORTH CLACKAMAS SCHOOL DISTRICT'S
POLICY OF CENSORING STUDENT SPEECHES
Campaign Speech About Censorship Is Censored
Sarah Yearout called the ACLU with a unique civil liberties dilemma --
her student government campaign speech denouncing school censorship was
In _Yearout v. North Clackamas School District_, the ACLU Foundation of
Oregon represents Clackamas High School senior Sarah Yearout in her
challenge to the school district policy that caused school officials to
censor her speech. Our aim is to clarify the free speech rights of all
Oregon high school students.
The Clackamas controversy began in January, 1995, when Sarah Yearout
was prevented from giving her student government campaign speech at a
student assembly. She had signed a "contract" when she became a
candidate, agreeing not to "...make derogatory remarks about our
school..." However, she never dreamed her speech about the need for
better communication between students and the administration would be
"I don't understand what they thought I was going to do,"
Sarah explained. "My speech wasn't radical. It was about
communication between the school and students, and how I wanted to make
Sarah contacted the ACLU of Oregon after her speech was censored, and
after, she feels, she lost the election because of it. On behalf of Sarah
Yearout, ACLU volunteer attorney Brian Posewitz filed suit in Multnomah
County Circuit Court in December, 1995, arguing that Sarah's free speech
rights under the Oregon and U.S. Constitutions were violated when the
school censored her speech.
Oregon ACLU Executive Director David Fidanque says the case could be an
important milestone in the fight for students' rights.
"When government officials refuse to let an individual, in this
case a student, speak based on the content of that speech, that's
censorship. While the government could never censor the speech of
adults, it's becoming more and more common for students."
Fidanque noted that a 1986 decision by the U.S. Supreme Court (_Bethel
School District v. Fraser_) ruled that Washington school officials did not
violate the First Amendment rights of a student government candidate who
was suspended for making a sexually suggestive campaign speech to a school
"This case is very different," Fidanque said. "Sarah
Yearout's speech was in the finest tradition of advocating change within
the existing political process and she was prevented from ever giving the
speech. This is a classic case of misguided censorship."
Sarah Yearout says it was because an ACLU speaker had visited her
government class shortly before the school candidate assembly that she
realized there might be something she could do to protect her rights.
"I don't know what I would have done if I hadn't known about the
ACLU," she said.
ANATOMY OF A BALLOT MEASURE CAMPAIGN IN OREGON
From the Inside
Initiative sponsors have until July 5th to gather signatures, and we
won't know for sure which initiatives will appear on the November ballot
until the Secretary of State completes verification of the signatures on
July 20th. Unfortunately, the campaigns against these measures can't
afford to wait that long if we are to be successful.
The nuts and bolts of a successful ballot measure campaign are
daunting. One of the most important tasks starts as soon as a proposed
initiative is filed: to make sure that the measure's ballot title
accurately describes the actual purpose and effect of the measure if it's
approved. This step is critical because the ballot title is the
description of the measure which is printed on the ballot on election day.
It is always the last thing one sees before voting and it's the only thing
seen by voters who don't read the fine print in the Voters' Pamphlet.
ACLU monitors all proposed measures filed with the Secretary of State.
We submitted comments on the draft ballot titles for at least 19 different
statewide ballot measures in 1995. We also appeared in the Oregon Supreme
Court cases reviewing most of those ballot titles. The Oregon ACLU does
more of this kind of work than anyone except the Oregon Attorney General's
office which represents the state in all ballot title cases.
We occasionally file lawsuits seeking to have proposed measures
declared ineligible for the ballot because they are unconstitutional or
fall outside the scope of the initiative power. So far, those challenges
have not been successful. Nevertheless, we have three such challenges
pending and a fourth in the planning stage.
Beyond that, there is the business of getting campaign coalitions
organized, raising money, researching voter attitudes through polling,
raising more money, preparing campaign materials, identifying supportive
voters, raising lots more money, buying radio and TV time, and finally,
making sure voters get to the polls on election day.
Running a full-blown initiative campaign costs between $1.2 and $1.8
million and uses hundreds of volunteers. That describes the kind of effort
it took to defeat the OCA's anti-gay measures in 1992 and 1994, and also
the effort it took to defeat the anti-choice measures in 1990.
Obviously, it will be difficult to mount that kind of effort for all of
the measures we face this year. At this writing, three of the campaigns
are already well organized and by the time this reaches you, others may
also be in high gear.
Most of the campaigns will have permission to write ACLU members
seeking contributions. We never give physical possession of our membership
list to any other organization. Instead, the campaigns are required to
send the mailing to a reputable mailing service which then puts the labels
on envelopes and delivers the mailing to the post office. Members who have
indicated that they don't want their name exchanged with other
organizations would be excluded from the mailing.
If you have any questions about the pending ballot measures or ACLU's
activities, please call or e-mail (email@example.com) us anytime.
CIVIL LIBERTIES UP FOR A VOTE
Ballot Measures Oregonians Are Likely To Face This November
Anti-civil liberties ballot measures which are likely to appear on this
November's ballot include:
Censorship/Obscenity - Would effectively repeal the Oregon free
speech protection for "obscenity" and would allow Oregon's 276
cities and counties to adopt different definitions of what is obscene.
Would encourage censorship by overzealous police, prosecutors and
OCA Anti-Gay - The Oregon Citizens Alliance has once again targeted
lesbians, gays and bisexuals for special discrimination. In order to
inoculate the measure against a possible Supreme Court ruling
overturning Colorado's anti-gay measure, the 1996 OCA measure includes
language that would establish a religious "right of
conscience" to discriminate because of "sexual behaviors such
OCA Anti-Abortion - The OCA is also circulating a measure to outlaw
second and third trimester abortions unless the life of the pregnant
women is in danger. This extreme proposal makes no allowances for rape,
incest or situations where the pregnant woman's health is at risk--not
even when the fetus has no chance of surviving.
Anti-Immigrant - Four separate measures would require various state
and local government programs to require proof of legal residency or
citizenship to obtain services. Everything from local schools to
universities, hospitals and driver's licenses would be covered. The
measures would be burdensome and expensive for all Oregonians, and would
encourage discrimination against anyone who looks or sounds
Anti-Affirmative Action - The Oregon Supreme Court has now certified
ballot titles for all seven versions of a measure designed to prohibit
all state and local government affirmative action programs--even when
those programs have been adopted to remedy past discrimination.
Criminal Justice - Crime victim advocates are proposing to
effectively repeal the Oregon Bill of Rights provisions that guarantee
due process to people accused of crimes. The measure would make it much
more likely that innocent people will be convicted, including those
facing a possible death sentence.
Prisons - A proposed measure would greatly increase prison terms for
repeat burglars and thieves. This measure is a prescription for more
crime down the road because it would require deeper cuts in the
education and social service programs that have been proven to prevent
youngsters from becoming the criminals of tomorrow.
IN THE COURTS
The ACLU Foundation of Oregon continued to have an aggressive
litigation program in 1995. For the first time in recent memory,
countering the radical right organization the Oregon Citizens Alliance (OCA)
was not the primary catalyst behind our litigation. While the number of
cases related to the OCA remained substantial, 17, the dominant factor in
our 1995 litigation was the initiative process itself. Between ballot
title, pre-election and post-election challenges, ballot-measure related
litigation accounted for 32 cases last year. If you are a member of the
ACLU of Oregon and you would like to receive a copy of our current docket,
call the Portland office at (503)227-3186.
Here is the breakdown of cases and the primary constitutional issue
involved in each:
Equal protection (includes challenges to OCA, anti-immigrant and
anti-affirmative action initiatives): 26
Free speech: 13
Religious liberty / Separation of church & state: 11
Search & seizure: 8
Due process: 7
Privacy (includes reproductive freedom): 5
Preserving Oregon's Bill of Rights: 2
Death with dignity: 1
Right to a fair trial: 1
Right to petition government: 1
Protection against self-incrimination: 1
FREE SPEECH & EXPRESSION: Challenge to Measure 9,
1994's Campaign Finance Measure
1994's Measure 9, the Campaign Finance initiative, was overwhelmingly
passed by Oregonians who seemed to feel the voice of the
"average" citizen is barely heard above the much louder voice of
the almighty dollar. Whether or not you agree that campaign financing
needs to be overhauled, once you find out what Measure 9 really does, you
will probably agree that Measure 9 is not what it seemed.
In the guise of keeping big money out of elections, Measure 9 actually
limits the voices of social workers, teachers, lesbians and gay men, and
many other Oregonians who deserve a voice in the political process.
Meanwhile, the monied forces who try to dominate the process, and whose
influence Measure 9 sought to limit, continue to find loopholes in order
to maintain their influence.
On behalf of the American Civil Liberties Union, Inc., Social Workers
PAC (SW PAC), Oregon Faculties PAC (OF PAC) and Right to Privacy PAC (RTP),
the ACLU Foundation of Oregon is petitioning the Oregon Supreme Court for
permission to file a friend of the court brief in a challenge to Measure
9. Our brief will highlight the free speech and freedom of association
problems inherent in the measure.
SW PAC and OF PAC are organizational PACs, created so individuals with
like concerns can donate what they are able; the combined donations add up
to a louder voice, with the end goal of having some influence in the
political arena. RTP's primary goal is to collect donations form
individuals who not only wish to have a greater, combined effect, like SW
PAC and OF PAC, but who contribute to RTP instead of directly to campaigns
and/or candidates for other reasons. RTP Executive Director Barry Pack
explains the necessity of RTP for gay and lesbian Oregonians.
"Gay and lesbian Oregonians live in constant fear of losing their
job, losing their housing and in fear for their own physical safety
because of their sexual orientation," explained Pack. "RTP
exists solely to represent them and allow them an entry into the political
process without sacrificing their physical safety."
Because Measure 9 limits contributions from individuals to PACs (
maximum $100) and from PACs to candidates ($100 for legislative, $500 for
statewide races), groups like RTP, SW PAC and OF PAC will have much
smaller voices. However, wealthy individuals, corporations and labor
unions can still influence elections through "independent
expenditure" campaigns. The U.S. Supreme Court has said such spending
is protected by the First Amendment. Wealthy candidates, like U.S. Senate
candidate Gordon Smith, are also free to spend unlimited amounts of their
The ACLU supports public financing of election campaigns in order to
guarantee that _all_ candidates would have enough money to get their
message to voters.
SEPARATION OF CHURCH & STATE
Religious holiday programs in public schools.
Mr. Funfiddle seems innocuous enough at a glance. He is a
festive-looking man in holiday green and red, romping with equally festive
children who have "Peace", "Love", "Hope",
and "Joy" emblazoned on their shirts. Sure, there is a Christmas
tree in the picture, but schools are allowed some leeway during the
However, perusing the playbook for "Mr. Funfiddle's
Christmas" quickly gave credence to the concerns of some Silverton
parents. "Mr. Funfiddle's Christmas" blatantly promotes a
fundamentalist Christian viewpoint, and kindergarten through eighth grade
students at Victor Point Elementary School, located in a small, rural town
in central Oregon, were practicing scenes from it during their class time,
for a production to take place in school, during the school-day.
Even supporters of the ACLU feel we may go too far when we interrupt a
school's holiday festivities with concerns about mixing government and
religion. However, the Victor Point production of Mr. Funfiddle's
Christmas is a perfect example of why we must maintain a strict separation
between church and state. Five and six year-olds do not understand when
they recite the line "Jesus was the gift God sent to the people of
earth," that _they_ don't have to believe that. On the contrary, if
they are learning it in school, they could very reasonably deduce that the
school is teaching that as fact. This is the problem.
When we learned about "Mr. Funfiddle's Christmas", ACLU
cooperating attorney Jossi Davidson agreed to take on the thankless task
of attending the Victor Point school board meeting to explain why the
principal had to cancel the play. In a letter to the principal, Davidson
explained that the production of Mr. Funfiddle's Christmas "...by the
school would unconstitutionally promote religion in violation of the First
Amendment of the United States Constitution, Article 1, sections 2, 3 and
5 of the Oregon Constitution..."
In response to our letter, the principal agreed that Mr. Funfiddle
crossed the line; he changed the mandatory classroom activity into a
voluntary, after-school event. Additionally, supporters of the play who
would coordinate the after-school production agreed to remove all
blatantly religious dialogue and music from the play. Unfortunately, we
received word that those changes may not have been made, so we continue to
Civil Liberties At Stake in the 104th Congress
It is very important to contact your Senator, Representative and/or the
President in the next couple of months about severe threats to civil
liberties. Issues we anticipate congress will act upon this session
The Anti-Terrorism Act
The Anti-Terrorism Act's ultimate impact will be felt by law-abiding
citizens who could suffer grave invasions of privacy in the name of
national security. The Anti-Terrorism Act would give the Executive branch
the authority to blacklist certain groups by designating them as terrorist
organizations; prevent Americans from inviting dissenting voices from
other nations to speak or to visit the United States; allow the
deportation of individuals without giving them the opportunity to know why
they are being deported; give expanded powers to the FBI to search hotel
and travel records without declaring that the search is for a criminal
investigation; and, it will provide an ongoing source of funding for
retrofitting the nation's phone lines to make them more wiretap ready. A
House vote is expected soon.
The House and Senate will vote this session on welfare reform bills that
include provisions to deny benefits to legal immigrants; gut the federal
standards preventing child abuse and neglect; and, exclude needy children
from benefits because of the actions of their parents.
Partial Birth Abortion Act
An expected second House vote on the Partial Birth Abortion Act threatens
women's reproductive freedom. The exemptions in the Partial Birth Abortion
Act are so restrictive that even if the pregnancy threatens the life of
the woman she will not be able to have an abortion. If this legislation
becomes law, a woman's right to choose under less severe circumstances is
also at risk.
The House and Senate will probably face votes this session on bills that
threaten the civil liberties of both legal and illegal immigrants. The
proposed legislation would make it very difficult for any person dealing
with the United States government, including those seeking asylum and
undocumented workers facing deportation, to receive the full due process
protections all persons are entitled to receive. The proposed national ID
system will fundamentally erode the privacy of all Americans.
Stop Turning Out Prisoners Act (STOP) and Prison Litigation Reform Act are
very destructive bills that limit the power of federal courts to issue
relief in prison conditions cases; make it difficult to settle prison
condition suits; and, place a two year limit on federal court injunctions
designed to remedy unconstitutional prison conditions. Legitimate
complaints by prisoners concerning abuse by prison staff and
administration, including rapes, beatings and sewage in drinking water,
will go largely unheard if this legislation passes.
FACES OF LIBERTY
Two Sets On The Road in 1996
Faces of Liberty, the ACLU of Oregon's traveling photo-journal exhibit,
has been so popular that a second set has been produced! There are now two
sets of Faces of Liberty traveling around the state, educating Oregonians
about ACLU's most important client -- the Bill of Rights.
If you know of a venue that can host Faces of Liberty, please contact
Kathy Armstrong at the ACLU's Portland office (503-227-3186) so we can
schedule a visit. We are particularly interested in exposing students to
this important educational exhibit. Suggestions are welcome!
Faces of Liberty is a set of 9 panels that documents, through black
& white photographs and accompanying text, eight stories of individual
Oregonians who stood up for basic civil liberties. Faces of Liberty is an
education project of the ACLU Foundation of Oregon. Brochures about the
exhibit are available at all exhibit sites, and from the ACLU office in
Copyright 1996 ACLU Oregon