Defending the Indefensible

Originally published Spring 2011.

As ACLU members, we share a common commitment to defend civil liberties, in the service of which sometimes comes the need to defend the indefensible.

In an 8 – 1 decision on March 2, 2011, the Supreme Court upheld the free speech rights of members of the Westboro Baptist Church, an extremist anti-gay group, over a family burdened by the loss in Iraq of their Marine son.

“The Court’s decision properly and respectfully acknowledges”, wrote ACLU Legal Director Steven R. Shapiro, “that the response to grief cannot include the abandonment of core First Amendment principles designed to protect the most unpopular speech on matters of public concern.”

For some this case conjured up memories of the 1978 ACLU’s defense of the KKK’s right to march in Skokie, Illinois, residence of many holocaust survivors. Although an action that led to a decline in ACLU membership, it is now regarded by many as the ACLU’s finest hour by having demonstrated that constitutional rights must apply to all if they are to apply to one.

In 2004, the ACLU of Florida claimed that state law enforcement officers violated Rush Limbaugh’s privacy rights by seizing his medical records as part of an investigation involving alleged “doctor shopping”.

Why, ask some, should the ACLU come to the defense of Rush Limbaugh? To which Howard Simon, then Executive Director of the ACLU of Florida, responded “We have always said that the ACLU’s real client is the Bill of Rights, and we will continue to safeguard the values of equality, fairness, and privacy for everyone, regardless of race, economic status, or political point of view.”

In declaring “the freer the speech, the stronger the democracy”, Tom Roden,, criticizes Europe for the restrictions it imposes on free speech, because such laws tend to drive extremists underground and into radical actions. Providing a democratic outlet, even for hateful speech, instills the belief that discourse alone may persuade others to the cause. Closing this opportunity indirectly fosters acts of intimidation and violence.

“Violent extremism is the resort of those that believe violence, not speech, is their best mechanism for social change.”

So the next time you are asked why the ACLU defends the indefensible, say it is to strengthen and safeguard democracy and extend an invitation to join the ACLU in this vital endeavor.


Roberta Schonemann and Judy Weitzman

Co-Presidents, Greater Lafayette Chapter ACLU of Indiana


Our State Legislature: Punishing the Poor

Continuing the war on the poor – an easy vote-getter in hard times – this Indiana General Assembly session launched a particularly mean-spirited offensive. HB 1007, which requires drug testing for adults applying for financial assistance for themselves or a child attracted over 50 House coauthors and passed the House 73-23.

The legislation gives the applicant a choice: either sign a consent to random drug testing, or refuse. A person who refuses is still subject to drug testing under “reasonable suspicion,” is more likely to be tested than one who consents, and the penalties for a positive test are more severe.

“Reasonable suspicion” includes prior criminal conviction, prior or suspected present drug use, or failure to attend a scheduled meeting or to complete online requirements regarding the assistance.

If a person consents to random testing (a certain percentage of those who consent must be tested) and the test is positive, the person is given a list of drug treatment programs and will be tested at least every 20 days. A person who does not test negative in two consecutive tests within four months is ineligible for financial aid for three months. On reapplying, the person must be tested and test negative.

If a person does not consent to random testing and tests positive, the person is ineligible for assistance for six months and any child will have the assistance reduced by 50% for six months. On reapplying, a person who tests positive will be permanently ineligible and a child will also be ineligible as long as the child lives with that person.

Mandatory drug testing policies violate Fourth Amendment protection, require applicants to sign away their civil liberties, are ineffective in treating addiction, disproportionately impact and stigmatize the poor and communities of color, promote the myth that those who need public aid use drugs at a greater rate than the general population, and waste taxpayer money.

It was the latter consideration that stalled the bill in the Senate committee. The fiscal note predicted a possible $1 million starting cost and high continuing costs. Drug testing is not only expensive but also misguided. In Indiana’s 2011 drug testing program for job applicants, only 13 of the more than 1,200 applicants failed their test. Yet the author of HB 1007, Representative Jud McMillin (R-Brookville), will be back next session “to save the state money from not paying welfare benefits to drug users.”

Stereotypes die hard.

Joan Laskowski
ACLU-Indiana Vice President for Legislation

Tax Gifts to Religious Schools

In the hope of making an end run around the constitutionally forbidden use of tax money to benefit religious schools, the South Bend County Council voted in June to do just that. With Council approval, the city of South Bend spent $1.2 million to buy a half acre site on which an empty Family Dollar store was located. The city intended to transfer the land to the Catholic Diocese of Ft. Wayne-South Bend. St. Joseph’s, a Roman Catholic high school in South Bend, would clear the land and construct a football stadium and parking lot next to the new $35 million school it is building for religious education and sectarian activities.

The Council was pinning its hope on a 2003 Indiana court ruling that “a private school can receive public support if it derives only an ‘incidental’ benefit and offers some public benefit in return.” The public benefit was that in return for the enormous gift to St. Joseph’s, city schools and organizations would be allowed – for ten years – to use the field and parking lot provided they were not being used by St. Joseph’s nor its students and provided the church approved of the community group.

The Council’s defense fails for a number of reasons.

As Gavin Rose, the ACLU-IN attorney argued, it ignores the federal Establishment Clause prohibition against use of government funds to advance religion. The Council had based its vote on the Indiana case, which did not raise this issue. The Indiana case did not involve payment of funds to religious schools, and the state funding supported only secular activity (public school teachers teaching public school classes on private school premises). In the South Bend situation, however, St. Joseph’s would be gifted with highly valuable property for unrestricted use. Further, the “public benefit” is tenuous at best. How often would that field actually be available for others to use?

The ACLU-IN, the national ACLU, and Americans United for Separation of Church and State represented four city taxpayers in a federal court suit, Wirtz v. City of South Bend. Their core arguments were that the city government was showing preference for one religion over another and giving substantial direct aid to a religious institution. U.S. District Judge Robert Miller agreed. He ruled that the plan violated the plaintiffs’ rights under the Establishment Clause and enjoined the transfer of the land.

The ACLU-IN has won its case. The land cannot be gifted to St. Joseph’s. The South Bend Council then asked the court for permission to sell the property to the high school. There was an auction, at which the high school was the only bidder. Their offer was $350,000. This too has now been struck down by Judge Miller as preferential treatment for a religious facility.

The federal court’s demand for government neutrality in matters of religion is an important victory for religious freedom.

– Joan Laskowski
Vice President Legislation

Introduction to the President, 2011

Welcome to the Fall Issue of the Greater Lafayette ACLU newsletter.

Let me start by giving heartfelt thanks to our retiring co-presidents, Roberta Schonemann and Judy Weitzman.

Since I am the new president as of August 2011, let me introduce myself.

Having been born into a minority religious family, we always considered the ACLU as the protector of minori- ties’ civil liberties. While growing up, working, and raising a family on the east coast, my only involvement with the ACLU was annually paying dues.

After retiring from the practice of psychiatry and moving to West Point, IN to be near our fourth child and only daughter (and her husband and four children) we quickly got involved with the Greater Lafayette ACLU-IN. Initially I was on the screening committee, whose function is to screen calls for assistance and to refer the callers to the ACLU-IN office in Indianapolis where the lawyers (2) and the paralegal are situated. They make the final decision as to whether or not the ACLU-IN can handle a given case.

This year, among other things, the ACLU-IN was involved in a number of cases including: 1. Allowing a child to wear a breast cancer awareness bracelet; 2. Challenging a school’s right to punish two high school students for posting “inappropriate” pictures on MySpace during their summer vacation, even though the pictures had nothing to do with the school; 3. Protesting the Department of Corrections’ segregating seriously mentally ill patients in solitary confinement for extended periods of time.

Learn more by accessing the ACLU-IN web site and clicking on “Litigation”.

During this year, our local ACLU-IN chapter sponsored several informational forums. At the annual dinner in April, Dr. Susan Curtis spoke about “The Delphs of Indiana”, a presumed immigration history of the family of State Representative Mike Delph, who sponsored the Indiana immigration law.

We presented the “School to Prison Pipeline” twice; once at the West Lafayette Public Library and once at Jefferson High School. Panelists were the same for both programs. Both were well attended. In September, to celebrate Banned Book Week, Dr. Susan Curtis led a lively, well-attended discussion of “The Adventures of Huckleberry Finn” and its inclusion of the “n-” word, which had led to its being banned.

In addition, our chapter had a table presence at both the Outfest and HannaFest and was able to talk about the ACLU-IN and its activities with people from diverse community populations.

We are looking forward to more educational forums this coming year and welcome ideas, suggestions, and feedback from our members!

Walter Dalsimer

President, Greater Lafayette Chapter ACLU of Indiana

SB 561 and Sentencing Reform

It’s been difficult going for the sentencing reform effort discussed in previous Our State Legislature articles. The need for reform is urgent: Indiana has the fastest growing incarceration rate in the country, even though the Hoosier violent crime rate has dropped by a third in recent years. During the past decade, the prison popula- tion grew 41%, three times faster than any neighboring state. The costs skyrocket; our resources keep sinking.

This last summer, using research from the Pew Center and the Council of State Governments, the criminal code evaluation commission drafted legislation for the 2011 session. Additional initiatives are expected in 2012.

The principle bill this session is SB 561, which permits the diversion of low-level drug and theft offenders from prison to a community corrections program or problem-solving court and treatment. Funding for the required new programs and personnel will come from prisoner reduction.

Indiana’s lengthy mandatory sentences for drug crimes are a chief cause of its prison overpopulation. In a Pew Report comparison, the penalty for selling 3 grams of cocaine is 2 to 20 years in Texas; up to 12 1⁄2 years in Wisconsin; probation or up to 1 year in Ohio; and 20-50 years in Indiana. The average sentence for drug sale in Indiana is nearly 50% longer than the average sentence for sexual assault.

The reform package downgrades possession of small amounts of cocaine or methamphetamine to a D felony (six months to three years) and dealing of small amounts to a C felony (two to eight years).

Theft sentences are also restructured to make the punishment proportionate to seriousness. Theft of property below $750 is made a misdemeanor rather than a felony; an amount between $750 and $50,000, a Class D felony; above $50,000, a class C felony.

Judges are given discretion to sentence those convicted of lesser felonies to spend the final six months to three years outside prison. Those who have committed a Class D felony may serve their entire sentence on pro- bation in a community transition program, as long as they do not violate a condition of probation.

This smarter approach to corrections not only cuts costs but also improves public safety by promoting rehabilitation, community reentry, employability and strengthening of family and social ties. Those convicted of nonviolent minor crimes have a chance to become productive members of society.

SB 561 is carried by Senators Brent Steele and Richard Bray and Representative Ralph Foley; it has the endorsement of the Governor and Chief Justice Randall Shepard.

Not one of these could ever be accused of being soft on crime. The measure has the support of legislative leaders, most members, and almost all involved in law enforcement. Almost all, that is, except prosecutors.

Prosecutors have great trouble with a sentencing bill that does not include enhancements. In December, the board of the Indiana prosecutors’ professional association voted to oppose the shortening of drug penalties. And that opposition succeeded. The bill was amended to require that 85% of some terms must be served in prison.

Because this would result in even higher expenditures, there would be no money for reform.

The Senate vote to pass the amended SB 561 was 46-3.

If there will be action on it in the House, the extended prison time provisions must be deleted.

Indiana needs this money-wise, results-wise change in dealing with offenders.

The ACLU defends the rights of all the people.

One of our favorite quotes from Molly Ivins:

“It is possible to read the history of this country as one long struggle to extend the liberties established in our Constitution to everyone in America.”

The ACLU has lead that struggle for 90 years. In fact, the ACLU was created for just that purpose. The ACLU is not here to defend the rights of only the people we like, but all the people.

Not just the people who look like us. All the people.

Not just the ones who share our views. All the people.

Not just the ones whose behavior is popular. All the people.

Today it should be no surprise that the ACLU supports the legal rights of Rev. Fred Phelps to picket the funerals of American Soldiers. Phelps and his followers condemn “fags” and celebrate the deaths of U.S. soldiers as signs that God hates America because of our approval of the “LGBT lifestyle.”

There is no doubt that the Reverend Phelps’s views are hateful and reflect a set of beliefs that are totally contradictory to the ACLU’s long history in support of Gay Rights. As early as 1936, the ACLU defended the play, The Children’s Hour, that was banned in Boston because of its lesbian content. And just this year, the ACLU successfully defended Constance McMillen’s right to take her girlfriend to the Senior Prom in Fulton, Mississippi.

The ACLU supports the rights and freedoms of gay, lesbian, bisexual, and transgendered people. The Rev. Phelps does not. Nonetheless, the Reverend Phelps is within his rights. Whether we like the speech or not, free speech is defended by the Constitution.

When people challenge you about the logic of the ACLU supporting Fred Phelps, remind them what Molly said so well …”extend the liberties of the Constitution to everyone in America.”


Roberta Schonemann and Judy Weitzman

Co-Presidents, Greater Lafayette Chapter ACLU of Indiana


Rethinking Incarceration

Originally published Spring 2010

Indiana’s fiscal difficulties had one happy consequence: it resulted in a 2010 General Assembly session that passed remarkably few new crimes or enhanced sentences. Larry Landis, Executive Director of the Indiana Public Defender Council, said this year’s low number was a record.

The reason for this restraint, of course, is that the cost of incarceration is enormous. And what’s worse, as costs increase and resources disappear, Indiana like many other states has cut back on prison programs like education and recreation, which increases the likelihood of recidivism and its future costs.

Alternatives to incarceration not only save money – money that could fund public education, for example – but they also promote rehabilitation, community reentry and the re-establishing of social ties.

One promising alternative is the use of problem-solving courts. A bill that seems headed for enactment would permit city or county courts to set up a variety of treatment diversions for offenders. These could include but are not limited to drug courts, family dependency drug courts, mental health courts, reentry courts, domestic violence courts, veteran’s courts, and community courts to address specific neighborhood or local criminal problems. The due process concerns with the original bill have been eased by amendments.

The Assembly was also creative in handling a bill criminalizing a juvenile’s creating, transmitting or possessing sexually provocative video or text messages. “Sexting”, as this has come to be called, is an issue of great interest in many legislatures this year. It’s not a new preoccupation of teens; it’s simply the use of the newest technology for them to explore and express their sexuality.

Sexting is of course ill-advised, but for politicians to make it a delinquent act would expose a large number of teens to the criminal justice system. The cost to them and to the taxpayers would be great. If punishment were to include incarceration, the costs would escalate. The average cost of housing a juvenile in a state juvenile facility was $75,050 in FY 2009.

Confronted with these fiscal realities, the legislature decided to refer the sexting bill to a summer study committee for its recommendations and to permit schools to offer instruction regarding the risks and consequences of sending sexually suggestive materials electronically.

This openness to exploring alternative ways of addressing undesirable behavior is wise and socially beneficial.

We should each make it a point to encourage our legislators to continue it even when funding becomes less dire.

How does the ACLU use your donation?

Originally published Spring 2010

When you support the ACLU with contributions and letter-writing campaigns, you probably feel good about what you do. Have you ever wondered who else is grateful for your support? Let us introduce you to a few.

There’s 13 year old Savana Redding. She was strip searched at her middle school in Stafford, Arizona, based on a classmate’s false accusation that she possessed ibuprofen pills. Savana and her mom were turned away by lower courts when they challenged this violation of privacy. The ACLU helped them take the case all the way to the U.S. Supreme Court. According to Savana, “With supportive ACLU lawyers by my side, we won a critical Supreme Court ruling that establishes new protections against strip-searches in public schools — a ruling that will protect generations of students from having to go through the same kind of humiliating invasion of privacy that I did.”

Nick George, a Pomona College foreign language student was abusively interrogated, handcuffed and detained at the Philadelphia International Airport because of a set of English-Arabic flashcards he had with him. A TSA supervisor questioned Nick, asking him how he felt about 9/11, whether he knew who did 9/11, and whether he knew what language Osama bin Laden spoke. Nick was handcuffed, led through a terminal to the airport police station where he was left in a locked cell for two hours in the handcuffs, and for two more hours with the handcuffs removed. He was then interrogated for half an hour, and he was not informed of his rights. By the time he was released, Nick had long since missed his flight and was told by airline officials that he would have to wait until the next day to travel. The ACLU and the ACLU of Pennsylvania have filed a lawsuit on Nick’s behalf.

Cynthia Stewart, a 17-year-old junior at Tharptown High School in northern Alabama, a member of her school’s prom planning committee, had personally raised over $200 for the prom and created the theme her classmates had chosen for the dance. She is also an out lesbian.

When Cynthia approached her principal to ask if she could bring her girlfriend with her to the prom, she was denied permission. He also made Cynthia remove a sticker she was wearing that said, “I am a lesbian,” and told her, “You don’t have that much freedom of speech at school.”

Cynthia’s aunt and guardian, Kathy Baker, appealed the principal’s decision to the school board, which let stand the decision to bar Cynthia from bringing her girlfriend to the prom. Cynthia then sought help from the ACLU of Alabama. Subsequently, the Franklin County School System officials reversed their decision: Cynthia will be allowed to attend the prom with her girlfriend.

Who else appreciates your support? We do.


Roberta Schonemann and Judy Weitzman
Co-Presidents, Greater Lafayette Chapter ACLU of Indiana