Newark – The ACLU of New Jersey applauded a move taken by administration of Glenview Elementary School in Haddon Heights to stop the practice of adding “God bless America” during the Pledge of Allegiance recited during daily morning assembly. The ACLU-NJ sent a letter to the school district (PDF) on December 30, 2015, explaining that invoking a blessing from God at the beginning of each school day violates the Establishment Clause of the Constitution, which calls for no government sponsorship of religion.
“Our constitution is clear: schools can't coerce or impose religion on children,” said ACLU-NJ Legal Director Edward Barocas. “It’s the job of parents to decide how and whether to instill religion, not public schools. There is a special concern when it involves students at such an impressionable age, including kindergartners. It gives some children an uncomfortable choice between opting out and risking the status of pariah, or troublemaker, or participating in a group exercise that pressures them into voicing beliefs that may run counter to their own and their parents.”
Students at the school, which houses children between kindergarten and sixth grade, have stood at attention lined up by grade to recite the phrase “God bless America” immediately following the Pledge of Allegiance for about 14 years. The Constitution prohibits not only public institutions from favoring one religion above another, but also from favoring religion over non-religion. The United States Supreme Court has rejected a practice of invoking God’s blessing as a daily ritual.
“Students have the right to engage in speech, including religious speech, on their own time at school, and the ACLU-NJ has defended students’ religious speech in the past,” Barocas said.
“The fact that the phrase has some patriotic overtones does not cancel out the fundamentally religious nature of the words recited every morning in unison at the school, led by teachers and administrators,” added Barocas. “The school should focus its efforts on academics and the enrichment of children, not the debate over whether to add a religious blessing to the end of the Pledge of Allegiance.”
NEWARK - On the most important civil liberties issues facing the 216th Legislature, a majority in the General Assembly voted with the ACLU of New Jersey at least 90 percent of the time.
The first-ever ACLU-NJ legislative scorecard tracks the records of Assembly members on 13 key issues votes during the legislative session that began Jan. 2014. In the run-up to the Nov. 3 election, in which Assembly members are at the top of the ticket, the ACLU-NJ is releasing a scorecard of those votes to educate the public at large as well as its 20,000 members and donors who live in every single legislative district in the state. The information can be found online at https://www.aclu-nj.org/scorecard. It includes a table showing how every Assembly member voted on the issues and allows users to learn details about the scored bills, compare Assembly members’ voting records, find out who made the Honor Roll, and look up scores for legislative districts and an interactive map of New Jersey.
“The good news is that most Assembly members vote for civil liberties and civil rights most of the time. The bad news is that our elected officials aren’t always there when it counts, like with the bill to allow transgender New Jerseyans access to birth certificates that reflect their true gender,” said Ari Rosmarin, ACLU-NJ Public Policy Director. “With this kind of sound information, civil rights voters can hold elected officials accountable because they know where their representatives stand on the key issues of the day when they go to the polls.”
Of the hundreds of bills the Legislature considered, the ACLU-NJ identified 13 votes as the most central to civil rights and civil liberties, including legislation to:
Out of New Jersey’s 80 Assembly members, 32 – or 40 percent – made the ACLU-NJ’s Honor Roll, with ratings of 100 percent.
The lowest rating belonged to Assemblyman Gregory McGuckin (R-Brick) at 38 percent. Eight other members of the Assembly scored below 50 percent and also earned a spot on the ACLU-NJ’s less-than 50 percent list.
“Above all, this scorecard is a tool for public accountability. We created it to allow New Jerseyans to learn where their lawmakers stand on key issues involving our rights and freedoms,” said ACLU-NJ Executive Director Udi Ofer. “We’re here to ensure those who have taken a stand for our fundamental civil rights continue to act in defense of our rights and liberties, and we’re here to put pressure on those who need a refresher in what it means to defend the rights of the people. Our goal is for every elected official to achieve a 100 percent rating. Even more importantly, our goal is for every resident of New Jersey to know where their representatives stand.”
The ACLU-NJ will continue to monitor important votes as the Legislature returns for its biennial lame-duck session after the election and before the 217th Legislature is convened in January. An updated scorecard, including scores for the Senate, will mark the end of the legislative term.
Visit https://www.aclu-nj.org/scorecard to read the scorecard online, look up legislative districts, compare Assembly members on an interactive map of New Jersey, and learn about the details of the scored bills in more detail.
Newark – On September 1, several New Jersey students and their families filed a lawsuit (PDF) challenging the NJ Department of Education’s (NJDOE) attempt to impose new exams and other fee-based tests as requirements for high school graduation without adopting new regulations as required by law.
The lawsuit, T.B., et al. v. NJ Department of Education, contends that NJDOE failed to follow existing regulations or propose new ones under the NJ Administrative Procedure Act (APA) when Commissioner of Education David Hespe announced that new graduation requirements would apply to this September’s incoming senior class.
The students and families filing the lawsuit are represented by the Education Law Center (ELC) and the American Civil Liberties Union of NJ (ACLU-NJ).
Last fall, Commissioner Hespe sent a memo (PDF) to districts and charter schools stating that high school students would no longer have to pass the State’s existing graduation tests, the High School Proficiency Assessment (HSPA) or the Alternative High School Assessment (AHSA), even though NJDOE regulations require use of those tests. The Commissioner’s memo notified districts that students must instead pass at least two of the new PARCC (Partnership for Assessment of Readiness for College and Careers) exams, given for the first time last spring. Hespe said that “schools and districts can expect to be notified of the [PARCC] 'cut scores' for use in New Jersey graduation determinations in the Fall of 2015.” Students who don’t pass PARCC must attain certain scores on the SAT, ACT or other tests, or successfully complete an undefined “portfolio appeals” process.
The lawsuit seeks to halt using PARCC, SAT and other tests as graduation requirements until NJDOE formally proposes and adopts new regulations through the APA process. The APA requires NJDOE to publish new rules in detail and give the public the opportunity to comment.
“This is a matter of basic fairness to students and families,” said Linda Reid, the grandmother of a Paterson 10th grader. “Changes in high school graduation requirements require the adoption of new regulations by the State Board of Education, an opportunity for public comment about those regulations, and due notice for the parents and students who will be affected. None of that happened.”
Concerns have been raised about the potential impact of the proposed policies, especially on at-risk students, English language learners (ELL), students with disabilities, and students with other special needs. For example, the elimination of the AHSA, the alternative assessment, will close a pathway to graduation used by as many as 10,000 students annually, including more than half of all ELL graduates. The use of fee-based commercial tests, including the SAT and ACT, as high school graduation exams also raises questions about equal access and the alignment of these tests with state standards. In addition, expanded use of the “appeals” process could place a significant new burden on high school guidance departments, especially in high poverty districts.
“There has been so much confusion and controversy about New Jersey tests and standards over the past year that students and parents don’t know what’s going on,” said Newark high school senior Tanasia Brown, one of the petitioners. “A lot of us have received no information or confusing information about the new graduation policies and about whether the PARCC tests ‘count.’”
“Students and families are supposed to receive information about high school graduation requirements when they enter 9th grade,” she added. “Changing requirements for students going into their junior or senior year is not fair or reasonable.”
TRENTON -- Governor Christie’s signature of S2003/A4299 will implement significant and much needed reforms to New Jersey’s juvenile justice system. The bill, sponsored by Senators Nellie Pou and Raymond Lesniak, and Assembly Members Shavonda Sumter, Charles Mainor, Benjie Wimberly, and Maria Rodriguez-Gregg, recognizes the critical need for age-appropriate treatment and access to rehabilitation for juveniles who intersect with the criminal justice system. The new law:
“These reforms to the waiver laws are consistent with the substantial body of research establishing that adolescents’ developmental immaturity renders them less culpable than adults”
The New Jersey Juvenile Justice Reform Coalition is pursuing system-wide reforms of New Jersey’s juvenile justice system, including promoting alternatives to incarceration for youth and improving conditions of confinement for those who are incarcerated. Members of the Coalition’s Steering Committee include Advocates for Children of New Jersey, the American Civil Liberties Union of New Jersey, the Lowenstein Center for the Public Interest at Lowenstein Sandler, the New Jersey Institute for Social Justice, and Rutgers Law School Children’s Justice Clinic in Camden and Criminal and Youth Justice Clinic in Newark.
Through legislative advocacy on this bill, as well as executive advocacy and litigation, the Coalition has sought to reform the process and circumstances under which youth may be placed in an adult prison, and to eliminate the practice of solitary confinement of juveniles. The Coalition applauds the extraordinary leadership of Senator Pou, who more than two years ago, began bringing together advocates (including members of the Coalition), retired judges, county prosecutors, the Attorney General's Office, and other stakeholders to discuss New Jersey’s juvenile justice system and how to improve it through these substantial reforms.
“The historic reforms to New Jersey's juvenile justice system just signed into law will make us fairer, smarter, and safer. While there remains more work to do, these changes are a significant step towards making the ‘justice’ in our juvenile justice system a reality,” says Alexander Shalom, Senior Staff Attorney at the ACLU of New Jersey.
“New Jersey will become the twenty-first state to prohibit the use of punitive solitary confinement by either law or practice, in line with a growing national trend. This is a first and significant step towards reducing the risk of serious harm to juveniles in secure facilities, but we still have a long way to go,” explains Natalie Kraner, Pro Bono Counsel at Lowenstein Sandler. “The new law’s data collection requirement is critical because it will afford transparency to the Juvenile Justice Commission’s continued use of solitary confinement and protect against an overbroad and prolonged use of non-punitive solitary confinement,” adds Kraner.
“Serving time in an adult facility has enormous and lifelong consequences,” remarks Laura Cohen, Director, Criminal and Youth Justice Clinic at Rutgers School of Law. In another important change, youth who have been waived for adult prosecution presumptively will be held in local juvenile detention centers, rather than county jails, while awaiting trial; similarly, any young person who is sentenced to a term of incarceration will be committed to the state's Juvenile Justice Commission until the age of 21 and may remain there beyond that time at the discretion of the Commission. “These reforms to the waiver laws are consistent with the substantial body of research establishing that adolescents’ developmental immaturity renders them less culpable than adults,” explains Cohen.
“While we agree that juveniles should be held accountable for their actions, we must treat juveniles who commit crimes differently than adults. These youth will return to their communities and we must equip them with the skills they need to stay out of trouble and mature into productive adults,” says Mary Cogan, Assistant Director, Advocates for Children of NJ.
“This legislation represents a much-needed paradigm shift in how New Jersey addresses juvenile delinquency issues," adds LaShawn Warren, Vice President and General Counsel of the New Jersey Institute for Social Justice. "It moves the state closer to a rehabilitative model that appropriately factors in developmental considerations of youth and ensures progress toward racial fairness in the state juvenile justice system.”
The following is attributable to Alexander Shalom, Senior Staff Attorney at the ACLU of New Jersey. The ACLU of New Jersey is a member of the New Jersey Juvenile Justice Reform Coalition.
The historic reforms to New Jersey's juvenile justice system signed into law today will make us fairer, smarter, and safer. Solitary confinement of juveniles is a practice that has no place in our state and should only be used as a very last resort. Collecting data on the use of solitary confinement and the practice of trying children as adults will only serve to improve our juvenile justice system. While there remains more work to do, these changes are a significant step towards making the "justice" in our juvenile justice system a reality. The ACLU of NJ thanks Senator Pou, Assemblywoman Sumter for their leadership, and Governor Christie for signing this legislation into law today.
Image: © Richard Ross, www.juvenile-in-justice.com
NEWARK – In a groundbreaking ruling in an American Civil Liberties Union of New Jersey case, a New Jersey judge found that people convicted of crimes as juveniles cannot be sentenced to de facto life without the possibility of parole without carefully considering the role their youth played in their crimes.
The case involved James Comer, who was sentenced at age 17 to serve 75 years in prison, more than 68 without parole. Essex County Superior Court Judge Thomas R. Vena in a ruling Friday, May 8, concurred with the ACLU-NJ that because Comer will be 86 years old when he first becomes eligible for a parole hearing, he had effectively been serving a life sentence. As a result of the ruling, Comer will be resentenced.
“The judge adopted the Supreme Court’s axiomatic observation that children are not just miniature adults. The unique nature of their brain chemistry requires that they be treated differently than adults,” said ACLU-NJ Senior Staff Attorney Alexander Shalom. “This ruling clearly affirms that before a court can condemn a child to die in prison, it must consider the things about youth that make these extreme sentences so ill-suited to juveniles.”
The ACLU-NJ argued that a series of U.S. Supreme Court decisions proscribed courts from sentencing minors to life imprisonment without the possibility of parole, including de facto life sentences. Consistent with these cases, Comer’s resentencing will take into account the immaturity and impetuousness that accompanies youth; his home environment at the time; the circumstances of the offense, the deficiencies of young people in handling real-world functions, such as dealing with attorneys or police officers; and the possibility of Comer’s rehabilitation.
While the judge did not share the interpretation that the Supreme Court’s rulings amounted to an absolute rejection of life sentences of minors, the judge did rule that Comer’s sentence was unconstitutional because the judge failed to factor in the hallmark factors of youth involved in his crime.
“This ruling gets New Jersey courts one step closer to the reality that it is unconstitutional to sentence children to die in prison,” said Lawrence S. Lustberg of Gibbons P.C., who along with Joseph A. Pace, also of Gibbons P.C., represented Comer on behalf of the ACLU-NJ. “The question isn’t whether Comer deserves to be released – the question is whether Comer and other children charged with serious crimes deserve a meaningful opportunity to obtain release as they mature.”
Mr. Comer, now 31 years old, was sentenced in 2003 for his role in four robberies and a felony murder as a juvenile, with no meaningful consideration given to his youth at the time. Felony murder differs from murder in that if a murder is committed during the commission of a crime, everyone involved in that crime is deemed responsible for the murder, even though they did not actually kill or intend to kill. Although he was not the one who pulled the trigger, Comer received a longer sentence than his two accomplices, one who was charged with the actual killing and the other who was an adult.
The resentencing, which has not yet been scheduled, will take place in Essex County. The State plans to appeal Judge Vena’s decision. The decision is available at: http://www.judiciary.state.nj.us/decisions/State%20v.%20Comer%20OPINION;%2003-01-0231%20PDF.pdf
ACLU of New Jersey Senior Staff Attorney Alexander Shalom made the following statement about reports that seven Sayreville football players charged with sexual assault will be tried as juveniles:
"The decision to prosecute the seven Sayreville High School football players as juveniles is the correct one, and we commend the Middlesex County prosecutor for making the right choice in a sexual assault case that has shocked the public conscience and roiled the community.
"The decision does not diminish the seriousness of the crimes alleged in the Sayreville case. Sexual assaults -- indeed, rapes -- such as those reported in the press should not be condoned as horseplay or trivialized under the term hazing. But asking that kids be treated like kids -- that children get access to rehabilitative services that will reduce their likelihood of recidivism -- is not the same as suggesting that they evade punishment. It is, however, recognizing that finding justice is not as simple as seeking retribution."
NEWARK -- Civil rights organizations filed a complaint late yesterday (PDF) with the federal Department of Education’s Office of Civil Rights (OCR) urging an investigation into New Jersey’s South Orange-Maplewood School District’s practices of tracking and school discipline that affect students differently based on race and disability status.
The complaint was brought by the American Civil Liberties Union, ACLU of New Jersey, and the Center for Civil Rights Remedies of the Civil Rights Project at UCLA. The groups charge the school district's tracking and discipline practices disproportionately confine students of color to lower-level classes and punish students of color and students with disabilities to a greater degree.
“These problems are all too common in school districts across the country, and the numbers in South Orange-Maplewood are particularly troubling,” said ACLU-NJ senior staff attorney Alexander Shalom. “We've been meeting with officials from South Orange-Maplewood in the hopes that they address this issue and become a partner in building a more democratic, equitable learning environment for all children.”
The complaint, brought under Title VI of the Civil Rights Act of 1964 and Section 504 of the Rehabilitation Act of 1973, outlines the scope of the disparate impact wrought by the district’s policies and recommendations to remedy the inequalities in the school system. It says that the policies and practices in effect impact different populations unfairly, even if those policies have a neutral intent.
The South Orange-Maplewood School District is among the New Jersey school districts with the highest racial disparities in tracking and student discipline. While white students make up slightly less than half of the student body, 70 percent of the higher-level classes are filled by white students, while 70 percent of the lower-level classes are filled by black students.
“Researchers know two things: tracking provides no concrete benefit and even harms students, and out-of-school suspension should be treated as a last resort because of its disruptive effects on both children and the learning environment,” said Courtney Bowie, an attorney with the ACLU's Racial Justice Program. "The small investment of time and resources for South Orange-Maplewood to overhaul these two conventions will pay off in the form of more engaged students who perform at higher levels than their peers in other schools.”
Based on the same data from the 2011-2012 school year, black students had a 15.9 percent chance of being suspended, compared to the overall suspension risk of 10.7 percent. Black students were also more than 4.5 times more likely to face out-of-school suspension than their white peers, while Hispanic students were slightly more than twice as likely to face out-of-school suspension compared to their white peers. Additionally, despite federal and state mandates requiring support and accommodation for students with disabilities, these students are more than 2.5 times as likely to face out-of-school suspension as their peers. Independent of disability status, black students have a 16.1 percent suspension rate versus white students’ rate of 2.7 percent.
The personal story of a student of color, plaintiff C.B., illustrates the effects of the disparate impact of the district’s practices and policies in the lives of individual young people. This student, an academically high-performing sophomore, met the pre-requisites for placement in Advanced Placement Calculus. Despite her stellar academic record, she was not recommended for the course she would have needed to take to qualify for AP Calculus. Her teachers had consistently placed her in the class level below the highest level without her parents’ knowledge and with no explanation. Repeatedly, when her s parents asked why her daughter was not placed in the highest level, school staff could not provide an answer.
“We hope that our action will prompt the district to replace its detrimental reliance on exclusion with methods that will improve the school climate for all children and dramatically reduce the large discipline gap along the lines of race and disability status documented in the complaint,” said Daniel Losen, director of the Center for Civil Rights Remedies of the Civil Rights Project at UCLA. “Ultimately, anti-discrimination law requires the rejection of the status quo in the South Orange-Maplewood School District. All students, regardless of their race or disability status, must be afforded access to a rigorous curriculum in a safe and supportive environment. By closing the access and discipline gaps we believe the district will also make strides in closing the achievement gap.”
Among the recommendations, the complaint proposes some of the following steps for reform:
NEWARK – Following a successful settlement between the ACLU-NJ and the Borough of Wanaque, the borough at its Monday night meeting repealed a restrictive ordinance that set a 10 p.m. curfew for juveniles. Under the terms of the settlement, the Passaic County borough repealed the ordinance in its entirety.
“Parents should be the ones responsible for setting curfews, not the municipal government,” said Linda Richardson, the plaintiff in the case. “I’m pleased that this misguided curfew policy is now stricken from the books. Parents in Wanaque once again have the ultimate say in deciding how late their teenagers, who are on the cusp of adulthood, can stay out and how early they can leave.”
The ACLU-NJ challenged the ordinance in March 2013 on behalf of Richardson, a Wanaque resident, and her daughter Shaina. Shaina, who was 17 at the time and attending community college, was cited by police for walking to Burger King after 10 p.m.
“The repeal of this ordinance is a victory for the constitutional rights of parents and young people alike,” said Edward Kiel, who handled the case as an attorney with the Hackensack law firm Cole, Schotz, Meisel, Forman & Leonard. “Parents should be free to exercise their own judgment and to determine whether their children are mature enough to be outside past 10 p.m.”
Shaina had her parents’ permission to walk to Burger King, which is located across the street from her family’s mailbox. On her walk back from the fast food chain, a police officer stopped her to ask why she was outside without an adult. Her stepfather came immediately, but the officer issued a citation, which could carry a $100 fine and the potential for 15 hours of community service.
Under the Wanaque ordinance, no one under the age of 18 could be in a public location in the town between 10 p.m. and 5:30 a.m., seven days a week, 365 days of the year. The ordinance made only a few, narrow and somewhat ambiguous exceptions, including minors travelling with parental accompaniment, in cases of emergency, for school-related functions, and to exercise First Amendment rights. The ordinance, adopted in December 2005, punished both minors and parents with a fine of $100 and 15 hours of community service for a first offense and up to $1,000 and 50 hours of community service for multiple offenses.
“The ordinance included an exemption for First Amendment expression, but without freedom of movement, it’s next to impossible to exercise those other rights,” said ACLU-NJ Legal Director Edward Barocas. “Fortunately, the repeal of this ordinance will mean that young people in Wanaque are free to venture outside without needing their town’s permission, whether it’s to jog in the neighborhood before school, to walk their dog, or to walk home from the house of a friend down the block after watching a late-night movie.”
The ACLU-NJ has challenged juvenile curfews in the past. In 1999, it won an injunction preventing West New York from enforcing its curfew, which prohibited anyone under the age of 18 from being in a public place from 10 p.m. to 6 a.m., unless accompanied by their parent or guardian. In 2001, the Appellate Division of the New Jersey Superior Court upheld the 1999 injunction and ruled that West New York’s ordinance was unconstitutional. The court also recognized there was a “strong constitutional presumption in favor of parental authority over government authority.”
NEWARK – The ACLU-NJ today called for the state of New Jersey to end the practice of giving what amounts to life sentences (PDF) without the possibility of parole to children who have committed crimes. The filing asked the court to reduce the sentence for James Comer, who at age 17 was sentenced to serve 75 years in prison. Because Comer will be 86, well past the average lifespan for a person in his situation, when he will be eligible for his first parole hearing, he effectively has been sentenced to die in prison.
“It’s unconstitutional to sentence children to die in prison, but for untold numbers of people, this sentence is still a daily reality,” said Lawrence S. Lustberg, of Gibbons P.C., who is representing Comer on behalf of the ACLU-NJ. “Certainly, not everyone who is sentenced to a prison sentence as a teenager should be released, but that’s not what we’re asking for. We’re asking that New Jersey recognize that every person sentenced for a crime committed as a child deserves a chance to show that he or she has changed and ultimately deserve to be released.”
As a result of recent United States Supreme Court decisions, courts throughout the country, including in New Jersey, can no longer sentence minors to life imprisonment without the possibility of parole. However, James Comer was effectively sentenced to life in prison. Given the average American male lifespan of 77, and the even shorter lifespan of men serving time in prison, he most likely will not live to see his first parole hearing, which is scheduled to take place more than two decades past his actuarially determined life expectancy.
Mr. Comer, now 31 years old, received his sentence in 2003 for his role in four robberies and a felony murder as a juvenile, with no consideration given to his youth at the time. Felony murder differs from murder in that if a murder is committed during the commission of a crime, everyone involved in that crime is deemed responsible for the murder. Although he was not the one who pulled the trigger, Comer received a longer sentence than his two accomplices, the person who was charged with the murder and the other who was an adult at the time. U.S. Supreme Court decisions have dictated that courts cannot give juveniles the harshest jail sentences, and indeed, they mandate states give people convicted of crimes as minors a “meaningful opportunity to obtain release,” even if they never ultimately leave incarceration.
The ACLU-NJ’s motion applies three U.S. Supreme Court decisions issued over the last 10 years that, combined, transformed the legal system’s treatment of young people. Together, those three cases established that the biological and psychological differences between childhood and adulthood entitle young people to treatment in sentencing that takes into account their unique capacity for change and rehabilitation. According to dozens of studies, the vast majority of adolescents who commit antisocial acts grow out of those inclinations; only five to ten percent of troubled adolescents become chronic offenders as adults. Further, it is impossible to predict which juvenile offenders will develop into relatively stable adults.
“Courts have finally recognized what parents have known for years: adolescents are fundamentally different than adults,” said ACLU-NJ Senior Staff Attorney Alexander Shalom. “As such, the Constitution demands that they be treated differently. Whether New Jersey calls it life without parole or 75 years, the result is the same: children are being condemned to die in prison. The Constitution and common sense both demand an end to this cruel and unusual punishment.”
The motion, captioned State of New Jersey v. James Comer, was filed June 12, 2014, in Essex County Superior Court. A hearing has yet to be scheduled.