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home > resources > archive ACLU of Utah Reporter: September 2007 PDF version >> Inside This Issue: ACLU Forum: School Vouchers From the Director Report from the ACLU’s Day of Action to Restore Law and Justice What You Should Know About Habeas Corpus Hey High School Seniors! ACLU of Utah to Award College Scholarships Real ID Act: Law Establishes National ID System for Americans Special Thanks to Everyone Who Helped Make Our 2007 Bill of Rights Celebration a Success! Join Us for the ACLU of Utah Annual Membership Meeting About the ACLU of Utah _________________________ ACLU Forum: School Vouchers During its 2007 general session, the Utah State Legislature passed H.B. 148, “Education Vouchers,” which seeks to put into place an expansive, statewide voucher program to provide scholarships for students to attend private schools. The law is the subject of a citizen’s referendum, and this November, voters will decide the fate of the voucher program. ACLU of Utah staff attorney Marina Baginsky Lowe answers questions about vouchers and outlines the reasons why voters should reject Utah’s controversial program by voting “no” on “Citizen’s State Referendum Number 1.” What are school voucher programs? In recent years, state and local governments have attempted to use tax money to support private schools. There are a variety of different mechanisms by which governments have attempted to accomplish this goal, including the use of voucher programs, tuition tax credits, and individual and corporate tax credit deductions. School vouchers, also known as education vouchers, are payments to parents or schools from the state, which must be used to pay for the education of their children at a private school of their choice. Educational tax credits and tax deductions reduce tax liability for parents who have incurred educational expenses on behalf of their children. Corporate and individual tax deductions typically reduce tax liability for corporations or individuals who have made contributions to nonprofit organizations that give scholarships to students. Why does the ACLU challenge voucher programs? The ACLU’s primary concern with school voucher programs and other public funding of private schools centers on the bedrock principle, rooted in both the federal and Utah constitutions, that taxpayers should not fund religious activities and institutions. While voucher programs, including the proposed program in Utah, provide that vouchers may be used at all private schools, including non-religious or secular institutions, the reality is that in the voucher programs enacted to date around the country, the vast majority of government funds go to religious schools. The reason behind this phenomenon is economic: most non-religious private schools charge far more in tuition than parochial or religious schools. Parents certainly have the right to send their children to religious schools; however, the ACLU believes that this is not an expense that should be borne by taxpayers. Additionally, private schools receiving taxpayer funds are not required to comply with state laws that require schools to hire certified teachers, have open records and meetings, report drop-out rates, comply with free speech, anti-discrimination, and due process regulations, and provide data, including attendance rates. Public schools however, must meet these requirements, as their receipt of public monies is conditioned on remaining accountable to the public. What is the current legal status of school vouchers? State and local governments have long attempted to pass laws establishing school voucher programs, but few have actually been enacted. Of those that have, most have been subject to judicial challenge on grounds that voucher programs violate the First Amendment’s Establishment Clause. In 2002, the U.S. Supreme Court upheld a Cleveland, Ohio voucher program and found that the program did not violate the Establishment Clause of the U.S. Constitution. State constitutions, however, often contain stricter prohibitions on the use of public funding of religious schools than the U.S. Constitution, and Utah’s Constitution is no exception. Indeed, the Utah Constitution expressly prohibits the use of public funds in support of religious institutions. In order to achieve statehood, Congress required, among others, that “provision . . . be made for the establishment and maintenance of a system of public schools . . . free from sectarian control.” Utah Enabling Act, Ch. 138, 28 Stat. 107 (1894). Additional Utah constitutional provisions make clear that early Utahns intended for religion and public education to reside in distinct and separate spheres. See Utah Const. art. I, §IV and art. X, §9 (“No public money or property shall be appropriated for or applied to any religious worship, exercise or instruction, or for the support of any ecclesiastical establishment,” and “[n]either the state of Utah nor its political subdivisions may make any appropriation for the direct support of any school or educational institution controlled by any religious organization.”); see also Gubler v. Utah State Teachers’ Retirement Bd., 192 P.2d 580, 586 (Utah 1948) )(stating that should a law or act “in the slightest degree introduce [ ] sectarian education and observance into the public schools, [or] had a tendency to aid or support religious schools or a religious faith, [the Court] would cast it aside.”). Thus, the constitutionality of voucher programs with regards to state claims is still in question, both across the nation and in Utah. Don’t vouchers mean parental choice as to where students attend school? While proponents claim that voucher programs give parents choice in education, the fact remains that private schools are the final arbiter in deciding whom to admit. Students are often denied admission to private schools that accept vouchers due to admissions criteria including academic performance, religion, gender, behavior history, and disability, among other factors. In addition, Utah’s proposed voucher program limits the “choice” of parents, particularly in lower income families. This is because while voucher amounts are capped at $3,000 per student, there is no corresponding cap on tuition at participating private schools. Thus, the reality is that the choices for many parents will be limited to those schools where tuition does not exceed the awarded voucher amount. Moreover, tuition is but one cost associated with attending private school. Parents with children in private schools often must also pay for transportation to and from school, uniforms, and books, among other expenses. These additional costs, above and beyond tuition, often make the “choice” of a private education impossible for many low- and middle-income parents. Who would qualify for vouchers and how much money will be awarded? If enacted, H.B. 148 would create a universal voucher program. In other words, unlike the programs already in place around the country, Utah’s program would not target students in failing schools or students without access to public schools. Rather, Utah’s proposed program will eventually be available to every student in Utah. Students currently enrolled in Utah’s public schools and certain low-income children currently attending private schools will initially qualify for vouchers. The program will also offer scholarships to all students entering kindergarten in the fall of 2007. By 2020, all children in the state will have the opportunity to participate. Vouchers will be awarded on the basis of family income and will range in amount, from $500 to $3,000. Unfortunately, in a state where tuition ranges from $2,200 to nearly $15,000 a year (see “Tuition Still Unaffordable For Poorest,” The Salt Lake Tribune, April 16, 2007), voucher award amounts will not suffice to cover tuition at many of the private school “choices” made available to parents. Do voucher programs improve student achievement? There is no credible evidence that voucher programs improve student performance. After adjusting for factors such as minority status and family income, student achievement under existing voucher programs, such as the Cleveland program, proved no greater than that of students in the public school system. Where does the ACLU of Utah stand on November’s referendum on vouchers? The ACLU of Utah believes that the voucher program to be enacted by H.B. 148 is constitutionally flawed. Utah’s constitution is explicit in prohibiting the public funding of religious schools, thus Utah’s proposed voucher program cannot withstand constitutional scrutiny. Moreover, Utah’s proposed voucher program does not serve the best interests of Utahns. The program undermines public accountability in education and funnels money away from public schools, an institution that is fundamental to the health and general success of our state and nation. Not only do public schools provide educational benefits to every student, without exception, but they also provide broader benefits to society as a whole, including the creation of an active and responsible citizenry, a reduction in inequalities in an increasingly diverse society, and the formation of a sense of neighborhood community. Say NO to School Vouchers Vote NO on “Citizen’s State Referendum Number 1.” Additional Resources: 2007 Voter Information Pamphlet “Vouchers,” National Education Association Nancy Kober, “Why We Still Need Public Schools: Public Education for the Common Good,” Center on Education Policy, January 1, 2007 “School Vouchers: Settled Questions, Continuing Disputes,” The Pew Forum on Religion and Public Life, August 2002 “Vouchers Are NOT Like Pell Grants,” National Coalition for Public Education Marina Baginsky Lowe joined the ACLU of Utah as its staff attorney in May 2007. She is a graduate of the University of California, Hastings College of the Law. Prior to joining the ACLU of Utah, she worked as an associate at the law firm of Morgan, Lewis & Bockius LLP in San Francisco and as a law clerk in the appellate division of the Salt Lake City Legal Defenders Association. Return to top of page _________________________ From the Director Summertime is coming to a close and we look forward to cooler days ahead. While the temperatures are mellowing, the ACLU of Utah is keeping the heat on in our fight for liberty and justice for all. Along with a growing number of states and organizations around the country, we are working to repeal Real ID, a multibillion dollar national ID card and database the feds are forcing upon the states as an unfunded mandate. We recently met with Nanette Rolfe, director of the Utah Driver License Division, and her deputy, Jill Lawes, who are grappling with the enormous impact this law would have on the pocketbooks and privacy of Utahns. Please read more in this newsletter about Real ID and join us in our efforts here in Utah to persuade Senator Hatch and our other elected officials to repeal this nightmarish legislation. Vouchers loom large here in Utah with the upcoming referendum in November on the country’s most expansive voucher program. We recomend voting “No” on Citizen’s State Referendum Number 1 in November. We have launched our new college scholarship awards for high school seniors across the state and are eager to showcase the wonderful array of civil liberties efforts undertaken by Utah youth. We continue to respond to complaints involving violations of individual rights in high schools and are finalizing our “Know Your Rights” manual for high school students. Our Bill of Rights dinner in May was a wonderful success with a large turnout, generous donations, and inspiring presentations. Plans are underway for celebrations in 2008 marking our 50th anniversary as an affiliate. Can you imagine what Utah would have been like had the ACLU not been so tenaciously engaged in fighting for civil liberties for all Utahns? Yikes! We were pleased to welcome many new youth members to the ACLU during Pride Day and are looking forward to being present at neighborhood fairs this fall. Please join us on September 27th for our annual membership meeting, as well as a reception and public lecture by the ACLU’s own national security director, Jameel Jaffer. Our board will be on retreat in late September with Tomijean Fernandez of the national affiliate support department, as it focuses on enhancing its capabilities to launch the ACLU on its next 50 years in Utah. We have a lot of work ahead of us and we need your help. Please use the enclosed envelope to send your contribution to fund our efforts. Your tax-deductible donation will help us produce educational materials and fund our outreach and advocacy efforts. With your help, we will continue to reshape the civil rights landscape in Utah into the future. Together we can preserve civil liberties for everyone. Return to top of page _________________________ Report from the ACLU’s Day of Action to Restore Law and Justice On June 26, I walked past the Capitol and up Maryland Avenue in Washington, D.C. towards a crowd of white shirts that exclaimed, “Day of Action to Restore Law and Justice.” Children, parents, students, teachers, and activists from all fifty of the United States came together on a hot steamy morning and crowded in the little courtyard outside the Stuart Mott House. We swarmed around the bagel and fruit platters in our new T-shirts and waited until the ACLU leadership called our attention to prepare us to storm Capitol Hill. Later that day, we would gather together in smaller delegations to meet with our congressmen to deliver a unified demand to fix the Military Commissions Act and restore our constitutional rights. The Military Commissions Act of 2006 was quickly passed by Congress and signed by President Bush just before Congress adjourned and Americans voted in the 2006 elections. One result of the law is the suspension of habeas corpus, our constitutional guarantee of due process and justice. Habeas corpus was so important to the foundation of our nation that our founding fathers wrote it in the first article of the Constitution. Without habeas corpus, the president has the power to decide who is an enemy of our country and imprison them without charging them for a crime. The Military Commissions Act also allows the president to decide what is—and what is not—torture without regard to the Geneva Conventions. The U.S. government can then use information that they literally beat out of witnesses as evidence for a conviction. In our morning lobby training, Senator Patrick Leahy (D-Vermont and co-sponsor of the Habeas Corpus Restoration Act) came and explained to us these and many other ramifications of the Military Commission Act. After his inspiring speech, the ACLU staff gave us some tips to a successful lobby visit and told us about the proposed bills to fix the law. In our lobby visits throughout the day, we would ask our congressmen to support the Restoring the Constitution Act of 2007 (H.R. 1415, S. 576) and the Habeas Corpus Restoration Act (H.R. 1416, S. 185). After the quick lobby training, we joined a parade of people marching past the senate office buildings and chanting “no more MCA, no more MCA!” Thousands of people from all over the country and over a hundred different organizations gathered together in the Upper Senate Park with the Capitol towering overhead just across the street. The music stopped and comedian Greg Proops from the television show “Whose Line Is It Anyway?” walked on stage to begin the rally. During the next few hours, we listened to leaders from many different organizations. We handed Senator Ben Cardin (D-Maryland) a petition with over 250,000 signatures. It was inspiring to see a wide spectrum of support displayed at the rally. We heard from Catholic, Islamic, and Jewish religious leaders; Representative Dennis Kucinich (D-Ohio); Reverend Lennox Yearwood of the Hip Hop Caucus; David Keene of the American Conservative Union; and many others. It gave me great confidence to know that we did not just have one of those “crazy liberal” ideas, but that restoring our constitutional rights on that day was an idea shared between conservatives, liberals, religious figures, musicians, the thousands of activists who came to D.C., and the thousands more who stayed home. Full of excitement and hope, I went on to my first lobby meeting for the day in Senator Bob Bennett’s office with his senior counsel, Shawn Gunnarson. My enthusiasm quickly dwindled when Mr. Gunnarson turned to me and cited the Constitution. You see, the Constitution reads, “The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it” (emphasis added). We then went on to discuss how each of us would define our nation’s current state, and whether the 9/11 terrorist attacks constituted “an invasion” and therefore whether habeas suspension was needed. By the end of the half hour, we were unable to agree on a conclusion and I was off to my next meeting with Christopher Campbell, a trade advisor in Senator Orrin Hatch’s office. In our meeting, Mr. Campbell posed the question of how many freedoms are American citizens willing to surrender in order to keep another 9/11 from happening. I was disgusted hearing that question yet again and my immediate reaction was “none.” Liberty was the heralding idea of the founding of our nation. I thought, “If we surrender our freedoms we may gain a degree of safety, but we would also lose our national identity.” However, as I sat in the office by myself, the lone representative from Utah, I wondered, “Am I alone?” Would my fellow Utah citizens willingly surrender their liberty and constitutional rights? Let me ask you, what are you willing to give up so that you may be safe from (in the words of Mr. Campbell), “the terrorists that want to kill you because you are an American?” Mr. Campbell seemed pretty certain that after our meeting, Senator Hatch would continue to support the Military Commissions Act. Feeling disheartened and disenfranchised, I left Capitol Hill and went home to Utah with the hope that the activists from other states had more luck than I. Fortunately, my hope was affirmed. Though I may not have changed the minds of our Utah senators, the ACLU’s Day of Action proved to be very successful. On June 29, just three days later, 145 members of the House of Representatives sent a letter to President Bush urging him to close the prison at Guantanamo Bay. Since I returned to Utah, 11 lawmakers signed on as co-sponsors to the critical habeas restoration bills and Senator Leahy has promised to do everything in his power to get a floor vote on restoring habeas corpus soon. If you want to help keep the momentum going after this phenomenal Day of Action, make a call or send a letter to your congressmen. Let our senators know that I am not the only one in Utah who wants our constitutional rights restored. For more information about efforts to restore habeas corpus and other constitutional rights, please visit www.acluutah.org or www.findhabeas.com. Elspeth Gustavson is a senior at the University of Utah working towards joint degrees in Political Science and Gender Studies. She served as an intern for the ACLU of Utah this summer through the University’s Hinckley Institute of Politics. Return to top of page _________________________ What You Should Know About Habeas Corpus What is Habeas Corpus? The “Great Writ” of habeas corpus is a fundamental principle in the Constitution that protects against unlawful and indefinite imprisonment. Translated from Latin it means “show me the body.” Habeas corpus has historically been an important instrument to safeguard individual freedom against arbitrary executive power. Why Did Congress Pass the Military Commissions Act? In June 2006, the Supreme Court found in Hamdan v. Rumsfeld that military commissions at Guantanamo created by President Bush were invalid. The Court said that the rules violated Common Article 3 of the Geneva Conventions regarding the treatment of detainees being held indefinitely. After that decision, President Bush asked Congress to pass legislation that would make the military commission trials legal and strip detainees of their due process habeas right—which they did by passing the Military Commissions Act right before the November 2006 elections. How Does the Military Commissions Act Take Away Habeas Rights? Section 6 of the Military Commissions Act strips any non-citizen, declared an “enemy combatant” by any president, of the right to be heard in court to establish his or her innocence, regardless of how long he or she is held without charge. This habeas-stripping provision applies to the detainees held in U.S. custody at Guantanamo Bay and elsewhere. It violates the Constitution and basic American values. Is it Constitutional to Strip a Person of Their Habeas Rights? No, Section 6 of the Military Commissions Act is unconstitutional and will eventually be struck down by the U.S. Supreme Court. Several cases challenging the law are already working their way through the courts. Return to top of page _________________________ Hey High School Seniors! ACLU of Utah to Award College Scholarships The ACLU of Utah is pleased to announce its new Student Activist Scholarship Program, which will recognize three Utah high school seniors for their civil liberties activism. The first place award will be a $1,000 scholarship. Two additional winners will receive $500 each. To qualify for the scholarship, students must:
Past national scholarship winners were recognized for a wide variety of civil liberties activism including:
Applications to the Utah Student Activist Scholarship Program are due November 1. For an application and additional information about the program, please see www.acluutah.org/scholarship.htm. Return to top of page _________________________ Real ID Act: Law Establishes National ID System for Americans What is Real ID? The Real ID Act was railroaded through Congress in May 2005 without meaningful hearings or debate. Although Real ID is scheduled to become effective in May 2008, many states are passing legislation urging Congress to repeal the law. If the law goes into effect as is, Real ID will turn state drivers’ licenses into national identity cards and will make getting a driver’s license a real nightmare of slow service and bureaucratic dead ends. Real ID puts pressure on states to comply by setting uniform standards that will be required on every driver’s license and identity card. The act says that drivers’ licenses and state ID cards will not be accepted for “federal purposes” such as boarding aircraft, entering federal facilities, and opening a bank account, unless states meet all of the following conditions:
These requirements and many others not only expose Americans to potential privacy violations, but they are also impractical, time-consuming, and expensive mandates that will change the very nature and mission of DMVs, from state agencies responsible for ensuring the safety of roads, to an arm of the federal government tasked with immigration and fraud enforcement.
Congress passed the Real ID Act but appropriated next-to-no funds to actually pay for it. The cost of the program will be astronomical— recent estimates put the price tag at over $23 billion. Real ID Hits the Elderly the Hardest Possession of a birth certificate will become essential for everyone to satisfy Real ID’s strict new identification requirements. And the DMV will need to verify that birth certificate with the office that issued it.
Real ID increases the danger of identity theft and invasions of privacy for all of us.
Real ID has generated unprecedented resistance around the nation and across the political spectrum. To date, 17 states, including Utah, have passed legislation opposing the law and demanding that Congress repeal it. Of those, 7 have passed statutes that bar the state from implementing Real ID. The program has suffered numerous setbacks in Congress, with measures to fund it and expand its reach repeatedly failing to gain support. This widespread discontent has already prompted bills to be introduced in the House and Senate to scrap Real ID altogether and replace it with a different system. Impact on Utahns Although Utah was one of the first states to pass a resolution urging the repeal of Real ID, the Utah Driver License Division (DLD) is gearing up to comply with the law if it remains in effect. Nanette Rolfe, the DLD director, estimates that it will cost Utah $11 million for the first year of implementation and thereafter will cost $8-9 million annually to comply with Real ID’s requirements. Because Congress has not funded Real ID, these costs may be borne in large part by individuals through higher fees. There are 1.8 million people who use some kind of identity card issue by the DLD. Each user will need to obtain a new ID in person. Even if an extension of time of 34 months is obtained to achieve compliance, each office of the DLD along the Wasatch front will need to schedule 2,000 to 2,500 people a day in order to issue the new licenses in time. Keep the Heat On The states have been putting pressure on Congress to repeal Real ID. It is time for Congress to act! It is critical that we in Utah demand that our representatives and senators act now to stop this real nightmare. The ACLU urges you to become informed by visiting the ACLU’s national website on Real ID at realnightmare.org. Then take action by contacting your state and elected officials. Spread the word about Real ID to your friends and neighbors. Listen to ACLU of Utah Executive Director Karen McCreary discuss Real ID in more depth at http://kcpw.org/article/4258 Return to top of page _________________________ Special Thanks to Everyone Who Helped Make Our 2007 Bill of Rights Celebration a Success! Dinner Sponsors Kent Alderman, Lincoln and Karin Hobbs, Jane and Tami Marquardt, Sue Marquardt, Joan O’Brien, Jill and Richard Sheinberg, Howrey LLP, Parsons Behle & Latimer, Planned Parenthood of Utah, Salt Lake City Weekly, and The Salt Lake Tribune Volunteers Heather Adair, Elaine Ball, Elsa Gustavson, Jeff Jensen, David McCreary, and Herta Teitelbaum Table Hosts Jennifer Allred, Dani Eyer and Margaret Plane, Carol Gnade and Lorraine Miller, Lillian Hayes, Marc Hoenig, Iqbal Hossain and Tarek Nosseir, Andrew McCullough, Herta Teitelbaum, Jones Waldo Holbrook & McDonough, The King’s English Bookshop, and Parr, Waddoups, Brown, Gee & Loveless Centerpieces by Cactus & Tropicals Invitation and Graphic Design by Kristin Osborn Return to top of page _________________________ Join Us for the ACLU of Utah Annual Membership Meeting Thursday, September 27, 2007, 6:00 - 8:30 p.m. Gore Auditorium, Westminster College 1840 South 1300 East, Salt Lake City 6:00 p.m. Presentations by ACLU of Utah board and staff members on the current programs of the ACLU of Utah 6:30 - 7:30 p.m. Reception for members and friends with light buffet and refreshments 7:30 p.m. Guest Speaker: Jameel Jaffer “Torture and the Rule of Law: Three Narratives About Abu Ghraib” (Open to the public) Jameel Jaffer is director of the ACLU’s National Security Program. Currently, his docket includes a challenge to the FBI’s “national security letter” authority; a challenge to the constitutionality of warrantless surveillance conducted by the National Security Agency; and litigation under the Freedom of Information Act for records concerning the treatment and detention of prisoners held by the U.S. in Afghanistan, Iraq, and at Guantanamo Bay. He is co-author of a soon to be released book, “Administration of Torture,” about his case, ACLU v. Department of Defense. RSVPs are not necessary. Call (801) 521-9862 ext. 101 for more information. Return to top of page _________________________ About the ACLU of Utah Founded in 1920, the American Civil Liberties Union is a nationwide, nonpartisan organization dedicated to working in the courts, legislatures, and communities to defend and preserve the individual rights and liberties guaranteed to all people in this country by both the Constitution and the laws of the United States. The ACLU of Utah was chartered in 1958 to work on constitutional issues that are pertinent to those living in this state. Our priorities include freedom of speech, expression, and association; freedom of religion, including the separation of church and state; the right to privacy; safe prison and jail conditions; and equal protection and due process of the laws. Staff Karen McCreary, Executive Director Marina Baginsky Lowe, Staff Attorney Reinard Knutsen, Office Manager Stephanie Peterson, Projects Coordinator Cori Sutherland, Communications Board of Directors Sue Marquardt, President Karen Denton, Vice President Robert Wood, Treasurer Laurie Wood, Secretary Lincoln Hobbs, Legal Panel Director Jill Sheinberg, National Board Representative Tim Chambless, At Large Executive Committee Jennifer Allred Roberto Culas Beverly Dalley Marc Hoenig Iqbal Hossain Jason Lewis Lee Martinez Andrew McCullough Tarek Nosseir David Tundermann Doug Wortham Legal Panel Dianna Cannon Stephen Clark Linda Jones Laura Kessler Cathy Roberts Trystan Smith Karen Stam Mary Woodhead Interns & Volunteers Kim Bowman Jr. Debbie Fedder Elspeth Gustavson Jeff Jensen Noemi Monge Herta Teitelbaum Contact Information 355 North 300 West Salt Lake City, UT 84103 Phone: (801) 521-9862 Fax: (801) 532-2850 aclu@acluutah.org www.acluutah.org Return to top of page |
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