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home > resources > archive ACLU Reporter: Summer 1997 Table of Contents: Fade Back to the Sixteenth Century: Restraints at the Utah State Prison Note from the Executive Director School Desegregation in San Juan County Anti-Gay Policies in the Public School and the First Amendment Nancy Moore: Freedom Fighter, Woman Warrior Student Report: Abuse of Power _________________________ Fade Back to the Sixteenth Century: Restraints at the Utah State Prison By Jensie Anderson, ACLU Staff Attorney Michael Valent had been diagnosed as a schizophrenic when he was nineteen years old. Unfortunately, his treatment for schizophrenia began only after "the voices" told him to kill his grandmother. After pleading guilty but mentally ill to causing his grandmother’s death, Michael spent six years at the Utah State Mental Hospital where treatment was generally successful and the voices were under control. But then he realized that the time spent at the hospital was not being counted towards his criminal sentence and that if he were to have any hope of completing the sentence, he would be required to move to the Utah State Prison. Four years after he moved to Draper, Michael Valent was dead, the victim of a massive heart attack at the age of twenty-nine. Michael spent the last sixteen hours of his life shackled to a hard plastic chair. He was placed in the chair after refusing to take a pillowcase off of his head when ordered to do so by prison employees. The seat of the chair is at an angle so that Michael’s legs were elevated, essentially placing him in a jack-knife position. Although the seat of the chair generally cuts into an individual’s knee, at five foot six inches tall, Michael’s legs were cut below the knee and his legs dangled with no support. His ankles were bound with shackles and chains attached to the legs of the restraint chair. His wrists were restrained with handcuffs attached to the seat of the chair. Two straps crossed his shoulders and chest, and another strap was placed across his waist. Michael had no cover at all, including underwear or a blanket. During those sixteen hours, Michael was never let up, never given the opportunity to exercise his legs or arms, never allowed to move. Medical evaluations indicate that blot clots formed in Michael’s legs and that when he was finally released, one of those blood clots disengaged and caused his untimely death. Michael Valent was not the first person to spend an extended period of time in one of the prison’s four "devil’s chairs." A day before Michael began the last and potentially most frightening sixteen hours of his life, a twenty-one year old inmate who had been diagnosed as manic depressive was placed in the restraint chair after attempting to hurt himself. This young inmate was held in the chair with two chest straps, four arm straps, three sets of leg irons and chains, a waist strap, and a set of handcuffs. On the first day of his ninety-six hour stay in the chair, the young inmate developed water blisters around the arm restraints. On the second day, the blisters broke and began to bleed. They were bandaged, but the bandages caused intense pain due to the inmate’s position in the chair. On the second day, he was offered a bed pan. He defecated in the pan, but when it was removed, the feces spilled back onto the chair and were not cleaned up until 48 hours later. On the third day, the inmate developed bedsores on his buttocks and testicles, which led to a serious infection that continues today. The inmate was released from the chair only after he promised not to hurt himself again. The "devil’s chair" is not the only "treatment" that the mentally ill receive at the Utah State Prison. On May 14, 1997, the ACLU of Utah, along with the Disability Law Center, filed a lawsuit on behalf of a former prison inmate, NLS. NLS had a long and well-documented history of mental illness, including numerous suicide attempts and disturbing incidents of self-mutilation. During his incarceration at Draper, NLS was taken off all the medications intended to treat mental illness, and shackled, with mental restraints, to a stainless steel board in spread-eagle position for over twelve weeks. NLS was released from the board on an average of only four times per week and long periods of time passed during which NLS received no attention from medical staff for his basic needs. While NLS was shackled to the board, he was placed in a cell where the light glared twenty-four hours a day, he was given minimal cover, and little attention was paid to his personal hygiene needs. Finally, after his public defender intervened, a judge ordered that NLS be transferred to the Utah State Hospital, where he was given appropriate medications and soft hand restraints were used until NLS stabilized. Something must change. Although prison officials ceased use of the restraint chair after Michael Valent’s death, they continue to use the restraint board and will reinstate use of the chair once their internal policies have been reviewed. Although the Utah Department of Corrections is accepting input on acceptable standards for the use of restraints, they continue to deny responsibility for the Eighth Amendment violations that typify the treatment of the individuals incarcerated in their facilities. UDOC must accept responsibility, they must hire qualified mental health practitioners, they must adopt acceptable and humane standards for the treatment of prisoners. The legislature must call for an audit of the medical and mental health departments at the Utah State Prison, they must change the law so that mentally ill offenders are given credit for time served at treatment facilities, and they must create a multidisciplinary corrections review commission that can provide independent oversight of UDOC. That commission must be able to adopt minimum standards for mental health care, medical care, and conditions of confinement, and to evaluate and enforce UDOC compliance. The ACLU of Utah remains committed to creating these kinds of changes, by enforcing the constitutional rights of individuals incarcerated in prisons and jails and by demanding, through negotiation, education, and litigation, that the officials who operate these facilities come into the twentieth century. _________________________ Note from the Executive Director By Carol Gnade As I’m sure most of you know, the ACLU of Utah has spent the last several months engaged in a very visible and significant fight for the humane treatment of Utah state prison inmates. Our campaign centers around the prison’s use of restraint, and in this edition of our newsletter, Jensie clearly states why this has become a priority issue for our organization. Of course there continue to be many other constitutional violations we can’t overlook, and it was important for me to get to work on our spring newsletter and begin thinking about some different issues. After reading our collection of articles, I was surprised to find a theme. I don’t know if it has to do with the end of the school year and the start of summer vacation, but almost all of the following articles explore some aspect of public school reform. The Gay Lesbian and Straight Teachers’ Network conference in March put us in touch with many committed and caring teachers, and in various workshops, conference participants revisited some of the seminal court cases over unconstitutional school policies. This newsletter includes a report from one GLSTN workshop led by David Buckel, a staff attorney at Lambda Legal Defense and Education Fund. Also at the conference were many people who remembered Nancy Moore’s and Adrienne Morris’s courageous opposition to school sponsored graduation prayer. We’re glad to be able to include Adrienne’s profile honoring Nancy, and her article is especially poignant in light of Nancy’s current struggle with liver cancer. I was recently pleased to learn that the San Juan County school desegregation case was resolved. When Eric Swenson first graduated from college and moved to Southern Utah, he was struck by the different educational standards for Native Americans. So twenty-seven years ago, he filed a law suit and began working on the case. It took a tremendous amount of time, financial resources, and tenacity to pursue this issue, and we’re grateful that Eric is fighting for civil liberties in Utah. We have many fights ahead of us and it is heartening when we are acknowledged for what we’ve accomplished. We’re very honored that the Society of Professional Journalists, Utah Headliners Chapter has chosen the ACLU of Utah to be the recipient of their distinguished Roy B. Gibson Freedom of Information Award. The society unanimously chose us because of our year-long legal battle with the state Senate over violations of the Utah Open and Public Meetings Act. We want to publicly thank the society and all of our supporters who make our work possible. _________________________ School Desegregation in San Juan County By Eric Swenson School desegregation lawsuits call to mind the early days of the civil rights movement in the South, but not Utah in the 1990s. Yet, federal judges recently signed two consent agreements and injunctions ending a 23-year legal battle involving Native Americans and the San Juan County School District. San Juan County is the vast mountain and desert region of Southeastern Utah where Navajos, Utes, and Paiutes, and descendants of Mormon pioneers live together in contrasting old and new lifestyles. San Juan’s history has seen much racial discrimination and strife. Sinajini v. Board of Education of San Juan is a desegregation class action filed in 1974. This year, U.S. District Judge David Sam set aside the old consent decree and entered a new injunction which combined two pending lawsuits and a U. S. Department of Justice civil rights investigation into one settlement. Sinajini requires that the San Juan School District renovate existing Indian schools and provide for new school construction, reform education programs, provide special education services, revise curriculum, provide bilingual education for Native American students, and refrain from violating the constitutional rights of Indian children. When Sinajini began in the 1970s, there were many Native American students but few school facilities in the southern part of San Juan County where Indians resided. This forced students to endure long bus rides to attend school. Many children were forced to leave their families and live in foster homes or Bureau of Indian Affairs boarding schools. Some simply never went to school at all. The original consent decree required the District to build two high schools, an elementary school, and renovate other elementary schools on the Navajo Reservation. Programs to meet the needs of Indian children were also required. By 1992, American Indians comprised over half of the District’s population. New proceedings in Sinajini charged that the District still had not provided adequate programs and facilities, and that academic performances and dropout rates of Native American children were among the worst found anywhere in the United States. The United States and the Navajo Nation entered Sinajini and soon other cases were brought to correct the deteriorating school conditions. In Meyers v. Board of Education of San Juan, U.S. District Judge Bruce S. Jenkins entered an order requiring that the San Juan County School District build and operate a high school for an isolated community of Navajo and Paiute Indians at Navajo Mountain and provide the students with equal educational opportunities. Judge Jenkins also made a historic ruling that the school district had a duty to educate Native Americans, and that state, federal, and Navajo tribal governments must play an important role as well. Meyers began when Paiute and Navajo parents and children requested a high school for their isolated community on the border of Lake Powell in Southwest San Juan County. All high-school age students had to leave home in order to go to school. Tremendous personal and academic hardship occurred when these children were forced to live apart from their families. A temporary program begins this year, with a permanent facility due in the year 2000. Under the leadership of a new Superintendent, Dr. Gary Cameron, the San Juan School District is embarking on an ambitious program of school construction, and enrichment of programs and services for Native Americans in the District. Many of the reforms will benefit all students in the District. Recently, voters passed a five million dollar bond to finance school construction and the Utah State Legislature appropriated another two million dollars. Native Americans are enthused by the spirit of cooperation and commitment in the District and look forward to a new era in San Juan’s education history. Eric Swenson was the lead attorney for the plaintiffs in Sinajini v. Board of Education of San Juan. He currently lives in Monticello, Utah. _________________________ Anti-Gay Policies in the Public School and the First Amendment By Cori Sutherland, ACLU Education/Development Director Two months ago, the Utah affiliate of the American Civil Liberties Union participated in the first-ever conference of the Gay, Lesbian, and Straight Teachers’ Network (GLSTN). GLSTN’s decision to host its national conference in Salt Lake City was a direct consequence of the 1996 Utah legislature’s negative reaction to the East High Gay-Straight Alliance. The formation of the Alliance sparked an intense and sometimes volatile debate about school policies as students, teachers, and school administrators tried to determine who sets these policies, as well as what they can do to change them. David Buckel, an attorney for Lambda Legal Defense and Education Fund, was one presenter featured at the GLSTN conference who helped those attending make some sense out of school policies. In a series of workshops, Buckel effectively outlined specific constitutional protections for gay, lesbian, and transgendered students and teachers. These protections apply most directly to those in the public schools, although private school teachers and students may also be protected if their school receives government funding. One of the issues Buckel described dealt specifically with teachers and the freedom they have to make curricular decisions. He referred to a trend in this country for local school boards to pass sweeping anti-gay policies that prohibit teachers from promoting, encouraging, or portraying in a positive light gay or lesbian lifestyles. Clearly, these anti-gay policies negatively impact academic freedom in public schools. At times, they can lead to the ridiculous, such as the prohibition of same-sex square dancing in a gym class, even if the number of boy students is not equal to the number of girl students. Or they can result in outright censorship, as literature teachers ban books by homosexual authors, such as Walt Whitman and Oscar Wilde. Buckel outlined how these anti-gay policies violate the First Amendment of the United States Constitution. A key to understanding the specific constitutional violations is the concept of viewpoint neutrality. According to the First Amendment, the government must ensure that all viewpoints are heard, and it cannot suppress particular opinions. Thus, when the Court decides whether a school policy that affects curricular decisions is constitutional, they need to first decide whether the government--the public school--is imposing or suppressing specific viewpoints. Because the First Amendment is at stake, the Court would uphold policies that do so only if the school demonstrated a compelling reason for the policy. To demonstrate viewpoint neutrality, Buckel pointed to the 1969 case, Tinker v. Des Moines Independent Community School District. In this case, high school students challenged their school’s decision to suspend them for wearing black arm bands in protest of the government’s policy in Vietnam. The Court linked the idea of viewpoint neutrality with First Amendment protections for the students, and it stated, "In order for the State in the person of school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint." The Court did not find a good reason for the suspensions, and consequently, it deemed the school’s policy unconstitutional. While this case directly affects students’ rights, it applies to teachers as well. In determining the constitutionality of an anti-gay policy, the Court would also look carefully at its language. Teachers cannot be expected to comply with a policy that is vague and inscrutable. Indeed, such policies can have a "chilling" effect on academics, as teachers self-censor and become much more restrictive than the policy originally intended. Buckel outlined an important 1967 case, Keyishian v. Board of Regents, in which teachers challenged a law that allowed their dismissal for "being ‘seditious’ or for advocating, advising, or teaching the doctrine of forceful overthrow of government." The Court found this basis for dismissal unconstitutionally vague, and it observed that "[i]t would be a bold teacher who would not stay as far as possible from utterances or acts which might jeopardize his living . . . [t]he result must be to stifle ‘that free play of the spirit which all teachers ought especially to cultivate and practice.’" In this opinion, the Court refers to another case, Wieman v. Updegraff, in which they note how damaging a climate of repression and censorship can be for both teachers and the students they serve. The Court continued: Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom. "The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools." The classroom is peculiarly the "marketplace of ideas." The Nation’s future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth "out of a multitude of tongues, [rather] than through any kind of authoritative selection."I quote at such length from the cases Buckel outlined because they eloquently describe First Amendment protections for teachers. The constitution is a powerful document that protects all of us, and it is of course especially important for those who espouse "unpopular" ideas. As the Court stated in Tinker v. Des Moines Independent Community School District, "free speech is not a right that is given only to be so circumscribed that it exists in principle but not in fact." Clearly, the United States Constitution does not allow for vague anti-gay policies in our public school system. _________________________ Nancy Moore: Freedom Fighter, Woman Warrior By Adrienne Morris How happy I was several years ago when I discovered that Nancy Moore had been hired as a counselor for Orem High School where I taught English. I had become acquainted with her through the Provo women’s group, the Alice Louise Reynold’s Society, a haven for liberals. I knew her as a hard worker who was concerned with many social issues, and I grew to love her as a true sister who has the courage and convictions of a lover of justice. For many years, a few of us at Orem High School had been greatly bothered by the continuing practice of student graduation prayers. Most of us were not LDS, and we were keenly aware that in all these years, there had never been a non-Mormon prayer. For us, prayer at the graduation ceremony was a clear violation of the separation of church and state. We were required to attend graduation as part of our contract, and we felt religion was being forced on us and others who wanted to attend this state-sponsored event. Nancy and I were among seven teachers who requested a private meeting with Superintendent Baugh of Alpine School District. We respected him and hoped our request might bear fruit. The meeting was amicable, but he was noncommittal, and he made it clear that his boss, the elected school board, would be the only ones with the authority to do away with graduation prayer. When he talked to them about our concerns, they were not interested in doing away with an "honored tradition." In February, 1990, we contacted the Utah affiliate of the American Civil Liberties Union. We felt very good about their fast, specific response, which was a letter to Utah school districts advising them that the practice of graduation prayers was unconstitutional and could be challenged. Jordan School District and Washington County had the wisdom to suspend the practice. Alpine School District’s board president, however, declared that if the United States had the money for World War II, then his district had the money to fight this war as well. "Onward Christian Soldiers" Nancy sang to me the next morning, her wonderful laugh booming out. In April, Alpine publicly defied the ACLU, declaring that students would give prayers at all graduations. For the first time in over twenty years, I did not celebrate graduation with my seniors. I told my principal that I would not allow the state to violate my conscience. Nancy and the others did the same. Tensions were running high in our school. We were aware that many of our colleagues were not sympathetic to our ideas, and some were openly critical and caustic. I remember through these and the following months talking to Nancy about this. As a loving humanist, the highest priority for her was her fellow humans and her relationships. It hurt her deeply that many did not understand our viewpoints and what we were fighting for. However, through it all, she kept in mind justice, freedom, and genuine equality. I was amazed at her perspective, her courage, and her lack of anger or bitterness. She counseled me so well, as I am more of a hothead. Her advice was always witty, wise, and warm. How she sustained me! In early 1991, the ACLU filed suit in U.S. District Court against Alpine and Granite School Districts to halt the practice of graduation prayer. For various reasons, Nancy and I were the only teachers whose names were public on the suit. It did not seem to concern Nancy that we would be interviewed and take some of the heat. It was a job that needed to be done, and she was entirely willing to bear the cost, no matter what it might prove to be. Indeed she remained valiant, articulate, and gutsy through it all. I know she was hurt by people who did not understand. She hid it well. In spite of advice from Utah’s Attorney General Paul Van Dam, Judge Greene allowed districts to continue having graduation prayer. Incidentally, Judge Greene opined that the Supreme Court was going to favor it anyway. This was the first we learned that another case was in the pipeline. "Darn! It would have been fun to be in the front," said Nancy. Once again we "conscientious objectors" had to miss graduation. I remember vividly when Nancy and I were being deposed by the opposing lawyer. She maintained her dignity and poise. In the press interviews, she was clear, logical, and passionate. How I admired her intelligence and radiant spirit! She never once forgot she was doing it for the heartbroken Jewish student who told her he felt like an outsider at his own graduation. Argued in November, 1991, the Rhode Island case Lee v. Weisman was decided in the summer of 1992. The ACLU and its client, the First Amendment, won big. Nancy and I celebrated our piece of the victory, rejoicing in justice. Nancy deserves to be honored for all her efforts for a better world. Feminist, humanist, warm and wonderful friend, I salute you. Adrienne Morris currently teaches English at Orem High School. _________________________ Student Report: Abuse of Power By Luke C. A. Anderson Of all the problems regarding human rights facing this nation, one problem that most displays abuse of power and disregard for the Constitution is the mistreatment and neglect of inmates in our prisons. In Utah prisons alone, there have been beatings, cases of sexual abuse towards inmates, and neglect of medical problems, resulting in even more serious complications that could have been prevented had they been treated properly. However, abuse of power is not limited to the prisons. Police officers in the state of Utah and all over the country have demonstrated abuses of power for years and, in many cases, have gotten away with it. Many people think that beatings such as the case of Rodney King and the LAPD happen much less frequently than they really do. Though they are usually not as serious as the instance involving the LAPD, often officers on the streets and guards in the prisons take advantage of their positions by using their authority in abusive ways. The world needs authority and people to help keep the peace. These people need to have a certain amount of power in order to be able to "serve and protect." Without police officers, society would not be able to function and there would be nobody to keep people in check. Police officers need power to do just that. However, police officers should never take advantage of the power given by their job. We cannot allow people working in government jobs to mistreat other people who are already being punished for their crimes. We cannot allow mentally ill inmates to be strapped naked to a restraining chair for sixteen hours at a time. And we cannot allow people in positions of authority to cover their abuses up by, in some cases, lying. Far too many times, crimes like these are committed by government workers and justice is not served. Government workers must have restrictions on their power and they must obey these restrictions. If a police officer unnecessarily beats someone in the process of arresting them, or if someone working in the prison is treating inmates like animals without rights, that person must be liable for his or her actions. Whether a person works for the government or not, abuse is abuse and all people must be held responsible for what they do. Luke Anderson’s article is the second in a series in which young people comment on different civil liberties issues. Luke is currently an 8th grader at West High School. If you or someone you know would like to submit an article, please call the ACLU at 521-9862. Return to top of page |
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