Drug convictions have lasting, collateral consequences: Each conviction on a person’s record can make it more difficult to get a job, an apartment, a student loan—anything they could want or need to rebuild their life.
More than 47,000 drug charges have been dismissed due to Massachusetts’ two drug lab scandals, but thousands of people still don’t know that they were impacted by the state’s misconduct. Together with the Committee for Public Counsel Services (CPCS), the ACLU of Massachusetts launched an unprecedented notice campaign to spread the word that wrongfully convicted people have a path to justice—and an opportunity to more easily rebuild their lives.
VIEW A TIMELINE OF THE STATE DRUG LAB SCANDALS
In addition to printed postcards, fliers, and notice letters, the ACLU and CPCS are on the airwaves, in newspapers, and online, informing people that they can challenge their convictions in court and encouraging them to call the public defender drug lab hotline. People convicted of a Massachusetts drug crime in a case that started between 2003 and 2013 can find out if their charges were dismissed by calling 1-888-999-2881.
This new model for addressing wrongful convictions was made possible through civil rights litigation and a series of court rulings. Initially, the burden to address wrongful convictions was on the wrongfully convicted people—not the state. The ACLU of Massachusetts and CPCS went to court to shift that burden. And, after years of litigation, the Massachusetts Supreme Judicial Court did just that. Most recently, an October 2018 decision required the state Attorney General’s Office to pay to notify every person who was wrongfully convicted.
Massachusetts’ drug lab scandals are the inevitable result of a system that is dedicated to punishment, instead of healing. If there’s one takeaway from this concerted effort to right the wrongs of the criminal legal system, let it be that those convictions never should have been pursued in the first place.
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Date
Friday, February 22, 2019 - 10:15am
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Update: No one may be forced, pressured, or coerced to participate in the Pledge of Allegiance at public meetings. Read our May 2022 letter to the Mashpee Select Board, informing town officials that residents must be allowed to exercise their free speech and religious freedom rights, and should not be scorned by government officials for doing so.
Written by Jessica Lewis, Staff Attorney with the ACLU of Massachusetts
February 24, 2019 is the 50th anniversary of the landmark case Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969), in which the U.S. Supreme Court upheld the First Amendment rights of students to engage in political protest and expression in public schools. The Court in Tinker ruled that student Mary Beth Tinker and others could not be disciplined for wearing black armbands to protest the Vietnam War. The Court held that student speech in schools is protected as long as it does not materially and substantially disrupt the work or discipline of the school.[1]
To mark this anniversary, the ACLU of Massachusetts updates this advisory to remind students, the public, and school officials that public school students, including students in charter schools, may not be compelled to recite the pledge of allegiance or to stand during the pledge or national anthem.
In the seminal case from 1943, West Virginia State Board of Education v. Barnette,[2] the U.S. Supreme Court ruled that a compulsory flag salute would violate students’ right to freedom of expression. Lowers courts have since recognized that this right protects students who engage in silent protest or express dissent during the recitation of the pledge or during other patriotic ceremonies. Courts have held that students may express themselves by remaining seated,[3] raising their fist,[4] and kneeling.[5]
In Barnette, the Court wrote:
If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.[6]
“The Constitution guarantees students (and all people) the right to engage [in] ‘expressive conduct.’”[7] Sitting during the pledge or visibly expressing dissent is expressive conduct.[8] In a case in which a student was suspended for failing to stand during the pledge as “protest against black repression in the United States,” the court held that “refusing to stand during the pledge ceremony constituted an expression of [the student’s] religious beliefs and political opinions. His refusal to stand was no less a form of expression than the wearing of the black armband was to Mary Beth Tinker.”[9]
Schools may not abridge the right of students to freedom of expression, including their right not to participate in or to dissent during ceremonies of patriotic or nationalist expression.[10] One way school personnel abridge this right is by reprimanding a student’s choice not to participate in the pledge ceremony. “It is well established that a school may not require its students to stand for or recite the Pledge of Allegiance or punish any student for his/her failure to do so.”[11] “Verbal censure is a form of punishment, albeit a mild one,” because the intent behind this act is to dissuade the student from exercising a constitutional right.[12]
Disagreement with the political message – be it perceived as “anti-police” or a demand for racial equality – cannot justify or excuse the abridgement of speech. Rather, “the school 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” to justify a prohibition of a particular expression of opinion.[13]
In Spence v. Washington, the Supreme Court rejected the argument that speech may be suppressed to protect a purported interest in preserving the American flag as an unalloyed symbol of the nation. A speaker may not be punished “for failing to show proper respect for our national emblem.” [14]
And “[t]hough schools may regulate students’ speech in some limited circumstances, public school students . . . ‘cannot be punished merely for expressing their personal views on the school premises—whether ‘in the cafeteria, or on the playing field, or on the campus during the authorized hours.’”[15]
As the Supreme Court reasoned in Barnette:
[W]e apply the limitations of the Constitution with no fear that freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social organization. To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous, instead of a compulsory routine, is to make an unflattering estimate of the appeal of our institutions to free minds. . . . [F]reedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.[16]
“The schoolroom prepares children for citizenship, and the proper exercise of the First Amendment is a hallmark of citizenship in our country.”[17]
As the Court in Tinker reminded us: “state-operated schools may not be enclaves of totalitarianism.”[18]
Happy birthday, Tinker!
[1] 393 U.S. at 513. “To support the regulation of student speech under Tinker, school officials must produce some evidence that a restriction ‘is necessary to avoid material or substantial interference with schoolwork or discipline.’” Bowler v. Town of Hudson, 514 F. Supp. 2d 168, 178 (D. Mass. 2007) (original emphasis). “The risk that student counseling may be required, or the likelihood of unplanned classroom discussions, does not rise to the level of a substantial and material disruption comprehended by Tinker.” Id.
[3] Banks v. Bd. of Public Instr., 314 F. Supp. 285 (S.D.Fla.1970), vacated on procedural grounds by 401 U.S. 988, 91 S.Ct. 1223, 28 L.Ed.2d 526 (1971), reinstated without published opinion by dist. ct. and aff'd, 450 F.2d 1103 (5th Cir.1971)
[4] Holloman v. Harland, 370 F.3d 1252 (11th Cir. 2008).
[5] V.A. v. San Pasqual Valley Unified Sch. Dist., No. 17-CV-02471-BAS-AGS, 2017 WL 6541447 (S.D. Cal. Dec. 21, 2017).
[7] Harland, 370 F.3d at 1270.
[8] Banks, 314 F.Supp. at 295.
[9] Id. (referring to Tinker, 393 U.S. 503).
[10] See M.G.L., c. 71, § 82; see also Pyle v. Sch. Comm., 667 N.E.2d 869, 872 (Mass. 1996) (interpreting Massachusetts law as protecting the rights of the students to free expression).
[11] Rabideau v. Beekmantown Cent. Sch. Dist., 89 F. Supp. 2d 263, 267 (N.D.N.Y. 2000).
[12] Harland, 370 F.3d at 1268–69.
[13] See Tinker, 393 U.S. at 509.
[14] 418 U.S. 405, 410-11, 412-13 (1974)
[15] V.A., 2017 WL 6541447, at *4 (citing Tinker, 393 U.S. at 506).
[17] V.A., 2017 WL 6541447, at *5 (quoting Chandler v. McMinnville Sch. Dist., 978 F.2d 524, 527 (9th Cir. 1992).
Date
Friday, February 22, 2019 - 1:00pm
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Do you have a background in science, technology, engineering or math? Join us for a Technology and Civil Rights Legislative Briefing on March 6.
At the briefing you will learn about the five pieces of state level legislation the ACLU filed as it relates to issues of privacy and surveillance and what you can do to protect civil rights and liberties. The briefing will be led by ACLU of Massachusetts Technology for Liberty Program director, Kade Crockford.
This briefing will also be available online. Please indicate if you will be participating in person or online when you RSVP.
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Event Date
Wednesday, March 6, 2019 - 6:30pm to
8:30pm
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ACLU Boston Office
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211 Congress Street
4th Floor
Boston, MA 02110
United States
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Wednesday, March 6, 2019 - 8:30pm
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