ACLU: Louisiana Mayor Caves on Attempted Ban of Nike Products

Louisiana Mayor Caves on Attempted Ban of Nike Products
The city of Kenner’s policy of preventing booster clubs from buying or accepting delivery of Nike products is unconstitutional.

UPDATE: On Wednesday, Mayor E. “Ben” Zahn III rescinded his policy barring the city of Kenner’s booster clubs from buying or accepting delivery of Nike products at the city’s recreation facilities. 

The mayor of Kenner, Louisiana, doesn’t seem to like Colin Kaepernick much. He also doesn’t seem too happy that the sports merchandise juggernaut Nike made Kaepernick the face of its new “Dream Crazy” campaign. But instead of simply expressing his personal opinion, he’s trying to use the power of his public office to prevent others from expressing their support for Colin Kaepernick. 

And that’s unconstitutional. 

On September 5, Kenner Mayor E. “Ben” Zahn III issued a memorandum prohibiting private booster clubs operating at Kenner recreation facilities from buying or accepting delivery of any product with the company’s famous swoosh symbol. “Under no circumstances,” the memo reads, “will any Nike product or any product with the Nike logo be purchased for use or delivery at any City of Kenner Recreation Facility.” Under the new policy, the city’s director of parks and recreational must approve any athletic product or apparel before a booster club can purchase them. 

On Wednesday, the ACLU and the ACLU of Louisiana sent a letter to Mayor Zahn informing him that his actions violate the First Amendment and advising him to rescind his policy immediately. We have taken this action because Zahn’s policy violates the First Amendment’s prohibition on content and viewpoint discrimination. It prevents booster clubs from purchasing Nike’s products based solely on the mayor’s opposition to Nike’s political expression.

How do we know this? Because Zahn said so himself.

After his policy caused a furor both locally and nationally, the mayor issued a follow-up statement on September 11. According to Zahn, he implemented his Nike ban because the company, “in its zeal to sell shoes, chose to promote and sell a political message.” The mayor couldn’t be any clearer. His policy is directed at the political message communicated by Nike and those who wear Nike apparel.

And no one should lose sight of what that message is. Kaepernick lost his job as a quarterback in the NFL because he has the temerity to kneel during the national anthem. Kaepernick has explained that he took a knee to protest rampant police brutality and discrimination against people of color across the United States. By doing so, he sparked the “Take-a-Knee” movement, which continues today

Zahn argues that his policy is an attempt “only to protect taxpayer dollars from being used in a political campaign.” This argument falls flat. While Kenner booster clubs receive city funds, they also raise their money from private sources, and the city has no legitimate interest in dictating which companies, causes, or “political agendas” booster clubs may support with their own money.

There is only one plausible conclusion for the mayor’s actions: He is trying to stop booster clubs from symbolically expressing their support for political views the mayor detests. That’s a textbook First Amendment violation.

Mayor Zahn, rescind your unconstitutional policy. Just do it.

Published September 12, 2018 at 12:30PM
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ACLU: A Louisiana Mayor’s Ban of Nike Products Violates the First Amendment

A Louisiana Mayor’s Ban of Nike Products Violates the First Amendment
The city of Kenner’s policy of preventing booster clubs from buying or accepting delivery of Nike products is unconstitutional.

The mayor of Kenner, Louisiana, doesn’t seem to like Colin Kaepernick much. He also doesn’t seem too happy that the sports merchandise juggernaut Nike made Kaepernick the face of its new “Dream Crazy” campaign. But instead of simply expressing his personal opinion, he’s trying to use the power of his public office to prevent others from expressing their support for Colin Kaepernick. 

And that’s unconstitutional. 

On Sept. 5, Kenner Mayor E. “Ben” Zahn III issued a memorandum prohibiting private booster clubs operating at Kenner recreation facilities from buying or accepting delivery of any product with the company’s famous swoosh symbol. “Under no circumstances,” the memo reads, “will any Nike product or any product with the Nike logo be purchased for use or delivery at any City of Kenner Recreation Facility.” Under the new policy, the city’s director of parks and recreational must approve any athletic product or apparel before a booster club can purchase them. 

On Wednesday, the ACLU and the ACLU of Louisiana sent a letter to Mayor Zahn informing him that his actions violate the First Amendment and advising him to rescind his policy immediately. We have taken this action because Zahn’s policy violates the First Amendment’s prohibition on content and viewpoint discrimination. It prevents booster clubs from purchasing Nike’s products based solely on the mayor’s opposition to Nike’s political expression.

How do we know this? Because Zahn said so himself.

After his policy caused a furor both locally and nationally, the mayor issued a follow-up statement on Sept. 11. According to Zahn, he implemented his Nike ban because the company, “in its zeal to sell shoes, chose to promote and sell a political message.” The mayor couldn’t be any clearer. His policy is directed at the political message communicated by Nike and those who wear Nike apparel.

And no one should lose sight of what that message is. Kaepernick lost his job as a quarterback in the NFL because he has the temerity to kneel during the national anthem. Kaepernick has explained that he took a knee to protest rampant police brutality and discrimination against people of color across the United States. By doing so, he sparked the “Take-a-Knee” movement, which continues today

Zahn argues that his policy is an attempt “only to protect taxpayer dollars from being used in a political campaign.” This argument falls flat. While Kenner booster clubs receive city funds, they also raise their money from private sources, and the city has no legitimate interest in dictating which companies, causes, or “political agendas” booster clubs may support with their own money. There is only one plausible conclusion for the mayor’s actions: He is trying to stop booster clubs from symbolically expressing their support for political views the mayor detests. That’s a textbook First Amendment violation.

Mayor Zahn, rescind your unconstitutional policy. Just do it.

Published September 12, 2018 at 12:30PM
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ACLU: Can the Wall Between Church and State Survive Brett Kavanaugh?

Can the Wall Between Church and State Survive Brett Kavanaugh?
The Supreme Court nominee’s testimony this week signals an intent to weaken the separation of church and state.

Public schools are educational institutions, not temples of religious indoctrination. For over half a century, the Supreme Court has thus recognized that the Constitution prohibits public schools from imposing prayer on children and that religious education is the province of parents and religious communities, not government bureaucrats.  

On Wednesday, Supreme Court nominee Brett Kavanaugh, however, strongly suggested that he disagrees and that, if confirmed, he will vote to weaken the separation of church and state in public schools. Although the ACLU neither endorses nor opposes Supreme Court nominees, we do have an obligation to analyze Kavanaugh’s judicial record on areas that impact core civil liberties and civil rights.  

During the second day of Kavanaugh’s confirmation hearings, Sen. John Cornyn (R-Texas) questioned Kavanaugh about the Supreme Court’s 2000 decision in Santa Fe Independent School District v. Doe, a case brought by the ACLU on behalf of Texas public-school students. In a 6-3 ruling, the court held in Santa Fe that the school could not cede its loudspeaker system to students, who would then deliver prayers at the start of football games.  

Cornyn and Kavanaugh have a special interest in the case. Then the attorney general of Texas, Cornyn argued the case before the Supreme Court. Kavanaugh helped him prepare for the oral argument and separately wrote a friend-of-the-court brief on behalf of two congressmen, supporting the school district. 

In the brief, Kavanaugh argued that the school district had created a platform for student speech before football games and was thus constitutionally required to allow students to impose prayer on their classmates. The Supreme Court rejected this reasoning, ruling that the school had not created a neutral forum open to myriad student speakers but, instead, had effectively manipulated the situation from the start to ensure that a prayer would be given at each football game. Because those prayers took place at a school event, over the public-address system, and with the school’s involvement, the court concluded that students would easily perceive them as being “stamped” with the “school’s seal of approval.”

The court also noted that, even if the school had established a neutral forum for speech, it would not necessarily shield the school from scrutiny under the Establishment Clause principles that govern the separation of church and state. That makes sense with respect to situations like the one in Santa Fe because many students would feel significant peer pressure to participate in such prayers or face ridicule and ostracism. As the court explained, the First Amendment forbids public schools from exacting this type of  “religious conformity from a student as the price of joining her classmates at a varsity football game.”

In discussing Santa Fe yesterday, Cornyn read from Justice Rehnquist’s dissent and insisted that the ruling was somehow hostile to religion. Kavanaugh did not disagree, which is not surprising, given his professed admiration for Justice Rehnquist as a “judicial hero.” Indeed, his amicus brief in Santa Fe went even further, proclaiming that a decision in favor of our student clients and their families would pave the path toward a “the full extermination of private religious speech from the public schools” and an “Orwellian world.”  

An attorney’s words written on behalf of clients don’t necessarily reflect his or her personal views, but in a confirmation hearing that has been sorely lacking in transparency, Kavanaugh made crystal clear that he agrees with what he wrote nearly two decades ago.

Both he and Cornyn announced that the decision still sticks in their craws. And, responding to Cornyn’s claim that Santa Fe was hostile to religion, Kavanaugh pointed to subsequent Supreme Court decisions like Trinity Lutheran Church v. Comer, Town of Greece v. Galloway, and Good News Club v. Milford Central School District, as “developments since [Santa Fe] in terms of religious equality and religious liberty that are important.”

Those three cases have one thing in common: They each watered down protections for the separation of church and state.

Regardless, these cases should have no bearing on Santa Fe’s continuing validity. That Kavanaugh believes otherwise is troubling, to say the least. Nothing in the decisions suggests that the government may use school-attendance laws to corral children into public schools and then forcibly subject them to prayer at any and all school events just because the prayer happens to be delivered by their peers rather than their teachers. That would be Orwellian.

But that is exactly what could — and likely will — happen if Kavanaugh’s view were to prevail. Public-school students could be subjected to prayer during every school event, from school-day assemblies to football games to awards ceremonies and, yes, even in the classroom, so long as the school purports to set up a “forum” for speech.

Make no mistake, contrary to Kavanaugh’s prediction in his amicus brief two decades ago, public-school students have broad religious-expression rights, which we do not hesitate to defend. The right to engage in voluntary prayer and religious expression in public schools, however, does not and should not include the right to create captive student audiences or to compel other students to participate. 

We’ve seen what happens when public-school officials allow prayer to be imposed on children like our clients in Santa Fe: Students who don’t follow the same religious beliefs as many of their peers feel immense pressure to participate, and those who resist that pressure often end up being ostracized from their school community and beyond. This is at odds with public schools’ mandate to serve all students, including students of every faith and those of none. And it can’t be reconciled with the Supreme Court’s longstanding precedent governing the separation of church and state in our schools. 

Based on Kavanaugh’s testimony yesterday, if he’s confirmed, we’ll need a Hail Mary to prevent that precedent from being severely undermined or worse — overturned.

Published September 7, 2018 at 12:30PM
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ACLU: Congress, Don’t Throw More Money at Donald Trump’s Weaponized Department of Homeland Security

Congress, Don’t Throw More Money at Donald Trump’s Weaponized Department of Homeland Security
A bigger DHS budget would reward the White House’s cruel immigration enforcement policies of detention and deportation.

As summer ends, the country’s political eyes are focusing even more intently on midterm elections. Although a new Congress is not far away, there remain major budgetary issues to resolve. The most immediate deadline for people concerned about President Trump’s immigration policies is September 30, when fiscal year 2018 ends. 

For the Department of Homeland Security, reports suggest that both parties prefer to postpone debating a new budget until after the midterms, although President Trump has on occasion threatened a government shutdown if he doesn’t get billions of dollars for immigration enforcement including more of his border wall.  The ACLU’s position is clear: Congress must not reward DHS’ grossly abusive immigration enforcement with more resources to tear more families apart and to keep building a harmful, wasteful monument to Trump’s xenophobia.

After a year filled with DHS-inflicted trauma on separated children, continuing Border Patrol violence and racial profiling, plus rampant Immigration and Customs Enforcement cruelty and deportation excesses, the only discussion in Congress should be about how much spending to cut from these ill-performing, family-destroying DHS components.

Yet both the House and Senate homeland security budget bills would enable DHS with more resources. The House version adds more than 400 ICE personnel and allocates $5 billion for Trump’s wall folly, while the Senate version includes 375 new Border Patrol agents and $1.6 billion for wall construction. Neither bill reduces the obscene and unnecessary spending level for immigration jails

The House committee vote split along party lines, but Democrats were divided in the Senate committee despite denunciations like Sen. Tom Udall’s (D-N.M.), who criticized the border fence as “a waste of money” and called attention to the children “cruelly separated from their parents” by the president and still awaiting reunion.

It’s now up to the full House and Senate, especially party leadership, to reject these committee votes and deny DHS more funding.  Three financial aphorisms lay out why:

Follow the Money

Taxpayer dollars are the lifeblood of Trump’s deportation machine. For years DHS’s immigration enforcement budget has grown without adequate scrutiny, exceeding the budgets of the FBI, DEA, Secret Service, and all other federal criminal law enforcement agencies combined.  Since 1986, about $300 billion has gone to federal immigration enforcement, leading to concerns about excessive border-security spending even before Trump.

“It is a sort of a mini industrial complex syndrome that has set in there,” former House Appropriations Chair Hal Rogers (R-Ky.) warned back in 2012. “And we’re going to have to guard against it every step of the way.”

These days, all caution has been thrown to the wind. Prior administrations, at least, sometimes balanced family unity and ties to the United States against deportation. Trump’s ICE and Customs and Border Protection, on the other hand, have made separating families their goal. DHS is also allowing private prison companies to profit from enforcement, in the words of the Migration Policy Institute, by asking for vast expansions of immigration jail beds despite using current facilities to imprison asylum seekers illegally and subject families with children to harmful detention

DHS conducts out-of-control enforcement because its budget reins and oversight haven’t been held tightly by Congress. Every year, ICE and CBP keep pushing the limits of their budget — often receiving record levels of funding from Congress. What incentive does DHS have to comport with the Constitution if Congress annually rewards the agency with billions of dollars despite rampant abuses?  

There is no clearer report card to send a department like DHS than reducing its budget in response to immoral, unconstitutional policies and actions.

Don’t Throw Good Billions After Bad

The Government Accountability Office monitors whether taxpayer funds are being properly spent. In a devastatingly critical report last month, GAO concluded that:

“DHS plans to spend billions of dollars developing and deploying new barriers along the southwest border. However, by proceeding without key information on cost, acquisition baselines, and the contributions of previous barrier and technology deployments, DHS faces an increased risk that the Border Wall System Program will cost more than projected, take longer than planned, or not fully perform as expected.” 

Trump’s rhetorical frenzies are fueling border wall construction, not reality.

To appease Trump, this Congress has already allocated more than $2 billion toward wall building and yet hasn’t even received a required DHS report on the $1.6 billion in construction approved in March. The wall’s wastefulness hasn’t gone unnoticed in Congress.

“Since DHS picked locations for the President’s wall before taking into account effectiveness or cost, any more spending on Trump’s wall would be a giant waste of taxpayer money and may not provide any measurable security benefit,” House Homeland Security Ranking Member Bennie Thompson (D-Miss.) said, reacting to the GAO’s findings. “I urge my colleagues to read this report before allowing another dime be spent on the President’s pet project and costly boondoggle.”

The Buck Stops Here

Rep. Thompson is right that his colleagues bear ultimate responsibility for DHS’ budget, so all of us must make one thing clear to Congress: Giving Trump’s DHS billions more in enforcement resources for the president’s cruel detention and deportation machine is unacceptable.

Published September 5, 2018 at 03:30PM
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ACLU: Jeff Sessions Slams the Door on Immigrants Desperate to Escape Domestic Violence

Jeff Sessions Slams the Door on Immigrants Desperate to Escape Domestic Violence
The Trump Administration’s new asylum and deportation policies create illegal hurdles for women fleeing persecution.

Last Thursday, U.S. District Judge Emmet Sullivan sharply criticized the government for deporting two ACLU clients — a woman and her child who had fled rape and other brutality by her husband and a gang in El Salvador — who are challenging the Trump administration’s draconian new policies applicable to the initial “credible fear” asylum screening system.   

“This is pretty outrageous,” Sullivan said. “Somebody in pursuit of justice who has alleged a credible fear in her mind and is seeking justice in a United States court is just spirited away?” 

Carmen (a pseudonym) and her young daughter were returned to the United States that same day after the judge threatened to hold Attorney General Jeff Sessions in contempt if they were not. But they are not alone in facing deportation while requesting protection from domestic violence. In its crackdown on immigrants at the border and in the United States, the Trump administration has endangered countless asylum seekers and immigrants pursuing justice under U.S. laws. 

This summer, Sessions issued a disturbing decision that departed from decades of asylum law and especially harms women. He established a general rule against asylum for victims of domestic violence and gang brutality despite the numerous courts and other authorities that have held otherwise, and specified that those claims should be denied even in credible fear screenings. “Generally,” Sessions wrote, “claims by aliens pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not qualify for asylum.” U.S. Citizenship and Immigration Services subsequently published guidance to asylum officers conducting credible fear interviews, emphasizing this restrictive view in bold print.  

Sessions further misconstrued the legal standards applicable to asylum and credible fear, making it much more difficult for asylum seekers to show they have a credible fear of persecution during their initial interview. These changes mean that people who would have qualified for asylum if they had arrived just a few months earlier are now likely to be deported, deprived of a fair chance to show they qualify for relief at the agency and through the courts. 

These new policies align with other immigration changes that particularly impact vulnerable survivors of domestic violence. They follow, for example, a dramatic increase in immigration enforcement by officers from ICE and Customs and Border Protection at courts across the country since 2017. These arrests have swept up victims of crime or witnesses who are appearing in family, landlord-tenant, or traffic courts. 

A survey by the Immigrant Defense Project found that ICE arrests at courthouses in New York swelled by an astonishing 1,200 percent in 2017. Overall, federal arrests of undocumented immigrants with no criminal records have more than tripled under the Trump administration. 

Increased immigration enforcement has ensnared domestic violence victims who looked to the courts to protect their rights. They include a woman in Charlotte, North Carolina, and another in El Paso, Texas, who petitioned for protective orders and were detained by ICE when they appeared in court. In both cases, it is believed that their abusive ex-partners filed reports that led to the women’s arrests. 

The administration’s single-minded focus on arresting undocumented immigrants severely undermines law enforcement efforts to address and prevent violence. A survey of law enforcement officers released in May by the National Immigrant Women’s Advocacy Project and the ACLU shows that immigration arrests in courthouses during the Trump administration have created a culture of fear that impacts community safety. 

Sixty-nine percent of surveyed police officers reported that it was more difficult to investigate domestic violence cases involving immigrants in 2017 compared with the year before. Likewise, 82 percent of prosecutors said that since President Trump took office, domestic violence has become increasingly underreported and harder to investigate and prosecute. The survey also determined that more than half of the judges reported that court cases were interrupted due to an immigrant crime survivor’s fear of appearing in court. 

The #MeToo movement vividly illustrated that far too many survivors of sexual assault and domestic violence, in the face of serious retaliation, were and are silenced about their experiences. For immigrant survivors of violence, the hurdles are that much higher, as they navigate new deportation and asylum policies that concentrate on punishing — rather than defending — them. 

When U.S. officials distort asylum protections to slam the door on women escaping persecution, they force victims to endure continued violence and the potential loss of their lives. When U.S. officials arrest victims of domestic violence pleading for aid at courthouses, they thwart survivors’ fundamental rights to due process and to request law enforcement assistance. 

People are fighting back. Along with Carmen and her daughter, 10 other people fleeing domestic and gang violence in Central America brought the lawsuit challenging the rollback in asylum protections in the credible fear process, represented by the ACLU and the University of California Hastings’ Center for Gender and Refugee Studies. The case moves forward before Judge Sullivan and builds on widespread condemnation of Sessions’ attempts to change asylum law. Across the country, law enforcement officials, advocates, ACLU state affiliates, and members of the public are speaking out against ICE’s aggressive enforcement at courthouses and its impact on immigrant survivors, witnesses, and communities.

The Trump administration has sent a clear message. It values the deportation of immigrant domestic violence survivors over the laws and policies we have adopted to shield victims and their rights. Using the courts, advocacy, and our own voices, we must ensure that these immigrants can secure justice before they are “spirited away” to life-threatening danger.   

Published August 16, 2018 at 03:30PM
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