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   aclu reporter: fall 1997

Table of Contents:

English-Only Legislation

ACLU of Utah Hires New Staff Attorney Pamela Martinson

Intern Report

New Granite School District Policy Renews Controversy Over Gay-Related Student Groups

Jacob Lawrence Orosco: February 17, 1980 - September 3, 1997

New ACLU of Utah Program Will Track Conduct by Law Enforcement Agents

The ACLU of Utah to Help Sponsor the Salt Lake Art Center’s Upcoming Exhibit, Making Waves: Controversial Art in Utah

Case Update: Crank v. Utah Judicial Council is Back in the Courts

Student Report: My Argument Against the Death Penalty

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English-Only Legislation
By Mary J. Woodhead

One of the most interesting things about the Utah legislature’s latest attempt to make English the official language of the state is the Legislative Review Note at the end of the bill. The Note says, "A limited legal review of this bill raises no obvious constitutional or statutory concerns." What country’s constitution did the legislative analyst review?

The proposed Utah law is part of an ongoing trend nationwide to pass laws making English the required language of government. The laws range from simple declarations of English as the "official" language of a given state, to laws like Utah H.B. 387 which provides, "Unless otherwise required by the United States or Utah Constitutions, all official documents, transactions, proceedings, meetings, or publications issued, conducted or regulated by, on behalf of, or representing the state and its political subdivisions shall be in English."

Although the statute states on its face that its implementation will be consistent with the Utah and United States Constitutions, application of the law is likely to raise questions from freedom of speech to equal protection. For example, although the federal Voting Rights Act currently requires bilingual ballots, the Utah law is unclear on issues such as drivers’ license examinations. Moreover, the question remains open as to whether the underlying premise of the law itself violates the United States Constitution.

The proposed Utah law attempts to avoid legal difficulties both by the language cited above and by a series of "exceptions" to the general rule. The bill states that, "Languages other than English may be used; (a) when public health and safety needs require it; (b) in foreign language instruction in the public schools, including the teaching of English as a second language; (c) in judicial proceedings, when necessary to insure that justice is served; (d) and to promote and encourage tourism." Obvious omissions from the list of exceptions include communication related to the public welfare and dissemination of legal announcements. The law as drafted could leave non-English speaking immigrants unable to communicate with regard to benefits to which they are otherwise entitled.

Given that the inevitable result of English-Only laws is the diminution of tools available for communication, the question has to be asked, "Why bother?" Outspoken proponents of English-Only laws cite two main reasons for such laws. First, they claim such laws actually enhance the flow of information by encouraging everyone to communicate in the same language. The Utah law, for example, proposes that money apportioned for bilingual programs or materials be moved to programs for teaching English as a second language.

The second argument presented in favor of English-Only laws is that they will save money. For example, The Salt Lake Tribune reported that proponents of such laws claim that English-Only laws protect the state against lawsuits by immigrants demanding services in their native tongue. According to this view, the cost of bilingual and multilingual services is an unfair financial burden on the English speaking majority.

When viewed in this light, the tie between English-Only legislation and other anti-immigrant laws seems obvious. In its briefing paper on English-Only laws, the ACLU states that such laws, "perpetuate false stereotypes of immigrants and non-English speakers." The paper concludes that, "Such laws do not simply disparage the immigrant’s native languages but assault the rights of the people who speak the language."

Recently, a departing public employee challenged Arizona’s English-Only law. After the 9th Circuit Court of Appeals, en banc, found the law unconstitutional, the United States Supreme Court reversed on procedural grounds. As a result, the legal status of English-Only laws remains open.

The Circuit Court decision, however, has bearing on laws such as the one working its way through the Utah legislature. The Court found that an integral part of freedom of expression is choosing the words to communicate ideas and information. Based upon that analysis, the Court concluded that there is constitutional protection for speaking foreign languages. The Court also found that such rights extend to public employees. This finding suggests that the underlying premise of the Utah law is suspect.

The position, taken by the ACLU and other organizations, that English-Only laws violate the United States Constitution is not without historical precedent. In 1923, the U.S. Supreme Court, in the case of Meyer v. Nebraska, struck down a Nebraska law that prohibited teaching school in any language other than English. In finding that the law violated the due process clause of the 14th Amendment, the Court concluded that the teacher’s right to teach, "and the right of parents to engage him so to instruct their children, we think, are within the liberty of the amendment."

At least twenty-three states have passed English-Only laws and several federal statutes have been proposed in Congress. Contrary to the conclusion of the Utah Office of Legislative Counsel, any attempt by the government to limit the ability of its citizens to communicate is likely to face legal challenges, if not from the ACLU, than from individuals and organizations committed to free speech and the rights of immigrants.

Mary Woodhead is an attorney in private practice in Salt Lake City. She is a cooperating attorney with the ACLU on several cases, including the current HIV discrimination case, Allred v. Solaray.

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ACLU of Utah Hires New Staff Attorney Pamela Martinson
By Linda Hunt

"Would you consider returning to law?" I asked Pamela Martinson, as we were finishing a long overdue lunch earlier this summer.

"I loved practicing law, and of course my dream would be to work for an organization such as the ACLU -- a place where I might make a difference in people’s lives," Martinson replied.

Those words resonated when ACLU’s executive director Carol Gnade, some few weeks later, reported that Jensie Anderson, the ACLU’s staff attorney, had resigned to go back to private practice. After a rigorous interview process, Gnade named Martinson staff attorney.

Through a series of happy coincidences, Pamela Martinson and I became friends in the early 1970s. While our personal and career paths diverged, carrying us off in different directions and geographies, her commitment to civil liberties and civil rights not only remained strong, but was cemented through her years in law school and as an attorney.

After graduating from the University of Utah School of Law in the top 10% of her class, she filled a judicial clerkship for 10th Circuit Court of Appeals Judge Stephen H. Anderson, writing opinions on issues of deep concern to the ACLU, such as the Fourth Amendment, Equal Protection, and prisoners’ rights. After completing her stint in the 10th Circuit, Martinson spent a highly energized and successful three years as an associate at the Van Cott, Bagley, Cornwall & McCarthy firm, where she practiced in the areas of family law, bankruptcy, and general litigation.

But, besides the practice of law, Martinson brings to the ACLU a wide variety of other professional experiences that make her uniquely qualified to work in an organization where staff are often required to fill many roles, such as public speaking, lobbying, negotiating, interacting with and reporting to an "activist" board of directors, as well as soliciting and coordinating outside legal support for the varied lawsuits the ACLU files routinely.

Most recently, for example, Martinson was the director of development for Artspace, Inc., Salt Lake’s highly respected non-profit organization that provides low-cost living and working space to artists, writers, poets, and others. Also, prior to returning to the University of Utah for law school, she spearheaded fund-raising efforts for the U.S. Ski Team, headquartered in Park City.

In 1983, Martinson earned her Masters Degree in linguistics, and remained in academia for four years at the University of Utah where she was an academic advisor in the languages department and an associate instructor in the writing program, teaching freshman composition. The expertise she developed as a linguist would serve her well in law school, when later she became an editor and award winning writer for the Utah Law Review.

"The ACLU is very fortunate to have someone with Pam’s range of experience, combined with her passionate support of civil liberties," said ACLU executive director Carol Gnade. "It’s a tough organization to work for, especially at this time in history. And Pam brings a wealth of legal and interpersonal skills combined with a strong commitment to the ACLU’s issues," she concluded.

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Intern Report
By Emily Wood

I have always claimed to be a "card carrying member of the ACLU," but I don’t believe I truly understood the significance of this statement or what the ACLU stands for until interning with the organization this summer. Almost everyone in this country would claim to love the Constitution and the Bill of Rights, but an organization which protects the intent of these documents is often viewed with animosity. This became apparent to me when I explained to my friend’s mother what I would be doing this summer. After discovering I was interning at the ACLU, she said, "Well, it’s always good to know how the other side works."

I am entering my junior year at Stanford University this fall. I intend to major in Political Science and Philosophy with a concentration in political theory. However, unlike many students in my field, I want to combine this knowledge of theory with real world applications. I think John Stuart Mill, Kant, and Hegel are fascinating, but I want to know how their theories can be applied to the political circumstances today. The ACLU has allowed me to bridge this gap between theory and reality. This summer, I have been focusing my attention on prisoners’ complaints. The ACLU has given me the opportunity to expand my knowledge from punishment in theory to punishment in practice. My exposure to inmates’ letters and complaints has taught me more about punishment and how it is viewed in this country than any of my courses at school. And as a result of this experience, I have entered the Ethics in Society Honors Program at Stanford and plan to write an honors thesis on the current prison system.

I would like to thank the ACLU for giving me this opportunity. I would especially like to thank the staff who are kind and wonderful people to work with. Thank you again for everything, and plan on seeing me around the office again sometime soon.

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New Granite School District Policy Renews Controversy Over Gay-Related Student Groups
By Cori Sutherland, ACLU Development/Education Director

This summer, the Granite School District approved a policy that changed the way district administrators regard non-curricular school clubs. The policy, which is the first to rely on the unlawful state statute limiting access for student clubs and organizations, is the most recent example of the state’s systematic attempt to ban student initiated gay-related school groups. In implementing the policy, it is highly unlikely that the Granite School District will recognize the right of a gay/straight alliance to exist in one of its schools.

Because such school policies blatantly treat gay and lesbian student groups differently than other clubs and organizations, the ACLU of Utah has been intensely involved in this issue. The First Amendment of the U.S. Constitution, which guarantees freedom of speech, expression, and association, provides some protections for student organizations. Student groups are also protected by a strong federal statute specifically created to ensure that individual clubs and organizations are not singly prohibited by school administrators. The 1984 Equal Access Act (EAA) mandates that any school that receives federal funding and has some non-curricular clubs, must give all non-curricular clubs equal access to the school’s resources. In other words, if a public school allows just one non-curricular group to meet on school grounds with school-sponsored leadership and support, then it must provide all other student organizations with the same rights and privileges. Unless, of course, the school chooses to relinquish its federal funding.

In his memorandum, The Equal Access Act: What Does it Mean?, David Buckel, staff attorney for Lambda Legal Defense and Education Fund, reports that since the passage of the EAA, courts have determined that long-established student organizations such as the Chess Club, Key Club, Pep Club, Minority Student Union, and Future Business Leaders of America, are non-curricular clubs. The consequence of the EAA then, is that if a public school has such non-curricular clubs, then it must also allow a gay/straight alliance or another gay-related student group to meet.

In Utah, reactions to the EAA have varied. For example, in 1995, the Salt Lake School District chose to ban all non-curricular clubs rather than allow the East High Gay/Straight Alliance to meet. Then, during the 1996 session, Craig Taylor drafted and the legislature passed a bill with the intent to ban gay and lesbian student groups, and at the same time, circumvent the EAA. The bill required school boards to, "deny access to any student organization or club whose program or activities would materially and substantially: (i) encourage criminal or delinquent conduct; (ii) promote bigotry; or (iii) involve human sexuality." Although the bill is now law (Utah Code 53A-3-419), it clearly contradicts both the First Amendment and the EAA, and in doing so, makes the outrageous assumption that the principles embodied in the U.S. Constitution do not pertain to Utah’s youth.

The ACLU of Utah has been working with a group of local and national legal experts to address the state’s attempts to ban gay-related student clubs. After careful consideration, we feel that the most effective way to challenge the state statute is to litigate on behalf of students whose request to form a non-curricular club has been denied. Granite School District is the first to rely on the state statute, and we hope they will do the right thing and recognize the right of gay and lesbian student clubs to exist. If they do not, we hope that despite the tremendous pressure and difficulties in coming forward over such an issue, we will be approached by students willing to be plaintiffs in a case against the state. Gay-related school clubs are essential, and at times, a matter of life and death for students, and we must fight for their right to exist.

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Jacob Lawrence Orosco: February 17, 1980 – September 3, 1997
By Katie Barnes, Member of the East High Gay/Straight Alliance

If you ever observed a tall, strong, strapping, hurdle-jumping East High track star with big brown eyes, golden skin, numerous piercings, glitter, orange hair, and platform shoes, you too have been in the effervescent bubble that was Jacob "Hey Girlfriend!" Orosco. Always sharing his lunch time goober sandwiches and always giving with his loving time, whoever you were, he gave you his full electric attention. Whatever your problem, be it a new hairdo or your latest clothing article, he was always there. When sadness got to you and the corners of your mouth were drooping, Jacob had the ultimate dry-land ice skating routine, complete with his starry voice accompaniment, to rev your happiness motor. This athletic whip-tip boy was the energized flamer who would shop feverishly all day and still absorb in the techno and club all night. No disco ball was safe from his grooving shake-shake, matched with a precisioned glow-stick baton swirl. Still, he balanced his child, "coco-man" charm with a respectable job as a Mervyn’s sales clerk. Those who knew him barely understood how he kept his job with his horrific color-code reorganization skills. Luckily, his smiling, driving, helpful ambition kept him employed.

He was a genuinely loving, sugary-eccentric guy, who was not afraid to be who he really was: a seventeen year old gay teenager. He never hesitated to tell the whole world to, "Go home!" *snap-snap*

Jacob Orosco, you will live through time with your love of shoes, shopping, track hurdles, perfumes, Rocky Horror Picture Show, serenading, hair dye, make-up, fake ID’s, Barbies, dresses, glitter, synthetic fur, hugs, and sloppy kisses. Always and forever in our hearts, we love you Jacob.

Jacob Orosco, one of the founding members of the East High Gay/Straight Alliance, committed suicide on September 3, 1997. He will be deeply missed by all who knew and loved him.

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New ACLU of Utah Program Will Track Conduct by Law Enforcement Agents

Recently, many individuals and community organizations have expressed their dissatisfaction with the internal disciplinary procedures at Utah law enforcement agencies. Others, who followed the civil rights abuses in Atlanta during last year’s summer Olympics, are worried that problems with law enforcement in Utah will only increase as we approach the 2002 winter Olympics. In response to these concerns, the American Civil Liberties Union of Utah has developed a new program that will provide an independent review of police misconduct complaints, and increase law enforcement accountability.

Because of our strong commitment to real and lasting police reform, we were motivated to design a state-wide program that would offer a proactive approach to fighting abuse and wrongdoing by Utah law enforcement agents. However, from the beginning, we’ve known that such a program would be a success only if it were a coalition effort, and we therefore have sought advice from a diverse group of organizations and community leaders.

Since then, we’ve created a form that asks for a detailed account from individuals who wish to report an incident with law enforcement agents. After additional review, we will make this form available to any organization or individuals who work with people who are particularly susceptible to law enforcement abuse, including the homeless, poor, and ethnic minorities. When an individual returns a complaint to our offices, we will include the reported information in our police misconduct database. Through regular meetings with law enforcement officials, we will then address specific concerns, and based on our data, will offer concrete proposals to solve systemic problems.

We do not want our report to take the place of an official complaint filed with the Internal Affairs Department of the agency in question. Instead, by collecting this information, we will be better able to provide an independent review of law enforcement, and by working for reform, alleviate some of the feelings of fear and mistrust that many in our community feel towards law enforcement agents.

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The ACLU of Utah to Help Sponsor the Salt Lake Art Center’s Upcoming Exhibit, Making Waves: Controversial Art in Utah

Freedom of expression is a fundamental part of American society, and it is a principle that the American Civil Liberties Union adamantly defends. Despite the fact that freedom of expression was established by the First Amendment of the United States Constitution and has been supported by a long line of Supreme Court decision, it continues to be attacked. American history, however, has proven that freedom of speech and expression mean nothing if the government chooses to abandon its neutral position, and works to suppress unpopular ideas or support the ones it favors.

As artists find new, creative ways to express familiar ideas and emotions, they consistently challenge the status quo. Sometimes, artistic works are perceived to be unsettling, offensive, or even threatening. The ACLU and the artistic community are united in their strong commitment to unregulated and uncensored artistic expression, and the ACLU of Utah is pleased to be a sponsor of an upcoming exhibit that examines artistic censorship in this state.

From October 17, 1997 until January 4, 1998, the Salt Lake Art Center will present an unprecedented examination of those visual arts works that caused public outcry, drew the threat of censorship, or were censored in some way in Utah over the past century. The exhibition, entitled Making Waves: Controversial Art in Utah, will celebrate free speech in the visual arts by displaying those works that tested societal boundaries during the periods in which they were created or exhibited. Featured pieces include Trevor Southey’s commissioned painting for the Salt Lake City Airport that was ultimately removed and deaccessioned because of his depiction of nude figures; Sara Northener’s photographic work of the female nude subject that was moved and covered by the Salt Lake Art Center staff during a republican fundraising event in the exhibit hall; and Richard Johnston’s public sculpture that was briefly installed at a Utah college until it was destroyed with a blowtorch on the orders of a member of the college’s administration (sculpture pictured below).

As part of the exhibit, the Salt Lake Art Center is organizing a free public symposium that will explore the complexities of freedom of expression. On Saturday, October 18, specialists from throughout the community will chronicle the different visual arts controversies in Utah, and offer a frank examination of Utah’s history relative to this subject. Long time ACLU supporter, David Watkiss, will also participate in the symposium by providing an analysis of the constitutional and legal implications of censorship. Other speakers will look at the roles that cultural prejudices and mores have played in society, how they change over time, and how dramatically they impact and are impacted by the arts.

For more information about the exhibit and symposium, please call the Salt Lake Art Center at 328-4201.

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Case Update: Crank v. Utah Judicial Council is Back in the Courts
By Eric P. Swenson

In 1993, the ACLU of Utah and I filed the class action case, Crank v. Utah Judicial Council, to attack racial discrimination against Native Americans in the jury selection process in the Seventh District Court for San Juan County. A consent decree was entered in 1996, and it required that the Utah Judicial Council make reforms in the jury selection system and establish standards for the inclusion of Native Americans on jury lists. Unfortunately, the jury lists continue to under-represent Native Americans and are wildly out of line with the agreed standards. This problem is aggravated by Seventh District judges who continue to try criminal defendants with illegally constituted juries. There have been ten trials and ten convictions so far in 1997. Fourteen more trials are scheduled for later this year.

In order to prevent this grossly illegal conduct, ACLU lawyers have brought contempt proceedings to enforce the consent agreement. The action requests that a receiver be appointed to implement the agreed-upon jury reforms. Sanctions are also sought, including fines and jail sentences for a judge who, despite the knowledge that his conduct is illegal, continues to try defendants and violate their constitutional rights. No hearing date has yet been set.

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Student Report: My Argument Against the Death Penalty
By Erin Anderson

The Bill of Rights Eighth Amendment clearly prohibits cruel or unusual punishment. Is it just me, or is killing someone cruel and unusual?

According to recent studies, it has been noted that American citizens know almost nothing about the death penalty or the procedures used by the government to take away someone’s life. This shows that maybe our court systems aren’t as fair as they should be. How can a jury decide to take away someone’s life if they know virtually nothing about the death penalty?

I am sure that we’ve all heard stories of how a hundred years ago if someone stole something they would have their hands cut off. We thought that was cruel and unusual. Look at what we’re doing now! Our court systems are prosecuting and killing people every day. For all we know, some of the people that we have killed could have been innocent.

This brings up another issue with the death penalty. What if we are killing innocent people? The difference with life in prison and the death penalty is that if new evidence is found after the trial and the judge’s sentence was life in prison, then the suspected criminal can be set free. If the death penalty was the sentence then there is no way of reversing the death of an innocent person.

These are the reasons why I feel the death penalty is wrong.

Erin Anderson’s article is part of a series in which young people comment of different civil liberties issues. Erin is currently a seventh grader at Bryant Middle School. If you or someone you know would like to submit an article, please call the ACLU at 521-9862.

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