Geoffrey A. Hoffman, Using the Deportation Power to Threaten Free Speech

Geoffrey A. Hoffman
Clinical Associate Professor, Director, University of Houston Immigration Clinic

Recently, CNN commentator and British citizen Piers Morgan has been the subject of a White House petition to deport him. The cascade of petitioners, now numbering more than 100,000, is troubling. A person’s exercise of free speech is not something that should lead to a threat of deportation. More than that, a non-citizen may not be deported based merely upon the desires of 10,000, 100,000, or even a million angry petitioners. Deportation may only be based on some valid, legal basis.

As a non-citizen lawfully present in the U.S., Mr. Morgan is entitled to due process, a point which may surprise many. Due process means he has to be served with notice in a particular way and be advised of the ground of removal. He is entitled to present evidence, witnesses in his defense, and argue for relief from removal if any exist.

What does calling for someone’s “deportation” – even a deportation with no valid basis- say about us as a nation? The First Amendment protects even probing foreign journalists and especially dissenters. Calling for one’s expulsion at a time of tragedy is one way to discipline those who profess unpopular ideas. Focusing on a non-citizen’s opinions in especially pernicious because it does two things: it seeks to expel the offending person’s views from the marketplace of ideas, but also, more importantly, shifts discussion away from the truly important issues underlying the tragedy in Connecticut: gun control. There is no valid ground for deportation which exists against Mr. Morgan. It is interesting that the voices which have now coalesced in support of his deportation have succumbed to a false assumption: that the federal government can be persuaded to exercise its extraordinary power to rid the polity of someone who has said something controversial or at odds with a special-interest group. This assumption is unsound.

The exercise of the federal deportation power which is the exclusive province of Congress and the executive branch in such a manner would be tantamount to unlawful and discriminatory “selective prosecution.” In a famous case, Reno v. AADC, 525 U.S. 471 (1999), the Supreme Court has stated that although there may be no Constitutional right to bring a selective prosecution case in the immigration context, the door was left open to such a claim where the basis for the alleged discrimination is “outrageous.” In this case, to enforce the immigration laws against Mr. Morgan for the exercise of his free speech rights would be “outrageous” in the way conceived of by Justice Scalia in his opinion in Reno v. AADC.

It concerns me deeply that as a polity we can envision the use of deportation in such a way with little analysis about the misuse of such power and no appreciation of the effects that such a proposed use would have on other parts of our Constitution and the Bill of Rights. The First Amendment should not be trampled upon because the federal government has been imbued with other equally important powers, such as those over immigration and foreign affairs. To go down this road is dangerous and corrosive. While Mr. Morgan, a journalist and CNN celebrity, may not be fazed, all our rights are diminished if free speech can be subjected to the chilling effects of threatened deportation against those among us who espouse controversial or dissenting views.

UPDATE (Jan. 11): The White House responded to the petition to deport Piers Morgan by emphasizing his First Amendment rights to speak on gun control.

Orginally posted on ImmigrationProf Blog.

Schools In Texas Routinely Violate Constitutional Protections For Religious Freedom

By Dotty Griffith
Public Education Director

This week we released a report documenting that school districts all over the state routinely ignore the Constitution when it comes to religious freedom in public schools. Examples are detailed in, “At the Mercy of the Majority: Attacks on Religious Freedom in Texas Public Schools in the Decade after Santa Fe v. Doe.” Moreover, Texans who complain publicly are often subjected to ridicule and threats.

Check out our coverage:

Fox News 26 Houston

KUHF FM Houston

Texas News Service

According to the report, “The ACLU of Texas receives dozens of complaints every year from students, parents, and teachers across Texas reporting that local public schools violate students’ religious freedom in a myriad of ways: prohibiting students from wearing religious attire, injecting sectarian religious views into classroom instruction, and even endorsing and requiring student prayer.

“Yet most of the complainants are afraid of speaking out, even with the Constitution and the U.S. Supreme Court on their side. They fear if they go public with their concerns, their children will face retaliation at school. They fear social stigma in their towns. They fear loss of their jobs. They fear violence,” the report concluded.

Schools named in the report include:

Alief ISD p. 22
Athens ISD p. 46
Brazosport ISD p. 32
Brownsville ISD p. 21
Celina ISD p. 26, 32
Cleburne ISD p. 32, 42
Clint ISD p. 20
Cypress-Fairbanks ISD p. 30, 32
Dallas ISD p. 21, 44
Dayton ISD p. 28, 32
Deer Park ISD p. 28
Ector County ISD p. 32, 35
El Paso ISD p. 25
Grand Prairie ISD p. 25
Fort Bend ISD p. 22
Fredericksburg ISD p. 32, 42
Honda ISD p. 26
Humble ISD p. 26, 28
Hurst-Euless-Bedford ISD p. 45
Irving ISD p. 32, 44
Joshua ISD p. 32
King HS, Corpus Christi ISD p. 29
Liberty-Eylau ISD p. 41
Lubbock ISD p. 35
Lufkin ISD p. 32, 43
Magnolia ISD p. 25, 27, 32
Nacogdoches ISD p. 32, 40
Navasota ISD p. 41-42
North Lamar ISD p. 46
Panhandle ISD p. 28, 32
Rockwall ISD p. 41
Round Rock ISD p. 31
Socorro ISD p. 25, 47
Somerset ISD p. 20
Spring ISD p. 20
Texas City ISD p. 22
Willis ISD p. 32, 35
Wylie ISD p. 32
Ysleta ISD p. 45

FAQ: School Prayer Edition

By Victor Cornell
Religious Freedom Campaign Coordinator

Recently, we asked people to take our survey about schools that have students vote on whether to pray at graduation. We received a lot of responses telling us how uncomfortable prayer at graduation made some people, and how they felt excluded or stigmatized at their own graduations. But we also got responses from people who were confused about what is ok and what is not when it comes to prayer in school. So let’s consult the First Amendment and see if we can’t clear things up!

Question: Why can’t students pray? Isn’t that covered by freedom of religion or freedom of speech?

Answer: They can pray, and prayer is protected! Contrary to what you may have heard on the news from certain former presidential primary candidates, students of all religions have the right to practice their religion at school. That right is protected by both the First Amendment of the U.S. Constitution and by the Texas Religious Freedom Restoration Act.1 Students absolutely have the right to pray voluntarily in school, alone or with friends at any time that doesn’t disrupt classes.2 But here’s the part where people get tripped up. One of the most important ways that the law protects students’ religious freedom is by preventing the government – including government-run public schools – from telling kids when or what to pray. The same First Amendment that ensures students have the freedom to practice and express their faith is what protects students from having any religion or prayer forced on them by schools.

Question: What’s wrong with schools promoting religion?

Answer: Public schools are government entities; therefore they must respect all faiths and favor none. Along the same lines, the government cannot show a preference for religion in general over the beliefs of nonreligious people.3 Matters of individual conscience should be left to the individual, not forced upon students by school administrators or teachers. That’s the very definition of freedom!

Question: If the whole school votes and a majority say they want a prayer at an event, wouldn’t that be okay?

Answer: No. One of the most important jobs of the Constitution is to protect the freedom of the minority to practice a faith that the majority may disagree with. Balloting or voting for prayer still favors the majority religion over others and is unfair to the students whose beliefs don’t conform to the majority. In Santa Fe Independent School District v. Doe, the Supreme Court held that by setting up an election and providing the stage for prayer, the school was still coercing students to pray.4 It doesn’t matter whether the person leading the prayer is invited clergy or a student or if the prayer is non-denominational; it’s all coercive and unconstitutional if school officials organize, sponsor or endorse it.

A few respondents to the survey worried that the ACLU of Texas was discriminating against Christians. But think of it this way. What would happen if a Texas school opened its graduation ceremony with a Wiccan Esbat ritual or a chanting of Hindu kirtans? Do you think the Christians in the audience would be offended? Do you think they might feel that they were being forced to participate in religious rituals that conflict with their cherished, deeply held beliefs? Of course they would! And rightly so!

The question is, “How would you feel if that happened at your graduation?” Unfortunately, it happens to students across Texas every year, whether they are Jewish, Muslim, Catholic, Jehovah’s Witness, Mormon, or atheist. We are reminded of Luke 6:31 (NIV) “Do to others as you would have them do to you.”

The good news is, whenever coerced prayer happens in Texas, we are there, defending the Constitution and students’ freedoms of and from religion!

Know Your Rights! – Students’ Religious Rights at School

1Tex. Civ. Prac. & Rem. Code § 110.003.
2Tex. Educ. Code § 25.901. See also Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 512-13 (1969).
3See Wallace v. Jaffree, 472 U.S. 38, 53 (1985).
4Santa Fe, 530 U.S. at 317.

Religion in Public Schools: Is the Bible off limits in the classroom?

By Rebecca Robertson
Director of Public Policy and Advocacy

If you want to get Texans riled up, start a conversation about teaching the Bible in public schools!  Feelings run high, and everyone has an opinion.  We wish we could say there are clear rules to guide educators when it comes to teaching the Bible, but thanks to inaction by Texas legislators and the State Board of Education, the situation is murkier than it needs to be.

As we’ve seen, there is a constitutional prohibition on government-run schools foisting a particular religious viewpoint on school children.  That rule protects the rights of parents and students to decide for themselves whether and how to worship.  In keeping with this rule, public schools can teach about the Bible if they do so in an objective and academic manner rather than a religious one.  For example, it’s okay for teachers to focus on the historical or literary import of the Bible.  Conversely, schools must avoid conveying any particular religious message or promoting a particular sectarian interpretation of the Bible.

In 2007, Texas enacted a law permitting public schools to offer an elective Bible course to ninth- through 12th-grade students.  The law specifies that the course must comply with the Constitution and that teachers should receive training designed, in part, to help them teach the course in a manner that is constitutional.   So far, so good, right?

The problem is that the legislature has declined to appropriate any money for teacher training, and the State Board of Education has refused to write any curriculum standards specifically for the course.  The result is that schools that offer the Bible elective have very little guidance about how to do it right.

Because any Bible course is, by definition, about religion, schools and teachers need to be careful not to infringe on students’ religious liberty.  If Texas legislators and the State Board of Education really care about religious liberty, they’ll take steps to ensure that any Bible curriculum taught in Texas public schools stays within constitutional bounds. That won’t end the controversy over teaching the Bible, of course, but at least we’d all know the ground rules!

Religion in Public Schools: Could school dress codes ban the hijab?

By Rebecca Robertson
Director, Public Policy and Advocacy

In a word, no!  School dress codes cannot, in most cases, be used to prevent students from wearing religious attire.

What does the law say on the subject?  Both the Constitution and the Texas Religious Freedom Restoration Act (TRFRA) protect students’ rights to wear religious attire in school.  The law is very strict: a Texas public school can only prevent a student from wearing religious attire if there is no less restrictive way to further the school’s compelling interest.

Despite the law, school dress codes are often problematic.  In our experience, religious head coverings in school are the subject of a lot of confusion.   Many faith traditions include the wearing of a head covering – such as a turban, yarmulke, or head scarf – as an expression of devotion or modesty.

But it’s not just kids who practice a minority faith who find themselves at odds with school administrators over these issues.  Even kids from so-called “mainstream” religious traditions can be impacted.  For example, although almost a third of Texans identified as Catholic in the most recent American Religious Identification Survey, some Texas school districts have tried to ban rosaries.

Schools that insist on enforcing dress codes over kids’ sincere religious objections may find themselves answering to a judge.  Courts in Texas have repeatedly ruled in favor of students’ rights to wear religious attire.  For example, a federal court in Houston ruled against a school that punished Catholic students for wearing rosaries, and two others have prohibited schools from requiring American Indian boys to cut their hair to comply with a campus dress code.

The bottom line?  Schools cannot restrict this kind of religious observance by students; school dress codes need to accommodate students’ religious practice.

Coming up, one of the more hotly debated issues – school prayer.

Religion in Public Schools: What is all the fuss about?

By Rebecca Robertson
Director of Public Policy and Advocacy

Ever wonder why the issue of religion in public schools is so contentious?  All of us believe in freedom of religion, right?

Maybe the debate would generate less heat and more light if people better understood what “freedom of religion” really means when it comes to public schools.  What are students’ rights? And what is the school’s responsibility?

In this series, we’ll look at how our Constitution and Texas law protect a student’s right to practice her faith, even at school.  And we’ll explain why schools cannot be in the business of endorsing one religion over others.

Let’s start with first principles: everyone knows that religious liberty is guaranteed to all by the Constitution.  In fact, it’s the very first freedom set forth in the Bill of Rights.  But did you know that the freedom of religion has two equally important components?  Check it out! The Constitution not only protects a person’s freedom to practice her own faith (or no faith at all), but also guarantees freedom from government intrusion into matters of faith.

Both “freedom to” and “freedom from” are relevant in public school settings.  The law is clear that students have the right to exercise their religious faiths – or no faith at all – at school.  The freedom applies equally to everyone, no matter what faith they practice.

And schools must respect students’ diverse religious practices.  The Constitution says government – including government-run schools – cannot promote one religion over another or promote religion over non-belief.  That limitation ensures students and their parents, not some government bureaucrat, decide whether and how to worship.

In upcoming blogs, we’ll talk about how these principles play out at school.  From school dress codes, to school prayer, to the role of the Bible in Texas classrooms, we’ll look at the most controversial issues when it comes to religion in public schools.

How We Celebrate the Season: Merry Christmas from the ACLU of Texas!

By Victor Cornell
Austin Regional Coordinator

Although you may have heard that the ACLU of Texas is anti-religion or anti-Christian, the truth is quite the opposite.  The ACLU and the ACLU of Texas have long defended the rights of all of us to practice our religion freely, regardless of any particular religious affiliation, without government interference.

Religion plays a prominent role in American public life. Churches, synagogues, mosques, temples, and cathedrals are plainly visible in the public sphere and their right to display religious symbols and to construct religious edifices is protected by the Constitution and by statutes.  We have supported the right of people to preach their religion in public places and to go door-to-door to spread their religious messages. The Constitution properly protects the right of religious figures to preach their messages over the public airwaves. Religious books, magazines, and newspapers are freely published and delivered through the U.S. Postal System. Even in our public schools, students’ right to pray and talk about their faith is protected.  No other industrialized democracy has as much religion in the public square as does the United States.

This religious freedom is a fundamental human right that is guaranteed by the First Amendment’s Free Exercise and Establishment clauses.  The First Amendment of the Constitution provides that “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.”  It encompasses not only the right to believe (or not to believe), but also the right to express and to manifest religious beliefs. These rights should not be subject to the political process and majority votes.

The Constitution does not endorse any religious creed, and it does not give government the right to decide theological questions. Beliefs about the nature of God are a proper subject for individuals, families, religious communities, and theologians, but not for government bodies such as the U.S. Congress or a local school board.  The government has no business telling any American what to believe in religious matters or deciding which side to support – symbolically or financially – in religious questions.  We should constantly remind ourselves that religion is a fundamental right that needs to be protected.

Hopefully, now that you know the facts about the ACLU of Texas and Christmas, you can avoid bearing false witness and (should you so desire) be empowered to set the record straight.  Merry Christmas from the American Civil Liberties Union of Texas!

Share this holiday greeting card from the ACLU with friends and family.

How We Celebrate the Season: Christmas in the Public Square

By Victor Cornell
Austin Regional Coordinator

We get a lot of questions and complaints this time of year about religious holiday displays.  So we thought we’d take this opportunity to set the record straight.

The First Amendment guarantees individuals, families, businesses, and religious communities the right to display Christmas symbols. This right is well established and is exercised annually by private individuals and entities across the country. The difficulty comes when the government decides that it wants to get involved in promoting some religious symbols or prohibiting others.

The existing guidelines are actually pretty simple.  First, public Christmas displays (including nativity scenes) erected and paid for by individuals, religious organizations or other nongovernmental groups are perfectly acceptable at homes and churches. This religious expression is a valued and protected part of the First Amendment rights guaranteed to all citizens.

Second, government-sponsored religious displays, including those at courthouses, town halls and other governmental properties are not okay, except in certain specific instances (such as being one element of a larger, seasonal holiday display that includes other religions.)  These displays wrongly presume that government should make judgments about religion.  Governments should not be in the business of endorsing religious displays. Religion does best when government stays out of the business of deciding which holidays and religions to promote. Religion belongs where it prospers best: with individuals, families and religious communities.

See, I told you it was simple!

For interesting blogs on the ACLU’s 12 days of Religious Liberty, follow the ACLU of Texas on twitter!

How We Celebrate the Season: The AC in ACLU-TX Does Not Stand for ‘Anti-Christian’

By Victor Cornell
Austin Regional Coordinator

Every year around this time, we, at the ACLU of Texas, get messages asking why we oppose Christianity.  Because the ACLU is often better known for its work preventing the government from promoting and funding religion, it is sometimes wrongly assumed that we do not zealously defend the rights of all religious believers to practice their faith.  But the truth is we’ve done an awful lot of work on behalf of self-identified Christians.

In 2010, we joined with the national ACLU to file a brief in the U.S. Supreme Court in support of a Texas prisoner who sued after prison officials denied him the opportunity to participate in Christian worship services.

We also filed a friend-of-the-court brief in support of a Christian pastor and his faith-based rehabilitation facility in Sinton, Texas. The ACLU of Texas urged the court to reverse a decision that had prohibited the pastor from operating his rehabilitation program near his church and also had sharply limited the reach of the Texas Religious Freedom Restoration Act (TRFRA). In June 2009, the Texas Supreme Court agreed with us and ruled in favor of the pastor.

My personal favorite happened just this year.  In April, we filed an amicus brief in support of students in the Plano school district who wanted to include pencils with religious messages (like ‘Jesus is the reason for the season’) in holiday gift bags.

So remember, when we say we’re fighting for your religious freedom, we really mean it!  We are defending the rights of all Texans to practice their faiths freely and pushing back against government intrusion into matters of faith. Up next we’ll clarify some of the rules surrounding Christmas displays in the public square.

The Good and the Bad from the 82nd Legislature

Matt Simpson
Policy Strategist

We aren’t going to lie, there was a lot of ugly in the 82nd Legislature, yet we are proud to report that the ACLU of Texas achieved some incredible successes despite the contentious atmosphere of the proceedings.  Many of the bills we supported passed, and we were successful in stopping many bills that would have been bad for Texas.

We worked with business leaders, civil liberties organizations, law enforcement, and religious leaders to stop various anti-immigrant proposals.  These proposals would have encouraged racial profiling and undermined public safety.  Although numerous proposals were offered, and we were backed into a corner when the so-called “Sanctuary Cities” bill was added to the Special Legislative Session, no anti-immigrant bill successfully passed.  Phew!

In addition to holding off the anti-immigrant charge at the Legislature, our other major successes came in the area of decriminalizing school discipline. Current policies and laws that require ticketing students for minor disciplinary infractions at school push youth into the juvenile and adult criminal justice systems, interrupting or altogether halting their education.  Futures have been ruined by these policies, and with more youth in jail – and out of a job – these policies certainly have not benefited the economy.   Additionally, criminal justice responses to minors’ misbehavior are more costly and less effective than other methods of encouraging good behavior at school. Here is an overview of our decriminalizing school discipline successes:

  • The Corporal Punishment, Ticketing, and Use of Force Bill (HB 359) addresses three separate school discipline issues.  First, it grants parents the power to determine if their children can be subjected to corporal punishment at school.  Second, it exempts children in sixth grade and under from being charged with three separate Class C misdemeanors for engaging in childish misbehavior on school property.  Third, it ensures that school peace officers report their use of restraints on special education students. 
  • The Truancy Bill (SB 1489) aims to reduce the number of youth and adults sent into juvenile and adult criminal justice systems for truancy.  In 2009 alone there were approximately 120,000 Class C misdemeanor charges filed against Texas students for failure to attend school, a 40 percent increase since 2005.
  • The Record Sealing Bill (HB 961) will better allow youth and young adults to move past childhood mistakes by lowering the age at which individuals may have juvenile records sealed and/or restricted.
  • The Anti-Bullying Bill (HB 1942) requires school district policies to include a procedure for reporting, investigating, and responding to instances of bullying on their campuses.   

Along with the passage of these good school discipline bills, two important criminal justice reforms passed this session. 

  • The Asset Forfeiture Bill (SB 316) reforms the way that asset forfeiture laws can be used.  In the past, asset forfeiture laws were sometimes misused by law enforcement to intimidate individuals (disproportionately African Americans) into relinquishing personal property in an effort to avoid being put in jail. 
  • The Anti-SLAPP Bill (HB 2973) allows for safeguards against frivolous lawsuits targeting individuals with the purpose of quelling the individual’s free speech rights. 

These wins will make a difference in the lives of many Texans, and we are proud to have had such a successful session. But, while we were able to successfully advocate for these bills and stop all of the anti-immigrant proposals, a few bad bills still passed:

  • The Voter ID Bill (SB 14) requires proof of identification at polling places, which creates more roadblocks to voting despite the already very low voter turnout rate in Texas. Voters must already show proof of identification to register to vote. A second show of ID isn’t necessary and there’s no evidence of voter fraud in Texas.
  • The Sonogram Bill (HB 15) intrudes on the doctor-patient relationship and forces a woman to go through an invasive sonogram procedure prior to undergoing an abortion.  
  • The Sexting Bill (SB 407), well-meaning but poorly crafted legislation that creates a new crime for youth that send naked images to friends or classmates, a practice that more than 20 percent of youth engage in nationwide.  There are better non-criminal ways to address this widespread youthful indiscretion without having to place children before a judge.

Between working to undo these unwise new laws and keeping the momentum going on the school discipline successes, we don’t have much time to rest. There is still a lot to do to protect the civil liberties of all Texans.  We assure you we aren’t going anywhere and will keep on fighting for your rights!  To follow the work we do, find us on Facebook, or follow us on Twitter!  And remember, to show your support for the work we do, please vote for us as “Best Activist Organization” in the Austin Chronicle’s Best of Austin contest.