Tarrant County College Ordered to Pay $240,000 After Losing Battle Against the First Amendment

Originally posted on thefire.org.

By Will Creeley
Attorney, Foundation for Individual Rights in Education

Attention, college administrators: Attempting to defend your institution’s unconstitutional speech code in court is very, very expensive. Unfortunately for Texas taxpayers, Tarrant County College (TCC) is the latest school to learn this lesson the hard way. About 240,000 times harder than it needed to be, in fact.

Torch readers will remember that back in March, TCC’s speech code was found unconstitutional as a result of litigation coordinated by FIRE and the American Civil Liberties Union of Texas (ACLU-TX). FIRE and the ACLU-TX worked with Fort Worth attorney Karin Cagle to bring a constitutional challenge to TCC’s speech code on behalf of student Clayton Smith and John Schwertz, members of Students for Concealed Carry on Campus who had repeatedly been forbidden by TCC to hold an “empty holster” protest on campus. Their story is one of those documented in FIRE’s recent video, Empty Holsters:

The lawsuit made an immediate impact. Just two days after the complaint was filed in November 2009, a federal district court judge issued a temporary restraining order prohibiting TCC from quarantining protected speech to the school’s tiny “free speech zone,” holding that continued operation of the free speech zone would result in “immediate and irreparable injury” to students’ free speech rights. In December, facing obvious defeat, TCC voluntarily dismantled its free speech zone, but also introduced an unconstitutional ban on “cosponsorship,” which forbade students and faculty from holding campus events in association with any “off-campus person or organization.” Smith’s and Schwertz’s suit was amended to challenge this new policy, and in a March 2010 ruling, the district court struck this restriction down, too, stating that “the Court cannot imagine how the provision could have been written more broadly.”

Following the win, Cagle moved for an award of attorneys’ fees, as is customary in civil rights cases. As this week’s judicial order details, TCC disputed Cagle’s intentionally low rate estimates–a tactic which proved costly when, after extensive briefing, the court denied defendants’ motions for still lower rates and awarded Cagle, her fellow counsel David Broiles, and the ACLU-TX a total of over $240,000 in attorney’s fees.

Needless to say, $240,000 is quite a chunk of change—especially when it’s spent fighting a losing battle in defense of censorship. FIRE often warns schools to spare themselves the embarrassment of fighting against the Bill of Rights. Now that TCC has joined the University of Wyoming ($86,000 spent trying to ban Bill Ayers from campus) and the Georgia Institute of Technology ($203,714 spent paying attorneys’ fees following its violation of students’ freedom of religion)—to name only two others—as the newest loser in the misguided fight against the First Amendment, maybe we should start telling schools to spare themselves the expense of fighting against the Bill of Rights, too.

All of this expense could have been happily avoided had TCC heeded FIRE’s first letter, sent way back in April of 2008, which urged the school to respect its students’ rights to free expression and assembly. But TCC wanted to do it the hard way. This decision has now cost the school hundreds of thousands of dollars. Will any administrators lose their jobs for violating students’ rights and wasting taxpayers’ and students’ money?

We hope this pricey defeat prompts other institutions to think twice before they pick a fight with the First Amendment.

What We Already Know About the Willingham Case

Note: The season premiere of PBS’ FRONTLINE will take a close look at the Cameron Todd Willingham case. The show will begin airing Tuesday, Oct. 19. Check local listings.

By Jose Medina
ACLU of Texas Media Coordinator

One thing was clear during last week’s court on inquiry into the Cameron Todd Willingham case: There are certain things in which anything less than 100 percent is unacceptable.

The inquiry into whether Willingham was wrongfully executed for the 1991 fire which killed his three daughters finally got under way Thursday afternoon and wrapped up the same day.

But while we don’t yet have a ruling, what we already know from the inquiry is that “junk science” was used to convict and later execute Willingham. “Completely unreliable,” “faulty,” “discredited,” were just some of the terms used to describe the conclusions investigators and prosecutors used in building a case against Willingham.

And there was also the term “purchased” used to describe the jailhouse informant who testified Willingham confessed to the crime as he awaited trial. That informant later recanted.

Much of the “science” used to determine the Willingham fire was intentionally set was as faulty in 1991 as it was in 2004 when Gov. Rick Perry declined to stop Willingham’s execution.

While there is still a chance that Willingham’s conviction will be overturned, what can’t be overturned is that Willingham is already dead, meaning that the state of Texas executed an innocent man.

Some death penalty supporters claim that there are enough safeguards in place to ensure all who are on death row belong there.

But what the Willingham case has already shown is that in this case, or others around the country, someone, somewhere has made a mistake. Or will make a mistake. And when we’re talking life and death, 99.9 percent accuracy is not good enough.

Was An Innocent Man Executed In Texas?

Shortly after the court of inquiry concluded, the 3rd Court of Appeals in Austin granted a Navarro County District Attorney’s Office (which prosecuted Willingham) request to temporarily stay all proceedings. The same office had earlier asked Judge Baird to recuse himself from the case. Baird declined to step aside.

The Court of Appeals set a deadline of Friday, October 22 for all parties to respond to the stay.

Judge Charles Baird has begun a court of inquiry to determine if Cameron Todd Willingham was wrongfully executed. Willingham was executed in 2004 following a conviction on charges that he intentionally set a fire that killed his three children.

Here’s the petition from Willingham’s family (PDF).

We’re in the courtroom in Austin and will have periodic updates here.

    Update 1:43pm – Gerald Goldstein, attorney for the Willingham family, is casting doubt on the credibility of the jailhouse informant who testified Willingham confessed to the crime while awaiting trial. That informant now says and is willing to testify that he lied, Goldstein says.

    Update 1:50pm – Attorney Barry Scheck says his team will show that the science used to convict Willingham was discredited 10 years prior to the trial.

    Update 1:55pm – John Lentini, whom Scheck calls the leading fire expert in the country, is now on the witness stand.

    Update 1:56pm – The Innocence Project is live streaming the court of inquiry.

    Update 2:19pm – Lentini goes over images of the burned out Willingham home and says this of the conclusions reached by fire investigators: “They are completely without merit, completely unreliable.”

    Update 2:20pm – Lentini says science that convicted Willingham is as faulty now as it was back in 1991 when the fire occurred.

    Update 2:48pm – Not a single one of the 20 indicators claimed by investigators as arson in the Willingham fire was actually arson, Lentini says.

    Update 2:59pm – Fire investigator Manuel Vasquez showed a “predisposition” to determine most fires were arson.

    Update 3:26pm – Judge Baird asks Lentini if he’s aware of any experts anywhere in the world who disagree with his conclusion that the fire was not arson. “One guy,” was Lentini’s answer.

    Update 3:35pm – We’re on a bit of a break.

    Update 3:46pm – We’re back. Goldstein is now focusing on Johnny Webb, the jailhouse informant who testified Willingham confessed to setting the fire.

    Update 3:58pm – Goldstein pointing to the problems with jailhouse informants like Webb who may seek “promised ‘benefits'” in exchange for testimony. Goldstein calls Webb’s testimony “purchased.”

    Update 4:14pm – Dr. Gerald Hurst is now on the stand.

    Update 4:35pm – Not a single item of evidence that would even suggest the Willingham fire was arson, Hurst concludes.

We’re done and Willingham’s attorneys have concluded their case. Baird will rule at a later time.

We’ll keep you posted.

What You May Not Know About RFID

By Dotty Griffith
Public Education Director

High school students in Spring and Santa Fe independent school districts (near Houston) are being asked to wear tracking devices that may present security risks. Known as RFID (Radio Frequency Identification) chips, the devices are implanted into student IDs. School officials say the chips track attendance and help districts “recapture” monies that would be lost if a student is mistakenly left off the attendance roll. State funding is based in part on attendance.

The American Civil Liberties Union of Texas urges parents to ask questions about this technology. Are the cards encrypted to prevent the information from being “skimmed” (read) or copied? Without real security, RFID chips could make students more vulnerable to tracking, stalking, and kidnapping. Someone who wants to do harm could potentially sit in a car across the street and scan student IDs without teachers, school officials, parents, or students ever knowing that any information has been read. And if this information can be read, it can be copied easily to a duplicate chip. A student could be taken off campus while the duplicate chip continues to tell RFID readers that the student is safely at school.

Unintended consequences such as this raise the question: Is the value of RFID worth the risk? Parents should be given clear information about RFID technology and the potential privacy and safety risks of an RFID attendance system and be able to opt out if they don’t want their children subject to this technology.

Parents should ask the following questions if RFID is proposed at their students’ schools:

  • What security measures are in place on the RFID chips? Does the RFID system use encryption and authentication so that my child cannot be tracked by someone who wants to harm her?

  • What is the cost of this system? And where is the money coming from to pay for this system?
  • Has the school considered a contact chip or bar code system that would not allow my child’s information to be read at a distance?
  • How will data collected from the chips be used? How long will it be kept?
  • How can I opt out if I don’t want my student exposed to this risk?

While school officials and parents may have been sold on these tags as a “cost-saving measure,” we are concerned that the real price of insecure RFID technology is the privacy and safety of small children. RFID has been billed as a “proven technology,” but what’s actually been proven time and again (PDF) since the ACLU first looked at this issue in 2005 is just how insecure RFID chips can be:

If You Think Debtors’ Prisons Are An Historical Footnote, Think Again

By Jose Medina
ACLU of Texas Media Coordinator

The Texas Observer has a compelling article summarizing results from reports (including one by the ACLU) detailing criminal justice debt and what it does to communities, taxpayers and indigent individuals who can’t pay. That’s a long-winded way to say that debtors’ prisons have been reinstituted in this state and the rest of the country.

A provocative read, for sure, particularly the reference to how the the U.S. Supreme Court has “held that imprisoning someone merely because of his inability to pay a fine or restitution was fundamentally unfair,” reported the Observer.

The ACLU of Texas has sued a south Texas county because officials there persist in doing what the U.S. Supreme Court has said can no longer be done.

In case you missed it, a few months ago the ACLU of Texas sued Hidalgo County for sending dozens – possibly hundreds – of indigent teens to jail because they were unable to pay fines related to truancy violations.

Can’t pay truancy fines? Go to jail, miss even more school, and eventually drop out.

The litigation is pending and we’ll keep you updated on any developments. But our lawsuit speaks to the point made by these reports that criminal justice debt can further compound the problems the fines are supposed to fix.

It’s essentially, as the ACLU report points out, a case of modern-day debtors’ prisons, where persons are jailed for the crime of being poor.