by Melissa Garlick
Since 2017, college and university students across the country, including in Massachusetts, have noticed their campuses papered with fliers declaring, “It’s OK to be white” – a phrase with a long history in the white supremacist movement.
What may be surprising to some is that –although the seeming purpose of this coordinated effort by white supremacists is to propagandize, stoke fear, spread hate, and divide campus communities – these fliers are constitutionally protected speech.
While hate speech on campus is generally protected speech, that is not the end of the matter. Administrators and the campus community must recognize and prepare to address the harm that can stem from such speech on campus. A clear and forceful response to constitutionally protected hate speech will prevent protected speech from escalating to bias-motivated crimes and will ensure an inclusive climate where all community members feel safe and welcome.
Free Speech vs. Hate Crimes
The flyer incidents illustrate the important –yet often overlooked – dividing lines between free speech and hate crimes. Even some of the most heinous speech is not criminal, but rather, is largely protected by federal and state constitutions. The ability to express controversial and even offensive ideas is a cornerstone of our nation’s democratic ideals; it is one of the principal ways our nation is distinguished from many countries around the globe where expression of unpopular viewpoints can be – and often is – punished.
In order for an incident to be considered a hate crime, there must be a criminal offense – designated by statute – specifically and intentionally targeting an individual or property in whole or in part because of the victim’s actual or perceived race, religion, national origin, gender, gender identity, sexual orientation, or disability. See e.g., M.G.L. c. 265, § 39; 18 U.S.C. § 249. Such criminal acts become hate crimes only where the perpetrator intentionally selects the victim because of the victim’s personal characteristics. Id.Even more common than hate crimes on colleges campuses, are bias incidents (also referred to as hate incidents), in which a person makes bigoted or biased comments to another individual, distributes hate literature (like the aforementioned flyers), or conducts other similar other non-verbal communication. Although they are not hate crimes and often do not violate criminal or civil law, bias incidents nonetheless can be deeply hurtful and offensive.
Hate Incidents on College/University Campuses
Every year, thousands of students are the victims of hate crimes and bias incidents on college campuses, including bias-motivated slurs, vandalism, threats, and physical assaults. According to Federal Bureau of Investigation (FBI) statistics, schools and colleges/universities remain the third most-frequent location for hate crimes.
Over the past year, the Anti-Defamation League (ADL) has tracked not only a spike in anti-Semitic and hateful incidents on campus, but has documented the changing nature of incidents and their profound impact on communities. Reports of hate rhetoric and bias incidents, including anti-Semitic and racist graffiti, extremist speakers, and racist fliers, have increased markedly. Although most of those incidents would not qualify as hate crimes or be even criminally punishable, they are deeply painful to individuals and campus communities.
For example, on Valentine’s Day in 2017, gift bags were distributed to students at a Central Michigan University student group meeting including a card that read, “my love 4 u burns like 6,000 jews” [sic] and featured a photograph of Adolf Hitler. Even though the creator/distributor of the valentine card turned out not to be a student, the impact of the incident resonated through the campus community. University President George Ross issued a forceful statement and more than 100 faculty members issued an open letter to the University community. The letter stated: “First and foremost, we stand in unflinching solidarity with Jewish communities on our campus and beyond. We uphold you now and always. We will do everything in our power to protect you . . . .” This incident did not involve speech that crossed the First Amendment line into criminal behavior. However, the strong University response underscores the significant impact of such incidents on a person’s sense of value and belonging in a place of learning that they also call home. When hate speech appears on campus that is demeaning to a group of people and contradictory to the values of diversity and inclusion – though it may be protected by the First Amendment – trust is eroded and communities need to heal.
ADL also has tracked a dramatic uptick in incidents of white supremacists targeting college campuses via the distribution of literature, speaking engagements, or trolling/harassment efforts. Colleges and universities are traditionally seen as bastions of free speech; white supremacists capitalize on that by intentionally designing their efforts and words (e.g., the “It’s okay to be white” fliers) to fall under the umbrella of free speech. Since September 2016, ADL has tracked more than 500 incidents of white supremacist propaganda on college and university campuses, with almost 300 such incidents occurring during the 2017-18 school year. The vast majority of white supremacist campus actions involve hateful fliers (“Imagine a Muslim-Free America”) and stickers (“Make American White Again”), but white supremacists also have sent anti-Semitic faxes and delivered highly publicized on-campus speeches.
Considerations for College/University Administrators
As early as the 1600’s, John Milton introduced the now familiar concept of the “marketplace of ideas” which, in essence, posits that “the ultimate good desired is better reached by free trade in ideas-that the best test of truth is the power of the thought to get itself accepted in the competition of the market.” Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J. dissenting). Yet, this marketplace is not self-executing. It depends on people’s willingness to respond to words which are intended to demean, humiliate, and deride. Educational institutions must take into account that historically marginalized and other minority groups are under a greater burden and may be unable to adequately respond when speech targets their personal identities and sense of self. It is critical that colleges and universities speak and act, both against hate and toward a civil learning environment that values inclusion, equity, and open expression.
Reporting hate crimes on campuses, for example, is a crucial part of successful prevention of hate incidents. In 1998, Congress enacted an amendment to the Higher Education Act requiring all colleges and universities that receive federal aid to collect and report hate crime statistics to the Department of Education (ED). See Clery Act, 20 U.S.C. § 1092 (f)(1)(F). Currently, colleges and universities must report hate crime statistics for all campus crime categories.
Unfortunately, however, the ED’s current hate crime statistics reflect substantial underreporting. Indeed, the majority of hate crime victimizations go unreported. Colleges and universities have tended to either report the crime without indicating that it was bias-motivated or fail to report the crime at all. Such underreporting is underscored by the fact that the limited ED data conflict with campus hate crime information collected by the FBI under the Hate Crimes Statistics Act, 28 U.S.C. § 534, although the same reporting criteria apply.
Reporting hate crimes and training campus police should be a part of broader response protocols established by colleges and universities to quickly and effectively address hate crime incidents and build trust within campus communities. Campus police should take seriously all reports and allegations of hate crimes and incidents, bias, vandalism, graffiti, and flyering.
University administrators and campus stakeholders have a responsibility to use their own expressive rights to challenge and confront heinous ideas, rather than attempt to ignore them or stifle discussion. Faculty and students should be educated on the parameters of their First Amendment free speech rights and campus response policies and plans should be updated.
Ultimately, the most effective responses and prevention measures by colleges and universities are those that clearly recognize the harmful impact bias incidents have on campus communities, regardless of legal distinctions between hate crimes and bias incidents. It is only through strong action and counter-messaging that trust can be maintained, communities can heal, and the rising tide of hate on campuses may be stemmed.
 The fliers are a byproduct of a larger trolling campaign that emerged out of 4chan, a popular internet discussion forum infamous for the studied offensiveness of many of its members and its association with the white supremacist alt-right movement. See “From 4Chan Another Trolling Campaign Emerges,” ADL, Nov. 6, 2017, available at https://www.adl.org/blog/from-4chan-another-trolling-campaign-emerges.
 See Clery Act Requirements, Crime Categories Covered, available at https://clerycenter.org/policy-resources/the-clery-act/.
 See “Majority of Hate Crime Victimizations Go Unreported to Police,” Office of Justice Programs, Bureau of Justice Statistics, June 29, 2017, available at https://www.bjs.gov/content/pub/press/hcv0415pr.cfm.
 See, e.g., Rocheleau, Matt, “UNH stats showing no hate crimes in recent years raises red flag, experts say,” The Boston Globe, June 8, 2017, available at https://www.bostonglobe.com/metro/2017/06/08/unh-stats-showing-zero-hate-crimes-recent-years-raises-red-flag-experts-say/oEnPB4mYd0keau6vFpA4CP/story.html.
 For additional guidance, see Hate/Uncycled: ADL Resource for Administrators and Law Enforcement Teams, available at https://www.adl.org/media/11138/download (2018); Hate Crimes On Campus: The Problem and Efforts to Confront It, U.S. Department of Justice Bureau of Justice Assistance, available at https://www.ncjrs.gov/pdffiles1/bja/187249.pdf (October 2001).
Melissa Garlick is the National Civil Rights Counsel at the Anti-Defamation League (ADL), a non-profit organization dedicated to combatting bigotry, prejudice, and anti-Semitism. She is a member of the Civil Rights and Civil Liberties Steering Committee of the BBA.
An alumnus of the Boston Public Schools, who has chosen to be referred to as “JMC,” shares an experience with school discipline that led to the student’s eventual suspension.
During my senior year of high school, I was a part of my school’s “Senior Committee.” We planned events for our senior class. I was very passionate about these events; I cared about my school. I had a class period where the Senior Committee would plan our senior events. This was one of my favorite classes, and always kept me on my toes.
In November of my senior year, my class had been discussing methods to raise money for the senior class. We’d been discussing ways to raise money for a long time, and frankly, we felt like things weren’t exactly going the way it did for the senior class last year. We felt like we weren’t getting as much help from the administration as the administration gave to the class last year. We were a very outspoken class, and admittedly, things had gotten pretty tense in our classroom. We really disagreed with administration about how to plan our senior year.
Our teacher had a school administrator come to our class to help with this tension, but it did not help. Instead, we immediately got into a very heated discussion with a few of the students and the administrator. I felt myself getting angrier and angrier. I knew that I needed to take a break and calm down, so I decided to step out of the classroom.
I walked out of class and decided that I wanted to call my mom, because my mom can always help me calm down. When I called my mom, we made a plan for me to go see one of my teachers. This teacher had helped me when issues came up before, and I thought she would help me come up with a plan for Senior Committee. I began to walk towards my teacher’s classroom to see if she had time to talk with me, or if I could schedule a time to talk with her.
As I was walking to her classroom, a hall monitor started to follow me and asked me where I was going. I told her that I was going to see one of my mentors in the school, one of my teachers, to help me calm down. She told me I couldn’t do that and that she was going to call for back up.
That’s the last thing I remember before being completely surrounded by three staff members and two police officers. Things seemed to be escalating by the second. I didn’t know what to do, and I didn’t know what was going to happen to me. I remember constantly asking for them to back up and give me space because I felt beyond uncomfortable and anxious. I kept trying not to cry, but eventually I couldn’t help it anymore. I started crying and asking them to please leave me alone. I was so scared. I didn’t understand what had happened. I just wanted to see a teacher.
Then my teacher saw me. She ran down the hallway towards me, stepped between me and the police officers, and helped pull me past the police officers surrounding me. A school administrator told me I had to leave school right then, and they would let me know when I could come back. Then, one of the staff members surrounding me got in contact with my mother after they made me leave school. They told my mom that she had to come to school with me the next morning.
That next day I returned to school with my mother without knowing what is going on or what will happen. We were told to wait in the lobby, and that someone would be with us soon. I had never been in trouble like this before, and I had no idea what would happen. After a few minutes, we were sent to the Dean’s Office. I kept trying to explain to the dean what was happening, but he said he didn’t believe me. I asked to bring in my teacher who helped me get away from the police officers, but the dean wouldn’t let me get her. He told me I was suspended for ten days.
None of it made any sense to me. I’ve never been suspended before throughout my high school career, and I was so worried about what it would do to my college applications.
I felt so disrespected and belittled. To this day I don’t understand how one moment could lead to such a suspension. It all made me feel like they tried to make a show out of me. I knew this suspension wasn’t right, so I decided to fight it. I appealed the suspension, but I lost that appeal. I still wouldn’t give up, so I brought it to the state and Massachusetts agreed with me that my suspension was illegal. It was taken off my records before I graduated.
It felt so empowering, I’m happy I did my research, found a lawyer, and was able to fight this and win. I feel like our school systems take advantage of so many kids who just don’t know what their rights are or how to stand up for themselves. I couldn’t be one of those kids. I hope kids see this and know that if they aren’t in the wrong, you can stand up for yourself. Never give up and know your rights.
Schama, who has chosen to be identified by only her first name, shares her experience appealing her expulsion from her Boston high school.
The world is not peaches and cream: we need to be aware of the warfare being waged against us by the prison system and the education system. Learn to love one another and make better choices.
According to President Obama, the United States has just five percent of the world’s population, but 25 percent of the world’s prisoners. As Van Jones said in Ava DuVernay’s documentary 13th, “One out of four human beings with their hands on bars, shackled, in the world, are locked up here in the land of the free.” I recently learned about the school to prison pipeline. It works like this: A student may get into a fight at school that they didn’t start, but they still get suspended. And they go to a disciplinary school for a little while, and when they come back to their old school everything is different. Nobody believes that they didn’t start the fight. Now everyone thinks they’re a bad kid, so they start acting like a bad kid. They can no longer see the future they used to see, they get into another fight and this time they get arrested. This is how the pipeline works, I could have fallen into this pipeline.
Malcolm X wrote in his Autobiography, “Any person who claims to have deep feeling for other human beings should think a long, long time before he votes to have other men kept behind bars – caged. I am not saying there shouldn’t be prisons, but there shouldn’t be bars. Behind bars, a man never reforms. He will never forget. He never will get completely over the memory of the bars.” (Malcolm X, The Autobiography of Malcolm X, 155).
They want you to be weak, and that my friend we will never be.
On October 30th I was coming out of class; it was a regular Monday. I was talking to my friends and we were messing around as friends do. A lady walked up next to us and asked, “Where do you need to be?” It bothered me because I was where I needed to be, so I ignored her, waved her off and walked away. The next thing I know, my dean came in to my class at the end of the day. He quietly walked over, and he almost sounded depressed when he said, “Schama, can I please talk to you outside?” I was thinking he was going to tell me he found out who stole my wallet earlier that week. We went to a different classroom, and he asked me if I knew why he brought me there. “No,” I said. He told me that I had assaulted the assistant headmaster. “What!? What are you talking about!? Who?” I exclaimed. He told me her name, and I still didn’t know who it was. I told him to check the cameras. I knew I hadn’t done what he was saying, but he told me to go home.
I ended up having two hearings: a suspension hearing and then an expulsion hearing. But what I want to share is how I felt and my memories during those hearings. I remember walking to the conference room with my mom and the Dean. We walked past a white woman who looked kind of familiar. She was up against the wall as if I were a bully telling her to get out of my way. I couldn’t understand why she was so afraid and thought, “Wow, relax, I’m not an animal… I’m a human being.” During the hearing I asked who the assistant headmaster was because I still didn’t know. The Dean said I had just passed by her in the hall. And then everything started to become so clear. This woman didn’t know me; we had only a thirty second interaction. Why is she scared of me? Why am I here? I became an emotional wreck. They said that they might press charges. The School Officer came in and read a police report. I was crying; I couldn’t believe it, I started having a panic attack. The only other time I felt this way was when my grandmother had died.
When the assistant headmaster came in I should have handed her an Oscar she was so dramatic. She said that after this happened she wanted to talk to me but I ran away. But that didn’t happen, I walked away, and if she had wanted to talk to me I would have. And if she had told me I touched her, even though I didn’t think I had, I would have apologized. If she had talked to me I would have apologized, period! Later the Dean said it might have been an accident, but it still happened. I was so confused, in my head I was thinking, “she can’t press charges if I didn’t put my hands on her. If there’s no proof she can’t press charges. If this was an accident she can’t press charges. If she was upset I would have gladly apologized, why is this happening, I’m a good kid, I have good grades, I’m about to get honor roll!”
While I was suspended, I spent five days at the Barron Center – a counseling and intervention center where kids go when they are suspended for something serious – but the counselor there told me I didn’t need to be there. Later we had the expulsion hearing and they expelled me. After I was expelled I went to Community Academy. The first day, I started having a panic attack and was sent home. I went back and was okay, but the school hadn’t sent any of my work and I was frustrated. I was a junior. My work mattered, and I couldn’t do it.
I got a lawyer and appealed my expulsion. When I went to the hearing, I saw that the headmaster and the hearing officer knew each other, and I already knew my voice wasn’t going to be heard. I almost gave up. I didn’t think I could win this. Who is going to believe a child over a headmaster? No one is going to listen to me. Who is listening? My lawyer wanted to record the hearing, but the hearing officer refused. At the hearing I told my side of story. I became emotional. I said that I was a good kid, I worked hard, I am a Black queen and didn’t understand why this was happening. If I hurt anyone I’m sorry, I just want to go back to school and finish. After I presented my case, the headmaster said that he expelled me because I had become an emotional wreck and was aggressive and flailed my arms dangerously. I couldn’t believe he had said that, this didn’t make sense. What was I really being expelled for? Was he saying because I’m black and I have an “attitude” I should be expelled? I’m very blunt and everyone at school knew that. But not anymore, my school was a turnaround school, which meant 60 percent of the staff and teachers had been replaced, and everyone who knew me had left. I lost the appeal.
My lawyer and I appealed to the state. The Department of Education overturned my expulsion, ordered BPS to fix my grades and give me extra help. I’m really glad I beat my case, but this experience still really affected me. During my suspension and my expulsion, I took the time and reflected on my life and how to go about things. I knew where I wanted to go, I wanted to finish school, but I couldn’t see how I could get there. When I got to my new school I walked into my ELA class, Mr. Driscoll’s class. I noticed that his room was covered in black history and Malcolm X. At first, I thought he was just another white guy trying to be black, but then I talked to him. I wanted to figure out how to be me and he helped me. He had read my file and told me that he knew I wasn’t a bad kid, that if I needed space he would give it to me, but if I wanted to talk to someone he was there. I didn’t have to say anything to him for him to understand me and where I was coming from. And we read Malcolm X.
Malcolm’s autobiography helped me see that it wasn’t white people, it was how white people see black kids, it was about the system. “The white man is not inherently evil, but America’s racist society influences him to act evilly. The society has produced and nourished a psychology which brings out the lowest, most base part of human beings.”(Malcolm X, The Autobiography of Malcolm X, 378) This is why black kids are being sent out of school and sent to prison. The system makes white people bold.
I don’t like to share my story and I don’t want sympathy, but I need to share so it doesn’t happen to others. I am sharing my story because I’m tired and I won’t keep sitting around while my sisters and brothers are getting physically and verbally abused by the system. With the help of my family and some of my new teachers, I overcame my obstacles and I am going to be a senior with almost the grades that I wanted, and I’m going to apply to college in the fall. But not everybody is like me and can bounce back the way I did. So for anybody out there that has gone through what I’ve gone through, or is going through what I went through. I just want you to know that you aren’t the only one. Forgive those who have done you wrong, keep building your future and show them how wrong they were about who you are and what you can be.
by Janelle Ridley
Janelle Ridley works for the Boston Public Schools (BPS) as the Coordinator for System-Involved Youth. She is an expert in identifying and implementing services to aid youth in transitioning from detention back to BPS, and seeks to intentionally foster educational equity and actively work to dismantle the school-to-prison pipeline.
No one can contest that Black and Brown boys are overrepresented in the juvenile and criminal justice systems. Boston is not an anomaly; this has been a national crisis since the 1980s when zero-tolerance policies were introduced by former President Ronald Reagan’s administration at the onset of the “War on Drugs.” Once Congress passed the Drug-Free Schools and Campuses Act of 1989, school districts across the nation implemented zero-tolerance policies that have since criminalized seemingly innocuous behavior that is often due to trauma, poverty, and a plethora of reasons that make it impossible for students to function in a traditional school setting. Thus, agencies and individuals alike must be intentional about our approach in working with our youth to address the root causes and not merely criminalize the symptoms. In light of the aforementioned, this article will explore the efforts of Boston Public Schools (BPS) and others are making to ensure EVERY student has access to equitable educational opportunities. First, I will outline my work in this area. Next, I will describe Transition H.O.P.E., a pilot program launched in Summer 2018 to assist youth who have been detained at DYS facilities. Finally, I will describe efforts BPS is making to develop an intentional approach to assist youth more generally.
As the District Coordinator for System-Involved Youth at BPS, I have been pioneering new ground for academic and social integration for youth who have been exposed to systems including, but not limited to, the Department of Youth Services (DYS) and the Department of Children and Families. Through strategic transdisciplinary partnerships, I am ensuring that BPS is holding the fidelity of its mission to provide access to equitable educational opportunities to EVERY student. Concomitantly, I am working tirelessly to dismantle the cradle-to-prison pipeline while creating a path from prison-to-school. Ultimately, my objective is to disrupt the generational cycle of America’s mass incarceration crisis on Boston’s youth, and the debilitating effects of trauma on underrepresented communities. Prior to my work at the District, I devised Street Trauma, a transformative curriculum that empowered my former students at East Boston High to speak as experts of their lived experiences and enjoined educators to be more intentional about how they interacted with Black and Brown youth. Though I am no longer in the classroom, I have expanded my curriculum to colleges/universities where I serve as an adjunct professor to reach individuals seeking to work in urban settings.
BPS Office of Social Emotional Learning and Transition H.O.P.E
Transitioning back to BPS from the DYS is a nonlinear reorientation process that requires youth to sever ties with their former ways of life, both good and bad aspects, to embrace the new. Change is inevitable and a part of life, but the transition process for system-involved youth is complex and strenuous. Furthermore, the majority of the youth detained at DYS by the courts have experienced some amount of school failure and are often already behind in their educational attainment. Therefore, even short periods of detention may result in further isolation from their school communities and exacerbate opportunity gaps.
Determined to disrupt the odds stacked against the youth, I launched Transition H.O.P.E. in Summer 2018, a pilot program through BPS Office of Social Emotional Learning & Wellness with a holistic framework designed to ensure all system-involved youth have access to educational equity by: holding High Expectations for each and every young person; providing Opportunities that are realistic and within their perspective; helping the youth envision Pathways to Success by taking ownership of decisions for desired long-term outcomes; and providing Encouragement to help youth acknowledge that success is theirs to claim and define irrespective of the past. The pilot was launched at the DYS Metro Pre-Trial Detention unit with a total of 16 youth. After a successful summer, we plan on expanding Transition H.O.P.E. in the Fall of 2018 to additional DYS units and facilities serving youth assigned to BPS.
Transition H.O.P.E., powered by strategic partnerships with Lesley University, engages youth in college-level academic discourse and exposes them to pathways beyond high school. Lesley tutors worked diligently with youth to build higher order thinking skills and foster the ability to see beyond the limitations placed upon them. As a result, two of our youth enrolled at Benjamin Franklin Institute of Technology (BFIT) upon release and are exploring career options that they would otherwise not have imagined they could attain. Moreover, going on our mantra, “When you engage a youth, you reach the family,” one of the youth’s brother also enrolled at BFIT this summer and they are now attending classes together while serving as a strong support system for each other.
BPS is intentional about cultivating a culture of accountability to the success of these youth and pursuing transformational leadership to unearth the passion, purpose, and potential buried within all youth. It is also essential that the transitional process consists of positive affirmations and the presence of consistent adults in their lives. With the support and guidance of mentors (including former professional basketball players, Becoming a Man, Mass Mentors), youth are devising roadmaps to success in the academy and beyond. The H.O.P.E. team stresses accountability through periodic check-ins with both the youth and their mentors. As Frederick Douglass asserted, “It is easier to build strong children than to repair broken men.” Thus, BPS is intentional about integrating the following frameworks in its approach:
- Holistic Development: Employ a whole-child framework to cultivate cognitive, cultural, emotional, physical, social, and spiritual development.
- Open-minded Attitude: Employ a growth-mindset framework to teach our youth that their attitude, not aptitude, determines their altitude.
- Purpose Cultivation: Employ a visualization framework to activate the subconscious mind to create new neural pathways for the manifestation of desired aspirations.
- Engaged Citizenship: Employ a civic engagement and transformational leadership framework to build capacity for individual and collective responsibility.
The incorporation of youth voice is essential to each of these integrated components. BPS district leaders made several visits to DYS over the past year to listen to the needs of the youth and wrestle with tough questions like “How can teachers be better equipped to engage with youth who are subject to complex trauma?” It is impossible to narrow the opportunity gap and dismantle the prison pipeline without giving youth platforms to be heard.
The partners who are working with our inner-city youth are recognizing the harm caused by the school-to-prison pipeline, including collateral consequences in employment, education, housing, and beyond upon involvement in the justice system. Research has shown that concepts such as “trauma-informed learning” and “social emotional learning” have gained significant traction over the past few years as alternatives to exclusionary discipline practices. These constructs posit that the microsystems youth inhabit, like their communities, homes, and schools are critical to addressing their needs. At the recent Coalition for Juvenile Justice Youth Summit, youth from across eighteen states described their school experiences as “inhumane” and their communities as “unsafe” due to the high concentration of poverty and crime that stems from systemic inequality and policies from the “War on Drugs.”
Recognizing that isolation is the enemy of transformative progress, BPS is extending an invitation through Transition H.O.P.E., to partner with us and alongside Mass Mentors, William James College, Benjamin Franklin Institute of Technology, Timothy Smith Network, the Juvenile Detention Alternative Initiative, Northeastern Center for the Study of Sport and Society, Harvard University Transformative Justice Series (located in the Charles Hamilton Houston Institute for Race and Justice), Brandeis University, Suffolk County Sheriff Department Family Matters Program, Boston Police Department, STAR and most certainly Lesley University. If you have any interest in aligning work, please feel free to email me at email@example.com.
by Kate R. Cook
The recent Supreme Judicial Court (SJC) decision Caplan v. Acton, 479 Mass. 69 (2018), addresses whether taxpayer dollars can be used to fund an active church. It’s an important question, and one that attracts strong opinions, especially in a case like Caplan, where the facts center on a popular state grant program that provides funding for historic preservation—something Massachusetts needs a lot of. And for those of us that agree with James Madison, that even three pence in aid is too much when it comes to taxpayer dollars funding religious institutions, anything short of an outright prohibition is cause for concern. So it is easy to see why some might be disappointed that the SJC’s answer is: Maybe. But the Court’s decision is not surprising. Grounded in a textual analysis of the Massachusetts anti-aid amendment and SJC precedent, the decision appropriately leans into the principles animating the amendment, holding public aid to an active church “warrants careful scrutiny.” Id. at 71. Though not unexpected, the decision is significant for two reasons. First, the decision confirms the force of the Massachusetts anti-aid amendment in the wake of the Supreme Court’s decision in Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017), which held that a church could not be excluded from a government public grant program “solely because it is a church” as that would penalize the free exercise of religion. Second, as already mentioned, the decision reinforces why church-state separation is important to our democracy, delving deep into three major concerns that led to passage of the anti-aid amendment: infringement on taxpayers’ liberty of conscience; government entanglement with religion; and civic disharmony.
In Caplan, taxpayers in the town of Acton challenged the town’s decision to provide two Community Preservation Act grants to an active church under the anti-aid amendment. One grant was intended to fund the restoration of stained glass windows in the main church, including a window depicting Jesus and a kneeling woman and a window featuring a cross and the hymnal phrase, “Rock of Ages Cleft for Me.” The other grant was intended to fund a master plan for historic preservation for three different buildings on the church grounds.
The plaintiff taxpayers argued that the Massachusetts constitution requires a categorical ban on providing any public funds to active churches. The town, on the other hand, argued that the purpose of the Community Preservation Act is constitutional and that, after the Supreme Court decision in Trinity Lutheran, denial of the grant to the church would violate the free exercise of religion under the First Amendment to the United States Constitution.
The SJC declined to adopt wholly either party’s argument, but instead reached a pragmatic conclusion rooted in the constitution’s text and prior court decisions interpreting the anti-aid amendment. The SJC held that whether a grant of public funds to active churches is permissible must be considered under the three-factor test first set forth in Commonwealth v. School Comm. of Springfield, 382 Mass. 665, 675 (1981), which considered whether public funding of special education placements of public school students in private schools was permissible. That test is: “whether a motivating purpose of each grant is to aid the church, whether the grant will have the effect of substantially aiding the church, and whether the grant avoids the risks of the political and economic abuses that prompted the passage of the anti-aid amendment.” Caplan, 479 Mass. at 71.
Applying this test, the Caplan majority found that the stained glass windows grant was most certainly unconstitutional, and remanded for further discovery the question of whether the “purpose” of the master plan grant was to aid the church in violation of the anti-aid amendment.
To be sure, the SJC’s evidentiary focus on the purpose of a Community Preservation Act grant to an active church will be more difficult for municipalities to implement than either a categorical ban on aid or an approach that ignores the anti-aid amendment altogether. But Caplan is neither impossible for towns to implement nor a death knell for historic preservation. First, churches still may apply for Community Preservation Act grants, and towns cannot deny their application “solely because [the applicant] is a church.” Quite the contrary, “[t]he fact that an applicant is an active church is a relevant but by no means disqualifying consideration.” Id. at 85 n.18. The Court offered examples of permissible grants: grants to a church where historical events of great significance occurred in the church (id. at 94, 101 n.3 (describing the Old North Church)); grants to preserve church property with a primarily secular purpose (id. at 94); and of course, grants to a church preschool to provide a safer surface for its playground (id. at 85). Second, for historic churches seeking to make repairs that fail to meet the three part test, there are other constitutional ways to obtain funding. For instance, the National Fund for Sacred Places is a grantmaking nonprofit providing congregations with resources to support restoration of their historic facilities. Finally, the SJC’s suggestion that the town be subject to limited discovery regarding the purpose of the master plan grant—something the plaintiffs had requested and been denied in the lower court—is not overly cumbersome. Municipalities routinely respond to discovery requests, including Rule 30(b)(6) depositions, in a variety of matters, and they are more than capable of doing so in this context as well.
Moreover, expediency is not a reason to abandon the sound reasons the framers sought to prohibit the expenditure of taxpayer dollars for the “purpose of founding, maintaining or aiding [a] church.” Art. 18, § 2. The Caplan decision wisely places front and center three concerns that led to the anti-aid amendment, which are as real today as they were a century ago when the current Massachusetts anti-aid amendment was adopted and bear repeating. First, the grant of public funds to religious institutions risks infringing on taxpayers’ liberty of conscience. Indeed, compelling individuals to financially support religion directly harms the fundamental right of freedom of conscience. Whether to follow a particular faith, or none at all, is a choice that every individual has the right to make, free of coercion.
Second, providing public funds directly to an active house of worship runs the risk of government becoming enmeshed with religion. This entanglement creates incentives that may not align with religious beliefs and may encourage religious institutions to curry favor with the government in hopes of receiving government grants. See David Saperstein, Public Accountability and Faith-Based Organizations: A Problem Best Avoided, 116 HARVARD LAW REV. 1367-68 (2003). “With government money come government rules, regulations, audits, monitoring, interference, and control—all of which inherently threaten religious autonomy.” Id., at 1365.
Third, providing taxpayer dollars to religious institutions risks damaging civic harmony. “Town meeting members were being asked to vote on a grant to maintain religious aspects of the church of their neighbors and now they are suing each other.” Caplan. at 103 (Kafker, J. concurring). For the State to subsidize religious institutions risks pitting faith against faith by creating competition for funds and conflict among religions as they vie for an ever-larger share of public funds. See Everson v. Board of Ed. of Ewing Tp., 330 U.S. 1, 53-54 (1947) (Rutledge, J., dissenting).
In conclusion, Caplan’s amplification of the concerns that led to the anti-aid amendment will strengthen both the church and the State. Liberty of conscience, avoiding church state entanglement, and nurturing civic harmony—these concerns remain ever present today. To paraphrase former President Obama, here in Massachusetts, “[o]ur brand of democracy is hard.” Our freedoms, including freedom of conscience and religious freedom, are well worth the effort.
Kate R. Cook is a partner at Sugarman Rogers and a co-chair of the BBA’s Civil Rights and Civil Liberties Section. She filed an amicus brief on behalf of the American Civil Liberties Union in support of the plaintiffs in Caplan v. Acton.
Caplan v. Town of Acton: The Supreme Judicial Court’s Decision on Public Funding for Historic Preservation of Churches Deepens the Enigma of the Enigma of the Anti-Aid Amendment to the Massachusetts ConstitutionPosted: August 16, 2018
by M. Patrick Moore
At the heart of Caplan v. Town of Acton is the fascinating question of whether a municipality may use public funds for preservation of historic religious structures that are still in active use. See 479 Mass. 69 (2018). The guidance provided by a splintered SJC—a resounding “maybe”—raised more concerns than it addressed in three hot-button areas. First, though the Court traced the ugly history of the Anti-Aid Amendment to the state constitution, it chose to emphasize the intent of its drafters over its plain text. Second, the Court may have placed its Anti-Aid Amendment cases on a collision course with recent Supreme Court jurisprudence, most prominently the 2017 headline-grabbing decision of Trinity Lutheran v. Comer, 582 U.S. —, 137 S. Ct. 2012 (2017). Third, in an aside that may prove to be Caplan’s most lasting mark, the Court opened the door to deposing a municipal government in search of the purportedly hidden motives of its policy-makers.
At issue in the case was whether two grants made by the Town of Acton to its Congregational Church under the Community Preservation Act were permitted under the Anti-Aid Amendment to the state constitution, where the Town asserted that the grants served the recognized public purpose of historical preservation. There was no dispute that the church was a central part of the Acton Centre Historic District, which is recognized as a historic place by agencies of the federal, state, and local governments. One grant would have supported the restoration of the stained glass windows of the Congregational Church; the other would have supported an architectural assessment of the structure of the church and two nearby buildings owned by it. Though the grants may have implicated the Establishment Clause of the United States Constitution, the taxpayers who challenged them relied exclusively on the Anti-Aid Amendment of the state constitution.
Over the past century, the Commonwealth’s Anti-Aid Amendment has been notable both for its broad textual scope and the narrow construction given to the text by the courts. Unlike similar amendments passed in dozens of states that focus exclusively on religious organizations, our Anti-Aid Amendment prohibits the grant of public money “for the purpose of founding, maintaining or aiding any . . . charitable or religious undertaking.” Mass. Const. Amend. art. 46, § 2, as amended by art. 103 (emphasis added). The plain text of the amendment indicates that an active charitable organization should face the same hurdles (if any) as an active church seeking public funds for the restoration of a historic building.
Alas, that is not how the amendment has been construed. In Bloom v. School Committee of Springfield, the SJC announced a three-factor test by which it would evaluate grants to charitable and religious organizations: (i) whether the grant serves a public purpose; (ii) whether the grant does, in fact, aid the organization; and (iii) “whether the [grant] avoids the political and economic [concerns] which prompted the passage” of the amendment. 382 Mass. 665, 675 (1981). Accord Helmes v. Commonwealth, 406 Mass. 873 (1990). As that test has been applied, though, the third factor consistently has proven dispositive. Almost without exception, the purpose of the spending is to accomplish some public purpose. Likewise, almost without exception, a grant of public funds to a charitable or religious organization does, in fact, benefit that organization. So the only question that truly matters is whether the grant implicates the “political and economic [concerns] which prompted” the Anti-Aid Amendment. The Caplan Court expounded on the drafters’ concerns, identifying them as the “the risks associated with the public financial support of religious institutions,” specifically the risks that “liberty of conscience would be infringed” by public support of religious organizations, that government and religion would be improperly intertwined if such spending were allowed, and that civic harmony would be “threaten[ed]” by such spending. 479 Mass. at 90.
Because of the importance of the third Springfield factor and its focus on religious institutions, the Anti-Aid Amendment as interpreted in Caplan—and Springfield and Helmes before it—is stringent when applied to religious organizations and functionally nonexistent when applied to secular charitable organizations. Take the historic preservation funding at issue in Caplan. Were it granted to a secular nonprofit, the third Springfield factor would not have been implicated at all; but, because the funding was granted to a church, that factor was the foundation of the Court’s conclusion that it was barred. This disparity is rooted in case law, which emphasizes the intent of the Amendment over its actual text.
The emphasis on intent over constitutional text is remarkable in any context, but all the more so in Caplan for two reasons. First, the decision reviews the history of the Anti-Aid Amendment at length, including its anti-Catholic, anti-immigrant, and Know Nothing Party roots. In light of that discriminatory history, it is troubling that the “concerns” of its framers are given any weight at all, let alone controlling weight. Second, in 2017, the Supreme Court of the United States held that a religious organization must not be disqualified from a public grant program, for which it otherwise would have been eligible, solely because it is a religious organization; such an exclusion is violative of the Free Exercise Clause of the First Amendment. See Trinity Lutheran Church of Columbia, Inc. v. Comer, — U.S. –, 137 S. Ct. 2012, 2023 (2017). In that case, the grant at issue was for playground resurfacing; the Supreme Court concluded that a church preschool could not be disqualified from a grant that it would have been awarded were it secular. Caplan, however, seems to have allowed just such a disqualification. Were a secular nonprofit rather than a church to have been the applicant in Caplan, it is difficult to imagine the grant failing the SJC’s three-factor Springfield test.
The SJC did, however, acknowledge the clear holding of Trinity Lutheran that the Anti-Aid Amendment cannot be interpreted to “impose a categorical ban on the grant of public funds to a church ‘solely because it is a church.’” Caplan, 479 Mass. at 85. So, no municipality that makes grants for historic preservation can deny a religious organization simply because it is a religious organization; the Free Exercise Clause dictates that such grants must be available to religious organizations under certain circumstances. The question is when. And that is a question that the 173 municipalities in the Commonwealth that make historic preservation grants are asking in the wake of Caplan, with conflicting guidance from the Court.
Chief Justice Gants’s plurality opinion, joined by Justices Budd and Lenk, states that grants to religious organizations will trigger “careful scrutiny” and suggests that they will be allowed only in narrow circumstances, such as “where historical events of great significance occurred in the church, or where the grants are limited to preserving church property with a primarily secular purpose.” 479 Mass. at 94. Justice Kafker’s concurrence contemplates a broader range of allowable grants, perhaps all that do not “repair or maintain particular parts of the church that convey and express religious message.” Id. at 105. There are three votes for that position, too, because the concurrence was joined by Justice Gaziano and Justice Cypher’s dissent rejected the concept of “careful scrutiny” altogether. So, what is a town to do with the next grant application by a religious organization? No matter its decision, litigation risks abound. A church could challenge a denial under Trinity Lutheran, and concerned taxpayers may challenge a grant under Caplan.
Perhaps the most lasting element of the Caplan decision—in this and other contexts—will be a quandary for municipalities defending against such litigation. A clear majority of the Court held that the plaintiffs should have been entitled to a Mass. R. Civ. P. 30(b)(6) deposition to determine whether the Town had a “hidden purpose” when it awarded the grants. The plaintiffs were not required to come forward with any evidence of malfeasance to support such discovery; the Court recognized a general “entitle[ment] to pursue discovery to ascertain whether there is a hidden purpose that motivated the issuance of the grant.” Caplan, 479 Mass. at 88. Such a blanket right to conduct depositions in search of a “hidden” governmental purpose is novel and could have significant effects for state and local policymakers if it is applied in other contexts. And, in practice, a Rule 30(b)(6) deposition begs the existential question of who speaks for the Town on political questions? Here, Acton’s Community Preservation Commission recommended the grants to its Town Meeting, which approved them. Who can speak to the motives of those multimember bodies? Town Counsel and Assistant Attorneys General face an unenviable task in sorting out the answer.
The Caplan Court may have arrived at the correct destination: The only grant spending it expressly barred was the use of public funds to pay for a church’s stained glass windows (which included an image of Jesus), about which there may be Establishment Clause concerns. But the path taken by the case, through the Anti-Aid Amendment and narrowly around Trinity Lutheran, is likely to yield more litigation and, perhaps, the attention of the Supreme Court of the United States.
M. Patrick Moore Jr. is co-chair of the Boston Bar Association’s Government Lawyers Forum and Counsel at Hemenway and Barnes LLP. He previously served as Associated Counsel and Advisor for Presidential Personnel in the White House of President Barack Obama, and as Deputy Legal Counsel to Governors Deval Patrick and Charlie Baker.
Last February, the Massachusetts Alcoholic Beverages Control Commission (ABCC) presented an Everett-based beer distributor, Craft Brewers Guild, with a draconian choice: either face a lethal 90-day suspension of licensed activities, or pay an unprecedented $2.6 million fine, equal to half of projected profits for the time of suspension. This “choice” stemmed from admitted-to violations of laws forbidding bribery and price discrimination. In its Chapter 30A suit appealing the fine, however, the Craft Brewers Guild principally claims that (like its competitors) it simply did what was necessary—that “pay to play” is the industry norm, practiced by all or most, necessary for survival. And when viewed in context, this perhaps unusual defense forces the observer to take a second glance at how we regulate the industry and ask again: is this the best way?
First some background. The volcanic growth in the number of U.S. breweries is no secret. In 1978, American beer drinkers were served by an estimated 89 breweries, a post-Prohibition nadir. In line with the oft-dubbed “craft beer revolution,” last year saw an 18% increase over 2014’s record numbers, with the total number of breweries chiming in at 4225. Regardless of whatever paradox lies with choice, the market has permanently and fundamentally changed. And one consequence is simply space: no matter a bartender’s ingenuity, there are only so many actual tap lines in bars available to pour such unprecedented variety and creativity. Resultant competition for those lines is predictably fierce and growing fiercer.
Despite this altered market, these competing actors play on an old stage: an entrenched tapestry of regulation governs the alcohol market. In Massachusetts (like most states), the alcohol industry is artificially divided into three parts. Generally, (i) licensed manufacturers of alcoholic beverages (like a brewery) sell their goods to (ii) licensed distributors (like Craft Brewers Guild), who in turn sell to (iii) licensed retailers, such as a bar or liquor store—which then may serve the consumer. Vertical integration or substantial ownership between these three “tiers” is highly restricted; for the most part, they must operate independently. Notwithstanding its many critics, this tripartite demarcation at least intends to prevent organized and monopolistic crime, increase orderliness in what was once a disorderly market, and artificially inflate prices to bolster temperance.
Further, the Commonwealth extensively regulates the means and methods of business across the borders it erected. For example, if a brewer (one tier) wishes to stop selling beer to a particular distributor (another tier), it may not simply re-negotiate the contract. It must show cause to the satisfaction of the ABCC before doing so.
At issue in the Craft Brewers Guild story, however, is the regulatory decision to restrain the methods these tiers may use to compete.
The statute and regulation at play are G.L. ch. 138, §25A and 204 CMR 2.08. Section 25A forbids brewers and distributors from offering the same product to different purchasers on different terms. What is offered to one—be it price, credit or favor—must be offered to all. In turn, 2.08 forbids paying purchasers to carry a particular brand of alcohol. (For good measure, the federal Alcohol and Tobacco Tax and Trade Bureau forbids the same). Together, these rules intend to eliminate discrimination and prevent monopolization by a single major brand, in theory conserving fertile soil for up-starts and innovators while stifling disorderly conduct throughout the industry.
So on one hand, there’s unprecedented competition among a rapidly growing number of brands seeking increasingly scarce tap lines. On the other, a regulatory framework—codified in a different era—that artificially partitions alcohol distribution among three distinct entities and then attempts to prevent those entities from purchasing an advantage from one another. More players, scarcer resources, and tight restraints: this is context in which the ABCC’s fine of Craft Brewers Guild (and pending investigation into five bars) must be considered.
With that context in mind, this is what happened. Craft Brewers Guild, as part of a “pay to play” scheme, kicked back varying levels of cash and other favors to bars for putting its beers on tap (and thereby taking another distributor’s beer off). Although no brewers were cited in the decision, the ABCC speculated that Craft Brewers Guild would then accept (or demand) reimbursements from the benefited breweries. The legal issue is therefore clear: not all bars received the same kickbacks, and some received none at all, violating Section 25A’s prohibition on price discrimination; and tap space was purchased at the expense of other beer, violating 2.08’s prohibition on bribery. Media coverage reveals that the practice may be (perhaps necessarily) very common. But it was Craft Brewers Guild that was hit with the fine. And that sparks some thoughts.
First, there’sirony in a distributor of mostly craft beers running afoul a law meant in part to protect craft beers from larger market forces. And the irony is compounded by the fact the entire ABCC investigation grew from a seed planted by a series of angry tweets from the owner of the now-closed craft brewery Pretty Things, whose beers were carried by Craft Brewers Guild (but who presumably was not benefitting from the practice). At first blush his anger makes sense—the law should be followed, there’s a large variance in economic power even within the “craft” sector of the beer market, and consumer choice could still be largely inhibited by prices offered (or demanded) for tap lines that burden already-thin profit margins of emerging breweries. Yet, the fact that a craft brewer triggered an investigation into its own craft distributor indicates that a law meant in part to protect small companies from allegedly law-breaking “big guys” may in actuality be causing unintended consequences. One wonders whether emerging entities are most in need of market freedom to purchase space in a crowded field. Further, roles have been reversed: entities that typically resist what they consider byzantine restrictions are now essentially calling for stricter government enforcement. All of which is to say that it’s complicated: a simple pro/anti-regulation dichotomy is, as always, insufficient.
But fundamentally, when presented with a complicated background and a choice between a less-fettered market (with its risks) and rather ironic, sporadic and ineffectual enforcement of old laws with antiquated origins (by an agency that has regulated hesitantly in the past), one is hard-pressed to gleefully embrace the latter. The Suffolk Superior Court’s Chapter 30A review of the ABCC decision will, therefore, make for interesting reading. Arbitrary and capricious? Perhaps.
Eric Hawkins is an associate who works on a diverse range of matters within WilmerHale’s Litigation/Controversy Department. Prior to joining WilmerHale, Mr. Hawkins worked in the Administrative Law division of the Massachusetts Attorney General’s Office, where he researched, drafted and argued motions on behalf of various Massachusetts agencies facing administrative appeals and constitutional challenges. Throughout law school, Mr. Hawkins worked part time as a Brewery Ambassador for the Samuel Adams brewery in Boston.