Fanning the Flames: The Freedom Project Blog


In Demand: News Literacy

By Shawn Healy
The collapse of the economic model for print journalism has been well-documented here and elsewhere. Simply stated, readers have migrated online, and the advertising that subsidizes traditional reporting has failed to follow, at least on a proportionate scale. As Thomas Mitchell of the Las Vegas Review Journal often writes, “information wants to be free,” but “reporters want to be paid.” As a result, major dailies have scaled back on staff and printed pages, and some have stopped the presses altogether.

Band-aids of every variety have since surfaced, from a non-profit model financed by an endowment to micropayments for pageclicks similar to Apple’s iTunes. News aggregators like the Huffington Post, the Drudge Report, and Real Clear Politics have evolved alongside local beat reporting (see the Chi-Town Daily News) and investigative journalism on a national scale (see Pro Publica). Each is elevated as a potential panacea, but I am increasingly convinced that a single solution is unworkable. Rather, an all-of-the-above approach is a more likely indicator of journalism’s future.

Moreover, missing from these conversations is a focus on the counterpart to the form and quality of media offerings, namely those who did, do, or will consume these products. Any basic economics student knows that price and quantity are determined by the intersection of supply and demand curves. While the supply side has been analyzed to death, demand for media has been all-but-ignored.

Let's begin with an analysis of the problem. David Mindich, in his 2005 book Tuned Out, makes a case that two generations of Americans have literally abandoned media consumption as a daily habit. True, intensity of attention to media grows over time in proportion to the responsibilities we assume as adults, but never in recorded history have we witnessed such a drop-off between generational cohorts. Media habits are learned at a young age, and the numbers suggest that they are too often ignored in today’s classrooms and kitchen tables.

According to a 2007 Shorenstein Center study titled “Young People and the News,” a small minority read newspapers (9%) or tune into radio (25%) or TV newscasts (31%) on a daily basis. A full 46% never or hardly at all pick up a daily paper. News consumption, if it occurs at all, is often accidental; a 60 second news brief at the top of the hour on a local top 40 station, for example. Additionally, the Internet, while a regular drain of young peoples’ time, is a daily news portal for only 20% of adolescents, and nearly a third (32%) never use the Web as a source for news.

More recently, a 15-year old intern in London “shook the world” by filing a report to his bosses at Morgan Stanley. Mathew Robson wrote, “No teenager that I know of regularly reads a newspaper, as most do not have the time and cannot be bothered to read pages and pages of text while they could watch the news summarized on the internet or on TV.” His frank assessment encompasses all forms of traditional media, and though largely anecdotal, bears an uncomfortable truth that the industry has to date been loathe to address.

Enter the news literacy movement. Situated in the School of Journalism at Stony Brook University and the DC-based News Literacy Project, these entities, according to Stony Brook Dean Howard Schneider, seek to nurture “a generation of news consumers who would learn how to distinguish for themselves between news and propaganda, verification and mere assertion, evidence and inference, bias and fairness, and between media bias and audience bias—consumers, who could differentiate between raw, unmediated information coursing through the Internet and independent, verified journalism.”

The movement is attempting to combat young peoples’ assumption that “If the news is important, it will find me.” The so-called “9-11 Generation,” and more recently the “Obama Generation,” is socially and politically engaged, yet lacks the basic information for more substantive civic engagement. In a Columbia Journalism Review article titled “Leap of Faith,” Megan Garber argues that news outlets themselves need to join the effort to help their cause and combat blind faith. This means meeting young people “where they are,” namely in classrooms and on the Web.

More than anything else, news literacy is “distinguishing—and appreciating—excellence.” It requires confronting consumers’ cynicism about media, where only a fifth of Americans believe “most or all” reporting. The industry must push back against ideological criticism on the left (“the corporate media”) and the right (“the liberal media”), transcending an industrywide reluctance to trumpet its own cause. This means articulating the importance of a free press to the very sustenance of democracy. Garber writes, “Citizenship relies on commonly accepted modes of taking in and talking about the world—on a shared vernacular that is premised on a shared reality.”

By bringing the demand side of the equation to the discussion taking place at the proverbial altar of traditional media, the news literacy movement is performing a great service in promoting quality journalism and savvy consumers. Here’s hoping that the sick patient can help save itself.


Restrictions on religious publications considered

By Jamie Loo
Federal prisoners may lose access to religious materials under proposed rule

By Jamie Loo
First Amendment reporter

The Federal Bureau of Prisons is considering a new rule that could severely limit what religious publications inmates have access to, according to the proposal’s opponents.

The chapel library materials rule would exclude materials that “could incite, promote, or otherwise suggest the commission of violence or criminal activity” from prison chapel libraries. This includes any materials which advocate or foster “violence, vengeance, or hatred toward particular religious, racial, or ethnic groups” or that urge “the overthrow or destruction of the United States.”

Bureau of Prisons spokesperson, Traci Billingsley, said the rule’s intent is to clarify the requirements in the Second Chance Act of 2007 and to notify inmates that certain materials could be excluded from chapel libraries. The Second Chance Act, which authorizes funding for prisoner re-entry services and programs to reduce recidivism, allows the Bureau of Prisons to restrict materials “that seek to incite, promote or otherwise suggest the commission of violence or criminal activity.”

In its proposal, the Bureau of prisons says that the rule addresses concerns raised in a 2004 report from the Office of the Inspector General. The report indicated that prisons could become recruitment sites for militant Islamic terrorist groups and other religious groups, and provided recommendations to prevent this from happening.

The Bureau of Prisons argues that they “must ensure that materials provided to inmates will not promote violence or criminal activity, thereby endangering the safety, security, and good order of Bureau facilities, and the protection of the public.”

“The rule only applies to library materials and not materials purchased by inmates for their personal property,” Billingsley said.

But opponents say the language creates a broad and overreaching policy that would prevent inmates from having major religious texts, and violate their constitutional right to practice religion.

The American Civil Liberties Union along with several religious groups have filed formal opposition to the chapel library materials rule because they say it would allow federal prison administration to ban religious material that is protected in the Second Chance Act.

Banning the Bible?

David Shapiro, staff attorney with the ACLU’s National Prison Project, said the proposal’s wording is dangerous because it uses the words “could…suggest” violent or criminal activity instead of “seek,” which is in the language of the Second Chance Act.

In its formal opposition, the ACLU pointed out violent passages in the Bible such as “then you should bring forth to your gates that man or woman who has done this evil thing, and you shall stone that man or woman to death with stones,” and the Quran, “The punishment of those who wage war against Allah and His Messenger, and strive with might and main for mischief through the land is: execution, or crucifixion, or the cutting off of hands and feet…” Shapiro said under the Bureau of Prisons proposal, entire publications that don’t seek to incite or promote violence might be banned because they could theoretically suggest it.

“These are religious texts that are core to people’s religious expression,” Shapiro said.

The ACLU also noted that Martin Luther King Jr.,’s “Letter from a Birmingham Jail”; could be banned under this rule because of passages such as: “You express a great deal of anxiety over our willingness to break laws…I would agree with St. Augustine that an ‘unjust law is no law at all.’”

Billingsley said although the Bureau recognizes inmates’ access to religious materials is important the Bureau of Prisons must comply with the requirements in the Second Chance Act.

This isn’t the first time the Bureau of Prisons has tried to place restrictions on chapel libraries. Several years ago, the Bureau used the 2004 inspector general’s report to create the Standardized Chapel Library Project, a list of pre-approved religious materials. In the spring of 2007, chaplains and prison staff began removing content from chapel libraries that were not on the list. The program was discontinued and the materials returned after public outcry from religious and civil liberties groups, and members of Congress.

Martin Garnar, chair of the American Library Association’s Information Freedom Committee, said the proposed chapel library materials rule seems like “a clear violation of the First Amendment and suppression of religion.” The ALA is supporting the ACLU and other groups in their opposition. Garnar said the ALA wants some safeguards in the wording so that inmates are not prevented from having access to religious materials.

The ALA’s formal comments also pointed out that work “perceived” to encourage an overthrow or destruction of the U.S. government is not in the Second Chance Act and that it “strikes at core political speech protected by the First Amendment, which protects the freedom to criticize the government, even to the point of saying that the government should not exist.”

Current policies

The policies and restrictions on what inmates can access through libraries or receive in the mail are different depending on the jurisdiction and type of facility. Mail in prisons is monitored by prison staff.

The Federal Bureau of Prisons has policies based on the facility’s level of security. Wardens in federal facilities can only reject a publication if “it is detrimental to the security, good order, or discipline of the institution or if it might facilitate criminal activity.” For example, publications with instructions on how to make bombs or weapons, manufacturing drugs or alcohol, or encourages criminal activity are prohibited. The Bureau’s policy also says that a warden cannot make a banned publications list, and must review a publication prior to rejection.

Januari Smith, Illinois Department of Corrections spokesperson said the state doesn’t have a general policy for publications. She said each facility has its own publication review committee that decides what is allowed and what isn’t allowed in facilities. She said the standards can vary based on the prison’s security level, and committees tend to use general guidelines such as excluding pornographic material or materials that may incite violence.

Other reading restrictions

The types of libraries available in correctional facilities vary from recreational use libraries, to chapel and law libraries. Although it doesn’t appear that prisons keep a banned titles list, inmates face other challenges accessing library materials.

Shaena Fazal, director of the John Howard Association of Illinois’ Long Term Prisoner Policy Project, said prison libraries have diverse collections ranging from romance novels to science-fiction books. The John Howard Association is a group of volunteers and staff that provide oversight of correctional facilities through visits and information dissemination. Garnar said legal materials, especially those on the topic of appeals, and educational materials are also popular in prison libraries. Fazal and Garnar said most prison library materials are old and out of date because the libraries are not well funded and rely on donations from the outside world or from inmates. They said the books tend to be old paperbacks because many prisons prohibit hard cover books. Based on her experience with Illinois jails and prisons, Fazal said some facilities prohibit the hard cover books because of fear that shanks or other weapons can be hidden in the bindings.

With the lack of funding and demand for books, many prisoner book programs have been created to meet the need. The Prison Book Program, based in Quincy, Mass., receives book requests from inmates and sends them donated books. The program serves all but five states.

Prison Book Program treasurer, Eric Goossens, said they receive 200 book requests a week and sent out 5,510 book packages in 2008. Dictionaries are their number one request, he said, and inmates also frequently ask for ethnic history books, GED books and self-help books. As a policy, the Prison Book Program will not send books on crime or books that promote discrimination.

Goossens said he isn’t aware of any specific titles that have been banned but some prisons won’t allow certain categories such as current events, politics, or books that teach a trade such as auto mechanics or carpentry. Sometimes a picture on a book cover will trigger a rejection.

“If it’s a Western with a guy carrying a shotgun, it can’t get in (some prisons),” he said.

Goossens said American Sign Language books have also been rejected, which they’ve speculated is so that gang members can’t communicate with each other in prison. He said one Kansas prison doesn’t allow books that teach a foreign language, which may also have to do with keeping inmates from communicating.

Book rejections are pretty rare, and usually occur because an inmate has been transferred or released, Goossens said. When books are sent back, he said the prisons normally don’t give their reasons aside from prohibiting certain categories. In the John Howard Association’s book club experience, Fazal said she only remembers one book that was rejected. Fazal said several years ago, a jail warden wouldn’t let them send a biography of Che Guevara to an inmate. Shapiro said some inmates have trouble receiving Prison Legal News, a magazine on prisoner’s rights and prison legal issues.

Last year, a federal super maximum security prison in Florence, Colo., denied an inmate’s two requests for President Barack Obama’s books, “Dreams from My Father” and “The Audacity of Hope.” The prisoner, Ahmed Omar Abu Ali, is serving time for plotting to assassinate President George W. Bush. Prison officials determined that passages in both books contained information that could damage national security, according to media reports. The Bureau of Prisons later granted Ali’s request.

Goossens said some states, such as Michigan, only allow materials sent directly from publishers. He said they’re also starting to see more prisons that will only accept new books. The poor condition of used books or dust in old books, which could cause allergies, have been cited as reasons for the policy. Goossens said it’s possible that the new books policy is a control issue, which may deter people from sending books. The mailroom staff at prisons has to process all of this mail, he said, and less books means less work for this staff. Shapiro said sometimes it comes down to who is in the mailroom and what one staff member feels “poses a security threat that somehow justifies censorship.”

Goossens said the Prison Book Program doesn’t help stock prison libraries and they often hear from prison librarians with little, or zero funding to buy new material for their libraries. He said it’s frustrating because prison library funding should be an important part of the facility’s budget. Access to good libraries means that prisoners can educate themselves to become more productive members of society upon their release, Goossens said, and hopefully not return to the prison system.

Garnar echoed Goossens, and said with restricted access to the phone, Internet and other forms of communication, prison libraries are one of the few ways that prisoners can connect with the outside world. One of the challenges is that because prisoners lose many of their rights as incarcerated individuals, Garnar said it’s not always clear what their reading rights are. He said the ALA is in the process of working on a more comprehensive statement that addresses the issues prison libraries face.

“We know there are challenges and we want to support prison librarians, and inmates to have access to information that they’re legally allowed to have,” Garnar said.

SIDEBAR: Prison censorship

Prisoners face constitutional rights issues beyond the publications they can receive. David Shapiro, staff attorney with the American Civil Liberties Union’s National Prison Project, said they’re currently litigating a case in Virginia where a mother’s letter to her incarcerated son was heavily redacted because it contained Bible passages. Many ACLU chapters are also involved in pen pal service litigation, Shapiro said. He said pen pal service programs, which connect inmates with pen pals, are banned in some prisons.

The Seventh Circuit Court of Appeals recently upheld a ban on face-to-face media interviews by death row inmates. Attorney General John Ashcroft created the policy after Oklahoma City bomber Timothy McVeigh did an interview with “60 Minutes” in 2000 because Ashcroft didn’t want to see criminals like McVeigh irresponsibly glamorized in the media. The court found that the equal protection guarantee in the constitution doesn’t entitle all federal prisoners to the same treatment. In the decision, Judge Frank H. Easterbrook cited U.S. Supreme Court precedents in two cases where the justices found that “the principal reason for limiting press contacts is the maintenance of security; this implies that the greater need for security at a given prison (or unit within a prison), the easier it is to justify limits on meetings between reporters and prisoners.”

In May, the U.S. Supreme Court refused to hear a case from a Pennsylvania inmate whose prison discontinued a music program after it was highlighted in a VH-1 documentary series. Graterford State Prison had music program that allowed inmates to play in bands. After VH-1’s documentaries on prison bands aired in Oct. 2002, Pennsylvania Gov. Mark Schweitzer ordered the elimination of the program. Richard Glenn Young, an inmate who played in the prison band, took the case to court arguing that it was a violation of prisoners’ rights to free expression. Lower district courts found that the program was legitimately shut down because of safety and security concerns regarding inmate supervision.

--Report compiled with help from the Associated Press

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Cap’n Kirk Reporting for Duty

By Shawn Healy
On Monday, Congressman Mark Kirk (R-IL) ended months of speculation over whether or not he would seek a promotion from the House seat he has held for five terms to the lofty confines of the stately Senate. Before entering the race, Kirk waited for the field to clear and yield a legitimate shot for a moderate Republican to steal the seat held previously by President Obama.

Kirk’s upsides are many. He won election and re-election in a Democratic-leaning north suburban district of Chicago that was carried by Gore in 2000, Kerry in 2004, and Obama in 2008. Last November, he claimed victory with 53% of the vote while Obama drew 61% atop the ticket.

He is also a formidable fundraiser, generating $5 million in the last cycle (a rough one for his fellow Republicans) with little help from the national party, while facing a deluge of negative advertising from his opponent, the Democratic Congressional Campaign Committee, and 527 groups to the tune of $7 million. In the current cycle, he has raised $1.2 million for his House seat that is immediately transferable to the Senate race. This figure is only slightly behind the take of his probable Democratic opponent, Illinois State Treasurer Alexi Giannoulias ($1.6). Kirk predicts that both sides will need to raise up to $20 million by Election Day next November.

The state and national Republican delegation has already coalesced behind Kirk. This includes former Illinois Governors Edgar and Thompson, current State Senate Minority Leader Christine Radogno, Illinois House Leader Tom Cross, National Committeeman Pat Brady, and U.S. Senators McConnell and McCain. He will face token opposition from retired downstate Judge Don Lowery and Matteson publisher Eric Wallace, among others, but the February primary promises to be little more than a coronation.

This gets to the crux of the story. Kirk is a moderate Republican with a socially-moderate-to-liberal voting record. Co-chair of the centrist Tuesday Group, he is pro-choice, pro-gun control, and even in favor of federal hate crime protections for homosexuals. While Kirk has consistently opposed Obama’s economic policies since January, he did stand as one of eight Republicans, and the only in the Midwest, to vote in favor of the House cap and trade legislation to regulate climate emissions.

His defense rests on the notion that the legislation will reduce domestic dependence on foreign oil, yet conservatives consider it anathema to their cause, claiming the legislation would unleash the largest across-the-board tax increase in history. Given that 60 Democrats defected in the 219-212 vote, the bill was doomed had Republicans held the fort. Kirk and seven others seeped through the cracks, and the legislation now stands before a weary Senate with President Obama eager to offer his signature.

Conservatives have since labeled him with the moniker “Cap’n Kirk,” a play off of his distinguished service as a U.S. Naval Intelligence Officer as recent as 2008 in Afghanistan. The red meat portion of the Republican Party base is not known for its short memory, and Kirk must find a way to assuage their concerns in a primary season typically dominated by ideologues on each respective side of the aisle.

Assuming that Kirk survives, he has a betting chance to wrestle away a Senate seat in a purple state that has trended blue since 1998. By positioning himself as a centrist in tune with state voters’ values and removed from the scandalous Blagojevich years, Kirk becomes the antidote to candidates either tied to the disgraced governor, the pay-to-play culture that cripples the state., and the increasingly unpopular economic policies of the current president.


Cokie Roberts: Mother, Daughter, Sister, Woman, Journalist

By Anonymous
At the Harold Washington Library in Chicago on Monday, July 13, Cokie Roberts, distinguished author and political pundit, was interviewed by PBS’s Elizabeth Brackett, a winner of both the Peabody and Emmy awards.  In celebration of the 10th anniversary of Ms. Roberts’ book, We Are Our Mothers’ Daughters, the interview centered on the groundbreaking roles of women in a variety of fields and their positive effects on many institutions in this country and across the world.   

Starting off the discussion, Elizabeth Brackett asked Cokie Roberts about the place for women in America.  Ms. Roberts’ answer was that women are present “everywhere” in society and are a robust, effective group. Brackett then moved on to more personal questions, asking how Roberts was able to balance both career and family over the years. Roberts was very candid, pointing out that in the 1950s, she was supposed to “marry well”—meaning marry a “good guy”—and in the 1960s, she only though of herself as “wife” after getting married at the age of 23.            

The discussion became more intimate as Cokie Roberts delved into her own past with her parents and sister. She mentioned that, although women were not considered politically equal to men when she was younger, her mother, Lindy Boggs, was able to run her father’s congressional campaign (Haley Boggs was a Democratic representative from Louisiana from 1941-1972) and actually took his Congressional seat from 1973-1991 after his untimely, tragic death in an airplane accident in 1972.   Roberts’ sister, also a very accomplished woman, succumbed to cancer at age 51, the second major loss in Roberts’ life.   Asked how she had endured both losses, Roberts became emotional, saying that her Catholic faith had helped her endure.   She also spoke about the nuns who had been responsible for much of her education while growing up in New Orleans and called them strong and inspiring women. 

The discussion reached a climax when Roberts touched on the need for balance and the epiphany that helped her grow to be both “wife” and professional woman.   After graduating in 1964 from Wellesley College with a degree in Political Science, she said, “As a young woman, I had good job after college, [working] for a production company.”  At 21 she was anchoring a television show in which U.S. policymakers interacted with foreign journalists.  As she said, “At that age I was too young and naïve to be afraid.”  Interestingly, she never thought of keeping her production job at the time after she was married, nor was she encouraged to do so.   In fact, she was often told that one reason she should not be hired for some of the positions she might have wanted was that men were concerned that other men might have to work for her.  Later, while talking about her own experiences as a professional in those early years, she spoke of men’s “charming lines” while they rudely and aggressively put their “hands on women’s knees.”   

After she became a mother, Cokie was no longer first of all a wife; she considered herself to be foremost a mother. She became subtly emotional as she spoke about being a mother for the first time: “From the time they were born, I saw myself as a mother.”  Interestingly, in her opinion, a dividing line exists between mothers and fathers on this issue: “Some fathers first see themselves as fathers, but not most.” 

Moving on to U.S. politics, Brackett asked Roberts about her thoughts of soon-to-be ex-Republican Governor of Alaska, Sarah Palin, and Democratic ex-Senator and now Secretary of State, Hillary Clinton—particularly the role of the media in Clinton’s historic presidential race for the Democratic nomination and Palin’s equally historic Republican vice-presidential candidacy in the 2008 election. 

First, Roberts heartily condemned the media’s “sexist” treatment of the two lightning-rod women, specifically saying that there was “blatant sexism towards Clinton and abuse of Palin.” She called it “depressing” and scoffed at the media’s supposed interest in who would take care of Palin’s children.  She pointed out that President Obama never was asked that question while he was running for the Democratic nomination and presidential election. She noted that Charlie Gibson of ABC had asked Palin about who would take care of the kids—prompting Roberts to simply say that the “woman is the mother and it’s her own business.”  Although Roberts felt strongly that Palin had a real “problem” now because of her resignation from her current position, she pointed out that only in American can one constantly resurrect oneself. 

In reference to Clinton, she was equally appalled by Clinton’s treatment in the press, including some of the descriptions of her, which she considered forms of “sexism.” She pointed out the dilemma female politicians faced: “they couldn’t [criticize] it, since they’d be called cry-babies.”  She praised SNL for finally pointing out the blatant sexism leveled against Clinton and the difference between their treatment of her and that of Obama.       

In reference to Judge Sonia Sotomayor’s ongoing Supreme Court confirmation hearings, Roberts expressed strong support for her and extolled her controversial “wise Latina woman” quotation, eliciting both laughter and applause from the crowd. Roberts emphasized that diverse backgrounds are essential in America and that women “bring different sensibilities.”  She noted that public institutions should reflect the people they serve. 

In her concluding remarks, Cokie Roberts exclaimed, “I want to see a female president before I die.” She believes that it will take the right woman at the right time, and that it will happen, though perhaps not in her lifetime.  She also expressed a fervent hope that one day, as with young African-Americans at this time, girls also will one day be told that they too can be the President of the United States and provided with an inspiring role model.     


Judge denies class action status for disabled housing rights lawsuit

By Jamie Loo
First Amendment reporter

Housing rights for the developmentally disabled in Illinois won’t change for now, after a court ruling that dismisses the class action portion of the Ligas v. Maram lawsuit.

U.S. District Court Judge James Holderman, rejected an agreement between the plaintiffs and defendants, that would have required the state to create a service plan for all individuals with developmental disabilities before enrolling them in a private Intermediate Care Facility (ICF) or a waiver-funded community based program. In his ruling the judge wrote that the agreement was much “broader than was necessary to address the needs” of the class members. Holderman also dismissed the case’s class action status because the definition for class members was too broad and the plaintiffs in the case didn’t have “sufficient commonality.”

For some, the ruling is a step back in a case that could have expanded or created new programs for the developmentally disabled in housing placement. The plaintiffs argued that many developmentally disabled people who are eligible for Community Integrated Living Arrangements (CILA) are not being placed in these settings because the services they need are not available in current programs, or there aren’t enough spaces in current community programs to fill the need.

But for those associated with intermediate care facilities, the decision is a victory. With the state’s budget crisis, ICF supporters felt that a court order to funnel more money to community living arrangements could jeopardize services and funding at institutions. They feared this gradual shift could lead to some institutions closings, where many developmentally disabled residents have thrived while receiving the care they need.

Although the class action case cannot move forward, the nine plaintiffs can file individual lawsuits. Barry Taylor, counsel for the plaintiffs and the legal director for Equip for Equality, a non-profit advocacy group for the developmentally disabled, said the case hasn’t been dismissed and that the court still has to determine whether Illinois is in compliance with federal law. A status hearing will be held on July 30.

One of the plaintiffs’ arguments was that Illinois isn’t in compliance with the U.S. Supreme Court’s decision in Olmstead v. L.C. The Supreme Court ruled that unnecessarily institutionalizing a person with developmental disabilities is discrimination under the Americans with Disabilities Act if that person could live in the community with some support. The ruling required states to create comprehensive plans to evaluate those who are, or who are at risk of, being institutionalized unnecessarily.

Taylor said Illinois continues to rank last among the states in providing community based living options for the developmentally disabled. He said the developmentally disabled have a civil right to choose where they live and that the state must grant these rights, under the Olmstead ruling. Although the class decertification is disappointing, Taylor said, the groups involved in the case will keep pushing for change to make more housing options available to the developmentally disabled.

“This outdated system does not serve our friends, neighbors, family members and colleagues with developmental disabilities,” Taylor said. “The struggle to enforce their civil rights did not end with this ruling.”

William Choslovsky, an attorney who represented a group of developmentally disabled people on a waiting list for the Misericordia Heart of Mercy facility, said they are pleased that the judge listened to their arguments against the settlement. In addition to their dissenting comments from a hearing on July 1, Holderman received 2,500 written objections to the agreement. Choslovsky said the ruling recognizes that the needs of the disabled are too varied to be lumped together in a one size fits all solution. He said “expanding choice for some should not come at the expense of eliminating choice for others.”

“The judge’s decision demonstrates that what is lacking most in Illinois is not choice, but rather funding for all the existing choices, be they for small homes, large homes, or something in between,” Choslovsky said. “Illinois’ current budget crisis makes it painfully clear that everyone’s focus should be on making the disability pie bigger for all –not robbing Peter to pay Paul.”

To read coverage of the Ligas v. Maram fairness hearing and for more background on the case, click on the July 2009 archive link and go to the July 2, 2009 blog post, “Housing Rights Choice Rests with Judge.”

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Lots of Smoke, Little Fire

By Shawn Healy
They’re at it again. In the midst of a devastating economic recession, and on the heels of a budget-busting stimulus package and annual spending plan, our elected officials in Washington have decided to put national health care and cap and trade legislation on hold to deal with more pressing matters, specifically their biannual attempt to diminish the 45 words of the First Amendment via a flag desecration amendment.

Twenty-five senators have joined Senator David Vitter (R-LA) as co-sponsors of Senate Joint Resolution 15. Three of them are Democrats, Debbie Stabenow of Michigan, John Rockefeller of West Virginia, and Evan Bayh of Indiana, nixing the characterization as a partisan ploy. If passed by a two-thirds vote of both the House and the Senate, and then ratified by three-quarters of all states, the 28th Amendment would read: “The Congress shall have power to prohibit the physical desecration of the flag of the United States.”

Eugene Volokh, a UCLA law professor, demolished the case of those who argue that judicial activists have “twisted the original meaning of the First Amendment to protect such symbolic acts as flag burning.” Citing English common law, Blackstone’s “Commentaries,” James Madison’s original draft of the First Amendment, and early 20th Century case law, Volokh makes a compelling argument that symbolic expression was equated with speech from the outset.

This assumption taken as a given, we turn next to whether flag desecration constitutes symbolic expression protected by the First Amendment. The 1968 Supreme Court case U.S. v. O’Brien set forth a test by which we may judge whether flag desecration prohibitions abridge freedom of speech. It centered on a Vietnam era law that prohibited the destruction of draft cards. Congress defended its merits on grounds that they conveyed critical information between the government and its citizens during wartime mobilization.

The Court sustained the law, and held other instances of “speech plus,” which contain speech and non-speech elements, to the following parameters. One, the government regulation must be within its constitutional power. Two, it must further an important or substantive government interest. Three, the regulation is not related to the suppression of expression. Four, the incidental impact on expression is no greater than necessary to further that interest.

The O’Brien test was considered by the Supreme Court in the context of flag desecration in the 1989 case Texas v. Johnson. At issue was a Texas law that forbade defacement or damage to the American flag with knowledge that it will “seriously offend one or more persons likely to observe or discover his action.” The 5-4 majority found insufficient the state’s interest in preserving the flag as a symbol of nationhood and national unity.

Specifically, it failed the third prong of the O’Brien test prohibiting the suppression of expression. Those who wished to burn flags during “respectful ceremonies” were free to do so at will, yet the same action as a form of protest was criminalized. Congress answered immediately with federal legislation to replace the fallen state statutes, but one year later the Court struck down this law too under the Johnson precedent in U.S. v. Eichman.

The Eichman decision was the final nail in the coffin for those who would prohibit flag desecration by statutory means, thus the regularly scheduled pony show of patriotism otherwise known as the flag desecration amendment. Critics were alarmed during their second-to-last attempt three years ago when 66 senators voted in favor of the amendment, but its likelihood of passage was always slim. Then-Minority Leader Harry Reid was able to pare off enough Democratic votes to protect those in his party in the midst if a tough re-election battle in a swing state cognizant of the fact that he would peel them away one-by-one should the required two-thirds majority materialize.

Given the now solid Democratic majorities in both houses of Congress, this shell game installment will also come up empty, and it thus begs to question why our elected officials continue to waste their time and ours while they go about the “people’s business.”


President Lincoln: Contradictions on Race

By Anonymous

President Lincoln: Contradictions on Race



By: Andrew Miller



       As part of the commemoration of the Lincoln Bicentennial, Dr.  Henry Louis  Gates Jr., an African-American scholar from Harvard, specializing in Black History, and author of The Signifying Monkey, discussed Lincoln's views on race with Rick Kogan, a Chicago Tribune reporter, at the Pritzker Auditorium at the Harold Washington Library Center in Chicago.  According to Dr. Gates, Lincoln had a surprisingly complex, even a contradictory, view on Black people--a view that might have culminated in his being "shocked by the first American black President, Barack Obama."   

          Representative Jesse Jackson Jr. introduced the evening’s program to a very diverse audience, filled with young and old as well as white and African-American.  Dr. Gates began on a personal note by reminiscing about his dead grandfather's funeral where his father cried. He showed pictures of his ancestors, some of whom were partially white due to their mothers' sexual bonds with their white slave masters. He referred to an obituary of one of his black ancestors, which described her as "an estimable, colored woman."

        Dr. Gates debunked several common myths, including "my grandmother was a native."  He emphatically stated that an estimated 30% of black men have a white background, adding, almost wistfully, that black people have fantasized too much regarding supposed Native-American backgrounds: "Fewer than 5% of black people have Native -American backgrounds. “

       In regards to the Emancipation Proclamation, Dr. Gates was equally strong, lamenting and lambasting its minuscule effect in helping black slaves. Specifically, the Federal government only freed 500,000 black slaves out of a staggering 3.9 million black slaves with this policy.

          Turning his attention to black involvement in American wars, Dr. Gates extolled the heroism of black soldiers. According to Gates, 5,000 black men fought bravely in the American Revolution, including some of his own ancestors. He mused--and seemed amused--about his own participation in a patriotic organization, the Sons of the American Revolution, calling it the "whitest group."

           In regards to his family history, Dr. Gates's mother had given him a pithy answer to his childhood question: "You are from people." He noted that one of his ancestors was the first black lawyer in West Virginia.  To Gates, respect for one's own heritage is crucial and "satisfying" as one seeks answers.   

           Talking about the current state of black America, Dr. Gates emphasized that, in his opinion, education has sadly and pejoratively become "white." He believes that affirmative action has been beneficial for many black people, including him.   Dr.  Gates lamented the lack of black people at Yale, where he received his B.A. in history. He praised the rise of the black middle class since 1968, but noted that 37% ofchildren in 1968 were at poverty level, and that percentage has not improved significantly.

         Later, while taking questions from the audience, a Rick Kogan reminisced about one African-American girl in an inner-city Chicago school who simply drew a tree when she and her classmates were asked to write what they dreamed of for their futures. At first the audience was perplexed, but then they realized the touching simplicity of the story when the man spoke about leaving the school and not seeing a single tree outside.

         Regarding President Lincoln, Dr. Gates painted a complex, nuanced, even contradictory relationship between the President who "freed" the slaves and the black slaves themselves--the same kind of relationship that has often characterized race in America. Dr. Gates said that the president's supposed support for equality for black people was actually false, or, at best, misleading. Yes, he opposed slavery, but, ironically, he also wanted to colonize the newly freed slaves and send them back to Africa.

         Although Lincoln slowly began to respect the intellectual level of a select few black people, including Frederick Douglas, he dismissed most of them. And while he was impressed with black soldiers' involvement in the American Revolution, he ironically opposed black people from fighting for the Union; however, he reluctantly gave his approval only after the Union was desperate for more manpower. Much to his surprise, the 200,000 black soldiers, or "black warriors" as he called them, did not just do a satisfactory job; according to Dr. Gates, they helped turn the tide in favor of the Union.

          Towards the end of President Lincoln's life, as Dr. Gates pointed out, Lincoln actually seemed to shift his beliefs, making a speech in which he endorsed the idea of his "200,000 black warriors and very intelligent Negroes [being able] to vote." Interestingly, one man, horrified when he heard his speech, would later play another crucial role in history: John Wilkes Booth.   

           Dr. Gates was critical of black people's compliance in the Lincoln myth, saying that, besides Jesus Christ, Lincoln is the only white man on black people's walls.  Even Booker T. Washington had called President Lincoln a "pure white man." In 1876, Frederick Douglas, the first black person to meet with President Lincoln, controversially said that Lincoln was "the white man's president," for he wanted to save the Union first, not the slaves.  

           Overall, Dr. Gates' position is that perpetuating the Lincoln myth does more harm than good and that the truth is more valuable than long-held fiction, no matter how dear to the hearts of the American people.    



Publish and Possibly Perish

By Timothy J. McNulty
The question of publishing everything as soon as soon as it happens can be very tricky, especially when it comes to life and freedom.

For the last several weeks, many have criticized those in the news media who knew of the kidnapping of New York Times reporter David Rohde in Afghanistan and kept that knowledge secret for seven months until after he and an Afghan translator managed to escape.

Rohde’s editors and family believed that keeping news of his kidnapping away from the public increased his chances of not being harmed and of eventually being released. They feared that publicity would make him more valuable to his Taliban captors and, if it came about, would impede any negotiations for his freedom.

Critics accused the Times and anyone else in the news media aware of the kidnapping of hypocrisy, of having a double-standard, claiming that freedom of the press and speech is paramount to their work yet,when one of their own was in jeopardy, the journalists willingly engaged in self-censorship.

Many of Rohde’s colleagues and most reporters and editors were not aware of the abduction, though I knew of Rohde's kidnapping as did a good number of reporters and editors around the country and the globe, and (almost) everyone kept it secret at the request of the paper and the family.

Even with that tacit agreement in place among colleagues (and including government officials and the military), a week ago, the Times ran a story about how news is increasingly hard to contain, even if the news media itself is willing to keep it quiet.

Independent posters on Wikipedia repeatedly tried to include information on web pages as early as three days after Rohde was abducted. But because the Times requested and Wikipedia accepted, top Wikipedia editors erased word of the kidnapping more than a dozen times.

The Times story also noted that because it is common for even the most remote abductors to be connected to the Internet, editors also deleted the name of Rohde’s former employer, the Christian Science Monitor, because it included the word “Christian.”

The increasing danger to journalists and the issue of what should be public knowledge and when, is a troubling topic that has become more common in the past few years.

In the past, journalists covering one side or another in a conflict always faced the possibility of being seen as a combatant by the opposing force. But much of the time, enemies recognized that journalists could be used as a weapon, creating public sympathy as well as chronicling events.

In many conflicts, the neutral nature of journalists made it possible for reporters and photographers to cover both sides, crossing lines whenever it was physically safe. Still, the danger of being seen as a bargaining chip remained real. The ordeal of Associated Press correspondent Terry Anderson, who was held for seven years in Lebanon in the 1980s is among several chilling cases. Even more is the murder of Wall Street Journal correspondent Daniel Pearl who was beheaded by his captors in Pakistan.

Two years ago, a Chicago Tribune correspondent, Paul Salopek, was captured by the Sudan Liberation Army, former rebels who switched sides to the government, in Darfur and handed him over to the Sudanese military. Once senior editors at the paper and the magazine became aware of the abduction (the correspondent was on leave from the paper and on a freelance assignment for National Geographic), they (I was one of them) chose to try to win the correspondent’s release without publicity.

A New York Times correspondent in the region and a few other correspondents, editors and friends knew of Salopek’s capture and also honored the decision.
Internally at the newspaper, we agreed that as soon as there was any public acknowledgment of Salopek’s capture by the Sudanese government, we would report it and continue reporting it as a news story.

Weeks later, when the government officially charged Salopek in an open court in Darfur, the newspaper had a story prepared and ran it immediately. In Salopek’s case, it took another three weeks of round-the-clock negotiations between Chicago, Khartoum, Washington and eventually, with the aid of former New Mexico governor Bill Richardson, the president of Sudan allowed the correspondent to leave the country.
As the Times noted in Rohde's case, the danger of publicity is that the kidnapped become more valuable and less likely to be released. That was and still is true of reporters who have been held in Iraq.

Despite the charge of a double-standard, holding back information or news of a kidnapping is not restricted to just journalists protecting journalists. Throughout the years of the American occupation in Iraq there have been kidnappings of soldiers, contractors and aid workers that were not immediately reported for the same reasons the Times cited.

It was and is routine for U.S. and Iraqi officials to request a delay of publication or broadcast of a suspected kidnapping until there is enough information to confirm it or, if officials believed there is a chance of negotiation or a release, to delay the news for days or even weeks.

The issue of life and freedom is too important to jeopardize because of deadlines or timeliness. A delay of such news is not critical in comparison to the threat. Still, withholding news for a few days, and especially for months, can be difficult for journalists who believe that putting light on issues and events is (almost) always preferable than concealing information.

On Sunday, the Times' public editor, Clark Hoyt, wrote about the decision to suppress the news of the kidnapping in a column titled,"Journalistic Ideal, Human Values."

Hoyt noted that in his previous job with the Knight Ridder publishing company in 2005, he asked other news organizations not to report the abduction of a correspondent and photographer in Gaza. They all agreed.

"Dilemmas like the Rohde kidnapping put editors in excruciating positions," wrote Hoyt. The desire to publish versus the safety of the kidnapped, however, is not a hard choice if the options are clear.

Hoyt also recognized that while most news organizations will honor a request to hold off publishing or broadcasting information for a period of time, many individuals and groups are not aware that news media are willing to do that, but only if asked.


A Cook in Congress

By Shawn Healy
The field for Cook County Board President is growing by the day. Yesterday, seven term Congressman Danny Davis (D-Chicago) said that in "all liklihood" he would enter the Democratic primary set for next February. 4th Ward Chicago Alderwoman Toni Preckwinkle has already declared, and Cook County Circuit Clerk Dorothy Brown is mulling a bid. Cook County Sheriff Tom Dart, County Commissioner Larry Suffredin, and County Assessor James Houlihan are also contemplating a run.

In the background is current President Todd Stroger, who entered office through the back door when he was slated to replace his father who suffered a stroke days before the primary, yet concealed his condition and prevailed despite a strong challenge from challenger Forest Claypool. He would go on to beat Republican challenger and current Commissioner Tony Peraica decisively in the November 2006 general election.

Stroger has since presided over a sales tax increase that elevated Cook County's share to the largest in the nation and beat back successive attempts to repeal it, all along feeding a bloated budget. Nepotism remains the rule of the day as the Stroger kin fills more than 20 county offices, drawing combined salaries in excess of $2 million annually. Stroger intends to seek reelection, but it's difficult to see him weather an ultracompetitive primary with such shaky credentials.

Just a month ago, the field appeared set with Claypool expected to take on Stroger, while former Chicago Public Schools CEO Paul Vallas strategized a return to his former haunts, this time as a Republican candidate for Cook County Board President. Within weeks of one another, Vallas said he would remain in New Orleans to continue his work rebuilding the post-Katrina public school system, and Claypool announced that he would leave elected office altogether.

The door left ajar, the field expanded rapidly.

Preckwinkle, an independent alderwoman representing Chicago's South Side since 1991, has repeatedly taken on Mayor Daley over issues ranging from affordable housing, diversity, corruption, and the city's 2016 Olympic bid.

Brown has served as County Clerk since 2000, winning reelection in 2008 despite charges that she fundraised through her staff and used them for campaign functions. She worked previously as Auditor for the Chicago Transit Authority from 1991 to 2000.

Davis was a West Side alderman for eleven years, then a member of the Cook County Board of Commissioners for six before running successfully for the Seventh Congressional District seat in 1996. He has solid roots in city politics, serving on former Mayor Harold Washington's campaign committee and transition team in 1983, and running against Mayor Daley in the 1991 primary.

Chicago is of course not immune from racial politics, and with three formidable African-American contenders set to take on the current black incumbent, the door may be open for a caucasian candidate who could capture the outstanding white ethnic and lakeshore liberal vote. Should Suffredin, Dart, and Houlihan all decide to take the plunge, then all bets are off. Moreover, the cache of a sitting congressman with deep roots in city and county politics along with a solid base on the West Side cannot be underestimated.

Before long, we'll have a better idea of the scope of the field. Petitions will be circulated starting next month. Add the statewide and national races to the mix, and 2010 promises to be a topsy turvy year for local politicos.


Planet Palin

By Shawn Healy
Last August, Senator John McCain plucked political novice Sarah Palin, the upstart Governor of Alaska, from relative obscurity to constitute an unlikely Republican presidential ticket. Her rise was meteoric and instantly embraced by a party base that was never enamored with its less than conservative standard-bearer. The pick of Palin brought tremendous energy to an otherwise lackluster convention, and her vice presidential acceptance speech elevated the self-described "pitbull in lipstick" to iconic status.

However, controversy surfaced even before the convention began. Her teenage daughter Bristol was pregnant, much to the chagrin of the socially-conservative wing of the party that Palin represents, but rather than flee, the base rallied around the hockey mom from the "coolest" state. An ethics probe examined Palin's firing of an Alaska state trooper who was also her former brother-in-law, where her husband Todd intervened at several junctures. Even Palin's wardrobe drew disdain when it became apparent that the Republican National Committee spent hundreds of thousands of dollars outfitting its emergent "queen."

By all counts McCain and Palin had a successful convention, and they enjoyed a bounce in the polls that yielded a fleeting lead of nearly 10 points over Obama-Biden in early September. Soon, Lehman Brothers and the financial sector would collapse, and with it McCain-Palin's hopes of an upset bid. McCain was unfairly portrayed as a stooge of the unpopular incumbent, clueless on the economy and a captive of the neoconservatives who led us into two Middle Eastern wars. Palin didn't help matters with disastrous performances in the national media, specifically in one-on-one interviews with ABC's Charlie Gibson and CBS' Katie Couric.

Palin became the object of slapstick when Saurday Night Live's Tina Fey parodied her on a weekly basis. She would later embrace this humor at her expense, as would thousands of women who wore up-do's, wirerim glasses, and red business suits for Halloween. Palin continued to draw massive crowds and proved an impressive orator, in some cases eclipsing her running mate, but when the dust settled, the two parted ways in a devastating defeat.

Monday morning quarterbacks suggested that McCain may have prevailed if he made a parallel pick to Obama's Joe Biden. Former Massachusetts Governor Mitt Romney and current Minnesota Governor Tim Pawlenty would've sufficed. By my count, they may have tightened the contest, but the stars were truly alligned for Obama. 2008 was a Democratic year, and when he dispatched Hillary Clinton, the race was his to lose, and of course, he ran a remarkable campaign just in case.

Palin returned home and resumed her duties as Governor. The ethics probes and Freedom of Information requests continued, as did her run-ins with the national media. Her pre-Thanksgiving pardon of a turkey turned embarassing with the sound of slaughter in the background, and her public spat with David Letterman forced an apology from the funnyman but did little to restore her family's dignity. Then came her surprising announcement on Friday: she would resign her position before the end of the month.

The implications of her decision are far from clear three days later. If she truly has national political aspirations, why leave behind her best shot at bolstering her resume? True, running for re-election next year was probably off the table given the challenges of traveling the lower 48 while burdened by gubenitorial duties. Firming up her national resume is next to impossible given that Alaska has only a single House seat occupied by a 19-term congressman, Don Young, who is also a Republican. Palin is also blocked in the Senate, where Republican Lisa Murkowski will likely seek her second full term next fall.

This means Palin must assume the pitfalls of "movement" candidacies, running for the nation's highest office on the basis of lofty ideals and downplaying the importance of tried and true experience. She certainly has her loyal fans interspersed throughout the party base, but Republicans are known to work off of a pecking order. First-time candidates rarely gain the nomination. Since Richard Nixon's victory in 1968, only Gerald Ford in 1976 and George W. Bush in 2000 served as the party standard bearer in their first run for the White House. Ford was an unelected incumbent president and Bush the son of a former president.

At the same time, the Republican Party is in a state of disarray. Two of its presidential hopefuls, Nevada Senator John Ensign and South Carolina Governor Mark Sanford, were cast aside with awkward news of extramarital affairs. Louisiana Governor Bobby Jindal delivered a not-yet-ready-for-primetime response to the president's address to Congress last February. Utah Governor Jon Huntsman was sent overseas by the Democratic president on a diplomatic mission. This leaves retreads Romney and Mike Huckabee, and perhaps radioactive former House Speaker Newt Gingrich as Palin's potential opponents. Intriging possibilities include the aforementioned outgoing Governor Pawlenty and Indiana Governor Mitch Daniels, but neither are household names.

Bottom line: It's too early to write Palin off, especially with the Republican Party clearly sentenced to the backwoods for at least the forseeable future. Her rise and fall taught us to expect the unexpected. So pull up a chair and watch as the hockey mom brings her act to the continental US.


Housing rights choice rests with judge

By Jamie Loo
Uncertain budget cuts and need for more options weighed.

By Jamie Loo
First Amendment reporter

CHICAGO—Amanda Umstatte strode confidently past her mother and handed a slightly crinkled handwritten letter to the judge.

Returning to the podium, Umstatte, told the packed courtroom that she is an adult and voted in the last election. She likes to go shopping, watch movies and knows the names of everyone at the neighborhood grocery store. Umstatte, 21, said she is ready to move out of her parent’s house and wants to have a job and her own place to live. She doesn’t want to live in a group home or a facility. Although Umstatte’s words came slowly in the muffled drawl that characterizes the speech pattern of those with Down’s syndrome, her message was clear: she wants to choose where she lives.

“It is my choice. I want to control my life,” she said. “I will need help but this is my goal.”

But to 90 year-old Catherine Ryan granting Umstatte’s choice could mean taking away a housing choice from people like her daughter Mary. Ryan wrote to the court that parents like her worry what will happen to their developmentally disabled children after they’re gone and that the court’s decision could result in Mary and others being taken away from their loving, caring environments in Intermediate Care Facilities for the Developmentally Disabled (ICF). Although the consent decree doesn’t force anyone to move out of an institution if they wish to stay, Ryan and others are concerned that funding will be diverted from the ICFs, lowering quality and forcing facility closures.

The housing rights of the developmentally disabled are now in the hands of U.S. District Court for the Northern District of Illinois Eastern Division Judge James Holderman who will be issuing an order. A fairness hearing on the case was held on Wednesday.

The decision could mean expanded programs and services for the developmentally disabled in housing placement. But for others an unfavorable decision will place unnecessary stress on the disabled and their families. They worry it could lead to the closing of institutions particularly as the state looks to cut funding to human services in the midst of a budget crisis.

Consent decree

A settlement, known as a consent decree, was negotiated between the nine plaintiffs in the case and the state last October. If approved by the court, the consent decree would become a binding contract that the state would have to follow.

The consent decree in this case requires the state to create a service plan for all individuals with developmental disabilities before enrolling them in a private ICF or a waiver-funded program within three years.

The decree doesn’t apply to state-run facilities.

Evaluations will be performed annually on all people with developmental disabilities currently living in intermediate care to see if they will benefit from living in a Community Integrated Living Arrangement (CILA). A CILA promotes independent living, economic self-sufficiency and interaction with non-disabled people. All people who are eligible and want to transition to a residential setting will be required to move in six years.

Under the decree, the state will also be required to maintain a database of individuals with developmental disabilities who reside at home who are in need of community-based service programs, or placement in a residential setting.

If approved the agreement could bring Illinois one step closer to compliance with a ruling handed down by the U.S. Supreme Court in Olmstead v. L.C. In the 1999 case, the Supreme Court ruled that unnecessarily institutionalizing a person with developmental disabilities is discrimination under the Americans with Disabilities Act if that person could live in the community with some support. The ruling required states to create comprehensive plans to evaluate those who are, or who are at risk of, being institutionalized unnecessarily.

Equip for Equality, a non-profit advocacy group for the developmentally disabled, has filed two other lawsuits to try to get the state to be more compliant with the ADA and the Olmstead decision. Barry Taylor, legal advocacy director for Equip for Equality, said Illinois is one of the most highly institutionalized states in the country and ranks last with respect to community placement for people with developmental disabilities. Taylor said they hope that by taking this step with private institutions it will open to doors to changes in the state’s facilities in the future.

Most people think community-based settings for the developmentally disabled are only group homes or facilities, he said. But Taylor said there are also many apartments or home settings with support services, and that some state funded providers at ICFs seem ready to convert their services to these smaller non-residential settings. He said one of the highlights of the decree is the creation of an “emerging crisis” category to offer services to the developmentally disabled that are at-risk of institutionalization. He said many people in this group live at home with aging caregivers and will need housing options in the future after these caregivers pass away.

Future funding

But to many opponents at Wednesday’s hearing, the agreement between the state and the plaintiffs doesn’t represent their interests. They said the agreement discriminates against ICFs, with wording that is heavily biased toward community-based settings and makes larger institutions seem inferior.

Scott Mandell, an attorney for the objectors, said the annual evaluation process by an independent professional, could cause undue stress and harm to the developmentally disabled and that it duplicates evaluations already conducted by staff at ICFs. Mandell said the wording only requires this annual review for those in ICFs which doesn’t treat them equally with those in CILAs. He said individuals and their families should be able to opt-out of the yearly evaluations if they choose to stay in their ICFs.

Rita Burke, president of the Illinois League of Advocates for the Developmentally Disabled, said part of the Supreme Court’s Olmstead decision also called for “fiscal responsibility” in implementing changes. She said the state will feel pressure to shift funds to community-based living to comply with the consent decree, which will mean a loss in services for those in larger institutions. Burke and others questioned how this mandate will be funded when the state still hasn’t passed a budget for next year and initial budgets showed millions of dollars in cuts to human services, including state funding to ICFs.

Marcella Meyer said ICFs are being characterized as cold facilities where progress for the developmentally disabled is stunted. But her daughter, Charlotte, has thrived at the St. Mary of Providence facility where she has access to doctors, specialists, and activities such as sports. Meyer said Charlotte, has “three drawer-fulls of medals from Special Olympics,” which is an opportunity she may not have had at a smaller community living arrangement. Charlotte also works part time in the ICF’s kitchen and a staff member walks with her and other residents to a local bank to deposit their pay checks in individual bank accounts. Meyer said she doesn’t doubt that there are bad ICFs in the state, but the answer isn’t to do something that may divert funds and close all of them. She said it’s also unclear what will happen if an individual or their family members object to an independent evaluator’s opinion.

Yvonne Beer-Reedy said her 48 year-old daughter Laura has been on a CILA waiting list for 20 years. Beer-Reedy said they’ve turned down five different ICF facilities during that time period because of the poor living conditions she witnessed on visits. Beer-Reedy said she feels the consent decree will lead to more CILAs and offer broader services. She said the annual evaluations are not meant to hurt the developmentally disabled and are simply providing them other options to meet their needs, which may change over time.

After his family moved to Illinois in 1994, James Cicarelli said he hoped his son David would have options similar to their previous homes in New York and Ohio. He said David would’ve been eligible to live in a community living arrangement after he finished high school in New York. What they found was an antiquated system for the developmentally disabled that doesn’t provide enough funding for community services options, Cicarelli said.

Patricia Downey said her sister tried living in CILAs and that it didn’t work out. After moving her sister to the Beverly Farm ICF, her sister did much better. Downey said she agrees with the goals of the consent decree but worries that CILAs will come at the expense of ICFs.

Illinois Department of Human Services division of developmental disabilities director Lilia Teninty said the state wants to offer a full continuum of care. Teninty said the thousands of people on waiting lists show that the state isn’t providing enough options for the developmentally disabled and the consent decree will allow them to do more.

When Holderman asked Teninty if the state had “seen the light” and would be willing to improve placement options and services for the developmentally disabled without a court order, Teninty said that the state is making progress but couldn’t guarantee anything. Based on her experience working in other states, she said a court order could add the weight that is needed to keep the changes moving forward. If the consent decree is approved, Teninty said the implementation plan would be up for public comment and everyone would have a chance to voice their concerns.

Kendra Hartman, an attorney for the plaintiffs, said the state’s “good intentions” are not enough and that many good intentions by the state go unfulfilled. Hartman said they need “enforceable options” that allow individuals and their loved ones to make informed decisions about where they live.

SIDEBAR: Ligas v. Maram

The consent decree stems from the Ligas v. Maram case, which was filed in 2005. Stanley Ligas, 40, has Down’s syndrome and has been living in an Intermediate Care Facility for years. Ligas reads, holds a job at a Popeye’s, and knows how to balance his checkbook. Although staff at his ICF determined he was ready to move in 2004, he couldn’t leave because there were no smaller community based settings that offered the services he needs. Ligas was joined by eight other plaintiffs in the class action suit against the state.

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Roberts Rules (Part 2)

By Shawn Healy
In Monday’s post, I summarized the formal portion of Chief Justice John Roberts’ hour-long remarks to 50 James Madison Fellows from across the country in a conference room adjacent to the courtroom. What follows is a recap of Roberts’ responses to a series of questions posed by educators seated throughout the room.

The first query centered on the challenge to Section 5 of the Voting Rights Act, specifically the pre-clearance requirement applied to select southern states and scattered jurisdictions elsewhere. Roberts wrote for the majority, and he allowed the opinion to speak for itself, but did add that history matters as Justices consider legislation dating back 34 years in this case.

The second focused on the results of the November 2008 election. Roberts repeated the oft-used mantra: “elections matter.” He suggested that the Court won’t interfere with the actions of Congress or the President unless they infringe upon the Constitution. Roberts believes strongly in the norm of deference, where the Court is the “passive branch.”

Roberts is a well-known champion of higher pay for federal judges under his administrative responsibilities as Chief Justice, the third questioner asked him to elaborate. While acknowledging that a roomful of teachers was not the best place to make such a case, he argued that the most talented lawyers across the country cannot accept federal judgeships unless they are independently wealthy or in academia. Trial lawyers, on average, make ten times as much money as a federal judge.

The fourth question was highly technical, focusing on specific clauses of the 14th Amendment, the due process and privileges and immunities clauses. The former is widely used, while the latter is locked in hibernation. Roberts pointed to the legal term “substantive due process,” referencing a recent case concerning the right to demand that states consider DNA evidence in criminal cases. Given that there is no long history in this instance, Roberts felt most vulnerable to “undemocratic” actions, and once more prefers deference to legislative bodies, in this case at the state level.

He elaborated by distinguishing between the legal merits of a case and the legal environment. He compared Chief Justice Taney’s 1857 Dred Scott decision, an attempt to resolve the issue of slavery, but a “critical mistake” that precipitated the Civil War, with Chief Justice Warren’s revered Brown v. Board of Education decision in 1954. Roberts often ponders whether the Court is following the path of Taney or Warren.

A question about the Court’s use of law clerks served as an invitation for Roberts to elaborate on the case selection process. The law clerks help screen cases for the Justices they serve. Four justices must vote for consideration of a single case for cert to be granted. Roberts reiterated the point throughout his talk that the Court is not concerned with whether or not cases are correctly decided. Instead, the Justices are concerned with uniformity of federal law.

Roberts himself served as clerk for a man he would eventually replace, then-Associate Justice William Rehnquist. He admitted that the selection process for clerks in arbitrary, and suggested that the clerks serve for only one year in order to avoid permanent staff and to keep the Justices engaged in the Court’s day-to-day matters.

The Chief Justice responded to a question about his jurisprudence with an inquiry of his own: Am I imposing my own policy views, or am I following the law? Unlike most other political positions, the Justices are forced to defend their ultimate decisions in writing for all to examine and evaluate. He held up flag burning as an example. He personally finds the practice “awful,” yet admits that legal prohibitions violate the First Amendment.

He then pivoted to another First Amendment question, this one concerning public employees’ freedom of speech. Roberts referenced the 2006 Garcetti decision that made a distinction between private and public speech. By way of example, an English teacher who was hired to teach Shakespeare cannot pontificate upon the merits of the Iraq War to her students during class time, even though these sentiments are sacred outside of her official duties. Roberts alluded to other First Amendment precedents, including Tinker and Morse, arguing that a basic framework for freedom of speech is in place and then applied to various fact patterns.

Roberts’ final question centered on his role as counsel to then Governor George W. Bush during the recount that followed the 2000 presidential election. The Chief Justice refused to elaborate on grounds of attorney-client privilege, but did reference the Bush v. Gore Supreme Court decision. He suggested that the Florida Supreme Court failed to employ a uniform standard for counting ballots across the state, even upon command from their counterpart in Washington. The 5-4 outcome, according to Roberts, was therefore inevitable.

Chief Justice Roberts ended his talk by acknowledging his 6th Grade history teacher who inspired him to study the subject and pave a path toward leading the highest court in the land. Like educators across the country, the Court rises for the summer, but we’ll continue with our analysis of their work during the 2008-2009 term during the annual Supreme Court Review on August 6. Stay tuned to the Freedom Museum web site for more details.


Managing Director

McCormick Freedom Project

Shawn is responsible for overseeing and managing the operations associated with the McCormick Freedom Project. Additionally, he serves as the in house content expert and voice of museum through public speaking and original scholarship. Before joining the Freedom Project, he taught American Government, Economics, American History, and Chicago History at Community High School in West Chicago, IL and Sheboygan North High School in Wisconsin.

Shawn is a doctoral candidate within the Political Science Department at the University of Illinois at Chicago where he received his MA in Political Science. He is a 2001 James Madison Fellow from the State of Wisconsin and holds a bachelor's degree in Political Science, History, and Secondary Education from the University of Wisconsin at Madison.

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About Fanning the Flames and the McCormick Freedom Project

Fanning the Flames is a blog of the McCormick Freedom Project, which was started in 2006 by museum managing director Shawn Healy. The blog highlights the news of the day, in hopes of engaging readers in dialogue about freedom issues. Any views or opinions expressed on this blog represent those of the writers alone and do not represent an official opinion of the McCormick Freedom Project.

Founded in 2005, the McCormick Freedom Project is part of the McCormick Foundation. The Freedom Project’s mission is to enable informed and engaged participation in our democracy by demonstrating the relevance of the First Amendment and the role it plays in the ongoing struggle to define and defend freedom. The museum offers programs and resources for teachers, students, and the general public.

First Amendment journalism initiative

The Freedom Project recently launched a new reporting initiative with professional journalists Tim McNulty and Jamie Loo. The goal is to expand and promote the benefits of lifelong civic engagement among citizens of all ages, through original reporting, commentary and news aggregation on First Amendment and freedom issues. Please visit the McCormick Freedom Project's news Web site, The Post-Exchange at