March 13, 2018

An Open Letter to Nebraska School Leaders:

Dear Superintendent,

This week, students across Nebraska and the nation will flex their civic muscles, many of them for the first time. Many students will leave their classes to express concerns about ensuring a safe learning environment, the reasonable regulation of firearms and to commemorate the loss of 17 students and teachers last month at Marjory Stoneman Douglas High School in Parkland, Florida. On behalf of the ACLU of Nebraska we urge you to support them as they do so.

The greatness of this nation relies on the participation of all of us. You are in a unique position to foster this emerging democratic engagement and direct your students into productive action. The lessons learned this week, this month, and this year will follow your students throughout their lives.

Please recognize this for what it is – a rare opportunity for an interactive lesson in participatory democracy. Keep in mind that you are not the first to face these decisions: you stand in the same shoes school administrators wore during the civil rights movement – a movement that is today regarded as a model for teaching students about civic engagement. Reading about it pales in comparison to living it. So, please find ways to let this new generation live it.

I and most of the ACLU of Nebraska staff attended Nebraska public schools; we know the great work our Nebraska teachers and administrators do across the state. We want this generation of students to look back and remember this as the unique moment in time when they were first able to apply their classroom lessons to real life. We encourage you to act with good will and view students’ actions in the spirit of an educational moment.

We understand the pressures you face – you work under many burdens: you have an education to transmit and you must keep students safe. But bear in mind, you cannot punish students for exercising their civil rights. Silencing the voices of your students just as they find them breeds the sort of cynicism that has lead two thirds of our citizens to neglect their civic duty to exercise their right to vote. By not teaching them to engage in a healthy debate, you also risk furthering the divide in this nation that so painfully obstructs collaboration.

For many students, the tragedy at Parkland has awakened an American spirit of action. We ask that you resist suppressing that spirit. Instead, we urge you to lead your students to that ideal of the productive, involved, orderly exercise of citizenship. There are so many ways to accomplish this, such as:

  • Allow students to attend demonstrations. Nebraska state law encourages alternatives to suspension or expulsion whenever possible for a student who is truant, tardy or absent. Neb. Rev. Stat. §79-267. We urge you to exercise your discretion if a student misses a day or a period for a peaceful demonstration. Absence policies should not be used to punish students who are engaged in the educational experience of participatory democracy -- especially when the engagement is all about the need to ensure that they can pursue their education in a safe environment. These kids are literally fighting for their right to an education, and more importantly, their lives through peaceful expressive means.
  • Give clear guidance on expectations. Ensure that students know what is expected of them and what they can do to voice their opinions. Students should be allowed to peacefully demonstrate, distribute literature and wear any insignia of their protest, such as shirts. Schools may regulate this speech to prevent disruption of education, but keep in mind that this sort of discussion is educational and the students’ ability to express their political viewpoints must be respected.
  • Foster healthy debate. In today’s world, too often we are insulated from opposing viewpoints. This is a great opportunity to foster debate in an accepting environment. I urge you to use this opportunity as a teachable moment. You may want to consider setting aside time for assemblies or other events to consider the urgent issues of school safety that students across the country are now focused on. Teach your students what it means to peacefully exercise their First Amendment rights and to argue persuasively, which requires truly understanding opposing views and remaining respectful. And, of course, equally respect students who do not want to join demonstrations or who wish to oppose the most popular views.

In closing, here is a great local model for your consideration: The best way to respond has already been modeled by the Principal of Papillion-LaVista High School’s approach; when his students proposed a walkout, he said, “Let’s go together” and joined the 17-minute-long walk out. As Principal Jerry Kalina told the Omaha World Herald, “Kids don’t need to hear me being upset and mad at them and throwing discipline at them. Kids needed to hear someone who was going to be comforting, caring, loving and hey, we’ll get through this, let’s go together. Young people’s voices need to be heard.”

The events planned for this week and next month are a unique educational moment. We urge that you seize it. Thank you for your leadership and commitment to education. We are happy to serve as a resource to you, your teachers, students and parents to the best of our abilities. Please contact us at any time.

Respectfully yours,

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Danielle Conrad, J.D.
Executive Director
ACLU of Nebraska

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Tuesday, March 13, 2018 - 1:30pm

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For years, the state of Nebraska has had a troubled history of cutting corners in its zealous pursuit of lethal-injection drugs to keep its death penalty program alive. In November, the state announced that it would use an experimental drug cocktail not previously used in the United States to carry out its next execution. What the state didn’t reveal, however, is that it was violating federal law when acquiring the ingredients for the lethal cocktail.

In a complaint filed today by the ACLU of Nebraska with the Drug Enforcement Administration, the ACLU has shown that the state of Nebraska is playing fast and loose with DEA registrations in order to covertly obtain and store the drugs it intends to use for executing prisoners. The DEA should seize the drugs Nebraska has unlawfully obtained before they can be used in an execution.

As the complaint shows, a person or entity, including government agencies, needs a DEA registration to import a controlled substance. Federal law also requires those that handle a controlled substance to have a DEA registration particular to their authorized usage. These laws apply to the Nebraska Department of Corrections and to the Nebraska State Penitentiary (NSP), where the state carries out executions. But both institutions are ignoring the law in order to get the execution drugs they need to carry out the death penalty.

In its dissembling, the NSP applied for a DEA importer registration in 2015, 2016, and 2017 — each time falsely claiming to be licensed in Nebraska to handle drugs by referencing a state pharmacy license number not assigned to the prison. The license number listed was registered to a pharmacy operated by the Department of Corrections at a different site, four miles away. But that license is specific to the address of the pharmacy and specific to the persons named in the license application.

Put simply, the state broke the federal law by applying for an import registration for the prison based on the false claim that the prison possessed a state pharmacy license it did not. That licensed was assigned to the state pharmacy, and Nebraska law forbids it from being assigned, borrowed, or used by some other person or entity. In fact, in 2011, the pharmacy itself used this very same license number to apply legally for its own DEA import registration. When the NSP did the same, it was illegal.

The state’s lawbreaking, however, didn’t end there. Not only did the prison obtain its import registration under false pretenses, it is also obtaining drugs the import registration disallows, in particular the deadly-opioid fentanyl.

The prison’s import registration allows it to import schedule 3N and 4N substances, but fentanyl is a schedule 2 drug. Such drugs are among the most addictive and therefore the most tightly regulated. Although the state is presently being sued by the media in Nebraska and the ACLU for disregarding the state’s strong open records laws, the ACLU has obtained a drug inventory, listing both the fentanyl and the DEA import registration number on the top of that inventory.

But the state’s flouting of the law doesn’t end there. Even after improperly procuring execution drugs, the prison still needs a separate DEA registration to maintain and store the drugs. Contrary to its current use, the DEA registration the state possesses only entitles the prison to dispense medication through a hospital or clinic. In fact, while federal law has specific definitions about “dispensing,” which require the involvement of a medical doctor, Nebraska law specifically states that lethal injection is not a medical procedure. The registration NSP currently has does not entitle the state to handle and store its lethal injection drugs.

The state’s cover up is part of a larger pattern of bumbling and incompetent attempts to obtain lethal injection drugs outside of the law. In 2015, the DEA seized a shipment of controlled substances Nebraska had paid thousands for to a sham pharmaceutical company in India, called Harris Pharma, which was unlawfully reselling drugs it had obtained from a legitimate company under a false DEA registration. In its zeal, Nebraska attempted this purchase even after the Food and Drug Administration expressly warned that the purchase would be illegal.

All of this is in service of the state’s attempts to keep its machinery of death churning. In recent months, Nebraska has issued notices to prisoners Jose Sandoval and Carey Dean Moore that it intends to execute them with fentanyl — the same drugs the state unlawfully obtained with its problematic DEA registrations.

We have long held that the death penalty is an abuse of government power, waste of government resources, cruel and unusual, discriminatory in practice, and risks the execution of the innocent. With today’s filing, the DEA has an opportunity to enforce the law, seize the drugs Nebraska improperly obtained, and right the particular wrong the state is perpetrating with its abuse of its registrations. And we all have one more reason to conclude that the state has no business executing human beings.

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Monday, March 12, 2018 - 10:00am

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