| Why? Because our state legislators have not taken action to remove them, and the state commission (or at least some members of it) established and charged by the Legislature to recommend needed changes to state law has refused to recommend the removal of the Pledge and parental notification law, maintaining that the issues are too controversial to deal with right now. More on this later.
Now, in the case of the Pledge, the inaccurate statute is the source of steady complaints at the ACLU-NJ. School district attorneys end up wasting time on it, too, because school administrators go to the statutes, read the inaccurate law and then enforce it, prompting parents to contact us for help.
The ACLU-NJ helps students in this situation a few times a year. I'm sure there are many other families who have students required to say the Pledge against their will who don't know to contact the ACLU-NJ or otherwise check the law, resulting in free speech rights violations we don't even hear about. At our request, the Department of Education has even sent memos clarifying the issue to all school districts, but those memos don't seem to trickle down far enough.
On the Parental Notification for Minors statute, not surprisingly, we haven't received any requests for help. This concerns me a great deal. A pregnant teen (or someone helping her) who cannot go to her parents for help certainly won't know what the law is or that help is available at the ACLU-NJ.
Looking for a way to address these statutes and the confusion they cause, I was pleased to learn in 2002 that New Jersey has a body responsible for this very arena called the Law Revision Commission and its charge is to recommend to the Legislature improvements to New Jersey statutes -- such as removing anachronistic statutes, clarifying contradictions, making the statutes as usable as possible, etc.
As soon as I learned about this Commission in late 2002, I called to ask that the Pledge and Parental notification statutes be recommended for removal, but I got nowhere. To formalize my request, in early 2003, Dean Stuart Deutsch of Rutgers Law School submitted a letter on my behalf requesting these changes. Each law school dean has an appointee to the Commission, and I have received consistent support on this issue from Dean Deutsch and his designee, Professor Bernard Bell, on the issue.
According to the Executive Director of the Commission, John Cannel, the Commission considered Dean Deutsch's request but decided against recommending removal of these statutes. He explained that the laws were "too controversial" and that the Commission doesn't like to recommend things that the Legislature might reject or disagree with. I renewed my request several times in the four years since, and got the same response from Cannel each time.
Recently, upon my third or fourth time bringing the request, Cannel agreed to put it on the agenda with other anachronistic laws that they were considering. I attended the April 26, 2007 Commission meeting to witness the deliberation in person. I heard the "too controversial" perspective echoed by some of its members. Commission Chair Vito Gagliardi, who represents school districts, shared the same kind of stories that the ACLU has about addressing unnecessary Pledge problems. Nevertheless, most Commissioners present expressed reluctance to take it on, fearing that these "controversial" proposals might sabotage their other recommendations, such as removing 19th century laws regulating horse troughs.
With respect to the "too controversial" argument, I pointed out that their duty is not to consider politics or controversy, but rather to recommend necessary and important changes to the statutes, and let the Legislature act.
By the end of the discussion, the Commissioners agreed to review the Pledge cases and reconsider removal of the statute at a future meeting. They promised no action on the Parental Notification statute, however.
After nearly five years pursuing this (of course it's a backburner issue except on those days when we have to help someone with the Pledge issue yet again), and hearing first-hand the attitudes of the Commission on the matter, I reached the end of my patience for their process and reached out to the media for help. The Ledger article was a good start.
Then, the May 8 New Jersey Law Journal article took a slightly harder line, using stronger quotes from me: Their [the Commission's] duty is to make recommendations to the Legislature to improve the accuracy and usability of the New Jersey state statutes. The commission shouldn't be allowed to beg off if an issue is controversial. ...There is nothing in the commission's mandate that says they should take controversy or politics into account, and by doing so they are disregarding their duty.
The Star-Ledger followed up with a May 12 editorial on the matter suggesting that if the Law Revision Commission won't do its job, perhaps the Legislature doesn't need it.
The Law Revision Commission meets again today, Thursday, May 17, and the agenda shows that both the Pledge and Parental Notification statutes are under consideration. I'm keeping my fingers crossed. But what New Jersey really needs is not piece-meal single-issue campaigns like the one I was forced to launch, but rather a much more sophisticated model of law revision in New Jersey. We need not look hard, since many states have similar bodies that are much more organized, thoughtful and progressive. If in doubt, just for example, check the New Jersey Law Revision Commission Web site against that of the equivalent body in Washington State. They have engaged practices that enable them to make their statutes as accessible and accurate as possible without considering politics or the potential for controversy as context for their work. It's time to consider better models and rethink the New Jersey Law Revision Commission's structure, practices and philosophies.
Deborah Jacobs is Executive Director of the American Civil Liberties Union of New Jersey (ACLU-NJ).
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