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Little to no accumulation from first snow of the 2021-2022 season

At Providence, precipitation is likely today (Wed) 1:00pm through tomorrow (Thu) 3:00am, beginning as rain and possibly changing to snow or rain-snow mix after 5:00pm.

Warm temperatures several degrees above freezing should prevent accumulation until at least 11:00pm, with some potential for a fraction of an inch before ending, but the most likely scenario is all rain.

The median accumulation forecast in the city is 0.1 inches, with probabilities 71% for at least 0.1 in, 2% for 1 in, and near 0% for 2 in.

Greater accumulation in the 1-3 inch range is possible far to the north of the metropolitan area into central MA.




The Pro-Life Self-Defeating Legal Trap: Be careful what you wish for

What happens if the US Supreme Court overturns the half-century of precedent on abortion? I discussed that in some detail three years ago (“News Analysis: What Happens if Roe v. Wade is Overturned?”, by Michael Bilow, Feb 20, 2019), and that article was updated when the Reproductive Privacy Act took effect on June 19, 2019, writing into RI state law the current federal standards under Roe v. Wade (and its lesser-known companion Doe v. Bolton decided on the same day) in 1973 and Planned Parenthood v. Casey in 1992, in case the Supreme Court should overturn or weaken those.

Although a reversal of Roe would have little direct effect in RI because of this statutory protection, it would have drastic consequences in other states, many of which have “trigger” statutes that would ban abortion automatically if Roe were overturned. But the reasoning used to reverse Roe, if the Supreme Court does that, could threaten many other fundamental rights that have been assumed safely protected under American law until now.

With a strongly conservative Supreme Court reinforced by three members appointed by Donald Trump, it is widely expected that a case awaiting decision will significantly curtail or even completely eliminate the constitutional right to abortion prior to “viability,” usually considered to be 24 weeks into an ordinary 39-week pregnancy, recognized under Casey. In Dobbs v. Jackson Women’s Health Organization, the State of Mississippi enacted a law clearly violating the Casey standard, intending to raise exactly the kind of litigation test that would offer an opportunity to reverse it. Dobbs received two hours of oral argument before the Supreme Court on December 1, 2021, after which most analysts concluded that federal protection of abortion rights is likely doomed by the time a ruling is due by June 2022.

The often-criticized aspect of Roe and Casey on a legal basis is that, undeniably, the text of the Constitution and Bill of Rights are silent on abortion, and indeed on any aspect of childbirth and reproduction. Unlike freedom of speech or press, free exercise of religion and right to trial by jury, this simply did not seem to enter into the mindset of the Colonial-era Framers, despite their finding time to explicitly prohibit quartering of soldiers in private homes.

The emergence of childbirth and reproduction as areas of life where individuals have constitutional rights against government interference first arose in a 1965 ruling, Griswold v. Connecticut, that invalidated a Connecticut state law the denied access to contraception even for married couples, finding a right of privacy in the “penumbra” (shadow) of the Bill of Rights. The court ruled: “We deal with a right of privacy older than the Bill of Rights – older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred… Yet it is an association for as noble a purpose as any involved in our prior decisions.” In a 1972 case from Massachusetts that reaffirmed Griswold the year before Roe was decided, Eisenstadt v. Baird, the constitutional right of access to contraceptives was extended to unmarried people.

Over time, and especially in Casey, the right of privacy applicable to childbirth and reproduction came to be seen as grounded in the Due Process Clauses of the Fifth and Fourteenth Amendment: “…nor shall any State deprive any person of life, liberty, or property, without due process of law.” Most of the time, courts are concerned with “procedural due process,” which provides protections such as requiring notice of charges and fair trials before locking up someone and thereby depriving them of their liberty. However, there is another prong that courts have come to call “substantive due process” that prevents the government from doing certain things regardless of the procedures used. No one really likes the idea of substantive due process, because in practice it allows judges and courts to decide on the basis of their own opinions what topics are off-limits for legislatures and the political process. At the same time, no one has found any other good way to stop legislatures and politicians from enacting, for example, what Justice Potter Stewart in his Griswold dissent called “an uncommonly silly law,” that since 1879 banned contraceptives in Connecticut.

Since the 1960s, only cranks and crackpots have been seriously concerned about whether states can ban contraceptives, and Griswold and Eisenstadt would be almost forgotten today if that was the limit of their significance, but they have become landmark cases because they laid the precedential groundwork for a series of rulings touching sensitive and controversial issues, well beyond abortion in Roe and Casey.

In 1967, the Supreme Court held in Loving v. Virginia that state law prohibiting inter-racial marriage was unconstitutional, violating both substantive due process and equal protection.

Until the 2003 ruling in Lawrence v. Texas, states were allowed to criminalize homosexual conduct between consenting adults, a practice upheld by a 1986 ruling in Bowers v. Hardwick. Even as recently as 1986, the decision by the Supreme Court that there was no constitutionally recognized “fundamental right to engage in homosexual sodomy,” as the majority opinion phrased it, shocked most observers who expected the ruling to go the other way. After decades of criticism, Bowers was outright overruled by Lawrence, bringing private consensual sexual conduct within the scope of substantive due process protection. By 2015, the court, on the basis of both substantive due process and equal protection, ruled in Obergefell v. Hodges that same-sex marriage was a constitutional right, citing the Loving precedent.

The Supreme Court withdrawing substantive due process protection from abortion, as could happen in Dobbs, would be the first time in US history where protection of a fundamental constitutional right was taken away after being recognized. In theory, it would open the door to a similar reversal on same-sex marriage or even allow reinstating criminal penalties for being gay. While this seems unlikely given current political realities – and it’s not clear what happens if people who have been married are suddenly declared unmarried – there is a dangerous slippery slope here. In theory, states might again be free to outlaw inter-racial marriage.

But there’s yet one more aspect social conservatives do not seem to have considered in fighting to return abortion as a political question to state legislatures: what kind of power would they then entrust to political vagaries? Between 1980 and 2015, China had what has come to be known as the “one-child policy,” imposing severe civil disabilities and ostracism for parents who chose to have more than a single child. In the face of widespread popular resistance and even non-compliance, China gradually backed off their population-control policy, allowing exceptions for rural farmers, in 2015 allowing a maximum of two children for everyone and finally ending the program only in 2021. But while China maintained its population-control policy in some form for over 40 years, there were horrific consequences ranging from forced contraception and forced sterilization to forced abortion; in the most extreme cases, cultural preference for sons rather than daughters encouraged female infanticide.

China is a one-party communist dictatorship where dissent is not tolerated, but what would happen if something like their one-child policy were adopted by a state legislature in the US? Under what legal theory could such a draconian policy be challenged? What, to put it bluntly, prevents a state government from mandating unwanted sterilizations and abortions? Shockingly, the Supreme Court in a 1927 case, Buck v. Bell, upheld the power of states then in the grip of the pseudo-scientific eugenics movement to forcibly sterilize people “for the protection and health of the state.” While hardly anyone thinks Buck would be followed by the courts now, it has never been explicitly overruled and remains, technically, valid law.

It turns out, as one of my philosophy professors often said, “What’s sauce for the goose is sauce for the gander.” It’s pretty clear whose goose is about to be cooked. The legal principle that extends substantive due process protection to your right to have an abortion when the government tries to stop you is exactly the same legal principle that prevents the government from forcing you have an abortion. One of the key factors distinguishing US freedom from Chinese-style dictatorship is rule of law: If the Supreme Court deteriorates to one more partisan rubber stamp in a hopelessly polarized political stalemate, we move inexorably closer to Chinese-style dictatorship. As the plurality warned in their opinion in Casey: “The Court must take care to speak and act in ways that allow people to accept its decisions on the terms the Court claims for them, as grounded truly in principle, not as compromises with social and political pressures having, as such, no bearing on the principled choices that the Court is obliged to make.”




Little to no accumulation from first snow of the 2021-2022 season

At Providence, precipitation is likely tomorrow (Wed) 1:00pm through Thu 3:00am, beginning as rain but possibly changing to snow or a rain-snow mix after 5:00pm.

Warm temperatures several degrees above freezing should prevent accumulation until at least 11:00pm, with some potential for a fraction of an inch before ending.

The median accumulation forecast in the city is 0.1 inches, with probabilities 66% for at least 0.1 in, 22% for 1 in, 1% for 2 in, and near 0% for 4 in.

Greater accumulation in the 1-2 inch range is possible far to the north of the metropolitan area into central MA.




Will Holiday Deliveries Be Grinched?: Buy local to bypass supply chain problems

As shoppers enter the heat of the holiday buying season, worldwide supply chain problems are making it tough for American consumers to find products sourced from overseas, particularly Asia. Sometimes the absence of even a single critical component can stop huge and complicated assembly processes. So even if the gift you have your eye on isn’t coming from overseas, a supply chain domino effect could make it hard to get on time. 

Automobile makers, for example, have been unable to turn out vehicles to meet demand due to shortages of semiconductor “chips” that are ubiquitous in all modern production. Full shipping containers are backlogged because there are not enough trucks and truck drivers to transport them, and empty shipping containers are piling up in American ports because they cannot be sent back quickly enough.

Leading RI toy manufacturer Hasbro told Motif that “Hasbro expects shelves will be well stocked with Hasbro products this holiday season,” citing a statement by interim CEO Rich Stoddart on a recent earnings call, “As we look to the fourth quarter, and the holiday season, there is strong demand for Hasbro toys and games. We are expertly managing the supply chain to ensure the shelves will be filled with Hasbro products this holiday.” Not every business is as optimistic as Hasbro’s spin would have you believe, however.

RI Commerce Secretary Stefan Pryor told Motif in an interview, “We hear from businesses ranging from restaurants to manufacturers that their supply chains are breaking down or orders are severely postponed or prices are spiking. We hear it everywhere in Rhode Island.”

CommerceRI is necessarily focused on business-to-business (“B2B”) connections that manufacturers and wholesalers depend upon to obtain upstream what they need to continue the supply chain downstream, as distinct from business-to-consumer (“B2C”) connections to end users. “We do have an initiative called SupplyRI. That program aims at enabling small businesses in Rhode Island that are vendors or potential vendors … to connect with larger institutions and corporations. So the big, higher-ed institutions – RISD, Brown – [and] the big hospital systems, are in,” Pryor said. “What we do is we help these small Rhode Island businesses gear up to become vendors so that these institutions and corporations don’t have to look overseas … but don’t even need to look beyond Rhode Island’s borders, for their supplies. It means that the supplies will be more reliable. It means that very often they can be more cost-effective because delivery costs are less, but just the reliability alone may be a value to the institution and many of them want to give back to the Ocean State.”

“We’ve seen during the pandemic a lot of small businesses being created. That’s why it is important for us to support our local stores, and also buy American,” said Doris Blanchard, who runs SupplyRI – supplyrhodeisland.com. “We have a database of over 2000 suppliers under different categories, anywhere from construction companies, marketing professional services, CPAs, translation services, among others. We also have 15 ‘anchors,’ like CVS, BlueCross/BlueShield, Delta Dental, Gilbane, seeking to buy products and services from these suppliers.” The state government itself is also an ‘anchor’ buyer, she said. “We see those businesses that started during COVID, and there is no question that, overall, we need to support these small businesses and make our holidays meaningful, buy local and support our local economy.”

Pryor said, “We’re going to need to step up those efforts within Rhode Island. We’re hoping that the national scene improves, but we still think that there’s, frankly, both a problem and an opportunity here to enable all Rhode Island businesses to benefit.”

On the B2C side, CommerceRI “co-invested,” as Pryor described it, in a website that was set up by the Small Business Coalition “during the heart of the pandemic” in March 2020 – shoplocalrhodeisland.com – “that enables local shopping, not just food delivery, but across all kinds of goods and products and gifts.”

And as people are thinking about their Christmas shopping, this is a great way to go about the holiday season tradition and shop local. If you don’t feel comfortable going to stores or you just don’t want to do it as frequently, this is a way. Also, quite frankly, I think it could ultimately be a strong platform to promote Rhode Island beyond our borders,” Pryor said.

Kristen Adamo, president and CEO of the Providence Warwick Convention and Visitors Bureau, told Motif, “We know a lot about the effects of supply chain product problems just from being in the hospitality industry. It’s something that doesn’t just affect retail, it affects restaurants and hotels and pretty much everyone. So the beauty of really buying from local retailers is you don’t have to worry that whatever you ordered is sitting off the coast of Los Angeles on a cargo ship.” Her organization runs the website BuyLocalRI.org (which is an alias for goprovidence.com/buy-local-ri). “One of the things that we’re trying to do with BuyLocal is double down on that local support, because you won’t have to worry about if you order something online and it doesn’t show up because it’s stuck somewhere.”

“Some of the things we’re really focusing on this year are holiday markets and holiday festivals, because that’s a really direct and kind of fun way to buy local,” Adamo said. The BuyLocal website features a calendar of such events as well as links to local vendors sorted geographically. “There’s tons of church festivals and street closures where people are selling local things,” she said. “It doesn’t just have to be going to one specific store. It can be an adventure in a local downtown or a local church or a local holiday market.” She said the Providence Flea – providenceflea.com – which has moved indoors on Fridays (5-9pm) and Sundays (11am-3pm) during the colder weather, “is a great example. You can go there and you can pick up gifts for a whole range of people, and you’re having fun, get a hot cocoa, maybe go to a food truck, something like that.”

“You can expand the notion of buying local to more than just purchasing something in a store. It can be taking your co-workers out to lunch at a local restaurant. It can be supporting live theater or the performing arts locally. It can really be a broad definition of buying local for the holidays,” Adamo said, noting her organization sponsors Providence Restaurant Weeks – goprovidence.com/rw – Jan 9 – 22, 2022.

(Image: T-shirt sold by HopeValleyHandmade. Source: etsy.com/listing/558417076/rhode-island-helvetica-list-shirt)




High School Student Poets: Apply to be RI youth poetry ambassador

Seeking a youth poetry ambassador for 2022, the RI Center for the Book invites applications from high school students who reside in RI. State Poet Laureate Tina Cane will select an ambassador and deputy ambassador with results announced in January 2022.

“This initiative is designed to bring more poetry directly to our state’s youth and to inspire young people through example. Just as the state poet laureate position symbolically affirms Rhode Island’s support of poetry, the youth poetry ambassador is meant to validate and support the creative potential of our young people,” said center director Kate Lentz in a statement.

Depending upon the selected ambassador’s ability and availability, they will receive a $250 cash prize, a guest-writer spot in the Providence Journal “Second Sunday” poet laureate column, an opportunity to have poetry featured on RIPTA buses through the “Poetry in Motion” program, and an opportunity to record for Cane’s distance reading series, “Poetry is Bread.”

Applicants must submit by December 15, 2021: a one- or two-paragraph statement on why the applicant would like to be considered for the position, a letter of support from a teacher or librarian, a letter of support from a peer, and two original poems. All parts of the application must be submitted together.

Applications should be sent by e-mail to kate@ribook.org or by postal mail to Kate Lentz, RI Center for the Book, Pell Center, Salve Regina University, 100 Ochre Point Ave, Newport, RI 02840.

The 2022 appointments will be the fourth annual (except for a two-year term during the pandemic), following previous ambassador Moira Flath and deputy ambassador Kiani Sincere-Pope (2018), ambassador Catherine Sawoski and deputy ambassador Tyler Cordeiro (2019), and ambassador Halima Ibrahim and deputy ambassador Eugenie Rose Belony (2020/2021).




Omicron virus “variant of concern”: More transmissible, unknown if otherwise more dangerous

A new “variant of concern” (VOC) for the virus that causes COVID-19 has today been assigned Greek letter “omicron” by the World Health Organization (WHO) at an emergency meeting of the organization’s Technical Advisory Group on SARS-CoV-2 Virus Evolution (TAG-VE).

In the particular case of the new omicron variant, designated B.1.1.529 in the PANGOLIN nomenclature, its prevalence where found so far in South Africa and Botswana strongly suggests that it is more highly transmissible than the delta variant B.1.617.2 it supplanted. “This variant has a large number of mutations, some of which are concerning. Preliminary evidence suggests an increased risk of reinfection with this variant [in patients recovered from infection from another variant], as compared to other VOCs. The number of cases of this variant appears to be increasing in almost all provinces in South Africa,” the WHO said in a statement.

According to WHO, the first known case of the omicron variant was found in a specimen collected on Nov 9. According to the PANGOLIN sheet, it was first sequenced for detection on Nov 11.

WHO TAG-VE said that while standard tests are able to detect the omicron variant, one of its characteristic mutations, called “S gene dropout,” causes one of the components of ordinary polymerase chain reaction (PCR) analysis to fail, and “this test can therefore be used as marker for this variant, pending sequencing confirmation. Using this approach, this variant has been detected at faster rates than previous surges in infection, suggesting that this variant may have a growth advantage.”

Whether the omicron VOC exhibits harmful behavior beyond increased transmissibility, such as increased virulence or increased resistance to vaccines and treatments, is not yet known and is unlikely to be known for several weeks, but at this time there is no evidence for it. Vaccines work by training the immune system using proteins present on the outer surface of the virus, so in theory the more mutations a variant exhibits the greater the risk that the immune system trained by either a vaccine or a prior infection will be unable to recognize the variant as effectively.

Promoted from status as a “variant under monitoring” (VUM), the VOC designation of omicron is the most severe classification, used for variants with significant genetic mutations that demonstrate, at a level of global public health effect, evidence of increased transmissibility, increased virulence, or increased ability to escape tests, vaccines, or treatments. The status of “variant of interest” (“VOI”) is between the two, with evidence of significant mutations and consequence but not yet affecting global public health. WHO assigns Greek letter designations to VOIs and VOCs to aid in public recognition: there are currently four active VOCs (alpha, beta, gamma, delta) and two VOIs (lambda, mu) prior to the new omicron designation. Variants demoted from VOC or VOI to VUM retain their Greek letters (eta, iota, kappa, theta).

Shortly after the WHO announcement, President Joe Biden issued a statement that the US would ban travel from a number of African countries: “As a precautionary measure until we have more information, I am ordering additional air travel restrictions from South Africa and seven other countries. These new restrictions will take effect on November 29. As we move forward, we will continue to be guided by what the science and my medical team advises.” Biden further said the best way for Americans to protect themselves is to get a booster shot if they have already been vaccinated and to get vaccinated if not already.

Biden noted the global spread of the pandemic: “Finally, for the world community: the news about this new variant should make clearer than ever why this pandemic will not end until we have global vaccinations. The United States has already donated more vaccines to other countries than every other country combined. It is time for other countries to match America’s speed and generosity.”




Can Police Dragnet Search All Students to Look for a Gun?

On November 15 at 1:21pm, Principal Brooke Macomber of Coventry High School issued a statement: “The Coventry Police are currently in the building investigating a threat that was overheard during passing time. In an abundance of caution, upon becoming aware of this threat, we placed the school in lockdown and contacted the police… The CPD and State Police are in the process of searching all students, classrooms and belongings to ensure the safety of our school community.”

Coventry Police statement on high school gun search

The next day, Coventry Police issued a statement: “On 11/16/21, Coventry Police Department arrested the student responsible for the lockdown incident at the Coventry High School on 11/15/21. No weapons were located and the student does not have access to firearms. The student was charged with Disorderly Conduct and the case will be referred to Family Court.”

Coventry Police statement on high school gun search

Captain Matthew Blair of the Coventry Police told Motif in an interview, “Somebody overheard what they believe was a student say ‘he has a gun’ – those four words. A teacher immediately confirmed it, followed by a few other students that heard it in the hallway in between classes, so they immediately enacted what they call ‘hold from passing,’ which is basically nobody leaves class. And then after the school resource officer got involved, within the first couple minutes, they issued a lockdown for the whole school, until we were able to get more information. So they did that, were reviewing cameras and footage and talking to people involved. And they were unable to determine who exactly it was that said it, or even what group of kids it was said it. They basically had some kids in a hallway in hoodies that they couldn’t identify… After a few minutes, I personally got there along with the chief and a few other people. Because we were unable to determine the extent of the threat or what exactly had taken place and what the context of it was, the decision was made to begin to search the students and their bags, room by room, including desks, trash cans, and brought in ballistic-sniffing canines and they were able to conduct a thorough and full search of each student at the school, each bag that each student had. We passed the ballistic-sniffing dogs through all the rooms, did what we were satisfied was a thorough search of the common areas, classrooms, and then walking dogs through the hallways where the lockers were. The handlers in particular were confident that if there were a gun, they would have alerted to it. We were satisfied after all students were released, after the search was conducted, that the school was safe, and they were allowed to return to classes the following day.”

Individual students were searched for weapons by pat down, with male officers searching male students and female officers searching female students, Blair said, but that procedure found nothing suspicious and did not result in, for example, asking students to empty their pockets. Contents of bags and purses were searched more thoroughly, he said. The search faced practical problems in that about 1,600 students were on the premises at the time, he said.

As to the charges, Blair said, “The following day, the school resource officer was able to receive some tips from a few students and narrowed down the group of students that the comment came from to about four students, and then questioned those students individually, and basically was able to determine one of the students that actually made the comment, and the students that made the comment ended up admitting that he had made the comment.”

Asked why the comment might have been made, Blair told Motif the student said “that he was reenacting a video game. That was the statement he had made to the school resource officer, and obviously there’s a lot to that because he didn’t come forward and say, ‘Oh, no, I was just, you know, joking,’ or whatever, the day before, ‘I was making this comment,’ because it would have probably alleviated some of the issues, or much of the issues that took place the day before, but he didn’t do that. So whether that’s true or not, we don’t know. He didn’t have a gun with him; he was checked. He didn’t have access to guns as far as we know; that was followed up on. So basically, just a foolish comment made by a juvenile that kicked all that off.”

We asked Blair whether consent to search was sought from either the students or their parents and guardians. “No, no, and the reason for that is because of the exigency of the issue at hand. Obviously, a student may have a gun or comment that someone in the school had a gun, we had to make sure the student population was safe. There’s a public safety exception to the search warrant requirement, which is kind of what we would operate under in that circumstance: exigent circumstances, one, and then public safety exception would be number two. And we use kind of those exceptions to the search warrant requirement, which are well established in Supreme Court law, to conduct the least intrusive method of search that was available to us, which was the pat down search of the students to make sure that they were safe and get them out of there safely.”

What would have happened if a student refused to be searched? “We would have still had to search them or bring them into another area to hopefully reason with them if it was that big of an issue where they refused, and we would have gotten school staff and/or parents involved. That didn’t happen. No, I think as a matter of fact, quite the opposite thing happened where, at least from the feedback we got the parents were, as a general rule, overall satisfied with our response to the situation,” Blair said, and no one objected “get a warrant.” Could they discipline that student? Could they suspend that student, prohibiting them from entering school premises? Even worse, could they physically forcibly search that student? In short, can the school draw an adverse inference that a refusal to be searched constitutes a threat per se?

Did the school and the police handle this correctly? On social media, the bulk of comments approve of the dragnet search of all students, but it is important to step back and look at, among other things, the law.

Police would never be allowed to conduct such a dragnet search of all people in a public place, such as a shopping mall, outside of a school setting, on the basis of an unattributed claim that someone heard someone else mention a gun, although Blair made exactly the opposite argument: “You can’t take the the situation outside of the circumstances that were at hand, which was we weren’t able to identify the students at all. So at that point, it’d be similar if there was a lockdown at a shopping mall, the same circumstances would have been undertaken.”

Citizens have a basic constitutional right, in the words of the Fourth Amendment, “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures…” (The RI State Constitution has a similar provision.) In practice, this means police must have probable cause, or at least reasonable suspicion, to seize (detain) a person and search them, and by definition such probable cause or reasonable suspicion applies only to a particular individual or small group, based upon evidence pertaining to them specifically.

The courts have held that while the Fourth Amendment protects school students, in the landmark 1985 US Supreme Court decision in New Jersey v. T.L.O., educators need only meet the lower standard of “reasonable suspicion” rather than “probable cause” in a school setting. In that case, two students were caught smoking tobacco cigarettes in the school restroom and one of them, identified by her initials “T.L.O.,” denied participating, after which the vice-principal searched her purse and found marijuana, rolling papers, a pipe, and – most damningly – a list of customers who owed her money from dealing drugs, as a result of which she was expelled and criminally charged.

The reasonable suspicion standard, enunciated in the 1968 US Supreme Court decision in Terry v. Ohio, requires “specific and articulable facts” – precisely the opposite of a dragnet search of everybody. Courts on many occasions held dragnet searches illegal, as in the 1979 US Supreme Court decision in Ybarra v. Illinois, holding that a search warrant for a bar and its bartender did not allow the police to search the customers who just happened to be in the bar.

Steven Brown, executive director of the RI chapter of the American Civil Liberties Union, told Motif, “The intrusive search of every student in the school under these circumstances is very troubling, but I am not sure there would be strong legal grounds for challenging it. Unfortunately, the courts have upheld mass searches of students under circumstances much less fraught than this.” Brown pointed to a 2011 US First Circuit Court of Appeals case, ironically involving the Coventry public schools and police a decade ago, Lopera v. Coventry, 640 F.3d 388, where a bitterly divided panel voted, 2-1, to affirm a lower court summary judgment of a lawsuit that arose out of a high school boys competition.

In Lopera, the Central Falls soccer team played as visitors against the Coventry soccer team, and immediately afterward there were allegations by about 20 Coventry football players – not soccer players – that the Central Falls players had stolen iPods and cell phones from their locker room. As the appeals court explained, “Central Falls is a racially diverse community, and the Central Falls team consisted entirely of Spanish-speaking Hispanic players, save for one Portuguese player. Coventry, by contrast, is predominantly non-Hispanic and white, and its high school reflected this. The Central Falls players allege that Coventry players uttered racial epithets during the game, calling them ‘spics’ and demanding that they speak English.”

The Central Falls coach, along with his assistant coach, searched his players and their bags, satisfying himself after a half-hour that nothing had been stolen, but then, the appeals court further summarized, the coach “testified, a crowd of fifty or sixty Coventry students and adults had gathered around the bus… members of the crowd yelled that they knew his players had the items. He testified that students and adults in the crowd stated that the players were ‘from the ghetto,’ knew how to ‘hide things’ and ‘lie good,’ and could not be trusted. The players recounted similar accusations and vitriol, including racial slurs like ‘spic…’ He also testified that members of the crowd stated that they would not let the Central Falls players leave until the items had been found.”

Someone called the Coventry Police and reported something like a fight or riot, causing several cars to respond and box in the Central Falls bus. The police then conducted their own search of the Central Falls players after obtaining the consent of their coach, although he later claimed that he was placed under duress by the near-riot and therefore his consent was not voluntary. No stolen items were ever found, and Coventry Police escorted the bus out of town for the safety of the Central Falls team.

At no point, it must be emphasized, did the appeals court hold that the search was actually legal: instead, the issue was whether the Coventry Police could have reasonably believed that the Central Falls coach had authority in loco parentis (in the place of a parent) to consent to the search of his players and whether they could have reasonably believed that his consent was voluntary. That’s the way qualified immunity for the police works: in the words of the appeals court, citing Supreme Court precedent, “The qualified immunity defense ‘is designed to protect “all but the plainly incompetent or those who knowingly violate the law.”’”

The ruling in Lopera was 2-1, with Judge O. Rogeriee Thompson dissenting on whether the consent to the search by the coach could be voluntary: “The appellants, a team of young Hispanic soccer players from Central Falls, Rhode Island were subjected to shockingly disgraceful and humiliating conduct by the police and their fellow citizens alike while visiting another high school in Coventry, Rhode Island. After playing a tense game against Coventry’s team, the Central Falls players were surrounded by a mob seething with racial animosity and casting false accusations of theft… My colleagues think that a reasonable officer would be unaware of the duress this state of affairs would inspire in the team’s coach… while he was surrounded by an angry mob and unable to depart with his players left little room for choice.”

The decision in Lopera acknowledges the considerable jurisprudential uncertainty about the scope of authority of school officials to search students, noting that T.L.O. limits but does not eliminate their ability to act in loco parentis, citing the 1995 US Supreme Court decision in Vermonia Sch. Dist. 47J v. Acton, ruling students whose parents refused consent to their being drug-tested could be banned from athletics.

Blair said about the recent gun search, “We operated under exigency, which those requirements are less restrictive, when you have a public safety emergency, and especially when you’ve got the safety and welfare of 1,600 students and 300-plus staff members at a public school, on top, in light of, what’s gone on in our country over the last couple decades. We take those things seriously. So that’s how we operate.” Asked directly to clarify, Blair confirmed that he was talking about school shootings.

But exigency is a legal doctrine that applies specifically and narrowly as an exception to seeking a judicial warrant when it would be otherwise required, such as to prevent the imminent destruction of evidence, and it is difficult to see that the police would not have had time to do that. The school was already locked down, there was a substantial presence of police officers and rescue workers, and calling a judge would have taken as little as 15 minutes. But would a judge have granted such a warrant for a dragnet search? Probably not.

Searching every student in a school is clearly a violation of the T.L.O. standard of “reasonable suspicion” which, by definition, must be based upon specific and particular information. The school officials and police in Coventry were certainly motivated by a fear that a student may have had a gun in school, but despite honorable intentions they have to accept that even high school students live in a free society with fundamental civil rights that must be respected. Blair was eloquent in defending each step of the process that his department followed, and it seems evident that they have the support of the community.

But a gun is not a magically dangerous object where mere possibility that someone may have mentioned one in a school hallway justifies the wholesale abrogation of basic civil liberties: remember that no one saw a gun, no one identified who possibly had a gun, and the dragnet search – regardless of its illegality – in fact found no gun. Even assuming for the sake of argument that an overheard remark constitutes a sufficient threat, “He has a gun” is still very different from “I have a gun” and nowhere near “I’m going to shoot someone.”

If a student who was subjected to the gun search sues, Coventry would try to argue a qualified immunity defense that there is no authoritative court decision saying they were in the wrong, but that is far from saying they were in the right. Given Coventry’s legal history of defending in court what Judge Thompson called “a mob seething with racial animosity,” this should be a road they are reluctant to travel.

Brown of the ACLU said, “We have not received any complaints about the [recent gun] searches. If we do, however, we will look into it more closely.”

As of press time, the Coventry superintendent and high school principal did not return telephone messages from Motif.




Meet Charlotte: One of the first RI children protected by COVID-19 vaccine

Charlotte O’Gorman, age 10, displaying her card outside the Sockanosset center, one of the first children in RI to receive the Pfizer pediatric COVID-19 vaccine. (Photo: Maureen O’Gorman)

Maureen O’Gorman was so eager to schedule a COVID-19 vaccination for her 10 year-old daughter Charlotte that she began refreshing her web browser repeatedly 15 minutes before appointments opened yesterday at 2:00pm. They were able to obtain a 7:30am slot this morning at the state-run Sockanosset facility when it opened, making Charlotte one of the first in RI to receive a dose of the Pfizer pediatric vaccine.

In addition to vaccination appointments at state-run facilities and independent pharmacies at vaccinateri.org there will be children-only clinics at schools with a continuously updated list at covid.ri.gov/5to11vaccine. Every school clinic is open to all children aged 5-11 regardless of which school they attend or where they live. Chain pharmacies (including CVS, Walgreens, Walmart, and Stop and Shop) offer scheduling through their own web sites. Family and pediatric medical offices are in many cases offering vaccinations with further information available by contacting the office directly. (See “RI Children Ages 5-11 Likely Start COVID-19 Vaccinations Nov 8”, by Michael Bilow, Oct 27.)

UPDATE: On November 5, the RI Department of Health (DoH) cautioned that it is important to register for vaccination in advance: “Vaccination sites plan the amount of vaccine to have on hand using registration information. People who arrive at vaccination clinics without appointments may not receive a vaccine if there is not enough supply at the clinic. Registering in advance is the best way to guarantee that a dose will be on site for your child.”

Charlotte herself has been eager to be vaccinated. When she received her flu shot a few weeks ago, she joked that she was “practicing” for her COVID-19 shot. “Everyone there, they were really comforting. ‘It’s not going to hurt. We’ve got your vaccine.’ Everyone was very nice. It was fun,” Charlotte said about her experience, but “I don’t feel any different.” The Band-Aid hurt more than the shot, she said.

Maureen said that the facility was well set up; she was surprised there were not more children in queue, but guessed that the early morning time might not be popular although hers was one of three or four family groups in that time slot. It worked out well for them, she said, because they could go on their way before school and work.

“They had a separate shot area. They had three stations set up to handle kids in a separate area with a separate waiting space. There were coloring pages during your wait period. They gave all the kids a fidget spinner. They asked which arm they wanted,” Maureen said. “There are three kids named ‘Charlotte’ getting their shot at Sockanosset today,” so the facility was careful to distinguish by surname and date of birth, she said.

Maureen works as an educational supervisor and as an adjunct college professor. “I decided to get Charlotte vaccinated because, with the holidays coming up, she’ll be mixing with people of all ages and I want to make sure that everybody involved is as safe as possible, for her health and the health of those around her. I also consider it very high priority because I work in a congregate care setting… that’s had several outbreaks, so she’s at high risk of exposure through me,” she said. “I want to keep her as safe as possible. At the beginning of this, she actually stayed with relatives, but now that’s not practical because of the spotty nature of the thing and she has to go to school in person.”

Nationally, non-profit organization focusing on health issues KFF reported parents of children aged 5-11 attitudes toward COVID-19 vaccination: 34% eager, 32% wait and see, 7% only if required, and 24% definitely not. KFF separately explained, “This means there initially will likely be high demand for vaccines, when scale up and distribution issues noted above may pose challenges. After this initial surge, however, the primary challenge is likely to shift to addressing concerns or questions that contribute to reluctance to vaccinating younger children.”

Parents of children 5-11 on COVID-19 vaccination: 34% eager, 32% wait and see, 7% only if required, 24% definitely not.
(Source: https://www.kff.org/coronavirus-covid-19/poll-finding/kff-covid-19-vaccine-monitor-trends-among-children-school/ )

The RI Department of Health (DoH) recommends COVID-19 vaccination for everyone eligible. DoH said in a statement yesterday, “Children of all ages can become ill with COVID-19. Most children do not become as sick as adults. However, some children become severely ill with COVID-19. Children with underlying conditions, such as obesity, diabetes, and asthma, may be at higher risk of serious illness with COVID-19. Since the start of the pandemic, 194 children 14 and younger have been hospitalized in Rhode Island with COVID-19. Additionally, children can spread COVID-19 to the other people in their lives (who may be more vulnerable).”

A personal experience started Maureen thinking that an encounter with COVID-19 infection could “come back to haunt” Charlotte long into the future: before she was old enough to attend school herself, Maureen caught chicken pox from her older brother, a typical childhood case that was almost forgotten until decades later, in 2020, when she had an outbreak of shingles as an adult.

“I know that in most kids COVID-19 is not a big deal, and you could probably count on one hand the number of children my daughter’s age who have died of COVID-19, but nowadays post-polio syndrome is a thing and people who had chicken pox get shingles [later in life]. We don’t know what the COVID virus that lies in your body is going to look like in 30 or 40 years. So I’m kind of thinking long-term on this. I don’t consider her high-risk at this moment in time; of course she could get COVID and she is low risk for immediate danger now, however I don’t know what carrying COVID in her body for 30 or 40 years, what that would look like. So my middle-aged daughter will be thanking me someday.”

Maureen emphasized, “Charlotte will never get shingles because she got the chicken pox vaccine. Charlotte will never get post-polio because she will never get polio thanks to a vaccine. I do not know what post-COVID will look like in 2058, but Charlotte will never need to worry about it.” In other words, from a cost-benefit perspective the risks of not vaccinating are substantial and unknowable, while the risks of vaccinating are quantifiable and understood.

“I don’t have any anxiety about the vaccine. My understanding is the only serious side effect is the myocarditis [heart inflammation] that’s only been an issue with males, and insofar as I’m aware there are no cases of that not resolved successfully,” she said. “It’s easy for me to be brave and say I have no concerns about the vaccine, but I have a daughter so, right then and there, we’re talking about a myocarditis risk that goes from a very slim chance to effectively zero chance,” she said.

Disclosure: Maureen O’Gorman is an occasional contributor to Motif. She wrote about the first day of drive-through COVID-19 testing in RI (“Drive-Thru for COVID-19 Test: These efficient test sites will help RI reach the goal of testing 1,000 Rhode Islanders a day”, Apr 1, 2020).




News Analysis – William Blackstone: The First White Guy

Statue of William Blackstone, Pawtucket, Rhode Island, at the corner of Exchange Street and Roosevelt Avenue. Based upon historical accounts, the subject is portrayed holding a book while riding a bull. The sculptor is Peruko Ccopacatty.
(Photo: Michael Bilow) (License: CC BY-SA 4.0)

On Indigenous People’s Day, an alternative to the official Columbus Day holiday on October 11, 2021, a few dozen attendees at Veterans Memorial Park in Pawtucket protested the recently erected stainless steel statue of William Blackstone, who is primarily remembered because the Blackstone River and Blackstone Valley were named for him.

Children with the sign they made at the William Blackstone statue protest, Oct 11, 2021.
(Photo: Michael Bilow)

In a speaking program that lasted about two hours, many speakers expressed objections to the statue and demanded it be taken down. (Full audio available here: motifri.com/wp-content/uploads/2021/10/blackstone-audio.mp3)

Melissa DaRosa, Pawtucket City Council member, at the protest of the William Blackstone statue, Oct 11, 2021.
(Photo: Michael Bilow)

Melissa DaRosa, an at-large member of the Pawtucket City Council, attended the protest, she told me, “to stand with the Narragansett Indian tribe and to learn more about what this monument signifies… some people are saying this is capturing a beautiful history but for some that history is less beautiful.” I asked her, “What’s your objection specifically to the Blackstone statue?” She replied, “Would we put up a statue of Hitler?”

But Blackstone was far different from Hitler. As the marker at Blackstone Memorial Park near his burial site in Cumberland notes, he was “founder of the town of Boston, and the first white settler in Rhode Island.” He was otherwise unremarkable, even forgettable: an Anglican clergyman born in England in 1595, he sailed to North America in 1623 and settled what is now Boston. He had a falling out with the Puritans (who were anti-Anglican) that led him to relocate to what is now Cumberland, Rhode Island, in 1635, a year before Roger Williams settled in Providence. He had neither slaves nor servants, cultivated new species of fruits and vegetables, lived alone in the solitude of the woods with a large library of books until he married at the age of 64, had a son, and died at the age of 80 in 1675 – about a month before the outbreak of King Philip’s War that would mark the utter collapse of relations between the settlers and the indigenous Native Americans.

Bella Noka, member of the Narragansett Tribe of Native American Indians, speaking from the stage at the William Blackstone statue protest, Oct 11, 2021.
(Photo: Michael Bilow)

Bella Noka, a member of the Narragansett Tribe who organized the protest, said she wanted the statue taken down. “If I were to be raped, and I was to be violated in the worst way possible, do you think I want to walk by that same man every single day and look him in the face, and people praise and see a statue 14 feet high, looking down at me every day? No, I would not,” she said. “To think that they can even raise a voice on what this man has done, the atrocities that they have done. He’s not the only one: I’m not blaming just him. There were hundreds of them, there were thousands of William Blackstone… He’s just another face. But you think because somebody wears a collar he was a righteous person? Well, ask all the altar boys how great the priests were.”

Pawtucket resident Jax Adele Ventura holds a sign at William Blackstone statue protest, Oct 11, 2021.
(Photo: Michael Bilow)

In her view, Blackstone bore responsibility for the entire settler program. “Blackstone is the one who afforded that [mindset] that you can come in and take over our land. He died with 200 acres. How did he get those 200 acres? Did we just give it over to him because he’s a jolly good old friend? No, it was taken. We don’t give up land and we didn’t have a value on land, because land does not belong to people. It belongs to Mother Earth as the creator. We are to protect her. We are to give to her because she gives so much back to us. So, for them to come and have ownership and parcel things off, in the name of greed, or their right to do that is a shame on them.”

Historically, Blackstone had good personal relations with Narragansett chiefs Miantonomi and Canonchet and with Wampanoag chiefs Massasoit and Metacomet. Both Blackstone and Williams opposed the “doctrine of discovery,” the legal justification that European settlers could claim land without the consent of the indigenous aboriginal residents; both argued that proper title to land required treaties with and payments to Native Americans. (See “Providence Plantations: The Real History”, by Michael Bilow, Jul 13, 2020.)

Randy Noka, member of the Narragansett Tribe of Native American Indians, at William Blackstone statue protest, Oct 11, 2021.
(Photo: Michael Bilow)

It was Randy Noka, the husband of Bella Noka, who in a wide-ranging 40-minute interview asked what seemed the most resonant question: “Why put up a statue about him, if he was such a recluse then what the hell’s he doing being recognized like that for?” I answered, “My guess, and I don’t know this, I think the city was just totally blindsided by it, they figured the river is named after him, the valley is named after him, his name’s on everything.” Noka pointed out that these names replaced Indian names: “It was the Pawtucket River, Pawtucket Valley. Whoever changed the name… if he was such a weirdo out in the wilderness and kissing trees and whatever, then why the hell, why change the river? What did he do, even for his own kind?”

I asked, “Are you saying that being the first white settler in the land, he doesn’t deserve a statute for that?” Noka answered, “Oh, he’s the first one, so we’ll put up an ugly – no disrespect to the artist – an ugly monument, rename a river, rename a valley, whatever, because he was the first white guy. How prejudiced is that? How about the first Black guy that came here? They don’t know that person because he was probably brought from Africa as a slave.” Eventually, Noka summarized his perspective: “He went over in the woods, lived by himself, but happened to be the first white guy, so let’s put up a statue, rename a valley and a river. Well, that’s even more insulting!”




RI Children Ages 5-11 Likely Start COVID-19 Vaccinations Nov 8

Children in RI could start receiving COVID-19 vaccinations on November 8, 2021, “give or take a few days,” Department of Health (DoH) staff member Tricia Washburn told a meeting of the DoH Vaccine Sub-Committee on October 27.

The prior day, the US Food and Drug Administration (FDA) Vaccines and Related Biological Products Advisory Committee (VRBPAC) voted 17-0-1 to recommend authorization of a Pfizer vaccine for children. While the Pfizer adult vaccine had previously been authorized for age 12 and older, the vaccine for ages 5-11 is a new pediatric formulation with one-third the dose; data submitted by Pfizer showed it to be 90.7% effective in preventing symptomatic COVID-19. The pediatric formulation is color-coded in orange packaging to prevent confusion with the adult formulation in purple packaging.

Although the FDA usually follows the recommendation of its advisory panels of experts, it is not required to do so. UPDATE: Late in the afternoon of October 29, the FDA officially issued an emergency use authorization (EUA). UPDATE: Final CDC authorization was issued in the evening of November 2, and RI began vaccinating children on November 4.

While the FDA is a regulatory body that decides whether a drug is safe and effective, after FDA authorization it is the role of the US Centers for Disease Control and Prevention (CDC) to recommend appropriate use, and its Advisory Committee on Immunization Practices (ACIP) is scheduled to meet on November 2-3 to consider use of the pediatric vaccine, including for which patients it may or may not be appropriate.

Many of the VRBPAC members expressed concern that the data were based on small studies with an insufficient number of participants to detect rare adverse reactions that may occur less frequently than 1 in 10,000 vaccine administrations, thereby making cost-benefit analysis difficult because most children infected by COVID-19 have mild cases. Rare adverse reactions such as heart inflammation (myocarditis and pericarditis) can be painful and require hospitalization, but so far have resulted in fairly quick full recovery.

It is hoped that the lower-dose pediatric formulation will reduce risk of adverse reaction relative to the adult formulation. The consensus was that for some children, especially those with existing medical conditions that leave them at high risk for severe complications if infected, the benefit of vaccination is clear. For the average healthy child, however, while vaccination does protect the child being vaccinated, the main benefit of vaccination is to protect others and the community as a whole, raising a question of medical ethics as to whether it is appropriate to expose them to risk, however small, of adverse reactions. For this reason, the VRBPAC members cautioned, COVID-19 vaccine mandates or requirements for children would be premature, and they expressed the hope that the ACIP guidance would respect the rights of individual families to decide to defer vaccination for young children.

Assuming the FDA emergency use authorization (EUA) and CDC guidance are in place by November 4, Washburn said, state-run vaccination facilities, such as Sockanosset, could begin vaccinations for ages 5-11 around November 8.

“November 4 is the ‘best possible case,’ assuming CDC issues final guidance and any clinical recommendations by that date, and we have all admin operations for state sites ready to go,” Washburn told Motif via e-mail. Administrative work includes incorporating the FDA and CDC guidance into informed consent forms on the web registration system and translating this into multiple languages. “The team works pretty quickly and it is possible but I am very cautious with setting expectations, so that is why I said it could be sometime before or after November 8. There are some sites like pharmacies, doctor’s offices, hospitals and federally qualified health centers that are ready to start on Nov. 4, assuming CDC comes through by that date, as they run their own registration systems.”

The state expects an initial allocation of 27,000 doses of the Pfizer pediatric vaccine in three tranches of 9,000 doses each, following the EUA first in 1-5 days, second in 3-7 days, and third in 5-9 days. After that first week, supply is expected to flow at 9,000 doses per week, making available a total of 108,000 doses by early January 2022. In addition to the doses supplied through the state, the Federal Retail Pharmacy Partnership (FRPP) is expected to receive an initial allocation of 13,500 doses in the first week after EUA and continuing to receive 4,500 doses each week after that, a total of 54,000 doses by early January 2022. Because each child requires two doses, supply will be sufficient to vaccinate 81,000 children, comprising the entire age 5-11 population of RI.

COVID-19 vaccinations are completely free to patients by federal government regulation, so parents who choose to have their children vaccinated by their regular pediatricians will be exempt from co-pays and other fees such as office visits if the only service provided is vaccination.

Several members of the Vaccine Sub-Committee expressed concerns that pediatric offices may be choosing not to participate in COVID-19 vaccination programs because it takes more time to vaccinate children than adults, especially if there is significant counseling involved to address cost-benefit concerns. While none suggested a desire to bill patients directly, they suggested the state work with insurers to create a separate billing code for the 15-30 minutes of counseling expected to accompany pediatric vaccination, a concern especially for clinics and practices serving large Medicaid populations where the economic operating factors are already at the margins.

As of the meeting, of the 134 family and pediatric practices in RI, 40% are ready to administer vaccinations, 19% have started but not completed the process of being ready, and 40% have not started.

Each of the 39 cities and towns in RI will hold at least two pediatric vaccination clinics to administer first and second doses. Local education agencies (LEAs) will hold clinics in schools. High-density communities (HDCs), such as Central Falls, will hold additional clinics due to higher prevalence of infection and reduced access to health care services. On-line events providing vaccination information will be conducted in both English and Spanish.

In other news, the Vaccine Sub-Committee was told that, as of October 22, about 47,000 booster doses have been administered in RI with strong demand.

RI has reached 90% partially and 82% fully vaccinated of the population age 18 and older, corresponding to 78% partially and 71% fully vaccinated of the total population.

The state continues to invest substantial effort to close the gap in vaccination for those Black, Indigenous, and People of Color (BIPOC) with weekly rates exceeding those for the non-BIPOC population since May, holding more than 700 clinics to address “cold spots” where rates were lower than statistically expected.

Fully vaccinated rates among non-college students age 12 and older continue to vary enormously by geography, with wealthier municipalities such as Barrington and East Greenwich reaching 80% while poorer ones such as Pawtucket (41%), Providence (40%), Woonsocket (36%), and Central Falls (35%) well below.