ACLU News

Why is the Trump Administration Trying to Tear This 26-Year-Old DACA Recipient Away From Her Child?

Anahi Jaquez –Estrada is scared. As soon as Monday, she may be deported to a country she hardly knows: away from her 8-year-old daughter and her husband, both of whom are United States citizens. She has lived in the U.S. almost her entire life and is in the process of becoming a lawful permanent resident. Her story is at once exceptionally tragic and a paradigmatic example of how our immigration legal system is failing — and tearing families apart.

I met Anahi in late July at the Immigration and Customs Enforcement (ICE) detention site in Aurora, Colorado, where she has spent the last year and a half. She shared her story through tears. She came to the U.S. at age 3 and grew up in the small town of Wiggins, Colorado. She was president of her senior high school class, played volleyball and basketball, and graduated with honors.

“I know my story [is] maybe one of a million stories regarding immigration, but I pray many people read [it].”

We are sharing her story here in the hope that it will shame the Department of Homeland Security into putting the brakes on her deportation — a step that would not only be compassionate, but logical.

Anahi has an approved petition for residency based on her marriage to a U.S. citizen and has filed an application for adjustment of status — if she wasn’t about to be deported, she would be free and awaiting her green card. The dark irony of her situation is this: While one arm of DHS is processing her green card application, the other is fighting in court to take her from her family and deport her before her application can be approved.

“I am truly scared I will be deported before my green card gets approved. With that I will [be] leaving my baby girl behind. The only difference from her to me is she is growing up without her mother.”

Her daughter Yasailie was born with a cleft palate. Since Anahi’s detention, 8-year-old Yasailie has been diagnosed with depression and borderline bipolar disorder. She is struggling in school, back in Wiggins, Anahi’s hometown.

Anahi describes her situation in a letter from August 14 to the ACLU:

“482 days of tears, fear, stress and confinement!”

Anahi had DACA status since 2015, but her nightmare began in 2018 after she pled guilty to misdemeanor insurance fraud and lost her DACA status. An insurance agent, she improperly sold insurance due to what her lawyer called “misplaced compassion for her home-owning client.” Though she never served time, she received a deferred sentence, she lost the protection that DACA status had conferred on her. In spring 2018 ICE detained her and placed her in deportation proceedings despite the fact she’s lived in the U.S. for more than 24 years.

ICE initially released her on a $5,000 bond to await the outcome of her case, but her ordeal was just beginning. An immigration officer reached out to ask her to return to the ICE field office and fix an error in her bond paperwork. She asked if she would be detained again, since she might be making the trip with her daughter, but he assured her she would not be.

Anahi was right to be worried, it was a classic ICE bait and switch. She arrived at the ICE field office and was told to take a seat. She expected to review paperwork — as ICE had told her over the phone — but minutes later, ICE officers handcuffed her and took her away. Anahi’s detention in Aurora would continue for months at a site where the ACLU of Colorado has documented medical neglect and abuse.

“We face many challenges here, which include no contact visitations with our family, lack of hygiene products, bad medical attention, and bad nutrition. We at times do not get our blankets washed up to 2 or so months…. At times, we do not have toilet paper, feminine pads, or paper towels for our dorm.”

Anahi told me that after an infectious disease outbreak at Aurora, medical staff drew blood from detained women in the open dorm area. They reused the same examination pads for each woman, even “after having blood from [other] detainees drip onto it.” 

“This has been my nightmare for 482 days and counting. Being kept away physically from my daughter[,] not being able to even hug her is also very tormenting; which is something many mothers in this facility feel.”

Anahi’s lawyer had won a stay of removal pending a decision on her appeal and green card application, meaning ICE had to hold off on her deportation. But ICE kept her in detention and appealed the stay. On Wednesday this week, the Tenth Circuit Court of Appeals vacated Anahi’s stay of removal — so now ICE can deport her, despite her ongoing legal fight.

According to her lawyer, Anahi wants desperately to be out of detention. Unfortunately, ICE refuses to release her unless she consents to her own deportation. The laws and policies governing Anahi’s case are illogical, unjust, and inhumane.

And the Trump administration is deploying them to effect maximum cruelty. ICE has set an ugly price for Anahi’s freedom: losing her family and her home.

Patients’ Needs, Not Personal Beliefs, Come First in Health Care

From the start, the Trump administration has issued one regulation after another that uses religion to deny people — particularly pregnant people, people with low-incomes, and LGBTQ people — health care access and coverage. Today, we are asking a federal district court in New York to strike down one of the most pernicious of these regulations: the refusal of care rule.

The refusal of care rule, issued by the Department of Health and Human Services (HHS), allows health care providers who receive federal funds to withhold critical information and to obstruct patient’s access to essential health care invoking their personal religious or moral beliefs — even in emergencies. The rule means that even if a hospital discovers an employee would be unwilling to care for all patients equally, they have to remain employed.

This could be deadly for patients. When asked, HHS refused to even answer whether the rule would allow a paramedic to refuse to drive a patient with a life-threatening ectopic pregnancy to the hospital because the paramedic knows the patient will receive an abortion. You read that right: The federal agency whose mission it is “to enhance and protect the health and well-being” of all of us would allow paramedics to abandon patients in an emergency because they personally are anti-abortion. Everyone is entitled to their religious beliefs, but those beliefs cannot be used to discriminate against others or to deny critical health care. 

The refusal of care rule’s disregard for the harm to patients is alarming, but, unfortunately, not surprising. Early on, the Trump administration told the country that it would prioritize religious beliefs — and, let’s be clear, a very specific set of religious beliefs — above the needs of patients, regardless of the harms to individuals. And it has certainly lived up to that promise.

Indeed, the refusal of care rule is just one example of many. One of the first in this disturbing trend was the Trump administration’s move in October 2017 to roll back rules under the Affordable Care Act that ensure people have contraception coverage in their health plans without a co-pay. The Trump rule would allow almost any employer or university to block health insurance coverage for contraception for their employees or students because of their religious opposition to contraception. Fortunately, that rule has been blocked nationwide.

Then, in March 2019, the Trump administration set its sights on Title X, the nation’s only family planning program and the sole source of this kind of care for millions of low-income patients. HHS issued rules that allow health care providers to withhold information about abortion from patients — even when the patient specifically asks about it — based on the provider’s religious opposition. The administration is still trying to push trusted providers out of the Title X program and invite in religiously affiliated providers that will withhold critical information from patients. The Title X rule is already in effect, and participants across the country are being forced to withdraw from the program. Our case challenging the rules is ongoing.

Most recently, in May 2019, the Trump administration went after protections for transgender individuals and others who face sex discrimination in health care and insurance coverage. HHS has included a proposal to roll back those protections by carving out an absolute exemption for religiously-affiliated health care providers from the prohibition on sex discrimination. This would not just apply to a handful of providers: One in six patients is treated in a Catholic facility each year, and religious hospitals are also increasingly the only health care option in many regions. In 2016, 46 communities relied on a Catholic provider as their sole community hospital.

In each instance, the administration cites religious refusals as a reason to undermine the very programs they are tasked with advancing, including by pushing trusted health care providers out of those programs and by inviting providers into health care programs that withhold critical care and information from patients.

It’s clear that the Trump administration is doing everything it can to strip patients of protections that ensure that they get the proper health care, and is ignoring the devastating consequences of being denied care, including by our clients who were turned away from religiously affiliated hospitals when they needed treatment

If this rule goes into effect next month as planned, the harms to patients and the health care providers that care for them will be real and exceedingly difficult to mitigate. That’s why we’re heading to court today to protect patients and make sure that the Trump administration does not do any more damage to health care access.

Unveiling a State-by-State Plan to End our Mass Incarceration Crisis

The United States locks up more of its people than any other nation in the world. A whopping 2.2 million people are living behind bars in this country on any given day. Our national incarceration rate is four times that of Australia, five times that of the United Kingdom, and six times that of Canada.

This uniquely American problem is not one crisis — rather, mass incarceration is a series of state-based catastrophes, each one different from the next. While much attention was paid to the federal reforms passed last year through the First Step Act, of the 2.2 million people locked up on any given day, 90 percent are under state and local jurisdiction.

Because the overwhelming majority of people are incarcerated at the state level, ending mass incarceration is not something that a single act of congress or a Supreme Court decision can fix. It will require changes to hundreds of laws and practices in all states.

For this reason, over the past three years, the ACLU and the Urban Institute studied the carceral systems in each state, and what it would take to cut each state’s incarceration rate by half. National data fails to guide the most impactful reforms because it misleads and masks important variations from state to state. For example: while some states, like Mississippi and South Dakota, can achieve substantial reductions in incarceration by reforming drug laws, others can’t.

We conducted in-depth reviews in each state, looking at who’s incarcerated, for what reasons, and for how long. We then analyzed the impact future reforms would have on each state’s incarceration rate, including its racial disparities and fiscal savings. We released our findings through 50 state blueprints that explain what each state can do to cut its incarcerated population in half.

This ambitious and first-of-its-kind prison population analysis of each state offers important lessons for anyone serious about ending mass incarceration.

Our findings pointed to a variety of drivers of incarceration. In many states, like Wisconsin, mass incarceration is driven by probation and parole officers sending people into jails and prisons for breaking their rules — some as simple as missing a curfew or not being able to afford a mandatory fee. In other states, it’s driven by needlessly long sentences, even for people who are ready to go back to their communities. Many states, like Michigan, also have rigid time-served requirements that impose extreme sentences on people, requiring they serve 100 percent of their time, with no opportunity to earn credits or good time for earlier release.

But we did find elements that all states have in common.

First, reductions in the number of people in prison do not necessarily translate into reductions in racial disparities. Shrinking the prison population may result in lower imprisonment rates for all racial and ethnic populations, but it will not adequately address disproportionality across populations. In fact, some of the worst racial disparities are in states that have seen the greatest reductions in incarceration. New Jersey leads the nation in decarceration and has seen over a 30 percent decrease in its prison population over the past 20 years — but it also leads the nation in racial disparities in incarceration, with a rate that is twice the national average.

Racial disparities are so ingrained in the criminal legal system that focusing solely on reducing the scale of mass incarceration cannot mitigate them. It requires a proactive strategy, one that focuses on reforming the discretionary components of the criminal legal system — mainly prosecutors and police, the two primary actors responsible for deciding who enters the criminal legal system in the first place and how to treat people once they’re in the system. This is why it’s so important to hold prosecutors accountable for decisions around which arrests to prosecute, charges to bring, bail to request, and plea bargains to offer. Similarly, we must hold police accountable for over-policing communities of color, including for practices like stop-and-frisk and broken windows policing.

Second, all states rely too heavily on incarceration, including long-term incarceration, for offenses involving violence, even though safe alternatives exist in many circumstances. The truth is, America will never end its obsession with mass incarceration unless we change how we respond to violence. Restorative justice programs which hold people accountable while supporting those who were harmed by a violent crime, have successfully reduced recidivism and decreased symptoms of posttraumatic stress with victims. These kinds of programs better protect public safety than knee-jerk responses to lock people up. For situations that may require incarceration, states should avoid extreme sentences and provide opportunities for people to rehabilitate and earn early release.

Finally, in all states, people with needs related to mental health and substance use make up a shockingly high percentage of people in prison. People with disabilities are two to six times more likely to be incarcerated than people without disabilities. Most of these people should never be brought into the criminal legal system in the first place, and incarceration only exacerbates their conditions. All states must implement reforms to imprison fewer people who would be better served by community interventions, such as voluntary treatment and diversion programs designed to help people experiencing mental health crises or substance use disorders. 

We can end mass incarceration in the United States, but it will require each state to take an honest look at the policies, assumptions, and politics that drive its incarceration crisis and implement the required reforms. Some of these reforms are readily achievable, while others are likely to be controversial. But we need audacious change to put an end to our crisis of mass incarceration.

Nebraskans Aim to End Predatory Lending with a Ballot Proposal to Slash Payday Interest Rates

Nebraskans for Responsible Lending announced this week that they will begin gathering signatures to reduce the amount that payday lenders may charge to a maximum annual interest rate of 36 percent. For loans with higher rates made in violation of this rate cap, the payday lenders would be banned from collecting principal, interest, or other charges.

Currently, payday lenders in Nebraska, also known as delayed deposit lenders, can charge predatory rates with an average annual percentage rate (APR) of 404 percent and in some cases as high as 461 percent. To put this in context, this means families who need a couple hundred dollars can end up trapped in a vicious cycle of debt they cannot break free from. The Department of Defense and Congress have already imposed a 36 percent rate cap on interest rates for active-duty military because they know that payday lenders often target military communities. This measure would ensure that Nebraska’s 150,000 veterans and all families have that same reasonable protection. 

Payday lending has also been shown to make racial inequalities worse. These lenders say they provide access to credit and cash when needed, but what they really provide is unmanageable debt. The consequences fall especially hard on communities of color where payday lending stores are located in higher numbers than in other neighborhoods, even when you adjust for income. It becomes incredibly hard for minority families to build wealth, save for the future, or have a safety net because dollars are systematically drained away. Payday loans burden Americans with more than $4 billion in fees each year in the 34 states that allow staggering triple-digit interest rate payday loans. That adds up to $28,173,908 from Nebraskans alone.

Additionally, coercive collection practices, including arrests and threats of arrest, are more prevalent in the case of payday loans. Without meaningful regulation and enforcement, the use of arrest warrants is rampant and underlies a range of coercive and abusive collection practices. Even when debt collectors cannot possibly secure criminal prosecution or jailing for an unpaid debt, some have falsely threatened debtors with such sanctions when collecting payday loans. 

Consumers in Nebraska have also been arrested for failure to appear in court over unpaid private debt judgments, including payday loans. In 2016, Nebraska judges issued an alarmingly high 548 warrants in debt collection suits. A judge may preemptively issue a warrant for the arrest and jailing of the debtor if “there is danger of the debtor leaving the state or concealing himself to avoid examination.”

Sixteen states and the District of Columbia have already enacted rate caps of about 36 percent. Payday lending is a multi-billion-dollar industry that exploits the most financially fragile. This initiative would help end predatory lending practices and ensure that consumer loans are fair and reasonable.

Paid for by American Civil Liberties Union, Inc., 125 Broad Street, New York, NY 10004

Trump Cabinet Officials Double Down on Religious Favoritism

Last Friday was a banner day for religious favoritism in the Trump administration.

In Nashville, Secretary of State Mike Pompeo delivered a “speech” that was — for all intents and purposes — a Christian sermon. Addressing an association of Christian counselors, Secretary Pompeo discussed how to be a good Christian leader, quoting scripture and urging audience members to conduct themselves in accordance with his interpretation of biblical tenets. He also commandeered State Department resources to advertise his sermon in advance, broadcast it live, and disseminate a video of it afterward using the State Department’s official social media channels and website.

As we explained in a letter sent today to the State Department’s Inspector General, this is not an appropriate or constitutional use of government resources. The Establishment Clause of the First Amendment prohibits government officials from using their office to proselytize or promote religious favoritism. All anyone needed to do to confirm that the State Department crossed this constitutional line was visit the department’s website over the weekend, which prominently featured Secretary Pompeo’s sermon, “Being a Christian Leader.”

Thus, we’ve demanded that the Inspector General launch an investigation to identify all misappropriations of State Department resources in connection with Friday’s speech, including the misuse of government employees’ time and the department’s social media accounts, website, and other technical resources. We also filed a Freedom of Information Act (FOIA) request with the State Department, seeking all documents relating to this matter.

While Secretary Pompeo was sermonizing in Tennessee, another member of Trump’s cabinet, Attorney General William Barr, was delivering his own problematic speech at University of Notre Dame Law School in South Bend, Indiana. 

From the start, the Trump administration has made clear that it favors Christians, or at least those Christians who fall in line with its anti-Muslim, anti-immigration, anti-abortion, anti-LGBTQ political agenda. Trump officials have twisted religious-liberty principles beyond recognition in an unrepentant and unyielding effort to protect and extend religious privilege to these select few Christians.

But Barr’s address Friday took things even further, incorrectly pushing the view that free government is “only suitable and sustainable for a religious people,” and suggesting that those who don’t subscribe to “Christian morality” are “foes” of democracy.  In the process, he railed at length against non-theists — or “secularists” as he calls them — accusing them of being immoral and plotting the “organized destruction” of religion.  According to him, without religion, humans are “enslaved” by “the unbridled pursuit of personal appetites at the expense of the common good” and “the possibility of any healthy community life crumbles.”

For an administration that claims to lead the fight against persecution based on religious belief, Trump officials are certainly comfortable denigrating and demonizing huge numbers of people based solely on *checks notes* what they believe or don’t.

In Barr’s view, which is shared by many Trump administration officials, the United States was founded as a Christian nation and must return to its purported roots. He’s wrong. It’s true that most people were Christian at the founding of our country and that Christianity enjoys a majority-faith status even today. But the Constitution establishes a secular government because the framers were wise enough to recognize that faith (or lack thereof) should not determine an individual’s political standing within our society and that religious freedom thrives best when the government remains neutral and avoids religious favoritism. If only the Trump administration would heed their good judgment.

Trump Administration’s New Rule Will Slam Door to Fair Housing

Fifty years after the enactment of the Fair Housing Act (FHA), housing discrimination remains a national disgrace in the United States. Across the country, a growing tide of housing providers, perhaps emboldened by Trump’s anti-“other” rhetoric, discriminate against the very communities the FHA was designed to protect. In 2017 alone, there were nearly 29,000 reported complaints of housing discrimination across the country. Despite growing diversity in population, residential segregation persists at alarming rates hurting local schools, property values, and much more. Just this year, Black homeownership rates dropped to a record low of 40.6% which is the lowest level recorded by the Census Bureau since 1950.

Despite this ongoing crisis, the Trump Administration proposed a new rule that will dismantle critical housing protections for the most vulnerable and marginalized communities.

In one of this administration’s most outrageous attacks on civil rights yet, proposed rule will make a mockery of one of the FHA’s most critical enforcement tools: the Disparate Impact Rule. The Rule allows potential victims of housing discrimination to challenge unjustified policies or practices that disproportionately harm them. Courts have recognized disparate impact liability under the FHA for decades, culminating in the Supreme Court’s 2015 decision affirming disparate impact liability in Texas Department of Housing & Community Affairs v. Inclusive Communities Project.  There, the Court explained the significance of disparate impact liability: “[H]ousing restrictions that function unfairly to exclude minorities from certain neighborhoods without any sufficient justification . . . reside at the heartland of disparate-impact liability.” Under the Obama administration, the Department of Housing and Urban Development (HUD) acknowledged this principle by formally codifying the Disparate Impact Rule in 2013, and consistently affirming the existing Disparate Impact Rule through its fair housing enforcement and guidance as recently as 2016.

But this new proposed rule will weaken existing housing protections by imposing a significantly higher burden on victims of housing discrimination to prove their claims, making it nearly impossible to prevail. This change would make it harder to challenge forms of algorithmic discrimination — such as unjust tenant-screening tools or discriminatory marketing schemes — by providing special defenses for business practices that rely on algorithms or statistics, undoing decades of progress in advancing fair housing opportunities for all.

Why does Trump want to undermine this rule? Because it works. Disparate impact liability is a tool like none other in the law with numerous examples of how it has helped dismantle the many systemic barriers to fair housing. The Disparate Impact Rule has been critical in challenging covert or disguised forms of housing discrimination that otherwise escape easy classification. Advocates have invoked the Disparate Impact Rule in challenging discriminatory zoning regulations, predatory mortgage lending practices that charge excessive rates to people of color or people with disabilities, overly restrictive occupancy requirements that shut out families with children, and policies that threaten housing for survivors of gender-based violence and women of color.  

Housing discrimination and segregation remain serious challenges for many people of color, particularly as property owners employ discriminatory screening policies. Just this year, the ACLU settled a lawsuit against a Virginia housing complex for its policy of denying any person with a felony conviction or certain misdemeanor offenses—no matter how long ago it happened or how serious the offense. The ACLU is also suing the City of Faribault, Minnesota, for its similar “crime-free” policy, which — given the disproportionate rates at which Blacks and Latinx people are charged with and convicted of crimes — unfairly hurts the most vulnerable among us. As HUD has recognized, excluding people with criminal records may constitute race discrimination in violation of the Fair Housing Act, thanks to disparate impact liability.      

HUD’s proposed rule also threatens the safety and security of domestic violence survivors — the vast majority of whom are women. Domestic violence is a primary cause of homelessness for women and families, as survivors regularly report lacking housing options as a major barrier to escaping abuse. Even if they escape the abuse, survivors face discrimination in housing as a result. Congress has acknowledged that “women and families across the country are being discriminated against, denied access to, and even evicted from public and subsidized housing because of their status as victims of domestic violence.”    

HUD itself has recognized that penalizing survivors for the abuse they endured can amount to sex-based discrimination, due to the disproportionate impact of domestic violence on women. In 2001, HUD issued a formal finding that a landlord’s policy to evict an entire household based on criminal activity at the home violated the Fair Housing Act’s protections against sex-based discrimination. The ACLU has continued to fight on behalf of survivors in need of housing by challenging similar discriminatory policies and nuisance or crime-free ordinances through the Disparate Impact Rule.  

As required by the Fair Housing Act, HUD has an obligation to affirmatively further fair housing and to address the alarming rates of segregation throughout the country. But the proposed rule will erect nearly insurmountable barriers to fulfilling the Fair Housing Act’s goals, while harming those who already struggle to obtain safe and stable housing.

Safe and stable housing is key to the well-being of individuals and families across the country. That’s why the ACLU joined a national coalition to #DefendCivilRights by urging HUD to rescind its proposed rule. The ACLU urges all to submit comments to HUD in opposition of this harmful and cruel attack by October 18th.

Amber Guyger’s Sentence Doesn’t Highlight a More Empathetic Criminal Legal System

“I’m sorry, I can’t explain that.”

That’s what prosecutor Jason Hermus said to Botham Jean’s parents after the jury gave Amber Guyger a 10-year sentence for intentionally murdering their son. Jean’s father shook Hermus’ hand and said, “You fought a good fight.”

Jean’s brother hugged Guyger, saying he did not want her to go to jail. The judge also embraced Guyger and gave her a Bible. Is this a sign of a new wave of racial healing in the criminal legal system? Could it be the beginning of the end of excessive sentences in America or a step down the road to prison abolition?

Unfortunately, it is something less hopeful, less humane, and less admirable.

America has a two-tiered criminal justice system — and while both tiers are bad, they are mostly separate and completely unequal. The most important factor for membership in the lowest tier is race. Like any rule, there are exceptions (especially for rich non-white people), but the rule is nonetheless deeply embedded in our system. Take a second to imagine that the roles were reversed in Botham Jean’s murder. 

Botham Jean is a Black Lives Matter activist. After a 14-hour day of protesting, he is talking on the phone to a married coworker with whom he is having an affair, when he claims he mistakenly walks into the wrong apartment. Inside the apartment is the actual renter, a white off-duty police officer, dressed in shorts with no pockets and eating ice cream. Jean claims he yells at the off-duty officer to show his hands, though no nearby witnesses report hearing this. He almost immediately shoots the officer twice, later admitting he intended to kill him. Let’s continue. 

At trial, Jean’s explanation for why he didn’t think of the first aid supplies in his backpack was that he was on the phone with a 911 operator, and that his mind was racing. Though Jean was trained in CPR and emergency first aid, he admits to only doing “a little CPR” and a sternum rub on the dying man. The reason he didn’t do more — he chose to stop to text his married coworker/partner.

When the question of whether the shooting was racially motivated was raised at sentencing, text messages to and from Jean are revealed (identical but reversed versions of messages sent to and by Guyger). In one message, Jean’s friend complains about a parade for a murdered white political leader who championed the rights of white people. When a friend asks, “when will this end lol,” Jean responds in jest, “When the leader is dead… oh, wait…”

Finally, two days before the shooting, a friend appeared to offer to give Jean a German shepherd with the warning, “She may be racist.” After some back and forth, Jean responds, “It’s okay, I’m the same.”

In America, BLM activist Botham Jean would not have gotten a 10-year sentence for “mistakenly” shooting a white police officer. That is because the life of a white police officer would be valued differently. Amber Guyger’s sentence is not a harbinger of racial healing in the criminal legal system, but rather a retreat to past long-standing traditions. It goes back to people who were responsible for racial terror lynchings, yet never prosecuted. It goes back to sentencings like Brock Turner’s, where a judge was unwilling to ruin the life of a young white man convicted of rape by sending him to prison. It explains how a federal judge could say that Paul Manafort lived “an essentially blameless life” in spite of evidence that he committed multiple fraudulent acts over the span of a decade.

And what about the judge hugging Guyger? Christopher Scott, a Black man who spent 13 years in prison for a murder he did not commit, provided an interesting take. Scott never received a hug from a judge in all his experiences with the criminal justice system, including at his exoneration hearing in Dallas County in 2009. “I’ve watched all of the exonerations that happened in Dallas County — I’ve never seen it,” said Mr. Scott, who founded an organization that investigates wrongful convictions. “We don’t get handshakes, we don’t get hugs, we don’t get Bibles. They just say, ‘We’re sorry for what happened to you and you are a free man to go.’” If Guyger was the first defendant this judge has hugged, I would like to know why.

The very idea that crime can be solved by locking someone in a cage is, rightfully, under attack. Not only do long prison sentences not make us safer, but they have devastated Black and brown communities across America. Prison conditions and collateral consequences are the one-two punch that creates needless roadblocks to success for people reentering their communities after incarceration. All of these critiques of our criminal legal system are true and valid, but upon deeper inspection, it becomes clear that Amber Guyger’s sentence is not a response to those critiques.

Rather, Guyger’s sentence highlights much of what is wrong with sentencing in America. It would be a travesty to confuse her sentence’s leniency —and the empathy showed to her by the court — as progress on the road to justice for people of color. 

Amber Guyger’s Sentence Doesn’t Highlight a More Empathetic Criminal Legal System

“I’m sorry, I can’t explain that.”

That’s what prosecutor Jason Hermus said to Botham Jean’s parents after the jury gave Amber Guyger a 10-year sentence for intentionally murdering their son. Jean’s father shook Hermus’ hand and said, “You fought a good fight.”

Jean’s brother hugged Guyger, saying he did not want her to go to jail. The judge also embraced Guyger and gave her a Bible. Is this a sign of a new wave of racial healing in the criminal legal system? Could it be the beginning of the end of excessive sentences in America or a step down the road to prison abolition?

Unfortunately, it is something less hopeful, less humane, and less admirable.

America has a two-tiered criminal justice system — and while both tiers are bad, they are mostly separate and completely unequal. The most important factor for membership in the lowest tier is race. Like any rule, there are exceptions (especially for rich non-white people), but the rule is nonetheless deeply embedded in our system. Take a second to imagine that the roles were reversed in Botham Jean’s murder. 

Botham Jean is a Black Lives Matter activist. After a 14-hour day of protesting, he is talking on the phone to a married coworker with whom he is having an affair, when he claims he mistakenly walks into the wrong apartment. Inside the apartment is the actual renter, a white off-duty police officer, dressed in shorts with no pockets and eating ice cream. Jean claims he yells at the off-duty officer to show his hands, though no nearby witnesses report hearing this. He almost immediately shoots the officer twice, later admitting he intended to kill him. Let’s continue. 

At trial, Jean’s explanation for why he didn’t think of the first aid supplies in his backpack was that he was on the phone with a 911 operator, and that his mind was racing. Though Jean was trained in CPR and emergency first aid, he admits to only doing “a little CPR” and a sternum rub on the dying man. The reason he didn’t do more — he chose to stop to text his married coworker/partner.

When the question of whether the shooting was racially motivated was raised at sentencing, text messages to and from Jean are revealed (identical but reversed versions of messages sent to and by Guyger). In one message, Jean’s friend complains about a parade for a murdered white political leader who championed the rights of white people. When a friend asks, “when will this end lol,” Jean responds in jest, “When the leader is dead… oh, wait…”

Finally, two days before the shooting, a friend appeared to offer to give Jean a German shepherd with the warning, “She may be racist.” After some back and forth, Jean responds, “It’s okay, I’m the same.”

In America, BLM activist Botham Jean would not have gotten a 10-year sentence for “mistakenly” shooting a white police officer. That is because the life of a white police officer would be valued differently. Amber Guyger’s sentence is not a harbinger of racial healing in the criminal legal system, but rather a retreat to past long-standing traditions. It goes back to people who were responsible for racial terror lynchings, yet never prosecuted. It goes back to sentencings like Brock Turner’s, where a judge was unwilling to ruin the life of a young white man convicted of rape by sending him to prison. It explains how a federal judge could say that Paul Manafort lived “an essentially blameless life” in spite of evidence that he committed multiple fraudulent acts over the span of a decade.

And what about the judge hugging Guyger? Christopher Scott, a Black man who spent 13 years in prison for a murder he did not commit, provided an interesting take. Scott never received a hug from a judge in all his experiences with the criminal justice system, including at his exoneration hearing in Dallas County in 2009. “I’ve watched all of the exonerations that happened in Dallas County — I’ve never seen it,” said Mr. Scott, who founded an organization that investigates wrongful convictions. “We don’t get handshakes, we don’t get hugs, we don’t get Bibles. They just say, ‘We’re sorry for what happened to you and you are a free man to go.’” If Guyger was the first defendant this judge has hugged, I would like to know why.

The very idea that crime can be solved by locking someone in a cage is, rightfully, under attack. Not only do long prison sentences not make us safer, but they have devastated Black and brown communities across America. Prison conditions and collateral consequences are the one-two punch that creates needless roadblocks to success for people reentering their communities after incarceration. All of these critiques of our criminal legal system are true and valid, but upon deeper inspection, it becomes clear that Amber Guyger’s sentence is not a response to those critiques.

Rather, Guyger’s sentence highlights much of what is wrong with sentencing in America. It would be a travesty to confuse her sentence’s leniency —and the empathy showed to her by the court — as progress on the road to justice for people of color. 

Will the Supreme Court Sanction the Use of a Religious Litmus Test For Foster Parents?

There are currently  440,000 children in foster care across the country. And the Supreme Court has been asked to hear Fulton v. City of Philadelphia, a case that could profoundly impact all of them.

In a petition filed with the court, a taxpayer-funded foster care agency is claiming a constitutional right to exclude prospective foster families that don’t meet its religious criteria when providing public child welfare services. The ACLU and the ACLU of Pennsylvania, representing the Support Center for Child Advocates and Philadelphia Family Pride, intervened in this lawsuit.

If the court were to accept the claim of Catholic Social Services (CSS), which lower courts have rejected, as we reminded the Court last week, it would shrink the already insufficient pool of families for children in need of a loving home, undermine religious liberty, and hurt governments’ ability provide services of all kinds.

But CSS is arguing the exact opposite—and they’re using some of the following myths to support its claims.

MYTH: Faith-based foster care agencies will shut down if they are forced to accept families that do not meet their religious requirements. This will reduce services available for children.

FACT: Many faith-based foster care agencies put the interests of children first and accept all families that are able to care for them.

While some foster care agencies refuse to work with families because they are a same-sex couple, of a different faith than the agency, don’t attend church, or otherwise fail to meet the agency’s religious criteria, most faith-based foster care agencies follow professional child welfare standards and accept all qualified families.

In the many states and cities across the country that require government-contracted agencies to accept all qualified families, faith-based agencies of diverse religious traditions play an important role in providing these services.

FACT: There is a shortage of families, not agencies.

When agencies have chosen to stop providing taxpayer-funded child welfare services because they were unwilling to comply with the requirement to accept all qualified families, other agencies, including  faith-based agencies, have stepped in to provide those services.

There is no shortage of foster care agencies; there is a shortage of families, and allowing agencies to turn away qualified families based on religious criteria only makes it worse.

This is why the major child welfare organizations weighed in at the Court of Appeals in support of the City. Not a single child welfare organization supported CSS’s position.

MYTH: There’s no harm in allowing some agencies to discriminate because families that are turned away can just go to another agency.

FACT: The children cannot “just go to another agency.”

Children in an agency’s care don’t have a choice about which agency cares for them. A five year old can’t raise their hand and say “please transfer me to an agency that will find a family for me based on my needs, not their religious beliefs.”

In Michigan, an agency would not place a child with his two siblings because their foster parents were a same-sex couple. When agencies take tax dollars to provide government services for children, the  needs of the children must come first.

FACT: Discrimination deters families from fostering or adopting.

Even if other agencies nearby don’t discriminate when families are rejected for reasons having nothing to do with their ability to care for a child, which isn’t always the case, they may not keep knocking on doors and risk further humiliation. Navigating a system that permits discrimination can be a barrier that prevents families from ever coming forward.

MYTH: Allowing agencies to screen families based on their religious beliefs advances religious freedom.

FACT: Allowing the use of religious tests for participation in a government program undermines religious freedom.

Until last year, CSS excluded families that were unable to provide a pastor’s letter confirming their religious observance. We know other agencies exclude families because they are Catholic, Jewish or otherwise do not share the agency’s faith.

Allowing taxpayer-funded agencies to restrict eligibility based on religious beliefs would expose members of minority faith communities to the risk of exclusion from government programs and deny them full participation in American life.

For this reason, numerous faith leaders and organizations dedicated to religious liberty, including the Anti-Defamation League (ADL), the Hindu American Foundation, and Muslim Advocates, oppose CSS’s position as presenting a threat to religious liberty. There was virtually no faith support for CSS’s position at the appeals court.

MYTH: Faith-based agencies have a right to government contract on their own terms.

FACT: Taxpayer-funded government contractors do not have a right to dictate how government services are provided.

Philadelphia, like many cities and states, prohibits government-contracted foster care agencies from discriminating against qualified families.  If organizations providing government services under public contracts have a right to opt out of contract requirements that conflict with their religious beliefs, it would seriously affect how government services are provided.

Seventeen states and D.C. weighed in earlier in this case to explain that what CSS is asking for would seriously affect how government services are delivered.

“The implication of the ruling that [CSS] seek[s] is that the private organizations that provide [child welfare] services should be able to tailor contractual requirements based on religious belief to serve only those they choose in the particular manner that they choose. Such a framework would at a minimum hinder, and potentially preclude altogether, government agencies’ reliance on contractors to deliver services mandated by state law and policy to be provided to all who qualify for them.”

The Supreme Court should reject a license to discriminate in our child welfare system and put the needs of children first. The 440,000 children in our nation’s foster care system are counting on it.

Our Online Speech Rights Are Under Threat

Congress on Wednesday will examine a little-known law that has made the internet the space for self-expression and connection that it is today. The law, Section 230 of the Communications Decency Act (CDA 230), is one of the most speech protective laws Congress has ever enacted and it is now under threat.

The internet today provides us an indispensable platform to communicate freely with others who might otherwise be beyond reach. One person with an idea or a desire to create change can reach millions. April Reign coined the hashtag #OscarsSoWhite in 2015 and spawned an online movement drawing attention to the lack of representation of people of color in the nominated films.

https://twitter.com/ReignOfApril/statuses/555725291512168448

Like Reign, people around the world are leveraging the internet to fight back against anything from systemic racism to the tactics of oppressive regimes. And the benefits can be personal too — new parents needing advice on a stroller can turn to online parent message boards, home gardeners seeking lawn care tips can turn to DIY gardening blogs, and more.

This is possible because so many online forums enable speakers to communicate freely on their platforms. Wikipedia provides a free online encyclopedia in scores of languages, thanks to volunteers around the world. Yelp lets us give recommendations on anything from restaurants to nail salons. Consumer watchdog sites encourage the public to submit reports of corporate malfeasance. Environmental activists at sites like Frack Check WV ask citizens to submit horror stories about fracking in their communities. The Bed Bug Registry asks users to report bed bug infestations. And then, of course, there are Facebook and Twitter.

CDA 230 makes communication on these platforms possible by assuring online platforms that they generally won’t be liable for user-generated content. Yelp can’t be held legally responsible every time one of its users posts a potentially false negative review. The Bed Bug Registry doesn’t have to visit every hotel with a magnifying glass to confirm the public reports. And Facebook can offer a forum for billions of users to share their thoughts, pictures, memes, and videos freely without having to approve every post before it goes up.  

If it weren’t for CDA 230, no website owner would permit public posts knowing that the site could be investigated, shut down, sued, or charged with a felony over one user’s speech. Avoiding legal risk would require even the smallest blog to hire an army of lawyers to assess in real-time all content created and uploaded by users. It’s unaffordable. Instead, sites would avoid legal liability by simply refusing to host user-generated content at all. 

Of course, users make mistakes. We get facts wrong. We can be terrible to one another in ways that break the law, offend, or hurt. Bad actors can — and do — abuse the internet for nefarious and destructive purposes. But there are already safeguards in place to address harmful content not protected under the First Amendment, and Section 230 does not shield bad actors or lawbreakers. If you use Facebook to harass someone (please, don’t do that), you remain responsible for those actions.

CDA 230 also doesn’t stop online platforms from trying to cultivate orderly, pleasant, and useful sites. While the biggest social media companies, responsible for hosting the speech of billions, should resist calls to censor lawful speech, CDA 230 allows sites to delete abusive accounts, remove content that violates the site’s terms of service, or refuse to carry pornography without risking liability for the speech that they do host.

Despite these safeguards, the obvious good CDA 230 has done in creating a free, vibrant forum for speech in the modern era, and the clear harm that would result for the speech of billions should it no longer exist, some lawmakers are considering rolling the law’s protections back in ways that are poorly informed and even dangerous. One lawmaker has introduced a bill that would require a federal agency to decide whether a platform complies with a “political neutrality” requirement as a precondition for immunity. Others have proposed revoking platforms’ immunity when moderating “objectionable” content while retaining immunity for moderating “unlawful content” in good faith.

Setting aside the obvious constitutional problems with a government entity judging the political content of speech, or dictating the censorship decisions of online platforms, these proposals would make it far less palatable for online services to host others’ speech at all. If enacted, the internet’s marketplace of ideas — and our freedom to communicate online — would suffer.

The ACLU has continued to fight for Section 230 to protect people’s ability to create and communicate online. We have encouraged courts to interpret the law’s immunity provisions to enable as much free expression online as possible under U.S. law. We will remain vigilant in ensuring that the internet remains a place for self-expression and creation for all. We urge Members of Congress as they examine CDA 230’s role in the free expression to do the same.

‘Smart’ Cameras Are Now On the Lookout For Distracted Drivers in Australia

“Smart” traffic cameras that use artificial intelligence to try to spot people using cell phones while driving are being rolled out in Australia. The devices take a high-resolution photograph through the front windshield of each passing vehicle, and also capture its license plate. Each photograph is then analyzed by an AI algorithm. If the algorithm decides that the driver is touching a mobile phone, tablet, or another device, it then forwards the photograph to a human reviewer who confirms the violation and issues a citation to the car’s registered owner along with a hefty fine.

This technology represents one of the first significant examples of something that we have warned may become common: the use of smart surveillance cameras to take the place of human police officers in visually enforcing rules and regulations of all kinds. Except these devices won’t just take the place of human officers; they’ll make it possible to greatly increase the scale and pervasiveness of enforcement agents. No jurisdiction is going to station three human police officers on every highway mile and city block to do nothing but look for and issue citations to distracted drivers — but with AI cameras, the equivalent could easily be done.

The age of robot surveillance is around the corner and the watchers will soon far outnumber the watched.

The “mobile phone detection cameras” being deployed in Australia are made by a company called Acusensus, which says that its system can detect texting drivers at night, in all weather conditions, through sun glare, and at high speeds. According to the company, the “system hardware is compact and unobtrusive” — meaning easy to hide — and “detection can be performed in real-time to assist police operations.”

The company is currently pitching its product in the United States and Canada, though I have not heard of a deployment in the United States so far (and the company’s web site does not boast about such a deployment, as we would expect). I am not sure how many other companies sell competing products, though I would expect that any company with expertise in computer vision could develop a product relatively easily.

Certainly, the use of mobile phones by drivers is a very serious problem. As I’ve long pointed out, driving cannot be seen as a purely individualistic activity. What we do with and in our cars affects not just our safety but the safety of other people — and the amount of carnage on our roadways each year is devastating. As a result, driving is already a highly regulated activity. There is also substantial evidence that smartphone use while driving contributes significantly to that human toll.

But the arrival of this kind of AI monitoring technology presents us with larger decisions that we’re going to have to make as a society. Currently, cars are often considered quasi-private spaces, where people do all kinds of things, from eating to applying makeup to changing their clothes to — yes — looking at their cellphones.

We could decide as a society that the dangers of distracted driving are so high that we don’t want the interiors of our cars to be at all private, and declare them fair game for high-resolution photography that can be scrutinized by government officials. We have no independent information about how accurate the Australian systems is, or how others like them will be, though some false positives are inevitable. That means that every driver will be subject to having their photograph randomly scrutinized by the authorities.

We should expect that these devices will be able to pick up other things besides texting. Already the Australian vendor boasts that the system can be set to flag behaviors including “eating, drinking and smoking, adjusting vehicle settings (radio, etc.), and use of mobile and navigation devices in a holder.” Whether the AI can discriminate between a driver drinking a beer and a root beer is unclear, which means that a swig of any beverage behind the wheel could get a photo of you scrutinized by the authorities.

Photographs may expose other things as well, from the presence of guns or drugs to on-the-road sexual activities, as well as private things like reading material, intimate personal effects, and passengers and drivers adjusting their clothes in ways that reveal their bodies at times they reasonably believe they can’t be seen by others. In the absence of tight controls over the handling of photographs, some revealing photographs will inevitably be saved and shared for voyeuristic purposes by those whose job it is to review them.

In Australia, the vendor says that its system shows only images of the drivers, not passengers, to the human reviewers, though we don’t know how reliable the automated redaction of photos is, or whether other vendors would also follow this practice. In media reports (though not on its web site), the company also says it quickly deletes photographs in which the AI finds no sign of a violation. But in New South Wales, 8.5 million photographs were taken in just a six-month period; that kind of photographic database might prove valuable in all kinds of ways that a for-profit company would want to exploit. A system with the power of this one should never be deployed with privacy protections that depend on the promises and voluntary practices of a company; it should be subject to statutory protections.

If we decide as a society to allow these devices to be deployed, we might require that drivers be given notice of their locations so that they can adjust their behavior. Or, we might allow them to be deployed without public notice to better deter dangerous behavior. That would create a “panopticon effect” in which everybody must act as if they are being scrutinized by the authorities at every moment since they never know at what moments they actually will be, creating in drivers “a state of conscious and permanent visibility.”

That would represent a fairly significant change in what it is like to drive in America. If we make a decision as a society to routinely extend the eye of the state into the interior of our vehicles in this way, that is a decision that a) should be known to all, and b) made through transparent democratic processes. The decision should not be made by police departments unilaterally throwing the technology into our public spaces without asking or even telling the communities they serve. That is something we’ve seen happen with too many other technologies, including license plate scanners, aerial surveillance, and face recognition. In cities where our recommended “Community Control Over Police Surveillance” legislation has been enacted, democratic review will be required, but police departments in every city and state should leave this decision to the communities they serve.

The other thing we must consider if we decide to permit this technology to be used is where things will go from there. Already a number of companies are selling in-vehicle “fleet cameras” designed to monitor employees who drive for a living, subjecting those workers to constant robot surveillance and judgment. Personal vehicles, too, are beginning to feature cameras that monitor drivers for distraction or drowsiness.

And AI smart cameras may well end up covering much more mundane behaviors. We could find ourselves fined for such offenses as cutting the edge of a crosswalk or putting materials in the wrong recycling bin. (That latter scenario is not such a stretch; some municipal governments in the United States have already equipped garbage trucks with video cameras that monitor the bins being emptied at each residence to determine if the right materials are coming out of each container, facilitating fines for noncomplying residents.)

Aside from privacy issues, these cameras would also raise other questions:

• Would there be racial bias in their deployment patterns or in the adjudications that human reviewers make of ambiguous photos?

• Would decisions to charge based on photos be made by sworn police officers only? With red-light cameras, we saw deployments that gave vendors a role in deciding guilt and innocence — and running the program in ways that created financial incentives to increase tickets.

• Would the cameras be fair? Unlike a citation issued by a live officer, automated accusations arrive by mail (if they arrive at all) long after the alleged violation. That makes it harder for people to recollect the circumstances of the violation to dispute a charge based on errors or extenuating circumstances.

• As with red-light cameras, there are also fairness questions around the fact that a car’s owner is the one cited when someone else could have been driving it.

Stopping texting drivers to lower traffic deaths is the kind of sympathetic goal that new surveillance technologies are always first deployed to address. But, as we consider going down that road, we need to figure out where we will draw the line against automated surveillance, lest we end up being monitored by armies of digital sticklers scolding, flagging, and fining us at every turn.

What You Need to Know About the LGBTQ Rights Case Before SCOTUS

In three cases at the Supreme Court, the Trump administration is arguing it’s legal to fire workers for being LGBTQ.

This week the Supreme Court heard arguments in three cases in which the Trump administration is urging the court to rule that it’s legal to fire workers for being LGBTQ.

For the LGBTQ civil rights movement, this is a big moment. These cases will affect more people than the Supreme Court’s decision about the freedom to marry, and they potentially implicate a broader range of contexts in which LGBTQ people may face harm, if the Court green-lights discrimination. Worse still, a bad ruling would strip away protections against discrimination that LGBTQ people have been able to use to protect themselves for two decades. And all this in a context where nearly one in three transgender people has experienced discrimination in the workplace.

In short, the stakes are very high.

One of the cases is about the rights of transgender people and involves Aimee Stephens, who worked for nearly six years as a funeral director at a funeral home near Detroit. Earlier in her life, Aimee had considered going into the ministry, but then found her calling in funeral services, where she could help comfort people in a time of great need. Her employer knew her as a man, but Aimee knew from five years old that she was female. After decades of hiding who she really was, Aimee could bear it no more, realizing that the only way to live was as her true self. She gathered the strength to come out to her family, friends, and co-workers as a woman. When she introduced herself as Aimee to her boss, he fired her. He made no pretense about any performance reason; he openly admitted that it was because she is transgender, saying, “this isn’t going to work out.”

The other two cases both involve men who were fired because they are gay. In one case, Gerald Bostock was fired from his job as a social worker for at-risk youth after his employer found out he was gay. The third case involves is Don Zarda, who worked as an instructor for a skydiving outfit on Long Island, New York. Don had become hooked on skydiving years earlier, and it evolved from being his passion to being his profession as well. He loved introducing others to the sport. Don often took customers on tandem jumps, where they are strapped to him shoulder-to-shoulder and hip-to-hip before they jump from the plane. One day, Don told a female customer that he was gay in an effort to make her less uncomfortable with how close they were physically. He thought nothing of the remark, but his boss later fired him for sharing “inappropriate information” with a customer.

When Don called his sister Melissa to tell her he’d been fired, her first reaction was surprise and disbelief. “It’s not legal to fire you because you’re gay,” she told him. And she’s right. Lower courts in both Don’s and Aimee’s cases ruled that their firings violate federal civil rights law, because the employers treated them differently because of their sex. After all, the courts reasoned, if Aimee had been assigned a female sex at birth, her employer would not have fired her for being and living as the woman she is. And if Don had been a woman attracted to men, as opposed to a man attracted to men, he would not have been fired for sharing that information with a customer.

Big picture: it’s hard to see how firing someone for being LGBTQ doesn’t involve the person’s sex. You can’t even describe being trans or gay without talking about the individuals’ sex. At its core, the federal ban on sex discrimination is simple: workers are not supposed to be treated differently because of their sex.

There is an enormous amount at stake in these cases. LGBTQ people could lose protections against discrimination that they have relied on in many cases for two decades. Going back to 2000, federal appeals courts have ruled that anti-trans discrimination is a form of sex discrimination that violates federal law, providing a remedy for trans workers fired for who they are. The Equal Employment Opportunity Commission, tasked with enforcing the federal workplace non-discrimination law, agrees that anti-LGBTQ discrimination is a form of sex discrimination, and has recovered millions of dollars for LGBTQ workers who sued over discrimination.

And a decision in these cases could affect LGBTQ people in contexts well beyond just the workplace. LGBTQ people have relied on federal protections against sex discrimination to redress housing discrimination, to combat discrimination in schools, and to remedy discrimination in health care. All of these protections could be swept away if the court deletes LGBTQ people from the existing scope of the federal civil rights laws.

A ruling in these cases could affect non-LGBTQ people as well. A crucial Supreme Court precedent for Aimee and Don’s cases is that of Ann Hopkins. As an employee at accounting firm Price Waterhouse, Hopkins was passed over for partner and told she could increase her chances if she would "walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry." The Supreme Court ruled that requiring her to conform to stereotypes associated with being a woman demonstrated sex discrimination.

Many federal courts have concluded that firing LGBTQ people because we don’t meet employers’ stereotypes of how women and men should act, identify, and appear is just as much sex discrimination as passing over Ann Hopkins because she was considered “macho.”

But if the Supreme Court says in Aimee’s and Don’s cases that this reasoning doesn’t apply to LGBTQ people, that could spell trouble for everyone. We could return to a world where employers can fire anyone — straight or gay, transgender or not — for not being the “right kind” of woman or man. Scary stuff.

The ACLU is proud to represent Aimee and Don, and to fight alongside Gerald, as we urge the Supreme Court not to roll back the rights of LGBTQ people and not to eviscerate sex discrimination protections for everyone else in the process.

What You Need to Know About Today’s LGBTQ Rights Arguments Before SCOTUS

In three cases at the Supreme Court, the Trump administration is arguing it’s legal to fire workers for being LGBTQ.

Today, the Supreme Court will hear arguments in three cases in which the Trump administration is urging the court to rule that it’s legal to fire workers for being LGBTQ.

For the LGBTQ civil rights movement, this is a big moment. These cases will affect more people than the Supreme Court’s decision about the freedom to marry, and they potentially implicate a broader range of contexts in which LGBTQ people may face harm, if the Court green-lights discrimination. Worse still, a bad ruling would strip away protections against discrimination that LGBTQ people have been able to use to protect themselves for two decades. And all this in a context where nearly one in three transgender people has experienced discrimination in the workplace.

In short, the stakes are very high.

One of the cases is about the rights of transgender people and involves Aimee Stephens, who worked for nearly six years as a funeral director at a funeral home near Detroit. Earlier in her life, Aimee had considered going into the ministry, but then found her calling in funeral services, where she could help comfort people in a time of great need. Her employer knew her as a man, but Aimee knew from five years old that she was female. After decades of hiding who she really was, Aimee could bear it no more, realizing that the only way to live was as her true self. She gathered the strength to come out to her family, friends, and co-workers as a woman. When she introduced herself as Aimee to her boss, he fired her. He made no pretense about any performance reason; he openly admitted that it was because she is transgender, saying, “this isn’t going to work out.”

The other two cases both involve men who were fired because they are gay. In one case, Gerald Bostock was fired from his job as a social worker for at-risk youth after his employer found out he was gay. The third case involves is Don Zarda, who worked as an instructor for a skydiving outfit on Long Island, New York. Don had become hooked on skydiving years earlier, and it evolved from being his passion to being his profession as well. He loved introducing others to the sport. Don often took customers on tandem jumps, where they are strapped to him shoulder-to-shoulder and hip-to-hip before they jump from the plane. One day, Don told a female customer that he was gay in an effort to make her less uncomfortable with how close they were physically. He thought nothing of the remark, but his boss later fired him for sharing “inappropriate information” with a customer.

When Don called his sister Melissa to tell her he’d been fired, her first reaction was surprise and disbelief. “It’s not legal to fire you because you’re gay,” she told him. And she’s right. Lower courts in both Don’s and Aimee’s cases ruled that their firings violate federal civil rights law, because the employers treated them differently because of their sex. After all, the courts reasoned, if Aimee had been assigned a female sex at birth, her employer would not have fired her for being and living as the woman she is. And if Don had been a woman attracted to men, as opposed to a man attracted to men, he would not have been fired for sharing that information with a customer.

Big picture: it’s hard to see how firing someone for being LGBTQ doesn’t involve the person’s sex. You can’t even describe being trans or gay without talking about the individuals’ sex. At its core, the federal ban on sex discrimination is simple: workers are not supposed to be treated differently because of their sex.

There is an enormous amount at stake in these cases. LGBTQ people could lose protections against discrimination that they have relied on in many cases for two decades. Going back to 2000, federal appeals courts have ruled that anti-trans discrimination is a form of sex discrimination that violates federal law, providing a remedy for trans workers fired for who they are. The Equal Employment Opportunity Commission, tasked with enforcing the federal workplace non-discrimination law, agrees that anti-LGBTQ discrimination is a form of sex discrimination, and has recovered millions of dollars for LGBTQ workers who sued over discrimination.

And a decision in these cases could affect LGBTQ people in contexts well beyond just the workplace. LGBTQ people have relied on federal protections against sex discrimination to redress housing discrimination, to combat discrimination in schools, and to remedy discrimination in health care. All of these protections could be swept away if the court deletes LGBTQ people from the existing scope of the federal civil rights laws.

A ruling in these cases could affect non-LGBTQ people as well. A crucial Supreme Court precedent for Aimee and Don’s cases is that of Ann Hopkins. As an employee at accounting firm Price Waterhouse, Hopkins was passed over for partner and told she could increase her chances if she would "walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry." The Supreme Court ruled that requiring her to conform to stereotypes associated with being a woman demonstrated sex discrimination.

Many federal courts have concluded that firing LGBTQ people because we don’t meet employers’ stereotypes of how women and men should act, identify, and appear is just as much sex discrimination as passing over Ann Hopkins because she was considered “macho.”

But if the Supreme Court says in Aimee’s and Don’s cases that this reasoning doesn’t apply to LGBTQ people, that could spell trouble for everyone. We could return to a world where employers can fire anyone — straight or gay, transgender or not — for not being the “right kind” of woman or man. Scary stuff.

The ACLU is proud to represent Aimee and Don, and to fight alongside Gerald, as we urge the Supreme Court not to roll back the rights of LGBTQ people and not to eviscerate sex discrimination protections for everyone else in the process.

The Trump Administration Can’t Force Colleges to Further Its Anti-Muslim Agenda

We're demanding the administration end its politicized investigation into Duke-UNC's Middle East Studies program, and turn over all related records.

In a move that would make even Senator McCarthy blush, the Trump administration is threatening to pull federal funding from a Middle East Studies program for failing to toe the government’s line on Islam and Muslims.

Last week, Betsy DeVos’s Department of Education sent a letter to administrators of the Duke-UNC Consortium for Middle East Studies — a jointly run program that receives federal funding under Title VI of the Higher Education Act — warning that the department would cut the Consortium’s federal aid unless the Consortium submits plans to remake its Middle East studies program and curriculum to the department’s satisfaction. Among other complaints, the department demanded that the Consortium temper its portrayal of “the positive aspects” of Islam and cease “advancing ideological priorities.”

The department’s attempt to inject the Trump administration’s long pattern of anti-Muslim bigotry and discrimination into higher education represents a significant threat to academic freedom at colleges and universities like UNC and Duke. In response, the ACLU sent a letter today urging Secretary DeVos to end the department’s investigation into the Consortium and to prevent future attempts to politicize federal funding for higher education. We also filed a Freedom of Information Act request for records related to the department’s decision to investigate the Consortium as well as any similar investigations the department may have undertaken at other educational institutions that receive Title VI funding.

The origins of the Education Department’s investigation are as troubling as the letter itself. In June, Secretary DeVos ordered an inquiry into whether the Duke-UNC Consortium misused its Title VI funds to sponsor a conference on the Gaza conflict, after a member of Congress accused the conference of “radical anti-Israel bias.” As it turned out, less than $200 of federal funds were spent on the event. When this allegation didn’t stick, it appears that the department — not content to let the matter rest — scoured the Consortium’s programming to ferret out other objectionable viewpoints and purported deficiencies.

The department identifies a number of ways in which the Consortium supposedly violates the Title VI funding requirements, not only complaining about the curriculum’s inclusion of “positive aspects of Islam” but also accusing the Consortium of inappropriately “advancing ideological priorities.” As we explain in our letter to Secretary DeVos, however, it is the Department of Education — not the Consortium — that inappropriately attempts to advance ideological priorities

Although the government may attach certain conditions to the use of federal funding — such as compliance with statutory and constitutional requirements — the proud boast of our universities is that they are free from the ideological micromanagement of the government censor. Title VI does not, and cannot, authorize the government to require federal funding recipients to de-emphasize the “positive aspects of Islam” to the Department’s satisfaction. The Department’s assumption of such authority threatens core constitutional principles protecting freedom of speech and freedom of religion. 

This ham-fisted attempt to wield funding authority over the Consortium’s academic programming illustrates yet again the Trump Administration’s deep-seated anti-Muslim bias. It should also be alarming to anyone who cares about academic freedom, a bedrock principle of higher education.

Higher education institutions throughout the country are now on false notice that federal funding requires conformity to the Trump administration’s ideological standards. The Department’s ultimatum issued to the Consortium will no doubt have a chilling effect on these institutions as they determine the curricular content of federally funded programming. That’s why we’re asking Secretary DeVos to terminate the Department’s investigation into the Duke-UNC Consortium and to take affirmative measures to prevent similar politicized investigations in the future.

Colleges and universities are under no obligation to further the administration’s anti-Muslim agenda. The government has a constitutional obligation to respect that.

White Supremacist Violence Is On the Rise. Expanding the FBI’s Powers Isn't the Answer.

Expanding law enforcement's powers will harm the communities of color that white supremacist violence targets—and undermine our constitutional rights.

In response to the increase in white supremacist violence, Congress has been holding hearings — including one today — on the urgent need to address it. But, rather than getting to the bottom of why our law enforcement agencies have failed to address white supremacist violence, some lawmakers are rushing to give law enforcement agencies harmful additional powers and creating new crimes. That approach ignores the way power, racism, and national security laws work in America. It will harm the communities of color that white supremacist violence targets — and undermine the constitutional rights that protect all of us.

As we made clear to Congress, it needs to investigate why law enforcement agencies have repeatedly failed to focus resources on white supremacist violence — and hold them accountable for this failure. It needs to ask why the FBI has not even publicly reported on domestic terrorism and white supremacist violence since 2005. It needs to clarify why, earlier this year, the FBI reclassified its tracking of white supremacist violence investigations, hiding them in a broader category of “racially-motivated violent extremism.” And Congress needs to ask whether agencies have the proper training to address white supremacist violence effectively and consistent with the Constitution. Without first getting the answers to these questions, Congress — and the public — cannot know what needs fixing here.

But one fact is clear: Law enforcement agencies already have all the authority they need to investigate, prosecute, and punish white supremacist violence effectively. Congress has passed numerous and sometimes overlapping laws that cover white supremacist violence, credible and direct threats of violence, conspiracies, and attempts. It has enacted more than 50 federal domestic terrorism-related crimes, and a related prohibition on “material support” for domestic terrorism. Congress has also provided an entire framework of hate crimes that law enforcement can use for violence targeting marginalized communities. The FBI has also asserted expansive powers to investigate “domestic terrorism” under the Patriot Act.

Indeed, we have significant concerns about how the FBI and other law enforcement agencies have already used these authorities, particularly against communities of color, in ways that undermine and violate equal protection, due process, and First Amendment rights.  It is Black civil rights activists, Muslim, Arab, Middle Eastern, and South Asian communities, animal and environmental rights activists, or others that the government views as having “unpopular” or controversial beliefs who are disproportionately harmed.

For instance, the FBI has collected, analyzed, and “mapped” racial and ethnic demographic information and the location of ethnic-oriented businesses and facilities based on crude stereotypes. It has relied on domestic terrorism authorities to spy on Muslim communities, including by infiltrating their places of worship. It is targeting individuals engaged in immigration advocacy, including border groups’ activities and family separation protests. Echoing its abuses in the civil rights era, the FBI has categorized Black people as threats and has recently run a new program, titled “IRON FIST,” to spy on and investigate Black activists who call out white supremacy, including through undercover agents.

These rights-violating and discriminatory harms flow from the expansive nature of existing domestic terrorism authorities and a lack of safeguards. Under the Patriot Act’s vague, overbroad, and malleable definition of “domestic terrorism” the FBI asserts the power to investigate individuals even when it doesn’t have a factual basis for suspicion, and often for engaging in First Amendment-protected activities. And it claims it can do so using intrusive techniques such as physical surveillance, suspicionless interviews, informants, and searches of law enforcement and commercial databases.

The Department of Justice has eliminated safeguards that were put in place in the 1970s to guard against the abusive surveillance and investigation practices that were a defining feature of the FBI’s response to the civil rights and Vietnam-era anti-war movements. The Departments of Justice and Homeland Security acknowledge that bias-based profiling is unfair, ineffective, and harmful. Yet, they have permitted its use for national security—terrorism—investigations and at U.S. borders, over the objections of communities of color, and civil and human rights organizations.

Despite these facts, some members of Congress and former law enforcement officials insist on new and unnecessary domestic terrorism authorities and crimes, arguing that oversight alone will cure problems. But that hasn’t proven true; neither in the last 18 years, nor at any time before that. Racial disparities in the criminal justice system are one of the most severe forms of discrimination against people of color. New domestic terrorism-related crimes and penalties would worsen the over-criminalization of Black and Brown communities and incorporate more abusive powers into a discriminatory criminal justice system.

Congress can make our communities safer, but that requires protecting the rights of the communities that white supremacist perpetrators attack, and reforming — not doubling down on — failed strategies.

We’re in Court to Protect Family Planning Care for Millions of Low-Income Patients.

The Trump Administration is dismantling the Title X family planning program and compromising crucial health care for millions of people.

Title X is a federally funded family planning program that guarantees low-income people can receive critical health care services for free or at a reduced cost. For decades it’s been one of the most effective federal health care programs, providing a wide range of vital reproductive and other services for millions of people across the country who wouldn’t otherwise be able to afford them.

However, the Trump administration wants to undermine that success as part of an overall agenda that attacks people’s access to reproductive health care. Today, we are in the 9th Circuit arguing that the program should be protected from their efforts to destroy it.

Services that are provided under Title X include contraceptive care and information, sexually transmitted infection testing and prevention, cancer screening, and pregnancy testing and counseling.  In 2018, Title X family planning care was provided to nearly four million patients.  Two-thirds of them had incomes at or below the federal poverty level, and more than half were people of color.  For many, the providers they see through Title X are their only ongoing source of health care and health education. 

The Title X program dates back to 1970 when, at President Nixon’s urging, a bipartisan Congress enacted it to improve access to family planning and to make birth control like “the pill” and IUDs available to all regardless of their income. For nearly five decades since then, the program has been a resounding success.

 Under Title X’s previous rules, any patient who tested positive for pregnancy was provided counseling about their options, along with referrals to other providers—including abortion providers—upon request. 

But the Trump administration’s new Title X rule allows providers to refuse to provide counseling that includes all pregnancy options for any reason, including if those options violate their religious beliefs. It also requires providers to refer all pregnant patients for prenatal care, even if the patient has decided to have an abortion, and blocks them from referring patients to abortion providers.

Through this rule change, the Trump administration is attempting to kick high quality providers out of the program and remake it into one composed of anti-abortion crisis pregnancy centers that do not want to provide the most effective forms of birth control and which do not discuss—let alone refer for—abortion. This will have a catastrophic effect on low-income people who rely on Title X. Many people will lose access to high-quality family planning services along with their primary source of health care. In March, the ACLU filed a lawsuit to block the new rule on behalf of the National Family Planning & Reproductive Health Association (NFPRHA), which is a membership organization representing family planning providers across the country, including Cedar River Clinics, who we also represent in the case. 

We asked the district court to enter a preliminary injunction that would prevent the Trump administration’s new rule from going into effect.  We argued that the new rule violates the law and that if enforced, it would cause serious irreparable harm.  And we won. 

But the government appealed, asking the U.S. Court of Appeals for the Ninth Circuit to lift the injunction so that it could enforce the new rule while the case moves forward in the lower court.  The Ninth Circuit ruled in the government’s favor.  This means that the Trump administration has already started dismantling the Title X network by requiring compliance with the new rule, which has forced many long-time providers to leave the program.

Today we’re asking the Ninth Circuit to reinstate the injunction to prevent the Trump administration from further carrying out its anti-health agenda and robbing people of critical family planning care. 

Remaking the Title X program is just one piece of the Trump administration’s larger campaign to curb access to abortion and contraception at the federal level. Last year, for example, they tried to deny abortion care to immigrant minors in their custody until we stepped in, and they’re also trying to undo the Affordable Care Act’s requirement that employers and universities include insurance coverage for contraception in their health plans.These attacks, coupled with President Trump’s recent appointments to the Supreme Court, have emboldened hostile politicians to ratchet up their attacks on reproductive health care, including by taking direct aim at Roe v. Wade by passing draconian bans on abortion at the state level.

This is a concerted effort to take away people’s rights and block them from accessing reproductive health care. Taking family planning health care away from millions of people is downright cruel, and we won’t let them get away with it. We’re fighting back, and we hope you’ll join us.

It’s Time to End Forced Arbitration

The FAIR Act would prevent employers and corporations from forcing you to sign away your rights.

If you own a credit card or a bank account, use a ride-sharing service, made an online purchase, or work in corporate America, chances are you have signed a forced arbitration agreement: a promise that, if any disputes arise between you and your employer or the business, you won’t sue. Hidden in the fine-print of a contract you may not even remember signing is language that says you’ve agreed, in advance, to give up your right go to court.

But today, the House of Representatives passed the FAIR Act, legislation that would prohibit the use of forced arbitration in employment discrimination and consumer contract cases. In the wake of #MeToo, the practice is drawing increasing criticism—making the FAIR Act one of the most important reforms we can make to ensure workplace equality.

Little known to consumers and employees, the use of this sneaky practice is on the rise—it has doubled in scope between the 1990s, and currently impacts more than 60 million workers. These kinds of agreements are prevalent in female dominated industries – 57.6 percent of female workers are subject to the practice – as well as in low-wage fields and industries dominated by women of color.  One estimate shows that by 2024, forced arbitration will be in place in over 80% of workplaces, covering more than 85 million workers.

Forced arbitration has had the effect of slamming the courthouse doors in the face of victims of workplace harassment and discrimination, and is a huge boon to employers. By sneaking forced arbitration into contracts, employers and corporations are ensuring that even if you did notice what you signed, and have the foresight to imagine what you would prefer to do if a dispute were to arise in the future, you have very little choice but to sign.

Studies have shown that employees are less likely to pursue discrimination cases in arbitration, and that when they do, they are less likely to win and their monetary awards far lower than they would be in court. For example, one report showed that in 30 years, only 17 women on Wall Street had won sexual harassment claims in industry arbitration.  The  widespread use of forced arbitration agreements is one major reason that many valid sexual harassment cases, and other discrimination cases, never see the light of day — and repeat offenders are not held to account.

Companies claim that this method is more efficient and less costly than court proceedings. That can be true in some cases – and there is no doubt that it should remain an option, particularly if both parties agree to use it after a dispute has actually arisen.

But what they don’t tell you is that arbitration also lacks critical procedural safeguards — for example, permitting access to evidence from the other side that can be the key to proving your claims – particularly in discrimination cases, which often hinge on how the employer has treated other employees. The arbitrators may or may not be lawyers, and may or may not be trained in resolving discrimination cases. Results are secret, helping companies evade public accountability. The outcome is binding, and there is generally no right to an appeal.

How did we get into this mess? Congress initially blessed arbitration agreements as a tool to settle disputes between corporations, and passed a law favoring their enforcement. But a series of Supreme Court cases has since permitted the practice to spread unchecked, and to extinguish the right to go to court in a host of contexts it was never intended to reach. These include not only employment discrimination cases, but also cases brought by rideshare passengers who allege they were raped by inadequately vetted drivers; families whose loved ones were abused or neglected in residential care centers; customers who bought furniture online and discovered it was infested with bedbugs, and, most recently, in the context of class actions to improve working conditions. These cases are a far cry from what was originally intended.

But the FAIR Act could finally allow workers, consumers, and others to choose how they wanted to pursue their dispute.  This bill could solve one of the biggest problems most of us never knew we had (until it’s too late).

Forced arbitration agreements have to go.  The House has taken the first important step but our fight has just begun – the bill has little chance of passing the Senate, unless each of us takes steps to let them know how we feel about being snookered into these agreements. It’s past time to pry the courthouse doors back open again – and make antidiscrimination laws more than an empty promise.

California Is Ready to Ensure Every Public College Student Has Access to Abortion

The state legislature has passed the first bill in the nation ensuring medication abortion is available on UC and CSU campuses.

In a year when we’ve seen states throughout the South and Midwest move to ban abortion and restrict access to reproductive health, California could soon cement its reputation as a leader in reproductive freedom. This past week, the state legislature passed SB 24 to ensure that medication abortion is available to college students in public universities.

Jessy Rosales, a UC student, struggled with paying for care and dealing with the complexities of insurance plans when she needed an abortion. She had to go off campus to three different providers, which took time away from class, work, and other responsibilities. Jessy’s grades slipped as she tried to navigate the obstacles to getting an abortion. Such financial, logistical, and emotional tolls are completely unnecessary.

Every month, approximately 500 students at the UC and CSU campuses seek the abortion pill at off-site health care facilities. On average, a student seeking abortion in California will have to wait one week for the next available appointment at the facility closest to their campus — and that’s assuming they can make it to the appointment. More than half of all students in UC and CSU universities are low-income and over two-thirds of UC students and one-third of CSU students do not have a car, so cost and transportation are critical barriers for many. Students of color, low-income students, first-generation college students, and students who are already parents or supporting their families are particularly harmed by barriers to accessing comprehensive reproductive care.

State Sen. Connie M. Leyva (D-Chino) authored the groundbreaking bill to require every University of California (UC) and California State University (CSU) campus to provide the abortion pill — a safe and effective method to end a pregnancy — at student health centers. The law would eliminate barriers currently faced by students who struggle to travel off campus to obtain an abortion, which results in unnecessary hardship and delay. California’s effort to improve access to abortion care is a bright point in a national landscape that has seen access to abortion decrease significantly. In the first nine months of 2019 alone, seven states banned all or most abortions. And the Supreme Court is likely to further gut abortion rights, even if it doesn’t immediately overturn Roe v. Wade.

Student health centers already provide a range of reproductive health services including testing and treatment for sexually transmitted infections, pregnancy tests, pregnancy options counseling, and contraception. It just makes sense that the abortion pill — safe, effective, and simple to provide — should be among the services offered.

Research shows that student health centers are well equipped to offer the abortion pill, and private funders have come forward to pay the costs of implementation and training.

In addition, students and allies from across the state have built a groundswell of support for SB 24. Six in 10 Californians support providing the full range of reproductive health care including the abortion pill, including majorities of every age bracket. The ACLU of California is proud to be one of seven organizational sponsors of SB 24, which has received support from over 130 organizations, including the American College of Obstetricians and Gynecologists, the American Academy of Pediatrics, and other medical groups; reproductive health, rights, and justice organizations; and community groups from every part of the state. The Los Angeles Times editorial board came out in support of the measure, calling it a “sensible and smart addition to the healthcare services.”

Last year, California narrowly missed a chance to make history and support its students when a similar bill (SB 320) was vetoed by Governor Jerry Brown. At that time, now-Governor Gavin Newsom said he supported the bill. Today, SB 24 sits on his desk awaiting his signature.

The future of abortion rights in the U.S. may be uncertain, but California is poised to lead the nation in expanding access. SB 24 is a testament to California’s spirit of innovation, the drive of our young people, and our commitment to a better future. It sets a new standard for campus care that we can all be proud of.

AmeriCorps Adopts Health Screening Process That’s Fair to Candidates with Disabilities

Susie was disqualified from AmeriCorps NCCC for seeking therapy. Now they're changing their screening process so everyone can apply to serve.

Susie Balcom was overjoyed when she received a conditional offer to serve as a support team leader in Mississippi with AmeriCorps National Civilian Community Corps (NCCC), a national, residential service program for young adults. After graduating from college with a 4.0 GPA and spending two terms in the AmeriCorps state program, Susie was ready, willing, and able to fulfill her dream of serving in the national program.

However, a few weeks later, AmeriCorps NCCC told Susie that she was disqualified from the program.

As part of the application process, Susie completed a detailed medical questionnaire in which she disclosed that she had attended three counseling sessions for anxiety. When an AmeriCorps counselor contacted her for more information, she said she had sought counseling after she was sexually groped by a coworker. She also explained that she had continued to excel at school and work since the incident.

Susie had so much to offer to the communities that AmeriCorps served and knew that she could handle the rigors of the program. However, under AmeriCorps’ prior health screening guidelines, anyone who sought counseling for anxiety within the past six months was automatically deferred from serving with the program.

Susie was devastated — but also knew she would not give up without a fight. She wanted to make sure that moving forward, no AmeriCorps applicants would be unfairly shut out of serving.

With the help of the ACLU and the ACLU of D.C., Susie filed a class action complaint on behalf of herself and other applicants who were subject to the agency’s discriminatory screening process. Her complaint alleged that the screening process violated the Rehabilitation Act, the federal law that prohibits disability discrimination by government agencies (parallel to the Americans with Disabilities Act), and AmeriCorps’ own civil rights policy.

Susie’s perseverance paid off. Today the Corporation for National Community Service, the federal agency that operates AmeriCorps, and the ACLU announced a  groundbreaking settlement. Under its terms, CNCS will overhaul its health screening process to ensure equal opportunities for everyone, including applicants with disabilities.

The revised health screening process will use a new questionnaire that focuses on whether applicants are able to perform the core functions of service with AmeriCorps, with or without reasonable accommodations. As a result, no applicant will be automatically shut out of service with the organization because of an actual or perceived disability, medical diagnosis, or treatment. In addition, AmeriCorps will institute a new formal system for applicants and current service members to request reasonable accommodations that will help them serve, such as access to mental health counseling via phone or videoconference.

AmeriCorps will also invite all class members who are still age-eligible to reapply, financially compensate those who applied and were not placed in the program, offer a professional development course to class members, and establish a recruitment program for people with disabilities. The organization will report to the ACLU for the next two years on how the new process is working.

“Community service is such an enormous part of my life, so I was shocked and disappointed when AmeriCorps disqualified me simply because I sought treatment for trauma,” said Susie. “I’m thankful for reaching this settlement —– not only for myself, but for the more than 1,650 other class members who were subjected to the previous health screening process, and all those who could have experienced discrimination in the future if it were not for these changes. It was over two years ago that my offer was rescinded, two years of reliving the disappointment, and two years of work with the ACLU. It’s all been worth it for this outcome.” 

Qualified candidates like Susie who want to serve in AmeriCorps should have an equal opportunity to do so. Thanks to Susie’s willingness to stand up and fight back, all young people, with or without disabilities, will be treated fairly when they apply to serve their country through AmeriCorps NCCC. 

Will North Carolina's Supreme Court Allow Racism to Remain a Persistent Factor in its Death Penalty?

North Carolina's Supreme Court will determine whether evidence of racism in capital punishment can be swept under the rug.

In 2009, North Carolina passed the Racial Justice Act (RJA), which allowed defendants to strike the death penalty from their cases if they could show that racial discrimination was a factor in their prosecution. The law came as a response to a series of exonerations of Black people who were falsely convicted of crimes they did not commit by all-white or nearly all-white juries. The legislature took a bold step to address was what suspected to be deeply troubling evidence of racism infecting the death penalty—but no one knew for sure what evidence uncovered by the RJA would find.

In 2010, people on death row began filing RJA claims. Four had hearings, and the evidence uncovered was indeed stark, troubling, and clearly pointed to the systemic ways that racism infects capital cases in North Carolina. The four petitioners had death sentences reversed and were resentenced to life without parole (LWOP).

But in 2013, the law was repealed by the same new legislature that targeted Black voters with “surgical precision” in gerrymandering, and the four petitioners were all sent back to death row without new trials. Two additional petitioners—who had uncovered evidence through the RJA but not yet had hearings—were also subsequently denied their day in court.

On August 26th  and 27th, we, along with five other legal teams and the NAACP Legal Defense and Educational Fund, Inc., will go before the North Carolina Supreme Court to fight for the rights of the six petitioners to have their evidence recognized and their death sentences overturned. The Attorney General for North Carolina will ask the Court to do one of two things: Sweep clear and obvious evidence of racism under the rug and pretend it does not exist or shold that, in 2019, it is fine to use trials infected with racism as the vehicle to execute Black men.

In its quest to disregard the troubling evidence of racial bias, the State will ask the North Carolina Supreme Court to overturn constitutional law, dating back to the Civil War, protecting the right to have a legally filed defense heard in court, regardless of whether those defenses are later repealed. North Carolina established this legal principle in a case that dismissed prosecution for multiple murders committed during the Civil War, based on a law granting immunity for such acts, even though the law was later repealed. That precedent has stood in North Carolina law for almost 150 years. 

Hypocrisy often produces irony, and that is true here: A legal principle was established to protect confederate soldiers for the massacres of civilian children and men. Now, the North Carolina Supreme Court is being asked to ignore this principle in a case challenging discrimination against Black jurors at the life and death trials of persons of color. We can learn a lot by studying who the law is selectively applied to benefit.

Allegations made in the six complaints and evidence produced in the hearings included a prosecutor calling a defendant “a big black bull;” a suggestion during jury selection that a Black defendant should have been lynched; the use of crime scene tape to section off the area behind the defense table, with the defendant’s family forced to sit in the back of the courtroom, while the white family of the victim sat in front behind the prosecutor; derogatory and demeaning interrogation of Black jurors, including questions about whether a juror had trouble reading and whether he had gone “straight through” school, implying he may have repeated grades.

One prosecutor wrote in his notes that a Black juror with a criminal history was a “thug” while a white juror who trafficked in drugs was “a fine guy;” a Black juror was described as a “blk wino” while a white juror with a DUI conviction was a “country boy – ok.” 

There is evidence prosecutors were trained on how to give pre-planned responses to Batson objections regardless of the evidence. At least one of the prosecutors in the RJA cases persistently relied on this training to respond to Batson objections to her decisions about removing Black jurors. One had the audacity to read from a list of excuses and struck a Black juror for age, despite the fact that she had let a white juror with the same birthday remain immediately prior. When the judge noticed and asked her about it, she ran down to the next reasons on her cheat sheet.

The data corroborate all of this anecdotal evidence and prove that racial bias in North Carolina’s death penalty is systematic—not the work of a few isolated bad actors. The state’s own statistical expert conceded that the patterns of exclusion of Black jurors in the cases suggested racial discrimination. A Michigan State University study conducted in connection with the RJA examined the decisions of prosecutors across the state involving over 7,000 jurors, in 173 capital trials, over twenty years. The study found that—across all time periods and geographic areas—race played an “overwhelming” role in jury selection in the state. A subsequent study, conducted by former prosecutors from Wake Forest Law, found the same patterns. All of this evidence is clear, shameful, and undeniable.

The State has continually argued that all of the evidence of blatant racism in all six cases should be ignored or that it just does not matter. Those positions are especially shameful in light of North Carolina’s legacy of racial terror and lynching. EJI calculated 123 lynchings in North Carolina between 1877 and 1950. This legacy of executions should be a stark reminder of the role race has played in who is executed in North Carolina.      

Sweeping this under a rug won’t work: There is no rug big enough to hide the stench of this evidence. More than a century of North Carolina law says you get your day in court even if the law is repealed; 73 years of lynchings and evidence of overwhleming racial bias in the death penalty say enough is enough. If North Carolinians are to have any faith in their legal system, the Court must intervene and set this right. Our democracy depends on it. 

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