ACLU News

Students Told They Would Be Better Off ‘If They Had Jesus in Their Life’

The ACLU and the ACLU of Tennessee filed a lawsuit against the Smith County School System for violating the separation of church and state on Monday. According to the lawsuit, four students who are atheists have had to contend with school officials promoting Christianity through official prayers, Bible distributions, religious posters, and even a giant cross painted in one of the school’s athletic facilities.

We asked our three high school clients in this case — Harleigh, Leyna and Pyper — to tell us about their experience, their friendship, and why they decided to sue their school district.

What has your school environment been like for you?

Harleigh: Overall, it’s really uncomfortable. You feel like you don’t fit in at all.

Leyna: To be honest, it’s kind of awkward having to deal with everybody making it seem like you have to believe in one thing, just like them.

Pyper: Mostly it’s just uncomfortable and feeling like you don’t fit in.

Atheists and nonreligious people are one of the most rapidly growing groups in the U.S., yet they still face significant mistrust and discrimination. Are you worried about this lawsuit revealing to your peers and those in your community that you’re atheists?

Harleigh: I feel like if we do, we’ll be seen as mistrusting or misleading, or a bad influence. I haven’t really talked about it except with my close friends, to be honest, and most of them are atheists.

Leyna: I don’t really hide it because it’s not really something that I should hide. Everybody can express their religion. Why shouldn’t I be able to express the fact that I’m an atheist?

Pyper: I’m not really that worried about it because most people already know that I’m not religious.

Pyper (left) and Harleigh at Pyper’s Eighth Grade Graduation

How has your friendship helped you get through a school environment that has been hostile to, or at least not very welcoming to, non-Christians?

Harleigh: You kind of have someone to talk about it with, you know?

Leyna: It’s definitely more reassuring to know that we’re able to talk about it. I can’t just look at somebody else and be like, “Oh, this is kind of wrong, what [school officials] are doing, because most people will look back at me like, “What are you talking about? This is normal.”

Pyper: Yeah, you always have some to talk to about it. And then at school when something happens [with promoting religion], you have someone to tell.

Pyper, you are a member of the girls’ soccer team. Your coach has directed team prayers before every game. What was your initial reaction when it first happened? 

Pyper: I was kind of confused on why we’re doing it because not everyone is religious on my team, and I feel like [the coach] knows that, so I was confused.

Did you ever think about telling the coach you didn’t like it or that it was inappropriate?

Pyper: I thought about that but I didn’t want to be benched or kicked off the team.

Harleigh, as a member of the marching band, you have to attend every football game, and all the home games start out with a prayer over the public address system. What type of message do you think that sends to you, the other students, and the community members who are gathered for the game?

Harleigh: I feel like it’s almost like it’s coercing everybody to be the same. I feel uncomfortable because I feel like I’m the only one sitting there not participating.

Leyna and Pyper, when you were in middle school, two school officials who were responsible for promoting religion also made some anti-LGBTQ remarks. One told fifth and sixth graders last year that same-sex relationships would not be tolerated. Another would scold students who discussed same-sex crushes. What was your reaction?

Pyper:  I was just kind of shocked that the straight people can express their feelings about a boy or a girl but LGBTQ people can’t do the same.

What are you hoping will happen as a result of this lawsuit?

Harleigh: I want to feel like I can go to school and not feel like I’m not a part of what is happening. Or go to a football game and not feel uncomfortable for the first 20 minutes. I want to do normal teenage things at school without feeling like I don’t fit in.

Pyper: Just wanting to fit in. When you’re not bowing your head, people look at you weird.

Leyna: I respect other people’s religion, and I would like it if everyone else would respect my beliefs.

Leyna in downtown Nashville following a concert with her family.

What advice would you give to other teens that are facing similar circumstances at their public schools? 

Harleigh: Find a good group of friends that you do fit in with that have the same beliefs as you and don’t feels so coerced by everybody else.

Pyper: Probably just not be scared to speak up to say what you believe in.

When you three aren’t doing school activities or standing up for your rights, what do you do for fun?

Harleigh: I like to draw a lot and paint. I’m into surrealism.

Pyper: I like to take pictures.

You’re a photographer for the school yearbook, right?

Pyper: Yes, ma’am.

Are you hoping that this lawsuit will make it easier to attend school events as part of your yearbook photography duties?

Pyper: Yes, ma’am.

Leyna, what do you enjoy doing when you’re not busy with school and fighting for your rights?

Leyna: I usually do my makeup or I cook something.

What would you say to someone in this situation who can’t find a group of like-minded friends?

Pyper: Don’t try to be someone you’re not just to have a group of friends.

An Arizona Sheriff Deputy’s Abuse of a Quadruple Amputee Teen Highlights A Policing Culture That Must Change

Inhumane. Cruel. Abusive. What other words could possibly describe a Pima County, Arizona Sheriff Deputy placing a 15-year-old quadruple amputee who posed no threat into a headlock and then pinning him to the ground at a group home? What if the Deputy then screamed at another teenager videotaping the abuse and yelled at him repeatedly “shut the hell up” and, “Am I your bitch?” before slamming the teenager’s head into the wall while handcuffed?

This is not another example of a police officer using far more force than necessary, though we have seen that story play out time and again. This is a police officer using abusive force when no force was required at all. This is about the notion, widely held by law enforcement, that cops should be overlords who demand respect and service from the community while being willing to physically and verbally threaten and punish anyone — including a child with no arms and legs to defend themselves — who dare challenge their authority.

While Deputy Manuel Van Santen’s behavior is shocking, it is an all too familiar occurrence. In the U.S., we have grown accustomed to videos of law enforcement abusing their authority and using force that is unreasonable and unnecessary. Police body-slamming a high school girl in a classroom in South Carolina because she wouldn’t leave the class. A cop handcuffing and arresting a 6-year-old in Florida for “acting out” in school. Arizona police officers pointing a gun at an unarmed pregnant mother and her children, while telling her that she is “going to fucking get shot” because her 4-year-old daughter allegedly took a doll from a dollar store. A SWAT team in Georgia tossing a flash-bang grenade into a crib with a baby sleeping inside.

This incident is at once stunning and symptomatic of a crisis in policing in America. In many counties, cities, and towns police departments are a dangerous powder keg of racism, militarization, and resentment of the communities they’re charged with serving. Combine this with a culture of impunity aided by insufficient legal standards, and decades of policies designed to harm communities of color and situations like the one in Pima County become commonplace.

From this noxious potion, we have seen a slew of harrowing episodes in which police shoot and even kill people, including people unarmed and attempting to comply. A man crying for his life and crawling on a hotel hallway floor as ordered, murdered by an Arizona cop brandishing a gun with the words “You’re fucked” written on the dust cover. Another murdered while reaching into his car for his driver’s license upon demand by a police officer in South Carolina. A father reaching for his driver’s license and registration when demanded while sitting in the passenger seat of a car in which a four-year-old girl was in the back seat in Minnesota.

Deputy Van Santen made the boorish statements so nonchalantly that it seems clear he did not consider it outside the norm for appropriate behavior. Both his attitude and language were well within what was deemed appropriate in the culture. This is the culture behind the slogan “comply, then complain.” It means shut the hell up, no matter what you see us doing, or you will get some too. That culture dictates that police don’t serve the community — they occupy it.  And if any of us dare to question or record them, while they physically abuse a child with no arms or legs, we will suffer the consequences.

This officer needs to be fired. But it is the culture of policing in America and in the Pima County Sheriff’s Department that must change. If you want to consider the officer a bad apple, just remember they don’t fall far from the tree.  And if we are not moved to action when a police officer chooses to “restrain” a person with no arms and legs in the way this officer did, while abusing another person trying to shine on a light on such violently abusive behavior, America is in even more trouble than we thought

Whistleblowers Are Public Servants. We Must Protect Them.

President Trump and President Volodymyr Zelensky of Ukraine spoke on the phone. The president insists the call was “perfect.” Others are concerned that, during the call, the president intimated he would withhold financial aid appropriated to Ukraine unless the Ukrainian president agreed to investigate former-Vice President Joe Biden, a political rival of the president.

How do we even know about any of this? A government employee who knew of the phone call became concerned about the possibility that the president was improperly using his office for his own political gain, and blew the whistle. The public learned the content of the whistleblower’s allegations because another government employee leaked the story to the press. Once again, the American public benefited from the bravery of its public servants, risking their livelihoods, careers, and families to expose government waste, fraud, and abuse.

President Trump’s reaction has been both predictable and terrifying. Using his preferred method of official communication — Twitter — the president called the whistleblower a spy and suggested they should be treated as they would have been “in the old days,” presumably referring to execution. He called repeatedly for the whistleblower’s identity to be revealed, a well-worn tactic designed to intimidate the whistleblower and any other official that could provide support to their account. And Trump isn’t alone. Senator Rand Paul also called upon the media to reveal the whistleblower’s identity.

It’s worth wondering why these kinds of tactics are still permissible.

Sen. Paul has pointed out that nothing stops him from revealing the whistleblower’s identity. He’s right, and that’s a huge problem. It’s one of many big problems facing any public servant, but especially a national security and intelligence community member, who wants to report the waste, fraud, or abuse they witness in our government. Intelligence community whistleblowers currently have no access to independent and meaningful due process, while other federal employees do. There is no law protecting their identities from disclosure and they have no protections from retaliatory investigations.

Congress must fix these problems. That’s why the Project on Government Oversight, the ACLU and 15 other organizations, including the Government Accountability Project, and Whistleblowers of America, sent a letter to Congress this week calling for them to seize this moment to change the law for the better and to do everything in their power to protect the whistleblower’s identity.

And that’s just a start.

Increasing protections for whistleblowers that disclose through the available government processes is helpful, but it ignores whistleblowers that bring what they know directly to the public. Daniel Ellsberg, who disclosed the Pentagon Papers, and Edward Snowden, also risked their lives and careers to inform the public of massive abuses of government power. They deserve protection too.

They were both charged with violating the Espionage Act, which criminalizes unauthorized disclosures of classified information. That law makes no distinction between public servants that bring evidence of crimes occurring at the highest levels of government to journalists, and officials that steal government secrets and sell them to foreign spies. That makes no sense.

Luckily, the fix is simple. Congress should allow those accused of violating the Espionage Act to raise the defense that their disclosure served the public interest. That small change would mean a far more accountable government, because government employees that witness misdeeds would be empowered to say what they saw without fear of retaliation.  

Americans need and deserve information about what their government is doing, now more than ever. Congress must act to protect those within the government who blow the whistle.

Gold Chains: The Hidden History of Slavery in California

This is a cross-post from the ACLU of Northern California.

There is a story we tell ourselves about being American. Much of it is a lie. Two dates that students throughout the country are required to memorize to inform an American identity are 1492, when Columbus supposedly “discovered” America, and 1776, when the United States claimed sovereignty from England and through the Declaration of Independence declared: “We hold these truths to be self-evident, that all men are created equal.” If we’re honest, we’ll admit that the “all men” in that catchphrase didn’t include African Americans, Native Americans, and women, and Columbus didn’t discover anything. He got lost on a voyage to India and when he docked in the Caribbean and saw people, he called them Indians and proceeded to disavow them of their humanity. Not embedded in the American psyche as a date to remember is another equally seminal year, 1619, which commonly marks the inception of America’s original sin—the 400th year since enslaved Africans arrived in Virginia and were sold to colonists beginning centuries of bondage and servitude.

In the period leading to this anniversary, several notable news outlets observed its significance on a national level. But closer to home, the ACLU of Northern California wanted to explore California’s place in the nation’s history of forced servitude, unpaid labor, and human degradation. The significance of this local history is undeniable. It has shaped California’s complex racial character and planted the seeds of white supremacy that were sown in this country; seeds that bore ripe and poisoned fruit, the manifestation of which still exists today. In an effort to comprehensively explore this obscured racial history and the many legal battles it spawned, the ACLU of Northern California has launched a project entitled: Gold Chains: The Hidden History of Slavery in California.

The mission of Gold Chains is to uncover California’s hidden slavery history by lifting up the voices of courageous African American and Native American individuals who challenged their brutal treatment and demanded their civil rights, inspiring us with their ingenuity, resilience, and tenacity. We aim to expose the role of the courts, laws, and the tacit acceptance of white supremacy in sanctioning race-based violence and discrimination that continues into the present day. Through an unflinching examination of our collective past, we invite California to become truly aware and authentically enlightened.

Acceptance of this invitation requires humility and a strong disposition for hard truths. The bleak and brutal story of slavery in California pre-dates statehood with the incursion of Europeans in the 1700’s who enslaved the Native population, seized land, raped women, infested tribes with disease, and force-fed Catholicism. California was designated a “free state” in the Compromise of 1850. The proverbial image of black people as chattel laboring in cotton fields stalked by an overseer gave way to a Pacific Coast version with similar conditions. Like “King Cotton,” the commodity that drove the slave trade on the eastern seaboard, the Gold Rush era in California during the 1800s provoked the persistent dehumanization of black people, and simultaneously forced Native people off their remaining land, destroying their ecosystems for generations to come. These consequential historical markers are hidden from state lore and school curricula but offer concrete examples of California’s complicity in racial tyranny. For instance, the state legislature passed the Fugitive Slave Law in 1852 that legalized the deportation of free or previously enslaved black people back to the south as slaves for seeking economic and personal freedom.

Through narratives, public records, archival materials, and images, Gold Chains: The Hidden History of Slavery in California debunks California’s unblemished brand as exclusively “liberal,” “innovative,” and “progressive,” correcting it with facts of a history mired in racism, white supremacy, and violence. It also reinforces the integrated advocacy that the ACLU of Northern California practices daily. Our efforts to take on critical issues and sometimes unpopular positions in order to advance civil rights and civil liberties exemplifies our commitment to equal justice for all. Confronting the misdeeds of our collective past enables us to secure a more just future for generations to come.

The Size of Your Wallet Should Never Determine Your Freedom

Lea Allison is a 30-year-old Alamance County resident and mother to a 6-year-old daughter. She has been living with relatives because she cannot afford to live on her own, but was about to start a new job that she hoped would provide her and her daughter with financial stability.

Lea’s plans came to an abrupt halt when she was arrested and locked in an Alamance County, North Carolina jail on a $3,500 bond. Although she has not been found guilty of a crime, she will remain behind bars because she cannot afford to pay for her freedom. Instead of starting her new job, Lea is sitting in the Alamance County jail — cut off from her family and forced to sleep on the floor.

Right now, thousands of people in North Carolina — who are presumed innocent because they have not been convicted of a crime — are locked in jail while they wait for their day in court because they do not have the money necessary to pay the bail that would allow them to go home to their jobs and families. This unjust cash bail system disproportionately impacts people of color, violates people’s rights, separates families, and fuels the mass incarceration crisis.

Together with Civil Rights Corps, we filed a lawsuit this week on behalf of Lea Allison and two other people who are incarcerated in the Alamance County jail and cannot afford to pay the bail amount set by a court official who showed no consideration to their ability to pay and provided no attorney during the bail hearing.

Our lawsuit asks the court to take immediate action to end Alamance County’s unconstitutional bail practices, ensure that no one is held in the county jail solely because they are unable to pay their bail, and release those currently locked up because they are poor. The lawsuit also claims that the county has violated the right to counsel because poor people accused of crimes are not provided attorneys to represent them when their freedom is at stake.

In this country, we are all supposed to be treated as innocent until proven guilty. But under the cash bail system, a person’s freedom too often depends on how much money they have in their bank account. Each year, more than 10 million people in the U.S are locked into local jails, and as of 2015, there were roughly 700,000 people locked up on any given day. Most of them have not been convicted of a crime. Bail systems like Alamance County’s result in wealth-based detention that means that people who are poorer, often people of color, remain locked up while awaiting trial.  

For too long, North Carolinians have had two criminal legal systems: one for the rich and one for the rest of us. These wealth-based pretrial detention schemes that target the poor violate the Constitution and inflict tremendous harm on peoples’ lives. Spending just three days behind bars puts a person at risk of losing their job, home, and custody of their children. Alamance County locks people up before their trial at an alarming rate, requiring secured bonds for nearly 90 percent of all people charged with a crime, one of the highest rates in the state.

We sued to put an immediate stop to the destructive practice in Alamance County of criminalizing poverty and we are putting officials in North Carolina and across the country on notice: current bail practices are unconstitutional, violate people’s rights, and must end.

Trump Administration Forgoes Petition to Supreme Court in Jane Doe Case

For more than two years, the ACLU has been fighting a Trump administration policy that prevents unaccompanied immigrant minors in federal care from accessing abortion. We had previously won in the lower court, securing a preliminary block on the policy. And last week, the Trump administration chose not to challenge that ruling and ask the Supreme Court to review the case—a real victory in our fight for justice for the Janes.

We first filed the case in October 2017 on behalf of Jane Doe, a fearless young immigrant woman who fought the Trump administration’s attempt to deny her right to end her pregnancy. Jane’s win, and her bravery, laid the foundation for our success in the months that followed in obtaining court orders that blocked the government’s attempts to prevent other young immigrant women from making their own decisions about whether to continue or end a pregnancy.

In March 2018, a federal district court issued an order temporarily blocking the government from enforcing its abortion ban against all pregnant immigrant minors in its custody, finding the ban to be unconstitutional under Roe v. Wade and allowing the case to proceed as a class action.

This past summer, the D.C. Circuit Court of Appeals agreed, finding that the administration’s policy “functions as an across-the-board ban on access to abortion” for pregnant immigrant minors. In its ruling, the Court unanimously “reject[ed] the government’s position that its denial of abortion access can be squared with Supreme Court precedent.”

The Trump administration had until November 8th to ask the Supreme Court to overturn our lower court win and allow it to resume its policy of forcing these teens to remain pregnant against their will. But last Friday came and went, and the administration filed nothing. 

We’re relieved that the government did not appeal. The government’s failure to ask the Supreme Court to review the injunction means that the temporary protections we’ve secured for the Janes will remain in place.

But this does not mean we can rest easy. The case isn’t over — we’re still fighting in the district court for final, permanent relief that would close the door on the government’s efforts to implement its unconstitutional policy for good. And the Jane Doe case is just one vector of a full-scale effort by the Trump Administration, along with other federal and state politicians, to dismantle our hard-won reproductive rights.

Over the past year, Arkansas, Georgia, Kentucky, Missouri, Ohio, Utah and Alabama have all passed bans on abortion. The ACLU has blocked all of these abortion bans from taking effect, and abortion is still legal in all 50 states. But politicians across the country continue to push these bans in the hopes that the Supreme Court will use one of them to overturn Roe v. Wade.

At the federal level, the Trump administration has sought to strip millions of low-income people who rely on Title X, the nation’s family planning program, of their ability to access comprehensive, high-quality reproductive and family planning care. It has promulgated rules that would have (absent a court order)  permitted employers and universities to deny their employees and students insurance coverage for contraception due to moral objections.  And it has issued other rules — which we just blocked from taking effect — that would have allowed health care providers to refuse to provide critical health care services based on personal religious or moral beliefs.

As the old saying goes, the measure of a nation is reflected in how it treats its most vulnerable members. Nothing is beyond the pale for this administration in its attacks on reproductive health care in general, and immigrants in particular, whether it be ripping children away from their parents at the border, forcing them to stay in squalid, dangerous conditions in Mexico, or denying them access to critical medical care.

The government’s ban on abortion for immigrant minors is just another attempt to strip some of the most marginalized people in our society of their constitutional rights — in this case, young immigrant women of color. Just as your ability to get an abortion should not depend on where you live, neither should it depend on your immigration status, age, national origin, race, gender identity, or economic circumstances. We won’t let up in our fight on multiple fronts to ensure abortion remains safe and legal for everyone in America, including back in the district court, where we will resume our efforts on behalf of the Janes to ensure that this administration’s unconstitutional policy is struck down for good.

We’re Suing South Carolina For Driving People Into Poverty

Emily Bellamy is a single mother living in South Carolina earning low wages as a daycare worker. Emily strives for a better life for her young children and, in the past, has been able to earn more money cleaning vacation condominiums or working as a home health aide for the elderly. But Emily no longer has access to those opportunities because her driver’s license is suspended for unpaid traffic tickets that she cannot afford to pay.

We’ve created an interactive webpage that shows how living with a suspended driver’s license severely limits Emily’s ability to earn money and care for her family.  It’s astonishing.

Without a driver’s license, Emily is not only barred from better-paying work, she often must pay for rides to work and for her daughter to get to school. This makes it even harder for her to pay outstanding tickets and begin the process of getting her license back.

Emily is trapped in South Carolina’s wealth-based driver’s license suspension system. As of May 2019, the South Carolina Department of Motor Vehicles had suspended the driver’s licenses of more than 190,000 people for failure to pay traffic tickets — without first determining if they were able to pay. The ACLU and our partners filed a federal lawsuit on behalf of Emily, Janice Carter, and Linquista White — Black women who were denied their constitutional right to protection from punishment for being unable to pay fines and fees. 

South Carolina has one of the highest poverty rates in the nation, with one in six residents living in poverty. Driving is crucial to life in the state, and nine out of ten people rely on a driving to get to work. In 2011, a report prepared for the South Carolina Department of Transportation acknowledged that public transportation networks do not meet half of the state’s needs. Like the plaintiffs in our lawsuit, people in South Carolina must rely on their driver’s licenses to get to work, take their kids to school, access health care, and care for their families.

Janice, an Air Force veteran, explains in a video the hardship of having a driver’s license suspended for unpaid traffic tickets. Janice would like to accept a higher-paying job as a case manager, but the position requires a license and travel to clients spread across three counties spanning more than forty miles. Without a driver’s license, it’s out of the question. Our interactive page also shows how Janice struggles to get to work and to run errands over the course of a day without a driver’s license.

The South Carolina DMV doesn’t provide a hearing or proper notice of how to avoid suspension when a person can’t pay — and it doesn’t determine whether or not people have the money to pay. This results in a system of wealth-based suspensions that only end when a person pays all traffic fines, as well as DMV fees charged for reinstating a suspended license. This means impoverished people are unable to drive unless they divert money from rent, utilities, health care, and other necessities to get their licenses back.  

To make matters worse, neither the DMV nor the South Carolina Office of Motor Vehicle Hearings — the state agency with the power to review suspensions — provides an opportunity for South Carolinians to explain that their driver’s licenses should not be suspended because of inability to pay.

The result is a racially-skewed legal system that defies common sense. People who can pay a traffic ticket move on with their lives, but people who can’t pay are trapped in a cycle of lost jobs and opportunities, poverty, and debt. Paradoxically, this makes it even more difficult for people to pay traffic tickets. Black people in South Carolina suffer from poverty at a rate more than double that of white people. As a result, Black South Carolinians, including Emily and Janice, make up 27 percent of the state’s population, but 48 percent of those with driver’s license suspensions for failure to pay traffic tickets. 

The U.S. Supreme Court has made clear that the Fourteenth Amendment promise of due process and equal protection of the law protects us from state punishment based solely on inability to pay. Organizations across the ideological spectrum, including the American Legislative Exchange Council, Koch Industries, the American Bar Association, and more than one hundred groups involved in the Free-to-Drive Campaign, agree that driver’s license suspensions should be reserved to keep unsafe drivers off the road — not to collect debt. In recent years, California, Idaho, Maine, Mississippi, Montana, Virginia, Texas, and the District of Columbia have enacted legislation to tackle the suspension of driver’s licenses for unpaid debt. 

We all want a legal system that is fair and provides equal treatment of rich and poor. It is past time for South Carolina to end wealth-based driver’s license suspensions once and for all.

Three Common Privacy Misconceptions That Companies Love

A significant number of Americans hold significant misconceptions about their privacy, according to opinion research — misconceptions that privacy-invading companies love. That’s according to research on American understandings of privacy carried out over the past couple decades by the Annenberg School for Communication at the University of Pennsylvania, lead by Prof. Joseph Turow, whom I recently heard give a talk summarizing these studies.

Misconception #1: “We care about your privacy!”

One misconception is that when a web site has a “privacy policy,” that actually means the site has a policy to protect your privacy. Annenberg presented respondents with the false statement that “When a web site has a privacy policy, it means the site will not share my information with other websites or companies without my permission.” In 2018, nearly 60 percent of Americans either said they believed this was true, or that they did not know. In past years the percentage of those surveyed giving incorrect answers was as high as 78 percent.

Unfortunately, nothing could be further from the truth. Most “privacy” polices start by declaring, “We care about your privacy!” and then go on to say, in extremely long and complicated legal language, that you have no privacy. Lawyers write these policies to minimize the presence of any actual concrete promises that might limit what a company does. Because the United States doesn’t yet have a baseline privacy law, the only thing protecting our privacy in most commercial contexts is a prohibition on “acts or practices that are unfair or deceptive.” That prohibition was enacted in 1914 — just slightly before the advent of today’s online advertising surveillance systems. What that means is that (outside of a few narrow areas that are regulated such as credit reporting) a company can do whatever it wants with your personal information. The only thing it generally cannot do under federal law is say it’s going to do one thing and then do another, which would count as “unfair or deceptive,” and leave a company vulnerable to enforcement by the Federal Trade Commission.

Turow says that “marketers know” about this misconception and benefit from the confusion and the misplaced consumer trust it creates. Turow suggests that “privacy policy” is “a deceptive term” and that “the FTC should require a change in the label.” “How We Use Your Data” would be more accurate.

Misconception #2: What is unfair is also illegal.

A second misconception that many Americans hold is that the law protects them more than it does. For example, in 2015, 62 percent of Americans didn’t know that it is completely legal for an online store to “charge different prices to different people at the same time of day”; in 2012, 76 percent did not know that “online marketers are allowed to share information about diseases you or your family members have”; and in 2018, 46 percent did not know that an “internet provider has a legal right to sell information to marketers about the websites you visit.” (We think they actually don’t have such a right under the Communications Act, which states that “every telecommunications carrier has a duty to protect the confidentiality” of personal information — but an attempt to craft detailed rules enforcing that law was killed by Congress and President Trump in 2017, and there’s no sign that such a right will be enforced by the federal government anytime soon.)

What’s going on here, Turow believes, is that people have fairly well-defined feelings about what kinds of behavior are fair and what are not — and they tend to think that things that are unfair are also illegal. They think, as he puts it, that the government has our backs much more than it actually does.

Annenberg’s polling confirms other polling in consistently finding that people are deeply uncomfortable with the state of their privacy online. Two-thirds (66 percent) of adults, for example, told surveyors that they do not want advertisements “tailored to their interests,” and 91 percent disagreed with the statement that “if companies give me a discount, it is a fair exchange for them to collect information about me without my knowing.” Asked whether “It’s okay if a store where I shop uses information it has about me to create a picture of me that improves the services they provide for me,” 55 percent disagreed.

These findings, Turow concludes, “refute marketers’ insistence that Americans find increased personalized surveillance and targeting for commercial purposes acceptable.”

So why do people give up so much information? The problem is that they feel helpless. The surveys found that 58 percent of Americans agreed with the statement, “I want to have control over what marketers can learn about me online” but at the same time 63 percent also agreed, “I’ve come to accept that I have little control over what marketers can learn about me online.” Although marketers like to portray Americans as cheerfully accepting a tradeoff between their privacy and the benefits they gain, that’s not at all what’s happening. As Turow told me, “The bottom line for us is resignation. It’s not as if people want to give up their privacy, but in order to get through life they feel they have to, and they don’t feel like they have the ability to change things.”

Misconception #3: We’ve lost the privacy battle.

This, I would argue, is the third misconception: that the battle is lost and there’s nothing people can do about protecting their privacy. It’s true that there are good reasons why people feel that way — there’s only so much that an individual can do to protect their privacy, especially if they’re short on technical expertise or willingness to tolerate inconveniences in order to fight surveillance. It’s true that our privacy depends to a large extent not on individual decisions but on collective decisions we make as a nation about the policies we want to set. It’s also true that the companies that profit from surveillance are wealthy and politically powerful.

Nevertheless, the clouds are gathering for a major reckoning. The European Union has enacted a  comprehensive privacy law called the General Data Protection Regulation (GDPR) that is forcing even many U.S.-centered businesses to improve their privacy practices. California, where one in eight Americans live, has also enacted a broad privacy law called the California Consumer Privacy Act (CCPA). And as these laws weaken the will of companies to oppose privacy protections, scandals such as the Cambridge Analytica fiasco have strengthened the desire of politicians across the political spectrum to support such rules. The result: For the first time in many years, members of both parties are reportedly working to draft and enact comprehensive privacy legislation. 

There are major battles ahead, but, as I have argued, in the end people need — and always demand — privacy. Privacy-invading companies love it that people feel helpless, but now is the time for people to trade resignation for anger and activism, and voice that demand to ensure that any new privacy laws are strong and meaningful. The status quo is not stable, and the battle is just getting underway.

Federal Court Rules That Border Officers Can’t Arbitrarily Search Our Electronic Devices

In a major victory for privacy rights, a federal court has held that the federal government’s suspicionless searches of smartphones, laptops, and other electronic devices at airports or other U.S. ports of entry are unconstitutional. The ruling in our case is a recognition that the Constitution protects us even at the border, and that traveling to or from the United States doesn’t mean we give the government unfettered access to the trove of personal information on our mobile devices.

https://twitter.com/ACLU/statuses/1194350173180383233

In recent years, as the number of devices searched at the border has quadrupled, international travelers returning to the United States have increasingly reported cases of invasive searches. For instance, a border officer searched our client Zainab Merchant’s phone, despite her informing the officer that it contained privileged attorney-client communications. And recently, at Boston Logan Airport, an immigration officer reportedly searched an incoming Harvard freshman’s cell phone and laptop, reprimanded the student for his friends’ social media posts expressing views critical of the U.S. government, and denied the student entry into the country following the search.

These cases aren’t unique. Documents and testimony we and the Electronic Frontier Foundation obtained as part of our lawsuit challenging the searches revealed that the government has been using the border as a digital dragnet. CBP and ICE claim sweeping authority to search our devices for purposes far removed from customs enforcement, such as finding information about someone other than the device’s owner.

We Got U.S. Border Officials to Testify Under Oath. Here’s What We Found Out. | American Civil Liberties Union

The court’s order makes clear that these fishing expeditions violate the Fourth Amendment. The government must now demonstrate reasonable suspicion that a device contains illegal contraband. That’s a far more rigorous standard than the status quo, under which officials claim they can rummage through the personal information on our devices at whim and with no suspicion at all.

It’s difficult to overstate how much personal information our electronic devices contain, and how revealing searches of those devices can be. Our smartphones are unlike any other item officers encounter at the border — they likely contain years of emails, messages, videos, photos, location data, browsing history, and medical and financial data. A search of our clients’ devices revealed photos of themselves without head coverings worn in public for religious reasons. Others had information on their devices related to their work as journalists.

The bottom line is that for most of us, our phones contain far more information than could be found during a thorough search of our homes.

The court recognized these critical privacy issues in its ruling. It stated that travelers’ privacy interests in their devices are “vast” and that “the potential level of intrusion from a search of a person’s electronic devices simply has no easy comparison to non-digital searches.” In other words: Digital is different. While the government can search luggage and other physical items at the border without individualized suspicion, it can’t use that authority to rifle through the universe of personal data on our electronic devices.

In reaching that conclusion, the court relied on recent Supreme Court decisions that make clear that older rules under the Fourth Amendment cannot be mechanically extended to justify new kinds of invasive digital-age searches. As the Supreme Court put it, equating searches of physical items and digital devices “is like saying a ride on horseback is materially indistinguishable from a flight to the moon…. Modern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse.” The federal court explained this week that the magnitude of the privacy harms is no less great in the context of border searches, requiring stronger Fourth Amendment protections against searches of electronic devices at the border as well.

The court has not yet issued an order regarding how the government should implement the ruling.

Significant work remains to be done to ensure that government officials respect our constitutional rights in the digital realm and at the border. The court’s ruling is a big step in the right direction.

Oklahomans Just Made History — and They Can Do it Again

Last week in Oklahoma, the largest single-day mass commutation of prison sentences in U.S. history took place. When all is said and done, nearly 600 people will be released from prison. This may seem like a surprise coming from a state that’s also home to the highest per-capita incarceration rate in the nation. But these commutations follow the will of the people: 58 percent of Oklahomans made clear at the ballot box in 2016 that they are ready to turn the tide on mass incarceration. The ballot initiative was supported by a number of legislators, and Governor Kevin Stitt proved to be a leader in providing retroactive relief during the commutation process.

Oklahomans now have another chance to make history. On November 12, a diverse, bipartisan coalition of local Oklahoma organizations filed a long-overdue ballot initiative that could have a serious impact on the state’s mass incarceration crisis. If it qualifies for the ballot and passes in November 2020, the ballot measure would give voters the opportunity to support a reform that dramatically reduces the use of so-called “sentencing enhancements.” These enhancements directly contribute to the state’s shameful title as the nation’s top incarcerator and enable prosecutors to call for excessive sentences for people serving time for nonviolent offenses. Not only do these long prison terms fail to improve public safety, but they also tear apart Oklahoma families and come at an incredible cost to taxpayers and the state.

Oklahoma has one of the highest rates of incarceration in the world, which not only makes it an extreme outlier but also serves as a drain on the public coffer. As Oklahoma’s incarcerated population has risen, so has the cost for Oklahoma taxpayers. In 2016, Oklahoma spent $376 million of its general fund on corrections — a 79 percent increase since 1987. General fund spending on corrections in Oklahoma has far outpaced growth in spending on other priorities. Every dollar used for incarceration is a dollar diverted away from investing in healthcare access and education. While Oklahoma spends nearly $16,000 on each person in prison, we only spend $8,097 per student a year and recently ranked 46th in the nation in spending on mental health care. It’s time that we reassess our priorities.

Initiative petition 805 is a crucial next step Oklahomans can take toward dismantling the architecture of mass incarceration. This ambitious initiative directly tackles a 1990’s era tough-on-crime sentencing law that continues to wreak havoc on the lives of Oklahomans and has resulted in dangerous overcrowding in its prisons. If passed, initiative petition 805 will also significantly reduce the unchecked power of prosecutors to force people charged with crimes to accept harsh and excessive plea bargains that aren’t in the best interest of public safety and that have decimated communities of color throughout the state.

As they showed the world last week, Oklahomans are ready to shed their title as one of the incarceration capitals of the world for good. Initiative petition 805 is the next step forward.

Why I’m Fighting for Menstrual Equity in Prison

My name is Kimberly Haven. I am an activist, an advocate, and I have also been referred to as the “tampon queen.” I got this moniker because, while I was incarcerated, I learned how to make my own tampons out of the subpar menstrual products I was “given” while incarcerated. 

For those who do not have firsthand experience with it, incarcerated women are typically provided with a very limited number of subpar products you would never buy outside of the carceral system. Access to pads and / or tampons is not a given—they are closely restricted and sometimes run out, leaving women without any solutions except to beg for more from the guards. More standard pads and tampons are available in the commissary, but you have to pay for them, which is often out of reach for many incarcerated women. Thirty-eight states have no law requiring the provision of menstrual products to incarcerated people.

Along with many of the women I was incarcerated with, I used my own homemade products rather than beg for more from an unconcerned correctional officer or risk bleeding through my clothes. Flash forward to my return home: as a result of my creativity to survive with some modicum of dignity, I ended up needing a hysterectomy.  My experience is not unique, but I offer it as a reason why the new Menstrual Equity issue brief  — designed with input from me and other women who have been impacted by the system— is critical to ensuring menstrual equity for all. I use my experience to make sure that the people we incarcerate in women’s facilities are also provided equity and, more importantly, dignity.

Despite being the fastest growing incarcerated population, women and girls are correctional afterthoughts.  We as a society treat them no differently than men. There is no dignity, no humanity, no compassion in a system that makes a person have to beg, borrow, or even make her own basic hygiene items. Pads and tampons have become weaponized. They are withheld in order to get certain behavior, and they are doled out in whatever amounts and at the convenience of correctional staff (when they are distributed at all). I know women who made products out of shreds of clothes or stuffing from inside their state-issued mattresses. The health risks that people take to provide for themselves the most basic of products are incalculable. From toxic shock, to infection, to infertility, it is a game of Russian roulette and not a price that anyone should have to pay.

I have seen women call their families and tell them not to come – I have seen women turn down visits from their attorneys when they are menstruating. Why? Because you are not allowed to have personal property when going on the visits. If you go to your visit, you are stripped naked and made to spread your butt cheeks, squat and cough. You strip and there is a bloody pad – afterwards no woman is going to want to put that back against her body. Once your visit is over, you would then have to walk back to your housing unit or job/school assignment and risk bleeding through your clothes. The humiliation of either situation is the very reality that plays out in our prisons and jails.

Incarcerated people deserve no less than dignity when it comes to managing a normal bodily function.  States and local jurisdictions must be required to provide essentials to those in their “care, custody and control.” Free and accessible access to menstrual products is simply something that must be provided. 

It is unfathomable to me that, in 2019, we even have to have this conversation and that sadly we must use legislation to ensure that those we incarcerate have what they need, in the quantity they need and that no one has to make their own tampons.

We passed Menstrual Equity legislation in Maryland in 2018 and it went into effect on October 1st of that year. One year later, we still have problems. People are still not getting what they need; they still receive subpar products that they are forced to make into usable ones. Worse, when good legislation is passed, resentful leadership too often weaponizes it, replacing the quality products in the commissary with the subpar ones being given freely to incarcerated people. We need to start thinking about what happens to people incarcerated in women’s facilities and demand action and accountability.

I am now the Coalition Coordinator for Reproductive Justice Inside and lead directly impacted advocates on this issue. I am no longer going to accept being a “tampon queen” – now I am the “tampon bitch” as I continue to fight for menstrual equity and dignity for all.

We Said We Would See Him in Court and We Did

Several months into the Trump administration, my wife was doing The New York Times crossword puzzle and came across this clue: “Group that told President Trump, ‘We’ll see you in court.’” I’m not generally much use when it comes to the crossword, but on that one I could help. She didn’t really need the assistance of course, as the ACLU is my employer, and she, The New York Times crossword puzzle drafters, and much of the country already knew that it was the ACLU who told the president we’d see him in court.   

In fact, we told him that before he took office. Just days after he improbably won the presidential election, we took out ads in The New York Times and Los Angeles Times telling the president-elect that if he sought to implement some of the programs he had promised on the campaign trail — denying legal access to abortion, implementing restrictive immigration practices, undermining voting rights and more — we would sue. We kept our promise.

https://twitter.com/ACLU/statuses/1144797689030348801

As we mark three years since we put President-elect Trump on notice, we’ve filed over 100 lawsuits, and over 140 other legal actions — Freedom of Information Act requests, administrative complaints, and other legal mechanisms to halt illegal policies — against the president, his administration, or those inspired by his victory to cut back on civil rights and civil liberties. We’ve won many of them, and in the process, protected the rights of millions of people to be treated with dignity and respect for their basic constitutional rights.

IMMIGRANTS’ RIGHTS

In his first week in the Oval Office, President Trump issued an executive order banning immigrants from seven predominantly Muslim countries from entering the U.S. The ACLU quickly responded by filing and winning the first legal challenge to the Muslim ban that very weekend. A federal court held an emergency hearing on a Saturday night, and enjoined its implementation the day after he put the policy in place. When the first ban was declared unconstitutional by the courts, Trump was forced to issue a revised ban. When we and others successfully challenged that revised ban, he issued still a third version. That, too, was struck down by the lower courts, although the Supreme Court upheld it on a 5-4 vote along party lines. But that third ban, while still a Muslim ban, was narrower than the first two, and we continue to challenge its implementation in the courts. 

https://twitter.com/ACLU/statuses/825532347839836161

The lion’s share of our Trump-related work has focused on defending immigrants, because that is where the president has directed his most virulent, egregious and systematic attacks.

Trump has particularly targeted those seeking asylum, and we’ve countered him at every point. His goal is to deter asylum applicants — regardless of the validity of their claims to facing persecution at home. In what is surely the cruelest of his many anti-asylum initiatives, he separated children from their parents, in hopes that this would discourage other families from seeking refuge and safety here. We sued, obtained a ruling barring the practice, and continue to press the administration to reunite the thousands of families it so heartlessly separated. The ACLU has helped reunite more than two thousand families, but we keep discovering more who were separated, and we won’t rest until we’ve reunited them all.

https://twitter.com/ACLU/statuses/1000403709237583872

Trump has also locked up asylum applicants without hearings in which they could show that they pose no flight risk or danger, and therefore should be freed. In our view, the government cannot constitutionally detain people absent a demonstrated reason for doing so, and where an asylum seeker poses neither a flight risk nor a danger, she cannot constitutionally be deprived of her liberty. Here, too, the courts have blocked the administration’s practice thanks to litigation by us and our allies, requiring it to hold hearings and release those who pose no threat.

The Trump administration also sought to change the legal standard in order to make it more difficult to get asylum based on fears of gang violence or domestic abuse in one’s home country. Again, we sued. And again, a federal court blocked the administration from implementing that policy.  

Trump issued an executive order denying asylum to anyone who entered the country other than at an official port of entry — even though the asylum statute provides that asylum is available to all who face persecution at home, regardless of how or where they entered the U.S. The courts blocked that policy, too. He then sought to deny asylum to anyone who has traveled through another country to reach the U.S. and has not applied for and been denied asylum there. Again, the courts declared the policy illegal. The Supreme Court has temporarily stayed that injunction pending the government’s appeal, but our legal challenge continues.

https://twitter.com/ACLU/statuses/1146471278532071424

Trump also sought to deny legal protections to immigrants from countries that either would not take their citizens back, or where conditions were so bad that we had long afforded their nationals temporary protected status, which allowed them to live and work among us. When Trump sought to revoke their status en masse, the ACLU and our allies sued, and obtained injunctions barring the wholesale denial of legal status to over 400,000 people.   

Most recently, Trump sought to expand so-called “expedited removal,” a summary deportation process that short-circuits many of the essential procedural protections generally afforded to immigrants in deportation proceedings. These procedures have long been limited to persons apprehended within 100 miles of the border and within two weeks of illegal entry. Trump wants to expand exponentially the number of people who could be swiftly deported under this process, to include anyone who had entered illegally within the past two years, apprehended anywhere in the nation. Once again, we sued, and a federal judge blocked the initiative as illegal. 

Trump has attempted, virtually since the day he took office, to build a wall at the southern border. He repeatedly asked Congress for funding to build the wall, and repeatedly they refused. He went ahead and ordered the wall built anyway, declaring a national emergency and diverting funds appropriated for other purposes. We sued to stop the diversion of funds, and the lower courts blocked wall construction. The Supreme Court granted a temporary stay, but the challenge continues with an argument in the U.S. Court of Appeals for the Ninth Circuit on November 12. 

We are not the only ones to see Trump in court. Other groups have successfully challenged his revocation of protection for the approximately 800,000 so-called Dreamers, young undocumented people brought here by their parents, to whom the Obama administration gave deferred action status, allowing them to live, work, and go to school here. And the courts have also blocked Trump’s efforts to expand the definition of persons deportable as “public charges” to encompass immigrants who even briefly fall on hard times and need virtually any sort of government assistance.

In short, judicial review has been critical to protecting the basic human rights of tens of thousands of immigrants throughout this country.  That that’s only the beginning.   

REPRODUCTIVE FREEDOM

As a candidate, Trump promised to overturn Roe v. Wade, the Supreme Court decision protecting abortion access, and in response, seven states have enacted laws banning abortion. We’ve challenged five of the state bans and obtained injunctions against each of them; our ally, the Center for Reproductive Rights, has blocked the other two. The states are appealing, but we will continue to defend this fundamental right. 

https://twitter.com/ACLU/statuses/1189194439765438464

We also successfully blocked the Trump administration’s own ban on abortion. This prohibition was applied selectively to some of the most vulnerable women in this country: undocumented teens held in U.S. custody. When one such teen, detained in Texas, learned that she was pregnant and sought to exercise her constitutional right to an abortion, the Trump administration refused to let her out of its facility to go to the clinic for the procedure. We sued in federal court, and won. We now have a nationwide injunction against the practice. 

And most recently, a federal judge blocked President Trump’s so-called “conscience rule,” which would have allowed  doctors, nurses, and other health care providers nationwide to place their own views over the needs of their patience and refuse to provide health care to which they object on moral or religious grounds.  The court held that the rule was arbitrary and rested on demonstrably false assertions by the administration.

VOTING RIGHTS

The president tried to rig the census, by adding a question about citizenship that would have deterred tens of thousands of immigrants from filling out the census form. The Census Bureau itself objected to the plan, because they knew it would lead to undercounting of people in areas where immigrants live, often urban areas that the administration sees as likely to vote Democratic. The Constitution requires the census to count all people, not just citizens. The undercounting would have translated into fewer representatives in Congress for districts with large immigrant populations, and less federal support for all the people who live there, citizen and noncitizen alike. The initiative’s pre-textual rationale was initially drafted by a Republican gerrymandering specialist who advised in a confidential memo that it would advantage “Republicans and Non-Hispanic Whites.” We sued and won. In June 2019, the Supreme Court affirmed our victory, finding that the administration’s justification for adding the question was pre-textual — or in plain English, a lie. Trump bristled at the defeat, and only after his entire legal team resigned over his direction to find a way to reinstitute the question did he admit defeat and abandon the effort. 

https://twitter.com/ACLU/statuses/1144257601364008960

ENEMY COMBATANTS

Trump vowed to expand the detention of enemy combatants at Guantanamo Bay, although he has not yet dared do so. His administration did lock up a U.S. citizen as an “enemy combatant” in secret in Iraq, without access to a lawyer, without a hearing, and without any criminal charges. The ACLU sued and won. We first obtained an order requiring the administration to give him access to our attorneys. Then, we challenged the legal basis for detaining a U.S. citizen indefinitely without charges, and the government gave in and released him. The Trump administration has not held a U.S. citizen as an “enemy combatant” since. 

LGBTQ RIGHTS

Trump has also declared war on the LGBTQ community.  Here, too, we’ve challenged him every step of the way. He barred transgender people from serving in the military, despite the military’s finding that there was no basis for excluding them. We obtained an injunction against the ban, and forced Trump to water it down, allowing currently enlisted transgender soldiers to remain. But the revised ban still bars entry to new transgender enlistees. That, too, was blocked, but the lower court’s injunction was temporarily stayed by the Supreme Court pending the government’s appeals, which continue.

https://twitter.com/ACLU/statuses/1116794914795216899

The Trump administration also reversed the federal government’s position on whether LGBTQ individuals are protected by federal civil rights law from being fired or otherwise discriminated against because of who they are. We won victories in the federal appeals courts, which ruled that firing someone for being gay or transgender is a form of sex discrimination forbidden by federal law. In October, we argued before the Supreme Court on behalf of a gay man and a transgender woman who had been fired because of who they are. The Trump administration argued the other side.

https://twitter.com/ACLU/statuses/1176181332390621186

In many of these cases, the courts have served their intended purpose: Protecting the vulnerable from abuses directed at them by the president, upholding the rule of law, and stopping arbitrary and cruel treatment of hundreds of thousands of people. We are proud to have led the legal resistance, with full participation of many of our allies in the immigrants’ rights, reproductive rights, and civil rights communities.

OUTSIDE THE COURTS

But we have not limited our response to the courts. We are committed to defending liberty through all available means, and in a democracy, the political process must also be an essential part of that defense. In the wake of President Trump’s election, our membership soared from 400,000 to 1.8 million, and many of our supporters said they wanted not only to join and donate, but also to take action. The ACLU launched People Power, a nationwide mobilization platform that empowers ACLU volunteers to fight for liberty at the local level. Over half a million people have since taken action with us as People Power volunteers — visiting a legislator or town council, participating in a demonstration, or gathering signatures and getting out the vote for ballot initiatives furthering civil liberties, among others. They have encouraged local sheriffs and police chiefs to adopt immigrant-friendly law enforcement policies; advocated for the expansion of voting rights; gathered over 150,000 signatures for Amendment 4 in Florida, which paved the way to re-enfranchise over 1.4 million previously incarcerated people; and showed up at demonstrations at the border and in many cities to protest anti-immigrant policies. Today, People Power volunteers are pressing presidential candidates of all parties to endorse critical civil liberties initiatives, including reducing mass incarceration. Judge Learned Hand, one of the great federal judges of all time, once said that “liberty lies in the hearts of men and women.” We are deploying People Power to nurture that spirit and spread it through direct action. 

https://twitter.com/ACLU/statuses/1011734566514634755

We also engaged in the 2018 midterms in ways that were not possible before. We spent more than $5 million and devoted thousands of hours of volunteer and staff time to the fight in Florida for Amendment 4. We supported similar voter access reform measures in Nevada and Michigan, both of which passed. We supported a successful referendum to end non-unanimous jury verdicts in Louisiana, a Reconstruction era practice that was designed to nullify the votes of Black jurors. And we helped to defeat a transphobic ballot measure in Massachusetts. In key elections, we also did substantial voter education and outreach to ensure that citizens were aware of the civil rights and civil liberties stakes, reminding voters to “Vote like your rights depend on it.”  President Trump’s election posed immediate and wide-ranging threats to civil liberties. The threats have grown, not diminished, over time. But we have been there every step of the way, fighting to defend the civil rights and civil liberties of all. Most of these legal fights are ongoing, and we will almost certainly have to mount new legal challenges to other unlawful, unconstitutional, or un-American policies. For nearly 100 years, the ACLU has steadfastly fought battles large and small, to secure freedoms and advance equality, no matter who occupies the Oval Office. Great challenges may lie ahead, but rest assured that, with your help, we stand ready to fight for a more perfect union.

Trump Wants to Allow Discrimination with Billions of Dollars of Federal Funding

Last Friday, the Trump administration announced an alarming new proposal that would strip away critical protections against discrimination in grants funded by the Department of Health and Human Services.

Initially, we thought this proposal would serve to fulfill Trump’s promise to give taxpayer-funded child welfare agencies a license to discriminate. This proposal does that —and so much more.

Trump proposes to eliminate existing regulations that prohibit discrimination in HHS grant-funded programs based on sex, sexual orientation, gender identity, or religion, inviting discrimination against recipients of critical services. Here are just a few examples of the discrimination this rule would allow:

  • Meals on Wheels and other HHS-funded community meal programs designed to support older adults could refuse to deliver food to older Americans who are Jewish, Muslim, or LGBTQ.
  • Federally funded foster care agencies could refuse to place children with families because of their faith or sexual orientation, regardless of the children’s needs.
  • Head Start grant recipients and other federally funded child care facilities could refuse to serve children with married same-sex parents or whose parents are of a minority faith. They could also refuse to provide services to transgender youth.

You read all of that right.

Yet no one should be surprised that the Trump administration is proposing such a sweeping change that will allow discrimination in a wide variety of federal programs that play a critical – even life-saving – role in the lives of millions of Americans.

So far this year, the Trump administration has moved to roll back fair housing protections that not only aim to address housing segregation, but also help survivors of domestic violence. Trump’s Labor Department wants to give federal contractors a license to discriminate against employees. Immigrants who have a disability, as well as those who may be eligible for public assistance due to their age or income, have also been the subject of attack by the Trump administration. One of the Trump administration’s first actions in 2017 was to roll back protections for transgender students and this year, it told college campuses to create a double standard that treats discrimination on the basis of sex different from discrimination on the basis of race.

This isn’t even the first proposal from HHS. The Department has proposed to eliminate protections from discrimination in health care that have been crucial to transgender people, women and many others. It is also working to allow hospitals, clinics and doctors’ offices to be able to refuse care based on the provider’s religious beliefs.

Just one month ago, the Trump administration stood before the Supreme Court and said that firing someone for being LGBTQ should be perfectly legal as well.

What gives me hope is that ACLU supporters are fighting back. Supporters have taken more than 130,000 actions to stop federal agencies from enacting Trump’s previous attempts to open the door to discrimination and will soon have the chance to comment directly on the latest discriminatory proposal.

The comment period for this proposal to allow discrimination through HHS will be open for 30 days once the rule is published in the Federal Register, which could be any day.

Whether Trump is trying to rollback long-standing nondiscrimination protections, permit discrimination in the name of religion, or allow taxpayer-funded discrimination like Friday’s proposal, the ACLU will continue to fight back.

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