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Via the ACLU: What’s Hiding in the Immigration & Border Deal? More Mass Surveillance

2024-01-26T11:26:00.001-05:00

What’s Hiding in the Immigration & Border Deal? More Mass Surveillance

Behind closed doors, the White House and Congress continue to negotiate major changes to border and immigration law as part of a larger deal on foreign military assistance. One of the rumored proposals is to expand a program called Family Expedited Removal management, or FERM.

Already, we’ve seen families in this program suffering harm and denied due process. But with the potential for a second Trump administration, the risks of this program are even more severe — including widespread surveillance.

What is FERM?

Operated by Immigration Customs and Enforcement (ICE), FERM rushes families seeking asylum through a fast-track deportation process within days of their arrival, preventing them from accessing crucial legal support and jeopardizing their ability to effectively present their asylum claims. Fewer than 3 percent of families are able to obtain a lawyer to help them prepare for their cases. Additionally, newly arrived parents have had to recount horrific details of their trauma and persecution, often in front of their children. ICE has significantly expanded the program since creating it in May, outsourcing work to a subsidiary of Geo Group, a private prison company with a track-record of human rights abuses. Currently, the program applies to around 500 families.

FERM subjects people to intens e and continuous GPS surveillance with no justification other than their status as recently arrived migrants. Heads of household are required to wear ankle monitors and adhere to a home curfew from 11 p.m. to 5 a.m. These extreme physical surveillance measures not only punish families seeking asylum, but also treat them as public safety threats, without any individualized assessment. For people who have recently endured trauma on their harrowing journey to safety, these measures are particularly demeaning and frightening.

Why is this surveillance harmful for asylum seekers?

People forced to wear ankle monitors report experiencing physical pain, such as cramps and impaired circulation. They describe thoughts of suicide and social isolation, with one person likening it to a “modern day scarlet letter.” The fear of malfunctions or battery failure of a monitor can increase anxiety not only for the person wearing the monitor but also for their entire family. The combination of a home curfew and GPS monitor turns routine family activities — like a midnight run for baby formula or a visit to Urgent care with a child — into frightening risks of separation and deportation.

Tell Congress: Protect families seeking asylum

Sacrificing families and children seeking protection for short-term political points is unacceptable.

Source: American Civil Liberties Union

This is all unnecessary. Studies show that notifying individuals of upcoming court appearances through various means, including phone calls, recorded messages, mail, text messages, and emails is highly effective at ensuring people appear in legal proceedings. Moreover, providing access to legal counsel is far more effective; immigrant families with legal representation attend their immigration hearings 99 percent of the time, according to one study.

How would FERM affect other immigrants and Americans?

Bigger picture, Congress needs to consider how FERM normalizes 24-hour suspicionless surveillance. We should all be concerned when the government seeks authority to keep thousands, and potentially millions of people under constant watch without any pretext of criminal investigation. The people currently under the scrutiny of FERM are seeking sanctuary in our nation, often fleeing dictatorships and political persecution, making this surveillance even more perverse.

What would a second Trump administration do with FERM?

As Congress considers codifying and expanding this program, it should weigh the full ramifications. FERM’s electronic monitoring may seem benign, especially in comparison to keeping tens of thousands of people locked up in immigration detention for months or years. But imagine what a second Trump administration would do if Congress hands it authority and capacity to identify and locate immigrants around the clock, as some extremist state politicians are already threatening to do.

In a second Trump presidency, ICE could expand FERM to the over 3 million immigrants with pending cases or deferred removal. It could require them to wear GPS monitors or modify the current SmartLink app for continuous monitoring. They could also use this 24-hour location access to identify, track, and pursue its agenda for mass deportations, even using historical location data to track relationships between immigrants and their family members. If that happened, FERM would drive people further into the shadows instead of fulfilling its purported purpose of facilitating immigrants’ appearance in court and appointments.

FERM under a second Trump administration could also stifle dissent. The previous administration weaponized ICE and Customs and Border Protection to surveil activists and intimidate and attack protestors. We fear that similar, if not worse, actions may occur in a second Trump term. People under 24-hour GPS monitoring by ICE might be afraid to participate in protests and organizing — and this would affect not just them, but also people who live in a mixed-status household. Currently, one in every 15 U.S. residents live in a mixed-status household — that is, with at least one undocumented person.

What should Congress do instead?

We need Congress to pass immigration reform that modernizes our system to meet the challenges of the border. It should ensure families are not left in years of processing limbo, and that American businesses are able to access this labor source. That includes better court processing, ending administrative and legal backlogs, and providing a pathway to legal status for millions of our immigrant neighbors, loved ones, and co-workers.

But these solutions are not even part of the current negotiations. The ACLU is urging all members of Congress to reject any immigration and border deal that grants the anti-immigrant, extremist wish list of former President Trump in exchange for unrelated foreign aid.

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Published January 26, 2024 at 11:06AM
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Via the ACLU: The Importance of Defending the Free Speech Rights of Pro-Palestinian Students in Florida

2024-01-24T18:26:00.001-05:00

The Importance of Defending the Free Speech Rights of Pro-Palestinian Students in Florida

Like everyone else, college students have a First Amendment right to express their political opinions and advocate for the causes they believe in. Universities have long served as hotbeds for students to exercise these rights, providing opportunities for them to encounter diverse perspectives and broaden their understanding of themselves and the world.

Recent actions by Florida officials violate the First Amendment and pose a threat to these freedoms. In October 2023, Florida State University System Chancellor Ray Rodrigues, together with Gov. Ron DeSantis, ordered public universities in Florida to deactivate their Students for Justice in Palestine (SJP) chapters. There are more than 200 SJP chapters in the country, and Florida has two. In the order, Chancellor Rodrigues makes unsubstantiated claims that Florida’s SJP chapters have violated the state’s material support for terrorism law. This dangerous and stigmatizing allegation is solely based on constitutionally protected statements published by the National Students for Justice in Palestine, a separate organization with no formal relationship to the Florida SJP chapters.

In response to Florida officials’ attempt to punish these students for something the national group said, the ACLU, the ACLU of Florida, and Palestine Legal filed a lawsuit on behalf of the University of Florida (UF) chapter of SJP. The UF SJP is an independent student-advocacy organization dedicated to organizing and educating its community on the struggle for Palestinian freedom. As its mission statement says, it is “directed at incorporating a diverse membership of people from all faiths and nationalities who believe in the attainability of peace.”

Students for Justice in Palestine at the University of Florida v. Raymond Rodrigues

Source: American Civil Liberties Union

As the lawsuit makes clear, the chancellor’s deactivation order constitutes a clear violation of students’ First Amendment right to free speech and association. UF SJP’s case aims to stop these unconstitutional bans, and to protect students’ right to speak out on matters of urgent concern.

Here’s what you need to know about the case, including how it could impact the future of free speech on campuses throughout the country.

Why did Florida officials issue the deactivation order?

Our client UF SJP was not involved in drafting or circulating the National SJP toolkit, and it didn’t use the language suggested in the document. It opted instead to issue its own statement that “the killing of any life is always undignified and heartbreaking,” and stressed that “[v]iolence against all innocent life is unacceptable.” UF SJP concluded: “We hope that no more lives, Israeli or Palestinian, are lost. We pray for those who are suffering.” Later frustrated by what it saw as the University of Florida’s disregard for Palestinian civilian deaths in Gaza and failure to support Palestinian and Muslim students on campus, the group urged its university to “condemn all violence, antisemitism, Islamophobia, Palestinian erasure, and anti-Palestinian sentiment.”

Strikingly, the deactivation order does not assert, or even suggest, that UF SJP has violated any law or policy that might justify the chapter’s disbandment.

Essentially, Florida officials are attempting to censor and punish these students for the political advocacy of another group—and even though the other group’s speech is itself protected by the First Amendment.

Why is the deactivation order a violation of the student group’s First Amendment rights?

Students and faculty at public colleges and universities have a First Amendment right to express themselves, which includes the freedom to voice dissent against government policies, and to advocate for the movements and causes they believe in. Florida’s deactivation order blatantly violates this right.

The Supreme Court has repeatedly recognized students’ right to free speech, including in times of crisis. In a 1972 case, Healy v. James, for example, the Court affirmed that the First Amendment protects the right of student groups to associate and to speak out on matters of public concern, free from censorship by public university officials. As the Court said , “nowhere is free speech more important than in our leading institutions of higher learning.” And the Court held that a public college could not deny recognition to a local chapter (like UF SJP) because of its relationship with a national group—or based on the views of either group.

How does the deactivation order harm the Students for Justice in Palestine?

With the death toll in Gaza exponentially increasing by the day, UF SJP sees the need for advocacy on Palestinian human rights as urgent and continuing — yet the threat of deactivation still looms, limiting the student group’s ability to organize itself and others in support of its advocacy mission.

Since the deactivation order was issued, UF SJP’s funding has been in limbo. The organization’s sole source of funding is from the university’s Student Government, which makes funding available only to registered student groups. Deactivation would mean losing this funding and the UF SJP would not be able to afford to invite speakers to campus, print promotional materials for events and recruitment, or even provide food at events.

On top of funding worries, the group is worried about recruitment, given its reliance on school-controlled communications services. Only registered student organizations can post information on GatorConnect, which is the University of Florida website that students access for information about student organizations and upcoming events.

Florida officials’ accusation that the student group is providing “material support for terrorism” leaves current and potential members fearful of the devastating consequences that this stigmatizing label could have on their lives and advocacy.

Why will this case set a precedent for how we think about free speech on campus?

Florida officials’ deactivation directive poses a direct threat to students’ ability to make their voices heard and speak out on the rapidly deteriorating situation in Palestine.

In times of heightened political tension and global crisis, it is crucial for university leaders to safeguard free speech, open debate, and peaceful dissent on campus. Yet we’re seeing a surge in efforts across the country to punish and silence pro-Palestinian students and professors voicing opposition to Israeli and/or U.S. government policies.

These efforts include—

In December 2023, Rutgers University suspended its chapters of the Students for Justice in Palestine, saying the university had received complaints claiming that the group was disrupting campus life and making students and staff feel unsafe. The Rutgers’ SJP denied these allegations. The chapter has since been reinstated, but remains on probation until December 2024.
In Indiana, a tenured professor of political science and Middle Eastern studies was barred from teaching until next fall after incorrectly filling out a room request form for an event organized by the Palestine Solidarity Committee.
The University of Michigan recently canceled student elections on resolutions related to Palestine and Israel, restricted or shut down student email listservs on which students were discussing the international crisis, removed posters expressing support for Palestinians from graduate students’ office windows, and responded with aggressive policing and punitive discipline to a campus protest and sit-in.

What happens next?

We hope that the court will see Florida officials’ deactivation order for what it is: A blatant and harmful effort to censor pro-Palestinian speech on campus, in violation of the Constitution. Florida officials’ ban against a student group exercising free speech is both dangerous and wrong. Actions like these could pave the way for further censorship and discrimination within our schools and across the nation. We therefore urge university leaders to remember that they are stewards of democracy and the Constitution and free speech principles require them to protect the rights of everyone, not just those with whom they agree.

For more than 100 years, the ACLU has fought for free speech and association while opposing government censorship in all forms. We believe that students have the right to speak out, and we will always defend that right.

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Published January 24, 2024 at 05:19PM
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Via the ACLU: Alabama Plans To Execute A Man With Nitrogen Gas Despite Jury’s Life Verdict

2024-01-19T12:26:00.001-05:00

Alabama Plans To Execute A Man With Nitrogen Gas Despite Jury’s Life Verdict

On January 25, the state of Alabama will attempt to execute Kenneth Smith using nitrogen hypoxia, forcing him to inhale pure nitrogen through a mask until he suffocates. This will be the first time in United States history that nitrogen gas has ever been used to execute a person.

Earlier this month, United Nations human rights experts warned that the untested execution method might result in a painful and humiliating death. Moreover, it is likely to constitute torture, violating international human rights treaties ratified by the U.S. Last week, the U.N. High Commissioner for Human Rights, Volker Türk, urged Alabama state authorities to cancel the execution.

Veterinary scientists, who have carried out laboratory studies on animals, have even largely ruled nitrogen gas out as a euthanasia method due to ethical concerns. Authorities in the U.S. and Europe have issued guidelines discouraging its use for most mammals, citing potential distress, panic, and seizure-like behavior.

Mr. Smith shouldn’t even be on death row. In 1996, a jury of his peers voted 11-1 for life in prison for his role in a 1988 killing. However, the sentencing judge imposed the death penalty anyway. If Mr. Smith were tried today, that could not happen, as Alabama no longer permits a judge to override a jury’s decision to sentence someone to life without parole.

If the state proceeds, it will be Alabama’s second attempt to execute Mr. Smith. In 2022, the Alabama Department of Corrections failed to find a suitable vein during a lethal injection attempt, calling it off after hours of needle insertions.

Attempting to kill Mr. Smith, or any other person, by nitrogen gas is cruel and inhumane. Plans to do so should be abandoned for those reasons alone – but there are others. Nitrogen gas presents a grave danger to prison staff, incarcerated people, and the public. The Alabama Department of Corrections is aware of the risks, evident in requiring Mr. Smith’s spiritual adviser to sign a waiver acknowledging he could be at risk of gas exposure if he chooses to be with Mr. Smith at the execution.

A recent tragedy at a Gainesville, Georgia poultry plant underscores the dangers of nitrogen gas. Following a leak that filled a freezer room, five workers entering it collapsed and died. A sixth worker was pronounced dead at the hospital. After evacuating 130 workers, an additional 13 people, including four first responders in safety gear, required hospitalization and intensive care.

The tragedy in Georgia is no outlier. The U.S. Chemical Safety Board reports an annual average of 8 deaths and 5 injuries from nitrogen exposure. History, science, and common sense tell us that storing and using nitrogen in Alabama prisons, or elsewhere, is a ticking time bomb. The question isn’t whether nitrogen gas will kill staff and incarcerated people; the question is when.

Governor Kay Ivey has the authority to stop Mr. Smith’s execution by nitrogen gas; or any other method proposed. And she must exercise that power.

But, we must also abolish the death penalty in Alabama and in the U.S. entirely. The justifications for ending it go beyond the cruel, dangerous, and tortuous methods employed. It’s a barbaric practice that too often condemns wrongly-convicted individuals to die and disproportionately kills people of color, people with low-income, people with intellectual disability, people living with mental illness, and others who are over-targeted for arrest and incarceration.

The U.S. must stop inventing new and more heinous methods of execution, and put an end to it once and for all.

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Published January 19, 2024 at 11:38AM
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Via the ACLU: Jury Justice

2024-01-17T12:27:00.003-05:00

Jury Justice

When Manhattan resident Daudi Justin was studying for his undergraduate degree at Columbia University in 2016, he received a jury summons. He was astonished to learn that he was permanently disqualified from serving on a jury because of a past felony conviction. Justin had been arrested for drug possession nearly a decade earlier, an experience in part that prompted him to pursue a law degree to fight for prisoners’ rights. Now a staff attorney with the Neighborhood Defender Service of Harlem, he represents clients in the same courts that bar him from sitting on juries.

Justin is co-lead plaintiff in a first-of-its-kind class-action lawsuit, Justin v. Tingling, filed in federal district court in Manhattan in December 2022 by the New York Civil Liberties Union (NYCLU). The case challenges the permanent exclusion of people with felony convictions from serving on juries. Decades of racialized policing and prosecution targeting Black residents have resulted in the mass disenfranchisement of Black people in Manhattan from the jury pool. A jury ban mocks the very idea of the equal administration of justice and the guarantee of an impartial jury.

Decades of racialized policing and prosecution targeting Black residents have resulted in the mass disenfranchisement of Black people in Manhattan from the jury pool.

“People [on juries] interpret things differently and may not understand the context of certain evidence that’s produced,” says Justin. “That’s why it’s harmful not having that diversity of perspective in the jury pool. We lose out on justice.”

Taking an approach that has proven effective in voter discrimination cases, the NYCLU is using statistical patterns of gross racial discrimination to argue against the jury ban in New York County. A favorable ruling could provide a legal blueprint for challenging similar criminal-record-based disqualifications state and nationwide. Manhattan has the worst disparities in arrest and conviction rates between Black people and white people of any county in the state. Approximately 25 percent of Manhattan’s otherwise eligible Black residents — a staggering 38,000 people — have been disqualified from jury service. Justin’s 2009 conviction came in the midst of a 20-year period during which Black people in Manhattan were convicted of felonies at a rate more than 21 times greater than white people. And the crime of which he was convicted — a remnant of the racist Rockefeller Drug Laws, which provided harsh sentences for drug offenses — is now classified as a misdemeanor.

Jury service is a fundamental right. It holds law enforcement, prosecutors, and judges accountable in a criminal legal system that is inherently biased.

The NYCLU also continues to advocate for the passage of the Jury of Our Peers Act, which would repeal New York’s lifetime categorical ban on jury service by people with past felony convictions. The bill, which will begin the 2024 legislative session on the chamber floor, moved through Assembly committees last year. In partnership with Assemblymember Jeffrion Aubry, the NYCLU has garnered support for this critical bill among advocacy groups and recruited co-sponsors.

Jury service is a fundamental right. It holds law enforcement, prosecutors, and judges accountable in a criminal legal system that is inherently biased.

“If more individuals who feel a certain way about the system are on the jury, they have the power to determine the cases,” says Justin. “So not only is jury duty participating in the democratic process, it’s also a way of exercising your political power.”

This article originally appeared in the ACLU magazine. Join us today to receive the next issue. The article has been updated to include current legislative advocacy efforts.

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Published January 17, 2024 at 12:02PM
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Via the ACLU: Unaccountable Police Units Are Wrong for Safety

2024-01-17T12:27:00.001-05:00

Unaccountable Police Units Are Wrong for Safety

Last week, the National Policing Institute, in cooperation with the Department of Justice division on Community Oriented Policing Services, issued guidance to state and local law enforcement agencies on specialized units. NPI’s first recommendation is for law enforcement agencies to question whether they should create specialized units, and there’s an easy answer: no.

Specialized units vary but, as relevant here, they are sub-divisions of police departments tasked with enforcement related to specific conditions in an aggressive manner. The NPI guidance begins with a recognition that specialized units “are often subject to relatively limited supervision and afforded immense discretion when carrying out their duties.” This combination can lead to “tragic consequences.”

Indeed, the guidance was animated in part by the killing of Tyre Nichols in Memphis by officers from the Scorpion Unit — a specialized unit comprised of officers focused on crimes related to theft, gangs, and drugs. The Scorpion Unit stopped Nichols, a 29-year-old Black man, for a traffic infraction. They then pepper sprayed him and shot him with a stun gun despite his offering no apparent resistance. After yelling for help, Nichols ran toward his mother’s house. It wasn’t far from there that the officers — who had gone after him — beat him for several minutes while he was on the ground. He died days later from blunt force trauma to the head. Nichols’s family got the Scorpion Unit disbanded, with help from civil rights lawyer Ben Crump.

The Scorpion Unit was no aberration. In introductory remarks to its guidelines, NPI mentions the CRASH scandal in Los Angeles in the 1990s, during which a specialized unit tasked with addressing gang activity was found to be engaged in criminal conduct. The unit had repeatedly used excessive and at times lethal force without provocation. Another high-profile example is from New York City in 1999, when a specialized unit of the NYPD killed Amadou Diallo, a 23-year-old Black man. The unit — tasked with addressing gun violence — shot Diallo 41 times when he reached for his pocket to provide identification.

State and Local Governments Must Take Responsibility for Police Violence

It shouldn’t take a federal investigation to address violent and harmful practices.

Source: American Civil Liberties Union

Disbanding these units does not necessarily end the misconduct. In response to community outcry over the Diallo killing, the NYPD dismantled the responsible unit and created a new one — the Anti-Crime Unit — that supposedly had better training and oversight. The ACU went on to be a primary driver of unlawful stops in the early 2000s and, more recently, was found disproportionately responsible for shootings. Following the George Floyd protests in 2020, the ACU was disbanded only to be reconstituted in 2023 — again, with allegedly better training and oversight. Just a few months after the new rollout, however, a federal monitor found ACU to be unlawfully stopping Black and Latine people.

How, then, should police departments and communities decide whether forming a specialized unit is worth the risk? NPI recommends that law enforcement should consider a series of critical questions before deciding to create or continue a specialized unit. That’s the right starting point. And it’s also good that NPI’s list of key considerations includes whether the affected community prefers non-law enforcement alternatives. Yet this question is only meaningful if communities are given real alternatives, and they rarely are.

Asking communities to choose between a specialized unit or nothing is a false choice, and alternatives might not be viable without additional investments. Police departments often have a heavily resourced infrastructure with round-the-clock staffing. As NPI points out, this sometimes makes police a default candidate for addressing problems they are not suited to solve. While creating alternatives might require more time and money, we must build solutions that reduce mismatched reliance on police. Otherwise, we’re not actually improving safety in the long run.

Notably, determining community preferences should be a thoughtful and deliberate process that reflects an understanding that communities are not monolithic. We emphasize the need to seek input from people who have experienced police misconduct through forums police do not attend, which NPI also recommends. People who have been subjected to unfair policing — directly or as witnesses — have important insight into its manifestations and harms, and this insight is critical to designing effective solutions. Police attendance at forums soliciting input from this population might undermine participation, given mistrust and fear that result from oppressive policing.

We’re skeptical of specialized units because of their history of violence and abuse — a problem that has shown to persist despite improvements in training and oversight. Their vast discretion and the realistic limits of internal accountability mechanisms inures specialized units with too much power, which has proven too much risk to impacted communities. NPI’s guidelines offer important suggestions for limiting the harms caused by specialized units, and these recommendations should be followed if specialized units are to continue. If we want to keep people safe from both crime and police violence, though, we need to build something better.

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Published January 17, 2024 at 11:26AM
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Via the ACLU: Government Agencies Shouldn't Be Allowed to Destroy Their Paper Trail of Medical Abuse and Neglect

2024-01-12T13:26:00.001-05:00

Government Agencies Shouldn't Be Allowed to Destroy Their Paper Trail of Medical Abuse and Neglect

Last year, Anadith Reyes Alvarez, a medically vulnerable 8-year-old girl, died in Customs and Border Protection (CBP) detention after contract medical staff failed to review her medical records or consult with a physician and refused her emergency medical transport and care. As a court monitor concluded, Anadith’s death was a “preventable tragedy” pointing to an “urgent need” to improve “CBP medical oversight.” Sadly, this kind of medical abuse and neglect is not an anomaly in CBP facilities. Last month, CBP employees blew the whistle, indicating that CBP’s contract oversight office has long been aware of serious violations in the provision of medical care at CBP detention facilities, including significant understaffing, and providing medical services without appropriate medical licenses.

In the midst of these disturbing developments, CBP has requested permission from the National Archives and Records Administration to destroy “medical case files of persons in the custody of U.S. Customs and Border Protection” after 20 years.

The medical records slated for destruction by CBP have long-term value for legal, research, historical, and accountability purposes. That’s why the ACLU and 71 organizations, including the American Immigration Council and the Texas Civil Rights Project, as well as 165 academic scholars, filed a regulatory comment today to challenge CBP’s proposed destruction of these records.

The medical records in question are often the primary evidence of medical care (or lack thereof) received by people in CBP custody, and are key to government accountability efforts to address systemic medical neglect in CBP detention. These records are also critical to legal claims by individuals or their surviving family members — including people who may still have live legal challenges long after the incidents occurred, such as people with disabilities or those who were minors when the abuse or neglect occurred.

These medical records are also of significant historical importance: Historians have frequently turned to the National Archives for primary sources regarding the treatment of immigrants, including the use of health-based criteria as a basis for entry or exclusion, and access to medical care by migrants at the border. Scholars have also examined records from government agencies that provided medical care to immigrants, including the U.S. Public Health Service — a precursor to CBP’s current medical care providers.

Destruction of CBP’s medical records would eliminate an important primary source developed during CBP’s nascent period as an agency — from its establishment in 2003, to a time marked by policies of family separation, and the use of Title 42, a purported public health measure to expel millions of immigrants during the COVID-19 pandemic.

CBP’s plans to destroy medical records will only serve to obscure its tragic record of medical neglect and inhibit efforts to hold the agency accountable. Each day, CBP holds approximately 15,000 migrants in short-term detention facilities while processing them at the border. CBP policy maintains that people should not be detained for longer than 72 hours in these facilities, often small, frigid holding cells commonly referred to as hieleras (“freezers” in Spanish). CBP, however, regularly detains people for as long as 10 days, and in many cases, for over 30 days. Government oversight agencies and advocates have detailed numerous incidents of negligent medical care to people in CBP custody, including denial of care to people with broken bones, a damaged testicle due to injury by a Border Patrol officer, and a ruptured appendix.

An ACLU investigation also highlighted multiple cases of medical neglect in CBP detention, including the denial of care to a pregnant person, which preceded a stillbirth; and withholding of prescription medication for a child detained after undergoing spinal surgery resulting from a car accident. At least five people died in CBP custody in FY 2021 after having a medical emergency.

CBP’s treatment of migrants in its custody needs more transparency and documentation — not less. Like former challenges to the destruction of documents related to immigration detention, government agencies should not be allowed to destroy the paper trail of their incompetence and wrongdoing.

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Published January 12, 2024 at 12:40PM
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Via the ACLU: Language Access is a Civil Right, For Both Children and Adults

2024-01-10T13:27:00.001-05:00

Language Access is a Civil Right, For Both Children and Adults

CLICK VIDEO BELOW FOR AMERICAN SIGN LANGUAGE TRANSLATION

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For deaf people, language deprivation during early childhood represents the most significant threat to the exercise of their civil rights and liberties.

Not having adequate exposure to a language early in life has profound, lifelong consequences. Deaf students nationally graduate from high school and college at lower rates. They are among the many youth with disabilities who are disproportionately funneled into the criminal legal system. Long term negative outcomes span educational and employment contexts, and are especially bleak for deaf and hard of hearing children who also share marginalized racial identities, such as those who are Black.

In the ACLU’s ongoing work to affirm the civil rights of Deaf, DeafBlind, DeafDisabled, and Hard of Hearing people in prison and on supervision, including their right to access effective communication, many of our clients share one common trait: they experienced the permanent, detrimental effects of language deprivation in their early years.

Nearly all of our clients in these cases were among the 96 percent of deaf children born to hearing parents who did not know sign language. These parents love their children, but struggle to provide them with full access to language, signed or spoken.

Despite improvements in early intervention approaches, newborn hearing screenings, and advances in hearing technology, current research shows that deaf children often do not develop age-expected spoken language skills when they are only provided with spoken language. When kids don’t have full access to language, especially during the crucial years for early childhood development, they develop language deprivation syndrome — a neurodevelopmental disorder with negative and long-lasting effects on the deaf child’s language, cognitive, and socioemotional development.

Deaf education in the United States has historically been framed as a false dichotomy between bilingual Deaf schools where deaf children learn both American Sign Language (ASL) and English (spoken and/or written), and “mainstreamed” schools using an auditory-oral approach where deaf children only learn English (i.e., withholding ASL and other visual cues like lipreading).

The families of deaf children have, for generations, shared similar experiences: an overwhelming barrage of information, frequently biased towards the auditory-oral approach — giving their child auditory input while completely excluding signed language. Too often this is incorrectly presented as the most effective approach. But clear evidence demonstrates that deaf and hard of hearing children, even those with hearing parents, can effectively learn a sign language, and that doing so supports subsequent learning of spoken language.

The ACLU seeks to support parents in ensuring meaningful access to the language acquisition tools that work for their child. Accordingly, we support:

Education plans for deaf and hard of hearing children that meet the specific needs of the child.
Education plans that include access to the full range of evidence-based instructional approaches and tools that can be used in various combinations to support language development and communication, including ASL-English bilingual education, Protactile, tactile signing systems, Cued Speech, augmentative and alternative communication, and auditory-oral education.
Education plans that are accompanied by empirical evidence listing all possible outcomes, being clear which options will reliably lead to complete acquisition of at least one language, and which will not.
Choice — and meaningful access to those choices — with the goal of successfully acquiring a language.

The ACLU considers the evidence-based “gold standard” approach to be providing access to a natural signed language during early infancy, in addition to support for learning English and other heritage languages desired by the family. Doing so positively impacts their language, cognition, socialization, and learning.

We do not support:

The explicit withholding of access to sign language during early childhood, given the heightened risk of language deprivation that comes with such approaches.
The false idea that learning sign language might harm a child’s ability to learn to speak and should be prohibited in the household.

In recent years, evidence-based grassroots legislative efforts to aid parents of deaf children in tracking their child’s language development during the first five years have made significant gains.

LEAD-K is a bill that has been passed in more than 20 states — some with the ACLU’s support. It empowers parents with balanced information about the languages, communication modes, and instructional approaches available to their deaf children. It also empowers states to track children’s progress with reliable data, identify when children are not getting sufficient support, and provide appropriate interventions as needed.

At the same time, we recognize a long history of choices being made for people with disabilities instead of by people with disabilities. Those choices can be rooted in eugenics, the medicalization of disability, or a parent’s desire to share their language with their child.

One argument often used to defend the choice to withhold ASL is that it should be the parents’ choice. The ACLU recognizes that sometimes arguments about parents’ right to choose can be weaponized in ways that endanger children — such as outing transgender students. Parents who choose only “listening and spoken language” options for their deaf or hard of hearing children choose that option because they want their child to function easily in society. But the science shows that exposing these children to only this form of communication can make it much harder for them to learn any language.

Arguments around parental choice can be used to deprive a child of a fully accessible language, despite risks of permanent cognitive and socioemotional harm, in hopes that the child will “overcome” their hearing disability. To that end, we encourage parents to learn about evidence-based language acquisition approaches and to be mindful of the legacies of ableism and audism when making choices for their children.

All students have the right to an equal and accessible education. We do not support the restriction of educational opportunities for deaf children, including the closure of schools for the deaf, which can be the best environment for some deaf children to learn in and support their language acquisition. The question of which setting is the Least Restrictive Environment (LRE) is an individualized question, and the U.S. Department of Education confirms that the LRE is not automatically the provision of mainstream schools for deaf children. The primary goal of deaf education is to ensure deaf children can learn language, and learning language is easiest in immersive social environments with other language users.

We recognize that mainstream schools can often be under-resourced, lacking the full continuum of language supports that deaf schools can provide. The ACLU strongly supports increased resources for deaf children to acquire a signed language and for deaf adults to access services in their primary language.

At the ACLU, we’ve seen firsthand the adverse impacts of language deprivation. Access to language — through LEAD-K and through the availability of all educational methodologies as options individualized for each child — is a fundamental stepping stone to vindicating the civil rights and civil liberties of deaf and hard of hearing people and enabling the next generation of deaf children to become full, participating members of our democracy.

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Published January 10, 2024 at 12:19PM
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Via the ACLU: The Supreme Court Must Allow U.S. Citizens to Challenge Placement on No Fly List

2024-01-08T13:26:00.001-05:00

The Supreme Court Must Allow U.S. Citizens to Challenge Placement on No Fly List

In case after case, we’ve seen the government remove people from the No Fly List and prevent their legal challenges from being heard. Now, the Supreme Court has the chance to ensure Americans wrongly placed on this list are actually given their day in court. Today, the Supreme Court will hear FBI v. Fikre, a case that will determine whether a U.S. citizen can continue to challenge his placement on the No Fly List, after the government removed him from it and sought to end his case.

FBI v. Fikre

The ACLU and partners filed an amicus brief in support of Yonas Fikre, a U.S. citizen who alleges that he was wrongly placed on the No Fly List.

Source: American Civil Liberties Union

To understand what’s at stake, it helps to know how the No Fly List program functions. Since 2003, the U.S. government has operated a No Fly List that indefinitely bars U.S. citizens and residents from flying to, from, or over the United States. Using vague criteria and a low evidentiary standard, the government exercises virtually unfettered discretion and secrecy in making its No Fly List decisions. Claiming national security, the government says it can keep its reasons and evidence for putting people on the list — or taking them off it — entirely or almost entirely secret. We know that Americans on the No Fly List are disproportionately Muslim and those of Arab, Middle Eastern, or South Asian heritage.

In 2014, in a case filed by ACLU clients, a district court found that the administrative process the government provides to challenge placement on the No Fly List violated due process and required the government to change it. But the process the government then put in place is little better — it still does not provide people with the government’s reasons and evidence for placing them on the list or a fair process to challenge error.

Mr. Yonas Fikre, the respondent in the Supreme Court case, discovered he was on the No Fly List in 2010 and subsequently filed a lawsuit to challenge his placement. Although Mr. Fikre completed the government’s redress process; he was still not given any reasons for his placement on the No Fly List. Six years later, after he filed a federal court challenge, the government removed Mr. Fikre from the list and argued his case could not go forward because it was moot. It also told him that he “will not be placed on the No Fly List in the future based on the currently available information.” But this is not good enough.

In the friend-of-the-court brief submitted by the ACLU, ACLU of Oregon, and Goodwin Procter in support of Mr. Fikre, we identified 40 U.S. citizens and residents who challenged their placement in court and found that the government kept secret the full reasons — or any reason — for placing each of them on the list. We found that the government has repeatedly acted to prevent judicial review by taking people off the list at strategic points in litigation. As a result, a government statement that a plaintiff like Mr. Fikre will not be relisted “based on currently available information” provides no assurance that the government will not wrongly put him back on the list in the future. And as we argued to the Supreme Court, because the government has not made it absolutely clear that its allegedly wrongful behavior will not recur, Mr. Fikre’s court challenge is not moot and the courts should hear and decide his case.

Mr. Fikre’s experience is not an isolated one. We and others have repeatedly documented that placement on the No Fly List has devastating consequences for people’s personal and professional lives — and the government has used the list as a tool of coercion. For example, in 2018, Ahmad Chebli, a Michigan-based father of two, was pressured by FBI agents to become an informant in his own community. When he refused, the FBI agents falsely accused him of being affiliated with a terrorist group, and made threats of investigation, arrest, and immigration consequences for his family. Despite terrible anxiety and stress as a result, Mr. Chebli still refused to become an informant. He sent his wife and children to Lebanon for safety and later joined them — hoping that his government would back off. But when he tried to return home to Michigan, he learned that it had instead put him on the No Fly list.

I Refused to Become an FBI Informant, and the Government Put Me on the No Fly List

With the help of the ACLU, I’m bringing a lawsuit to challenge the government’s actions.

Source: American Civil Liberties Union

For two years Mr. Chebli tried to use the government’s redress process to seek removal from the list — but that process was a black box of secrecy and unfairness. The government only took him off the list in 2021, 10 days after we sued on his behalf. Unfortunately, this experience is not unusual for Americans placed on the list. Many spend years seeking information about how to be removed, without even learning why the government put them on the list in the first place.

At its core, both the No Fly List and the government’s watchlisting program perpetuates unfairness, secrecy, and discriminatory profiling. The categories of people who are watchlisted seem ever-expanding, never constricting — which is exactly what happens when you have a vague, overbroad system of government surveillance and sanction based on suspicion and without due process. Mr. Fikre, and those like him, should have their day in court. We hope the Supreme Court agrees.

If you are an American citizen or lawful permanent resident concerned that you’re on the No Fly List, please fill out this form.

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Published January 8, 2024 at 01:10PM
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Via the ACLU: Another Year of America's Failed Experiment: The Death Penalty in 2023

2024-01-02T14:26:00.001-05:00

Another Year of America's Failed Experiment: The Death Penalty in 2023

In the 1920s and 30s, a stark white-on-black banner would sometimes appear in front of NAACP headquarters in Manhattan. It read simply, “A MAN WAS LYNCHED YESTERDAY.” The proliferating southern NAACP branches of the time would relay information about lynchings back to New York, where Walter White’s NAACP would broadcast the news by hanging out the banner.

The death penalty is out of step with the fundamental values of our democratic system: it is barbaric, inequitable, and unjust.

In 2023, the ACLU, inspired by that broadcast, initiated a digital campaign to memorialize the lives of death-sentenced individuals at the time of execution, and called for an end to the death penalty. In 12 months, we memorialized 20 people executed by five states: Missouri, Oklahoma, Florida, Texas, and Alabama. The series illustrated the full range of systemic flaws of capital punishment in America: the targeting of people of color, low-income people, people with intellectual disability and mental illness, and other marginalized persons; the rampant police and prosecution dishonesty and demagoguery; the grossly underfunded and incompetent representation; the torturous execution methods; and the slaughter of innocent people.

These executions stood against the backdrop of the ACLU’s work around the country to bring the death penalty’s flaws to light and hasten its abolition. We filed litigation in Florida challenging the discriminatory effects of “death qualification,” a jury selection practice that disproportionately excludes people of color and those with religious objections to the death penalty. We presented evidence in Kansas at a hearing in support of a broad challenge to the constitutionality of the death penalty. In North Carolina, we prepared for a hearing seeking relief under the state’s Racial Justice Act, or RJA, and we launched and litigated similar challenges in California under that state’s newly enacted RJA.

Our work this year will be guided by our twin goals of preventing executions and, ultimately, abolishing capital punishment.

We continued representing individual clients who received shockingly ineffective assistance at trials marked by discriminatory jury selection, junk science, and prosecutorial misconduct. Throughout the year, we drafted or joined amicus briefs on issues that included potentially botched executions in Arizona, the State’s suppression of evidence of a capital defendant’s innocence in Louisiana, and an illegal non-public trial in Kentucky.

We will start 2024 with a major hearing under the North Carolina RJA, and then continue our attack on racism in capital cases by seeking relief under California’s Racial Justice Act on behalf of clients facing capital trials in Riverside County, the nation’s heaviest user of the death penalty. We will be the first to challenge on direct appeal Florida’s recent legislation allowing non-unanimous juries to recommend death sentences — a practice that disproportionately silences the voices of people of color — on behalf of our client, Michael Jackson, in the Florida Supreme Court. And our practice of filing friend-of-the-court briefs before the Supreme Court in critical capital cases will continue.

Our work this year will be guided by our twin goals of preventing executions and, ultimately, abolishing capital punishment. The death penalty is out of step with the fundamental values of our democratic system: it is barbaric, inequitable, and unjust. The time has come for America to end this failed experiment.

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Published January 2, 2024 at 01:58PM
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Via the ACLU: Fighting Campus Censorship: The ACLU Defends Pro-Palestinian Voices in Florida

2023-12-29T16:26:00.001-05:00

Fighting Campus Censorship: The ACLU Defends Pro-Palestinian Voices in Florida

The freedom to speak out and debate matters of public concern is a fundamental right that allows our democracy to flourish. As the world bears witness to the catastrophic war in Palestine and Israel, U.S. college students on both sides of this conflict have come out to protest and speak their minds. However, across the country, at public and private universities, students supporting Palestinian human rights are being silenced and censored. In Florida, for example, state university officials, in coordination with Gov. Ron DeSantis, ordered public universities to deactivate their Students for Justice in Palestine (SJP) chapters — a clear violation of the student group’s constitutional right to free speech and association.

The Unconstitutional Silencing of Pro-Palestinian Student Groups

In November, the ACLU sent out an open letter expressing our strong opposition to any efforts that stifle free speech on college campuses.

Source: American Civil Liberties Union

In response to this unconstitutional crackdown on pro-Palestinian student groups, the ACLU, ACLU of Florida, and Palestine Legal filed a lawsuit on behalf of the University of Florida chapter of SJP. ACLU legal fellows Shaiba Rather and Tyler Takemoto, members of the UF SJP legal team, joined our podcast to discuss the lawsuit and why protecting free speech on campus is so important.

Kendall Ciesemier: Can you tell us what Students for Justice in Palestine or SJP is as a student organization?

Shaiba Rather: Students for Justice in Palestine is a student organization that is committed to advocacy, organizing, and educating other people on their campus, the greater community, on the struggle for Palestinian freedom. These are diverse groups of students who take time out of their schedules to take on additional labor of putting on events, flyering, staging peaceful protests, etc.

KC: What was your reaction to the order to deactivate SJP chapters on campuses? What does it mean in terms of students, civil rights, and civil liberties?

Tyler Takemoto: The Supreme Court soundly holds that the First Amendment protects these types of student groups from a university’s efforts to deactivate them. When we saw this deactivation memo from Chancellor Ray Rodrigues, we knew it violated these students’ First Amendment rights.

SR: This memo calling for deactivation targets SJP chapters across University of Florida’s school districts without accusing University of Florida SJP itself of wrongdoing. Instead the memo cites two statements from an entirely independent and separate group’s toolkit — the National SJP. The attempt to punish University of Florida SJP for another group’s speech violates the First Amendment, and goes against basic principles in our legal system: guilt by association and independent advocacy that is not made at the direction of or in coordination with a terrorist organization is not material support for terrorism.

KC: What do you think is the real goal of deactivating these chapters?

SR: Silencing dissent, especially for causes like Palestinian freedom, isn’t new. The efforts by Gov. DeSantis and Chancellor Rodrigues echoes a concerning national trend that is very aggressive. The focus on material support accusations are crucial. Using this term implies that a student group is offering support to a recognized terrorist organization. It’s a loaded term that historically has been used against marginalized groups, from post 9/11 targeting of Muslim communities to weaponizing it against activists in an attempt to stifle dissent. Governments know that there is this trump card and will use it. And in this case, they’re using it to totally cut out the legs of pro-Palestinian movements.

Why We Must Reject Efforts to Restrict Constitutionally Protected Speech on College Campuses

Calls to punish and silence student activists betray the Constitution and the spirit of free inquiry that is critical to life at public universities.

Source: American Civil Liberties Union

KC: Can you tell us about what the lawsuit the ACLU and partners filed seeks to do, and what is the main argument from SJP?

TT: Our lawsuit seeks to challenge this unconstitutional memo to deactivate SJP chapters and prevent it from going into effect. Alongside our lawsuit, we filed a preliminary injunction aiming to block the state of Florida from enforcing the memo, a move to protect University of Florida SJP from the already chilling effects on free speech this memo has caused.

SR: This case can feel unique because of how urgent and sensitive it might be — however, this is well in line with decades-old Supreme Court precedent. Our complaint says that you can’t discriminate based off a viewpoint, you can’t interfere with a student group’s right to associate or speak on college campuses, and there is no exception for pro-Palestinian speech — full stop.

KC: The ongoing crisis in Palestine and Israel has sparked concerns about campus safety as students take action and voice their opinion. However, pro-Palestinian efforts have gained particular criticism from schools and local governments. What role does protecting students’ right to free speech play in ensuring campus safety?

SR: In moments of dissent and heated political tension, universities might be tempted to silence protests as a shortcut to creating a peaceful environment. The thinking might be, “If I cut out the protests, disorder is not going to affect my campus.” But silencing student voices isn’t a real solution. Universities must be steadfast in keeping all students’ free speech rights protected while guaranteeing everyone feels safe to learn and live on campus — and recognizing freedom of speech is not a threat to that goal.

TT: We’re seeing a concerning trend, predominantly one-sided, to punish students for speaking in this moment. Job offers have been rescinded for speaking in favor of the Palestinian cause, a disturbing effort to paint pro-Palestinian speech with a broad brush as dangerous, harmful, or even pro-terrorist. In these moments, I believe it’s crucial to make sure that our First Amendment rights are being enforced across the board to enable a nuanced and truthful conversation in this really painful and difficult time.

KC: There have been calls for university presidents to investigate their campus SJP chapters. Could you walk us through how this prompted our call to action?

SR: Once again, we are in heightened political tension, political moments, and ultimately there is no viewpoint exception to the First Amendment, and that also means there is no Palestine exception to the First Amendment. The ACLU stands firm in defending free expression, regardless of the perspective.

TT: College campuses have historically been at the forefront of free expression and diverse viewpoints around complex ideas. Anecdotally, as a recent law grad, I’ve witnessed calls to investigate my peers simply for aligning with student groups or signing sympathy letters expressing sympathy with the Palestinian cause. This has definitely created a McCarthyite atmosphere on these campuses where expressing opinions can lead to public shaming and accusations of extremism.

KC: As young people, why is it so important as young people to be helping other young people express their points of view?

TT: The First Amendment protects your right to organize and demonstrate on behalf of causes that you believe in. Regardless of whether you’re in K through 12, you don’t have fewer rights just because you’re a student — and the ACLU is here to ensure you know your free speech rights and have the freedom to make your voice heard.

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Published December 29, 2023 at 03:29PM
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Via the ACLU: Looking to the Future: 2024 at the ACLU

2023-12-21T10:27:00.001-05:00

Looking to the Future: 2024 at the ACLU

As 2023 draws to a close, we’re reflecting on crucial wins and our ongoing advocacy for civil liberties and civil rights. We’re also looking to the work ahead that will determine whether rights around the country are diminished or expanded. With the 2024 election on the horizon, we will see new challenges to reproductive freedom, trans rights, voting rights, and the many other constitutional freedoms we work so hard to protect. Our work has never felt more critical. Here are a few places we’ll be focusing our energy and expertise in the new year.

Challenging State-Level Abortion Bans

Credit: Sharon Vanorny

While a case heads to the Supreme Court that could have devastating nationwide impacts on mifepristone, a safe and effective medication to manage abortion and miscarriage care, we will continue to challenge bans on abortion in states including Arizona and Georgia.

Arizona’s High Court Must Protect Abortion Access

This 150-year-old ban would drag present-day Arizonans into a dangerous past.

Source: American Civil Liberties Union

We will also continue our work to secure more critical wins for abortion rights at the ballot box building on victories in Ohio, Virginia, and Pennsylvania this year.

Safeguarding Against Mounting Anti-Trans Legislation

Credit: Sam Braslow

We are closely watching state-level legislative attacks on trans rights, and will continue to take legal action to protect access to gender-affirming care. In November, we asked the Supreme Court to review Tennessee and Kentucky’s unconstitutional ban on health care for transgender youth, and expect to hear from the court early next year. Our nationwide affiliate network is standing ready to defend LGBTQ people and our families from yet another legislative session where their freedom, safety, and dignity will once again be debated and attacked. Already, lawmakers have pre-filed bills attacking gender-affirming care, targeting teachers that support trans youth, and denying transgender students a safe and inclusive education.

Fighting For Fair Maps and Voting Rights

Credit: Rachel E. Thomas

Our efforts against racially discriminatory gerrymandering and to expand voting rights will become more crucial than ever during the upcoming election year. Among our many voting and redistricting-related cases are Alexander v. South Carolina State Conference of the NAACP and AR NAACP v. Arkansas Board of Apportionment, in which we are suing against unlawful mapping that undermines the political power of Black voters.

Putting the Death Penalty on Trial

As public opinion on the death penalty continues to sour, in 2024 we’re putting the death penalty on trial in North Carolina. In a landmark Racial Justice Act hearing, we’ll be arguing that racial discrimination tainted the death sentence of Hasson Bacote, who was sentenced to death by a jury of 10 white and two Black jurors in a case where the prosecution struck three times more Black jurors than white jurors.

North Carolina v. Hasson Bacote

Hasson Bacote is challenging his death sentence under the first-of-its kind law, the North Carolina Racial Justice Act (RJA).

Source: American Civil Liberties Union

This is all happening in Johnston County, the site of at least four lynchings between Reconstruction and World War I, and where KKK billboards were proudly displayed through the 1970s. The case could pave the way for others on North Carolina’s death row to challenge their sentences.

Advocating for Racial Justice Through Economic Equity

Everyone should have access to economic opportunity and get the chance to build their financial future, not just the few who have been born into generational wealth. That’s why we believe baby bonds are a crucial tool to address economic inequality. These investment accounts are created by federal, state, or local governments to help ensure that children have a secure economic future. As adults, they can use these funds to pay for higher education, homeownership, or entrepreneurship — three of the most proven ways to build wealth in the U.S. Several states have already passed or are proposing baby bond legislation, and Sen. Cory Booker and Rep. Ayanna Pressley have proposed a national baby bond program.

Litigating Against Aggressive Anti-Immigrant Legislation

Credit: Will Martinez

A new law in Texas would allow state law enforcement to arrest and detain people over suspicions about immigration status, and authorize judges to order people deported. The ACLU and partners filed a lawsuit against this extremist and unconstitutional policy and will continue other defense efforts across the country against unlawful anti-immigrant policies.

Pushing Back Against Discrimination Under the Guise of National Security

Credit: Erich Martin

The ACLU will continue to advocate for people and communities harmed in the name of national security, particularly people of color and those who dissent against the government. In Florida, for example, we’re fighting to overturn a discriminatory and unconstitutional law that bans many Chinese immigrants — as well as immigrants from six other “countries of concern” — from buying a home in the state.

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Published December 21, 2023 at 09:55AM
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Via the ACLU: The Consequences of Police in Schools: A North Carolina Case Study

2023-12-14T11:27:00.001-05:00

The Consequences of Police in Schools: A North Carolina Case Study

At the end of the 2022-2023 school year, when she was 14 years old, a verbal altercation occurred between Amerie and a classmate who was berating her and other classmates. This wasn’t the first time that Amerie, a student in North Carolina, faced harassment and bullying from some of her classmates. Her mother, Regina, had repeatedly contacted the school to bring the bullying to their attention, but no interventions took place.

This time, however, the dispute required a teacher to step in, who was later bumped by a student during the intervention. Amerie was taken to the principal’s office by a school resource office (SRO), where she was questioned by the school administration with the SRO present. They determined Amerie was responsible for the physical altercation, despite the teacher saying she hadn’t been hurt and was unable to confirm who made contact with her. Amerie was told she was being sent home and would be suspended. The officer placed her in handcuffs, which were too tight and hurt her wrists.

In North Carolina, school districts continue to devote millions of dollars to the placement of armed law enforcement officers in schools, despite clear evidence of its negative impact on students and learning environments. Prioritizing funds for law enforcement in schools over counselors, nurses, social workers, psychologists, and community-based support is a policy choice that continues to have severe consequences for children in the state, particularly Black students and students with disabilities.

It is well-established that Black students are not generally more likely to misbehave than other students, even after accounting for different socioeconomic backgrounds. Yet school officials punish Black students more frequently than their white peers. Our new report, “The Consequences of Cops in North Carolina Schools,” found that between 2021 and 2023, law enforcement and school staff filed complaints of disorderly conduct against Black students at over five times the rate of their white counterparts. This results in Black students and students with disabilities being over-criminalized, physically and mentally harmed, and funneled into the school-to-prison pipeline every year.

We recently sat down with Amerie and Regina, along with Legal Aid of North Carolina, who is handling her case, to hear about their experience with law enforcement in school and its detrimental impact on Amerie’s academic and personal life. Our conversation has been edited for length and clarity.

ACLU: What happened when you were in the principal’s office with staff and law enforcement?

Amerie: I asked to call my mom multiple times, but they refused. They aggressively told me I was disrespectful and how my mom should have taught me better. It made me very emotional. Once I left the room, I accidentally knocked over a trash can. The officer ran out and told me I was destroying the school’s property and would now be charged. They told me because I had allegedly touched a teacher and was now destroying property, that I would be sent away and get what I deserved. An officer then put me in handcuffs.

ACLU: What happened when you were put in handcuffs? How did it make you feel?

Amerie: I kept asking the officer why I was being put in handcuffs. He did not respond and slammed me down into a seat. He took my phone from me and set it on the counter. He saw my mom calling and watched it ring. The third time it rang, he picked up my cell phone and told my mother that I was in his custody. My mom kept asking why I was under his custody, but he refused to answer. It felt like a “why is this happening to me?” situation. I asked him what I did to deserve this treatment because I had never disrespected them. I have always been respectful and used my manners when it came to staff. I asked him several times, like four or five times, if he would loosen my cuffs. I was telling him that they were cutting off my circulation. And he refused to do that. I was still shedding tears and I was telling him that he didn’t have to take the cuffs off, but to please loosen them because they were hurting me. He laughed in my face and made a comment about how I was in his custody now.

ACLU: Regina, how did you feel when you discovered what your daughter had gone through?

Regina: I was upset. I was overwhelmed. This is not the first time I have brought a situation to them to help me with my daughter. Throughout the year, we have been dealing with bullying, thoughts of suicide, stress, therapy, and medication. This is nothing new to the school; that she is going through something. She has never been aggressive. There is no documentation saying this is what she does. I thought the phone call would be our usual pep talk: “we will get through this.” The teacher explained the situation to me and said she did not feel Amerie was aggressive in any way. She did say that it was a disruption in class.

ACLU: What happened after you left the school?

Amerie: When I first got in the car, I was complaining that my wrists hurt. We left and went to urgent care. They said my cuffs were obviously too tight and cut off my circulation. There were marks and bruises that I never had before.

ACLU: How do you and your classmates feel about having police in schools?

Amerie: I feel like they overplay their part and do more than they are supposed to do. It shocks me how they do their job, because growing up I thought that they were supposed to be by your side and protect you. They normally don’t take the time out of their day to actually visit a kid’s classroom and have conversations. Now I don’t feel safe in this environment. I’m a good kid, but they never took a chance to get to know me. It’s like they’re out to get me.

ACLU: How do you think your education has been impacted since this took place?

Amerie: I feel like it ruined me in general. I don’t feel how I used to feel; being happy to go to school, or just showing up in general. I don’t want to conversate with people anymore, or be around people in general because I’m scared I might run into one of those experiences again.

ACLU: Why do you think it’s important to share this story?

Regina: I never thought that I would have a child be suicidal. As a parent you do everything you can, like keeping them in activities and sports. There are so many kids that Amerie knows that are fighting the same issues she is. I’m willing to do anything to help these kids.

ACLU: Amerie, what do you want to do in the future?

Amerie: I want to teach kids who need extra help. I have had that dream since I was in kindergarten. I feel like I can really relate to them, and sitting one on one with them could bring a lot of joy. In my school, it’s common for these kids to get bullied for how they are. I have always made sure to tell them that anything they want to do, I support them and am proud of them, even if I felt like I was not proud of myself.

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Published December 14, 2023 at 10:24AM
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Via the ACLU: Arizona’s High Court Must Protect Abortion Access

2023-12-12T14:26:00.001-05:00

Arizona’s High Court Must Protect Abortion Access

Today, the Arizona Supreme Court will consider whether to resurrect a more than 150-year-old criminal ban on virtually all abortions. The court’s decision could allow that law to take precedence over Arizona’s modern abortion laws, including those passed just last year by the people’s current elected representatives.

This ban was originally struck down in 1973, thanks to a lawsuit brought by Planned Parenthood and physicians in Arizona, and since that time has been superseded by a comprehensive scheme that regulates abortion as a lawful medical procedure. But an anti-abortion activist and County Attorney are now asking the Arizona Supreme Court to turn back the clock. No one should be forced to carry a pregnancy to term against their will and face the life-altering consequences of being denied essential health care, but reviving this antiquated law in full would do just that — and, at the same time, throw Arizona’s entire contemporary legal code into confusion.

The origins of Arizona’s near-total criminal ban at issue in this case go back to 1864. To put that into context: This ban was enacted during the Civil War era, when women were not allowed to vote, and Arizona was not even a state. Yet even though Arizona’s current abortion laws permit abortion through 15 weeks of pregnancy, the 1864 ban permits abortion only when necessary to save the patient’s life. In all other situations, performing an abortion would lead to felony charges and prison time.

Abortion Criminal Defense Initiative

The Abortion Criminal Defense Initiative is one way the ACLU is confronting the criminalization of abortion care.

Source: American Civil Liberties Union

Given that eight in 10 Americans — who are around today — support the legal right to abortion, allowing this zombie abortion ban to be enforced against abortion providers would be profoundly undemocratic. This law — which no current elected official or Arizonan ever voted for — would condemn all those in Arizona who can become pregnant to a second-class status, denying them control over their bodies and their futures. It should come as no surprise, then, that leading medical groups are united in condemning abortion bans like these, as they threaten patients’ health and disproportionately harm marginalized patient populations.

These are not theoretical concerns. It is all too easy to predict what the full impact of imposing the 1864 ban would be, because we have seen the devastating impact of such extreme abortion bans throughout the country, since the U.S. Supreme Court overruled Roe v. Wade last year in Dobbs v. Jackson Women’s Health.

Following Dobbs, it is estimated that nearly a quarter of pregnant people seeking an abortion have been unable to get one. The enduring harms to women and children’s financial, medical, and overall wellbeing caused by being denied an abortion are well-documented. Abortion bans have resulted in tragic stories of pregnant patients facing dangerous pregnancy complications being denied care, children as young as 10 years old pregnant as a result of rape unable to access care in their state — and in some cases unable to get an abortion at all, as well as countless other egregious scenarios.

Of course, even before Dobbs, pregnant people faced substantial obstacles accessing abortion care. But the burdens after Dobbs on pregnant people attempting to seek care — including greater travel time, increased expenses, and the threat of prosecution for those who try to help pregnant people get care out of state — have made accessing abortions impossible for some.

Alabama Health Care Providers File Lawsuit to Prevent the Prosecution of Those Helping Patients Seek Out-of-State Abortion Care

Health care providers filed a lawsuit to prevent the prosecution of those who assist Alabamians seeking to access abortion care across state lines.

Source: American Civil Liberties Union

Thankfully, in a well-reasoned decision issued in December 2022, the Arizona Court of Appeals refused to impose the near-total ban on abortion across the state the ban. (The ACLU and partners at the ACLU of Arizona, the Center for Reproductive Rights, and Perkins Coie LLP have also filed our own suit seeking to ensure that the 1864 ban does not supplant Arizona’s current abortion laws.) The Arizona Supreme Court must do the same.

Although this case is principally about applying longstanding legal precedent, the stakes are high — and the chaos and harms that would result from the Civil War-era ban criminalizing nearly all abortion care are no less fundamental, undeniable, and terrifying. The Arizona Supreme Court must keep a lid on the Pandora’s box that the ban would unleash on pregnant people in Arizona, their families, and their communities.

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Published December 12, 2023 at 01:58PM
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Via the ACLU: ACLU Wins: 8 Victories We Celebrated in 2023

2023-12-08T17:29:00.001-05:00

ACLU Wins: 8 Victories We Celebrated in 2023

This year, the ACLU continued our defense against challenges to our civil rights and liberties — but we also enjoyed some heartening victories. This advocacy is hard-fought and lasts months, if not years. But we persist in courts, legislatures, and communities, and this persistence pays off. Here are a few of the many wins we saw this year during our enduring fight for our rights.

We empowered voters to protect abortion rights at the polls

This year’s Election Day saw some critical wins for reproductive freedom, with a majority of individuals in Ohio, Virginia, and Pennsylvania voting to protect abortion rights in their state. The ACLU and affiliates helped play a key role in these victories by educating voters, equipping them with knowledge about the measures and candidates on their ballots.

We helped to remove children from the country’s largest maximum-security adult prison

In 2022, Louisiana’s governor made the abhorrent decision to move children in the juvenile justice system to the former death row of the infamous maximum security prison Angola. The ACLU filed a federal lawsuit in an attempt to stop the unconstitutional and dangerous transfer, and continued to advocate for the children’s removal. In September, a judge ruled that the children detained at Angola had been subject to conditions that constituted “cruel and unusual punishment.” The state moved the children to comply with the court order, but continues to fight for the right to use the prison for children again in the future. Our work to prevent this from happening and ensure children in state custody receive the support they need is not over.

We defended an Indigenous student’s right to wear tribal regalia at her graduation

As part of a continued effort to protect students’ rights to wear tribal regalia, the ACLU, our Mississippi affiliate, and the Native American Rights Fund sent a letter to a school board in Mississippi explaining that state law requires public schools to allow Native American students to wear tribal regalia and objects of cultural significance, such as eagle feathers, at graduation. The school board reversed course, and the student was able to attend the ceremony with an eagle feather on her graduation cap.

We prevailed in a critical case for transgender youth

Following a lengthy trial in 2022, and many more months of advocacy alongside our brave plaintiffs, the ACLU saw a favorable ruling in Brandt v. Rutledge, a case challenging an Arkansas law that would prohibit access to medically necessary health care. In June, a federal judge overturned the law banning gender-affirming care in the state, saying it violated the rights of transgender youth, as well as their parents and medical providers.

We saw historic legislation protecting the rights of pregnant workers finally go into effect after years of advocacy

The Pregnant Workers Fairness Act, which strengthens pregnant workers’ access to time off or job modifications, was passed by President Biden in 2022 and went into effect this summer. This followed over a decade of advocacy by the ACLU and our partners, which included representing pregnant workers whose employers refused to accommodate them.

We advocated for tribal sovereignty in a battle that went all the way to the Supreme Court

In June, the Supreme Court rejected constitutional challenges to the Indian Child Welfare Act in Brackeen v. Haaland. The federal law helps ensure that Native families stay together by creating a placement preference to promote the stability and security of Native American tribes and families.. The ACLU filed an amicus brief urging the Supreme Court to protect the act.

We celebrated a groundbreaking win against gendered uniform policies at Alaska Airlines

Following an ACLU complaint filed against the company in 2022 on behalf of a nonbinary flight attendant, Alaska Airlines agreed in May to adopt a gender inclusive uniform policy. The legal agreement also requires additional training and education for Alaska Airlines’ more than 20,000 employees, setting an important precedent for other employers in the industry.

We challenged maps that weaken Black political power — and won

Alongside our partners, we challenged Alabama’s racially discriminatory congressional map, which was redrawn strategically to dilute the voting power of Black communities. This past June, the Supreme Court ruled in our favor, while also affirming that race can be used in the redistricting process to ensure voters of color are not being silenced. This is just one example of our ongoing work to ensure that legislatures accurately reflect their constituencies and to obtain fair representation for Black voters.

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Published December 8, 2023 at 04:37PM
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Via the ACLU: We’re Making Sure People in Immigration Detention Know Their Rights

2023-12-07T16:29:00.001-05:00

We’re Making Sure People in Immigration Detention Know Their Rights

Louisiana has more people in immigration detention than any other state in the country except Texas. Across the state, thousands of people are held in just nine Immigrations and Customs Enforcement (ICE) facilities, often in isolated regions where legal services are almost nonexistent. To put this into context, there are only about 10-12 pro-bono attorneys for the entire state, despite the immense need for legal support. This means that people detained in Louisiana essentially have no basic legal orientation or assistance in navigating the labyrinth that is the immigration legal system.

That’s why the ACLU of Louisiana has developed a unique series of visits to remote Immigrations and Customs Enforcement (ICE) facilities, combining direct legal assistance with on-the-ground advocacy and litigation. About every five to seven weeks, we, along with coalition partners like Robert F. Kennedy Human Rights and the Southern Poverty Law Center, pile into cars stuffed with Know Your Rights (KYR) materials in up to 10 languages to drive to visit two to three detention centers over the course of a week. We’ve been visiting people in detention and distributing these materials for the past two years.

During these visits, we conduct group KYR presentations and one-on-one interviews with detained individuals to provide vital information that people in removal proceedings desperately need. These presentations, while general, also delve into crucial details about the asylum process, other available protections in the U.S., and how to seek release from detention.

Over the course of these visits, we also gather valuable information about issues that people are facing in detention and in their removal proceedings. While the facilities may skate by their annual inspections, these visits provide a direct line to people who can report what is happening on the ground. People we meet often tell us that we are the only lawyers providing any help in the region, and we have been greeted with tears of relief for providing the first friendly face who can explain why they are even detained while trying to seek asylum. This is especially true for individuals with limited English proficiency, or individuals who speak Indigenous or less common languages, and thus have not been able to communicate with nearly anyone while detained.

Asylum Seeker's Wrongful 6-Year Detention is Emblematic of a Broken System

Our client sought refuge from violence and persecution. Instead, ICE detained her for over six years.

Source: American Civil Liberties Union

We intervene in individual cases when we can, advocating for individuals with ICE, U.S. Citizenship and Immigration Services (USCIS), and the immigration courts. Occasionally, we and our partners are able to represent individuals in particularly egregious situations — like the case of Jessica Barahona-Martinez, an LGBTQ+ asylum seeker who was detained for over six years despite winning asylum twice, until we and the ACLU Immigrants’ Rights Project filed a habeas petition seeking her release. These trips are an invaluable opportunity to document the cruelty and impact of ICE detention and support coalition efforts to shut down facilities in the region.

In future blogs, we will delve into recent KYR trips taken by the ACLU of Louisiana in addition to trips made by affiliates in other states, sharing insights about the broader challenges people face in immigration detention today — including lack of medical care and language access services, abuse and intimidation by facility staff, appalling conditions, and due process concerns. The experiences of people in immigration detention in Louisiana are by no means limited to the state, and instead, exemplify the systemic issues people in immigration detention face nationwide.

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Published December 7, 2023 at 03:56PM
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Via the ACLU: Preserving the History of Civil Rights in New Orleans

2023-12-05T16:27:00.001-05:00

Preserving the History of Civil Rights in New Orleans

On the same morning that 6-year-old Ruby Bridges became the first Black student to integrate an elementary school in the South, three young girls completed the same historic act just a mile away. On November 14, 1960, Leona Tate, Gail Etienne, and Tessie Prevost were escorted by Federal Marshals past angry protestors into McDonogh 19 Elementary School in New Orleans.

Tate went on to devote her life to civil rights activism. In 2009, she created the Leona Tate Foundation for Change, Inc. to promote racial equality through education. In 2020 — 60 years after Tate, Etienne, and Prevost made history — Tate and her foundation purchased the McDonogh 19 building. It’s now the home of the Tate, Etienne, and Prevost (TEP) Center: a mixed-use facility and exhibition space dedicated to the history of civil rights in New Orleans.

Tate is also part of the ACLU of Louisiana’s first-of-its-kind Black Donor Network, a group of 30 African American supporters who work in philanthropy, education, public health, and other fields. The network brings together a community of people devoted to the historic movement for racial justice.

Here, Tate discusses a lifetime of experiences promoting civil rights in New Orleans and beyond.

This interview has been edited and condensed for clarity.

Leona Tate, Founder and Executive Director of the Tate, Etienne, and Prevost Center

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“McDonough 19 and now the Tate, Etienne, and Prevost Center represents the education of racism — mostly undoing racism. It’s a place for dialogue. It’s a place to come and see what we went through. And we need to understand why those things happened and the change that they meant.

“Nobody is teaching civil rights the way we think it should be taught. We’ve got to get this history to [a point] where it’s never going to be forgotten again.

“Today, I continue my activism with the community, with civil rights leaders, with the ACLU. [For] any kind of social justice changes that need to be made and made for the right reasons — the ACLU is here.

“Donating to the ACLU is one of the most powerful things you can do to fight for justice. They have been a great support of us. And I hope to be a great asset to them. I think we’ve got the same mission here — doing positive work to get things done in this community. The ACLU is all about that.”

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Published December 5, 2023 at 03:33PM
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Via the ACLU: Indigenous and Filipino Women are Leading the Fight for Reproductive Justice in Guam

2023-11-29T16:27:00.001-05:00

Indigenous and Filipino Women are Leading the Fight for Reproductive Justice in Guam

Picture this: A 12-year-old girl is raped and impregnated, and because there are no abortion providers within 4,000 miles of where she lives, she must carry the pregnancy to term.

It doesn’t sound like something that could happen in the United States, right? But for the people of Guåhan, what is more commonly known as the U.S. unincorporated territory of Guam, this was the reality in 2019, even when Roe v. Wade was still law. That year, the only abortion provider on the island retired — and it was this story that sparked the creation of Famalao’an Rights, a reproductive justice initiative fighting for access to reproductive care for everyone on the island.

The fight for abortion access has always been an uphill battle in Guåhan. The first Christian missionaries in Micronesia arrived in Guåhan in the 1500s alongside Spanish colonization, bringing a Catholic religion that heavily influenced CHamoru culture and spirituality. Today, the island’s total population is about 70 percent Roman Catholic, a force that has undoubtedly contributed to harsh anti-choice local government policies for decades.

In 1990, the Guam Legislature passed the strictest anti-abortion law in the United States at the time, making it illegal to even speak about where to get abortions. This law was eventually deemed unconstitutional and unenforceable due to Roe. With the 2022 decision to overturn Roe, however, there were attempts to revive the 1990 anti-abortion law. These efforts were eventually shot down by the Supreme Court of Guam earlier this year after it held the ban was null and void.

The dominance of Catholic religion in Guåhan has also cultivated social and cultural stigma surrounding reproductive health care, particularly abortion. The immense pressure of Catholic, pro-life advocates discouraged medical abortion providers from providing care on the island.

Since 2019, Famalao’an Rights has been at the forefront of safeguarding reproductive health care and bodily autonomy. In the beginning, we were mostly an informational social media campaign, posting infographics and short podcasts on the issue of abortion and its history and importance for the island on platforms such as Instagram and Twitter.

Then, as the government attempted to limit abortion access further, we became community organizers. In 2021, the Guam Legislature proposed legislation that sought to ban abortions after five weeks of pregnancy. The proposed law mirrored similar abortion bans enacted in states like Georgia and Texas. The Guam Legislature eventually passed the ban, to which Governor Lourdes Leon Guerrero, i Maga’hågan Guåhan (the first elected woman governor of Guam) replied with a harshly-worded veto. The Legislature failed to override the governor’s veto, and with that, the ban failed.

During the 2021 attempt to ban abortions, Famalao’an Rights rallied the community together to send over 1,000 testimonies in opposition of the bill to the Guam Legislature. Dozens of people stood with us during multiple protests in front of the Guam Congress Building, and our movement has only grown since then.

It is now 2023, and Famalao’an Rights has accomplished much for the advancement of reproductive justice in Guåhan. Our team of Indigenous (CHamoru and Pohnpeian) and Filipino women leaders have secured the organization’s nonprofit status to support urgent reproductive justice initiatives, donated to local communities in crises during the recent supertyphoon Mawar, advocated for the status and delivery of menstrual products to the island’s schools, and more. We also plan to provide monetary support for those who seek medication abortion via the Hawaii Clinic. Monetary support will vary on a case by case basis, and will be available until all funds allotted are expended. Further, Famalao’an Rights has worked diligently with the ACLU to ensure telemedicine access for medication abortion remains available in Guåhan.

In 2019, having pathways to abortion access was only a dream for us. Of course, there is still a long way to go. But one way or another, we believe that Guam will be a place where every person has safe and timely access to reproductive health care, and a place where everyone can have full bodily autonomy.

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Published November 29, 2023 at 03:52PM
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Via the ACLU: Lifting the Veil on the Design of Predictive Tools in the Criminal Legal System

2023-11-22T16:27:00.001-05:00

Lifting the Veil on the Design of Predictive Tools in the Criminal Legal System

Recently, the National Institute of Justice (NIJ) — the research arm of the Department of Justice (DOJ) — put out a call for researchers to participate in what they called the “Recidivism Forecasting Challenge”. The challenge was designed to use information about people on parole in Georgia to “improve the ability to forecast recidivism using person-and place-based variables,” encourage “non-criminal justice forecasting researchers to compete against more ‘traditional’ criminal justice researchers,” and provide “critical information to community corrections departments.” Challenge contestants were awarded a collective total of $723,000 for their submitted models.

While heralded by the NIJ as a successful effort that “demonstrate[d] the value of open data and open competition,” in reality, the challenge was marked by serious and fundamental flaws. One of the winning papers encapsulated the issues with the challenge best when they said, “We are hesitant to accept any insights gained from submitted models and question the reliability of their performance. We would also discourage the use of any submitted models in live environments.” Six of the other 25 winning papers also expressed their concerns about the use of models created for the challenge in real-world environments.

So, what contributed to the challenge’s failures?

We argue in a new research study critiquing the challenge that a failure to engage impacted communities (those whose data was used for the challenge) as well as public defenders and other advocates for impacted communities contributed in part to some of the failures of this project. The standard going forward for developing predictive tools should draw on recent resources from the federal government to inform decision-making around whether to develop predictive tools. These efforts should center around developing strong protections for the people whose data is used to build automated systems and the people who may ultimately be evaluated by those systems if they are deployed.

Challenge Accepted? A Critique of the 2021 National Institute of Justice Recidivism Forecasting Challenge

Source: American Civil Liberties Union

So, why does this matter?

The NIJ has a lot of power, given its position within the Department of Justice, to shape the way that local community corrections departments think about recidivism. We submitted a Freedom of Information Act request to the DOJ to try to better understand how the results of the challenge have been or will be used but have not yet received a response to our request. While it is not fully clear yet how the results of the challenge will be used by the DOJ, the NIJ has already signaled that these types of tools are important to it by spending close to $1 million creating and executing the challenge. Furthermore, the DOJ, through the Bureau of Prisons, already uses a risk assessment tool, PATTERN, to make critical decisions about incarcerated populations. The use of this tool has been roundly criticized by several civil rights organizations.

Beyond influencing decisions about imprisonment and government surveillance, the data produced by law enforcement agencies and the predictions generated from risk assessment tools are often used in making decisions that can have a catastrophic impact on people’s lives — including loss of parental rights, homelessness, prolonged job insecurity, immigration consequences (including deportation), and inability to access credit. The voices of those impacted by these tools should be embedded in the design and implementation of these tools, as they are the individuals who will have to suffer the consequences of poorly designed systems. By involving impacted communities in the development of predictive tools, the design of these types of systems may look dramatically different, or these tools may be determined to not be useful at all.

For more information about the NIJ’s Recidivism Forecasting Challenge and its shortcomings, check out our paper below. Our paper was presented at the Association for Computing Machinery’s Conference on Equity and Access in Algorithms, Mechanisms, and Optimization at the end of October, where it won an Honorable Mention for the New Horizons Award.

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Published November 22, 2023 at 03:22PM
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Via the ACLU: Why Meaningful Algorithm Auditing is Key to Protecting Civil Rights in the Digital Age

2023-11-20T13:28:00.001-05:00

Why Meaningful Algorithm Auditing is Key to Protecting Civil Rights in the Digital Age

Employers today rely on various kinds of artificial intelligence (AI) or other automated tools in their hiring processes, including to advertise job opportunities, screen applications, assess candidates, and conduct interviews. Many of these tools carry well-documented risks of discrimination that can exacerbate existing inequities in the workplace. Employers should avoid tools altogether that carry a high risk of discrimination based on disabilities, race, sex and other protected characteristics, such as personality assessments and AI-analyzed interviews. But where an employer is considering using or is already using an AI tool, robust auditing for discrimination and other harms is one critical step to address the dangers that these tools pose and ensure that it is not violating civil rights laws.

But as usual, the devil is in the details.

Know Your Rights | Know Your Digital Rights: Digital Discrimination in Hiring

Learn more about how automated tools are used in the hiring process and your digital rights under these laws.

Source: American Civil Liberties Union

A rigorous and holistic discrimination audit of an automated tool — both before and periodically after deployment — can provide employers information to help them determine whether to adopt a tool at all, what mitigation measures may be needed, and whether they need to abandon a tool after adoption. Auditing can also bring much needed transparency when audits are shared with the public, providing critical information for job applicants, researchers, and regulators. On the other hand, algorithm audits that are not carefully crafted can be gamed to present a misleading picture of the system in question or can serve as a cursory box-checking exercise, potentially legitimizing systems that may be discriminatory.

As regulators and legislators are increasingly focused on addressing the impacts of automated systems in critical areas like hiring and employment, including creating requirements for auditing, these efforts must be carefully crafted to ensure that the audits increase accountability in practice. While there is no one-size-fits-all approach to algorithm auditing, audits for bias and discrimination should:

Evaluate the system’s performance using carefully selected metrics — metrics that consider both when the system works and when it fails.
Break down performance for people in different groups, including but not limited to race, sex, age, and disability status, and the intersections of those groups.
Use data that faithfully represents how the system is used in practice.
Be conducted by auditors who are independent from the entity that built or deployed the algorithm.

In many cases, audits can and should be conducted by interdisciplinary teams of subject matter experts, including social scientists, lawyers and policy researchers, that consult with people who will be impacted by these tools and the users of the system itself. Researchers and practitioners have created many different resources describing how these kinds of audits can be operationalized.

Why the details of algorithm audits are so critical

Examining emerging “bias audits” produced in connection with a recently enacted law in New York City (Local Law 144) helps demonstrate why these details are so critical. Because of this law, employers using some of these kinds of technologies are required to publish “bias audits” with statistics about how often job applicants advance in the hiring process when an automated tool is used, broken down for people of different races and sexes.

Some news coverage has described this law as requiring employers to “prove their AI hiring software isn’t sexist or racist.” But a closer look at these “bias audits” indicates that they are incomplete evaluations of bias and discrimination. First, the auditing requirement only applies to a limited set of the types of automated tools used in hiring processes today. So far, we’ve only been able to locate around a dozen bias audits — even though 99 percent of Fortune 500 companies reportedly use some type of automated system in their hiring processes. The law also doesn’t require the audits to assess possible biases related to many characteristics where discrimination in hiring and employment has long been a concern, including disability, age, and pregnancy.

The Historic New Law Protecting Fairness for Pregnant Workers

After a decade of advocacy, the Pregnant Workers Fairness Act is finally going into effect.

Source: American Civil Liberties Union

When it comes to what’s in the audits, the statistics required to be calculated and reported can provide some basic information about which automated tools employers are using in their hiring processes and the number of job applications being evaluated by these tools. But these audits fall short of meaningful transparency in several ways. For one example, some of the audits we’ve seen so far don’t even provide the name or vendor of the tool being audited. The audits also don’t examine whether the tools work as advertised or whether they accurately assess the relevant skills or capabilities needed for a job. In addition, these bias audits may not fully portray the experiences of candidates or practices of employers for multiple reasons. Several of the audits, including this one of an AI-driven candidate screening tool and this one of an AI-driven applicant scoring tool are missing a lot of data on candidates who were evaluated by the automated tool in question.

The published audits also frequently rely on data that is pooled together from multiple employers that use the same tool, even though they may be using the tool in very different ways. Companies characterize these audits as designed to “ensure non-discrimination against protected groups,” when in fact this data pooling may mask stark disparities or discriminatory practices by employers.

More generally, algorithm audits should be publicly available and easy to access as a matter of transparency. Even though employers are required to publish the audits on their websites, so far, we’ve found it quite difficult to locate these bias audits. That’s why we worked with the New York Civil Liberties Union to create a public tracker of all the ones we’ve seen so far (if you know of Local Law 144 bias audits that employers have posted that we missed, let us know by emailing analytics_inquiry@aclu.org).

As automated systems become more entrenched in every part of our lives, audits of these systems can be crucial to identifying and preventing their harms. But for that to be the case, algorithm audits must be holistic, ongoing, and reflective of the ways automated systems are used in practice. Technologists, civil rights advocates, policymakers, and interdisciplinary researchers should work together to ensure that algorithm audits live up to their potential.

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Published November 20, 2023 at 12:44PM
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Via the ACLU: The Latest Must-Pass Bill Barreling Through Congress is an Attack on Gender-Affirming Care

2023-11-16T12:28:00.001-05:00

The Latest Must-Pass Bill Barreling Through Congress is an Attack on Gender-Affirming Care

The fiscal year 2024 appropriations process has been littered with anti-LGBTQ attacks. Republican members of the House of Representatives have inserted anti-LGBTQ provisions into all 12 of the must-pass appropriations bills. These riders include restrictions on gender-affirming care, allowances for discrimination against same-sex couples, prohibitions of drag performances, banning of pride flag displays, and restrictions on diversity and inclusion programs.

These harmful anti-LGBTQ provisions come at a time when legislative attacks against the LGBTQ community are at an all-time high. As of this month, 506 anti-LGBTQ bills have been introduced in state legislatures this year alone. Bills such as the Protection of Women and Girls in Sports Act, which would prohibit transgender students from participating in sports teams that align with their gender identity, have been introduced in the House of Representatives at alarming rates. In fact, the House has already passed other pieces of legislation that are considered to be must-pass bills, such as the National Defense Authorization Act for Fiscal Year 2024, with provisions that ban gender-affirming care, drag performances, and pride flag displays.

Mapping Attacks on LGBTQ Rights in U.S. State Legislatures

In the last few years states have advanced a record number of bills that attack LGBTQ rights, especially transgender youth. The ACLU is tracking...

Source: American Civil Liberties Union

Out of all the appropriations bills, however, the Labor, Health, and Human Services, Education, and Related Agencies Appropriations Bill for FY 2024 is arguably the most nefarious and dangerous for the transgender community. The anti-LGBTQ riders in this bill seek to prohibit funds from being used for implementing anti-discrimination and equity programs, taking discriminatory action against anyone that speaks or acts in accordance with the belief that marriage is between a man and a woman, or displaying pride flags. Section 534 of this bill would also prohibit funds from being used for gender-affirming surgical procedures or hormone therapies. If passed, this will have extensive, damaging effects.

The Centers for Medicare and Medicaid Services (CMS) is an agency within the U.S. Department of Health and Human Services, one of the departments funded by the Labor-HHS Appropriations Bill. CMS provides health coverage through Medicaid to about 84.5 million enrollees as of July 2023, including eligible low-income adults. Currently, Medicaid is one the largest payers for health care in the United States.

Protect Trans Care Now

As wave after wave of extreme measures to criminalize and strip trans people of rights and safety continue, tell Congress to act.

Source: American Civil Liberties Union

As of December 2022, about 276,000 transgender people in the United States are enrolled in Medicaid and about 60 percent of these beneficiaries reside in states or territories where Medicaid programs specifically include coverage for gender-affirming care, including hormone therapy, surgical procedures, and other gender-affirming treatments. Another 27 percent of transgender Medicaid beneficiaries live in states where laws are silent or unclear on coverage for gender-affirming care. In 14 states, laws do not include express statutes or policies addressing gender-affirming care under Medicaid. In four additional states, policies explicitly exclude this care under state Medicaid programs, but actions by state legislatures, officials, and courts have indicated that these states have inconsistently enforced or may not be enforcing these policies. Unfortunately, about 14 percent of transgender Medicaid beneficiaries reside in states that expressly ban access to gender-affirming care covered by Medicaid.

This 14 percent will grow drastically with the passage of the Labor-HHS Appropriations Bill. Without funding for the U.S. Department of Health and Human Services, Medicaid programs will be unable to cover gender-affirming surgical programs or hormone therapies for thousands of transgender people, many of whom are low-income.

Not only will too many lack the sufficient funds to turn to private medical programs or services, but states are also increasingly introducing and passing restrictions on gender-affirming care across the country. There are currently 135 state bills targeting health care for transgender people, many of which seek to ban gender-affirming care, establish criminal penalties for providing such care, or block funding to medical centers that offer this life-saving care.

When the lives of transgender people are at risk, what can you do?

You and your elected members of Congress are our last line of defense against this national threat. All of us, collectively, must work to stop any effort to harm or criminalize our trans friends, families, and communities. Tell your members of Congress that gender-affirming care is safe, medically necessary, evidence-based, and life-saving. Tell your members of Congress that every leading medical organization in the country, including the American Medical Association, the American Psychiatric Association, and the American Academy of Pediatrics, all strongly oppose efforts to criminalize and deny gender-affirming care. Tell your members of Congress that individual health care decisions should be made between a patient and their doctor —not with fear-mongering politicians who have little to no medical expertise.

Together, we can work to protect trans people and prevent more nefarious attacks on the trans community, and the greater LGBTQ community at large, from coming to fruition.

Is there a reason we use quotes here but not in the first paragraph when we refer to “must-pass” bills?

What you can do:

Protect Trans Care Now

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Published November 16, 2023 at 11:47AM
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Via the ACLU: The U.S. Touts Itself as a Global Leader in Human Rights. A New U.N. Report Says Otherwise.

2023-11-15T15:27:00.001-05:00

The U.S. Touts Itself as a Global Leader in Human Rights. A New U.N. Report Says Otherwise.

Earlier this month, the United Nations Human Rights Committee delivered a searing report highlighting the U.S. government’s failure to meet its human rights obligations under the International Covenant on Civil and Political Rights (ICCPR). This international treaty, ratified by the U.S. in 1992, is one of only three key human rights treaties that the U.S. has ratified.

The U.N. committee’s concluding observations echo many of the concerns and recommendations raised by civil society groups last month during the U.S. review, where they sounded the alarm on violations of various human rights issues including Indigenous rights, voting rights, freedom of expression and assembly, gender equality and reproductive rights, criminal legal reform, immigrants’ rights, and more. Here are three key takeaways from the committee’s report.

1. Establishing a national human rights institution is a critical first step to advancing national progress on human rights.

Among their concluding observations, the committee stressed the lack of progress in establishing a national human rights institution (NHRI). An NHRI would play a crucial role in monitoring and ensuring that international human rights standards are being upheld at the national level.

While the Biden administration has called for continued dialogue around an NHRI in the U.S., concrete actions have yet to materialize. The committee’s urgent recommendations corroborate the longstanding demand from civil society groups to establish a presidential commission to explore options for creating an NHRI. Already, this call to action has been backed by several members of Congress and the International Association of Official Human Rights Agencies.

2. The U.S. should ensure that family separations never happen again.

The committee urged the U.S. to “redouble its efforts to ensure the reunification of all separated children with their families, guarantee that such family separations are prohibited in the future, and ensure that victims have access to effective remedies and receive full reparation, including adequate compensation and appropriate support services.” It also raised concerns regarding racial discrimination and due process violations in the U.S. child welfare system, including the disproportionate number of Black and Indigenous children separated from their families. These recommendations align with those in the ACLU’s shadow report on family separation, and coincided with the ACLU’s announcement of a major settlement in Ms. L. v. ICE, which established that the U.S. government must continue to identify families that were separated by Trump’s zero-tolerance policy and provide a pathway for them to seek asylum in the U.S.

Shadow Report to UN Human Rights Committee: Family Separation in the U.S. Child Welfare System, at the U.S.-Mexico Border, and of Indigenous Communities

Source: American Civil Liberties Union

3. The U.S. should adopt critical criminal legal system reforms, including abolishing the death penalty and placing a moratorium on life sentences without parole.

The committee concretely addresses a wide range of human rights violations in the U.S. criminal legal system, including extreme sentencing, which the ACLU has raised in our joint report with the Princeton Advocacy Policy Clinic. Most notably, the committee called on the U.S. to “establish a moratorium on the imposition of sentences to life imprisonment without parole.” This was a result of powerful testimonies and advocacy by various groups, including the Abolitionist Law Center and the Center for Constitutional Rights, which raised the torturous practice of death by incarceration to the committee.

The committee also urged the U.S. to establish a federal moratorium of the death penalty, abolish life without parole sentences for children, as well as the mandatory and non-homicide-related sentence of life imprisonment without parole, and make parole more accessible to all prisoners, including those sentenced to life imprisonment. For the first time, the committee called on the U.S. to expand parole eligibility for all incarcerated individuals, irrespective of age or the crime committed. These recommendations were also echoed in the recent report by the U.N. Expert Mechanism to Advance Racial Justice and Equality in Law Enforcement, which visited the U.S. last spring.

Michigan Lawmakers Must Protect the Rights of Children and Join the Global Consensus

Efrén Paredes, Jr., incarcerated since the age of 15, explains why Michigan must turn the page on juvenile-life-without-parole sentences.

Source: American Civil Liberties Union

The time to act is now.

The U.S. touts itself as a global leader of universal human rights. Yet the committee’s report memorializes the immense gap between U.S. laws and policies and international human rights norms — even in the area in which the U.S. has heralded itself as a leader for decades: civil and political rights. And while the Biden administration has prioritized human rights in some ways, it has failed to pursue bold actions to demonstrate that it is leading by the power of example.

While the responsibility to implement the committee’s concluding observations lies with federal, state, and local governments, the Biden administration should immediately devote the necessary attention and resources to realizing these recommendations.

It can start by creating a transparent and permanent executive branch human rights monitoring body to review and create a plan of action to implement the committee’s recommendations. It can also convene a White House summit on domestic human rights to celebrate the 75th anniversary of the Universal Declaration of Human Rights. This would be an excellent opportunity to appoint a presidential commission to study the creation of an NHRI in the U.S. Additionally, the White House should instruct all federal departments and agencies to review and implement the committee’s observations and create incentives for state and local governments to do so under their jurisdiction.

The committee has asked the U.S. to follow up in three years with its progress in three main areas: reproductive rights, voting rights and freedom of assembly. While the next U.S. periodic review will take place in 2031, the U.S. government must immediately start implementing these recommendations and ensure that this process is informed by meaningful consultation with civil society organizations. As the world watches, we cannot waste any time to realize human rights for all in the U.S.

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Published November 15, 2023 at 03:15PM
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Via the ACLU: We Quizzed ACLU Experts on Voting Rights. Can You Beat Them?

2023-11-15T13:28:00.001-05:00

We Quizzed ACLU Experts on Voting Rights. Can You Beat Them?

Voting is the cornerstone of our democracy and the right that empowers us to enact change and hold elected officials accountable. It is also key to achieving systemic equality, particularly given our country’s long history of limiting access to the ballot for communities of color, especially Black voters, which persists today. Discriminatory policies and legislation continue to prevent voters of color from exercising this right easily, if at all.

As another presidential election year draws near, the ACLU continues to protect the right to vote and push back against attempts to suppress our voices at the ballot box. The ACLU voting rights team is working to expand and protect voting rights around the country. So we decided to put their expertise to the test with some rapid-fire voting rights questions. Watch their answers below, or take a shot at answering some of the questions yourself.

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Published November 15, 2023 at 12:29PM
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Via the ACLU: Test Your Knowledge: What Rights Do Students Have at School?

2023-11-13T12:27:00.001-05:00

Test Your Knowledge: What Rights Do Students Have at School?

With another school year underway, it’s important to remember the legal protections that students possess both on and off campus. Though classrooms around the country are being constrained by attempts to censor what we can teach and learn, students still largely maintain the right to express themselves and their views in school. Quiz yourself below to learn the many rights that students have, and how these constitutional protections intersect with school policies.

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Published November 13, 2023 at 11:58AM
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Via the ACLU: Rosas v. Luna

2023-11-09T21:27:00.001-05:00

Rosas v. Luna

Exhibit A to Eliasberg Declaration 255-4: MCJ-00856

Video shows two deputies punching a handcuffed person in the head after that person kicks backward into one of their legs. They continue to punch him in the head and body multiple times even after he has been taken to the ground. Head punches found within policy. Discipline imposed for taking him out of his cell instead of calling for a supervisor, but no discipline for head strikes. Sinclair declaration paragraphs 32 – 34 cover this incident.

Exhibit B to Eliasberg Declaration 255-4: MCJ-04485

The video starts after the use of force with the person no longer fighting but bleeding on the ground. Later medical exams reveal he has an orbital bone fracture. At issue in this video is the brutal use of WRAP, including placing a spit mask on him when he is profusely bleeding from the face. No discipline because there was no finding that the WRAP or spit mask use was problematic, and no finding that anyone put him in medical danger. Thomas declaration discusses the video at length in paragraphs 12 – 15.

Exhibit D to Eliasberg Declaration 255-4: MCJ-00590

The video is an example of improper force and dishonesty. A deputy clearly and intentionally puts his knee on the man’s neck at 1:15 and keeps it there until 1:39 (there is a problem with the time stamp on the video – the accompanying report admits that it was 46 seconds). In the deputy’s report, he states he “inadvertently” put his knee across the man’s neck and shoulders. There was no finding of dishonesty on review by supervisors.

Exhibit E to Eliasberg Declaration 255-4: MCJ-03103

This incident is an example of failure to use force prevention and dishonesty. A deputy talks with a person who needs soap. That person asks to speak to a supervisor. Instead, the deputy grabs him by both arms, turns him into a wall, and when the person tries to turn back around, the deputy starts punching him in the head. The witnesses to the incident, the detainee’s statement, and the video contradict the deputy’s report that the detainee was assaulting him. But the reviewing watch commander claims to be unable to evaluate the veracity of the deputy’s statement because the video is pixelated. No out of policy findings for head strikes or failure to use force prevention, and no discipline imposed.

Exhibit 3 to Thomas Declaration 262-1: IRC-01692

The video shows a rapid escalation of force to handle a person who is upset about people not being taken to the bathroom in the Inmate Reception Center front bench. (They are lying in urine.) The person is put into a WRAP with very significant force to the back of his head and neck, creating danger of asphyxiation. There is no finding that the WRAP was used in any way out of policy and therefore no discipline imposed.

Exhibit A to Sinclair Declaration 255-1: MCJ 922-02080

Two deputies slam a man’s head into a concrete wall after he exits his cell. Photos of the injuries to the head are also in Sinclair’s declaration at paragraph 23.

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Published November 9, 2023 at 09:21PM
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Via the ACLU: We’ve Defended Trump’s First Amendment Rights, but his Latest Jan. 6 Indictment Claims are Nonsense

2023-11-09T15:27:00.001-05:00

We’ve Defended Trump’s First Amendment Rights, but his Latest Jan. 6 Indictment Claims are Nonsense

This editorial was originally published by the Los Angeles Times.

Does the First Amendment shield Donald Trump from prosecution for conspiracy to obstruct the 2020 election results?

Trump’s lawyer has proclaimed the indictment “an attack on free speech and political advocacy.” He says Trump thought there was voter fraud, and “as a president, he’s entitled to speak on those issues.” And the indictment by special counsel Jack Smith does repeatedly cite Trump’s false public statements about voter fraud. Is Trump right to claim free speech as a defense?

As ACLU lawyers, we take this question seriously. No organization has done more to defend speech rights than the ACLU — sometimes to the dismay of our allies. We’ve defended Trump’s speech rights when he was sued for allegedly prompting a mob to beat up a protester. We criticized Twitter’s and Facebook’s decisions to de-platform Trump, and applauded when Trump was allowed back. We defended white supremacist Jason Kessler’s right to protest the removal of a Confederate memorial in Charlottesville, Va., supported the National Rifle Assn. in its First Amendment challenge to former New York Gov. Andrew Cuomo’s urging financial institutions to cut ties with the organization because of its “pro-gun” speech. And in the 1970s, the ACLU defended the right of a neo-Nazi group to march in Skokie, Ill., home to many Holocaust survivors at the time.

When it comes to free speech claims, we call them as we see them. But here, we don’t think the First Amendment bars Trump’s indictment. We pass no judgment on Trump’s ultimate guilt or innocence. He is entitled to the presumption of innocence, even as we believe that no person is above the law. But Trump’s First Amendment defense doesn’t cut it here.

Trump has been charged with conspiring to overturn the election results and obstruct the peaceful transfer of power. At times, he used words, including lies, to accomplish this. But that doesn’t mean he’s being prosecuted for constitutionally protected speech, any more than a bank robber who says, “hand over the money,” to a teller.

If Trump had spread lies — on Twitter, in public speeches or anywhere else — but otherwise took no action to obstruct the election results, could he have been charged for merely claiming that he won when he knew he lost?

Obviously not. The First Amendment protects even false speech in many circumstances. The indictment itself concedes that Trump “had a right, like every American, to speak publicly about the election and even to claim, falsely, that there had been outcome-determinative fraud during the election and that he had won.”

The problem was not Trump’s speech, but his alleged actions: his attempts to get state election officials to invalidate valid results and declare him the winner; to compel the Justice Department to claim that it had uncovered substantial evidence of fraud when it hadn’t; to support efforts to create fake sets of electors to vote him into office in states that he lost; and to urge Vice President Mike Pence to refuse to certify the lawful election results.

Of course, many of these actions involved communication. But the fact that a crime includes speech does not turn the First Amendment into a defense. A conspiracy is an agreement to commit a crime, and almost always takes the form of words. Teaching a would-be suicide bomber how to make a bomb with the intent that he detonate it also involves communication, but that kind of communication can be prosecuted.

We do, however, have concerns about one aspect of the indictment. At several points, it charges that Trump repeated his lies in his speech on Jan. 6, 2021, to a crowd gathered at the White House. To the extent the Justice Department is seeking to hold Trump criminally responsible for the subsequent actions of the crowd that day, the prosecution would have to satisfy the legal standard that the ACLU helped established in Brandenburg vs. Ohio, which says that speech advocating criminal conduct can be punished only if it is intended and likely to produce imminent lawless action.

Reasonable minds can differ on whether Trump’s remarks that day crossed that line. If the prosecutors seek to hold him accountable for the mob’s actions, they would have to satisfy that demanding standard. In the context of political speech, courts should be very hesitant to hold speakers liable for the actions of others.

But these concerns don’t bear on the great majority of the actions for which Trump faces trial. As Justice Hugo Black, a First Amendment absolutist, wrote more than 70 years ago: “It has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language.” The First Amendment provides no license to conspire to overturn an election.

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