Vania Leveille, Senior Legislative Counsel, Women’s Rights/Disability Rights, ACLU National Political Advocacy Department

West Resendes, Staff Attorney & Policy Counsel, ACLU Disability Rights Program and National Political Advocacy Department

Zoe Brennan-Krohn, Staff Attorney, ACLU Disability Rights Program

Brian Dimmick, Senior Staff Attorney, Disability Rights Program, ACLU

People with disabilities face enormous barriers in the United States today — from a pandemic that is killing disabled people, especially those in institutions, at staggering rates; to schools that too often fail, traumatize, and criminalize students with disabilities; to a criminal legal system that unnecessarily targets, incarcerates, and kills Black and Brown people with mental disabilities. The administration must make disability rights a priority from day one, with a commitment to addressing head-on these harms and the intersection of discrimination and marginalization around disability, race, and poverty.

Here are just a few of the many items that should top the Biden-Harris administration’s to-do list:

Ensure that people with disabilities can live in their communities, not in institutions, and support the direct care workforce:

  • People with disabilities have a right to live in the community as independently as possible, and to receive necessary services and support in their homes. But for  many people with disabilities, especially people of color, that right is far from a reality as they are segregated in institutions like nursing homes, intermediate care facilities, and psychiatric facilities — even though they could live in integrated community settings with appropriate supports. As COVID-19 ravages congregate care settings, killing people who live in these institutions at extraordinary rates, the dangers of living in institutions have been laid bare. The incoming Biden-Harris administration must implement a national strategy to expand access to Medicaid’s home and community based services (HCBS). HCBS funds the in-home support and services that let people with disabilities live safely in their communities. Long waiting lists for HCBS hinder many disabled people’s goals of getting out of institutions and living self-directed lives. The administration must end the long waiting lists for HCBS by providing more funding for these services, and must increase enforcement of laws that prohibit the unnecessary segregation of people with disabilities in institutions.
  • Along with eliminating HCBS waiting lists, the new administration must also push Congress to reauthorize and fully fund the Money Follows the Person program, which assists states to provide services and supports to disabled people in their communities. Money Follows the Person is critical for ensuring that people with disabilities can live self-directed, integrated, safe lives in their communities.
  • The administration must work with Congress to ensure that the safety and needs of the direct care workforce (e.g., home care workers, direct support professionals, residential care workers, nursing assistants) that provides services and supports to people with disabilities are prioritized during and after the pandemic. These workers, who are overwhelmingly women and disproportionately women of color, have labored in the shadows for far too long and must have access to PPE, sick leave, hazard pay, and other workplace protections.

Stop law enforcement’s disproportionate targeting of people with mental health disabilities, and the entrapment of people with disabilities in the criminal legal system:

  • As the recent killings of Walter Wallace Jr. and too many others have made clear, urgent action is needed to end the overreliance on police response to mental health crises that leave far too many Black and Brown disabled people injured, traumatized, or dead. The administration must encourage federal support for robust community-based programs that provide mental health professionals and peer supports — rather than law enforcement — to respond to mental health crises. 
  • Even if people with disabilities survive an initial encounter with police, the criminal legal system is stacked against them at every stage. Pretrial release, supervision, jails, and prisons all impose burdensome requirements that pose special challenges for many people with disabilities. People with disabilities are excluded from classes and programs in incarceration and find themselves unable to break free from the criminal legal system, which fails to take disability into account. The incoming administration must champion changes to the criminal legal system that reduce incarceration rates nationwide, lessen the risk of harm to people with disabilities, and provide the accommodations disabled people need to avoid incarceration and live safe, productive lives free of the criminal legal system.

Ensure that students with disabilities have access to effective and safe education:

  • Now more than ever, the administration needs to make sure that states and school districts continue to meet their obligation to provide appropriate educational services and assessments to students with disabilities. This includes helping them make up for instructional time and services lost during distance learning and school closures due to COVID-19. To support students with disabilities who have been left behind during the pandemic, the administration must make targeted Individuals with Disabilities Education Act (IDEA) funding a priority for the next congressional COVID-19 relief package. The Department of Education must also provide robust guidance that highlights best practices that school districts have adopted during the pandemic and ensures students with disabilities are not unnecessarily pushed into alternative schools during the pandemic.  
  • The administration also must stop the unnecessary and harmful restraint and seclusion of students with disabilities in schools by executive action and supporting appropriate legislation. Mechanical or physical restraints harm children and inflict lasting psychological trauma, yet their use still happens far too often in schools. Action is needed now to end these draconian practices and ensure that our schools are places where children feel safe to learn.
  • The overuse of police, known as school resource officers, in our nation’s schools disproportionately harms students of color with disabilities, criminalizes normal childhood behavior, and funnels students into the school-to-prison pipeline. The administration must take executive action and pursue legislative opportunities to eliminate federal funding that puts police in schools and reinvest those funds to hire school counselors, psychologists, and other supportive mental health personnel for our students. The administration must also investigate school districts where the data show disproportionate rates of law enforcement referrals and arrests for students with disabilities, and hold those school districts accountable.

Date

Thursday, December 10, 2020 - 4:45pm

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Shaw Drake, He/Him/His, Staff Attorney and Policy Counsel, Border and Immigrants’ Rights, ACLU of Texas

The approximately 15 million residents of the Southwest border region live under a massive  federal police presence and extensive surveillance: the ever-present hum of Customs and Border Protection (CBP) helicopters overhead; residents’ information collected by CBP surveillance cameras, drones, license plate readers, and blimps; and Border Patrol vehicles roaming their neighborhoods and questioning them at interior checkpoints. It’s all at enormous U.S. taxpayer expense, and it does not make us safer. 

A meaningful shift in border policy to restore the civil rights and liberties of border communities means an end to walls, wasteful militarization, intrusive surveillance technology, and the removal of Border Patrol, CBP’s law enforcement arm, from policing U.S. communities.  

Border Patrol not only executed the Trump administration’s cruelest border policies, from family separation to the inhumane and dangerous detention system, the agency also further expanded its over-policing and militarization of U.S. communities. Reversing Trump’s abuses is not enough. The next administration must reign in this rogue agency. 
 
CBP’s violent tactics cause pervasive racial profiling, injuries, and deaths. Border Patrol vehicle chases increased under the Trump administration, injuring at least 250 people, a 42 percent increase, and killing 22 people. Despite clear legal boundaries, Border Patrol commonly flouts constitutional protections against racial profiling, often providing flimsy, pretextual reasons to stop or search Black and Brown community members. Border Patrol’s training materials even claim that a car riding too low or too high, or when someone makes too much or not enough eye contact, can justify a stop. CBP operates over 40 permanent interior checkpoints, which block border communities from essential services — including medical care during a pandemic — and limit free movement. 
 
Consequently, U.S. citizens, legal permanent residents, tourists, and others are frequently pulled over or questioned by Border Patrol for no reason, near and far from the border — such as when a Border Patrol agent interrogated two U.S. citizens for speaking Spanish at a Montana convenience store. We sued and, in the course of litigation, CBP agents admitted to profiling “Mexicans.” 
 
The Trump administration also flooded the border region with Border Patrol agents and, in unprecedented fashion, deployed CBP personnel and surveillance assets to monitor Black Lives Matter protests in cities nationwide. Immigration personnel’s over-policing and militarization of border and interior communities is rooted in our nation’s history of over-policing Black people and must end.
 
President-elect Biden stated that, “the border between Mexico and the U.S. shouldn’t be treated like a war zone.” To solidify that pledge, the Biden administration should issue an executive order directing CBP to comply with Fourth Amendment standards against unreasonable search and seizure throughout the U.S., including in any border zone, and direct the Attorney General to conduct all necessary investigations to assess steps to bring CBP policy and practice into compliance with those standards. Permanent interior checkpoints should be eliminated, and the number of Border Patrol agents should immediately be reduced by 50 percent. 
 
Biden must also tackle the destructive border infrastructure that has further militarized the region, wasted tax dollars, and violated the law. Through unlawful money grabs, the Trump administration funded construction of over 300 miles of unauthorized border wall, devastating sensitive ecosystems, damaging communities, and funneling migrants into more deadly regions. Not only should all wall construction immediately cease, the Biden administration should assess how to dismantle existing walls and barriers through consultation with environmental experts and border and tribal communities, and rapidly remove unlawfully constructed border wall. 
 
The Trump administration also deployed, through multiple operations, over 16,000 Defense Department personnel to the border. His administration issued various memos and directives expanding permissible use of force guidelines for military personnel at the border, including permitting the use of deadly force in certain circumstances. Retired military generals called these deployments “dangerous” and “wasteful,” and Border Patrol’s own union called them a “colossal waste of time.” Troops should be withdrawn from the border and not deployed again, and this region must not be subject to forever expanding surveillance.
 
Surveillance technology, justified as a means of border security, frequently spreads across border communities, degrading privacy rights of all residents. A recent study found 230 instances of local law enforcement using advanced technologies in border communities. CBP also operates an air force of drones, planes, and helicopters equivalent to Brazil’s entire combat air force, yet drones are responsible for only 0.5 percent of border apprehensions. The drones are more often loaned to other law enforcement agencies, including during recent protests over the killing of George Floyd. CBP must abandon its use of drones.
 
The Trump administration has begun to deploy hundreds of mobile surveillance towers, to be installed across the border over the next five years, adding to the dragnet of existing cameras across the region. This is despite CBP spending $1 billion on its last failed attempt to create a “virtual border fence.” These efforts don’t come with any of the necessary privacy protections, nor does peppering sensitive lands with mobile surveillance towers respect the environment or border communities.

Invasive surveillance technologies are not a viable alternative to physical border barriers absent strict privacy protections. Other mass surveillance devices — like tethered blimps and surveillance towers — must never be used to surveil border communities or other interior areas of the U.S.

President-elect Biden pledged to “ensure our values are squarely at the center of our immigration and enforcement policies.” A smart border policy that both restores the civil rights and liberties of border communities and upholds our values requires an end to walls, wasteful militarization, intrusive surveillance technology, and the removal of Border Patrol from policing U.S. communities. 

Date

Wednesday, December 9, 2020 - 1:30pm

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Over the last four years, the Trump administration has embraced a distorted view of religious freedom that is rooted in bigotry against minority faiths and atheists and promotes an official preference for Christianity. They’ve targeted Muslims for no reason other than rank prejudice and favored certain types of Christians in law and policy, with no regard for the harms those actions have inflicted on everyone else. President-elect Biden and his administration must make restoring religious liberty for all and protecting the separation of church and state among their top priorities.
 
Here are just a few of the many actions that should be at the top of the Biden administration’s religious-freedom to-do list:

Rescind the Muslim ban and affirm that Muslims are a valued part of America’s pluralistic religious tapestry

Within days of taking office, President Trump signed an executive order banning foreign nationals from seven predominantly Muslim countries from visiting the United States and prohibiting refugees from entering the country. The order followed through on Trump’s bigoted promise as a candidate to enact “a total and complete shutdown of Muslims entering the United States.” Although the ban’s terms and criteria shifted slightly over time as the administration tried to defend it in court, the Supreme Court upheld the ban and that shameful policy remains in place today.

President-elect Biden must fulfill his campaign promise to rescind the Muslim ban. He must also rescind all related policies that resulted from these orders and abused the same legal authority. That won’t be enough, however, to redress the deep pain and exclusion that President Trump and his administration have inflicted on Muslim communities. The administration’s discriminatory policies and hateful rhetoric ushered in a renewed era of open hostility and violence toward Muslims (and many other marginalized communities). From day one of his presidency, President Biden must denounce all efforts to target or discriminate against Muslims and those of other minority faiths, and he must ensure that Muslims receive the same treatment and access to our immigration system as everyone else.

Stop allowing religious exemptions that harm others

The Trump administration has proposed or adopted numerous policies that treat religious freedom as a license to discriminate, no matter the harm to others. In October 2017, the Department of Justice issued religious-liberty guidance for all executive agencies, declaring that federal law “might require an exemption or accommodation for religious organizations from antidiscrimination law … even where Congress has not expressly exempted religious organizations.” In fact, the ultimate federal law — the U.S. Constitution — has long been understood and interpreted to prohibit religious exemptions that impose harm on others, in part because these exemptions violate the separation of church and state by elevating some faith beliefs over the rights of others.

But that hasn’t derailed the Trump administration’s effort to gut health care protections by enacting rules that allow any health care worker to
refuse care to patients based on the worker’s personal religious or moral objections, or permit any employers to deny their employees contraception coverage. Nor has it stopped the administration from giving special privileges to certain religious groups by, for example, proposing or implementing rules that allow federal contractors with the Department of Labor to discriminate against LGBTQ employees and others, or that make it easier for federally funded social services providers to turn away religious minorities and LGBTQ people, all based on the contractors’ and providers’ religious beliefs.

The Trump administration has even gone so far as to argue in the Supreme Court that religious groups contracting with the government to provide foster care services for children should be able to discriminate against prospective LGBTQ foster parents—potentially opening the door to all manner of discrimination by those performing core government services with taxpayer dollars. And it has argued that the First Amendment protects the ability of businesses to turn away same-sex couples based on the business owners’ religious beliefs. In other words, the Trump administration has advocated for a far-reaching constitutional right to discriminate.

The Biden administration must take every action necessary to reverse these positions, which misinterpret religious liberty to enable discrimination and undermine our basic rights to be treated equally. It must immediately rescind the DOJ’s 2017 religious freedom guidance and withdraw all proposed and non-final regulations permitting discrimination based on religious beliefs against LGBTQ people and people seeking reproductive care.

Recommit to the separation of religion and government

President Trump and his administration have demonstrated a sweeping, dangerous contempt for the separation of church and state. The right to believe what we want and to exercise our faith, so long as we’re not harming others, is unquestionably a fundamental component of religious freedom. But the First Amendment also guarantees, through the Establishment Clause, an equally vital aspect of religious liberty: the right to be free from governmental imposition and promotion of religion.

Our government represents us all and should remain neutral on matters of faith. Instead, President Trump continually singled out and discriminated against Muslims and privileged Christian beliefs over the rights of others. He encouraged public schools to teach biblical doctrine. His Secretary of State, Mike Pompeo, used government resources to deliver a sermon, called “How to be a Christian Leader,” to a religious organization. And Attorney General William Barr has repeatedly railed against atheists and others who do not share his Christian beliefs, accusing them of being immoral and plotting the “organized destruction” of religion. Under Barr’s leadership, and his predecessor, Jeff Sessions, the Justice Department also has repeatedly taken positions in court cases that undermine the separation of church and state. This includes arguing, for example, that a state should be required to fund religious education at private schools and that the government should be allowed to display a 40-foot Latin cross on public property.

The Biden administration must recommit the executive branch to defending the separation of religion and government. It must show robust support for fundamental Establishment Clause principles in court, in agency rules, regulations and guidance, and in rhetoric, too. What the President and top-ranking officials say about people who are non-religious or members of minority faiths matters. Promoting exclusionary and discriminatory messages and policies directly conflicts with the Constitution’s promise of religious equality and neutrality.

By prioritizing these actions, President Biden and his administration can begin to restore and advance true religious liberty for all.
 

Date

Tuesday, December 8, 2020 - 4:15pm

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People protest during a rally about the U.S. Supreme Court's decision to uphold President Donald Trump’s ban on travel from several mostly Muslim countries.

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