In the last four years, the Trump administration has aggressively dismantled federal protections that ensure equal treatment against racial discrimination, amplified racist rhetoric, and explicitly targeted communities of color with harmful executive actions. The Biden-Harris administration must both reinstate federal rules that protect against racial discrimination, and take meanginful steps to further advance racial justice in the U.S.

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

Support H.R. 40

The Biden-Harris administration must support H.R. 40, a bill that would set up a long overdue commission to examine the institution of slavery, its legacy, and make recommendations for reparations to Congress. 

During slavery, Black people were forced to labor for the enrichment of America. After slavery, the emancipated suffered violent repression and exploitation under Jim Crow laws and Black codes in the South and de facto segregation across the nation. Since then, the vile policies of enslavement, codified in American culture and the Constitution, shifted to take on new forms of injustice and drivers of oppression that are still woven across our institutions today — from education and healthcare to our criminal legal system. The U.S. government has continued to perpetuate and often profit from racially-exclusionary policies and practices that  disadvantage Black people in all aspects of society. This is evident in modern day voter suppression, policies that deny Black people fair housing opportunities, redlining practices that perpetuate segregation, legislation such as the Homestead Act, which actively denied economic justice opportunities to Black people, and mass incarceration. 

H.R. 40 is a critical first step toward addressing the fundamental injustice, cruelty, brutality, and inhumanity of the institution of slavery in the United States and its legacy. Reparations for slavery are necessary if we are to advance racial justice in this country.  The Biden administration must support H.R. 40.

End attacks on racial and gender equity trainings

The Biden-Harris administration must rescind President Trump’s executive order banning federal entities and contractors from providing employees with training on “divisive concepts” and “harmful ideologies” related to race and gender.

What Trump deems “harmful ideologies” are actually concepts diversity trainings use to educate individuals on the systemic barriers and discrimination people of color and other marginalized groups in this country still face today across our institutions — from our workplaces and schools to our criminal legal system. Our country needs to acknowledge its history of systemic racism and sexism and reckon with present day impacts of racial and gender discrimination. Halting all diversity training could set back progress in addressing these systemic issues, among others — including in the workplace. In order for us to move forward as a country to address racism and sexism, the Biden administration must do its part and rescind this executive order, “On Combating Race and Sex Stereotyping.”

Address disparities in school discipline

With the rise of law enforcement in schools, the proliferation of zero-tolerance policies, and misuse of suspensions and expulsions, our nation’s school discipline policies are pushing children out of school into the school to prison pipeline. Black and Brown students, students with disabilities, and other marginalized students are disparately impacted by these punitive approaches to school discipline. 

As part of a reinstatement of civil rights guidance, the Biden administration should reinstate federal guidance on nondiscriminatory school discipline and support school districts in pursuing alternatives to exclusionary and punitive school discipline practices that disproportionately harm students of color and students with disabilities. 

Protect diversity in our schools

The Biden administration must reinstate guidance on voluntary use of race in school admissions to achieve diversity and avoid racial isolation in elementary, secondary schools, and in postsecondary education, as outlined in  Fisher v. University of Texas at Austin.

The federal guidance to promote racial diversity and end the growing racial isolation in K-12 classrooms and in higher education provided a thoughtful and clear explanation of two Supreme Court cases governing the use of race in K-12 education and higher education, Parents Involved v. Seattle Schools and Grutter v. Bollinger, which recognized the importance of promoting diversity in learning environments and established parameters for doing so. The guidance documents acknowledged a problem that education experts as well as students and parents long recognized: Too many of our nation’s classrooms are racially isolated, and this isolation is only increasing among students.

The guidance also outlined the Supreme Court’s explicit recognition that promoting diversity and avoiding racial isolation in schools are not only compelling governmental interests but also among the nation’s highest priorities. The guidance demonstrated the various ways that efforts to create diverse student bodies in schools and universities can be done effectively, fairly, and in compliance with the existing law in order to improve the quality of education for all students.

The administration should also reinstate guidance on access to education for all children, regardless of immigration status. The Trump administration withdrew the federal guidance that provided school districts with important clarity on the requirement under federal law to provide equal access to education for all children, regardless of immigration status. The Supreme Court in Plyler v. Doe recognized that denying children a basic education is to “deny them the ability to live within the structure of our civic institutions” and to contribute to society. The guidance provided critical recognition of the rights of children and gave educators the practical information necessary to comply with federal law and support their students. The administration must reinstate this guidance to give all children the equal opportunity to access education — regardless of their immigration status.

Imagine waking up one day, unlocking your phone, and realizing that you could no longer send or receive messages through your favorite app. Or make or receive calls. Or scroll through your social media feed. Imagine that all of these functions were rolled into one essential app that you and your friends, family, and co-workers depended on, and that the U.S. government had decided to ban it.

That’s exactly what the Trump administration is attempting to do with WeChat, a communications app that millions of people in the United States depend on to connect with friends, family, and business contacts across the world.   

On Friday, we and the ACLU of Northern California asked the Ninth Circuit Court of Appeals to block the Trump administration’s autocratic effort to ban WeChat. Our friend-of-the-court brief, filed in support of a group of WeChat users who have challenged the ban, explains why the administration’s actions violate the First Amendment.

The First Amendment protects our freedom of speech. It applies here because WeChat users depend on the app for a wide variety of speech and expression. Nineteen million Americans, primarily Chinese Americans, rely on WeChat daily to call and message with friends, family, and colleagues. The app is no ordinary communications tool: It’s also a platform for social media, news, money transfers, and e-commerce. It hosts an enormous community — more than one billion users worldwide — that simply can’t be replicated. For many of WeChat’s users, the app is their primary or only source of communication with friends and family in China, where the government blocks popular messaging platforms like Facebook, WhatsApp, and Instagram.

In August 2020, the Trump administration issued an executive order declaring WeChat a threat to national security. As we explained at the time, WeChat, like many U.S.-owned social media and messaging apps, including Facebook and Instagram, does collect broad categories of user data. Concern about how this data is used and protected is warranted. In the case of WeChat, there is also some legitimate concern about whether user data is accessible by the Chinese government. But the Trump administration made no attempt to address this concern in a way that would minimize interference with WeChat users’ speech, as the First Amendment requires. Instead, the administration’s stated goal is to make it impossible to use WeChat in its entirety.

After the coalition of WeChat users challenged the ban in court, the district court found that there were substantial questions about the constitutionality of the ban, and the court issued a preliminary order that prevented it from going into effect. The government then appealed that decision to the Ninth Circuit.

Our brief in support of the WeChat users makes two key arguments about why the government’s ban violates the First Amendment.

First, the ban prohibits people from speaking or expressing themselves before they can even do so. It’s what the Supreme Court has called a “prior restraint” on expression — one of the most serious and least tolerable infringements on First Amendment rights. Prior restraints are a greater threat to our rights than laws that prohibit or criminalize certain speech after it’s uttered. That’s because they prevent speech from happening at all. Here, by banning WeChat, the government is preventing all of the communications that 19 million Americans are having each day on the app.

It is a dangerous thing for any government to decide what people can or can’t say before they even say it. Governments can use that power against people whose opinions it does not like and wants to suppress. Or it could use a power like this in discriminatory ways, based on bias — a serious concern here.

Given these dangers, courts require the government to meet an exceptionally high burden when it seeks to justify this type of restriction on speech. The government must be able to point to immediate, irreparable harm from the banned speech, and its restriction on the speech must be as narrow as possible to prevent that harm from occurring.

The government’s sweeping ban on WeChat plainly fails that test.

In court, the government argues that its ban doesn’t implicate the First Amendment at all, because its actions were technically directed toward WeChat’s infrastructure, not the First Amendment-protected speech of WeChat’s users. But the government has acknowledged that its prohibitions will make the app unusable. And its legal argument ignores Supreme Court precedent, which makes clear that even when the government restricts speech indirectly, those restrictions can be prior restraints.

Second, even if the ban isn’t viewed as a prior restraint, it’s plainly a “total ban” — another kind of government action that, under the First Amendment, demands close scrutiny by courts. Where the government bans a medium of expression that is “unique” and “important,” courts require the government to meet a very high bar to justify the ban: It cannot suppress more speech than necessary to address the harm. In practice, broad bans like this one never pass that test.

Here, the government has banned an undeniably unique and valuable platform for users to express themselves. As the district court found, “WeChat is irreplaceable for its users in the U.S., particularly in the Chinese-speaking and Chinese-American community.” Because the government’s actions against WeChat suppress more speech than necessary, they violate the First Amendment.

With inauguration on the horizon, there may be reason to hope that the Biden-Harris administration will withdraw the WeChat ban. President-elect Biden hasn’t yet taken a public position on it, but given the high First Amendment stakes, withdrawal should be a no-brainer. In the meantime, we’re pressing for the First Amendment rights of WeChat users in court.

EDITOR’S NOTE: This blog was updated on January 15, 2021 to add commutations for people on death row. The ACLU made this addition once the Trump administration could no longer execute these individuals in response to a commutation request. 

Millions of people took to the streets this year demanding racial justice and an end to racism in policing and the criminal legal system more broadly. On Election Day, voters provided their own stamp of approval by passing ballot measures in red and blue states alike to reform drug policy and other laws that have led to our mass incarceration crisis. Prosecutors and sheriffs committed to tackling mass incarceration won elections from Florida and Michigan to Texas and California.

In fact, it is fair to say that a future Biden-Harris administration has a mandate to fight against mass incarceration. An Associated Press poll from June found that 94 percent of Americans believe that the criminal justice system needs to change — including a large majority of Republicans — and 69 percent of Americans support major changes or a complete overhaul of the system.  

President-elect Biden and Vice President-elect Harris have already indicated that they will make racial justice a priority in their administration, including by reforming the criminal legal system. This is welcomed. The ACLU believes that now is the moment for bold action to tackle this crisis. The U.S. leads the world in incarceration and in police violence. Now is the time for visionary steps to end mass incarceration. 

Here is our top to-do list for the first 100 days:

End the War on Drugs

A Biden-Harris administration should issue an executive order declaring an end to the war on drugs, directing federal prosecutors to no longer pursue drug cases, commuting the sentences of people serving time for drug-related cases, and pardoning people with past criminal convictions for drug-related offenses. Moreover, the administration should support reform bills like the MORE Act, which would remove marijuana from the list of scheduled substances, expunge many past convictions and arrests, and support racial justice efforts.

Grant Mass Clemency
 
The Executive has complete authority to grant clemency or demand the initiation of a mass clemency process, either of which President-elect Joe Biden could do in his first 100 days in office. Doing so would show he is serious about ending this country’s mass incarceration crisis and addressing the harms caused — disproportionately against Black and Brown people — by the 1994 crime bill and other failed “tough on crime” policies. There are tens of thousands of people who could be released within the first 100 days, by granting categorical clemency to the following groups: 

1. People who would serve a lesser sentence than they are currently serving if convicted under current laws;
2. People convicted of drug offenses;
3. People incarcerated for technical probation or parole violations; and
4. Older incarcerated people.

And for everyone who is granted clemency, it is incumbent on leaders across the federal government and in local communities to thoughtfully and holistically support people leaving prison. 

Embrace Use of Force Standard

An important first step in reining in police use of force is to set clear national standards, requiring all police departments to adhere to common-sense limitations and best practices based on principles of necessity, proportionality, and de-escalation. Notably, research has found that when police departments adopt such policies, they not only kill fewer people, but also suffer fewer officer deaths in the line of duty.

President-elect Biden has already identified the creation of a national, model use-of-force standard as one of his racial equity priorities. It’s important that this use-of-force standard truly conforms to the best practices in the field by embracing the principles set forth in the PEACE Act, which permit officers to use force only when necessary, proportional, and less extreme alternatives are exhausted.

Dramatically Reduce Pretrial Detention

The federal system, which rarely uses cash bail, should be a model for states and localities. But the federal pretrial detention rate is an appalling 75 percent. The Biden-Harris DOJ must seek detention for only the most extreme cases and aim for a pretrial detention rate no higher than 5 percent, instruct prosecutors to make charging decisions that avoid presumptions of detention, and invest in supportive services — such as transportation and child care assistance to make it easier for people to attend their court dates — instead of bias-enforcing risk assessment tools that do not address the underlying problems. The administration should also support legislation to eliminate presumptions of detention, which violate the basic tenant that people are innocent until proven guilty.

In encouraging local reform, the administration should align with these same principles and focus on funding evidence-based support rather than discriminatory algorithms or onerous conditions.

End Private Prisons
 
Criminal justice policy should be driven by public safety needs, not by the greed of private corporations. But more than 100,000 people in the United States are incarcerated in private prisons, where profit-seeking takes priority over safety, security, and rehabilitation. In 2016, the Obama administration announced that it would end the use of private prisons by the federal Bureau of Prisons, but that order was reversed in the early days of the Trump administration.  The Biden administration should end the use of private prisons by the Bureau of Prisons, the U.S. Marshals Service, and all other federal agencies.   

End the Federal Death Penalty

The federal death penalty is plagued by racial bias, geographic arbitrariness, and unfairness — just like the death penalty in the states. The Biden-Harris administration must honor its pledge to work toward federal legislation to end the federal death penalty. The Trump administration recklessly carried out an unprecedented number of federal executions, all during the pandemic, leading to spikes in COVID-19 cases and subjecting staff, witnesses, loved ones of the victims, and people incarcerated in federal prisons alike to escalated risk of the disease. The Biden-Harris administration should immediately suspend all federal executions while it works to end the federal death penalty once and for all. As they work towards that end, they must commute all federal death sentences and drop the death penalty in all pending trial cases. 
 
End Solitary Confinement
 
The United States is the world’s leader in solitary confinement, with tens of thousands of men, women, and children locked in isolation on any given day. Although international human rights standards require that solitary confinement be used only as a last resort and for no more than 15 days, it’s common for people in U.S. prisons to be isolated for months, years, and even decades. The Obama administration enacted limited reforms at the federal level, but much more needs to be done. The Biden administration should ban solitary confinement lasting longer than 15 days for people in federal custody, and create incentives for states and localities to do the same.