Welcome to This Week in Civil Rights and Civil Liberties. This week, the courts heard the Trump Administration’s last-ditch efforts to challenge the ACA, DACA, and the election results; the coronavirus continues to impact the education and employment sectors; the Biden campaign previews possible changes to census data categories; and the 1st Circuit upholds Harvard’s race-conscious admissions policy.
The U.S. District Court for the Eastern District of New York held invalid a July DHS memo halting new DACA applicants. The memo was released by acting DHS Secretary Chad Wolf, who has not been confirmed by the Senate. The District Court found that his appointment therefore violated the Homeland Security Act of 2002; because Wolf was not legally acting as DHS Secretary, the DACA memo he issued was invalid. (NPR).
Oral arguments in the latest challenge to the ACA indicate the Supreme Court may uphold the law. In 2017, Congress amended the law to make the tax penalty for an individual who failed to purchase insurance zero dollars. This zeroing-out of the penalty, according to a 5th Circuit decision, meant the penalty could no longer be considered a “tax,” and was therefore an unconstitutional use of Congressional power. Last week’s oral arguments focused on whether this finding as to the individual penalty made the entire ACA unconstitutional. At the hearing, Justice Roberts and Justice Kavanaugh seemed poised to join Justices Kagan, Sotomayor, and Breyer in upholding the rest of the ACA. (New York Times).
The Trump team continues to file various legal challenges contesting election results, so far losing almost all of them. His legal team has reportedly filed so many state and federal lawsuits that nobody has been able to pinpoint exactly how many have been filed. In the less than two weeks since election night however, he has already lost about a dozen, and won just one: a Pennsylvania case concerning a small number of ballots, claiming the secretary of state had impermissibly allowed voters extra time to fax in signatures to correct deficient ballots. Though it would be difficult to overstate how outlandish Trump’s legal claims are, there may be broader goals in mind: undermine public trust in the election results, and interfere with state certification of election results. (Politico).
As coronavirus cases surge across the country, state and local officials have begun re-implementing shut-down measures and restrictions. 35 states, D.C., and Puerto Rico now require face coverings to be worn in public, with more states announcing new or tightened restrictions on a daily basis. (USA Today).
The current open enrollment season for employees to choose benefits for the following year shows employers offering new perks which, arguably, should have been available long before the COVID-19 pandemic. These include more time off for child care, increased mental health benefits, and access to telehealth. Many of these benefits are “voluntary,” meaning the employer pays nothing for them, but the employee will get services at discounted rate, should they ever use them. One of the more novel benefits is IT help for children of employees, the idea being that parents working at home won’t need to set their work aside to help children with remote learning trouble-shooting. (Washington Post).
A viral tweet from a university student brought the debate over video surveillance in exam proctoring to the forefront. Due to COVID-19 shutdowns, students across the country have been forced to take high-stakes exams from their homes. Private companies offering software to detect cheating in at-home exams have boomed. The alarming degree of intrusiveness, and the exacerbation of disparities in access to technology and in disability status have led to notable push-back from students, especially as some surmise that the technology will continue to be used by schools even after students return to campus. (Washington Post).
The Biden campaign previewed its proposed changes to census data categories for the 2030 count. The Administration plans to direct federal agencies to “enhance demographic information around race, ethnicity, sexual orientation, gender identity, and disability status.” This likely includes adding a self-selection category for “Middle Eastern or North African” individuals, who previously had to select “White,” and a question about gender identity and sexual orientation. There is currently no reliable national-level data about where and how many LGBTQ people live in the U.S. (NPR).
The 1st Circuit of Appeals upheld Harvard’s race-conscious undergraduate admissions policy, ruling that it does not unlawfully discriminate against Asian American applicants. Although race is a factor considered during admissions, the court found that the multitude of other factors and procedural hoops applicants are put through sufficiently offset any racial bias in admissions decisions. The group behind the lawsuit, Students for Fair Admission, is simultaneously engaged in similar lawsuits against University of North Carolina Chapel Hill and Yale. It has promised to appeal the 1st Circuit decision to the Supreme Court. (The Guardian).