Ensuring a Diverse Federal Judiciary Goes Beyond the President’s Nominations

On March 30, President Biden released his first slate of federal judicial nominees. The individuals he nominated demonstrate that this Administration recognizes the importance of diversity in our federal courts. Moreover, this particularly diverse slate, exemplifies an understanding that diversity comes in many forms, and it is critical to have nominees that bring a diverse set of perspectives to our nation’s judiciary. As more vacancies are filled, nominees who bring personal and professional experiences that are not currently well represented on our courts must continue to be a priority.

The need for racial and gender diversity, and other critical representation on the bench cannot be overstated. The diversity of President Biden’s nominees so far - both in the judicial and the executive branches - have made headline news. What is less talked about, however, is the need for diversity of professional experiences. Of the first slate of judicial nominees, four of the eleven have experience as public defenders, including two of the Circuit Court nominees.

Why is this important? Public defenders, who play an instrumental role in our adversarial justice system in ensuring meaningful due process, bring a perspective to the bench that is currently not meaningfully represented. A 2019 study by the Cato Institute found that there are four former prosecutors to every former criminal defense attorney serving on the federal bench. Between 2009 and July 2015, 41 percent of President Obama’s nominees for the federal judiciary had served as prosecutors, compared to 14 percent who had public defender experience. On the federal appellate courts, only approximately one percent of judges have spent the majority of their careers as public defenders or legal aid attorneys. And, on the Supreme Court, we have to go back to Justice Thurgood Marshall to find a justice who represented defendants in the criminal-legal system.

It is critical to have a justice system that includes a range of perspectives. The first step has been taken, with the President nominating several former public defenders to become federal judges. Now, Senators have a responsibility to ensure a diverse bench as they fulfill their consent role, and part of that diversity must be in legal experience.

Having worked on judicial nominations in the executive branch and in the U.S. Senate, I have not heard Committee members ask former prosecutors about whether they can be fair to defendants because they have, in past cases, advocated for a defendant to be found guilty, sentenced to jail, or even given the death penalty.  Nominees who are former prosecutors have not had their ability to follow the law questioned or looked upon skeptically because of their job representing the government.

Current and former public defenders must also be afforded the assumption of being a fair arbiter and should not be asked about whether they can enforce sentencing laws or impose the death penalty where applicable because in the past they have argued against it. Their role in fulfilling the right to counsel for those accused of violating criminal law, as guaranteed by the U.S. Constitution, should not translate into being held accountable or stigmatized for any of their clients’ alleged conduct.

As the Senate Judiciary Committee prepares to hold hearings for these new nominees, their staff members are researching the nominees’ records and drafting questions. Because of the professional responsibility public defenders have to their clients, they are more likely to have been public in their positions on sentencing and the death penalty, and have likely called out the government when it has taken actions that have been prejudicial or discriminatory to defendants. Senators must recognize that those lawyers were doing their job, having taken an oath to defend their clients, who had a constitutional right to legal representation. And, if confirmed, those same individuals will take an oath to administer the law in a fair and just way – and that is what we expect and demand of them.

Senators must evaluate each nominee on their qualifications and their ability to protect critical legal rights and protections for all Americans. No matter which side of the courtroom a nominee has previously stood, they must be treated with the same respect and objectivity – and be asked the same types of questions in their hearings. If the goal is truly to have a fair justice system, and have judges who represent the diversity of backgrounds and experiences that represent our nation’s values, we must hold all nominees to the same standard.  Their past records must be put into context of the professional duties they were fulfilling.  A judge must uphold the integrity and independence of the judiciary, and Senators must explicitly acknowledge that both former public defenders and prosecutors can do that, and that is what they must ensure in the confirmation process.

Amanda Fuchs Miller, president of Seventh Street Strategies, is a former Senate Judiciary Committee counsel.  She has worked on judicial nominations in the U.S. Senate, at the U.S. Department of Justice, and for several advocacy organizations.

Understanding Prosecutorial Discretion in Immigration Policy and Recommendations for Moving Forward 

Prosecutorial discretion refers to the Department of Homeland Security’s authority to choose whether or not to take enforcement action against a person or group of people. For example, when DHS chooses to refrain from enforcing the law against a mother legally eligible for immigration arrest or detention, discretion is exercised favorably. Prioritization of individuals or categories of people whom the Department targets for enforcement and removal is necessary because the government has limited resources and because Congress has delegated to the Department the responsibility of setting priorities and administering immigration law.

The existing model of prosecutorial discretion in immigration affairs is inadequate, and in some instances, misguided. Arbitrary immigration enforcement decisions have striking impacts on undocumented noncitizens and their families. We need a bolder standard for prosecutorial discretion and greater mechanisms for oversight and accountability when such standards are ignored. As the Biden administration considers how to develop and implement prosecutorial discretion policy in immigration cases, the history of how this discretion has been applied provides crucial context.

With a congressional stalemate over immigration, prosecutorial discretion emerged as a centerpiece of Obama Administration policy, but this kind of discretion has been part of the immigration system for decades. Much of this history is covered in Beyond Deportation, beginning with the Eisenhower Administration and through the midpoint of the Obama Administration. Deferred action is one form of prosecutorial discretion used to protect noncitizens with compelling equities, but long operated as a secret program accessible only to elite lawyers and advocates. Transparency about deferred action is thus important, as is formalizing and centralizing its use at U.S. Citizenship and Immigration Services (USCIS), issuing written decisions when deferred action is denied, posting information about the application process, and maintaining statistics about deferred action decisions.

The enhanced tools USCIS has created for sharing information about DACA (Deferred Action for Childhood Arrivals) and steps by Immigration and Customs Enforcement (ICE) to track deferred action cases offers a new paradigm through which to discuss why transparency matters. Without these remedies, noncitizens that possess similarly relevant equities will face unequal hardships. For an analysis of deferred action data collected informally by 24 ICE field offices between October 1, 2011, and June 30, 2012 and resulting recommendations for data collection, recordkeeping, and transparency in deferred action cases, see My Great FOIA Adventure and Discoveries of Deferred Action Cases at ICE. For a discussion of the relationship between prosecutorial discretion and employment authorization that describes the historical precedent for allowing qualifying noncitizens to apply for work authorization based on a prosecutorial discretion grant, see Demystifying Work Authorization and Prosecutorial Discretion in Immigration Cases.

Prosecutorial discretion and discretion, more broadly, figured greatly in related policy changes undertaken by the Trump Administration, including but not limited to the travel bans, the curtailment of refugee numbers, and the increase in “no-court” removals. These were, themselves, discretionary choices that are inconsistent with and undermine the values of compassion and efficiency that should be central to our immigration policy. These policies are discussed in detail in Banned, which includes a qualitative research component based on interviews with twenty-one affected families, former government officials, and attorneys/advocates on the ground.

In the first one hundred days, the Biden administration has taken good first steps which includes issuing “interim” civil enforcement priorities, creating a process by which cases can be reviewed, reaffirming the role of prosecutorial discretion in immigration law, and preserving the security of Deferred Action for Childhood Arrivals, itself a form of prosecutorial discretion.

Moving forward, the Biden administration should issue bold prosecutorial discretion policy that is agency wide, with attention to defining prosecutorial discretion and its history; reaffirm previous memoranda on prosecutorial discretion, including the instruction by the former INS Commissioner Doris Meissner that officers “are not only authorized by law but expected to exercise discretion in a judicious manner at all stages of the enforcement process;” add deeper language on the kinds of enforcement actions which are “against DHS policy” similar to the language in a memorandum by former ICE head John Morton involving victims and witnesses to crime; expand of the “location” at which enforcement actions should be discouraged if not dismantled, among them schools, hospitals, places of worship, and courthouses; include a general policy against large scale enforcement actions; and reaffirm that discretion should be exercised at the earliest stages of the immigration enforcement process, consistent with policy guidance dating back to at least 1976.

Looking specifically at the current interim guidance on enforcement priorities and discretion, the Biden administration should ensure that its “mitigating factors” are applied to all three enforcement priorities. Further, it should revisit the scope “priority two”, which pertains to recent entrants, and provide an exception for humanitarian cases. Additionally, the guidance should be more explicit about the importance of using prosecutorial discretion at every stage of the enforcement process as opposed to just offering a menu. Also, future guidance should center on the importance of discretionary decisions before removal proceedings are triggered. DHS attorneys should play a role in reviewing Notices to Appear and determining whether those Notices should be filed with the immigration court. Future guidance should also expand the list of humanitarian factors that should receive “particular attention” when making discretionary decisions and include those harmed by now discredited or repealed policies such as family separation or the Muslim or Africa Ban as a factor deserving of protection. Finally, the reporting requirements already included in the interim guidance should be specific enough to include the stages at which discretion was exercised, the numerical outcomes from the case review process, and data along lines of nationality and race. These reports should be publicly available.

I am encouraged about the future, and hope that future policy on prosecutorial discretion is guided by the rule of law, history, and equity.

The Importance of Arab American Heritage Month and the Newest Bar Association

Since long before the September 11, 2001 terror attacks, Arab Americans have been subject to xenophobic tropes that place “Arabness” at odds with “Americanness.” Though those attacks brought renewed consequences of social Otherness for the community. Fourteen years later, then-candidate Donald Trump in 2015 falsely claimed that Arab Americans in New Jersey cheered on September 11th, reinvigorating those same bigoted ideas. The following years saw the first three-year consecutive annual increase in reported hate crimes across the nation since the post-9/11 years, which included historic increases in reported--and unreported--anti-Arab hate crimes.

Of course, causes of hate and bigotry far exceed the discriminatory policies and rhetoric of one administration. Anti-Arab sentiment in the U.S. goes back a century, and increased greatly during the 1970s and 1980s over the struggle for Palestinian liberation. Arab Americans not only face bigotry, but also erasure; many in society still view “Arab” as a dirty word, leading to the misidentification of, and attempts to whitewash, Arab American contributions to art, music, food, society, politics, and more as “Mediterranean,” “Middle Eastern,” or any other label available. As such, the Arab American Institute (“AAI”) is supportive of state, local, and Congressional resolutions declaring April “Arab American Heritage Month” as a time to combat both bigotry and erasure.

With the background of this fraught history, the weight of the last five years has compressed Arab Americans, along with many other marginalized and targeted communities, in unprecedented ways. That compression has produced an energy density of activism, organization, and civic engagement among Arab Americans across the country. Arab Americans have led in the fight for civil liberties, social justice, and in getting out to vote. AAI is at the forefront of harnessing that frenetic energy through legislative action alerts, our YallaVote and YallaCountMeIn campaigns--aimed at getting out the vote and the 2020 census count, respectively---as well as regular community engagement.

Last year, as part of those efforts AAI launched the National Arab American Bar Association ("NAABA"), which filled a gap in the Arab American legal community. NAABA aims to empower Arab American legal professionals. The organization has three objectives: (1) support the professional growth and advancement of Arab American lawyers, (2) cultivate an understanding of the legal challenges facing Arab Americans, and (3) serve Arab American communities nationwide. NAABA already boasts a dues-paying membership in the triple digits, and has lawyer and law school chapters across the country, along with strong relationships with pre-existing local Arab American legal communities. Our members have offered CLE events, organized charitable fundraisers, found internships for law students, volunteered to provide Arabic-language nationwide election assistance, and have even run for Congress.

Much like ACS, one goal is to create a coherent pipeline of community leaders from law school to the federal bench and every legal path in between. The legal concerns of Arab Americans are not simply in representation for the sake of representation, however. Many Arab Americans face legal barriers to advocacy for the rights of their friends and families in the region, increased government surveillance of their communities, national origin discrimination in immigration laws, ethnicity-based discrimination at ports of entry, and an inability to obtain election materials in their native language. The perspectives of Arab Americans acutely aware of these challenges are important to be present in leadership throughout the legal profession, including the judiciary and policymaking.

NAABA has twin goals of defending democracy and empowering Arab Americans, including our attorneys. Though in reality, these goals are conjoined; democracy does not work unless it does so for all marginalized and targeted communities. As the organization grows within both the Arab American and legal communities, NAABA will continue to work with partners and allies to improve the rule of law for us all. And we can think of no better time to reaffirm that commitment.

Ryan J. Suto is the Policy Counsel for the Arab American Institute and a founder of the National Arab American Bar Association (NAABA). He is also a 2013 ACS Next Generation Leader. Follow his work at @RyanJSuto. 

Pronouns, “Academic Freedom,” and Conservative Judicial Activism

Is a college professor free to insult a transgender student by denying her gender identity, then escape discipline by invoking “academic freedom”? According to a recent decision from the Sixth Circuit U.S. Court of Appeals, Meriwether v. Hartop, the answer is yes.

The Meriwether opinion is not only wrong in its conclusion; it is, as I will explain, disingenuous and a classic example of motivated reasoning. If you want to see what federal courts look like when they are controlled by activist-conservative judges who bend law to carry out their own agendas, you could find no better example than Meriwether.

First, some background. As part of its anti-discrimination policy, Shawnee State University in Ohio requires a teacher to honor a student’s designated honorific and pronouns. Nicholas Meriwether is a Shawnee State philosophy professor and an evangelical Christian. He believes “God created human beings as either male or female” and that sex “cannot be changed, regardless of an individual’s feelings or desires.” “Jane Doe” was a student in Meriwether’s class. Doe appeared outwardly male but identifies – and asked to be addressed – as female.

Based on his religious beliefs, Meriwether refused to address Doe using “Ms.” or feminine pronouns. The school investigated and gave Meriwether a written warning. Meriwether sued Shawnee State under, among other theories, the First Amendment. The district court dismissed his claims, but the Sixth Circuit reinstated most of them.

Is academic freedom really at stake here?

From the outset, the Sixth Circuit tells us Meriwether is about “academic freedom.” The term occurs 16 times in the 32-page opinion, and the court devotes substantial discussion to academic freedom cases from the Supreme Court and lower courts.

Academic freedom is a peculiar area of law, because it is grounded both in constitutional principles and in the unique traditions of universities and the academic profession. It refers principally to a faculty member’s freedom to engage without undue interference in research or creative activity, and to convey the fruits of those labors through writing, teaching, or public service. Academic freedom overlaps with, but also diverges in important ways from, the free-speech law of the First Amendment.

Unlike many rights, the theoretical justification for academic freedom is not individual liberty, but rather social good. According to the foundational and influential declaration issued in 1915 by the American Association of University Professors, academic freedom exists so that universities may “promote inquiry and advance the sum of human knowledge,” educate students, and “develop experts for various branches of the public service.” Moreover, academic freedom protects scholarly expertise, not mere personal (or religious) opinions. Accordingly, the AAUP declaration explains,

The liberty of the scholar within the university to set forth … conclusions, be they what they may, is conditioned by their being conclusions gained by a scholar’s method and held in a scholar’s spirit; that is to say, they must be the fruits of competent and patient and sincere inquiry.

All this makes clear why Meriwether is not, in fact, about academic freedom. Meriwether’s views about transgender people and pronouns are not grounded in his scholarship or academic expertise; they were not “gained by a scholar’s method.” Rather, as his Complaint makes clear, they are based solely on “the Bible” and his “sincerely held religious beliefs.” Meriwether’s objection to Shawnee State’s policy was personal, not professional; religious, not academic.

Moreover, because a university has an educational mission to accomplish, academic freedom does not make a professor like Meriwether a law unto himself just because he’s in a classroom. If assigned to teach political philosophy, he cannot choose to lecture on Mozart or math or the Book of Romans. He may be required to take attendance, or provide a syllabus, or teach on Fridays. There is no “academic freedom” objection to such regulation of conduct.

Why, then, does the Sixth Circuit insist “academic freedom” is at stake here? One reason might be that it lends gravitas to Meriwether’s position – which is simply that he wants his Biblical views and religiously motivated speech to prevail in the classroom. Understood that way, he has no First Amendment argument.

Another explanation is that the three judges on the panel – two appointed by Donald Trump, all generally acknowledged as conservatives – were eager to jump into the culture war over campus political correctness. Meriwether has acknowledged that he’s waging this fight to challenge what he calls a “leftist” campus culture “firmly in the grip of identity politics.” He has the backing of a prominent Christian legal group. The Sixth Circuit apparently wants him to know they have his back.

In all the ways judges can slant an opinion, spin precedent, and employ rhetorical devices to reach the conclusion they want, the Meriwether panel flaunts its biases. The court privileges Meriwether’s identity as a “devout Christian” and portrays him as a persecuted victim, while it displays no regard for the student’s rights over her identity. (In fact, the court suggests she should have been happy with Meriwether’s “compromise”: using only her last name, while he still used the respectful “Mr.” or “Ms.” for other students.) The court paints the university as a bully and slights the school’s interest in creating a classroom environment where transgender students are not demeaned. It warns darkly against colleges becoming “enclaves of totalitarianism.” All this favoritism and posturing, like the court’s misuse of academic freedom, makes Meriwether less a piece of adjudication than a manifesto.

To be sure, free speech on campus needs robust defense today more than ever (and for that reason I am proud to be a founding member of the new Academic Freedom Alliance). But by creating a professor’s religious right to demean the dignity of his students, then dressing it up with the noble label of “academic freedom,” the Sixth Circuit harms the cause of genuine academic freedom.

Did the university’s “pronoun policy” impose an “orthodoxy”?

If the Sixth Circuit’s first erroneous premise is that Meriwether has a right to enact his religious beliefs in the name of academic freedom, its second erroneous premise is that Shawnee State’s policy represents the imposition of “orthodoxy” (a word which appears seven times in the decision) on a contested cultural issue. In requiring professors to address students consistent with their gender identity, the university, according the court, violated the First Amendment by compelling Meriwether’s speech and imposing a substantive political viewpoint.

The Meriwether court is not wrong when it observes that pronouns are the subject of political and cultural controversy, and that they can “convey a powerful message implicating a sensitive topic of public concern.” But it goes off the rails when it insists that Shawnee State “silenced a viewpoint,” “punished a professor for his speech,” and sought to “compel ideological conformity.”

What the court calls a “pronoun policy” is also a policy about honorifics – the term for prefixes like “Mr.” or “Ms.” The Oxford dictionary defines an honorific as a “title or word implying or expressing … politeness, or respect.” And so, the university’s policy is best understood as creating a respectful, and thus more effective, classroom. Requiring that a professor defer to an honorific requested by a student, based on the student’s self-concept of their own gender, is a small way of mitigating the hierarchical environment of an academic community. It is a ministerial requirement (that is, a duty that does not involve the exercise of professional discretion) analogous to neutral, general requirements that a professor call roll or provide a syllabus.

No, the Meriwether court counters, the pronoun policy is not neutral and ministerial, because “titles and pronouns carry a message. The university recognizes that and wants its professors to use pronouns to communicate a message: People can have a gender identity inconsistent with their sex at birth.” Let’s assume the anti-discrimination policy is indeed informed by that view (which, by the way, represents accepted scientific thought, not mere woke diktat). Still, it does not logically follow that the school’s motive is to compel its professors’ speech.

This is a variation on the argument, made in the Masterpiece Cakeshop case by the same lawyers who now represent Meriwether, that in furnishing a cake to a gay couple in compliance with an anti-discrimination law, the baker was somehow endorsing same-sex marriage. But just as “[n]o one looks at a wedding cake and reflects, ‘the baker has blessed this union,’” no reasonable student would think a professor obeying Shawnee State’s anti-discrimination policy was expressing a personal view on the science or philosophy of gender. In the language of First Amendment doctrine, this case is not about “speech on a matter of public concern.”

With its sermonizing about a “pall of orthodoxy” and “struggle over the social control of language,” the Sixth Circuit’s opinion obscures a number of crucial points. There is no evidence Meriwether was told what he could or could not teach in the classroom, as long as it was drawn from his academic expertise. There is no allegation the university dictated the actual content of Meriwether’s teaching or class discussions.

Stretching to tie the anti-discrimination policy to teaching, the court insists that Meriwether’s desire to call his students by what he terms “biologically appropriate pronouns” is an essential part of the classroom “free exchange of ideas.” That critical leap of logic is unpersuasive, and it betrays the court’s own tendentious activism. The Sixth Circuit courtroom is also a place where ideas are vigorously exchanged. But courts enforce rules of decorum, and you are not free to express your views about opposing counsel’s argument (or the judges) by calling them by whatever name you personally deem “appropriate.”

Even more significant, there is no allegation Meriwether was forbidden from complaining about the policy in an op-ed column, a meeting of the Faculty Senate, or an article in a professional journal. (Those things would be speech on a matter of public concern and protected by academic freedom.) In short, in no meaningful sense did Shawnee State “silence” his speech or “stifle debate.” It just said Meriwether could not invoke his religion to insult his students’ dignity while addressing them in the classroom.

A portent for the future?

In siding with Meriwether, the Sixth Circuit validated a claim that is hypocritical. Meriwether claims a privilege for his own freedom of conscience on a deeply personal matter (his religious beliefs). Yet he demands the right to use those beliefs to override someone else’s freedom of conscience on the deeply personal matter of their own gender identity. What gives him the right to do that? Can that really be with the First Amendment requires?

Professor Andrew Koppelman calls Meriwether an example of “religion always wins” jurisprudence. Without vigorous analysis and criticism of the activism we see in Meriwether, it is the sort of jurisprudence we may see more of from courts where Republican appointees feel free to bend the law to advance their own ideology.

COVID Vaccine Prioritization and the Perils of Colorblind Constitutional Jurisprudence

Nationwide, stark racial disparities exist in COVID-19 infections, hospitalizations, and deaths. Unfortunately, there is evidence of similar disparities now occurring with COVID-19 vaccinations, with Black, Latinx, and Indigenous individuals being vaccinated at lower rates.

National Guidance

Since the early months of the pandemic, healthcare organizations such as the National Academies of Sciences, Engineering, and Medicine (NASEM), Johns Hopkins Bloomberg School of Public Health, and the World Health Organization (WHO) Strategic Advisory Group of Experts (SAGE), worked to avoid vaccine inequities by studying ways that vaccines could be allocated to prioritize the people who are more likely to be severely impacted by COVID-19. For example, the WHO SAGE considered the need to “ensure equity in vaccine access and benefit within countries for groups experiencing greater burdens from the COVID-19 pandemic.” The NASEM Preliminary Framework for Equitable Allocation of COVID-19 Vaccine noted that mitigating health inequities was one of its foundational principles.

The NASEM recommended phases of vaccine prioritization based on age, occupation, and comorbidities and that vaccine access within each phase be “prioritized for geographic areas identified as vulnerable through CDC’s Social Vulnerability Index (SVI).” The SVI uses minority status as one of fifteen social factors in designating geographic areas as vulnerable.

The Centers for Disease Control’s (CDC) Advisory Committee on Immunization Practices (ACIP) considered the NASEM and other frameworks when developing its own vaccine allocation phase. However, ACIP did not include consideration of SVI in its prioritization. Instead, ACIP’s model sets forth a series of phases prioritizing different groups in each phase such as high risk health care workers or those over age 75, but none of these phases specifies race as a factor in prioritization. The CDC framework is not legally binding, however, and states have differed in how closely their vaccination prioritization schemes follow it.

State Vaccine Allocation Plans

States have varied widely in how much they have followed the CDC’s framework. Many states have changed their plans multiple times based on public opinion or for political purposes.

Some states, like Maine and Connecticut, have transitioned to purely age based criteria, despite the criticism that this disadvantages racial and ethnic minorities, who have shortened lifespans and disproportionately die younger from COVID-19, are more likely to have comorbid conditions, and whose work or housing conditions may more likely expose them to COVID-19 infection, regardless of age.

States could and should use vulnerability indexes that use geographic areas for vaccine prioritization, but many are not. The NASEM approach is a good example of a model that could achieve greater equity and better control the pandemic. It uses SVI to identify which areas are more vulnerable. The SVI designates a numerical score between 0 and 1 for county or tract level geographic regions, with a score closer to 1 being more vulnerable. This score considers the following social factors: percentages of people below poverty, unemployed, low income, with no high school diploma, aged 65 or older, aged 17 or younger, older than age 5 with a disability, single-parent households, minority status, how many speak English “less than well,” and housing factors such as multi-unit structures, mobile homes, crowding, no vehicle, and group quarters. Although race is considered in the SVI, it is one of fifteen factors considered in the score. NASEM recommended that 10% of each state’s vaccinations should be reserved for the worst SVI quartiles in states and that vaccine delivery to these areas be expedited. Very few states are following the NASEM approach and reserving 10% of its allocation for high SVI areas. Others, like New Hampshire, planned to “withhold 10% of vaccine supply for deployment to populations disproportionately impacted by COVID-19,” and decided to use an alternative index, the COVID-19 Community Vulnerability Index (CCVI), to determine which areas to target. The majority of states are not using vulnerability indexes at all in vaccine prioritization.

Legal Analysis

Some question whether a state can use race as a factor in vaccine prioritization. Under current constitutional doctrine, states should be allowed to use race as a factor in vaccine prioritization in order to ensure both equity and efficiency in controlling the pandemic.

The Supreme Court has held that government actions classifying based on race must be subject to the most stringent level of judicial review under the Equal Protection Clause, which is known as “strict scrutiny.” Strict scrutiny requires the government to establish that it has a compelling interest in using a racial classification and that its approach is narrowly tailored to meet this compelling goal. The Supreme Court has not considered whether using race as a factor to target health care goods and services would be subject to strict scrutiny.

Affirmative Action in Higher Education and its Application to the Pandemic

A context that may be analogous with the use of race in vaccine allocation programs is that of affirmative action programs. For a time, it was unclear what level of scrutiny would apply to affirmative action programs that aim to address systemic racism and affirmatively aid racial minorities. Liberal justices like Thurgood Marshall asserted that affirmative action programs should receive a less rigid form of judicial scrutiny since their purpose is not to further racial injustice but to combat the long history of race discrimination in the United States. As Justice Marshall eloquently argued: “For it must be remembered that, during most of the past 200 years, the Constitution as interpreted by this Court did not prohibit the most ingenious and pervasive forms of discrimination against the Negro. Now, when a state acts to remedy the effects of that legacy of discrimination, I cannot believe that this same Constitution stands as a barrier.” The same logic that Justice Marshall applied in the context of affirmative action could be applied to the case of vaccine allocation, given the long history of race discrimination in health care in the United States.

However, as the composition of the Court shifted rightward, the Supreme Court ultimately held that strict scrutiny must be used not only for government actions that subordinate racial minorities, but also for government programs that seek to end racial subordination through affirmative action. Strict scrutiny has been famously described as “strict in theory and fatal in fact” since the government often fails to meet this standard. However, in the context of affirmative action the government’s use of race has survived strict scrutiny.

The Supreme Court has addressed the use of affirmative action in higher education on numerous occasions. Most recently, in Fisher v. University of Texas (Fisher II), the Court narrowly upheld affirmative action programs at public universities. In a 4-3 decision, Justice Kennedy wrote that diversity in education serves a compelling government interest, but affirmative action programs must meet stringent standards to be sufficiently narrowly tailored. The government must produce evidence that affirmative action is necessary to achieve its compelling goal and may only use race as one factor among others. Furthermore, Justice Kennedy demanded that universities show that they have considered race-neutral alternatives and found them insufficient.

The Supreme Court has not yet addressed government use of racial classifications to ameliorate systemic health disparities. In the public health context, state governments have a compelling interest in controlling the pandemic by contending with racial disparities in infection rates, serious illness, and death caused by COVID-19. Effectively controlling the pandemic by ensuring that racial and ethnic minorities are able to access COVID-19 vaccines is clearly a compelling government interest, even more compelling in the context of vaccines than in higher education, considering the way that COVID-19 has disproportionately impacted Black, Latinx, and Indigenous populations in the United States. Under the strict scrutiny test, even if the government has a compelling interest in using racial classifications, the use must be narrowly tailored to achieve the government’s purpose and there must be proof that attempts to use race-neutral means have failed to achieve the state’s compelling goals. Initial statistics about the vaccine rollout suggest that more targeted efforts are necessary to vaccinate more racial minorities and thereby control the pandemic more quickly and effectively given the higher rates of infection in racial minority populations. There is compelling data showing that across the United States, Black, Latinx, and Native American people are receiving smaller shares of vaccinations compared to their shares of COVID-19 cases and deaths and compared to their shares of the total population. We are in an emergency situation with over half a million COVID-19 deaths. There is a pressing need for states to move fast with vaccinating those most vulnerable in order to control this global pandemic.

Some states are using race as one of the factors in vaccine prioritization. Vermont recently opened up vaccinations to all people over sixteen years of age who live in households that include any Black, Indigenous, or people of color (BIPOC), two weeks before they were offered up to the general population. The Vermont Department of Health vaccination website emphasizes the need to focus on BIPOC due to increased risk of COVID-19 hospitalizations and death and “historical harms and the resulting mistrust of health care and public health.”

Similarly, in Missouri, “populations at increased risk of acquiring or transmitting COVID-19, with emphasis on racial/ethnic minorities” are prioritized in Phase 2 of the vaccine rollout. Some states like Montana and Utah are prioritizing racial and ethnic groups who may be at an elevated risk of COVID-19 complications in Phase 1B and Phase 1C respectively.

As more dangerous variants spread across the globe, targeted approaches using race as one factor would be wise. Initial data suggests that race-neutral state prioritization policies are not working sufficiently to ensure that groups more vulnerable to COVID-19 are vaccinated at adequate rates. More equitable vaccination of COVID-19 vulnerable populations will better protect the entire population from the continued spread of the virus and more effectively control the pandemic.

School Integration and Race-Neutral Means Towards Racial Equity—An Alternative Approach to Vaccine Prioritization

If the federal courts cabin Fisher II to its context of higher education, another possibility would be to apply Supreme Court precedent on government efforts at racial integration in elementary and secondary education. In Parents Involved in Community Schools v. Seattle School District No. 1, the Supreme Court struck down the use of racial classifications to allocate slots in public schools. In a fractured decision, Justice Kennedy wrote the controlling concurring opinion setting forth the constitutional limits for achieving racial integration in the context of K-12 public education. Justice Kennedy emphasized that diversity in public education is a compelling governmental goal. However, Justice Kennedy concluded that using individual student race for school assignment decisions did not satisfy the narrow tailoring prong of strict scrutiny. Instead, Justice Kennedy wrote that school boards must use facially race-neutral means to achieve the race-conscious goal of school integration, such as by using neighborhood demographic information. Notably, even in the K-12 educational context, Justice Kennedy would permit consideration of race as a factor but only “if necessary” and if school boards adopted “a more nuanced, individual evaluation of school needs and student characteristics that might include race as a component.”

As noted above, the government has a compelling interest in controlling the pandemic by ameliorating the racially disparate impact of COVID-19. Under the Parents Involved approach, states could adopt facially race-neutral means to achieve racial equity in the fight against the pandemic. One way that states could proceed is to use indexes such as SVIs or CCVIs. Some scholars have suggested that measures such as the SVI would pass constitutional muster under the Parents Involved framework. SVI and similar indexes target geographic areas, not individuals. This makes the use of race in SVI fundamentally different than in school admissions cases, where the admissions committee considers the applicant's individual race and where a white applicant cannot say that they are a member of a minority group. In the SVI geographic areas, people of any race may live in or may move in or out of such areas. In this way, vulnerability indexes like SVI are race neutral on their face. Justice Kennedy alluded to such an approach in his concurrence in Parents Involved, where he suggested that school districts could take into account the racial composition of communities rather than an individual’s race.

Using vulnerability indexes such as SVI may also be analogized to the consideration of race in drawing electoral districts. The Supreme Court has held that an electoral district may be struck down as a racial gerrymander if it is drawn using race as a predominant factor. If, however, race is merely one factor among others in drawing electoral lines, strict scrutiny would not apply. Similarly, in calculating SVI, race is not the predominant factor in designating which geographic areas are more vulnerable.

Another alternative measure for vaccine prioritization others have suggested is the Area Deprivation Index (ADI), which measures income, education, employment, and housing quality at the block level. ADI is similar to the SVI, but does not include race at all in its measures. Some areas, like DC, are targeting certain zip codes with more low-income and underserved people. Residents of these areas have earlier access to vaccination appointments than non-residents. New York and California tried similar approaches, but in some cases, people from those zip codes were not the ones who were able to get vaccinated. Thus, race-neutral means do not always effectively achieve racial equity.

Constitutional “Colorblindness” Will Worsen Health Disparities Exposed by COVID-19

Finally, given the changes in the composition of the Supreme Court since Justice Kennedy’s retirement, the Court could reverse or limit both Fisher II and Parents Involved and adopt a stringently “colorblind” approach to the Equal Protection Clause. In his plurality opinion in Parents Involved, Chief Justice Roberts proposed a false equivalence between government efforts at racial segregation and government efforts at racial integration, infamously declaring: “The way to stop race discrimination on the basis of race is to stop discriminating based on race.” In reality, the myth of a colorblind constitution is intentionally blind to racial inequality on the ground and undermines efforts to rectify systemic racism.

The majority of states are adopting “colorblind” efforts to vaccinate the public, and the resulting racial disparities are apparent. For example, age based approaches harm African Americans, whose average age is younger than white people in the United States and who have a lower life expectancy than other races in the United States. The groups that were prioritized in the initial phases of the vaccine rollout were overwhelmingly white. Arguments that we must choose efficiency over equity create a false dichotomy. Rather, targeting higher risk populations for vaccination will ensure a more effective reduction in community spread of COVID-19 for everyone, as well as ensuring that the impacts of this pandemic do not last for generations. A constitutional doctrine that asks us to bury our heads in the sand and ignore the way the pandemic is disproportionately impacting Black, Latinx and Indigenous populations is dangerous and unwise.

The Filibuster Threatens Both Civil Rights and Workers’ Rights

The GOP’s embrace of the filibuster to thwart President Biden’s legislative agenda reveals how the struggles to extend civil rights and labor rights are inextricably intertwined.

The use of the anti-democratic device to block civil rights legislation is well known.

In 1957, Senator Strom Thurman of South Carolina talked for 24 hours and 18 minutes to stall the first piece of federal civil rights legislation enacted since the Reconstruction era, a bill that empowered federal prosecutors to prevent interference with voting.

 

Seven years later, a coalition of southern Senators again used the filibuster to prevent a vote on what became the Civil Rights Act of 1964 for two months until President Lyndon Johnson and his congressional allies, including Republicans like Senate Minority Leader Everett Dirksen of Illinois, secured the 67 votes then needed to end debate.  Less than a month later, Johnson signed the Act into law, guaranteeing, among other crucial civil rights, the right to equal employment opportunity.

Less well known is how the filibuster has been used to block workers’ rights legislation.

In 1965, a little more than a year after he overcame the filibuster to enact the Civil Rights Act, President Johnson’s effort to secure legislation to prevent states from adopting so-called “right-to-work” laws that hinder union representation collapsed when the Senate failed to muster a super-majority. In 1978, President Jimmy Carter’s comprehensive Labor Law Reform Act died in the Senate, despite majority support in both chambers, after a then-record six cloture votes failed to end a filibuster led by Utah Senator Orrin Hatch. In 1992, the House passed a bill supported by President Bill Clinton that would have outlawed permanent replacement of strikes, but it fell three votes short of the number needed to end a filibuster in the Senate. Finally, in the first two years of the Obama administration, despite Democratic majorities in both chambers, the Employee Free Choice Act, another effort at comprehensive labor law reform that had twice passed the House, died in the Senate in the face of a threatened filibuster.

 

I know something about this from personal experience.  In 2009, President Obama nominated me to serve on the National Labor Relations Board.  Without even having to rise on the Senate floor, Senator John McCain placed a “hold” on my nomination.  A “hold” is a convenience extended by Senate procedures in place of the dramatic speaking filibusters of the Civil Rights era, permitting a senator to block a vote without even leaving his office.  As a result, my confirmation was defeated by a vote of 52-33.  That is 52 votes in favor and 33 against.

 

The Senate amended its rules in 2013 to eliminate use of the filibuster to block confirmation of executive branch officials, including members of the NLRB, and judges on the lower federal courts. In 2017, the rules were changed again to allow for the confirmation of Supreme Court Justice Neil Gorsuch (and subsequently Justices Brett Kavanaugh and Amy Coney Barrett) with a simple majority.  But a single senator can still block legislation with a filibuster that cannot be ended without 60 votes.

The decades-long frustration of the popular will to strengthen labor protections has had dramatic implications for Black workers.  After the Civil Rights Act of 1964 broke the back of open workplace segregation, Black workers joined unions at a higher rate than any other demographic.  By 1983, 31.7% of Black workers were union members compared to 23.3% of the entire workforce.  The transparency and equal treatment guaranteed by union contracts narrowed the wage gap between Black and White workers, as Black union workers earned 16.4% more than their nonunion counterparts as of 2016, a significantly greater “union premium” than that earned by White union workers.

 

But in the face of an all-out corporate assault on the right to organize and the obstruction of congressional action, union membership has fallen steadily for four decades and unions’ power to deliver greater equality has dwindled.  Today, only 12.3% of Black workers are unions members, compared to 10.7% of White workers.  Had the filibuster not blocked President Carter’s reform bill and union density simply held steady since the 1970s, scholars project that the Black-White wage gap would be 13% lower overall and 28% lower among women workers.  

 

Now the civil rights and labor movements again confront what a just-published history calls “the kill switch” – the Senate filibuster.  The For the People Act and the Protecting the Right to Organize Act have both passed the House with sizable majorities but confront the need for a super-majority in the Senate.  One bill protects political democracy, the other workplace democracy.  One would prevent Republicans’ accelerating efforts to disenfranchise Black voters in key states like Georgia, the other would limit employers’ ongoing efforts to pressure workers to vote against representation in workplaces like Amazon’s Bessemer, Alabama warehouse.  Together, they are essential to ensuring that working people are heard in legislative chambers and corporate boardrooms.

But the fate of these bills hinges on an arcane, anti-democratic Senate rule.

The filibusters that threatened to block progress on civil rights in the 1960s were defeated by Senators such as Clair Engle of California who, terminally ill, was brought to the floor in a wheelchair and, unable to speak because of a brain tumor, pointed to his eye to signify his vote to end debate.

 

Will such luminaries emerge today?  The rights of working people of all races depend on it.