COURTS

When Trump previously deployed federal agencies and the National Guard against protestors, the ACLU brought lawsuits challenging violations of protestors’ and journalists’ First and Fourth Amendment rights, and we will do so again. We will ensure that Trump’s efforts to silence dissenters — and the journalists who report on that dissent — will not go unanswered.

The ACLU will also rise to defend protestors, journalists, and others who are subjected to abusive criminal prosecutions or other law enforcement and intelligence agency actions, and we will seek redress through affirmative litigation when federal law enforcement agencies misuse their coercive powers in ways that illegally breach Americans’ privacy, discriminate based on race or ethnicity, or retaliate against dissenters or seek to silence them.

CONGRESS

When the founders wrote the Constitution, constraining a rogue executive and preventing a president from becoming a dictator were paramount concerns. The separation of powers was intended to impose limits on presidential power,14 and Congress should play a key role in seeking to defend rights and freedoms in a Trump administration.

Unfortunately for our system of checks and balances, Congress has for decades too often ceded authority to the executive branch, and congressional dysfunction has emboldened presidents of both parties to take expansive executive actions in order to deliver on policy priorities Congress has proven unable to address. This trend won’t be easily reversed in a new administration, but Congress continues to wield important tools, particularly when it can use the threat of inaction as leverage. The Trump administration will need congressional action to avoid government shutdowns and to reauthorize key laws, and we will seek to use the appropriations process and reauthorization fights to put guardrails on executive authorities.

As we have done successfully in the past, we will push Congress to use its leverage to safeguard civil liberties. The ACLU has worked for years to build a bipartisan coalition both inside and outside of Congress to limit overly broad surveillance and investigative powers. During the Trump administration, this coalition pushed Congress to allow two major surveillance authorities to expire. In response to the Trump administration’s use of shadowy, unidentified federal law enforcement officers to attack protesters in 2020, the ACLU helped draft and push through a new law requiring federal law enforcement officers to display their agency’s name, as well as their own name or badge number, when present at protests. We also urged key congressional committees to step up their oversight over the executive branch.

We will work to change the politics around the First Amendment and individual liberty so politicians are more likely to defend them. Members of both parties have been quick to empower the executive branch in the name of national and homeland security in the post-9/11 era. The ACLU is already responding to current and promised attacks on students, nonprofits, and political opposition, and rallying allies around the need for robust separation of powers, strong due process protections, and limits on executive power.

STATES, CITIES, AND TOWNS

In a second Trump administration, state and local leaders who value civil liberties must take a lead role in resisting abuses of federal executive power. States do not directly influence the federal surveillance and law enforcement infrastructure, but they can limit the reach of the federal government within their jurisdictions. For example, states can limit — or eliminate — cooperation agreements between state and local law enforcement and federal law enforcement to minimize the grounds on which federal authorities can intervene in protests. They can also prevent voluntary data sharing that could be used for federal surveillance purposes or to support politically motivated investigations and prosecutions.

Perhaps most significantly, governors and mayors can present an important counternarrative to the Trump administration’s pretextual excuses for its politically motivated abuses of executive power. The federal government’s goal will be to divide and conquer — to persecute specific individuals, organizations, or groups that are unlikely to generate public sympathy but whose fate can serve as a warning to others and more broadly chill protest and dissent. We will need elected leaders to forcefully speak out in defense of freedom of speech, the right to organize and protest, and the validity of political opposition. Their words and actions, especially if coordinated, can blunt the dystopian narrative a Trump administration will try to build and provide an alternative vision of governance built on freedom and rights for people to rally around. The ACLU will push state and local leaders to champion civil rights and civil liberties in the face of a federal government seeking to silence dissent and attack political opponents.

Early in his presidency, Trump sent National Guard troops to stop Black Lives Matter protestors in Washington, D.C., threatened to deploy the military more broadly to quell protests in U.S. cities, and sent federal law enforcement agents into cities around the United States to break up protests by force and by arresting protestors and journalists.

Trump particularly mounted a visible and threatening show of force in immigrant communities and municipalities and states that he deemed to be opposed to his extreme policies. We anticipate that he will do so again, and we are prepared to challenge his actions.

For example, in Portland, Oregon in 2020, federal agents deliberately attacked protestors and journalists — who were visibly identified as members of the press — by shooting them with rubber bullets, spraying their faces with pepper spray, beating them with batons, throwing flash-bang grenades at them, and arresting them. During other Black Lives Matter protests, similar attacks by federal agents were reported around the country.

In response, the ACLU of Oregon brought multiple lawsuits against the U.S. Department of Homeland Security and U.S. Marshals Service for their violent attacks on Black Lives Matter protestors and journalists who were covering the protest in Portland. The ACLU also brought two more lawsuits in Washington, D.C. and Minneapolis on behalf of protestors who were similarly violently attacked by federal law enforcement agents.

This abuse is likely to recur and even escalate in a second Trump administration. Trump has already announced that he plans to deploy the military to “inner cities,” sounding a racist dog whistle, should he win re-election. He might also use federal law enforcement agents at polling places during future elections, ostensibly to prevent voter fraud, but really to intimidate voters and election workers, and particularly voters of color.

This anticipated escalation of abuses underscores the urgent need for robust legal and advocacy efforts to protect the rights to protest and press freedom.

RESPONSE TO MILITARY DEPLOYMENT: LEGAL ANALYSIS & LITIGATION

The founders recognized that military interference in the government is a fundamental threat to freedom. They ensured that the Constitution addressed that problem by separating the military from civilian government. A long-standing criminal statute, the Posse Comitatus Act of 1878 (PCA), explicitly prohibits the use of federal military forces “to execute the law” unless “expressly” authorized by the Constitution or an act of Congress. Congress has enacted statutory exceptions to the PCA in the Insurrection Act, 10 U.S.C. §§ 251–55.

Through the Insurrection Act, which has existed in some form for 150 years, Congress has delegated to the president considerable power to suppress insurrection or to enforce federal authority. Historically, presidents have invoked the Insurrection Act to deploy either active-duty federal military units or “federalized” National Guard units (1) at the request of a state; or (2) on their own without a request from a state (and sometimes even over the state’s objections to federal intervention), including to counter state resistance to civil rights protections and court-ordered desegregation. Still, if Trump were to invoke the Insurrection Act to suppress lawful protest it would be an unprecedented and unconstitutional abuse of power — with foreseeable violations of protestors’ and journalists’ rights under the First Amendment and Fourth Amendment.

The right to join with fellow citizens in protest or peaceful assembly is critical to a functioning democracy and at the core of the First Amendment. The First Amendment protects the right to protest irrespective of whether local or federal law enforcement officers are seeking to suppress it. The ACLU has been litigating protest cases for a century, and we will be at the forefront of defending this most crucial right against any incursions.

Should the Trump administration again deploy the military and federal agents to quell peaceful protest and interfere with journalists reporting on protests, the ACLU and our affiliate network will be on the ground to fight back. As we did during Trump’s presidency the first time around, we will bring lawsuits on behalf of protestors and the media, likely raising both First Amendment claims (for violations of freedom of speech and association) and Fourth Amendment claims (for unlawful arrest and excessive force). Where the federal government follows up on policing violations at protests with abusive investigations and prosecutions, we will provide advice and counsel and, where feasible, legal representation.

RESPONSE TO MILITARY DEPLOYMENT: LEGISLATIVE ADVOCACY

Congress should amend the Insurrection Act, which is a loaded gun in the hands of a president like Trump. Historically, the American people have relied on presidents and other federal officials to act within norms of executive power. Like other authorities that Trump abused during his presidency, such as Section 212(f) of the Immigration and Nationality Act and the National Emergencies Act, which Trump used, respectively, to establish Muslim and refugee bans and illegally divert military construction funds to build border wall segments that Congress had refused to fund, the Insurrection Act should be narrowed to prevent such abuses from recurring. For example, there should be narrow, clearly defined conditions that must be met prior to invoking the Insurrection Act, and deployments under the Insurrection Act should be time-limited and subject to judicial review. There are proposals with bipartisan support and the ACLU will be engaged with allies to pursue any legislative opportunity.

RESPONSE TO MILITARY DEPLOYMENT: LOCAL & STATE ADVOCACY

The ACLU will urge states and localities to review and end or limit participation in joint federal and state and local task forces — like joint terrorism task forces and fusion centers — that enable federal authorities to coordinate with or mobilize state and local resources in abusive surveillance and investigations. We will also urge state and local governments to institute and follow best practices on the role of law enforcement during protests. If the administration inappropriately invokes the Insurrection Act to deploy the military in American cities, the ACLU will work with state and local authorities and allies to build a robust political defense of our constitutional freedoms.

Donald Trump has threatened prosecution or violence towards President Joe Biden and Biden administration officials, poll workers, former generals, former officials in his own administration who fell out of favor, protesters, journalists, migrants, and many others.

Trump made clear in his first term that he wanted to use the government’s powers to reward friends and punish enemies. As a candidate, Trump pledged to oppose a CNN-AT&T merger because “CNN was anti-Trump,” and the Trump White House later pulled press passes for CNN and dozens of other media organizations. In 2019, Trump pushed the DOJ to open investigations into four intelligence officials whom he accused of “treason” for their involvement in investigating the connections between Russia and the Trump campaign. He even called on the Postmaster General to double Amazon’s shipping rates to punish Jeff Bezos for The Washington Post’s coverage of Trump.

Some of Trump’s efforts to exert such political or even personal control over the vast prosecutorial powers of the federal government were resisted by officials in his administration. For example, Attorney General Bill Barr declined to prosecute former FBI Director James Comey and others despite Trump’s urging. But if Trump wins a second term, it is likely he will install officials who will put up no resistance to such abuses of power. Jeffrey Clark, who offered to use the DOJ to support the effort to steal the 2020 election, is reportedly in the running to be attorney general. The Heritage Foundation has suggested that Trump use an employment screening questionnaire to demand fealty to Trump’s lies about the 2020 election as a litmus test for White House employment. And Project 2025 is openly proposing to take down existing guardrails aimed at strictly limiting White House influence at the DOJ.

Even now, Trump allies in Congress are trying to use their investigative tools to chill free speech and target their opposition. In May 2024, two House committee chairs sent a letter to Treasury Secretary Janet Yellen seeking “Suspicious Activity Reports” on named organizations, including some major foundations, that have been or might have been involved in organizing or funding campus protests over the war in Gaza. This fishing expedition was designed to divert these organizations’ time and money to deter their political advocacy.

As president, with federal law enforcement agencies under his control, Trump could carry out his own coercive attacks on advocacy organizations and individuals he opposes. Indeed, on the campaign trail, Trump has praised violent crackdowns on campus protests, aligning with his previous attacks on academic freedom. In particular, he has threatened reprisals against students who are not U.S. citizens, merging his attacks on free speech with his attacks on immigration. In mid-May, he said, “One thing I do is, any student that protests, I throw them out of the country. You know, there are a lot of foreign students. As soon as they hear that, they’re going to behave.”

Trump is likely to attack online protest as well by forcing media companies and online platforms to carry conservatives’ preferred speech. In 2020, Trump sought to compel the Federal Communications Commission to overstep its legal authority and substantially overhaul the law that allows platforms to take down hateful and “objectionable” speech without fear of frivolous litigation. That effort attacked “ideologically driven content moderat[ion] decisions,” including decisions to remove “content pertaining to firearms,” “glorifying violence,” or “a controversial paper about a potential therapy for COVID-19.” Platforms’ decisions to restrict that content are well within their First Amendment editorial rights, but the Trump administration will almost certainly endeavor to force platforms to carry objectionable speech.

Trump may also abuse legal processes through the DOJ to attack the press and sources including whistleblowers. Current DOJ policy prohibits the use of subpoenas, search warrants, and other orders to obtain information collected by journalists during newsgathering, with narrowly tailored exceptions. That guidance was issued in November 2022 and replaced an earlier policy that expressly permitted the use of subpoenas, warrants, and other orders, only requiring authorization from the attorney general. The first Trump administration was “markedly more aggressive” than previous administrations in abusing that authority, and it is likely a second Trump administration would seek to eviscerate these prudential constraints and use the full power of the DOJ to root out sources such as whistleblowers within the federal government, including by surveilling journalists.

Finally, we should expect to see stepped-up use of the Espionage Act of 1917 to prosecute government leakers and, in the worst-case scenario, reporters and publishers. The Trump DOJ under Jeff Sessions already broke with longstanding precedent when it brought felony charges against Wikileaks publisher Julian Assange for possessing and publishing secret government documents —an activity that is central to investigative journalism. Media organizations have rightly warned that the Assange prosecution, which recently resulted in a guilty plea, will offer a blueprint for targeting more mainstream publications that routinely expose government malfeasance in the public interest.

The Supreme Court’s decision in Trump v. U.S. immunizing Trump (and any future president) from criminal prosecution for any “official” act, including his efforts to subvert the DOJ toward his own ends, makes it all the more important that civil society organizations and other potential targets of Trump’s vendettas be extra vigilant in holding him, and any abusive process brought by his DOJ, accountable.

RESPONSE TO TARGETING POLITICAL OPPONENTS: LEGAL ANALYSIS & LITIGATION

The founders were committed to constraining executive power and enshrined the principle of due process and structural checks and balances in the Constitution. The Due Process Clause of the Fifth Amendment is a crucial bulwark against misuse of executive power. Unfortunately, litigation often comes too late to prevent the harms of an abusive investigation or prosecution and can only seek a retrospective remedy — clearing a target’s name in the public eye and seeking redress for the damage already done. Even if a target for retaliation sues and ultimately wins, the stigma and more direct harms of a retaliatory federal investigation or prosecution can destroy a person’s life or an organization’s finances. Moreover, defending against a criminal case or seeking damages for abusive legal process requires meeting a stringent legal standard: Proving that the prosecution had an improper motive and a discriminatory impact. That is, the person who was unfairly prosecuted must prove retaliatory or discriminatory intent and that other people in the same situation were not prosecuted.

Despite the challenging legal standard, the ACLU has stood up with and for people who were unfairly investigated or prosecuted for retaliatory or discriminatory reasons, or to try to silence their advocacy. We have represented individuals both in defending against criminal prosecution and in affirmative lawsuits seeking justice. For example, the ACLU has represented Asian American scientists who were wrongfully arrested by the FBI and falsely painted as Chinese spies during a wave of biased prosecutions that began under the Obama administration and grew into the Trump administration’s discriminatory “China Initiative.” President Biden ended the China Initiative in February 2022, but there is a high likelihood that Trump would revive it.

The role of the free press in exposing these abuses will be vital and will often depend on courageous government whistleblowers sharing confidential information in the public interest. If Trump’s prior presidency is any indication, we can expect aggressive attacks on both journalists and their sources. The ACLU stands ready to support and defend both journalists and whistleblowers who are subjected to overzealous investigation and prosecution.

RESPONSE TO TARGETING POLITICAL OPPONENTS: STRENGTHENING FIREWALLS AGAINST POLITICAL INFLUENCE

There are longstanding norms and rules to shield the DOJ from political interference, but Trump has made clear since the early days of his first term that he is eager to shred those norms. In fact, he fired his first attorney general, Jeff Sessions, for failing to act in Trump’s interest. Project 2025 shows that Trump’s supporters and enablers are eager to help politicize the DOJ should Trump become president.

Norms will not protect us; we need to work for stronger firewalls between the White House and DOJ. While the prospects for legislative action with this Congress are slim, the ACLU has cultivated a bipartisan coalition of civil libertarians on Capitol Hill who recognize the danger of overly broad executive power. Republicans, in particular, during the Biden administration have claimed to be alarmed about political influence over prosecutorial decisions. The ACLU will continue seeking legislative opportunities to install stronger guardrails against political influence over the DOJ.

There are also steps the Biden administration can take to reduce the opportunities for political corruption of agency decision-making or at least raise the cost. A new collective bargaining agreement for Environmental Protection Administration employees includes a provision protecting employees from political interference in their work. In May, media reported that the National Institutes of Health were putting in place new protocols to protect the scientific integrity of the Institutes’ priority-setting and grantmaking. Although a Trump administration could sweep away the new policies, doing so would catch the attention of advocates and the media, acting as something of a tripwire for political pushback. Similar steps can be taken at enforcement agencies.

RESPONSE TO TARGETING POLITICAL OPPONENTS: BOLSTERING PROTECTIONS FOR JOURNALISTS

The ACLU will also work now to get Congress to enact the Protect Reporters from Exploitative State Spying Act (PRESS Act), which would prevent the federal government from compelling journalists to reveal their sources and work product. The PRESS Act also bars the government from spying on journalists’ phone records and search histories through third parties, like internet service providers, as a work-around. By preventing the government from compelling the disclosure of sources, or spying on journalists as a work-around, the PRESS Act ensures journalists across the country have the confidentiality they need to do their jobs. This bipartisan bill already passed the House of Representatives in early 2024 and must pass the Senate before the end of the year.

RESPONSE TO TARGETING POLITICAL OPPONENTS: SHRINKING EXECUTIVE AUTHORITY

Given the danger of targeted fishing expedition investigations and speculative enforcement actions, we need more rather than less oversight over executive branch enforcement. Congress is currently considering, for example, a bill that would empower the Treasury Secretary to designate an organization as “terrorist-supporting” and strip their nonprofit status unilaterally. While the bill purports to require “notice,” it does not require disclosure of all the reasons for designation or the evidence relied upon to support it — or evidence in the government’s possession that might undermine the designation. The legislation raises significant constitutional concerns and would give a Trump administration significant new powers to threaten dire consequences on any organization based on secret evidence without ever providing them a meaningful opportunity to defend themselves before a neutral decisionmaker. The ACLU is working to stop that bill and ensure stronger due process protections in other contexts.

RESPONSE TO TARGETING POLITICAL OPPONENTS: BACKSTOPPING OVERSIGHT BODIES

It can be hard for those without deep expertise to distinguish pretextual prosecutions and investigations from legitimate enforcements of the law. Congress members and agency inspectors general must take a critical oversight role; they must probe and call out when political decision-making is infecting agencies. The ACLU will work to defend and strengthen inspector generals and to support congressional oversight where appropriate.

RESPONSE TO TARGETING POLITICAL OPPONENTS: STRENGTHENING STATE DEFENSES

Targeted prosecutions can take the form of attacks on organizations or individuals who are conducting activities that the administration disfavors, such as prescribing abortion medications or providing support services to asylum seekers. As part of a comprehensive state planning effort, the ACLU is working with our affiliates to put in place the strongest data protection laws possible in civil-liberties-friendly states to reduce these dangers. Many states have already implemented shield laws to prevent assistance to other states’ prosecutions targeting those seeking or providing reproductive health care or gender-affirming care. While the federal government has concurrent jurisdiction in states, the ACLU will be supporting state efforts to update their shield laws to ensure that their personnel and information systems are not complicit in aiding such prosecutions or aiding in federal mass deportation efforts to the maximum extent permitted by law.

RESPONSE TO TARGETING POLITICAL OPPONENTS: REGULATORY ADVOCACY

The ACLU may also leverage administrative advocacy to oppose many of these threats, especially efforts to roll back Section 230 and limit social media platforms’ ability to address hateful speech or mis- and disinformation. The ACLU has long defended Section 230’s protections in federal courts and on the Hill and has experts on both Section 230 and wider telecommunications issues who would be able to underscore the limitations of the Federal Communications Commission’s authority in upending nearly 30 years of precedent. Robust regulatory advocacy would serve as a foundation to challenging a Section 230 rollback in court.

RESPONSE TO TARGETING POLITICAL OPPONENTS: ORGANIZING

Ultimately, the power of the federal government is vast, and the capacity to misuse it for the purposes of locking in political power and undermining the rule of law is a substantial vulnerability. Fighting this threat requires mobilizing the public to value and defend freedom from a tyrannical government just as the founders did when they wrote the Constitution.

The ACLU has always stood for liberty in the face of government overreach, and that mission will arguably be more important in a second Trump administration than it has ever been. We are engaging in a broad campaign within civil society to help key institutional partners, and eventually the public and the media, to recognize and mobilize around the danger. The best way to stop the threat of weaponized prosecutorial powers is to socialize the press, the public, and policymakers to the danger, to reduce the effectiveness of Trump administration pretexts, and to raise the political costs of taking abusive actions in the first place.

The government has vast, unprecedented powers to surveil and peer into people’s private lives.

The government exploits three sources to conduct dragnet surveillance of Americans’ data: (1) Section 702 of FISA, which authorizes the collection of communications between U.S. persons and people outside the United States; (2) Executive Order 12333, which allows the government to conduct bulk surveillance outside the United State and results in the collection of Americans’ private data; (3) and the government’s use of commercial data brokers to purchase massive quantities of Americans’ private data. Through these dragnet surveillance methods, the federal government searches Americans’ private communications and information without a warrant and without notice or other significant safeguards necessary to protect our rights.

In addition, the information that the government purchases from data brokers without meaningful oversight and transparency can be highly sensitive, and could include:

• Information from individuals’ visits to health clinics,78 as well as reproductive tracking applications installed on people’s phones;
• Information regarding people’s race, ethnicity, gender, sexual orientation, income, and political and religious affiliations; and
• People’s immigration status and related information for immigration enforcement.

According to former deputy director of the CIA Michael Morell, “[t]he information that is available commercially would kind of knock your socks off. If we collected it using traditional intelligence methods, it would be top-secret sensitive. And you wouldn’t put it in a database, you’d keep it in a safe.”

There are few checks on these surveillance powers. Federal agencies rely on them to collect sensitive information without providing a judicial warrant or even notice to individuals whose data has been captured. And the problem is only getting worse, as President Biden recently signed legislation dangerously expanding Section 702. Under that expansion, the government can conscript essentially any business that provides Wi-Fi to its customers into service for spying, unless it qualifies for one of Section 702’s limited exceptions. The Biden administration has promised it will limit its use of this authority, but that does not bind any future administration from doing so.

Each of these tools has a history of abuse by law enforcement and intelligence agencies, and a future president could take advantage of any or all of them for his own ends. Trump could use these overbroad surveillance powers to target immigrants, protestors, communities of color, people seeking abortions or gender-affirming care, or his political opponents. Indeed, although Trump has been a loud critic of FISA, as president, he ultimately signed legislation to reauthorize Section 702 surveillance. Given that track record and Trump’s more recent assertions, there is serious concern that he will try to harness the government’s dangerous spying powers for his own ends.

RESPONSE TO SURVEILLANCE: LEGAL ANALYSIS & LITIGATION

Because the government uses mass warrantless surveillance authorities (Section 702 of FISA and Executive Order 12333) in secret and without disclosure to the people who are surveilled, it is challenging to identify when someone has been subjected to warrantless surveillance. In practice, people whose privacy rights are violated have had very little legal recourse due to the government’s refusal to disclose even basic information about this surveillance and the government’s repeated use of the “state secrets privilege” to thwart court review of its most intrusive spying programs. The government used the latter tactic in our lawsuit on behalf of the Wikimedia Foundation and eight other organizations that challenged the National Security Administration’s (NSA) Upstream surveillance program. Even people who are criminally charged at least in part on the basis of evidence derived via Section 702 and Executive Order 12333 are hard-pressed to understand whether and to what extent their private communications have been intercepted and searched.

Although it can be difficult to challenge Section 702 and Executive Order 12333 surveillance, we have done so in the past, and will continue to do so by carefully monitoring (1) criminal cases where the government has disclosed its use of other types of sensitive surveillance that are often used in parallel with these secret surveillance methods, (2) publicly available government documents such as DOJ press releases, (3) legislative testimony about purported surveillance “successes,” and (4) media reports that provide additional information about the government’s use of controversial surveillance tools. We will work in collaboration with criminal defense attorneys around the country to file motions that seek to compel the government to provide notice to criminal defendants in investigations where agents relied on Section 702 or Executive Order 12333 surveillance. And in cases where criminal defendants have a basis to believe the government used Section 702 or Executive Order 12333 surveillance to intercept and search their communications without a warrant — as in cases like United States v. Muhtorov, United States v. Moalin, United States v. Hasbajrami, and United States v. Russell, where we have served as co-counsel or amicus — we will support defendants in filing motions challenging the lawfulness of that surveillance under the Fourth Amendment and in seeking to suppress the resulting evidence.

By representing defendants who are accused of crimes based on illegally obtained private data, we shed light on the ways in which the government is engaging in mass surveillance of Americans — the vast majority of whom may never know that their privacy has been breached by their government.

RESPONSE TO SURVEILLANCE: LEGISLATIVE ADVOCACY

The ACLU has built a durable bipartisan coalition of advocacy organizations and former and current policymakers to push for limits on government surveillance. Before the end of this Congress, the ACLU will continue to work with congressional allies to narrow the recent expansion of the definition of “electronic communications service providers” that would allow the government to force a wide range of U.S. businesses to give the NSA access to their Wi-Fi routers, phones, and other communications equipment. As a part of this process, the ACLU will also work to reverse the changes made under this year’s reauthorization that weaken the FISA Court’s ability to obtain independent input from experts on civil rights, civil liberties, and privacy when the government secretly seeks permission to conduct novel forms of surveillance.

Looking forward, given that Congress only reauthorized Section 702 for two years, there will be another opportunity in April 2026 to address the ACLU’s longstanding concerns regarding mass warrantless surveillance. We will continue to work with the bipartisan surveillance coalition to limit the federal government’s vast ability to search Americans’ private communications without a warrant, whether with Section 702, Executive Order 12333, or the purchase of data the government would otherwise need a warrant to obtain. For instance, this year, the ACLU and allies successfully advocated for House passage on a wide bipartisan basis of the Fourth Amendment Is Not For Sale Act, a bill that would prevent the government from purchasing data that would otherwise require a warrant to obtain, although the Senate failed to pass an amendment to the same effect as part of the Section 702 reauthorization law. The ACLU will continue to build up support for this legislation to get it passed in the Senate.

If a second Trump administration raises concerns about abuses from “deep state” surveillance as Trump and his allies have done in the past, the ACLU will seize on the opportunity to curtail the expansive surveillance powers that the federal government already possesses.

RESPONSE TO SURVEILLANCE: LOCAL & STATE ADVOCACY

In addition, the ACLU will urge states and cities to restrict the information they provide to federal agencies and departments. For example, the ACLU has successfully advanced state and local laws to increase community control over policing and championed legislation to restrict “reverse” warrants and end purchases of personal information from data brokers. These efforts would reduce the pool of data available to law enforcement, including federal law enforcement. In addition, the ACLU will urge state and local government to end, or sharply limit, their participation in fusion centers and other state-federal data sharing arrangements that have been rife with abuse.

The potential of a second Trump term, with Trump’s promises that he will be even more unconstrained, poses a unique danger to our rights and freedoms.

As we’ve repeatedly stressed in our memo series, Trump threatens to endanger a broader array of our civil rights and civil liberties. Some of his harmful policies may be reversed when new leaders take office, though with lingering harms to the people he targets. But by punishing political enemies and stifling protest and dissent, a second Trump administration would break many of the checks and balances on the executive branch and undermine the foundations of a functioning democracy.

Trump has made plain his admiration for strongman leaders in other countries who have come to power through democratic elections and used the power of the state to exact revenge, sideline political opponents, and rule by force. He has promised that in a second term, unlike the first, he will prioritize appointing supporters and enablers who will place loyalty to Trump over all else, including the oath of office and the rule of law. Our nation’s institutions may be stronger than those in other countries, but they are not without their limitations — as we’ve seen in recent years. Institutions are only as strong as the will of the people within them, and norms that once constrained abuses are rapidly falling away.

The power of the federal government to surveil, investigate, prosecute, and intimidate is vast — but the ACLU exists to ensure those powers are constrained, and we will rise to meet this challenge. A second Trump administration would pose a dangerous threat to the democratic ideal of robust, open political competition marked by spirited dissent and the foundational notion of government by the people and for the people, with respect for the rule of law. As we have for over a century, the ACLU will fight those threats in the courtroom, in Congress, and in the halls of power in states and cities across the country. Trump has stated his intent to trample historical checks and balances on the office of President, and there is an apparent willingness of many within and outside of government to help him do so. When the people disagree with the policies and actions of the president, it will be more critical than ever for the American people to exercise their rights of free speech — including through protest and dissent — so that Trump’s excesses are met with the direct power of the people. When our civil rights and civil liberties are in danger, the ACLU will always be there to lead the defense.

COURTS

Litigation will play a critical role in our fight against Trump’s attempts to reverse course on racial equity.

A second Trump administration would undoubtedly pose sobering and multifaceted legal threats to efforts to promote racial equality. However, many components of Trump’s radical “anti-DEI” agenda, rooted in racial grievance rather than fact, cannot be achieved without violating the Constitution and federal laws. As was the case in the prior Trump administration, litigation and regulatory advocacy will be indispensable for both stymying these threats and advancing an affirmative vision of racial justice.

The Trump years underlined the practical importance of legal action and engagement. Lawsuits stopped many illegal Trump administration policies designed to undermine anti-discrimination efforts and laws, such as Trump’s unconstitutional ban on federal trainings on systemic racism and sexism, and his administration’s efforts to undermine the FHA. Furthermore, since Trump was voted out of office in 2020, federal courts have already enjoined or struck down the kinds of classroom censorship and anti-DEI policies that he promises to pursue more broadly, and upheld efforts to promote access to educational opportunity that have been challenged by far-right advocates. These court victories will be crucial building blocks to our legal strategy under a second Trump administration.

Even though Trump has made a significant mark on the judiciary, and it is not difficult to find recent examples where the courts have failed to protect efforts to build a more racially inclusive society, there are still lawful avenues to promote equal educational opportunities and advance racial justice. We must both defend and build upon this precedent. Below, we outline ways in which we will engage in litigation and legal advocacy to oppose unlawful attacks on educational access, classroom censorship, rollbacks of critical federal anti-discrimination protections, and assaults on state and local DEI policy interventions.

CONGRESS

The Trump administration would push Congress to pass anti-DEI bills restricting access to education, employment, and public contracting opportunities.

Members of Congress who support racial justice must consistently vote against anti-DEI bills and efforts to strip federal funding from such programs. Committees and caucuses should also utilize subpoenas and hearings to strengthen the factual record and ascertain the status of DEI programs in the public and private sectors, as well as the harmful impacts of current anti-DEI legislation. This information can be used to build the necessary factual predicate for legislation advancing DEI goals, and to educate Congress members about the benefits of lawful DEI practices.

Congress members should also counter the anti-DEI movement by publicly and vigorously pushing back against propaganda that DEI is inherently “racist” and stifles freedom of speech. They must refocus the conversation on the origin of DEI programs and amplify, through hearings and public statements, how such critical programs work. DEI programs became prevalent in public and private sectors following the civil rights movement as a way to combat racism and sexism — two pervasive problems that persist today. A key political aim of the extreme right in their anti-DEI efforts is to divide voter coalitions and advance a partisan agenda. The anti-DEI movement labels DEI programs as discriminatory publicly, but it is the extreme right’s proposed anti-DEI policies and legislation that will make workplaces, schools, and public contracting more discriminatory and less inclusive and welcoming for persons based upon their race, gender, sexual orientation, socioeconomic status, and religious identity.

While arguing that DEI programs inhibit free speech, the anti-DEI movement itself stifles speech and whitewashes discussions concerning the inconvenient truths of systemic discrimination in U.S. history and society by banning books, censoring classroom discussions, and erasing facts from curricula. Congress members should coordinate to build a vigorous offensive strategy to reveal the false attacks made against DEI programs.

STATES, CITIES, AND TOWNS

Particularly in the wake of a federal government turning hostile to civil rights, state and local governments must step in to limit discrimination and defend and promote DEI programs and inclusive curricula at the K-12 level.

Public and private sector entities created DEI programs in direct response to the Civil Rights Act of 1964 to combat racism and sexism, and to remedy resulting harms by building workplaces, educational environments, and public contracting programs that reflect and benefit the demographics of this country. As DEI programs have evolved, public and private sector entities have sought to create inclusive and welcoming environments where people of all races, genders, sexual orientations, socioeconomic statuses, and religious identities can thrive. Now, far-right actors seek to roll back gains achieved during the civil rights movement and deprive a large population of Americans of equal access to education, employment, and economic opportunities under the law. Ultimately, these attacks strike at a core principle of democracy: equality under the law.

State and local officials can mobilize to protect democracy and continue civil rights gains in the face of a hostile Trump administration. Indeed, since July 2023 state attorneys general have issued two opinions as a coalition to “condemn attempts to correlate diversity measures with racial discrimination, and to remind companies of their obligations to ensure equitable and inclusive environments for their employees and clients.” Governors and mayors can also continue the advancement of civil rights protections in the public sector by issuing executive orders to create and expand state-and locally-funded DEI programs. Finally, state legislators and city council members should thwart attacks on DEI by voting against proposals to restrict funding for DEI programs, holding hearings concerning public and private sector DEI programs and the negative impacts of dismantling them, and proposing bills that advance DEI goals.

Trump has promised to cut federal funding for schools with curricula that touch on these “disfavored” subjects, eliminate school administrator positions that oversee DEI initiatives, and resuscitate the discredited 1776 Commission.

These policies would, of course, trample on students’ and educators’ constitutional rights. They would also cause palpable harm to educational outcomes and the basic civil liberties of both students and teachers. Research has shown that an inclusive K-12 and college curriculum and environment is a significant contributor to the retention and academic success of not just students of color, but all students. Policies eradicating DEI programming and curricula are not only unlawful; they also actively undermine students’ ability to thrive.

Our Response: The ACLU will continue to challenge unconstitutional classroom censorship and Trump administration executive actions targeting "divisive concepts."

Using Trump’s Executive Order 13950, which unconstitutionally banned federal trainings on systemic racism and sexism, as their template, far-right legislators around the country have introduced scores of bills to ban the teaching of so-called “divisive concepts” in K-12 public schools and in public colleges and universities. While these laws vary in their details, they typically censor classroom instruction on race and gender. The Trump campaign has promised to intensify these efforts by cutting federal funding for schools whose curricula touch on these “disfavored” subjects.

RESPONSE: LEGAL ANALYSIS & LITIGATION

These assaults on academic freedom violate the First and 14th Amendments, which prohibit suppression of specific viewpoints and vague legal restrictions.

Indeed, in every case where the ACLU has challenged classroom censorship and the teaching of “divisive concepts,” we have prevailed. In November 2022, a federal court granted our request for a preliminary injunction blocking Florida from enforcing HB 7/SB 148, the so-called “Stop W.O.K.E. Act.” The Act is a classroom censorship law championed by Governor Ron DeSantis that severely restricts Florida educators and students from learning and talking about issues related to race and gender in higher education classrooms. Similarly, in May 2024, a federal court agreed that New Hampshire’s classroom censorship law, the “Banned Concepts Act,” is unconstitutional. The law actively discouraged public school teachers from teaching and talking about race, gender, sexual orientation, disability, and gender identity inside and outside the classroom. And, in June 2024, a federal court granted a partial preliminary injunction that prevents Oklahoma’s classroom censorship law, HB 1775, from going into effect in university classrooms. The law sought to severely restrict teachers and students in K-12 public schools and public universities from learning and talking about race and gender.

Should a second Trump administration increase its attacks in this area, we will commensurately increase our litigation challenging such efforts, building on the successful blueprint we have already created. These classroom bans do not simply violate students’ and educators’ constitutional rights: they undermine student safety, academic achievement, and student retention. Researchers and educators have recognized that a school-wide approach involving education and training is, for example, necessary to combat harassment and bullying on the basis of race and gender. Laws banning conversations about race jeopardize this important work and create educational environments that are unwelcoming to students of color and other marginalized students.

Additionally, for students of color, the ability to learn about the experiences and viewpoints of people of color and America’s legacy of racism is critical to feeling connected and equally valued. Further, research shows that an inclusive K-12 and college curriculum and environment is a significant contributor to the retention and academic success of not just students of color, but all students. Studies have found that learning about racism and its implications has a positive impact on the development of critical thinking skills and critical consciousness, and contributes to a more complex issue analysis. For example, both white college students and students of color in a racial justice course demonstrated growth in their problem-solving and analytical skills. Other researchers have noted an increase in math standardized test scores of middle school students following implementation of anti-bias education programs. The inclusion of an ethnic studies course for ninth-graders in California was also found to significantly increase student attendance and GPA by 1.4 points. These educational efforts, in other words, can have marked positive effects on educational outcomes, which are critical given persistent retention and achievement gaps between students.

Considering these important goals and constitutional principles, the ACLU will neutralize threats to diverse, inclusive campuses dedicated to creating vibrant educational experiences that are foundational to our multiracial democracy. We will build on our successful legal challenges to unconstitutional state laws in Florida, Oklahoma, and New Hampshire — and to similar unconstitutional crackdowns on academic freedom — we will continue to establish strong precedent, applicable across jurisdictions, that we will use to strike down Trump’s efforts to stifle speech and DEI activities around issues of race and gender in U.S. schools and college campuses.

RESPONSE: STATE & LOCAL ADVOCACY

Education is primarily a state and local responsibility, and each state constitution mandates the creation of a free K-12 public education system with distinct requirements concerning the quality of education. As a result, states and communities, as well as public and private organizations operating on behalf of those entities, develop curricula concerning what students should learn by each grade level. Because state and local education agencies play a lead role in K-12 education policy and best understand the needs of and climate within their own schools, they are uniquely positioned to effectively mobilize against any efforts by a Trump administration to mischaracterize inclusive education and its value to schools and students. Consequently, the ACLU will lobby state assembly members to enact laws mandating inclusive curricula, and prohibiting the banning, removal, or restriction of books at the K-12 level. In addition, in states where there are constitutional mandates for a minimum quality of education, the ACLU will request opinions from state attorneys general concerning state constitutional mandates for inclusive curricula and/or curricula that accurately reflect historical events and government policies in K-12 schools. On the federal level, the ACLU will work with coalition members to lobby against bills that seek to prohibit inclusive curricula in post-secondary institutions and professional schools.

The Trump administration consistently subverted traditional legal tools and principles designed to combat unlawful discrimination. It ceased to pursue — and attempted to dismantle — disparate impact liability, a bedrock tool for effective civil rights enforcement.

The administration also revoked federal guidance designed to address race- and disability-based discrimination in student discipline policies and practices; imposed a sweeping ban on trainings on race and gender discrimination by federal agencies, contractors, and grant recipients; and weakened protections against unlawful discrimination through regulatory action.

A second Trump administration threatens to altogether stop enforcement of civil rights on behalf of individuals from historically marginalized groups. In the regulatory context, the administration would weaken protections in the areas of housing, education, health care, and other essential resources by narrowing the availability of disparate impact liability; adding new legal hurdles to challenging policies and practices that disproportionately harm people of color and other protected groups under major civil rights laws, such as the Fair Housing Act (FHA); and gutting federal rules designed to increase access to housing and other community assets for people of color and other vulnerable and marginalized groups.

Our Response: The ACLU will intensify its role defending access to educational opportunities for students of color, mitigating the impact of a Trump DOJ's retreat from that role. 

Educational access continues to be a key driver of socioeconomic success and stability, and yet educational opportunity in the U.S. too often depends on race and ethnicity, wealth, and geography. Even as our student population across the nation is more diverse than ever, all students — irrespective of race — are more likely to attend racially segregated schools, with Black and Latine students more likely to attend schools that are highly racially segregated and economically under-resourced. In fact, both Black and Latine students are increasingly educated in intensely segregated schools. The confluence of housing segregation and growing income inequality means that, in addition to attending racially segregated schools, Black and Latine students are significantly more likely to attend high-poverty schools. This double segregation occurs because Black and Latine families are disproportionately concentrated, at all income levels, in segregated neighborhoods with fewer resources than predominantly white communities with similar income demographics. Thus, public schools with higher densities of Black and Latine students receive fewer resources on average, despite higher needs. Double segregation of this kind disadvantages students academically, creating performance gaps that have long-lasting effects on Black and Latine students’ future career prospects.

These facts illustrate the critical importance of proactively and aggressively desegregating schools around the country. In the K-12 setting, school districts are pursuing constitutionally sound, race-neutral efforts to make access to education more equitable. And, even after the U.S. Supreme Court’s curtailment of affirmative action programs in 2023, institutions of higher education can still lawfully strive to pursue a diverse student body, as the ACLU and our partners have made clear in the wake of that decision.

Nevertheless, the conservative legal movement has targeted even these efforts, and Trump promises to steer the DOJ away from its historical role of defending such policies and programs. This threatens to exacerbate educational disparities across the country and deepen economic and professional inequality.

RESPONSE: LEGAL ANALYSIS & LITIGATION

We will continue to provide critical guidance and support for efforts by institutions and school districts around the country to combat these forms of segregation that are still constitutionally sound, despite aggressive messaging to the contrary. In June 2023, in two cases brought by Students for Fair Admissions (SFFA), the Supreme Court struck down longstanding affirmative action admissions policies at both Harvard University and the University of North Carolina. Nonetheless, the court left open a number of pathways to increase access to educational opportunity. We will continue to build on our inclusive education assistance for educational institutions, highlighting the tools that still remain available. We will defend the ability of local and state actors to ensure that educational opportunities are open to all, and that addressing societal discrimination remains a legitimate objective under the governing law. At the K-12 level, for example, the ACLU will defend local efforts to address segregation and exclusion based on past and present discriminatory practices — including redlining, predatory lending, and steering — by both state and private actors.

Two illustrative examples are worth unpacking. School districts in both Virginia and Massachusetts have adopted race-neutral efforts to promote equitable access to competitive high schools, and courts have thus far upheld their efforts, consistent with the SFFA decision. For instance, in 2020, in an effort to expand access to the highly competitive Thomas Jefferson High School for Science and Technology (TJ), a prestigious public magnet school that serves part of Northern Virginia, the Fairfax County School Board revised the admissions process. They eliminated the need for a standardized test, removed a $100 application fee, and allocated a small number of seats in the incoming class of 2025 to each public middle school in the region, while evaluating students on their grades, essays, and experience factors, including students who are economically disadvantaged, English language learners, special education students, or students who are currently attending underrepresented middle schools. These efforts eliminated barriers to admission for many students across Fairfax County schools.

Despite the fact that the admissions policy was racially neutral, a right-wing group challenged the policy as a form of racial discrimination under the 14th Amendment’s equal protection clause. The challengers contended that “the [School] Board adopted it with a racially discriminatory purpose” – that is, “to racially balance TJ.” With our partners, the ACLU weighed in on the case before the Fourth Circuit, laying out how and why school communities can and should be able to lawfully consider the impacts of admissions policies on diversity and access as schools across the country are increasingly racially segregated and unequal.

Following hotly contested litigation, the Fourth Circuit upheld the admissions policy, finding that its “central aim is to equalize opportunity for those students hoping to attend one of the nation’s best public schools, and to foster diversity of all stripes among TJ’s student body.” In light of the school board’s careful balancing of relevant factors, the court was “satisfied that [its] adoption of the challenged admissions policy fully comports with the Fourteenth Amendment’s demand of equal protection under the law.” The Supreme Court subsequently declined to hear the case, leaving the Fourth Circuit’s decision intact.

Similar strategies to expand access to crucial education resources have survived attacks in Massachusetts. In 2023, the First Circuit upheld an admissions plan for three selective Boston public schools that was based on grades and zip code — with preference given to students with top grades from lower-income zip codes — which was adopted to address persistent racial disparities in admissions. The challengers have requested that the Supreme Court review the First Circuit’s decision, and if the court takes the case, we will weigh in, as we did in the First Circuit, to ensure that equal protection standards are not distorted and that the court is well-informed of the multitudinous importance of diversity and open opportunity in education.

These cases demonstrate courts will still uphold meaningful and effective tools to tackle unequal educational access in order to remedy historical discrimination. As Justice Brett Kavanaugh, who joined the majority in the affirmative action cases, has acknowledged, “governments and universities still ‘can, of course, act to undo the effects of past discrimination in many permissible ways that do not involve classification by race.’” The Supreme Court has been clear that government actions undertaken to ensure that opportunities are “equally open” to people of all races are still permissible. Indeed, even race-conscious approaches should be upheld if they are designed to remediate “specific, identified instances of past discrimination,” and where they are necessary to “avoid imminent and serious risks to human safety” in specific contexts.

Further, in SFFA, the court left affirmative action policies at military academies intact “in light of the potentially distinct interests that military academies may present.” Seeking to expand on the Harvard/UNC decision, SFFA subsequently filed two new lawsuits challenging race-conscious admissions policies at the U.S. Naval Academy and West Point. While the Biden administration has strongly defended those admission policies, the Trump campaign has promised to abandon the federal government’s defense of both lawsuits. Given the Supreme Court’s observations about potential distinct interests at these two institutions, that retreat is unwarranted and the ACLU is prepared to mitigate its effects. We filed amicus briefs in both military academy lawsuits on behalf of Black women military veterans, and we will work closely with current and former military members of color to ensure that their interests are represented in the litigation and any related changes to admissions. The Trump campaign’s promise to abandon military academies’ use of affirmative action would be more restrictive of opportunity than the Supreme Court’s ruling requires. To respond to this unwarranted dismantling of a key tool advancing diversity in military academies, the ACLU and our allied organizations will consider engaging Congress for fairer opportunities for potential military academy applicants of color at other points in the pipeline to admission.

In this new legal landscape, the ACLU will continue to defend vital efforts to counteract historical discrimination and unequal access to educational opportunity around the country in the face of a Trump administration assault. We will continue to pursue litigation on behalf of K-12 students and other stakeholders to defend SFFA-compliant steps taken by school districts to increase access for disadvantaged students, including those disadvantaged by race, and support public high schools offering unique resources and opportunities that are working to redress the systemic racial exclusion caused by deeply flawed, test-only admissions policies. And we will do so even if the DOJ abandons its historical commitments, and itself attacks these programs and policies.

RESPONSE: STATE & FEDERAL ADVOCACY

The ACLU will also advocate on the state and federal level to permit post-secondary institutions to utilize lawful programs and practices to advance diversity goals amongst students and faculty. The ACLU will work with coalition partners to aggressively lobby against state and federal bills that would preclude those institutions from requiring, requesting, or considering any “diversity statements” from current or prospective students or faculty members, given that the Supreme Court has explicitly found that higher education institutions may consider “an applicant’s discussion of how race affected the applicant’s life, so long as that discussion is concretely tied to a quality of character or unique ability that the particular applicant can contribute” to the institution. Similarly, statements from prospective or current faculty members explaining how their teaching, research, or service has or would promote diversity are clearly relevant to a faculty member’s professional experiences and scholarship.

Trump bolsters far-right attacks on educational and economic opportunity initiatives, including efforts led by local and state governments and the private sector.

For example, the administration weaponized its investigative and legal authority to target efforts by the private sector and institutions of higher education — including, for example, Microsoft and Yale University — to address inequality, which had a predictably chilling effect across sectors, including government, academia, and corporate America.

A second Trump administration would intensify these attacks by abandoning any efforts to advance and legally defend affirmative action policies at military academies, federal minority contracting programs, and other federal programs proven to open opportunities unfairly denied to people of color. The Trump campaign has also promised to charge the Department of Justice (DOJ) and Department of Education (DOE) with investigating “anti-white” civil rights violations in schools while removing so-called “Marxists” from the DOE; direct the DOJ’s civil rights division to investigate private sector programs designed to “boost the number of people of color in the workplace” (a dramatic departure from its traditional role of protecting marginalized groups); and order the Equal Employment Opportunity Commission (EEOC) to use Title VII of the Civil Rights Act to attack DEI programs and trainings.

These attacks would not be restricted to federal government agencies. A second Trump administration would also target local and state government, as well as private sector efforts, to remedy historical discrimination and ongoing inequality. It would also scale up “reverse discrimination” cases to further chill public and private institutions’ efforts to expand access to Black, Latine, Indigenous, and other people of color. Such efforts would build on current attacks from the private bar, including challenging school desegregation efforts and grant, scholarship, and fellowship programs intended to open access to career fields.

Since 2023, emboldened by the Supreme Court’s blow to affirmative action, state lawmakers have introduced over 80 anti-DEI bills seeking to dismantle minority-and women-owned business diversity programs; prohibit certain discrimination and anti-bias training for employees, school staff, and students; prohibit programs to attract a diverse pool of employees, faculty, and students; preclude student scholarships, grants, or financial aid based upon sex, race, and national origin; and/or eliminate DEI programs on college campuses that aim to create inclusive and supportive environments for all students. If Trump is reelected, his administration would intensify this landscape by trying to force diversity programs within local school districts, post-secondary institutions, places of public and private employment, and public contracting to end by using not just DOJ investigations and lawsuits, but also threatening to revoke federal funding. Campaign advisors have promised that a second Trump administration would withhold federal money from any schools, companies, or charities that use DEI principles in their curricula or hiring practices.

The administration’s ultimate goal would be the eradication of all programs designed to address profound and persistent inequalities in American life — with the effect of further entrenching, and indeed worsening, systemic inequalities in access to education, health care, and economic opportunity. And, perversely, a Trump DOJ would employ the 14th Amendment’s Equal Protection Clause, along with landmark civil rights statutes such as the Civil Rights Act of 1964 — including Title VI, which prohibits recipients of federal funds from discriminating based on race, color, or national origin, and Title VII, which prohibits employment discrimination based on race, color, religion, sex and national origin — in its efforts.

At this critical juncture in our country’s commitment to equality and equitable access to vital resources, the ACLU stands ready to act.

Our Response: The ACLU will challenge aggressive and unlawful rollbacks of critical federal anti-discrimination protections. 

Trump also threatens to double down and even expand on his prior administration’s attempts to roll back critical federal protections designed to combat discrimination in, and ensure access to, housing, education, health care, and other essential resources.

RESPONSE: LEGAL ANALYSIS, LITIGATION, & ADVOCACY

In 2020, for example, the Trump administration U.S. Department of Housing and Urban Development (HUD) issued a rule that significantly narrowed disparate impact liability under the FHA by adding new pleading and proof requirements for parties pursuing FHA claims, and new defenses for actors and entities named in those challenges. These actions made it more difficult to establish that policies and practices that disproportionately harm people of color and other protected groups violate the FHA.

The ACLU, with partners, served as counsel for the Open Communities Alliance and Southcoast Fair Housing to challenge the Trump administration’s gutting of the disparate impact standard. In companion litigation, a federal court enjoined the Trump administration’s regressive rule, concluding that its key provisions could not be “found in any judicial decision” and were “inadequately justified.” Ultimately, in 2023, and after we commented on the critical need to do so, HUD reinstated the 2013 discriminatory effects rule in the form of the Restoring HUD’s Discriminatory Effects Standard Final Rule. In so doing, HUD emphasized that the 2013 rule is more consistent with how the FHA has been applied in the courts and by HUD for more than 50 years, and that it more effectively implements the Act’s broad remedial purpose of eliminating unjustifiable discriminatory practices from the housing market.

Similarly, in 2018, the Trump administration suspended the 2015 Affirmatively Furthering Fair Housing (AFFH) Rule, and in 2020 issued a new Preserving Community and Neighborhood Choice Rule, thus repealing the 2015 AFFH Rule. The suspension and eventual repeal of the 2015 AFFH Rule undermined critical fair housing advancements and substantially weakened HUD’s authority and ability to meet its AFFH obligation underthe FHA. The 2015 AFFH Rule represented a critical step to ensure that entities such as HUD, states, local jurisdictions, and public housing authorities fulfilled their AFFH obligations by creating a framework to remove unfair barriers to housing, dismantle housing practices that entrench segregation, and increase access to housing and community assets for people of color and other vulnerable and marginalized groups. The 2015 rule required cities and towns to create a plan to address segregation and discrimination and to lay out concrete goals for bringing fair housing and opportunity to members of all the groups protected by the FHA.

Examples of these goals included building affordable housing in areas well-served by transit and prohibiting landlords from discriminating against people who use a government subsidy to pay rent. In the first few years it was in effect, the AFFH Rule was instrumental in making strides in attacking deeply rooted segregation and expanding access to housing. The AFFH Rule also proved valuable in surfacing harmful fair housing issues that were often overlooked. For example, the city of Ithaca, New York used the AFFH process to prioritize addressing policies and practices that displace victims of domestic violence, sexual assault, and stalking.

The ACLU, with partners, represented the National Fair Housing Alliance and other plaintiffs to challenge this suspension of the 2015 AFFH Rule. Like our challenges to the Trump administration’s 2020 disparate impact standard, this lawsuit provided an essential check on unlawful regulatory actions that gutted rules designed to root out discrimination in access to housing and undermined the fight for more inclusive communities – and are critical to ensure that unlawful actions to repeal or otherwise undermine regulations do not go into effect and harm the communities we serve. Should a second Trump administration renew its attacks on key fair housing protections and other essential civil rights protections through rulemaking or other executive action, the ACLU will again forcefully respond, building on the strategies we developed to oppose attacks on these rules and other actions under the prior Trump administration.

We will also file comments on any proposed notices of rulemaking or other federal regulatory action to explain the harms that these anticipated proposals will have on people of color, and other protected and historically marginalized groups, and why such actions are unlawful. These comments often play a critical role in forcing the federal government to consider the implications of their proposed actions on the communities we serve. They are also an essential step in creating the requisite record for successful challenges to these unlawful agency actions in any legal challenges brought under the Administrative Procedure Act (APA), which authorizes legal action to stop agency rules or other actions that are arbitrary, unsupported by substantial evidence, or otherwise contrary to law. To ultimately defeat efforts to undermine civil rights protections, we must engage in this record-making process.

For example, during the first Trump Administration, the ACLU submitted comments opposing the gutting of the AFFH Rule, and the proposal to substantially weaken HUD’s ability to impose disparate impact liability on bad actors. We have also submitted a comment in support of HUD’s more recent Notice of Proposed Rulemaking that built on steps previously taken in HUD’s 2015 AFFH Rule, while proposing critical improvements to requirements for states, local jurisdictions, public housing authorities, and other entities receiving HUD funding to create and implement equity plans — including with respect to community engagement — transparency, goal-setting, ways in which to measure progress, and accountability. We will work tirelessly to ensure that the AFFH Rule is restored, and to ensure that federal government actors understand how critical it is to combatting segregation and creating more inclusive communities.

Our Reponse: The ACLU will insulate state and local DEI policy interventions designed to remedy persistent inequalities in critical areas such as public health and employment from attack. 

In addition to fighting the rollback of federal anti-discrimination policies and attacks on racial justice efforts in court, the ACLU will work to insulate state and local policy interventions to address persistent inequalities in critical arenas and expand opportunity — policies that are often the fruits of considerable mobilization and advocacy by affected communities — from Trump administration attacks. In partnership with local affiliates on the ground, we can provide critical legal and strategic advice to ensure that such programs meet current legal standards.

DEI programs and initiatives date back to the civil rights movement. The landmark Civil Rights Act of 1964 enforced school desegregation, outlawed employment discrimination based on race, religion, sex, color, and national origin, and established the Equal Employment Opportunity Commission. In response, public and private sector entities began utilizing initiatives and trainings to recruit and retain more people of color and women, and to create inclusive and welcoming educational institutions and workplaces. In addition, federal, state, and local governments used incentives and public contracting programs to expand opportunities for minority- and women-owned businesses. Over time, these initiatives and programs expanded access to education, employment, and public contacting opportunities for women, communities of color, LGBTQ+ communities, active military and veterans, and persons from low-income backgrounds.

These initiatives have also impacted critical fields, such as public health, and programs that provide critical interventions into persistent, deeply rooted inequalities. We know, for example, that there are significant racial disparities in health care that are closely linked to structural racism: According to the CDC, Black women are three times more likely to die from a pregnancy-related cause than white women due to variation in quality health care and implicit bias. Meanwhile, there is a significant underrepresentation of Black and Latine people in the medical profession: Research led by the Health Resources and Services Administration concluded that, on average, every 10 percent increase in the representation of Black primary care physicians in certain counties was associated with 30.6 days of greater life expectancy among Black people in those areas. To remedy historical discrimination and address these health outcome disparities, public and private scholarship and fellowship programs have been set up to support pathways to the medical profession for underrepresented medical professionals. In response, an organization named Do No Harm has brought a series of legal challenges to these scholarship and fellowship programs, as well as implicit bias trainings in the medical sector.

Similarly, guaranteed income programs, delivered alongside other material benefits like housing, childcare, and health care, have emerged as important tools to assist people struggling to make ends meet. A guaranteed income can come in a variety of forms such as a periodic cash payment or an expansion of already existing tax credits. The goal is to make these payments significant enough to put those who most need them on a path to economic security and self-determination; and these programs have had great success. Over 100 guaranteed income pilots have emerged in cities and counties nationwide to provide life-changing, direct assistance to over 38,000 households combined. However, conservative legal activists have made increasing demands, backed by the threat of litigation, that local jurisdictions end guaranteed income programs that provide basic economic support for the most economically vulnerable, including people of color and LGBTQ+ people.

RESPONSE: LEGAL & ADVOCACY

We anticipate these attacks would intensify under a Trump administration and be joined by the federal government itself. In partnership with our network of state affiliates and chapters in all 50 states, the District of Columbia, and Puerto Rico, we will seek to intervene in litigation to defend programs addressing racial disparities and fight further erosion of equal protection standards. We will also ramp up our existing work providing legal and strategic advice on current legal standards to local and state actors administering such programs, making sure that they are in the best position to both advance their mission and defend their work against a potential challenge.

At the federal level, the ACLU will work with organizations and policy researchers to explore and document the harmful impact of current anti-DEI laws. The ACLU will also work with coalitions to lobby the congressional caucuses and committees to investigate and document the dismantling of DEI programs in the public and private sector and the resulting social and economic impact on families and state and local governments. And, at the state and local level, the ACLU will lobby state governors and mayors to issue executive orders to create and expand state and locally funded DEI programs and initiatives.

In an attempt to silence discussions about race and gender, his administration would attack academic freedom and students’ constitutional right to learn.

Foundational legal principles of civil rights and equal protection law would be in the crosshairs, as would policies to reduce racial inequality. In the face of these threats, the ACLU stands ready to use all the tools available to us, including litigation and legislative and policy advocacy, to fight for the promise of our democracy and for full and equal freedoms for all of us, whether Black, Latine, Indigenous, Asian or white.