By Sarah Hinger and Brian Hauss, ACLU Staff Attorneys

In the latest attempt to silence conversations about race and gender equity deemed “anti-American,” President Trump issued an executive order last week banning federal entities and contractors from providing employees with training on “divisive concepts” and “harmful ideologies” related to race and gender.

What Trump deems “harmful ideologies” are actually concepts diversity trainings use to educate individuals on the systemic barriers and discrimination people of color and other marginalized groups still face in this country today across our institutions — from our workplaces and schools to our criminal legal system. The recent Black Lives Matter and #MeToo movements have shown that people across the country fully acknowledge the realities of systemic racism and sexism are still alive and well, and the need to dismantle the systems and pursue change is more important than ever. But rather than engage with these conversations taking place across the country, the Trump administration seeks to silence individuals and impose an alternate version of American history — one that erases the legacy of discrimination and lived experiences of Black and Brown people, women and girls, and LGBTQ+ individuals.
 
Our country needs to acknowledge its history of systemic racism and sexism and reckon with present day impacts of racial and gender discrimination. Slavery and its legacy of oppression are parts of American history that Black people are still facing today. Women, especially women of color, continue to be segregated in lower-status and lower-wage fields in the workplace, and are paid less than men across the board.

Halting all diversity training could set back progress in addressing these systemic issues, among others — including in the workplace. Talking about racism and sexism is not harmful to employees. Many employers host trainings on these issues precisely because they contribute to a workplace that is more equitable and inclusive. Instead, President Trump’s authoritarian leaning executive order presents the real danger, and takes us steps backwards in achieving full equity in this country. It also violates our First Amendment right to free speech.

President Trump’s executive order unconstitutionally requires every single individual or company with a federal contract to certify that they won’t provide trainings on so-called “divisive concepts,” even on the contractor’s own time and dime. In other words, the order effectively gags federal contractors from talking with their own employees about issues of the most profound national importance, such as the impact of systemic racism and sexism in our society. This is a blatant attempt to leverage the federal government’s vast financial resources to suppress speech about race and gender that the Trump administration disfavors.

Trump’s executive order borrows from a long-discredited playbook. In the McCarthy era, many states passed laws requiring public employees to certify that they were not members of the Communist Party or other “treasonous,” “seditious,” or “subversive” groups. In response to numerous legal challenges, including several cases brought by the ACLU, the Supreme Court firmly established that the government cannot require people to disavow participation in constitutionally protected speech or association in order to keep their jobs. Whatever power the government may have over its employees and contractors, it does not have the power to dictate their private expression on matters of public concern, including discussions about race and gender discrimination.

The Supreme Court has also rejected attempts to categorically ban or burden private expression by government employees and contractors. Such categorical bans present the gravest threat to First Amendment freedoms because they directly suppress an extraordinarily large amount of protected speech, chill even more speech before it happens, and distort discussion on matters of public concern. Of course, President Trump’s executive order is expressly designed to suppress and distort public discussion about issues that Trump considers “divisive,” such as race and gender justice. The Trump administration does not trust people to think for themselves on these issues, and so it has decided to think for them. Fortunately, the Constitution does not give President Trump that authority.

Over the last months on our podcast, At Liberty, we’ve explored different conversations on the subject of policing: abolition, violence and accountability, protest, and activism. This week, we dug into a topic that has gained more attention in the wake of Daniel Prude’s death in March at the hands of the Rochester Police Department: the startling connection between mental health-related 911 calls and police brutality.

Studies show that nearly 50 percent of victims of police brutality are living with a disability, predominantly a mental health disability. In many ways, 911 has become the only option for people looking for mental health crisis intervention. And police often arrive at the scene armed with deadly weapons and a lack of mental health training, with devastating results.

But there is hope. There are alternatives to policing that can provide real care for people in mental health crises, if we invest in them. Joining us on this episode to break down the issue is Gregg Bloche, a professor of law at Georgetown University and a mental health care policy expert, and Ellie Virrueta, an organizer with Youth Justice Coalition.

Why Are Police the Wrong Response to Mental Health Crises?

Why Are Police the Wrong Response to Mental Health Crises?

Over the last months, we’ve explored different conversations on the subject of policing: abolition, violence and accountability, protest and activism. Today, we’re exploring a topic that has gained more attention in the wake of Daniel Prude’s deat...

Over the last months, we’ve explored different conversations on the subject of policing: abolition, violence and accountability, protest and activism. Today, we’re exploring a topic that has gained more attention in the wake of Daniel Prude’s deat...

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by Shaw Drake

ACLU Policy Counsel

Customs and Border Protection (CBP), the nation’s largest federal law enforcement agency, operates with routine impunity. Now, the agency has asked the National Archives and Records Administration (NARA), which maintains federal agency records, to approve destruction of internal CBP records of misconduct. 
 
An agency rife with abuse should not be allowed to purge its own paper trail of wrongdoing. That’s why this week, the ACLU of Texas Border Rights Center, along with more than 100 partner organizations, filed a public comment urging NARA to reject CBP’s proposal. The principal reason: CBP’s own oversight system is a disaster, and future study of the agency’s failures of accountability will be stymied by the documents’ destruction. 
 
The documents CBP seeks to ultimately destroy include “records developed to track and monitor complaints that are or will be investigated by DHS Civil Rights and Civil Liberties (CRCL) regarding alleged violations of civil rights and civil liberties”; “records pertaining to administrative and criminal investigations on [CBP] employees, contractors, and those in CBP custody”; and records and reports of Prison Rape Elimination Act allegations. 

Today, CBP employs more than 44,000 Border Patrol agents and CBP officers, and maintains a budget of nearly $17 billion. Despite the agency’s massive workforce and budget, accountability mechanisms have failed to ensure any semblance of accountability. For example, a Cato Institute study found that between 2006 to 2016, CBP “misconduct and disciplinary infractions outstripped all other federal law enforcement” and “it is virtually impossible to assess the extent of corruption or misconduct … because most publicly available information is incomplete or inconsistent.” Just this year, instead of purchasing medical supplies for immigrants, CBP wasted the allocated funds on dog food and dirt bikes. 

The agency’s complaint and disciplinary systems are broken. According to data obtained by the American Immigration Council in 2017, the agency took “no action” in 95.9 percent of complaints filed against the agency between 2012 and 2015. Despite independent advisory panel recommendations issued in 2016, CBP has still not fixed its disciplinary system. The panel recommended CBP hire 350 internal affairs investigators and appoint a discipline czar to coordinate internal accountability. The agency has done neither.

CBP records related to CRCL investigations would, under this proposal, be destroyed after four short years. The ACLU of Texas and the ACLU of San Diego and Imperial Counties filed at least 11 separate complaints with CBP’s joint intake system in 2019 alone (See additional examples here, here, and here.). Those complaints contained numerous individual examples of CBP abuse and were built on hundreds of interviews. Only one resulted in a confirmed DHS Office of Inspector General investigation, while others received form letter responses from CRCL ensuring inquiry into the allegations with no further communication about the complaint. Documentation collected by CBP stemming from these complaints could prove vital to future examinations of a particularly abusive period in the agency’s history.  

Moreover, CRCL whistleblowers have also raised alarm bells about the oversight body’s diminishing ability to hold CBP accountable. Last year, former CRCL staff attorney and advisor Ellen Gallagher said the agency seemed to “mislead the public” by soliciting complaints of alleged violations “if [CRCL had no intention of specifically investigating or resolving those individual complaints.” Just last month, CRCL staff claimed publicly that CBP was ignoring their concerns about the development of a new use-of-force policy and the agency’s intention to use “chemical deterrents” at the border.   

CRCL’s frequent inaction and CBP’s own undermining of the office’s oversight role further bolsters the need for complete and permanent retention of internal agency records. We simply do not know what types of abuse could be documented in these files. 

CBP misconduct often only becomes public via leaks, investigative reporting, or lawsuits, meaning the loss of internal records could forever bury unknown abuses. For example, the first death of a child in CBP custody in over 10 years was revealed by journalists, after CBP failed to report the death to Congress, as required. Independent lawyers uncovered children held in deplorable conditions at a Border Patrol station in Clint, TX. Border Patrol’s racist and xenophobic Facebook page was uncovered by a reporter, and the prevalence of sexual harrassment and rape within the agency has been revealed only when survivors and former officials spoke up. Lawsuits have similarly uncovered severe agent misconduct, including kidnapping, sexual assault, and an agent intentionally running over a migrant. 

With systemic failures of oversight, CBP’s abject failure to hold its own personnel accountable, and a complete lack of transparency, the last thing the agency should be permitted to do is purge its own records.