One Year Later: How the Biden Administration is Doing on Civil Rights and Civil Liberties

As President Joe Biden and Vice President Kamala Harris took office one year ago this month, the ACLU published a civil rights and liberties wishlist for the new administration. The Biden-Harris White House had its work cut out for them: In the wake of the previous administration, the list of harms to repair was long. But simply undoing bad policy isn’t enough: We called on President Biden to proactively fortify and protect our rights across issues areas, from racial justice, to LGBTQ rights, to immigration.

Criminal Justice | Disability Rights | Freedom of Religion and Belief | Immigration | LGBT & HIV | National Security | Racial Justice | Reproductive Freedom | Speech, Privacy, and Technology | Voting | Women's Rights

End the drug war and grant mass clemency

The war on drugs has done nothing to reduce drug use rates. Instead, it has led to the over-surveillance and incarceration of millions, disproportionately Black, Latinx, and Indigenous people. Today, nearly half of the people in federal prison are there for drug offenses, and the federal prison population increased in 2021 for the first time in nearly 10 years. Despite overturning a Trump-era legal memo that would have forced thousands of people back to prison when the pandemic ends and improving implementation of the First Step Act’s earned time credit program, only a bold and transformational approach can tackle the enormity of our nation’s mass incarceration crisis.

We urge the Biden administration to use executive authority to grant categorical clemency to the thousands of incarcerated people serving unjustifiable sentences in federal prison, including under the failed war on drugs. We also urge Biden to push Congress to pass the MORE Act, the EQUAL Act — which would end sentencing disparities between crack and powder cocaine — and the First Step Implementation Act, which would make retroactive the reforms contained in the First Step Act of 2018.

Take action on policing

We urge President Biden to issue an executive order to implement policing reforms on the federal level. At minimum, reforms should include: funding community-based alternatives to policing; adopting a use of force standard for federal law enforcement based on the PEACE Act; curbing the militarization of state and local police by stopping the flow of weapons of war from the federal government; and creating strong, fair rules around body cameras.

End private prisons and the use of solitary confinement

We also urge the Biden administration to take action calling for the Bureau of Prisons and the U.S. Marshals Service to end solitary confinement, as well as once and for all ending the use of private prisons. Despite an executive order ending contracts with private prison companies, these persist through “work-around” third-party agreements.

End the federal death penalty

While the ACLU commends the initial step of Attorney General Garland to suspend executions and order a review to fulfill President’s Biden campaign pledge to work for the end of the death penalty, Biden must still commute all death sentences and impose a full moratorium on capital prosecutions.

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Ensure that people with disabilities can live in their communities, not in institutions, and support the direct care workforce

In his first year in office, President Biden championed additional funding for Medicaid’s home and community-based services (HCBS) in his Build Back Better plan. But Congress still needs to act. The Build Back Better Act would eliminate the years-long waitlist for home care, raise the wages of home care workers, and ensure people with disabilities are not forced into institutions, especially during the pandemic. The House passed the BBB Act with $150 billion in funding for HCBS, now it’s time for the Senate to follow their lead.

Stop law enforcement’s disproportionate targeting of people with mental health disabilities, and the entrapment of people with disabilities in the criminal legal system

Despite promises to reform our nation’s broken criminal legal system, the administration has yet to take steps to reduce the reliance on armed police in responding to mental health crises or address the mistreatment of people with disabilities in prisons and jails. Some cities are taking steps to reduce interactions with armed officers, but we need nationwide reforms to ensure fewer people with disabilities die at the hands of police.

Ensure that students with disabilities have access to effective and safe education

As students return to in-person learning, we need more action from the administration to ensure students with disabilities are protected in the classroom. This includes enforcing federal disability rights laws to ensure students with disabilities are able to attend school without fearing for their health and safety. Some states have banned schools from requiring face masks, disproportionately harming students at higher risk of severe illness from COVID-19. These bans are discriminatory and illegal. The Department of Education is investigating, but more can be done.

The Biden administration can also stop the flow of federal grants to schools that fund police officers in schools. Police presence in schools harms students with disabilities, especially disabled students of color, and entrenches the school-to-prison pipeline. We need counselors and nurses in schools, not police.

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Making Muslim Ban amends

President Biden rescinded the Muslim ban on his first day in office, issuing a strong and much-needed condemnation of the Trump administration’s abhorrent policy. But while the ban is no longer in effect, there is still more work to be done. Many people excluded from the United States because of the Muslim ban, such as those who received a once-in-a-lifetime immigration visa via the "diversity lottery," have still not been admitted. We urge the Biden administration to make amends to those who were excluded from entry to the country because of the ban.

Religious exemptions

The Biden administration also made progress in ending some harmful religious exemptions, which the Trump administration sought to expand. For example, the Department of Labor has taken steps to rescind a Trump-era rule that allows discrimination by federal contractors.

The Department of Health & Human Services rescinded religious waivers that had permitted foster care agencies in three states to discriminate against potential parents on the basis of religion. And the Department of Justice filed court briefing opposing religious exemptions under Title VII for a teacher who resigned after refusing to use transgender students’ correct names and pronouns.

Defending the separation of religion and government

More must be done, however. For example, the administration must rescind Trump-era rules that weakened protections for beneficiaries of government-funded social services by eliminating requirements that religious providers refer individuals who ask for a secular alternative and notify individuals of their rights. The regulations, which remain in place, also eased certain restrictions that have prevented federally funded religious social services providers from imposing religious requirements on individuals seeking help or turning them away just because they are LGBTQ or follow a different faith, in situations where no secular alternative provider is available. And the administration has not yet rescinded the Department of Justice’s October 2017 religious freedom guidance, which fosters discrimination in the name of religion.

When it comes to other issues involving the separation of church and state, the administration supported the state of Maine’s right to refuse funding for religious education in a recent Supreme Court case. And in Executive Order 14015, forming the White House Office of Faith-Based and Neighborhood Partnerships, President Biden explicitly recognized that such partnerships must “preserv[e] our fundamental constitutional commitments ... forbidding the establishment of religion.” These are positive steps forward, but we would like to see Biden officials demonstrate an even stronger commitment to this vital constitutional principle — in court cases, such as an upcoming Supreme Court case in which a public-school coach claims the right to pray with students in his official capacity, and in all other areas in which the administration has power or influence.

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End detention as we know it

The Biden administration must put an end to the Immigration and Customs Enforcement detention machine. Every day, ICE locks up over 20,000 people in a sprawling nationwide network of more than 200 detention facilities. This system of mass incarceration of immigrants should be dismantled — it’s unnecessary and inhumane.

End Title 42

The Biden administration’s reimplementation of Migrant Protection Protocols (MPP), more commonly known as the “Remain in Mexico” policy, is an illegal and cruel policy that will inflict on thousands of additional asylum seekers the same harms that were well documented under its previous implentation: horrific abuse, including torture, rape, and death; and the denial of any meaningful opportunity to obtain asylum.

Although the Biden administration may claim it has no choice but to restart MPP, there is no question that it has a choice to end Title 42, which causes many of the same harms, and yet it has chosen to continue and even double down on that cruel and unlawful policy that turns people away at the border under the guise of public health. It is imperative that the administration do everything within its power to bring both policies to a complete end, restore and rebuild asylum for people seeking humanitarian protection.

Make separated families whole

The Biden administration must end programs that entangle state and local authorities in federal immigration enforcement and implement remedies for families separated at the border. A month ago, the Biden administration broke off negotiations to compensate the families that were separated at the border by Trump's cruel and systemic separation practice.

By abandoning negotiations to help these impacted children and families heal, the Biden administration will have to defend the family separation practice in court. There's no room for the Biden administration to choose politics over families in the way they have with these negotiations and we will continue to do everything we can to hold them accountable.

Deliver a pathway to citizenship

For too long, immigrants who’ve called America home for most of their lives have still been forced to live in fear of deportation and the possibility they could be torn apart from their families and communities. Congress must find solutions and deliver on a pathway to citizenship for immigrants. It is a moral imperative.

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Improving access to accurate gender markers on federal IDs and records

On June 30, 2021, the State Department announced removal of the medical documentation requirement for updating gender markers on passports, meaning applicants can self-select the appropriate marker. They also announced they will add an X designation option soon. We still need the president to direct all federal agencies that issue ID documents displaying gender markers, or displays gender markers in individuals records, to implement self-attestation of gender and include an X designation.

Recognizing the reach of discrimination bans

On day one of his administration, President Biden issued an executive order directing all federal agencies to recognize that existing federal bans on sex discrimination protect against LGBTQ discrimination as well. Just a few days later, President Biden repealed the transgender military ban enacted by the Trump administration. These acts recognized the incredible victories won by Aimee Stephens, Don Zarda, and Gerald Bostock at the Supreme Court in 2020, as well as many other victories by LGBTQ people in other courts.

Close gaps in the law to protect LGBTQ people

In spite of overwhelming public support, the Equality Act has not yet passed the U.S. Senate. While the Biden administration is working to enforce our existing civil rights laws to protect LGBTQ people — including as states attack trans youth — it must do more to ensure gaps in the law that leave LGBTQ people, women, and people of color vulnerable to discrimination are closed.

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For 20 years, in the name of U.S. national security, our government has violated the Constitution and human rights; damaged the rule of law and international cooperation; contributed to militarized and violent approaches to domestic policing; and most consequentially, destroyed hundreds of thousands of lives, primarily of civilian, Muslim, Black, and Brown people. The Biden-Harris administration must act with greater urgency to ensure that U.S. national security policies and practices abide by the legal, human, and civil rights obligations and moral authority that the United States has long claimed.

President Biden rescinded key abusive national security and emergency power executive orders

To his credit, when President Biden took office, he terminated key abusive national security and emergency power executive orders. He rescinded President Trump’s unprecedented executive order imposing sanctions on senior International Criminal Court personnel because the court was investigating U.S. war crimes in Afghanistan. He rescinded bans on the TikTok and WeChat communications apps that violated Americans' First Amendment rights. And he rescinded President Trump’s executive order declaring a national emergency to unlawfully construct the border wall, but he has not yet committed to fully remediating the destruction wall construction inflicted on border communities, the environment, and sacred lands.

End and disavow the unlawful, secretive, and unaccountable killing of people outside recognized battlefields abroad

The lethal strikes program is a centerpiece of the United States’ forever wars and has profoundly damaged the rule of law and exacted an appalling toll on Muslim, Brown, and Black communities in multiple parts of the world. The Biden-Harris administration launched a review of the program and imposed some temporary limits, but this isn’t enough. If the administration only tinkers with the bureaucracy and rules of this extrajudicial killing program, it will only entrench abuses and perpetuate devastating harm to civilian lives. President Biden must disavow and end the lethal strikes program for good and provide acknowledgement and redress for civilian lives lost and injured.

End unlawful reliance on decades-old authorizations for use of military force abroad and commit to war powers legislative overhaul to prevent endless war

The Biden-Harris administration must end reliance on the 2001 and 2002 Authorizations for Use of Military Force, upon which successive administrations have relied far beyond Congress’ original purpose in enacting them. The administration must also support war powers legislative overhaul to restore our system of checks and balances and prevent endless wars and the rights abuses they cause.

President Biden committed to closing Guantánamo, but actions speak louder than words

At the beginning of the Biden-Harris administration, 40 Muslim men were indefinitely detained at Guantánamo Bay. After President Biden took office, his administration transferred one man, and re-committed to closing Guantánamo. Yet 39 men remain; 27 of the 39 have never been charged with a crime, and 18 of those are now approved for transfer or release but are still waiting. Guantánamo is a global symbol of American injustice, torture, and abuse of power. 2022 should be the year that changes. President Biden has the chance to fulfill his campaign pledge to finally close Guantánamo. He can transfer out prisoners who will not be charged with a crime, and order government agencies to seek closure in military commission cases, using international and domestic fair trial standards and possible plea bargains.

End bias-based national security profiling and oppose legislative proposals for a new “domestic terrorism” crime

The Biden-Harris administration must close national security and border loopholes in the Justice and Homeland Security Departments’ guidance on race that permit bias-based domestic profiling of Black, Brown, Muslim, and other communities. It must reject any proposals to enact domestic terrorism crime legislation or enhanced executive powers that, in the name of addressing white supremacist violence, would be used to further target and harm these same communities.

Still no limits to mass, warrantless surveillance

The Biden-Harris administration has yet to make any move to rein in the U.S. government’s mass, warrantless surveillance of Americans’ international phone calls, text messages, emails, and other communications. This surveillance disproportionately affects immigrants and others with family, friends, and business contacts overseas. In 2022, the Biden-Harris administration must work with Congress to repeal or significantly reform Section 702 of the Foreign Intelligence Surveillance Act.

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Support reparations

In April 2021, in a first ever historic vote, HR 40 was voted out of the Judiciary Committee. The bill currently has 195 co-sponsors and a Senate companion bill (Booker-NJ) has 22 co-sponsors. The Biden-Harris administration must support the long overdue creation of a commission to examine the institution of slavery, its legacy, and make recommendations for reparations to Congress through HR 40 and its companion bill.

Ending attacks on government-sponsored racial and gender equity trainings

We commend the Biden administration for successfully rescinding the Trump administration’s executive order “On Combating Race and Sex Stereotyping,” effectively ending the attacks on government-sponsored racial and gender equity trainings. Even further, the Biden administration has made advancing racial equity and support for underserved communities a core priority in its administration. We look forward to holding the administration accountable for keeping this promise.

Reinstate guidance addressing disparities in school discipline

In July, we submitted a comment letter to the Department of Education regarding the need for agency guidance on school discipline and policing. We expect that updated guidance from the Biden administration is in the works, but anticipate at least several more months before release. We also assisted in crafting the NCSD comment letter addressing the relationship between integration/inclusion and school discipline. There is currently a request for comment on the Civil Rights Data Collection and some ACLU affiliates are contemplating weighing in regarding the data collection and school discipline and policing.

Reinstate guidance on voluntary integration and diversity for schools

We have not heard from the Department of Education on integration and school diversity, but in November, we signed on to an NCSD coalition letter to Senators urging retention of the Fostering Diverse Schools program in the budget and a separate letter urging the House leadership to bring the Strength in Diversity Act to the floor.

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When it comes to reproductive freedom, the national landscape has worsened dramatically since the early days of the Biden administration. While the last year brought some meaningful strides at the federal level, it also brought unprecedented challenges for people seeking abortion access around the country that will require bold solutions at every level.

Expand access to medication abortion

Last year, we called for the FDA to lift its outdated, medically unnecessary restrictions on medication abortion, including a requirement that people travel to a health care facility for the sole purpose of picking up a pill in-person. After suspending that requirement during the pandemic, the FDA permanently lifted it in December based on a long-sought scientific review announced in response to an ACLU lawsuit. While the FDA should also lift the remaining unwarranted restrictions still in place, this is a major step that will enable patients to access safe, effective medication abortion care without the delays, risks and expenses that come with unnecessary travel.

End the Hyde Amendment

President Biden’s first budget proposal eliminated the Hyde Amendment, a discriminatory ban on abortion coverage for those enrolled in Medicaid and other insurance programs that has pushed abortion care out of reach for decades. This critical step toward ending Hyde followed a commitment by then-candidate Biden to an ACLU volunteer on the campaign trail and was a reversal of his prior position.

Reverse Trump administration attacks

The administration moved to restore and rebuild the Title X program, a critical source of reproductive health care for millions of patients with low or no incomes, which had been gutted by a Trump-era rule. There is still more work to do, though, to reverse the toll of other harmful Trump administration regulations that targeted reproductive health care — particularly to guarantee that no one is denied birth control coverage because of where they work or where they go to school, and to ensure that religious liberty is never used as a license to discriminate against those seeking health care.

Respond to the abortion access crisis

Meanwhile, the outlook for abortion access has grown increasingly dire. Not only does the Supreme Court appear poised to overturn or gut Roe v. Wade this term, it has already allowed SB 8, an unprecedented abortion ban, to wreak havoc across Texas. And because the court’s most recent ruling greenlit Texas’ SB 8 bounty-hunting scheme, other states are likely to follow suit in the coming months.

When the court first allowed Texas to implement its cruel ban this fall, the Department of Justice challenged the law, alongside a separate challenge brought by Texas abortion providers and funds.

Now, as state legislative sessions begin and the Supreme Court’s decision on the precedent established by Roe looms, more bold action is needed. The Biden administration must build on the whole-of-government response it announced in response to SB 8, to ensure that people can access abortion no matter where they live or how much money they have and regardless of their immigration status. Abortion access must be a priority at the bully pulpit during this unprecedented moment, including calling on Congress to send the Women’s Health Protection Act, a federal safeguard which has passed the House and is awaiting a Senate vote, to the president’s desk.

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A year into the Biden-Harris administration, we are disappointed that they haven't prioritized our privacy rights and how those are affected in the digital age. While there has been some movement on ensuring every person in this country has equal access to a free and open internet, not enough has been done.

Still no ban on the federal use of, and funding for, facial recognition technology

The administration has not acted on calls to institute a moratorium on the use of face and biometric surveillance by law enforcement components of the federal government, particularly CBP and ICE, and support and encourage the passage of the Facial Recognition and Biometric Technology Moratorium Act to enshrine a moratorium into statute unless and until Congress passes specific authorization for each use, subject to sufficient safeguards.

Still no federal comprehensive consumer privacy legislation

The Biden-Harris administration has yet to support comprehensive consumer privacy legislation that gives us control over our data, strengthens civil rights protections online, allows us to sue privacy-violating companies, and permits states to create stronger protections. In 2022, President Biden must sign executive orders clarifying and enforcing existing civil rights protections online.

The Biden-Harris administration expands artificial intelligence research, but still does not regulate it

While the Biden-Harris administration has supported the development of artificial intelligence, they have not substantially addressed civil rights concerns. A few agencies have taken initial steps, but there have been no new federal regulations or guidance to ensure that these technologies do not violate our rights. In 2022, President Biden should put a high-level White House official in charge of coordinating federal policy and agency actions on artificial intelligence, and ensure that his administration centers civil rights issues and meaningfully engages with impacted communities.

Expanding access to broadband

Broadband access is about more than the internet – it’s an issue of systemic equality. People without broadband are more likely to be people of color, rural, and low-income. Without broadband, many opportunities in employment, education — even vaccine access — are out of reach. We applaud the Biden-Harris administration for signing an executive order that helps lower broadband costs, but there is still more to be done.

Stop-and-go on restoring net neutrality rules

At the end of 2021, after the longest delay in 40 years, President Biden nominated a fifth Federal Communications Commission commissioner. This is an important first step to restoring the net neutrality rules that President Trump dismantled, however, until that nominee is confirmed by Congress, the future of a free internet remains at risk.

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Protect the vote

The Biden administration and Congress have a real opportunity to protect the right to vote for so many Americans by passing the Freedom to Vote: John R. Lewis Act. Voters of color continue to be impacted by discriminatory election practices intended to diminish their voting power. In 2021 alone, in the wake of record levels of turnout for the presidential election, a wave of anti-voter measures were introduced across the United States — many of which will disproportionately disenfranchise Black and Brown voters.

The price of inaction is high, and history shows it. With midterm elections fast approaching in November, Congress and President Biden must act now to cement the legacy of the Voting Rights Act and guard the rights of all Americans.

Expand voter registration

In addition, last March the Biden administration issued an executive order instructing federal agencies to put together plans to promote voting access through voter registration. In issuing the order, the Biden administration demonstrated its strong commitment to ensuring unfettered access to the ballot. But they must see this step through. It’s crucial that the administration implement this order expansively and comprehensively. Ensuring our federal agencies do all they can to expand access to voter registration is not only easy, it’s the right thing to do.

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Assure safe and stable housing for women and families

The administration must extend and expand the CDC’s eviction moratorium, reauthorize the Violence Against Women Act, and restore tools needed to dismantle residential segregation.

Remove barriers to workplace equality for women

Despite strong bipartisan support in the House and the Senate, we still need the administration to prioritize legislation critical to supporting women in the workplace, such as the Pregnant Workers Fairness Act and increased funding for home health care workers who are primarily women of color.

Eliminate sexual harassment and assault in our nation’s schools

The Education Department must rescind Betsy DeVos’ double standard for reports of sexual harassment and assault and ensure strong protections against sexual harassment and fair process for all students.

Ensure military opportunities are open to all regardless of sex

The Biden administration should end the Department of Defense’s biased policies that harm women who want to serve in combat. It must also end a ban on pregnant or parenting students in military academies.

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