Since the onset of the COVID-19 pandemic, protests have erupted across the country. Some are related to the virus: Protestors in Ohio and Michigan took to the streets and state capitols to call for an end to their governors’ stay-at-home orders. Others are calling out an ongoing injustice: the killing, often at the hands of the state, of Black Americans. Now, the rights of participants in protests across the spectrum could be at stake unless the Supreme Court weighs in on an important decision.

In this episode of At Liberty, we speak with DeRay McKesson, an activist at the center of an important ACLU case that threatens our right to protest. In 2014, DeRay protested the killing of Mike Brown by police in Ferguson, and he’s been fighting on the front lines of the Black Lives Matter movement ever since. In 2016, he was arrested after another protester (we don’t know who) threw something (we don’t know what), injuring a police officer (whose name we don’t know) in Baton Rouge, Louisiana. If this case is allowed to move forward, it could mean the end of taking to the streets to stand up for our rights. We’ve asked the Supreme Court to stop this dangerous lawsuit in its tracks.

DeRay discusses his experience as the plaintiff in the case, and his shock at how easily the government constructed its case against him in spite of a lack of concrete information about what happened that day in Baton Rouge. “If these things continue, the cost of being a protester will be so high that I can imagine it will lead to people choosing not to take part [in protest],” DeRay tells us of the high stakes of the case.

He also shares his thoughts on how organizing and protest will continue, and even thrive, in the age of COVID-19. Though taking to the streets isn’t an option for many right now as we try to stay safe and healthy, DeRay is hopeful: “Online communities will be stronger than they’ve ever been, campaigns to call and email will continue to be strong. I think that we will redefine what it means to be in community … I’m hopeful because I see people organizing in new and interesting ways every day.

You can listen to the episode here.

By the time a student graduates from college — particularly if they are a woman, LGBTQ, a person of color, or have a disability — the odds are high that they have experienced sexual harassment and assault. Over a quarter of women endure sexual assault during their undergraduate education, and more than half face harassment between 7^th-12^th grade. The experience of assault or harassment does not end with the incident, particularly for students who may have to see their harasser or assailant in class every day. Student survivors often develop anxiety and depression, and struggle to concentrate, which can result in poorer grades and skipping or dropping out of school. A single incident can derail a student’s life. Those students are mostly women.

The DeVos standard redefines what constitutes sexual harassment and assault in disturbing ways. It excuses schools from investigating reports of harassment and assault that take place off campus or schoolgrounds, like at unofficial frat houses, at an apartment on the edge of the campus, or during a school’s own study abroad program. This means that a school would not be obligated to help a middle school student harassed by another student on their way home from school. It means that a university can ignore a report of assault that occurred in off-campus housing — where the majority of college students live. Many commonplace scenarios like these would no longer require an adequate response.

The DeVos standard also allows colleges to ignore reports of assault or harassment unless they are made to the “right” official. Not even the biggest sexual abuse scandal in sports history — USA Gymnastics doctor Larry Nassar’s abuse of hundreds of gymnasts, including Michigan State students — would meet this standard, because many of the students reported the abuse to their athletic coaches, not the university’s designated Title IX coordinator. Let that sink in.

For 25 years, the federal government has defined sexual harassment as “severe, pervasive, or objectively offensive” conduct based on sex. ED is now redefining harassment as “severe, pervasive, and objectively offensive” conduct. The word swap makes all the difference. If the DeVos standard goes into effect, that middle schooler harassed on their way home from school every day could be deemed the victim of pervasive harassment, but the conduct will not trigger any responsibility to respond if it does not meet the additional thresholds of severity and objective offensiveness. Even worse, the new policy requires schools to dismiss any Title IX complaint that does not meet this heightened standard. And even where an incident plainly meets the new definition, the rule holds schools accountable only if they are “deliberately indifferent” to sex discrimination.

The impact of the DeVos standard would be devastating for survivors. Already, incidents of sexual harassment and assault are severely underreported. ED itself estimates 32 percent fewer investigations into sexual harassment complaints in institutions of higher education if the DeVos standard is adopted. Millions of students around the country would be made even more vulnerable to abuse — especially students who are women, LGBTQ, people of color, or have a disability.

Perhaps most egregiously, these provisions erect a double standard, taking sexual discrimination less seriously than other forms of discrimination that are equally prohibited by parallel federal laws that have long been interpreted consistently with each other. ED doesn’t impose such a demanding threshold for complaints of harassment based on race, national origin, or disability. In creating a higher threshold for only sex-based discrimination, DeVos has expressed an inherent skepticism for such claims, implying that students who report sexual assault or harassment should not be treated equally to students complaining of assaults or harassment based on race, national origin, or disability. The DeVos double standard will prevent many students from reporting abuse, and will let schools off the hook too easily when they do. There’s no basis in this country’s civil rights laws for treating sex discrimination differently from discrimination on the basis of race, national origin, and disability.

The ACLU is committed both to ending sexual harassment and assault on campus, and to ensuring fair process for complainants and respondents alike. This lawsuit targets those provisions of the rule that reduce the responsibility of schools to take sexual harassment seriously, and that treat sexual harassment as a second-class problem.

Sexual harassment and assault have no place in our schools. Federal law imposes obligations on schools to make sure that’s the case. Students shouldn’t have to jump through hoops just to report abuse, and schools should not be allowed to ignore claims of discrimination on the basis of sex when they would have to respond to claims of discrimination on other protected grounds. Students have the right to learn without suffering the effects of sex-based discrimination, and today the ACLU is taking DeVos to court to defend that right.

Jennesa Calvo-Friedman, Staff Attorney, ACLU,
& Rebecca Ojserkis, Fellow, Women’s Rights Project

Mia’s high school peers are completing class assignments from their school parking lot because they, like many families in their rural Maryland community, lack access to internet at home. Delina, a high school junior from Arizona, has to wait until all her younger siblings finish their schoolwork using the one computer at home before she can use it to start hers. One student from New Jersey fears that the lack of privacy protections for students using remote learning technology puts their mom at increased risk of deportation.
 
This is the reality of education in America during the COVID-19 crisis, according to the students who’ve shared their experiences with the ACLU. Students recently thrust into distance learning by school closures are worried they’ll fall behind their peers — or even have to repeat the school year — simply because their families can’t afford high-speed internet or a computer. Others fear marketers and other companies are collecting, storing, and even sharing their highly personal information because current remote learning technologies lack basic privacy protections.
 
We’re calling on Congress and state and local governments nationwide to take immediate decisive action to address the current education crisis in America. In letters sent to state and local officials in 23 states, we’re demanding all students have equal access to the technologies that make effective remote learning possible, and that states and school districts mandate the implementation of strong and uniform privacy safeguards to protect students when they are engaged in remote learning.

We’re also asking Congress to provide billions of dollars in funding as part of the next COVID-19 relief package to meet the broadband access and technology needs of students, people with low income, and other impacted individuals.

Our children deserve — and governments have a legal obligation to provide — safe and equal access to an adequate education. 

There are more than 40 million households in the U.S. without an internet subscription, and 11 million of those homes lack any type of computing device. The lack of access disproportionately affects people of color, regardless of income, and reflects our society’s structural racism. Ten percent of Black and Hispanic people in this country have no internet subscription and 13 percent of American Indians and Alaska Natives are also without internet access at home.
 
With unemployment at Great Depression levels, the number of people and families lacking access to technology and broadband services is likely to rise. The effects of this growing digital divide will not only impact the virtual classroom, but ripple well beyond it to other vital services.
 
For young people and adults, the result is being unable to access telehealth services, apply for benefits, attend religious services, order groceries and medications, or communicate with families and communities. Finding employment will become even more difficult, while others may not be able to work safely from home, even if their employer would permit it, without broadband internet access. Older adults lacking access to broadband telehealth services may be forced to risk their health by leaving their homes for medical appointments.
 
People with disabilities face even greater challenges as services move online. For instance, many students who have vision disabilities, learning disabilities, and limitations in upper body mobility may not be able to access online classes if the format is not accessible to screen readers and other assistive technology.
 
The government must step in and provide support to the students, older adults, families with low incomes, and those impacted by the economic crisis that need broadband connectivity and connection-enabled technology to live their lives as safely as possible until the pandemic subsides. As part of the next COVID-19 relief package, Congress must provide:

• $2-3 billion per month for the duration of the crisis and for at least 30 days after the crisis ends to provide an emergency broadband benefit to all low-income households and all households experiencing hardship as a result of the pandemic, and
• $4 billion, at minimum, for an Emergency Connectivity Fund to provide immediate assistance for students and library patrons that need access to technology to engage in remote and distance learning in their homes.

State and local government officials must also fulfill their duties to provide students, including students with disabilities and from low-income families, access to their educations.

With the crisis showing no signs of subsiding soon, and the prospect of returning to everyday life uncertain in the near term, we must take bold action across multiple fronts to ensure access to broadband and connectivity-enabled technology for everyone. We must also make sure this crisis doesn’t expose our children to even more invasive data collection practices.

As Ella Rosenberg, a high school junior from North Carolina, put it, “No kid on Earth was responsible for these circumstances and so we shouldn’t be suffering because of it.”

Kate Ruane, Senior Legislative Counsel, ACLU