(NEW YORK) — State officials seeking to combat a rise in voter intimidation during the midterm elections can find protection in a 57-year-old anti-discrimination law, according to voting rights experts.
The Voting Rights Act of 1965 is, along with the Ku Klux Klan Act of 1871, the strongest civil voting protection on the books, says Sean Morales-Doyle of the nonpartisan, nonprofit Brennan Center for Justice, which on Friday released a new multi-part guide outlining key anti-intimidation laws as a resource for states.
“The Voting Rights Act of 1965 doesn’t require intent to intimidate in order to prove violation of that law,” said Morales-Doyle, director of the Brennan Center’s voting rights and election program. “So the person who’s doing the intimidating doesn’t have to mean to be intimidating.”
The release of the guide comes as baseless claims of 2020 election fraud have led to an increase in threats against voters and election workers in several states. In the last week, 10 cases of alleged voter intimidation at drop box locations in Arizona were referred to the Justice Department for prosecution, after witnesses reported numerous individuals, some armed and in “camo-clad gear,” filming and photographing voters as they returned their ballots.
“Part of what makes what we’re seeing in Arizona that’s different than what we’ve seen is in the past is … usually in previous elections, when you hear about instances of voter intimidation it tends to be a lone actor behaving badly at a polling place. It’s not an organized recruitment campaign, and that’s what’s happening in Arizona,” Morales-Doyle told ABC News.
Even though the alleged intimidation in Arizona didn’t occur at a polling location, Morales-Doyle said the voters are still protected under the law.
“You can violate voter intimidation laws at the polling place, you can violate it nowhere near a polling place; if you’re intimidating people and scaring them away from exercising the right to vote, then you are violating federal law,” he said.
The new Brennan Center offering, which it calls “The Voter Intimidation and Election Worker Intimidation Resource Guide,” outlines the common federal and state legal protections for voters and voting, as well as an overview of applicable federal laws and information about laws specific to Arizona, Florida, Georgia, Michigan, Nevada, New Hampshire, North Carolina, Pennsylvania, Texas, and Wisconsin.
“While these are not new concerns, the sources and the targets of these threats have shifted in 2022,” Brennan Center counsel Jasleen Singh and fellow Katie Friel said in announcing the resource guide.
In the aftermath of the alleged voter intimidation in Arizona, the Arizona Alliance for Retired Americans and Voto Latino filed a lawsuit this week accusing the alleged perpetrators, as well as Clean Elections USA and the group’s founder, Melody Jennings, of conducting a “coordinated vigilante intimidation campaign” with the “express purpose of deterring voters … from depositing their ballots.”
“The people who are doing it are making references to this Clean Elections USA when they do it,” said Morales-Doyle. “I think it’s exactly why what we’re seeing is so concerning right now, that there is actually this organization going on.”
On Friday, a federal judge denied the advocacy groups’ motion for a temporary restraining order against CEUSA, Jennings, and the ten unnamed accused perpetrators — but did not close the case.
Neither Jennings nor Clean Elections USA immediately responded to ABC News’ request for comment.
(NEW YORK) — A federal judge in Arizona Friday declined to issue a temporary restraining order and preliminary injunction to keep several people accused of voter intimidation from gathering near ballot boxes and surveilling voters.
In the lawsuit, which was filed on Monday, the nonprofit advocacy groups Arizona Alliance for Retired Americans and Voto Latino accused ten unnamed individuals — as well as Clean Elections USA and the group’s founder, Melody Jennings — of carrying out surveillance in a “coordinated vigilante intimidation campaign” at ballot drop box locations, “with the express purpose of deterring voters … from depositing their ballots.”
The suit accused them of violating the Voting Rights Act of 1965 and the Ku Klux Klan Act of 1871.
In his ruling, the judge said he found that “defendants’ conduct does not fall into any traditionally recognized category of voter intimidation” and that the plaintiffs lacked “evidence that Defendants’ conduct constitutes a true threat.”
Voto Latino and Arizona Alliance also filed motions asking the court to grant a temporary restraining order and preliminary injunction to bar the defendants from “gathering within sight of drop boxes; from following, taking photos of, or otherwise recording voters or prospective voters, those assisting voters or prospective voters, or their vehicles at or around a drop box; and from training, organizing, or directing others to do the same.”
In his order denying both motions, U.S. District Court Judge Michael Liburdi said he “acknowledge[d] that Plaintiffs and many voters are legitimately alarmed by the observers,” but ultimately ruled that the requested preliminary injunctive relief “implicates serious First Amendment considerations.”
“An individual’s right to vote is fundamental. But so too is an individual’s right to engage in political speech, assemble peacefully, and associate with others,” Liburdi wrote, adding that the defendants were not acting with the intention of discouraging people from voting, but by a desire “to prevent what [the defendants] perceive to be widespread illegal voting and ballot harvesting” so “that persons who attempt to break Arizona’s anti-ballot harvesting law will be exposed.”
“On this record, therefore, the Court finds that a reasonable observer could interpret the conduct as conveying some sort of message, regardless of whether the message has any objective merit,” which falls under the protection of the First Amendment, the judge said.
Following the ruling, attorneys for the plaintiffs appealed the decision to the 9th U.S. Circuit Court of Appeals.
Neither Jennings nor Clean Elections USA immediately responded to ABC News’ request for comment.
(MILWAUKEE) — A Wisconsin man is facing a misdemeanor disorderly conduct charge after a video circulated online that appeared to show him grabbing a Black man around his neck after a dispute about an alleged bicycle theft, according to a criminal complaint filed in Milwaukee County Circuit Court.
The Milwaukee Police Department told ABC News on Friday that Robert Walczykowski, 62, was charged in connection with the altercation seen in the video.
In the video, Walczykowsk, who is white, accuses 24-year-old Trevon Burks, who is Black, of stealing a bike from his friend’s yard.
“I didn’t touch it,” Burks says in the video, denying Walczykowski’s accusations.
A bystander filmed the video of the incident which took place earlier this month. In the video, the bystander lets Walczykowski know that he’s recording.
“Go ahead, record me,” Walczykowski says in the video as he appears to hold Burks by the neck.
“Let go of his neck, he’s not going anywhere,” the bystander says in the video.
Walczykowski eventually let Burks go, and Burks left the scene before police officers arrived, the Milwaukee Journal Sentinel reported, citing the criminal complaint.
Milwaukee police did not comment on whether Burks is suspected of stealing the bicycle or whether he will face any charges in connection with the dispute.
Burks’ family told Milwaukee ABC affiliate WISN that he has developmental delays. “My son didn’t do anything wrong and, if I was to get justice, I would want [Walczykowsk] to pay for what he did,” Burks’ mother, Tracey, said during a news conference, according to WISN.
Walczykowski and his attorney did not immediately respond to ABC News for comment.
Outraged by the incident, community members have protested in front of Walczykowski’s house since the video appeared online, waving “Black Lives Matter” flags. Other videos show people donating bicycles and other gifts to Burks.
Walczykowski will make his first court appearance Nov. 2, according to court records.
The police department told ABC News that the Milwaukee County District Attorney’s office will handle the case from here. The district attorney’s office did not immediately respond to ABC News’ request for comment.
(NEW YORK) — The Florida medical board committee on Friday approved a prospective rule that will ban medical or surgical gender affirming care for trans youth under the age of 18. The committee’s recommendation will be passed to the board, who will make the official ruling next Friday.
The meeting, open to the public, was met with boisterous and emotionally-charged commentary on both sides of the proposed rule. Uproar ensued when the opportunity to provide public testimony was cut short, with several attendees still awaiting a chance to address the committee.
“I wasn’t allowed to speak at all during the meeting today. And not to toot my own horn, but I do feel like I was one of the qualified people to speak in there as a transgender minor,” Jacob Wiley, a trans teenager, said afterwards at an Equality Florida press conference.
Prior to the ruling, the board heard testimony from those in support and opposition. A number of adults in different stages of de-transitioning spoke in support of the rule, citing multiple mental and physical complications they experienced as a result of gender affirming care. Oppositional testimony came from transgender individuals or trans youth advocates that cited the risk to a youth’s mental health, including increased risk of suicide, if gender affirming care were to be limited or prohibited.
If approved, the rule would limit care for the treatment of gender dysphoria in Florida. Gender dysphoria is when a person experiences emotional distress because because of misalignment between their biological sex and their gender identity.
The rule would prohibit puberty blockers, hormones, cross hormone therapy and gender affirming surgery for people under the age of 18, with an exception for individuals enrolled in IRB-approved, university-centered clinical research trials. There are currently no active clinical trials in Florida related to the provision of gender affirming care, and whether the length of these trials would be adequate to allow full transitory care cannot be guaranteed.
Concerns over irreversible consequences of care including hormonal therapy and gender affirming surgery were raised in the meeting; however, for those who have not yet gone through puberty or are undergoing puberty, the usage of “blockers” are often the first step in medical transition and according to the AAP, these are known to be safe, temporary, and reversible.
The board brought in several experts to talk about the research that has been done on the effects of gender affirming care on transgender youth.
Meredithe McNamara, a pediatrician and assistant professor at the Yale School of Medicine, criticized the Florida Agency for Health Care Administration for their recommendation in banning gender affirming care in June during her presentation, saying it contradicted the general medical consensus on the importance of care for trans people. Specifically, the Florida AHCA report stated that there was not enough research to prove gender affirming care was effective or safe.
However, McNamara pointed to the list of accredited medical institutions, including the American Academy of Pediatrics and the American Academy of Child and Adolescent Psychiatry, alongside the U.S. Department of Health and Human Services, that deem gender affirming care as safe and valuable for gender-diverse people.
“This consensus is based on a solid body of evidence with more than 16 studies confirming that standard medical treatments for gender dysphoria are safe and effective,” McNamara said.
Medical research on the transgender community is limited, but studies on transgender adults suggest gender affirming care, including surgery, results in significantly lower odds of psychological distress, tobacco smoking, and suicidal ideation.
Research shows that people who have gender-affirming surgery had significantly lower odds of psychological distress, tobacco smoking, and suicidal ideation compared with trans people with no history of gender-affirming surgery.
An endocrinologist, Michael Laidlaw, supports sole treatment with mental health care in lieu of this care in combination with pharmacological and/or surgical interventions for transgender youth. He told the board that some of the effects of gender affirming care are irreversible and can cause severe complications such as infertility. However, pediatricians and endocrinologists have told ABC News that puberty blockers only present real risks after puberty and are not a risk to youth. Additionally, hormone blockers alone do not impact future fertility, according to the AAP.
Prior to this ruling, transgender Floridian residents had already been barred from using Medicaid to pay for gender-affirming care starting on August 21.
The move comes as Florida legislators, backed by Gov. Ron DeSantis, continue to crack down on LGBTQ protections and identities. Studies have found that discrimination contributes to the high rates of mental health conditions, suicidal ideations and more among LGBTQ populations.
Alicia Zellmer, MD, is a resident physician in Internal Medicine, and a member of the ABC News Medical Unit.
(NEW YORK) — Domestic violent extremists across the ideological spectrum pose a “heightened threat” to the 2022 midterms, according to a joint intelligence bulletin obtained by ABC News.
The Department of Homeland Security, the FBI, the National Counterterrorism Center and the U.S. Capitol Police also warn that following the midterms, “perceptions” of election fraud could cause violence.
“We assess that election-related perceptions of fraud and DVE reactions to divisive topics will likely drive sporadic DVE plotting of violence and broader efforts to justify violence in the lead up to and following the 2022 midterm election cycle,” the bulletin dated Friday said. “Following the 2022 midterm election, perceptions of election-related fraud and dissatisfaction with electoral outcomes likely will result in heightened threats of violence against a broad range of targets―such as ideological opponents and election workers.”
Domestic violent extremism activity leading up and during the midterms are likely to focus on “election-related infrastructure, personnel, and voters involved in the election process as attractive targets—including at publicly accessible locations like polling places, ballot drop-box locations, voter registration sites, campaign events, and political party offices.”
“Potential targets of DVE violence include candidates running for public office, elected officials, election workers, political rallies, political party representatives, racial and religious minorities, or perceived ideological opponents.”
The hope, the law enforcement agencies say, is possibly to sway voter habits, undermine perceptions of legitimate elections or prompt a particular government reaction.
“Enduring” ideological grievances and the “perceptions” of election fraud are “likely” driving the potential for DVE violence.
Certain factors that are likely to increase a DVE attack during the election cycle are people urging violent action, threats related to perceived illegitimate elections, perceptions of voter suppression and attacks on one group or party.
The federal government bulletin comes as the NYPD warned this week that poll workers could be targets and urged vigilance.
“However, hostile rhetoric and an abundance of generalized threats from likeminded [extremists] and malicious actors in chat groups, encrypted messaging channels, and other online forums may effectively create echo chambers that circulate and reinforce false narratives and establish a permissive environment for violent action against election-related infrastructure and personnel,” the NYPD bulletin dated on Wednesday and was first reported by ABC News states.
The number of domestic terrorism investigations nearly doubled from 2020 to 2021, largely due to the Jan. 6 riot at the U.S. Capitol, according to a report released Friday by the FBI and DHS.
(NEW YORK) — Flu season is making an early comeback as flu-related hospitalizations are the highest in over a decade for this point in the season, according to the Centers for Disease Control and Prevention.
There have been an estimated 880,000 cases of lab-confirmed influenza illnesses, 6,900 hospitalizations and 360 flu-related deaths nationally this season, according to data released on Friday.
Just this past week, there were 2,332 newly-admitted patients in hospitals, over a third of the total 6,900 flu hospitalizations this season already.
H3N2 is the predominant viral strain currently spreading. Previous seasons with mostly H3N2 viruses have been of higher severity, particularly for older adults and young children, the CDC says. It’s still too early to tell if this trend will continue.
The U.S. has not seen this high of a burden since the 2009 H1N1 swine flu pandemic. The national public health agency uses this as a metric to estimate a season’s severity based on laboratory-confirmed cases, doctor visits, hospitalizations and deaths.
Hospitalization rates are highest in adults over the age of 65 and young children, a level consistent with prior flu seasons for older adults, but a relatively new high for children.
This early flu season is additionally concerning with the pediatric surge of respiratory illnesses like RSV already filling up 75% of pediatric beds and surges of activity at the nation’s emergency departments.
“What worries me is the fact that we’re seeing flu [cases] increase. We have a lot of kids admitted right now with RSV…and you layer on a subset of kids who now are going to end up with flu,” said Dr. Melanie Kitagawa, medical director of the pediatric ICU at Texas Children’s Hospital.
Pediatric hospital beds in 9 states and Washington, D.C., are already above 80% capacity, with another five states over 90%, according to the Department of Health and Human Services.
Experts note that the pediatric surge is something that has been steadily growing over time with an already overtaxed healthcare system.
“This has been kind of a problem that’s been brewing for even several years. We know that hospital beds when it comes to the ability to care for children have decreased especially in our rural communities,” said Dr. Elizabeth Murray, a spokesperson for the American Academy of Pediatrics and pediatric emergency medicine physician at the Gaza Children’s Hospital in Rochester, New York.
The potential for a COVID-19 surge, which we have not seen yet, could compound the threat.
Currently, COVID-19 cases, hospitalizations and deaths have slightly increased over the past week. There are still nearly 400 deaths from the disease daily.
Experts say that vaccines and therapeutics are available for both the flu and COVID.
“Many doctors will prescribe an antiviral, such as Tamiflu. And that will reduce their likelihood of developing the complications of influenza and help keep them out of the hospital,” said Dr. William Schaffner, a professor of infectious diseases at Vanderbilt University Medical Center.
Flu vaccination coverage among children and pregnant people has decreased during the past two years. Lower coverage and little flu circulation during the pandemic may have reduced population immunity, especially in young kids, which could lead to more flu illnesses this season, and potentially more severe illness, the CDC says.
The flu vaccine is recommended for everyone 6 months and older and the COVID booster is recommended for anyone over the age of 5. The best time to get your shots is before Halloween – or as soon as possible, health officials say.
(WASHINGTON) — A federal jury Friday returned a guilty verdict on one count of obstruction of justice against a former Capitol Police officer charged with aiding a rioter who participated in the Jan.6 attack on the U.S. Capitol.
Michael Riley, a 26-year veteran of the Capitol Police, was charged last year after he allegedly encouraged a participant in the attack to delete social media posts that showed the person joining the pro-Trump mob storming the Capitol.
Investigators said Riley reached out to the rioter, Jacob Hiles, over Facebook on Jan. 7, and encouraged him to delete posts that showed him inside the Capitol the day before.
“I’m a capitol police officer who agrees with your political stance,” Riley’s message said. “Take down the part about being in the building, they are currently investigating and everyone who was in the building is going to be charged. Just looking out!”
Riley was found guilty on one count of obstruction related to his attempts to cover up his messages with Hiles after news reports surfaced of Hiles’ arrest.
The jury failed to reach a verdict on a second count related to Riley’s communication with Hiles on Jan. 7.
He faces a maximum sentence of 20 years in prison.
(NEW YORK) — A New York City law will require companies with at least four employees to post salary ranges in job listings in an effort to increase pay transparency starting Tuesday.
Employers advertising jobs in the city who have at least one employee currently located there must include a “good faith salary range,” according to the New York City Commission on Human Rights, which is enforcing the law. Employers must include a minimum and maximum salary.
There is no fine for a first-time offense, though companies and employment agencies found to violate the law could face civil penalties of up to $250,000 if not corrected within 30 days of receiving notice of the violation.
Temporary staffing agencies are exempt from the law because they already disclose this information under the New York State Wage Theft Prevention Act.
Starting November 1, 2022, the NYC Human Rights Law requires employers to include a good faith pay range in all job postings – another step toward pay equity for New Yorkers.
The new law, which passed the New York City Council late last year, was set to go into effect in May, though the start date was delayed following criticism from business groups and companies who said they were not consulted about the legislation beforehand and that the language of the law was vague.
The law was also amended to waive a penalty for a first-time violation and clarify that it would not apply to jobs that cannot or will not be performed in New York City, among other changes.
The city follows other jurisdictions that have passed laws to increase pay transparency. Among them, Colorado, Connecticut and Nevada started mandating salary ranges on job postings last year, and similar salary requirement laws will go into effect in California, Rhode Island and Washington state in 2023.
Several companies have already started complying with the New York City law, including Amazon, American Express, Citigroup and Zillow.
Pay transparency advocates who were involved in the new law called it a “game changer for the city’s workers,” in particular those who face wage disparities, including Black and Latina women.
“With salary ranges out in the open, employers must think critically about how they set pay at the front end of their process before they insert unconscious biases. At the same time, women and people of color have more leverage to advocate for themselves and more information to make better decisions about jobs and industries to pursue, helping to combat occupational segregation,” Beverly Cooper Neufeld, president of PowHer New York, and Seher Khawaja, senior attorney for economic empowerment at Legal Momentum, wrote in an opinion piece published in the New York Daily News on Thursday.
The chambers of commerce in each borough and the Partnership for New York City, an organization that represents the city’s business leadership, had unsuccessfully pushed for the law to exempt industries with severe labor shortages, as well as only require minimum salary postings for highly compensated jobs.
“New York City is a highly competitive labor market, where most employers are committed to gender and racial pay parity,” they wrote in a joint letter in April, arguing that the inclusion of a salary range is “not necessarily the most appropriate tool for the New York labor market.”
(NEW YORK) — The enduring debate about whether UFOs are caused by extraterrestrial beings will once again be front and center next week as U.S. intelligence agencies will provide Congress with an updated report on UFO incidents over the past year.
Meanwhile, it appears that other more recent incidents are being attributed to weather balloons, other airborne clutter, and foreign surveillance, according to a U.S. official.
Director of National Intelligence Avril Haines has until Monday to provide Congress with its first annual unclassified update on Unexplained Aerial Phenomena, the new term for UFOs, that includes all new UAP incidents over the past year and any previously unreported incidents.
The report was required by the 2022 Defense Bill that mandated that the DNI provide an annual declassified update and a classified annex by Oct. 31 of every year through 2026.
The update follows the DNI’s first-ever report released in June 2022 that listed 144 UAP incidents, only one of which could be explained. At a congressional hearing earlier this year Pentagon officials said that the number of UAP incidents under investigation had risen to more than 400.
While it is unclear how many new reports will be included in the upcoming update, a U.S. official told ABC News that the most recent UAP incidents can be explained as a mix of weather balloons, airborne clutter, and foreign surveillance. But the official stressed that other incidents still cannot be explained.
The official added that it cannot be determined who is behind the foreign surveillance but the most likely candidates would be China and Russia since they have the most interest in monitoring the U.S. military.
“There is no single explanation that addresses the majority of UAP reports,” Sue Gough, a Defense Department spokesperson, said in a statement. “We are collecting as much data as we can, following the data where it leads, and will share our findings whenever possible. We will not rush to conclusions in our analysis”
“In many cases, observed phenomena are classified as ‘unidentified’ simply because sensors were not able to collect enough information to make a positive attribution,” said Gough. “We are working to mitigate these shortfalls for the future and to ensure we have sufficient data for our analysis.”
Analysis of more recent UAP incidents is helped by the amount of information and data available as compared to older incidents.
The U.S. official told ABC News that two of the three videos declassified by the Pentagon in 2020 and recorded from the sensors aboard fighter aircraft now have plausible explanations.
In the “Go Fast” video Navy pilots are heard exclaiming how fast an object is moving above the water. According to the U.S. official, the leading assessment from experts is that what the pilots saw on their video screens was actually an optical illusion of an object that was not moving very fast at all. The illusion was created by the angle and height at which the object was viewed by the sensors as it moved above the water.
The “gimbal” video taken in 2015 by a jet fighter crew that shows an object rotating in the clouds. The official says it’s now believed that the object’s strange movements and observed spinning was caused by the sensor aboard the plane that captured that image.
There is no assessment for what is being seen in the third video commonly referred to as the “Flir” video that was taken in 2004.
The general public’s appetite for UFOs is sure to continue, and just last week NASA announced the 16 people who would serve on a new panel tasked with studying UAPs. Their report, based on unclassified information, is slated to be released in mid-2023.
(WASHINGTON) — In her 2003 opinion upholding affirmative action in higher education, former Supreme Court Justice Sandra Day O’Connor famously predicted that in 25 years “the use of racial preferences will no longer be necessary” in America.
Next week, years after that milestone and with lingering gaps in minority college acceptance and achievement, a new group of justices will decide whether to overrule O’Connor — and more than 40 years of precedent — to declare that admissions policies must be race-blind.
“That would be a sea change in American law with huge implications across society,” said Jeffrey Rosen, president and CEO of the National Constitution Center.
In a pair of oral arguments Monday, the justices will take up race-conscious admissions policies at Harvard University, the nation’s oldest private college, and the University of North Carolina, the nation’s oldest public university.
It is the first test for affirmative action before the current court with its six-justice conservative majority and three justices of color, including the first-ever Black woman justice, Ketanji Brown Jackson.
“I think we have to be realistic in that this is a very conservative Supreme Court,” said David Lewis, a Harvard University junior and member of the school’s Black Students Association. “But this issue has been tried over and over again at the court, and the precedent has still been upheld.”
Students for Fair Admissions, a conservative and multiracial coalition of 22,000 students and parents, sued the schools in 2014 alleging intentional discrimination toward Asian American applicants in violation of the Civil Rights Act of 1964 and Equal Protection Clause of the 14th Amendment.
The group, led by longtime affirmative action critic Edward Blum, is asking the Supreme Court to outlaw consideration of race in admission to public and private colleges and universities nationwide.
“There are better ways of achieving racial diversity than treating people differently by race,” Blum, who is white, told ABC News in an interview.
He argues race-neutral approaches, like a focus on socio-economic background, could meet the same objectives.
The high court has previously resisted those arguments.
In a landmark 1978 decision, a five-justice majority said that race was a permissible factor in admissions so long as a school did not use a quota system. Twenty-five years later, Justice O’Connor reaffirmed that principle in a 5-4 decision that said a school’s use of race must be narrowly-tailored. And in 2016, a similarly divided court again upheld the use of race at the University of Texas.
“Every justice on the Supreme Court and the justices that have served over the last 30 or 40 years have voted to overturn precedent,” Blum said. “It is far overdue for the Supreme Court to revisit the use of race and ethnicity in higher education, and we hope that the court will rein in that practice.”
Lower federal courts have sided with Harvard and UNC, ruling that neither broke from the Supreme Court’s long-standing precedent, which permits the limited use of race as one factor in a holistic review of individual applicants’ qualifications for admission.
“An applicant’s race is only one among dozens of factors,” UNC wrote in its brief to the high court, as admissions officers bring “together a class that is diverse along numerous dimensions — including geography, military status, and socioeconomic background.”
Harvard University argues separately that the Constitution “does not require us to disregard the commonsense reality that race is one among many things that shape life experiences in meaningful ways.”
“Nothing in the text or history of the 14th Amendment suggests that universities must uniquely exclude race from the multitude of factors considered in assembling a class of students best able to learn from each other,” the school wrote in its brief.
The 14th Amendment was drafted and ratified after the Civil War with the express purpose of extending equal rights of citizenship to former slaves and other Black Americans.
The lower courts also affirmed the schools’ “compelling interest” in pursuing educational benefits from a diverse student body and agreed that race-neutral alternatives may fall short. Blum and Students for Fair Admissions dispute those conclusions.
“In UNC’s academic judgment, diversity is central to the education it aims to provide,” the school told the court. “Ideally, UNC could achieve this diversity without consideration of race … [but it] remains necessary.”
A varied approach to race in university admissions
Since 1996, 10 states have banned the use of race in public university admissions. But roughly one-in-five U.S. public universities still consider race during the admissions process, according to a report by Ballotpedia.
“There’s something very particular about growing up in this country dealing with the ways that you were underestimated, the educational opportunities you’re denied,” said Fordham University President Tania Tetlow, the first woman to lead the Jesuit institution in its 181-year history.
“When a student comes to us having overcome all of that and succeeding,” Tetlow said, “we’re even more eager for them to be here. And the idea that we’re supposed to ignore that I just don’t understand.”
Fordham has been among the biggest defenders of affirmative action, seeing the policy as much a moral imperative as a critical tool for building a diverse campus. The undergraduate student body is 64% white, according to the school.
But not all institutions see race-conscious admissions as an imperative.
Baruch College, part of the City University of New York located in lower Manhattan, is one of the most racially diverse campuses in the country, with more than 70% students of color. The school does not consider race in admissions.
“It’s a tool to achieve the kind of campus diversity that we’re talking about, but it’s not the only tool,” said Baruch College president David Wu, the first Asian American to lead a school within the City University of New York.
Wu argues that a more effective approach is targeted recruitment in underserved communities much earlier in high school.
“By the time you get into the admission policy of diversifying the student body, that’s a little bit too late,” Wu said. “Before all that happens, you need to put in the effort to build that pipeline.”
A key contrast between schools like Fordham and Baruch is cost. The private university charges roughly $56,000 a year in tuition; the public school is around $7,000 a year.
“Race has to be part of the conversation. I also think socioeconomic status is really important, and we need to find a way to talk about both of them in a nuanced way,” said Jake Moreno Coplon, CEO of America Needs You, a nonprofit that helps first-generation college students get accepted to college and navigate the transition.
“It’s hard to know what the impact of the erasure of affirmative action will do to the higher education landscape,” Coplon added.
A 2020 study of public universities that have banned affirmative action found long-term decline in black, Latino and Native American representation on those campuses — on average more than 15 percentage points lower than among state high school graduates in just the first year a ban was implemented.
At the University of California-Berkeley, which eliminated race as a factor in its admissions 1996, the admissions rate for Black students dropped from 50% to 20% in the first year and from 45% to 21% for Latinx students, according to the ACLU.
Public supports diversity but cool to affirmative action
While most Americans say they support promotion of racial diversity on college and university campuses, strong majorities also oppose the use of race as a factor in admissions decisions.
More than 60% of Americans said they would support a ban on race-based affirmative action, according to a Washington Post-Schar School poll released this month.
The views appear to be shared by majorities across racial and political groups. A Pew Research Center study earlier this year found 68% of Hispanics, 63% of Asian Americans and 59% of African Americans oppose the use of race or ethnicity in college admissions.
“There’s just talent everywhere, and if they look in the right places, they’ll find it,” said German Ortega, a Fordham University freshman and son of a Mexican immigrant from Corona, Queens, who grapples with the pros and cons of affirmative action.
Ortega is attending Fordham on a scholarship specifically earmarked for Hispanic students.
“It’s sad that I got a full ride because I’m Hispanic,” Ortega said. “It’s good for me, but you know, it says a lot.”
Lewis, the Harvard junior, said minority students should never be ashamed about consideration of their race as a factor in admissions.
“Our race is not just liek a color or like a checkbox on our college applications,” Lewis said. “It tells us a whole history about what opportunities you had access to. We know how powerful systemic racism is in this country. To overcome that, and to be part of this small group of people being considered at these institutions shows that you do have incredible merit.”
Forty years of precedent on race in admissions
Affirmative Action was developed in the 1960s and 70s in part to ensure opportunity after decades of inequality and racism kept students of color on the margins of higher education.
For Baruch College in New York City, enrolling a diverse mix of students has not been difficult, but at Fordham University, Harvard, UNC and dozens of other institutions across the country, it remains a challenge.
“If the court were to follow settled precedent, our side would prevail, and we are asking the court to hold the line,” said Yasmin Cader, ACLU deputy legal director, which is backing the schools. “We are not asking or seeking advancement, just seeking that they don’t overturn efforts to achieve equality.”
Critics of affirmative action say the precedent was wrongly decided from the start and is now ripe for correction.
“A lot of the devil is going to be in the details, the scope of the rule,” said Roman Martinez, a former clerk to Chief Justice John Roberts and then-judge Brett Kavanaugh and veteran Supreme Court litigator.
If precedent is overturned, Martinez said, a key question will be what options universities will have to pursue their goals.
“Will they be able to use approaches that do not explicitly take race into account but are adopted, in part, to promote diversity? There’s a lot of play in the joints,” he said.
A key figure in it all could be Justice Jackson. She recused herself from the Harvard case because of a past role on the University’s board of overseers but will fully participate in the UNC case. The court’s ultimate decision is expected to take her views and vote into account.
“I think it’s important to hear from the first black female justice on the Supreme Court of the U.S. how she feels about race consciousness in American life,” said Devon Westhill, president and general counsel at the Center for Equal Opportunity, a group that opposes race-conscious admissions. “We don’t have a good record of what her thoughts are on that.”
