ACLU Statement on Supreme Court Decision in Fisher v. University of Texas

While the NLRB’s reopening is encouraging, workers must rely on each other to fulfill the promise of collective action.

DENVER – The American Civil Liberties Union, Public Justice, Eisenberg & Baum, LLP, and ACLU of Colorado filed a complaint with the Colorado Civil Rights Division and the Equal Employment Opportunity Commission (EEOC) against financial software company Intuit, and HireVue, a vendor of human resources assessment software using artificial intelligence (AI), on behalf of D.K., an Indigenous and Deaf woman, who was denied a promotion on the basis of her disability and her race. The complaint alleges that the companies violated the Colorado Anti-Discrimination Act (CADA), the Americans with Disabilities Act (ADA), and Title VII of the Civil Rights Act by using biased AI technology in hiring, resulting in systemic discrimination. D.K. is an Indigenous and Deaf woman, who is currently pursuing a master's degree in data science. She communicates using American Sign Language (ASL) and speaks English with a deaf accent. Since 2019, D.K. has held seasonal roles for Intuit, receiving positive supervisor feedback and bonuses every year. In the spring of 2024, D.K. was encouraged by her supervisor to apply for a seasonal manager position at Intuit, but was forced to use HireVue’s video interview platform, which features automated speech recognition systems to generate transcripts of applicants’ spoken responses from video interviews. These types of systems are known to perform worse for non-white and deaf or hard of hearing speakers who may have different speech patterns, word choices, and accents. D.K. requested and did not receive an accommodation. She was later rejected for the position and received feedback telling her to work on “effective communication,” to provide “concise and direct answers,” to adapt her “communication style to different audiences,” and to “practice active listening.” “My experience reflects the systemic discrimination built into AI-driven hiring tools that continue to exclude and disadvantage marginalized communities. Deaf individuals, Indigenous professionals, and countless others should not have to fight for fair treatment in the workplace, especially in an era where technology is shaping hiring decisions,” said D.K. “Companies like Intuit and HireVue must be held accountable for deploying flawed and exclusionary technology that creates artificial barriers for qualified candidates.” “Research shows that the type of technology underlying HireVue’s system is often unable to accurately recognize and analyze the speech of a deaf applicant, resulting in lower scores. The technology also struggles with non-white applicants, including Indigenous English speakers, whose speech patterns may differ from white applicants,” said Vedan Anthony-North, Marvin M. Karpatkin Fellow with the ACLU's Racial Justice Program. “Applicants should not lose critical job opportunities because of employment assessments that screen them out based on who they are and not whether they can do the job.” Intuit was aware of the limitations of automated speech recognition technology like the kind used by HireVue and its adverse impact on deaf employees. While D.K. had received high scores on performance measures during her time working at Intuit, she received artificially low scores on metrics stemming from automated speech recognition systems. However, rather than fix the problem, Intuit reassigned D.K. so that she no longer answered customer phone calls and instead only communicated with customers through a chat application, even though she had received positive feedback from customers who spoke to her on the phone. “Employers have a legal obligation to thoroughly vet any assessments they use to ensure that they are accessible and comply with anti-discrimination laws,” said Shelby Leighton, senior attorney with Public Justice. “Intuit knew HireVue’s technology was flawed and unfair to deaf applicants like D.K., which is a clear violation of discrimination laws.” “Companies cannot hide behind artificial intelligence to avoid responsibility for discrimination. Eisenberg & Baum is dedicated to challenging technologies that systematically marginalize Deaf, disabled, and Indigenous individuals. We will continue fighting to ensure AI-based hiring tools meet the highest standards of fairness and inclusivity,” said Andrew Rozynski and Sheryl Eisenberg Michalowski, co-directors of the Eisenberg & Baum Law Center for Deaf and Hard of Hearing, in a joint statement. “It is no surprise that artificial intelligence can deepen racial inequities and inequities for people with disabilities based on the way those programs are developed. The faulty technology at issue here is no exception,” said Tim Macdonald, ACLU of Colorado legal director. “As these tools and practices become more widespread, those that commission them must take great care to ensure that they treat all people fairly and do not exacerbate systemic biases in employment.” “Real change is necessary. Companies must stop using AI hiring tools that discriminate against disabled and non-white applicants, implement accessible and fair hiring practices, and ensure that all candidates are evaluated based on their skills, experience, and potential, not the biases baked into technology,” D.K. added. “Businesses are on notice that they are responsible for the discriminatory impact of hiring tools. It’s time for action, accountability, and justice.” A copy of the complaint can be found here.

The Trump administration just issued an executive order to begin dismantling the Education Department, putting millions of students’ education and civil rights at risk.

CONCORD, N.H. – Today, the American Civil Liberties Union, the ACLU of New Hampshire, the ACLU of Massachusetts, the National Education Association (NEA), and the National Education Association–New Hampshire, filed a lawsuit in U.S. District Court in New Hampshire, against the U.S. Department of Education (ED). The lawsuit challenges the Department of Education’s Feb. 14, 2025, Dear Colleague Letter, which threatens federal funding cuts for education institutions nationwide for engaging in diversity, equity, and inclusion (DEI) efforts; and a 14-day window before “appropriate measures” would be taken. The lawsuit argues that ED has overstepped its legal authority by: Imposing unfounded and vague legal restrictions that violate due process and the First Amendment; Limiting academic freedom; and Impermissibly dictating what educators can teach and what students are allowed to learn. “Across the country educators do everything in their power to support every student — no matter where they live, how much their family earns, or the color of their skin — ensuring each feels safe, seen, and is prepared for the future. Now, the Trump administration is threatening to punish students, parents and educators in public schools for doing just that: fostering inclusive classrooms where diversity is valued, history is taught honestly, and every child can grow into their full brilliance,” said Becky Pringle, president of the National Education Association. “We’re urging the court to block the Department of Education from enforcing this harmful and vague directive and protect students from politically motivated attacks that stifle speech and erase critical lessons. Teaching should be guided by what’s best for students, not by threat of illegal restrictions and punishment.” The Department of Education claims, without legal or factual basis, that a broad range of DEI-related education policies and practices are unlawful. The lawsuit contends that ED has no authority to dictate curriculum or educational programs, and that federal law explicitly protects education institutions’ ability to shape their own curriculum, including programs that reflect and celebrate diversity. “For over a century, the ACLU has fought unlawful efforts to muzzle free speech by over-zealous government officials. It’s clear that the Trump administration is trying to shut down speech it doesn’t like – especially when it deals with race in our educational institutions. The Dear Colleague Letter is a brazen attempt to intimidate schools into abandoning lawful efforts to create inclusive learning environments,” said Anthony D. Romero, ACLU executive director. “This is a blatant attack on free speech and academic freedom, aiming to deprive students of a full and honest education. We will not stand by as the Department of Education uses fear and coercion to force schools and educators into self-censorship by threatening to strip federal funding.” Educators across the country are already feeling the chilling effects of the ED’s overreach. By unlawfully restricting speech and academic freedom, and opening educators to arbitrary and discriminatory enforcement, ED seeks to violate fundamental constitutional and legal protections. In response, the lawsuit challenges the letter on four key legal grounds: Violation of the First Amendment – The letter unconstitutionally restricts speech by prohibiting educators from teaching about race, diversity, equity, and inclusion. It also broadly bans DEI programs, including student groups and faculty associations, coercing educational institutions into self-censorship through the threat of losing federal funding. In higher education, the government cannot dictate what professors teach, and in K-12 schools, Congress has prohibited the federal government from dictating curriculum. Violation of the Fifth Amendment – The letter fails to define key terms and practices, leaving educators uncertain about what is prohibited and vulnerable to arbitrary enforcement. By failing to establish clear standards, ED creates a chilling effect, forcing teachers to avoid important discussions in history, English literature, and more, or to risk arbitrary and discriminatory enforcement that threatens their professions. Violation of the Administrative Procedure Act (APA) – The letter imposes new legal obligations without the required process and justification, making it arbitrary, capricious, and legally invalid. ED oversteps its authority and ignores decades of legal precedent and its own prior guidance on civil rights law, failing to explain why it is now reversing course on long-standing principles of equity and inclusion. Misrepresentation of Supreme Court Precedent – The letter misstates and overstates the Supreme Court’s 2023 ruling in Students for Fair Admissions v. Harvard. The decision only addressed race as a formal admissions factor in higher education — it did not ban curriculum, student groups, DEI programming, or race-neutral diversity initiatives. “Like New Hampshire’s classroom censorship law that we successfully challenged in court, this unconstitutionally vague letter is an attack on educators who are simply doing their job,” said Gilles Bissonnette, legal director of the ACLU of New Hampshire. “Teachers are already reporting being afraid to teach for fear of having their teaching deemed unlawful, and that deprives Granite State students of the complete education that they deserve.” The complaint can be found online here.