Congresswoman Tenney, Members of NY Delegation Urge DOJ to End NY Race-Based COVID-19 Policies

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Washington, DC – Congresswoman Claudia Tenney (NY-22) last Friday joined a letter led by Republican Conference Chair Congresswoman Elise Stefanik to Assistant Attorney General for Civil Rights, Kristen Clarke. The letter urged the Department of Justice to immediately file suit to prevent New York State’s discriminatory race-based policy for distributing COVID-19 treatments from moving forward. In a December 27, 2021 directive, the Department of Health stated that “non-white race or Hispanic/Latino ethnicity should be considered a risk factor” for COVID-19 and instructed healthcare providers to take race into account when providing treatments. This is a clear violation of the Equal Protection Clause of the Fourteenth Amendment to the US Constitution, of Title VI of the Civil Rights Act of 1964, and of established case law. “New York’s race-based criterion for distributing life-saving COVID-19 treatments is not only a clear violation of the law, but also deeply immoral. An individual’s ability to access medical treatment should never depend on the color of their skin. That’s why I am joining my colleagues and calling on the Department of Justice to file suit immediately to block this discriminatory policy,” said Tenney. “Among the many critical civil rights laws that your office enforces is Title VI of the Civil Rights Act of 1964. Upholding this law makes it your duty to stop racial discrimination in any program that receives federal funding, which includes New York’s COVID-19 treatment programs. Since the start of the COVID-19 pandemic, New York State has received billions of federal dollars for those programs,” the lawmakers wrote. The letter was also signed by New York Reps. Zeldin, Jacobs, Garbarino, and Reed. Full text below Dear Assistant Attorney General Clarke: I write today with concerns that New York State, under the leadership of Governor Kathy Hochul, is rationing limited COVID-19 treatments on the basis of race based on guidelines from the Food and Drug Administration (FDA). On December 27, 2021, the New York State Department of Health issued a notice of the criteria for individuals to receive oral antiviral treatment, which stipulated that “non-white race or Hispanic/Latino ethnicity should be considered a risk factor” due to systemic health and social inequities which have “contributed to an increased risk of severe illness and death fromCOVID-19.” This is a clear violation of the law. Among the many critical civil rights laws that your office enforces is Title VI of the Civil Rights Act of 1964. Upholding this law makes it your duty to stop racial discrimination in any program that receives federal funding, which includes New York’s COVID-19 treatment programs. Since the start of COVID-19 pandemic, New York State has received billions of federal dollars for those programs. Furthermore, racial discrimination is generally forbidden by the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. New York State claims that race is a proxy for health because certain minorities have faced “systemic health” inequalities without justifying how an individual’s race places them at higher risk of severe illness or death as a result of contracting COVID-19. As the Supreme Court explained in Johnson v. California (2005), using race as a proxy for something else is presumptively unconstitutional. Health needs no proxy. Comorbidities and age are far more closely correlated with severe COVID-19 symptoms. The Supreme Court said in Bartlett v. Strickland (2009) that race-based policies may only be used as a “last resort,” after race-neutral remedies have failed. New York State has not tried the race-neutral remedy of prioritizing the old and the sick for limited COVID-19 treatments. The New York State Department of Health leapt straight to race-based rationing, which has no viable medical or scientific justification and violates the civil rights statute that your division is funded to enforce. When President Biden nominated you to be Assistant Attorney General for the Civil Rights Division of the Department of Justice (DOJ), you promised “to build a world of equal opportunity for all.” You have an obligation to abide by that promise and a sworn duty and obligation to use the law enforcement authority and power of the Civil Rights Division to fight racial discrimination. Despite this, you and your division have remained silent even as New York State discriminates on the basis of race in rationing scarce lifesaving COVID-19 treatments. This policy is not only wrong and unlawful, but it may cost lives by denying critical treatment options to those who need them most. Therefore, I urge DOJ to file suit immediately to prevent this discriminatory policy and provide a briefing to the New York State Congressional Delegation to explain your inaction on this blatant racial discrimination. Thank you for your prompt attention to this matter. Sincerely,

January 24, 2022