Sunday, April 5, 2020
The COVID-19 Virus Knows No Race, No Class, No Income, or so We Think - by Professor Chris Ogolla, Barry University Law School
In 2009, Sonja Hutchins et al, in an article in the American Journal of Public Health observed that “racial/ethnic minority populations experience worse health outcomes than do other groups during and after disasters.”  They may well have been speaking of the current COVID-19 pandemic. Even though the general belief is that a virus knows no race, no class and no income, the differences between the impacts of the pandemic on the wealthy and the poor cannot be understated. Here in the United States, that means racial differences. This commentary discusses a few of those differences and asserts that even though clinically, the COVID-19 virus does not discriminate between races, ethnicities and socioeconomic status, we respond to it according to our socioeconomic status.
Working From Home/ Telecommuting
The majority of people who can afford to work from home tend to be White, college educated, middle class. According to Telework Research Network, “[t]he typical telecommuter is a 49-year-old, college educated, salaried, non-union employee in a management or professional role, earning $58,000 a year at a company with more than 100 employees.”  Since many minorities tend to work on low-paying jobs: for example Professor Ruqaiijah Yearby has noted that that “even if minority women are hired, they are disproportionately employed in low-paying occupations, such as childcare, nursing, cleaning, waitressing, and teaching.”  It is likely that very few of them work in positions that offer telecommuting as an option. Thus those who were telecommuting before the COVID-19 pandemic are less impacted by the social distancing measures mandated today than those who have lost their jobs and cannot now telecommute. A short anecdote will illustrate this. Before the Governor of Florida instituted a stay-at-home order, Orange County, encompassing the city of Orlando had already instituted a shelter-in-place order for all its residents. A woman posted a message on Facebook asking where she could go and buy masks because she wanted to be out and about. One reader responded irately, tell her to stay at home and not be out and about. Another responded by pointing out that people still have to go out and buy food. The irate reader then wrote that instead of going out to buy groceries, people should have them delivered. Of course, the irate reader did not think about people on SNAP or WIC, who do not have money to pay for delivery of groceries, or those who live around food deserts, where there are few or no grocery stores. These scenes are playing out all over the country. Are there two Americas here?
Impact on Education
Many schools, colleges and universities (including law schools) have opted for online teaching for the remainder of the Spring 2020 semester. This has created a lot of problems for poor or minority students. Schools in poor neighborhoods tend to have poor IT infrastructures, lack IT professionals and broadband access than schools in well-to-do neighborhoods. A recent article in POLITICO notes that “[n]early 12 million children live in homes lacking a broadband connection, and white residents are more likely to have broadband in their homes than people of color, according to a 2017 report from the Democratic staff of the Joint Economic Committee.”  This will certainly lead to the dreaded home-work gap in “poor urban areas and rural districts where families don’t have a home laptop or high-speed internet connections.” 
With regards to law schools, many of our students are experiencing different challenges at this time—from lack of daycare for their kids, taking care of elderly parents, dealing with siblings at home, lack of library resources for legal research to having no computers at home (although this might sound strange in the modern day law school, not every law-student tots along a laptop or a smart device). In fact, many law schools still charge computer fees in their tuition, ostensibly for the law students who use the school’s computers for printing and or legal research. I concede that remote learning has been a boon to those law students who had to commute for long distances to attend classes, or for the flex/ part-time students who had to rush from work to class. Additionally, some of my students have expressed a preference for online instruction compared to face-to-face learning. On balance though, many law school classes and activities (think legal writing and research, clinics, advocacy, OCI, etc.) do not lend themselves well to remote platforms.
Access to Healthcare
Perhaps the greatest impact of COVID-19 will be felt in the unequal access to the healthcare system. As many people lose their jobs, so too do they lose their health insurance. And without health insurance, there is little or no access to healthcare. There has been debate recently on whether the Trump Administration should reopen or extend enrollment in the healthcare exchange markets during the pandemic. The President categorically ruled that out.  He did announce that the federal government will cover uninsured Americans for COVID-19 treatment.  More egregious is the unequal access to testing. When the pandemic first struck the United States, professional athletes and celebrities seemed to have access to COVID-19 tests that many Americans did not. Asked why the rich and well connected were getting expedited testing, President Trump said he did not agree with it, “but perhaps that’s the story of life.” 
What does these mean for those significantly impacted by COVID-19? Put differently, what does this mean for minorities disproportionately impacted by COVID-19? Will there be lawsuits soon against employers for exposing their employees to COVID-19 (think healthcare workers, first responders, and grocery store workers, to mention but a few). What about the businesses that end up closing because of the statewide shelter in place edicts? What do you if the government forces you to close your business through no fault of your own? What about motorists from out of state who are prevented from traveling to other states (think Florida and Rhode Island barring New Yorkers)? Are they being denied a right to travel without due process? What if one is forced to self-quarantine for 14 days after travel? And if one violates self-quarantine order, what are the legal ramifications?
The consensus among the courts is that quarantine and isolation of individuals during a public health emergency serves the public good and does not violate an individual’s constitutional rights.  Needless to say, it is an uphill task to win a case against the State when challenging quarantine and isolation orders. For example, in Joseph Lewis, Jr. Et al. v. Burl Cain, et al.,  plaintiffs, sued the defendants alleging that the medical care provided at Louisiana State Penitentiary Prison violates the Eighth Amendment prohibition of cruel and unusual punishment. After a trial but before the court issued its order, Plaintiffs sought to reopen discovery in the matter given the imminent and dangerous threat that the coronavirus (“COVID-19”) posed to Plaintiffs and Class members. In denying the motion, the Court found that the discovery and relief Plaintiffs sought was beyond the scope of the claims asserted and tried before the Court. Additionally, the Court found that Plaintiffs’ motion was based primarily on speculation and conjecture, citing to news reports; and to what the DOC might do with respect to transferring inmates. 
For minorities, the COVID-19 pandemic is tantamount to a two-headed snake. Not only do they have to deal with the medical impacts of the disease if exposed, but have to deal with the economic impacts of social distancing, even when not clinically exposed. Perhaps the COVID-19 virus does know race, class and income.
 Sonja S. Hutchins, Kevin Fiscella, Robert S. Levine, et al., Protection of Racial/Ethnic Minority Populations During an Influenza Pandemic, 99 Am. J. Public Health. S 261-270 (October 2009).
 Kate Lister & Tom Harnish, The State of Telework In The US, How Individuals, Business and Government Benefit, 4 (June 2011), https://www.shrm.org/ResourcesAndTools/hr-topics/technology/Documents/Telework-Trends-US.pdf
 Ruqaiijah Yearby, The Impacts of Structural Racism in Employment and Wages on Minority Women’s Health, ABA Human Rights Magazine, Vol 43, No 3,(2018) https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/the-state-of-healthcare-in-the-united-states/minority-womens-health/
 Nicole Gaudiano Coronavirus quarantines could rob poor, rural students of access to education, POLITOCO.COM 03/10/2020, https://www.politico.com/news/2020/03/10/coronavirus-quarantines-rural-students-125048
 Susannah Luthi, Trump rejects Obamacare special enrollment period amid pandemic, POLITICO.COM (03/31/2020) https://www.politico.com/news/2020/03/31/trump-obamacare-coronavirus-157788
 Ebony Bowden, Government will pay for uninsured Americans’ coronavirus treatment: Trump. NY. Post (April 3, 2020) https://nypost.com/2020/04/03/us-government-will-cover-uninsured-americans-covid-19-treatment/
 Jannelle Griffith, Coronavirus: Trump Says it may be the story of life that the well-connected get testing first. NBC News.Com, (March 18, 2020), https://www.nbcnews.com/news/us-news/coronavirus-nyc-mayor-slams-nets-over-testing-trump-weighs-n1162971
 Christopher Ogolla, Non-Criminal Habeas Corpus For Qurantine and Isolation Detainees: Serving The Private Right Or Violating Public Policy, 14 DePaul J. Health Care L. 135, 136 (2011).
 2020 WL 1614424 (M.D. LA. Apr 2, 2020) denying Plaintiffs’ Emergency Motion to Re-open Discovery Regarding COVID-19. In that case,
 See Hickox v. Christie, 205 F.Supp.3d 579 (D. N.J. 2016) (dismissing the case of a nurse who brought civil rights action against Governor Chris Christie and State Public Health officials, alleging that her 80-hour quarantine upon returning to the United States after caring for Ebola patients in Africa violated her rights under the Fourth and Fourteenth Amendments.). The Court dismissed on the ground that the nurse's quarantine did not violate clearly established law regarding quarantine and related public health measures. See also Liberian Community Association of Connecticut v. Malloy, 2017 WL 4897048 ( D. C.T. 2017) dismissing an action seeking damages and injunctive relief in connection with the allegedly unlawful quarantine of individuals returning to Connecticut after traveling to Ebola-affected countries in West Africa, on the grounds that Plaintiffs lacked standing.