By Madison Cone

After six years of wild popularity and influence, TikTok’s time in the limelight may be coming to an end as the prominent app faces a potential ban in the United States.[1]  In 2018, the video-sharing platform began its rapid rise to fame as a new and improved version of the formerly popular Music.ly app.[2]  By 2020, TikTok surpassed social media giants like Instagram and Facebook and became the most downloaded app of the year.[3]  In large part, this was due to its unique ability to connect people, share information, and provide comedic relief during a historic health crisis.[4]  Now, the fate of the platform is uncertain after the U.S. House of Representatives voted to approve a bill that requires ByteDance Ltd., TikTok’s parent company, to divest the app within six months or be banned from all U.S. devices.[5]

The primary justification for the proposed legislation is that TikTok’s prevalence in the United States poses a substantial risk to national security.[6]  While anticipating and providing protection against potential national security threats is an essential government function, so is upholding Americans’ constitutional right to free speech. The tension between these two objectives has led to considerable debate among politicians, industry experts, and the general public.[7]

A. The Protecting Americans from Foreign Adversary Controlled Applications Act

At least some of the public panic surrounding the Protecting Americans from Foreign Adversary Controlled Applications Act can be attributed to frequent mischaracterization of the Act as a TikTok ban rather than a potential TikTok ban.[8]  While there is no denying that ByteDance will be caught between a rock and a hard place if the bill becomes a law, the Act does provide an exemption for “a foreign adversary controlled application with respect to which a qualified divestiture is executed”.[9]  This language indicates that if ByteDance opts to sell the application to a permissible third party, the Act will no longer apply and TikTok can remain active in the United States.

In discussing the requirements of the Act and its intended effects, it is worth noting that the bill was approved by an overwhelming majority of the House.[10]  To achieve a vote of 352-65 [11] means that members with otherwise incompatible political views were able to agree on the importance of strengthening national security as it relates to TikTok and its use throughout the United States. Such strong bipartisan support is rare in today’s political climate[12] and perhaps telling of the need for more robust data protection, particularly when foreign entities are involved.

B. National Security Justifications

The government’s purported concerns about data usage and national security may be dissatisfying to some, but they are not without merit. As a technology company based in China, ByteDance is subject to various cybersecurity laws that enable the Chinese government to compel data access and require sensitive user information to be stored and processed in China.[13]  American lawmakers increasingly fear the misuse of user data because of that broad government authority and the excessive data collection allowed for by TikTok’s privacy agreement.[14]  More specifically, the U.S. government worries that China may leverage the data collected by TikTok to conduct influence operations and negatively shape American public opinion.[15]  Unsurprisingly, TikTok denies all allegations that it puts sensitive user data at risk.[16]

Several other countries, including India, Australia, and Canada, have taken similar steps to restrict or outright ban the use of TikTok for reasons of national security.[17]  So, while the security risks associated with TikTok are certainly susceptible to exaggeration, the fact that the United States is not alone in this sentiment helps validate its concerns and corresponding action.

C. Free Speech Concerns

Government attempts to regulate social media tend to be highly controversial because of the centrality of these platforms to modern day expression and free speech. TikTok, in particular, is widely praised for its facilitation of mass communication, information sharing, and advocacy.[18] Accordingly, American users are fiercely defensive of their ability to continue using the app to express themselves and interact with others.[19]

During litigation over state-level attempts to curtail TikTok use, judges have determined that preventing users from posting and consuming content on the app through a ban may very well constitute a violation of the First Amendment.[20]  The high bar that the government would have to overcome to prevail on a First Amendment challenge makes it likely that the law will be blocked if this issue eventually ends up in court.[21]  Nonetheless, promoters of the bill are confident that proposed restrictions on the app’s use do not even trigger First Amendment scrutiny because they regulate only economic transactions based on valid national security concerns.[22]  In other words, because the law affects the company’s ability to sell TikTok in the app store, it is regulation of a commercial activity rather than speech.

Conclusion

The debate over TikTok and its continued use in the United States is rife with competing interests and legal complexity. But for now, the 170 million Americans who regularly use the app can take comfort in the fact that the bill still needs to clear the Senate and make it to the desk of President Biden before the future of TikTok is truly in jeopardy.[23]


[1] See Protecting Americans from Foreign Adversary Controlled Applications Act, H.R. 7521, 118th Cong. (2023-2024).

[2] See Rebecca Fannin, The Strategy Behind TikTok’s Global Rise, Harvard Business Review (Sept. 13, 2019), https://hbr.org/2019/09/the-strategy-behind-tiktoks-global-rise.  

[3] John Koetsier, Here Are The 10 Most Downloaded Apps of 2020, Forbes (Jan. 7, 2021, 12:37 PM), https://www.forbes.com/sites/johnkoetsier/2021/01/07/here-are-the-10-most-downloaded-apps-of-2020/?sh=28ee844c5d1a.

[4] See Under Lockdown, U.S. Teens Turn to TikTok for Life Hacks, Laughs, Reuters (March 26, 2020, 6:16 AM) https://www.reuters.com/article/idUSKBN21D1BX/.

[5] H.R. 7521.

[6] H.R. 7521 (stating “[t]o protect the national security of the United States . . . .”).

[7] See Mike Scarcella, TikTok Bill Sets Up Fight Over Free Speech Protections of U.S. Constitution, Reuters (March 14, 2024, 4:17 PM), https://www.reuters.com/legal/tiktok-bill-sets-up-fight-over-free-speech-protections-us-constitution-2024-03-14/.

[8] See e.g., Hudson Hongo & David Greene, 5 Questions to Ask Before Backing the TikTok Ban, Electronic Frontier Foundation (March 15, 2024), https://www.eff.org/deeplinks/2024/03/5-big-unanswered-questions-about-tiktok-bill (referring to the bill as “the TikTok Ban” in the article title contributes to initial public confusion about whether the Act calls for an immediate ban).

[9] H.R. 7521 § 2(c)(1)(A).

[10] Kevin Freking, et al., House Passes a Bill that Could Lead to a TikTok Ban if Chinese Owner Refuses to Sell, AP News (March 13, 2024, 7:56 PM), https://apnews.com/article/tiktok-ban-house-vote-china-national-security-8fa7258fae1a4902d344c9d978d58a37#:~:text=The%20bill%2C%20passed%20by%20a,Chinese%20technology%20firm%20ByteDance%20Ltd.

[11] Id.

[12] See Americans’ Dismal Views of the Nation’s Politics, Pew Research Center (Sept. 19, 2023), https://www.pewresearch.org/politics/2023/09/19/americans-dismal-views-of-the-nations-politics/.

[13] Kristen E. Busch, Cong. Rsch. Serv., IN12131, TikTok: Recent Data Privacy and National Security Concerns (2023).

[14] See id.

[15] See id.

[16] Id.

[17] Sapna Maheshwari & Amanda Holpuch, Why the U.S. is Weighing Whether to Ban TikTok, The New York Times (March 12, 2024), https://www.nytimes.com/article/tiktok-ban.html.

[18] See Cristiano Lima-Strong & Drew Harwell, TikTok Users Flood Congress with Calls as Potential Ban Advances, The Washington Post (March 7, 2024, 6:49 PM), https://www.washingtonpost.com/technology/2024/03/07/tiktok-ban-congress-calls-us/.   

[19] Id.

[20] See Mike Scarcella, TikTok Bill Sets Up Fight Over Free Speech Protections of U.S. Constitution, Reuters (March 14, 2024, 4:17 PM), https://www.reuters.com/legal/tiktok-bill-sets-up-fight-over-free-speech-protections-us-constitution-2024-03-14/.

[21] Id.

[22] Id.

[23] Id.

By Colin Ridgell

While recent headlines have been dominated by the Supreme Court’s issued and pending opinions in cases of perceived political moment,[1] the Court has continued deciding questions that will ultimately have a direct impact on the lives and liberty of far more people than Section Three of the 14th Amendment[2] or Chevron[3] ever will.  While drawing less attention than it merits, the Court’s criminal docket has proven to be the source of widespread­—and often unanimous—agreement.  The Court’s recent decision in McElrath v. Georgia[4] provides a useful example of this trend.

Factual Background

The facts of McElrath case could hardly be more tragic.  On July 12, 2012, then 18-year old Damian McElrath killed his adoptive mother by stabbing her over 50 times.[5]  McElrath had struggled with behavioral and disciplinary issues throughout his childhood.[6]  Only a week before his mother’s death, McElrath had been admitted to a mental health treatment facility and diagnosed with schizophrenia, based, among other things, on his recurrent and long-running delusion that his mother was poisoning his food and drinks.[7]  After killing his mother, McElrath called 911, explained that he had killed his mother because she was poisoning him, and “asked the dispatcher if he was wrong to do that.”[8]

McElrath was charged with malice murder, felony murder, and aggravated assault.[9]  In December 2017, the jury returned a verdict of not guilty by reason of insanity on the malice murder charge but found McElrath guilty but mentally ill of felony murder and aggravated assault.[10]  These verdicts presented a seemingly obvious contradiction:

[T]he jury must have determined that McElrath was legally insane at the time that he stabbed Diane in order to support the finding that he was not guilty of malice murder by reason of insanity.  Nonetheless, the jury went on to find McElrath guilty but mentally ill of felony murder based on the same stabbing—a logical and legal impossibility.[11]

Deemed “repugnant verdicts” under Georgia law,[12] the legal and logical impossibility of the jury’s verdicts opened the door for an incredibly skilled piece of lawyering by McElrath’s attorneys.

The Georgia Decisions

McElrath would make two trips to the Supreme Court of Georgia.  He first challenged his felony murder conviction on the basis of the inconsistent verdicts.[13]  The court agreed, but vacated both the guilty but mentally ill verdict for felony murder and the not guilty by reason of insanity verdict for malice murder.[14] This was the first step in McElrath’s efforts to have both murder charges done away with based on the jury’s verdicts.

When the case returned to the trial court on remand, McElrath unsuccessfully moved to have his case dismissed on double jeopardy grounds.[15]  The Supreme Court of Georgia affirmed the denial of this motion, explaining that, although not guilty verdicts are all but sacrosanct in double jeopardy jurisprudence, when “[v]iewed in context alongside the verdict of guilty but mentally ill . . . the purported acquittal [lost] considerable steam.”[16]  In essence, the court held that vacatur of the repugnant verdicts had left McElrath with a blank slate as far as double jeopardy was concerned.[17]

The Supreme Court’s Decision

The Supreme Court of the United States was resoundingly unconvinced that the mark of acquittal could be so easily wiped away.  In Justice Jackson’s unanimous opinion, the Court reaffirmed that, “[o]nce rendered, a jury’s verdict of acquittal is inviolate.”[18]  The Court rejected Georgia’s argument that state law controlled whether a verdict was an acquittal for double jeopardy purposes,[19] explaining that the dispositive question is whether “there has been ‘any ruling that the prosecution’s proof is insufficient to establish criminal liability for an offense.’”[20]  The reasons for a jury’s verdict of acquittal are final and unquestionable, regardless of the permissibility of that verdict.[21]  Because the jury’s acquittal was accepted by the trial judge, the Supreme Court of Georgia was powerless to vacate it, and therefore the subsequent prosecution of McElrath for felony murder was barred by the Double Jeopardy Clause.[22] 

The Court left for another day, however, the issue of what double jeopardy effect would result from a trial judge’s rejection of inconsistent or repugnant verdicts.[23]  And Justice Alito reiterated the open nature of this question in his brief concurrence.[24] 

McElrath was never likely to be a high-profile case. Although the average American is far more likely to come into contact with the criminal justice system than to have their life permanently altered by the application of the major questions doctrine,[25] the latter cases attract a far greater level of popular attention.[26] It is perhaps unsurprising that so many are convinced that the “high profile” cases at the Court are decided 6-3,[27] when a “high profile” case has been tautologically defined as a case decided on ideological grounds.[28] Hopefully, close observers of the Court’s docket will remember that unanimous and nearly unanimous decisions are the norm rather than the exception.[29]  As important as McElrath is for reinforcing the constitutional limits on double jeopardy, it is equally important as a reminder that things at the Court are working as intended.


[1] See, e.g., Andrew Chung & John Kruzel, Trump wins Colorado ballot disqualification case at US Supreme Court, Reuters (March 4, 2024), https://www.reuters.com/legal/trump-wins-colorado-ballot-disqualification-case-us-supreme-court-2024-03-04/; Adam Liptak, Conservative Justices Appear Skeptical of Agencies’ Regulatory Power, The New York Times (Jan. 17, 2024), https://www.nytimes.com/2024/01/17/us/supreme-court-chevron-case.html.

[2] U.S. Const. amend XIV, § 3.

[3] Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).

[4] 144 S. Ct. 651 (2024).

[5] McElrath v. State, 839 S.E.2d 573, 574–75 (Ga. 2020).

[6] Id. at 575.

[7] Id.

[8] Id.

[9] Id. at 574.

[10] Id.

[11] Id. at 580.

[12] Id. at 579 (“This case falls into the category of repugnant verdicts, as the guilty and not guilty verdicts reflect affirmative findings by the jury that are not legally and logically possible of existing simultaneously.”).

[13] Id. at 575.

[14] Id. at 582.

[15] McElrath v. State, 880 S.E.2d 518, 519 (Ga. 2022).

[16] Id. at 521.

[17] See id. at 521–22.

[18] McElrath v. Georgia, 144 S. Ct. 641, 658 (2024).

[19] Id. at 559.

[20] Id. at 660 (quoting Evans v. Michigan, 568 U.S. 313, 318 (2013)).

[21] Id. at 659.

[22] Id. at 660.

[23] See id. at n.4.

[24] Id. at 661 (Alito, J., concurring) (“Nothing that we say today should be understood to express any view about whether a not-guilty verdict that is inconsistent with a verdict on another count and is not accepted by the trial judge constitutes an “acquittal” for double jeopardy purposes.”).

[25] Compare Susannah N. Tapp & Elizabeth J. Davis, Contacts Between Police and the Public, 2020, 1 (U.S. Department of Justice, Bureau of Justice Statistics) (2022), with Dr. Adam Feldman, Elites at Cert, Empirical SCOTUS (December 15,2021), https://empiricalscotus.com/2021/12/15/elites-at-cert/#:~:text=While%20attorneys%20working%20on%20cases,cert%20grant%20is%20around%201%25.

[26] See, e.g., Adam Liptak, The Curious Rise of a Supreme Court Doctrine that Threatens Biden’s Agenda, The New York Times (March 6, 2023), https://www.nytimes.com/2023/03/06/us/politics/supreme-court-major-questions-doctrine.html.

[27] See, e.g., Vincent M. Bonventre, 6 to 3: The Impact of the Supreme Court’s Super-Majority, New York State Bar Association (October 31, 2023), https://nysba.org/6-to-3-the-impact-of-the-supreme-courts-conservative-super-majority/.

[28] E.g., Lawrence Hurley & JoElla Carman, Tracking major Supreme Court cases, NBC News (updated June 30, 2023), https://www.nbcnews.com/politics/supreme-court/tracking-major-supreme-court-cases-rcna69594.

[29] Dr. Adam Feldman, Another One Bites the Dust: End of 2022/2023 Supreme Court Term Statistics, Empirical SCOTUS (June 30,2023), https://empiricalscotus.com/2023/06/30/another-one-bites-2022/.

14 Wake Forest L. Rev. Online 20

C. Isaac Hopkin

Introduction

This Note begins with the story of two investment managers. Manager One was an investment manager in Texas who oversaw funds exempt from registration with the Securities and Exchange Commission (“SEC” or the “Commission”).[1] Manager One set up two private investment partnership funds that held about $24 million in assets and had a little over a hundred investors.[2] These funds were described as “hedge-fund like” investments for sophisticated investors.[3] Following the 2008 crash, the funds failed.[4] In 2013, the SEC charged Manager One with fraud.[5] The SEC alleged that Manager One had (1) misrepresented who served as prime broker and as auditor; (2) misrepresented the funds’ investment parameters and safeguards; and (3) overvalued the funds’ assets to generate greater fees.[6] The SEC tried the case in an administrative forum.[7]

In 2014, the SEC administrative law judge (“ALJ”) found Manager One liable.[8] Later, the Commission granted an expedited five-year review before issuing its final order in September 2020.[9] The Commission imposed a monetary penalty of $300,000 on Manager One, ordered his fund to disgorge $685,000 in ill-gotten gains, and barred Manager One from securities activities.[10] Manager One repeatedly requested a jury trial in an Article III court and was repeatedly denied because the SEC, in its sole discretion, chose an administrative proceeding.[11]

Manager Two was also an investment manager in Texas who managed funds exempt from registration.[12] Manager Two set up multiple funds to pursue a hedge-fund-like strategy for sophisticated investors.[13] Following the 2001 crash, the funds collapsed due to a combination of mismanagement and market factors.[14] The SEC charged Manager Two with fraud for overvaluing his funds.[15] The SEC brought the action in federal district court, where the jury found Manager Two liable and imposed a civil penalty of $50,000, a permanent injunction, and a disgorgement of $900,000 of ill-gotten gains.[16]

Why were Manager One and Manager Two treated so differently? The difference is timing. When Manager One was charged, the SEC had to bring all civil enforcement actions against unregistered funds in an Article III court, where the jury right automatically attaches.[17] Unfortunately for Mr. Jarkesy (Manager One), he was charged in 2013 when the SEC had the discretion to choose between an Article III forum or an administrative forum to adjudicate its civil enforcement actions against unregistered funds.[18]

This dramatic shift in the SEC’s power was no accident. In response to the 2008 financial crash, Congress passed the Dodd-Frank Act, giving the SEC sole authority to pursue civil or equitable remedies in either an administrative forum or an Article III court.[19] Nothing limits the SEC’s discretion in this choice.[20] Moreover, the legislative history makes it clear that the SEC’s unbounded discretion was what Congress intended:

This section streamlines the SEC’s existing enforcement authorities by permitting the SEC to seek civil money penalties in cease-and-desist proceedings under Federal securities laws. The section provides appropriate due process protections by making the SEC’s authority in administrative penalty proceedings coextensive with its authority to seek penalties in Federal court. As is the case when a Federal district court imposes a civil penalty in a[n] SEC action, administrative civil money penalties would be subject to review by a Federal appeals court.[21]

As written, this provision puts the Seventh Amendment in the hands of the SEC. The Seventh Amendment protects civil jury trials “in suits at common law.”[22] The Supreme Court has held that when the government is litigating an action in an Article III court that is “analogous to suits at common law,” the Seventh Amendment attaches.[23] So how can the SEC can pursue the same remedies in a district court that requires a jury or in its own administrative courts that do not? The answer lies in the messy public rights exception, which allows the government to litigate in a non-Article III forum and where the Seventh Amendment “poses no independent bar” to non-jury factfinding.[24]

Despite the public rights exception, the SEC’s unfettered discretion is troubling.[25] As the statute stands now, the SEC could theoretically choose to grant one defendant’s Seventh Amendment rights while denying a similar defendant her Seventh Amendment rights.[26] This is the crux of the matter in Jarkesy.[27] When Jarkesy challenged the SEC, saying its discretion was unlawful under the Seventh Amendment, the Fifth Circuit agreed.[28] It found the SEC’s discretion unlawful suffered from two “constitutional defects.”[29] First, the court held that the SEC was not litigating a public right, and thus the Seventh Amendment required a jury trial.[30] Second, the Fifth Circuit held that Congress could not delegate forum choice to the SEC.[31] Both holdings reached the right result, but for the wrong reasons.

This Note analyzes the Fifth Circuit opinion in Jarkesy v. SEC by examining the interplay between administrative adjudication and the Seventh Amendment. Part I first explores the history of the Seventh Amendment and its importance at America’s founding. Next, Part I surveys the evolution of the public rights doctrine, specifically explaining how the public rights doctrine allows Article-III-like fact-finding outside Article III courts. This tension between the Seventh Amendment and public rights serves as the backdrop to the Fifth Circuit’s opinion.

Part II of this Note contends that the Fifth Circuit reached the correct outcome for the wrong reasons. The Fifth Circuit’s first holding was that the SEC’s cause of action was not a public right.[32] But this holding is likely wrong because the cause of action fits well into the Atlas Roofing[33] framework. Second, the Fifth Circuit held that the non-delegation doctrine prevented the SEC from choosing the forum.[34] This second holding defies relevant precedent surrounding the non-delegation doctrine.[35] Even so, the result of Jarkesy was correct. As this Note will explain, the opinion should have focused on how the SEC’s unique power over the forum fails to meet the exclusivity requirement found in Granfinanciera,[36] and thus was not a proper assignment. As a result, Mr. Jarkesy—along with others prosecuted under this statute—should have the right to elect a jury. Put differently, the defendants should control their Seventh Amendment rights, not the SEC. This framework provides an easy out for the Supreme Court, which recently granted certiorari in this case. Indeed, the Granfinanciera exclusive assignment requirement would allow the Court to preserve the administrative adjudication status quo while protecting Seventh Amendment rights. In that world, the Supreme Court could have its cake and eat it too.

I. Background, History, and a Battle of Fundamentals

The Seventh Amendment preserves an individual’s jury right in both common law and statutory civil actions.[37] Even so, when the government brings civil actions, the Seventh Amendment does not attach if the government is litigating a public right in a non-Article III forum.[38] This exception is called the public rights doctrine.[39] When a public right is involved, “the Seventh Amendment poses no independent bar”[40] to a non-Article III adjudication so long as “Congress properly assigns a matter to adjudication in a non-Article III tribunal.”[41] Whether a matter is properly assigned is a two-part inquiry: (1) whether the suit is analogous to one that existed at common law; and if so, (2) whether the government civil action is exempted by the public rights doctrine.[42] If either answer is no, defendants like Jarkesy do not have a Seventh Amendment right in the government’s civil action.

Cases like Jarkesy’s highlight two fundamental but conflicting goals in American law. On one side, the American commitment to a jury trial is as old as the country itself.[43] On the other, our Government prioritizes efficiency by using agencies and other bureaus to provide quick resolutions.[44] Thus, to understand Jarkesy, one must understand the history of the Seventh Amendment and the public rights exception.

A. Juries: The History, the Analysis, and the First Inquiry of Jarkesy
1. The Ancient Origin of Juries

“In Suits at common law . . . the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any court of the United States, than according to the rules of the common law.”[45] This is no small thing. Indeed, the Seventh Amendment was “paid for by thousands of years of slow progress and sacrifice of brave people who stood up for liberty.”[46] The concept of a jury dates back as far as ancient Greece,[47] but it did not evolve into the form contemplated by the Seventh Amendment until eighteenth-century England.[48]

In England, before trial by jury, two primary methods existed in judicial factfinding.[49] One method was trial by combat, where God would bring the truth to light.[50] God would do so during the trial by “giving force to the victor’s arms” while the two litigants fought on foot with a baton.[51] This method soon fell out of favor because trial by combat often lead to the death of noblemen whose life could be “otherwise employed.”[52]

The other, similarly dubious, method came in the form of sworn testimony.[53] With sworn testimony, the litigant presented a witness or witnesses, called compurgators, who swore to the litigant’s innocence or guilt.[54] This method was also problematic because many compurgators were chosen for their willingness to lie in exchange for payment.[55] The structure for factfinding in English law was a mixed bag ripe for reform.

The transformation of the English judicial process began with King Henry II.[56] He established professional judges and authorized “recognitors” or juries.[57] These juries resembled a modern grand jury.[58] The jury’s job was to “accuse” rather than to “try”
the cases.[59] Judge Pope, in his article, explained the process:

“Four persons from a vill, under oath, would report matters of public fame to twelve knights, also under oath. The knights were chosen from a larger area known as the hundred or the wapentake. If the twelve agreed, a presentment was made to the sheriff. After accusation came the trial.”[60]

Those indicted by the accusing jury could still be tried in front of a judge with the accusing jury serving as witnesses rather than triers of fact.[61]

Yet the problem of malicious prosecution remained. As a result, those accused of crimes could go before another jury to show that the charge was “procured out of hate and spite.”[62] If the jury found that the prosecution was false or malicious, the case was over.[63] Soon, the role of the second jury transformed from judging the jury to deciding the case itself.[64]

This process began as early as the thirteenth century.[65] The defendant could bring the same case to a second group “composed of men of a higher rank” called an “attainting jury.”[66] If the second jury disagreed with the first jury, the members of the first jury could be subject to imprisonment, forfeiture of lands, denial of credit, and sometimes death.[67] Out of the “attainting jury” system emerged our system of jurors who judge rather than accuse.[68] The attainting jury would consider what evidence was before the original jury and whether the prior jury accused properly on that evidence.[69] The attainting jury could only consider what was before the prior jury and could not draw any information outside the record.[70]

By the sixteenth century, however, the common law replaced this system, and judges gained the authority to grant a new trial rather than being subject to an attainting jury.[71] To do so, judges now had to hear the evidence along with the jury.[72] The jurors who brought the case had to disclose under oath anything they knew about the facts underlying the case.[73] Rather than jurors being the prosecutor and then the attainment jury determining facts, judges now could usurp the fact-finding function if they found the prosecuting jury’s evidence unsatisfactory.[74]

Perhaps poetically, the “critical moment” for the independent jury as we know it came in a trial against William Penn.[75] Penn, the twenty-six-year-old leader of the Quakers, was charged with “disturbing the King’s peace by preaching nonconformist religious views at an outdoor meeting in London.”[76] After hearing the case, four jurors “refused to convict Penn of the most serious charge.”[77] The judge sent the jury back to reach “the proper verdict,” but the jury again refused.[78] After reaching the wrong verdict again, the court sent the jurors back without “meat, drink, fire, or any other accommodation; they had not so much as a chamber-pot, though desired.”[79] Even in these dreadful conditions, the jurors again returned a verdict for Penn.[80] The court accepted the judgment, but the jurors were fined and jailed for contempt of court.[81] These jurors sued for habeas corpus.[82]

Lord Chief Justice Vaughn, in a monumental opinion, established that juries were entitled to reach their decisions independently.[83] Justice Vaughn observed:

[I]f the Judge having heard the evidence . . . shall tell the jury . . . the law is for the plaintiff, or for the defendant, and you are under the pain of fine and imprisonment to find accordingly, . . . every man sees that the jury is but a troublesome delay . . . and therefore the tryals by them may be better abolish’d than continued; which were a strange new-found conclusion, after a tryal so celebrated for many hundreds of years.[84]

This landmark opinion allowed jurors to be charged with facts, and the judge could no longer override those findings.[85]

Thus, by the eighteenth century, the English court system roughly resembled the forum we know it as today.[86] Judges presided over the trial, and jurors drawn from the community would judge the facts of the case.[87] Jurors were selected because they could determine the facts impartially and attorneys could challenge a juror for cause.[88] Witnesses were subject to open court and gave sworn testimony, and judges ruled on objections.[89] Then, jurors were allowed to privately deliberate until they reached their final verdict.[90] Thus, the common law system produced the modern jury system through the slow drag of time.

2. Juries and the Founding

The new independent jury system became “the grand bulwark of [English] liberties.”[91] Blackstone explained that trial by jury is the glory of the English law and “the most transcendent privilege which any subject can enjoy or wish for, that he cannot be affected, either in his property, his liberty, or his person, but by the unanimous consent of twelve of his neighbors and equals.”[92]

The right to a jury gained equal importance in Colonial America as “[it] was the germ of American freedom–the morning star of that liberty which subsequently revolutionized America.”[93] That is because the jury was one of the few protections against British overreach.[94] The colonists did not get to vote for Parliament, but they could make their grievances against the government known through the local jury.[95] The jury became a vehicle of resistance against British oppression, which in turn led to the British government avoiding jury trials.[96] For example, the Stamp Act cases were tried in admiralty courts in London, depriving many Americans of the local jury.[97] The British government’s manipulation of the system outraged the colonists to the point that the deprivation of their jury rights was a chief grievance in the Declaration of Independence.[98]

The jury protected the community from government overreach and served as a check on judges appointed by British officials.[99] In fact, civil juries were so important that the debate over the Bill of Rights was triggered by a casual comment by George Mason, in which he noted that “no provision was yet made for juries in civil cases.”[100] The Pennsylvania Anti-Federalists nearly prevented ratification of the Constitution because they believed the Federalists were attempting to abolish civil juries.[101] When the Federalists promised the Bill of Rights to assuage the Anti-Federalists concerns, seven of the states proposed amendments including the protection of the civil jury right.[102]

Yet, despite its apparent importance, little is known about the original purpose of the Seventh Amendment.[103] From the contextual history, a general guarantee of the civil jury was widely desired, but there was “no consensus on the precise extent of its power.”[104] For example, during the Constitutional Convention on September 15, 1787, a motion was made by General Thomas Pinckney and Elbridge Gerry to add the following to Article III: “And a trial by jury shall be preserved as usual in civil cases.”[105] Nathaniel Gorham responded to the motion, “The constitution of Juries is different in different States and trial itself is usual in different cases in different states.”[106] The motion was rejected and the convention ended without a guarantee of a civil jury trial.[107]

Even less is known about the debate surrounding the current language of the Seventh Amendment.[108] Madison originally proposed the language from the Virginia ratification convention, “In suits at common law, between man and man, the trial by jury, as one of the best securities to the rights of the people, ought to remain inviolate.”[109] The house committee then revised this language to say, “In suits at common law, the right of the trial by jury shall be preserved.”[110] The house passed the committee version without discussion.[111] The Senate then added, “where consideration exceeds twenty dollars.”[112] The record is sparse after that, but the Seventh Amendment was passed with little debate and ratified later on.[113] This Amendment—that inspired a revolution, that sparked the bill of rights, that was considered “the germ of American freedom–the morning star of that liberty”[114]—provides little light to those invoking it today.

3. Seventh Amendment Analysis

In cases like Jarkesy, Seventh Amendment history is an important prong that decides whether the trial can be held in an administrative forum or must be held in an Article III forum.[115] To determine whether a plaintiff is entitled to a jury, a court first evaluates whether the litigant has a Seventh Amendment right per Tull v. United States.[116]

To determine whether the Seventh Amendment applies, courts examine if the cause of action is “analogous to suits at common law” as existed at the time of the Seventh Amendment.[117] In Tull, the Court determined whether the Seventh Amendment applied against the government when it imposed a civil fine for violating the Clean Water Act.[118] The Supreme Court held that Tull was entitled to a jury trial because the action was analogous to the common law action of debt brought before juries in England.[119] In reaching its holding, the Court reasoned that common law extended not only to common-law actions—such as torts, contracts, or fraud—but also to claims created by congressional action.[120]

Following Tull, courts evaluate (1) the nature of the action and (2) the remedy sought.[121] If the nature of the statute and its remedy are analogous to actions and remedies that existed in eighteenth century England, then the Seventh Amendment attaches.[122] That said, in making this analysis, courts prioritize the nature of relief over the cause of action itself.[123] Thus, if the remedy is similar to one that at the time of the ratification of the Seventh Amendment would have been sought in a court of law rather than a court of equity, then the action is subject to a jury.[124]

4. Jarkesy’s Seventh Amendment Rights

Jarkesy is not William Penn, but his desire to pursue his right to an independent jury is understandable. It is even more understandable when a litigant sees the SEC’s astonishing win rate in administrative proceedings. According to the Wall Street Journal, the SEC won ninety percent of contested cases before an administrative law judge, compared to its sixty-nine percent success rate in federal court over the same time frame.[125]

This disparity is especially relevant because the SEC uses the administrative forum much more often than Article III courts.[126] A litigant such as Jarkesy faces three potential SEC actions: (1) actions against brokers, (2) actions for reporting or accounting, or (3) actions against investment advisors. The SEC brought ninety percent of actions against brokers, eighty-four percent of actions for reporting or accounting, and seventy-four percent of actions against investment advisors in an administrative forum rather than an Article III court.[127] Anyone subject to the SEC’s enforcement could understandably feel like a litigant in Eighteenth century England where “every man sees that the jury is but a troublesome delay” rather than a “new-found conclusion, after a tryal so celebrated for hundreds of years.”[128]

B. The Public Rights Doctrine: History, Confusion, and the Second Inquiry of Jarkesy

In cases such as Jarkesy’s, the public rights doctrine is the greatest difference between an Article III forum, which carries a Seventh Amendment right, or an administrative proceeding, which is exempt from many Article III procedures. A public right is a government action related to an executive or legislative power.[129] In essence, public rights allow the government to litigate civil matters because it is enforcing them on behalf of the public. Consider securities laws. In response to the Great Depression and the stock market crash that precipitated it, Congress passed laws that allowed the government to initiate civil actions against bad actors.[130] Unlike every-day common law actions where the SEC initiates an enforcement action under securities law, the SEC is not validating the rights of a particular individual or itself, rather the SEC litigates on behalf of the public.[131] In those cases, the SEC is enforcing a public right. So long as a matter is a public right, Congress may properly assign it to a non-Article III forum, exempt from the Seventh Amendment.[132]

The public rights exception emerged before the twentieth century.[133] Yet since the founding, the executive and legislative branches have grown in both size—through new agencies—and scope—by said agencies enforcing civil penalties.[134] Accordingly, the public rights doctrine has had to adapt and change along with those branches to reflect the values that existed at the founding while also recognizing the new reality of a larger and broader federal government. Here, the Note explores the emergence of the public rights doctrine, the transformation into its modern form, and what makes a right public and thus exempt from jury trials.

1. Emergence of the Public Rights Doctrine

The public rights doctrine is supported by two different constitutional rationales: separation of powers and sovereign immunity.[135] Under the separation of powers theory, a public right may be tried in a non-Article III court because those causes of action are an exercise of executive or legislative powers, not judicial power.[136] The broad constitutional grants of power to the legislative and executive branches in Articles I and II of the Constitution necessitate some form of dispute resolution when that power is exercised.[137] When such dispute resolution is required, the public rights doctrine determines whether those branches can create their own fora, or whether such dispute resolutions are subject to the same restrictions constitutionally imposed on the judiciary.[138] Put another way, the public rights doctrine clarifies which actions stemming from Article I and II must be resolved by Article III courts and which actions are legislative or executive in their function and thus exempt from mandatory Article III court procedures.[139] As a result, the cause of action has no place in an Article III branch because the judiciary cannot exercise legislative nor executive power.[140]

The sovereign immunity rational for the public rights doctrine stems from the common law tradition. At common law, an individual was barred from suing the sovereign without its permission and the sovereign rarely (if ever) brought civil suits.[141] But the Article III language implicates many government actions: “All cases . . .[and] controversies to which the United States shall be a Party” are subject to Article III.[142] Thus public rights resolve the incongruence between when Article III applies to the sovereign, Thus, the public rights doctrine resolves the contradiction. If the cause of action is not a public right the sovereign would be subject to Article III litigation; when the cause of action is a public right the sovereign is shielded from Article III courts by the common law tradition of sovereign immunity.[143] Under this rationale, if Article III waives sovereign immunity, then Seventh Amendment protections attach.[144] Otherwise, the common law allows the government to form its own forum of dispute resolution, such as proceedings in front of an administrative law judge. Regardless of the underlying theory, the public rights exception allows the government to litigate on behalf of the public in a civil setting.

The first case to recognize the public rights doctrine was Murray’s Lessee v. Hoboken Land & Improvement Co. (Murray’s Lessee).[145] There, a dispute arose over property ownership where one party took lineal title while the other was a bona fide purchaser from the United States.[146] At issue was a statute that allowed the Treasury Department to issue a lien before it made findings in federal court.[147] The lineal title claimant challenged the statute, arguing that only Article III courts had the power to issue a lien and the Treasury-Department lien on his land was therefore invalid.[148]

The Court disagreed using the sovereign immunity rationale:

[T]here are matters, involving public rights, which may be presented in such form that the judicial power is capable of acting on them, and which are susceptible of judicial determination, but which Congress may or may not bring within the cognizance of the courts of the United States, as it may deem proper.[149]

Put differently, if the government is the owner of the land, it must consent to suit in an Article III court; otherwise, Congress may allow an executive department to grant relief.[150]

Public rights extended as the administrative state grew. In Crowell v. Benson,[151] a commissioner found Benson liable for injuries sustained by one of Benson’s employees as part of the Longshoremen’s and Harbor Workers’ Compensation Act.[152] The employee brought the action in an administrative forum as authorized by the statute, instead of the typical judicial forum, where the commissioner found him liable.[153] Benson challenged the act, arguing that the statute authorizing private suit violated inter alia “provisions of article 3 with respect to the judicial power of the United States.” [154]

The Supreme Court agreed using the public rights rationale. The Court explained that Congress may establish “legislative courts” for matters that “arise between the Government and persons subject to its authority in connection with the performance of the constitutional functions of the executive or legislative departments.”[155] But when matters arise between two private persons “to enforce constitutional rights[,]” Congress’s power to assign the matter is “an untenable assumption.”[156] Put another way, the separation of powers requires that the executive and legislative branches be exempt from Article III restrictions when using their powers because “functions of the executive or legislative departments” are not judicial powers. By comparison, when the matters relate to a judicial power, here maritime jurisdiction, such a matter cannot be assigned outside of Article III courts.

2. The Expansion of Public Rights to Reflect the Modern Administrative State

The drafters of the Seventh Amendment and Article III did not contemplate a world in which the government would try common law actions.[157] At the founding, litigation between citizens and the State was rare outside of criminal matters.[158] In the civil context, government actions brought in common law courts were mostly contractual disputes.[159] Thus, the language of the Seventh Amendment and Article III do not contemplate actions like Jarkesy where the government brings an action analogous to a common law fraud claim.[160]

The Court addressed the increasing divergence between historic practices and the modern government in Atlas Roofing Co. v. Occupational Safety & Health Review Commission.[161] In Atlas Roofing, the company challenged the administrative proceeding against it, arguing that conducting the action in an administrative forum deprived the company of its Seventh Amendment right because the proceeding involved a common-law claim.[162] The Court rejected this argument, explaining that OSHA had litigated a public right and therefore did not require a jury trial.[163] The Court held that when Congress creates a new statutory public right, Congress may assign the adjudication of that right to an administrative agency.[164] “The distinction is between cases of private right and those which arise between the government and persons subject to its authority in connection with the performance of the constitutional functions of the executive or legislative function.”[165] The Court’s holding consolidated both the separation of powers and sovereign immunity rationales by requiring the government to be a named party and Congress to create “a new cause of action unknown to the common law” for the public right doctrine to apply.

But in later holdings, the Court held that the first condition of Atlas Roofing, which required that the government be a party to the suit, was no longer necessary for a right to be deemed a public right. In Thomas v. Union Carbide Agricultural Products Co.,[166] the Court examined “whether Article III of the Constitution prohibit[ed] Congress from selecting binding arbitration . . . as the mechanism for resolving disputes among participates in FIFRA’s pesticide registration scheme.”[167] The Court found that it did not because the matter was a public right and thus exempt from Article III.[168] The majority explained that Congress may choose “quasi-judicial methods of resolving matters” when those matters concern “an integral part of a [Congressional] program.”[169] Put differently, the focus is on substance rather than form.[170] This case returned the Court to the separation of powers rationale where a matter became a public right when it was an exercise of Congressional power.[171] Thus, as the doctrine stands today, a matter becomes a public right when it concerns an exercise of legislative or executive power; when the matter becomes a public right, the matter can be assigned to a non-Article III forum.

In sum, the distinction between a public right and a private right is whether the right is “integrally related to a particular federal government action.”[172] If it relates to an executive or legislative function, then the right is public.[173] If a party is litigating a public right, then the Seventh Amendment “poses no independent bar to the adjudication of that action by a nonjury factfinder.”[174] Simple, right?

Yet scholars and courts agree that determining what a public right is creates a procedural and judicial mess.[175] This mess is apparent in Jarkesy.[176] On one hand, the action involves the government acting in its sovereign capacity to enforce securities law.[177] On the other hand, this action is eerily similar to the action in Tull where an administrative agency was enforcing a civil penalty based on a common law cause of action.[178] This tension is at the heart of both the public rights doctrine and Jarkesy itself.

3. Separation of Powers Analysis and Jarkesy

Typically, administrative adjudication does not trigger the Seventh Amendment because it enforces public rights assigned to non-Article III forums.[179] Accordingly, when Congress properly assigns such a matter to an agency, then no jury right attaches.[180] Congress may properly assign the matter when no Article III powers are implicated.[181] Agency adjudications do not exercise Article III powers and are thus properly assigned in three instances:

(1) those where there is no deprivation of life, liberty, or property; (2) those deprivations that nonetheless satisfy due process such as in Murray’s Lessee; and (3) those where the agency exercises no power at all, because it serves as a judicial adjunct.[182]

Under the first type of case where there is not a deprivation, non-Article III adjudication is permissible because there is no due process concern. For example, when the government issues a benefit and then revokes that benefit, such an action would not—absent unusual circumstances—be subject to a to an Article III court because there is no deprivation involved.[183] The Fifth Circuit found that this type of exemption is not the type in Jarkesy’s suit because he was subject to a civil penalty—i.e., a deprivation of property.[184]

The second framework is permitted even in cases of deprivation where due process and fair procedures are present.[185] For example, in Murray’s Lessee, the litigant was only subject to a temporary lien that he could later contest in court.[186] Congress could properly allow the executive to issue a lien because it was temporary “until a decision should be made by the court.”[187] Consequently, any deprivation in life, liberty, and property without adjudication in the courts was minimal. By contrast, Jarkesy is not concerned with mere temporary deprivation. In fact, Jarkesy was barred from his chosen profession of securities trading for years until the final adjudication took place.[188] The deprivation, while potentially subject to review, has been far too punitive for far too long to qualify for the Murray’s Lessee exception.

The third category—the one that likely fits best in Jarkesy—allows non-Article III adjudication when the agency is not responsible for the exercise of judicial or executive powers.[189] For example, in Crowell, administrative agencies could participate in factfinding because the source of the power was “determin[ing] various matters arising between the government and others, which from their nature do not require judicial determination.”[190] When the government is bringing a case analogous to common law fraud, this power has been called a “replacement right.”[191] A “replacement right” refers to when Congress substitutes an existing common law remedy with an administrative one and assigns the right’s adjudication to a non-Article III forum.[192]

This description best fits with Jarkesy because the SEC’s action against him was subject to Article III authority until the Dodd-Frank Act.[193] Following the Dodd-Frank Act, the SEC now has the power to exercise its replacement right selectively,[194] so the jury right attaches only when the SEC chooses to bring the action in an Article III court.[195] Therefore, like in Crowell, it is a public right because the SEC is vindicating the public interest.

Yet replacement rights create separation of powers issues because Congress is supplanting existing judicial authority.[196] Indeed, to do so, the legislation must be an exercise of legislative or executive power. This is especially unique in a case such as Jarkesy, in which the SEC sometimes chooses to bring the case within Article III powers and other times exercises its own adjudication powers. This is where the heart of the matter lies in Jarkesy—what power is the SEC exercising when trying the suit in its own forum?

II. How the Supreme Court Can Have Its Cake and Eat It Too: The Fifth Circuit Was Right in Jarkesy but for the Wrong Reasons

Jarkesy’s reasoning “cuts against [] Supreme Court precedent on the applicability of the Seventh Amendment to agency proceedings involving ‘public rights.’”[197] The question presented to the panel was whether Jarkesy had the right to a jury trial in the SEC’s proceeding against him.[198] The Fifth Circuit held that Jarkesy was entitled to a jury because the SEC was not litigating a public right, or, alternatively, Congress had violated the non-delegation doctrine by allowing the SEC to choose its forum.[199]

The opinion focused on whether the statutory cause of action was a public right.[200]This inquiry assessed “whether Congress may assign” the matter to a non-Article III forum.[201] As explained below, [202] Congress could assign it to the SEC because it likely was a public right. Instead, the panel should have focused on the other aspect of Granfinanciera which asks “whether Congress . . . has assigned resolution of the relevant claim to a non-Article III adjudicative body.”[203]

Despite the cause of action implicating a public right, Congress did not properly assign it to the SEC. Under Granfinanciera, “[u]nless Congress may and has permissibly withdrawn jurisdiction over that action by courts of law and assigned it exclusively to non-Article III tribunals sitting without juries, the Seventh Amendment guarantees petitioners a jury trial upon request.”[204] By allowing the SEC discretion to pick a forum with or without a jury, Congress has not satisfied Granfinanciera because it has not exclusively assigned the action to a non-article III tribunal. Consequently, without proper assignment, the action is subject to Article III protections.[205]

This sets up a simple solution for the Supreme Court. At minimum, a defendant should have the same right to invoke Article III as the SEC. Granfinanciera provides the way. By finding that Jarkesy is entitled to a jury because the action was not “exclusively assigned,” the Court can allow Jarkesy his Seventh Amendment rights without undermining the entirety of administrative adjudication. Rather, administrative adjudication would maintain its status quo because Atlas Roofing and Granfinanciera remain unchanged. By this narrow ruling, the Court can have its cake, maintaining a complex administrative structure, and eat it too, strengthening Seventh Amendment rights.

A. The Jarkesy Framework

In this Subpart, the Note explains what the Fifth Circuit’s relevant holdings were and why they were not right in light of Granfinanciera, Atlas Roofing, etc. This Subpart is split into the two major portions of the opinion: first the public rights framework and second the non-delegation framework. These portions of the opinion were alternative holdings about Jarkesy’s right to a jury trial.

1. Public Rights Framework: Part I of the Opinion

The first holding in the Fifth Circuit Opinion was that the SEC was not litigating a public right and thus Jarkesy was entitled to a jury.[206] Courts answer two questions to determine whether an administrative litigant is entitled to a jury: first whether the cause of action existed at common law under the Seventh Amendment, and second whether the cause of action is a public right.[207] In this case, it is not disputed that the first inquiry is met. The SEC’s civil penalty is just like the civil penalty evaluated in Tull––an action at debt.[208] For the second inquiry, determination of whether public rights are implicated, the court considers: (1) whether “Congress ‘creat[ed] a new cause of action, and remedies therefor[e], unknown to the common law,’ because traditional rights and remedies were inadequate to cope with a manifest public problem;” and (2) whether jury trials would “go far to impede swift resolution of the matter.”[209]

The Fifth Circuit’s analysis under the first prong is questionable given current caselaw. The panel held that the SEC was not litigating a public right because the action was analogous to common law fraud.[210] But this contradicts Atlas Roofing, which found that a tort like action without damages is “unknown to the common law.”[211] To distinguish Atlas Roofing, the majority explained that “OSHA empowered the government to pursue civil penalties and abatement orders whether or not any employees were ‘actually injured’ . . . .”[212] The court continued, “The government’s right to relief was exclusively a creature of statute and therefore was distinctly public in nature.”[213] The majority then analogized the SEC’s cause of action to common law fraud.[214]

This point is puzzling because the panel proves the SEC’s point. The SEC argued that its fraud claims are unique because the agency need not demonstrate loss.[215] In fact, just like in Atlas Roofing, the SEC’s analogous action lacks the damages component.[216] Proving actual damages is vital to common law fraud.[217] Here, the statute Congress passed creates a new action different from the common law because, even though it mirrors the most of the elements of common law fraud, the SEC need not demonstrate damages.[218] In this way, the statute is nearly identical to the statute at issue in Atlas Roofing, which also mirrored a common-law claim lacking damages. Thus, the Fifth Circuit’s attempt to differentiate Atlas Roofing fails because the panel’s focus was misplaced. What makes an action “unknown to the common law” is not a lack of similar elements, here misrepresentation.[219] Similarity is inevitable. Rather, an action is “unknown to the common law” when it lacks one of the common elements, here damages.[220]

The panel also tried to reason that Atlas Roofing was unique because it asked “factfinders to undertake detailed assessments of workplace safety condition and to make unsafe-conditions findings even if no injury occurred.”[221] But again on this point, the SEC’s power is similar in that it investigates securities fraud actions, makes findings on whether fraud occurs, and brings actions even if no damages have occurred.[222] For this reason, analogy to common law is not enough to overcome the public rights exception outlined in Atlas Roofing because fraud without damages is “unknown to the common law.”[223]

For the other element of the Atlas Roofing test, whether jury trials go far to “impede swift resolution” of the action, the Fifth Circuit’s reasoning has more support.[224] To begin with, the current litigation took seven years.[225] Seven years is not considered a swift resolution, even in judicial-time.[226] And the SEC still brings similar actions in district court which cuts against the argument that jury trials impede swift resolution.[227] Requiring an Article III trial would not “impede swift resolution” because even the SEC agrees that Article III courts can handle these claims.[228]

In sum, the opinion ignored the comparison between the cause of action in Atlas Roofing by OSHA and the cause of action brought by the SEC. Consequently, under current case law, it is likely that the action brought by the SEC is a public right and thus exempt from the Seventh Amendment requirements.

2. The Non-Delegation Non-Starter: Part II of the Opinion

The Jarkesy court was “almost certainly wrong” in the non-delegation part of its opinion.[229] In that portion, the panel held that even if the Commission’s cause of action were enforcing a public right, Congress improperly delegated a legislative power to the SEC.[230]

The majority observed that the language of Article I provides that all legislative powers must be vested in the Congress.[231] The Court also reasoned that forum selection is a legislative power.[232] It is a legislative power because “assigning disputes to agency adjudication”[233] “alter[s] the legal rights of, duties, and relations of persons . . . outside the legislative branch.”[234] In addition, “the mode of determining which cases are assigned to administrative tribunals ‘is completely within congressional control.’”[235] Thus, because forum selection is a legislative power, Congress must articulate “an intelligible principle” to control the exercise of that power if delegating it to an agency.[236] The Jarkesy court reasoned that Congress did not give an intelligible principle when delegating forum selection to the SEC and it was thus an unconstitutional delegation.[237]

The non-delegation requirement has only been applied “when Congress has delegated power directly to the President—never when Congress has delegated power to agency officials.”[238] Although some Justices have signaled this may change, that reception has only been in dissents and concurrences.[239] In fact, the Fifth Circuit rejected Congress’s delegation to an administrative agency by citing those dissents instead of any majority opinions.[240] In essence, the Jarkesy court tenuously relied on the expansion of an already disputed doctrine.

The court was, in my opinion, correctly wary of the SEC’s complete discretion over forum. But its holding misconstrued existing case law and relied on non-delegation, which has not applied to this sort of action before. Alternatively, the Fifth Circuit could have held that Congress did not exclusively assign the action to the SEC, allowing Jarkesy to invoke an Article III forum. This is directly supported by the case law, particularly Granfinanciera.

B. Did Congress Assign the Action? The Exclusivity Principle: A Way Out for the Court?

This Note agrees with the Fifth Circuit: the SEC should not have complete discretion over forum. Congress should choose the forum and the SEC must follow. Yet, the Fifth Circuit’s holding ventured far beyond the caselaw to reach this result. Rather than base its holding on broad (and novel) interpretations of the caselaw, the Fifth Circuit instead should have issued a narrow opinion based on Granfinanciera. In doing so, the court could have reached the same result—a jury right for Jarkesy—without relying on a Supreme Court dissenting opinion for its rule.[241]

Granfinanciera answers when the Seventh Amendment prevents non-Article III adjudication.[242] The test is whether Congress “may and has assigned resolution of the relevant claim to a non-Article III adjudicative body that does not use a jury as a factfinder.”[243] Congress may assign any action that is a public right.[244] Under Granfinanciera, it is likely that the SEC was litigating a public right against Jarkesy because the action is unknown to the common law.[245] Thus, Congress may assign it. The question then is whether Congress has assigned it. Under Granfinanciera, the answer is no.

Congress has not assigned a public right unless adjudication of that right is given “exclusively to non-article III tribunals sitting without juries.”[246] Otherwise, “the Seventh Amendment guarantees petitioners a jury trial upon request.”[247] Thus, to assign means to exclusively assign. Without exclusive assignment, the Seventh Amendment requires a jury trial upon a defendant’s request.[248]

The requirement for exclusive assignment is found in many of the Court’s public rights precedents. In Atlas Roofing the Court stated, “Congress has often created new statutory obligations, provided for civil penalties for their violation and committed exclusively to an administrative agency the function of deciding whether a violation has in fact occurred.”[249] In Ex parte Bakelite Corp.,[250] the Court stated, “Congress may reserve to itself the power to decide, may delegate that power to executive officers, or may commit it to judicial tribunals.”[251] The Court stated in Thomas that “the public rights doctrine reflects simply a pragmatic understanding that when Congress selects a quasi-judicial method of resolving matters that ‘could be conclusively determined by the Executive and Legislative Branches,’ the danger of encroaching on the judicial powers is less than when private rights.”[252] In sum, exclusivity ensures actual assignment, which in turn secures the rights of the parties before litigation ever starts.

Here, unlike other public rights cases, the relevant statute did not exclusively assign the matter outside of Article III courts. In fact, the statute gives the SEC complete autonomy to litigate in an Article II forum, its own administrative court, or an Article III forum.[253] The SEC’s autonomy violates the exclusivity requirement found in Granfinanciera and other public rights cases. Whether the Seventh Amendment applies “turns not solely on the nature of the issue to be resolved, but also the forum in which it is resolved.”[254] In Jarkesy, the SEC chooses the forum and thus had complete control over Jarkesy’s Seventh Amendment right. Granfinanciera does not tolerate this level of agency autonomy. Indeed, by requiring exclusive assignment, a court ensures that control over the Seventh Amendment is not left to an agency’s whims. Instead, Congress may both create a new right and define the parameters of that right.

Thus, the Fifth Circuit improperly based its opinion on non-delegation rather than proper assignment. When the matter is not exclusively assigned, the Seventh Amendment steps in and assures the litigant has a jury right if they so elect. This holding would have resulted in the same outcome, a jury trial for Jarkesy, without going against Atlas Roofing’s precedent, or alternatively relying on a theoretical doctrine not adopted in any controlling precedent.

C. Proposal

The exclusivity requirement opens an easy path for the Supreme Court to follow. One of the concerns consistently expressed by the Justices is how finding for Jarkesy could upend agency adjudication.[255] Yet another consistent concern is how easily Congress could deprive anyone of a jury right if they wanted to.[256]

In responding to these concerns, Granfinanciera gives the Supreme Court a chance to have its cake and eat it too. Rather than upending practically all administrative adjudications or further weakening the Seventh Amendment, exclusive assignment allows the Justices to take a small step in preserving both. The Supreme Court could reject the Fifth Circuit’s opinion under Atlas Roofing and still hold that Granfinanciera requires exclusive assignment. Under that rule, Jarkesy and anyone else similarly prosecuted may elect for a jury trial or consent to an SEC trial because Granfinanciera requires it.[257] Thus, the Supreme Court can have its cake and eat it too.

Alternatively, the SEC could moot this issue today by giving litigants the option to choose Article II or Article III forum.[258] The SEC can accomplish this without Congress, as it will simply be an administrative procedure which is exempt from notice and comment rulemaking.[259] By selecting a forum through notice and comment procedures, the SEC would protect its interest in efficiency while preserving a litigant’s Seventh Amendment rights. Either way, the resolution need not upend all agency adjudication. Rather, any solution could be tailored to preserve SEC efficiency and the Seventh Amendment rights.

Conclusion

In sum, juries are an ancient and an important right, though not an untouchable one. Juries may be abrogated when the action is not one “at common law” or when the right being litigated is a public right. Public rights are those rights which are closely intertwined with an executive or legislative scheme. Even so, just because an action may be a public right in theory, it still must be assigned to be litigated in a non-Article III forum. Without exclusive assignment to a non-jury forum, the Seventh Amendment attaches. In Jarkesy, the SEC brought a case in an administrative forum for civil penalties. The majority opinion held that this was unconstitutional because the SEC was not litigating a public right. Even still, this action reflects other actions brought by administrative agencies. It sounds in common law but is a new action because it lacks one of the vital elements of common-law claims, damages. But unlike other public rights, the SEC has the power to bring the action in one forum with a jury right and one without a jury right. This violates the exclusivity principle as explained in Granfinanciera. Exclusivity provides an easy way out for the Court and even the SEC itself. So long as the SEC has this right, the defendant ought to maintain it too. By doing so, the Court, the SEC, and other parties may protect the legislative scheme, the administrative state, and also the Seventh Amendment.

C. Isaac Hopkin[260]*

  1. . Brief of Phillip Goldstein et al. as Amici Curiae in Support of Petitioners, Jarkesy v. SEC, 34 F.4th 446 (5th Cir. 2022) (No. 20-61007), 2021 WL 1856946, at *6 [hereinafter Cuban Brief]; Brief of the New Civil Liberties Alliance as Amicus Curiae in Support of Petitioners, Jarkesy, 34 F.4th 446 (No. 20-61007), 2021 WL 1856951, at *3 [hereinafter NCLU Brief].

  2. . Jarkesy v. SEC, 34 F.4th 446, 450 (5th Cir. 2022), cert. granted, 143 S. Ct. 2688 (2023).

  3. . Brief for the Cato Institute as Amicus Curiae in Support of Petitioners, Jarkesy, 34 F.4th 446 (5th Cir. 2022) (No. 20-61007), 2021 WL 1149884, at *2 [hereinafter Cato Brief].

  4. . NCLU Brief, supra note 1, at *3.

  5. . Jarkesy, 34 F.4th at 450.

  6. . Id.

  7. . Id. at 449.

  8. . NCLU Brief, supra note 1, at *3.

  9. . Id.

  10. . Jarkesy, 34 F.4th at 450.

  11. . See, e.g., Jarkesy v. SEC, 803 F.3d 9, 30 (D.C. Cir. 2015) (denying Manager 1 his jury request because the court lacked subject-matter jurisdiction for the case).

  12. . SEC v. Seghers, 298 F.App’x 319, 323 n.2 (5th Cir. 2008).

  13. . Id. at 322.

  14. . Id.

  15. . Id. at 323.

  16. . Id.

  17. . Thomas Glassman, Ice Skating up Hill: Constitutional Challenges to SEC Administrative Proceedings, 16 J. Bus. & Sec. L. 47, 68 (2015).

  18. . Id.

  19. . 15 U.S.C. § 78u(d) (authorizing the SEC to seek monetary penalties); id. § 78u-3 (authorizing the SEC to choose the forum).

  20. . Jarkesy v. SEC, 34 F.4th 446, 450 (5th Cir. 2022), cert. granted, 143 S. Ct. 2688 (2023).

  21. . H.R. Rep. No. 111-687, pt. 1, at 78 (2010).

  22. . U.S. Const. amend. VII.

  23. . Tull v. United States, 481 U.S. 412, 417 (1987).

  24. . Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 53 (1989).

  25. . See NCLU Brief, supra note 1, at *14; Jarkesy, 34 F.4th at 462.

  26. . See Cuban Brief, supra note 1, at *6.

  27. . 34 F.4th 446 (5th Cir. 2022), cert. granted, 143 S. Ct. 2688 (2023).

  28. . Id. at 459, 462.

  29. . Id.

  30. . Id. at 457.

  31. . Id. at 462–63.

  32. . Id. at 451–60.

  33. . 430 U.S. 442 (1977).

  34. . Tull v. United States, 481 U.S. 412, 425 (1987).

  35. . See infra pp. 34–35.

  36. . Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 49 (1989).

  37. . Tull, 481 U.S. at 417.

  38. . See William Baude, Adjudication Outside Article III, 133 Harv. L. Rev. 1511, 1570–71 (2020).

  39. . Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 589 (1985).

  40. . Granfinanciera, 492 U.S. at 53–54.

  41. . Oil States Energy Servs., LLC v. Green’s Energy Grp., LLC, 138 S. Ct. 1365, 1379 (2018) (quoting Granfinanciera, 492 U.S. at 53–54).

  42. . Jarkesy v. SEC, 34 F.4th 446, 453 (5th Cir. 2022), cert. granted, 143 S. Ct. 2688 (2023).

  43. . See The Declaration of Independence para. 20 (U.S. 1776) (“He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation: . . . For depriving us in many cases, of the benefits of Trial by Jury.”).

  44. . See Paul R. Verkuil, The Emerging Concept of Administrative Procedure, 78 Colum. L. Rev. 258, 279 (1978) (“It is equally important . . . to provide mechanisms that will not delay or frustrate substantive regulatory programs.”). Efficiency is the one of the SEC’s justifications for use of the administrative forum over district courts. “From the standpoint of deterrence and investor protection, I think we can all agree that it is better to have rulings earlier than later.” Andrew Ceresney, Director, SEC Div. of Enforcement, Remarks to the American Bar Association’s Business Law Section Fall Meeting (Nov. 21, 2014) (transcript available at http://perma.cc/C9HU-FB9V).

  45. . U.S Const. amend. VII.

  46. . Jennifer Walker Elrod, Is the Jury Still Out?: A Case for the Continued Viability of the American Jury, 44 Tex. Tech L. Rev. 303, 310 (2012). Judge Jennifer Walker Elrod was the Judge who authored the Jarkesy opinion. Jarkesy v. SEC, 34 F.4th 446 (5th Cir. 2022), cert. granted, 143 S. Ct. 2688 (2023).

  47. . Elrod, supra note 46, at 310.

  48. . Id. at 314.

  49. . See id. at 311.

  50. . Id.

  51. . Edward L. Rubin, Trial by Battle. Trial by Argument., 56 Ark. L. Rev. 261, 263 (2003).

  52. . Elrod, supra note 46, at 268–69.

  53. . See id. at 311.

  54. . Id.

  55. . Id.

  56. . Jack Pope, The Jury, 39 Tex. L. Rev. 426, 431 (1961). The reform process was not for some noble purpose, instead it was to keep revenue in the King’s Court rather than going to local tribunals. See id.

  57. . Id. at 432.

  58. . See id. at 431–39.

  59. . Id. at 434.

  60. . Id.

  61. . Id. at 435.

  62. . Pope, supra note 56, at 434.

  63. . Id. at 434–35.

  64. . Id. at 435.

  65. . Id. at 441.

  66. . Id.

  67. . Elrod, supra note 46, at 313.

  68. . Pope, supra note 56, at 441–42.

  69. . Id. at 442.

  70. . Id.

  71. . Id.

  72. . Id. at 442–43.

  73. . Pope, supra note 56, at 445.

  74. . Id.

  75. . Elrod, supra note 46, at 313.

  76. . Id.

  77. . Id.

  78. . Id.

  79. . Id. (quoting 6 Cobbett’s Complete Collection of State Trials and Proceedings for High Treason and Other Crimes and Misdemeanors from the Earliest Period to the Present Time 964 (1810)).

  80. . Id.

  81. . Elrod, supra note 46, at 313.

  82. . Id.

  83. . Id. at 313–14.

  84. . Bushell’s Case, 124 Eng. Rep. 1006, 1010 (C.P. 1670).

  85. . Pope, supra note 56, at 443.

  86. . See id. at 444

  87. . Id.

  88. . Id.

  89. . Id.

  90. . Id.

  91. . 4 William Blackstone, Commentaries *342.

  92. . Id. at *379.

  93. . Elrod, supra note 46, at 314–15.

  94. . Id. at 315.

  95. . Akhil Reed Amar, A Tale of Three Wars: Tinker in Constitutional Context¸ 48 Drake L. Rev. 507, 514 (2000).

  96. . Rachel E. Barkow, Recharging the Jury: The Criminal Jury’s Constitutional Role in an Era of Mandatory Sentencing, 152 U. Pa. L. Rev. 33, 52–53 (2003).

  97. . Id. at 53.

  98. . The Declaration of Independence para. 20 (U.S. 1776) (“He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation: . . . For depriving us in many cases, of the benefits of Trial by Jury.”).

  99. . Akhil Reed Amar, The Bill of Rights as a Constitution, 100 Yale L.J. 1131, 1183 (1991).

  100. . Id.

  101. . Kenneth S. Klein, The Validity of the Public Rights Doctrine in Light of the Historical Rationale of the Seventh Amendment, 21 Hastings Const. L.Q. 1013, 1018 (1994).

  102. . Id. at 1019.

  103. . Edith Build Henderson, The Background of the Seventh Amendment, 80 Harv. L. Rev. 289, 291–92 (1966).

  104. . Id. at 299.

  105. . Id. at 293–94.

  106. . Id. at 294.

  107. . Id. at 294–95.

  108. . See Charles W. Wolfram, The Constitutional History of the Seventh Amendment, 57 Minn. L. Rev. 639, 730 (1973).

  109. . Id. at 728.

  110. . Id. at 729.

  111. . Id.

  112. . Id. at 730.

  113. . Id.

  114. . Julius J. Marke, Peter Zenger’s Trial, 6 Litig. 41, 55 (1980).

  115. . Atlas Roofing Co. v. Occupational Safety & Health Rev. Comm’n, 430 U.S. 442, 460–61 (1977).

  116. . 481 U.S. 412 (1987).

  117. . Id. at 417 (internal quotation omitted).

  118. . Id. at 414.

  119. . Id. at 418.

  120. . Id. at 417 (citing Curtis v. Loether, 415 U.S. 189, 193 (1974)).

  121. . Id.

  122. . Tull v. United States, 481 U.S. 412, 417 (1987).

  123. . Id. at 420.

  124. . Id. at 423.

  125. . Jean Eaglesham, SEC Wins with In-House Judges, Wall St. J. (May 6, 2015, 10:30 PM), https://www.wsj.com/articles/sec-wins-with-in-house-judges-1430965803.

  126. . See SEC, Addendum to Division of Enforcement Press Release Fiscal Year 2022 (2022), https://www.sec.gov/files/fy22-enforcement-statistics.pdf.

  127. . Id.

  128. . Bushell’s Case, 124 Eng. Rep. 1006, 1010 (C.P. 1670).

  129. . Stern v. Marshall, 564 U.S. 462, 490–91 (2011).

  130. . See Glassman, supra note 17, at 50.

  131. . Id.

  132. . Oil States Energy Servs., LLC v. Green’s Energy Grp., LLC, 138 S. Ct. 1365, 1379 (2018).

  133. . See Den v. Hoboken Land & Improvement Co. (Murray’s Lessee), 59 U.S. (18 How.) 272, 284 (1855).

  134. . See Ellen E. Sward, Legislative Courts, Article III, and the Seventh Amendment, 77 N.C. L. Rev. 1037, 1064, 1103 (1999).

  135. . Klein, supra note 101, at 1023.

  136. . Baude, supra note 38, at 1577.

  137. . Klein, supra note 101, at 1023–24.

  138. . Id. at 1024–25.

  139. . Id. at 1024.

  140. . See id.; see also Oceanic Steam Navigation Co. v. Stranahan, 214 U.S. 320, 339 (1909) (Congress could “impose appropriate obligations and sanctions their enforcement by reasonable money penalties, giving executive officers the power to enforce such penalties without the necessity of invoking judicial power.”).

  141. . See Sward, supra note 134, at 1064.

  142. . Klein, supra note 101, at 1024.

  143. . Id.

  144. . Id. at 1024, 1031–32.

  145. . 59 U.S. (18 How.) 272 (1855).

  146. . Id. at 284–85.

  147. . Id. at 274.

  148. . Id. at 275.

  149. . Id. at 284.

  150. . Klein, supra note 101, at 1025.

  151. . 285 U.S. 22 (1932).

  152. . Id. at 36–37.

  153. . Id.

  154. . Id. at 37.

  155. . Id. at 50.

  156. . Id. at 60–61.

  157. . See Sward, supra note 134, at 1064, 1103.

  158. . Id.

  159. . Id.

  160. . See Jarkesy v. SEC, 34 F.4th 446, 454 (5th Cir. 2022), cert. granted, 143 S. Ct. 2688 (2023) (describing the SEC’s action as akin to common law fraud).

  161. . 430 U.S. 442 (1977).

  162. . Id. at 448–49.

  163. . Id. at 460.

  164. . Id. at 455.

  165. . Id. at 452 (quoting Crowell v. Benson, 285 U.S. 22, 50–51 (1932)).

  166. . 473 U.S. 586 (1985).

  167. . Id. at 571. FIFRA’s pesticide registration scheme is a matter for another law review article. For a summation of its process, see id. at 572–75 and Ruckelshaus v. Monsanto Co., 467 U.S. 986, 991–97 (1984).

  168. . Thomas, 473 U.S. at 593–94.

  169. . Id. at 589.

  170. . Id. at 587.

  171. . See id. at 589–93.

  172. . Stern v. Marshall, 564 U.S. 462, 490–91 (2011).

  173. . Id.

  174. . Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 53 (1989) (citing Atlas Roofing Co. v. Occupational Safety & Health Rev. Comm’n, 430 U.S. 442, 453–55 (1977)).

  175. . Baude, supra note 38, at 1520, 1542, 1547; Robert L. Glicksman & Richard E. Levy, The New Separation of Powers Formalism and Administrative Adjudication, 90 Geo. Wash. L. Rev. 1088, 1138 (2022) (“[T]he current doctrine concerning administrative adjudication is confusing and poorly defined.”). Efforts by judges to define public rights is equally confused. See Stern v. Marshall, 564 U.S. 462, 488 (2011) ([O]ur discussion of the public rights exception since that time has not been entirely consistent . . . .”); see also Transcript of Oral Argument at 6, SEC v. Jarkesy, 143 S. Ct. 2688 (2023) (No. 22-859) (“The court has never fully plumbed its outer perimeters.”).

  176. . 34 F.4th 446 (5th Cir. 2022), cert. granted, 143 S. Ct. 2688 (2023).

  177. . Id. at 467 (Davis, J. dissenting).

  178. . Id. at 454 (majority opinion) (citing Tull v. United States, 481 U.S. 412, 481 (1987)).

  179. . William F. Funk, Sidney A. Shapiro, & Russell L. Weaver, Administrative Procedure and Practice 558 (6th ed. 2019).

  180. . Oil States Energy Servs., LLC v. Green’s Energy Grp., LLC, 138 S. Ct. 1365, 1379 (2018) (emphasis added) (quoting Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 53–54 (1989)).

  181. . Baude, supra note 38, at 1577.

  182. . Id. Of course, this is not a perfect diagram that explains all the Court’s relevant holdings. Some cases are public rights because they embody a little bit of each category. See id. at 1578.

  183. . See, e.g., Matthews v. Eldridge, 424 U.S. 319 (1976) (rejecting court-like procedures in an administrative forum, because the plaintiff had adequate notice).

  184. . Jarkesy v. SEC, 34 F.4th 446, 453 (5th Cir. 2022), cert. granted, 143 S. Ct. 2688 (2023).

  185. . Baude, supra note 38, at 1578.

  186. . Id. at 1552–53.

  187. . Murray’s Lessee, 59 U.S. (18 How.) 272, 285 (1855).

  188. . NCLU Brief, supra note 1, at *3–4.

  189. . Baude, supra note 38, at 1578.

  190. . Crowell v. Benson, 285 U.S. 22, 50 (1932).

  191. . See Sward, supra note 134, at 1079.

  192. . Id.

  193. . Glassman, supra note 17, at 68.

  194. . Id.

  195. . Id.

  196. . Sward, supra note 134, at 1080.

  197. . Jonathan H. Adler, The Good, the Bad, and the Ugly of Jarkesy v. SEC, Volokh Conspiracy (Aug. 17, 2022, 6:10 p.m.) https://reason.com/volokh/2022/08/17/the-good-the-bad-and-the-ugly-of-jarkesy-v-sec/; see id. (“[T]he Fifth Circuit’s arguments that Atlas Roofing has been abrogated . . . [is] thoroughly unconvincing.”).

  198. . Jarkesy v. SEC, 34 F.4th 446, 450 (5th Cir. 2022), cert. granted, 143 S. Ct. 2688 (2023).

  199. . Id. at 451, 465.

  200. . Id. at 451.

  201. . See Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 42 (1989) (emphasis added).

  202. . See discussion infra Section II.A.1.

  203. . Granfinanciera, 492 U.S. at 42 (emphasis added).

  204. . Id. at 49 (emphasis added).

  205. . Id.

  206. . Jarkesy v. SEC, 34 F.4th 446, 451 (5th Cir. 2022), cert. granted, 143 S. Ct. 2688 (2023).

  207. . Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 53–54 (1977).

  208. . Jarkesy, 34 F.4th at 454.

  209. . Granfinanciera, 492 U.S. at 60–63 (quoting Atlas Roofing Co. v. Occupational Safety & Health Rev. Comm’n, 430 U.S. 442, 461 (1977)).

  210. . Jarkesy, 34 F.4th at 454–57.

  211. . Atlas Roofing, 430 U.S. at 453.

  212. . Jarkesy, 34 F.4th at 458 (citing Atlas Roofing, 430 U.S. at 445).

  213. . Id.

  214. . Id.

  215. . Oral Argument at 25:50, Jarkesy 34 F.4th 446 (No. 20–61007), https://www.courtlistener.com/audio/77971/jarkesy-v-sec/.

  216. . 15 U.S.C. § 78. Several of the Justices seemed to find this analogy fitting. See Transcript of Oral Argument at 100, 115, 146, SEC v. Jarkesy, 143 S. Ct. 2688 (2023) (No. 22-859).

  217. . See Jarkesy, 34 F. 4th at 455 (“The traditional elements of common-law fraud are (1) a knowing or reckless material misrepresentation, (2) that the tortfeasor intended to act on and (3) that harmed the plaintiff.” (quoting In re Deepwater Horizon, 857 F.3d 246, 249 (5th Cir. 2017)) (emphasis added)).

  218. . Jarkesy, 34 F. 4th at 472 (Davis, J., dissenting).

  219. . Id.

  220. . Id. at n.47.

  221. . Id. at 456 (majority opinion) (citing Atlas Roofing v. Occupational Safety & Health Rev. Comm’n, 430 U.S. 442, 445 (1977)).

  222. . See 15 U.S.C § 78u-2.

  223. . Atlas Roofing, 430 U.S. 442, 453 (1977).

  224. . Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 60–63 (1977).

  225. . Jarkesy, 34 F.4th at 456.

  226. . See id.

  227. . Id. at 455–56.

  228. . Id. at 456.

  229. . See Adler, supra note 197.

  230. . Jarkesy, 34 F.4th at 459.

  231. . Id. at 460.

  232. . Id. at 461 (quoting Crowell v. Benson, 285 U.S. 22, 50 (1992)).

  233. . See Oceanic Steam Navigation Co. v. Stranahan, 214 U.S. 320, 339 (1909).

  234. . Jarkesy, 34 F.4th at 461 (quoting INS v. Chadha, 462 U.S. 919 (1983)).

  235. . Crowell v. Benson, 285 U.S. 22, 50 (quoting Ex parte Bakelite Corp., 279 U.S. 438, 451 (1929)).

  236. . Mistretta v. United States, 488 U.S. 361, 372 (1989).

  237. . Jarkesy, 34 F.4th at 462.

  238. . Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2364 (2001).

  239. . See Brandon J. Johnson, The Accountability–Accessibility Disconnect, 58 Wake Forest L. Rev. 65, 74–80 (2023).

  240. . See Jarkesy, 34 F.4th at 460 (citing Gundy v. United States, 139 S. Ct. 2116, 2134 (2019) (Gorsuch, J., dissenting)).

  241. . Id.

  242. . See Granfinanciera, S.A., v. Nordberg, 492 U.S 33, 51 (1989).

  243. . Id. at 42.

  244. . Id. at n.4.

  245. . See discussion supra Part II.A.2.

  246. . Granfinanciera, 492 U.S. at 49.

  247. . Id.

  248. . Id.

  249. . Atlas Roofing Co. v. Occupational Safety & Health Rev. Comm’n, 430 U.S. 442, 450 (1977) (emphasis added).

  250. . 279 U.S. 438 (1929).

  251. . Id. at 451.

  252. . Id. at 589 (quoting N. Pipeline Constr. Co. v. Marathon Pipeline Co., 458 U.S. 50, 68 (1982) (plurality opinion)).

  253. . See Jarkesy v. SEC, 34 F.4th 446, 461 (5th Cir. 2022), cert. granted, 143 S. Ct. 2688 (2023).

  254. . Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 49 (1989).

  255. . See, e.g., Transcript of Oral Argument at 119–20, SEC v. Jarkesy, 143 S. Ct. 2688 (2023) (No. 22-859) (Justice Sotomayor expressing concern that finding for Jarkesy could nullify all agency adjudication).

  256. . See, e.g., Transcript of Oral Argument at 27, SEC v. Jarkesy, 143 S. Ct. 2688 (2023) (No. 22-859) (Justice Kavanaugh expressing concern that the government throws a different label on a suit and can deprive litigants of jury trials and other due process rights in civil litigation).

  257. . Consent overcomes any assignment problems. “The entitlement to an Article III adjudicator is a ‘personal right’ and thus ordinarily ‘subject to waiver.’” Wellness Int’l Network, Ltd. v. Sharif, 575 U.S. 665, 678 (2015) (quoting Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833, 848 (1986)).

  258. . Transcript of Oral Argument at 135–36, Jarkesy, 143 S. Ct. 2688 (No. 22-859); see also Christopher J. Walker & David Zaring, The Right to Remove in Agency Adjudication, 84 Ohio St. L.J. (forthcoming 2024) (manuscript at 33), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4644940.

  259. . 5 U.S.C. § 553.

  260. *. J.D. Candidate 2024 Wake Forest University School of Law; B.S. Finance Brigham Young University; incoming associate at Morris Nichols Arsht & Tunnell. The biggest thank you goes to my wife Brooke, and our kids Scott, Liam, and Sonya (Sunny), their love and support means more than I can express here. Also thank you to Christian Schweitzer who has been a mentor to me since my 1L year and provided so much help and support as editor of the note. For helpful feedback and discussion, I would like to thank Professors Christine Coughlin, Lee-ford Tritt, and Sidney Shapiro. Finally, a huge thank you for the Law Review team, specifically Keegan Hicks, Dylan Ellis, and Haley Hurst, each of them made my note much clearer.

Jasmine Jaffe

Former President Donald Trump faces a total of 91 felony charges across four separate criminal indictments.[1] Pleading not guilty to all charges against him, all four jurisdictions are gearing up for trial, and the timeline of these legal proceedings carries significant implications for the 2024 Presidential Election.[2] As the very likely Republican nominee, Trump is set to face off against his 2020 opponent, President Joe Biden.[3] If Trump is convicted and sentencing occurs before November 5, there stands a real possibility of the presidential candidate being in a prison cell when Americans cast their votes.

New York Hush Money Indictment

On March 30, 2023, Manhattan District Attorney Alvin Bragg announced that a grand jury had indicted former President Trump on 34 felony charges of falsifying business records concerning hush money payments made to Stormy Daniels.[4] Prosecutors allege that Trump “orchestrated a scheme with others to influence the 2016 presidential election by identifying and purchasing negative information about him to suppress its publication and benefit the Defendant’s electoral prospects.”[5] The defense filed multiple motions to dismiss the charges to no avail and as of February 15, Trump’s first criminal trial is set to begin March 25.[6] According to presiding Judge Merchan, the trial is expected to last five or six weeks, ending in late April or early May.[7] If convicted, which is likely considering the New York jury pool and the strength of the evidence, each count could result in a prison sentence of up to four years, to be served consecutively, or the judge could impose no prison sentence.[8] The latter is seen as the most likely result because the accusations against Trump are largely victimless.[9] Consequently, the judge is not likely to sentence him to anything more than fines, or at most, probation and community service.[10]

Florida Classified Documents Indictment

Trump faces his most serious charges in a 40-felony count indictment related to his alleged mishandling of classified documents at Mar-a-Lago.[11] While the trial is technically set for May, Trump filed a motion to dismiss on February 22, claiming he should be shielded from prosecution by presidential immunity.[12] This motion aligns with previous requests to toss out the indictment, citing alleged prosecutorial misconduct and selective and vindictive prosecution.[13] By flooding the court with these motions and the amount of discovery required, it is highly unlikely that trial will occur before the election.[14] If elected and able to pardon himself, Trump may avoid his most damning indictment, which typically carries “prison sentences of several years or more.”[15]

January 6th Election Interference Indictment

Trump’s third indictment stems from special counsel Jack Smith’s investigation into alleged efforts by the former president to overturn the 2020 election. The indictment alleges Trump “attempted to exploit the violence and chaos at the Capitol by calling lawmakers to convince them . . . to delay the certification.”[16] In October, the Trump defense team filed a motion to dismiss citing presidential immunity under Nixon v. Fitzgerald.[17] After the district court rejected this argument in December, special counsel Jack Smith sought the extraordinary step of bypassing the D.C. Circuit’s appeal process by turning directly to the Supreme Court. Smith argued that the “Court should grant a writ of certiorari before judgment to ensure that it can provide the expeditious resolution this case warrants.”[18] The Court was unconvinced and denied the special counsel’s request, sending the case back to the D.C. Circuit.[19] On February 6, the appeals court unanimously affirmed the District Court, with Trump shortly after requesting the Supreme Court to block the appeals court ruling.[20] Twenty-two days later, the Court granted cert and oral argument has been set for April 22.[21] Given the Court’s expected timeline, a decision will likely not be issued until late June.[22] Assuming the former President does not receive immunity, this would push the trial right up to the election.[23] However, most legal commentators believe this is “game over” for Jack Smith, and the trial will not conclude until after November 5.[24]

Georgia Election Racketeering Indictment

The most recent of Trump’s criminal charges occurred on August 14, 2023, when a grand jury in Fulton County, Georgia indicted the former President for violation of state RICO charges, among 12 other charges.[25] Like other prosecutors, Fulton County District Attorney Fani Willis is seeking to secure a conviction before the election.[26] However, she faces her own uphill battle as she is fighting efforts against her disqualification from the case for alleged corruption.[27] Trump co-defendant Michael Roman and several other co-defendants are seeking Willis’ disqualification from the election case on the grounds that she benefited financially from a romantic relationship with an attorney who she hired for the case.[28] Legal observers are split on if presiding Judge Scott McAfee will decide to remove Willis from the case.[29] If she is removed, it would take some time for a new prosecutor to be appointed, and an even longer time for the complex, 15-defendant case to see trial.[30] This delay would likely mean that President Trump, yet again, escapes prosecution until after the election.

In summary, the likelihood of the former President finding himself behind bars before November 5, 2024, appears remote. Even in the event of a conviction in any of the pending criminal cases, legal processes, appeals, and potential delays are likely to extend well beyond the election. The protracted nature of the legal system, combined with the complexity of the charges and the strategic legal maneuvers employed by Trump’s defense team, make the prospect of prompt resolutions improbable.


[1] Gareth Evans, A guide to Donald Trump’s four criminal cases, BBC (Feb. 15, 2024), https://www.bbc.com/news/world-us-canada-61084161.

[2] Id.

[3] Ken Bredemeier, Trump Moving Closer to Election Rematch With Biden, Voice of America (Feb. 25, 2024), https://www.voanews.com/a/trump-moving-closer-to-election-rematch-with-biden/7501994.html.

[4] Indictment, People v. Trump, Case No. 1:23-cv-71543 (S.D.N.Y. Mar. 30, 2023).

[5] Statement of Facts, People v. Trump, Case No. 1:23-cv-71543 (S.D.N.Y. Mar. 30, 2023).

[6] Frank G. Runyeon, Trump Gets March 25 Trial Date in NY Hush Money Case, Law360 (Feb. 15, 2024), https://www.law360.com/articles/1803271/trump-gets-march-25-trial-date-in-ny-hush-money-case.

[7] Id.

[8]Ann E. Marimow, Here are the 34 charges against Trump and what they mean, Wash. Post (Apr. 4, 2023), https://www.washingtonpost.com/national-security/2023/04/04/trump-charges-34-counts-felony/#.

[9] John Bowden, Will Donald Trump go to prison?, The Independent (Feb. 15, 2024), https://www.the-independent.com/news/world/americas/us-politics/trump-prison-jail-time-trial-b2497046.html.

[10] Id.

[11] Indictment, U.S. v. Trump, Case No. 23-cr-80101 (S.D. Fla. Jul. 27, 2023).

[12] Perry Stein & Dalvin Barrett, Trump again claims immunity in effort to toss Fla. Classified documents case, Wash. Post (Feb. 23, 2024), https://www.washingtonpost.com/national-security/2024/02/22/trump-classified-documents-motions-dismiss/#.

[13] Id.

[14] Alan Feuer & Maggie Haberman, A Trump Judge Under Scrutiny, N.Y. Times (Feb. 22, 2024), https://www.nytimes.com/2024/02/22/us/politics/trump-trial-documents-cannon.html. Some have called for Judge Aileen Cannon’s removal from the case, characterizing her one of the “far worse of the jurists overseeing these momentous cases” and alleging that her “decisions during the investigative phase of the case strayed widely from precedent.” Norman L. Eisen & Joshua Kolb, Aileen Cannon Might Actually Get Herself Kicked Off the Trump Classified Docs Case, Slate (Feb. 20, 2024), https://slate.com/news-and-politics/2024/02/aileen-cannon-trump-classified-disqualification.html.

[15] John Bowden, Will Donald Trump go to prison?, The Independent (Feb. 15, 2024), https://www.the-independent.com/news/world/americas/us-politics/trump-prison-jail-time-trial-b2497046.html.

[16] Indictment, U.S. v. Trump, Case No. 23-cr-00257 (D.D.C. Aug. 1, 2023), at 41.

[17] Motion to Dismiss Indictment Based on Presidential Immunity, U.S. v. Trump, Case No. 23-cr-00257 (D.D.C. Oct. 5, 2023). Nixon held that the President is entitled to absolute immunity from liability for official responsibilities. Nixon v. Fitzgerald, 457 U.S. 731, 756 (1982).

[18] Petition for Writ of Certiorari, US v. Trump, (No. 23-00357), at 3.

[19] Robert Barnes, Supreme Court won’t expedite ruling on Trump’s immunity claim, Wash. Post (Dec. 22, 2023), https://www.washingtonpost.com/national-security/2023/12/22/supreme-court-trump-immunity-expedition-denied/#.

[20] US v. Trump, Case No. 23-cr-00257-1 (D.C. Cir. Feb. 6, 2024).

[21] Trump v. US, cert. granted, No. 23-939 (Feb. 28, 2024).

[22] Adam Liptak, Supreme Court Agrees to Hear Trump’s Immunity Claim, Setting Arguments for April, N.Y. Times (Feb. 28, 2024), https://www.nytimes.com/2024/02/28/us/supreme-court-trump-immunity-trial.html.

[23] Zach Schonfeld, Trump’s Jan. 6 trial falls into doubt as Supreme Court takes up immunity claims, Hill (Feb. 29, 2024), https://thehill.com/regulation/court-battles/4497023-trump-jan-6-trial-supreme-court-immunity-claims//.

[24] Rick Hasen, Why Did the Supreme Court Wait So Long to Decide to Set the Trump Criminal Immunity Case for Full Hearing and Argument? It Likely Means No Trial for Trump on Election Subversion Before the Election, Election Law Blog (Feb. 28, 2024), https://electionlawblog.org/?p=141686; Kyle Cheney & Josh Gerstein, How the Supreme Court just threw Trump’s 2024 trial schedule into turmoil, Politico (Feb. 28, 2024), https://www.politico.com/news/2024/02/28/how-the-supreme-court-just-threw-trumps-2024-trial-schedule-into-turmoil-00144043 (The trial judge has indicated that she would give Trump about three months to prepare for a new trial date, meaning that the trial would likely not begin until, at the earliest, October. The trial itself is expected to last another three months and thus ending in December).

[25] Indictment, Trump v. State, Case No. 23-sc-188947 (Fulton Super. Ct. Aug. 14, 2023)

[26] Jan Wolfe & Cameron McWhirter, Georgia Prosecutors Seek August 2024 Trial Date for Trump, Wall St. J. (Nov. 17, 2023), https://www.wsj.com/politics/elections/georgia-prosecutors-seek-august-2024-trial-date-for-trump-bb9ae97c#.

[27] David Wicket & Bill Rankin, Meet Mike Roman, the man trying to bring down Fani Willis, Atlanta J. Const. (Feb. 7, 2024), https://www.ajc.com/politics/meet-mike-roman-the-man-trying-to-bring-down-fani-willis/YMCZT7UVHBDRNAMYRPGJUATMJU/.

[28] Id.

[29] See Katie S. Phang, Why Judge McAfee’s Fani Willis decision is a surprisingly easy one, MSNBC (Feb. 21, 2024), https://www.msnbc.com/opinion/msnbc-opinion/fani-willis-hearing-decision-judge-mcafee-georgia-case-rcna139750#. See cf. Thomas Kika, Fani Willis’ Decision is ‘Bad Look,’ Ex-Prosecutor Warns, Newsweek (Feb. 5, 2024), https://www.newsweek.com/fani-willis-joyce-vance-fulton-county-1867069.

[30] Alison Durkee, Will Fani Willis Be Disqualified? Here’s What Would Happen Next if She’s Removed., Forbes (Feb. 16, 2024), https://www.forbes.com/sites/alisondurkee/2024/02/16/will-fani-willis-be-disqualified-heres-what-would-happen-next-if-shes-removed/?sh=64b691a017be.

 

By Michael VerMeulen

In a legal battle between qualified immunity and freedom of the press, which one will come out on top? In the eyes of the Fifth Circuit, the First Amendment bows down to qualified immunity for police officers. [1]

This fight has come to the legal forefront in Villarreal v. City of Laredo.[2] The case concerns independent Facebook-based investigator Priscilla Villarreal who is infamous amongst police officers in the City of Laredo, Texas for filming crime scenes and covering police misconduct.[3] In an apparent act of retaliation, the Laredo Police Department arrested and detained Villarreal for violating Texas Penal Code § 39.06(c), under which a person may not inquire about non-public information that a public official has access to by means of their employment if the person has an intent to “benefit” from the information.[4] The Department based its arrest on Villarreal’s procurement of a deceased Border Patrol officer’s name prior to the Department’s public disclosure of this information. [5] Six months after Villarreal obtained the officer’s name, the Department charged her with the Penal Code violation.[6]

After Villarreal’s release on bail, prosecutors dropped the charges following her successful habeas corpus petition.[7] Subsequently, Villarreal sued the City of Laredo, its police department, and numerous officers in federal district court for unlawful interference with her constitutional rights, most notably her “First Amendment rights as a citizen journalist.”[8]

The district court granted summary judgment to the defendants, and Villarreal appealed its decision to the Fifth Circuit. [9] There, a three-judge panel ruled 2-1 in Villarreal’s favor and held that detaining a journalist for simply asking a question was an “obvious violation of the Constitution.”[10] Citing the Supreme Court’s landmark 1971 decision in New York Times Co. v. United States, Judge Ho’s majority opinion rightfully pondered: “If the government cannot punish someone for publishing the Pentagon Papers, how can it punish someone for simply asking for them?”[11] Nevertheless, the Fifth Circuit decided to convene and rehear the case en banc. [12]  And on January 23, 2024, the Court issued a 9-7 decision in favor of the defendants,[13] and four separate judges issued dissenting opinions. [14]

The Fifth Circuit reasoned that the facts of Villarreal’s case did not meet the standard for bypassing police officers’ qualified immunity for work-related behavior, as Villarreal’s asserted constitutional rights had not been “clearly established” at the time of the alleged violation.[15] There is a logic to the majority’s reasoning. Quoting the Supreme Court’s 2018 decision in Kisela v. Hughes, the court stated that “police officers are entitled to qualified immunity unless existing precedent squarely governs the specific facts at issue.”[16] To that end, the Texas Penal Code § 39.06(c) had not yet been ruled unconstitutional, and no case has previously held “that it is unconstitutional to arrest a person, even a journalist, upon probable cause for violating a statute that prohibits solicitation and receipt of nonpublic information from the government for personal benefit.”[17]

However, the Supreme Court’s reasoning in Kisela explicitly referred to officer immunity concerning potential Fourth Amendment violations–an area of the law “where the Court has recognized that it is sometimes difficult for an officer to determine how the relevant legal doctrine, here excessive force, will apply to the factual situation the officer confronts.”[18]

In contrast to situations involving excessive force, police officers interacting with reporters do not have to apply complex legal doctrines to specific, split-second situations. [19]  Rather, officers know that it is a “fundamental personal right” shared by every American.[20] Further, the Laredo officers in this case could not have believed in good faith that have Villarreal’s questions were “sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed.[21] Indeed, no Texas jury had ever returned a guilty verdict for a 39.06(c), and the Laredo Police Department had never even charged a person with an offense under the statute despite having likely been asked questions about confidential matters countless times by journalists.[22]

Under the new standard set by the Fifth Circuit, police officers may arrest any journalist who asks a question about information that is not publicly available. [23] While journalists will almost never by found guilty of investigative crimes, the police can be harass them and take their liberties taken away without having to worry about any potential civil liability. [24]

In his dissenting opinion in Villarreal, Judge Willett stated in frank terms that “encyclopedic jurisprudential knowledge is imputed to Villarreal, but the government agents targeting her are free to plead (or feign) ignorance of bedrock constitutional guarantees.”[25] In his own dissent, Judge Graves criticized the Court’s opinion for the legal implications it may have on journalism as “the majority would limit journalists who work the government beat to publicly disclosed documents and official press conferences, meaning they will only be able to report information the government chooses to share.”[26] Graves also noted his concern over the potential chilling effects stemming from the court’s decision, as “it is not even clear whether the majority’s opinion would allow journalists to request information in good faith from official channels without fear of reprisal.”[27]

Villarreal has already expressed her desire to appeal the case to the Supreme Court[28], which will hopefully grant certiorari to clear up the extent to which qualified immunity overrules First Amendment violations. In the meantime, though, journalists will have to work with uncertainty as to whether they are entitled to their constitutional rights. With the possibility of a legal remedy removed, Texas journalists can only hope that they do not ask the wrong question to the wrong police officer.


[1] See Villarreal v. City of Laredo, Texas, No. 20-40359, 2024 WL 244359 (5th Cir. Jan. 23, 2024

[2] Id.

[3]Roxanna Asgarian, Appeals court to decide if First Amendment should have protected Laredo’s “big crazy lady” from arrest, The Texas Tribune (Jan. 6, 2023, 5:00 AM), https://www.texastribune.org/2023/01/06/first-amendment-laredo-journalist/.

[4] Tex. Penal Code Ann. § 39.06 (West); see also Id. § 1.07(a)(7) (“’Benefit’ means anything reasonably regarded as economic gain or advantage, including benefit to any other person in whose welfare the beneficiary is interested.”)

[5] Asgarian, supra note 3.

[6] Id.

[7] Villarreal, supra note 1.

[8] Villarreal v. City of Laredo, Texas, No. 5:19-CV-48, 2020 WL 13517246 (S.D. Tex. May 8, 2020), aff’d in part, rev’d in part and remanded, 17 F.4th 532 (5th Cir. 2021), withdrawn and superseded by 44 F.4th 363 (5th Cir. 2022), reh’g en banc granted, opinion vacated, 52 F.4th 265 (5th Cir. 2022), and superseded on reh’g en banc, No. 20-40359, 2024 WL 244359 (5th Cir. Jan. 23, 2024), and aff’d in part, rev’d in part and remanded, 44 F.4th 363 (5th Cir. 2022), and reh’g en banc granted, opinion vacated, 52 F.4th 265 (5th Cir. 2022), and superseded on reh’g en banc, No. 20-40359, 2024 WL 244359 (5th Cir. Jan. 23, 2024)).

[9] Villarreal v. City of Laredo, Texas, 44 F.4th 363 (5th Cir. 2022), reh’g en banc granted, opinion vacated, 52 F.4th 265 (5th Cir. 2022), and superseded on reh’g en banc, No. 20-40359, 2024 WL 244359 (5th Cir. Jan. 23, 2024).

[10] Id.

[11] 44 F.4th 363, 371 (citing New York Times Co. v. U.S., 403 U.S. 713 (1971)).

[12] Villarreal v. City of Laredo, Texas, 52 F.4th 265 (5th Cir. 2022).

[13] Villarreal v. City of Laredo, Texas, No. 20-40359, 2024 WL 244359 (5th Cir. Jan. 23, 2024).

[14] Grayson Clary, In Texas, a disastrous ruling for jounralists’ rights, Reporters Committee (Jan. 29, 2024), https://www.rcfp.org/fifth-circuit-qualified-immunity/.

[15] Villarreal v. City of Laredo, Texas, No. 20-40359, 2024 WL 244359 (5th Cir. Jan. 23, 2024) (citing Rivas-Villegas v. Cortesluna, 595 U.S. 1 (2021))

[16] Kisela v. Hughes, 584 U.S. 100, 104 (2018) (per curium).

[17] Villarreal v. City of Laredo, Texas, No. 20-40359, 2024 WL 244359 (5th Cir. Jan. 23, 2024)

[18] Id. (quoting Mullenix v. Luna, 577 U.S. 7, 12 (2015) .

[19] Villarreal v. City of Laredo, Texas, No. 20-40359, 2024 WL 244359 (5th Cir. Jan. 23, 2024) (Willett, J., dissenting).

[20] Branzburg v. Hayes, 408 U.S. 665 (1972).

[21] Brinegar v. United States, 338 U.S. 160, 175 (1949).

[22] Villarreal v. City of Laredo, Texas, No. 20-40359, 2024 WL 244359 (5th Cir. Jan. 23, 2024) (Higginson, J., dissenting).

[23] Billy Binion, This Court Case Could Make It a Crime to Be a Journalist in Texas, Reason (Nov. 4, 2022, 10:03 AM), https://reason.com/2022/11/04/this-court-case-could-make-it-a-crime-to-be-a-journalist-in-texas/.  

[24] Villarreal v. City of Laredo, Texas, No. 20-40359, 2024 WL 244359 (5th Cir. Jan. 23, 2024) (Willett, J., dissenting)

[25] Id. (Willett, J., dissenting).

[26] Id. (Graves, J., dissenting).

[27] Id.

[28] Lagordiloca News LaredoTx, Facebook (Jan. 27, 2024, 4:14PM),

 

 

14 Wake Forest L. Rev. Online 1

Sam Kiehl[1]*

Introduction

Should an independent school that maintains a § 501(c)(3) tax-exempt status be obligated to comply with Title IX? The answer comes down to how you define “federal financial assistance.”[2] Two recent federal court decisions from opposite ends of the country came out four days apart in July 2022, seeking to address this exact question. The U.S. District Court for the District of Maryland and the U.S. District Court for the Central District of California both expanded Title IX coverage, ruling that independent schools may be subject to Title IX based on maintaining a § 501(c)(3) tax-exempt status.[3] Both courts noted that the United States Supreme Court has never directly addressed whether a tax-exempt status under § 501(c)(3) constitutes federal financial assistance for purposes of Title IX.[4] No federal appellate court has considered the issue either. This Note argues Congress should amend 20 U.S.C. §§ 1681–89 (Title IX) to include a provision that defines “federal financial assistance” and specify that the term includes educational organizations that maintain a tax-exemption. By appropriately distinguishing how “federal financial assistance” is defined, Congress will ensure the judiciary is not operating in a legislative capacity while also fully honoring Title IX’s purpose.

Part I of this Note explores the connection between 26 U.S.C. § 501(c)(3) and 20 U.S.C. §§ 1681–89 and addresses the reasoning for why the Buettner-Hartsoe[5] and E.H. ex rel. Herrera[6] courts concluded that an independent school maintaining a § 501(c)(3) tax-exemption constitutes “federal financial assistance” for purposes of Title IX. Part II analyzes the appellate cases that have further defined the meaning behind terminology used in § 501(c)(3) and Title IX, and it considers several district court cases that have split on whether maintaining a tax-exemption constitutes “federal financial assistance.” Part III reviews scholarly arguments in favor of expanding the public policy doctrine to incorporate Title IX and tax-expenditure theory and ultimately concludes that each argument provides an inadequate or unlikely remedy.

Last, Part IV of this Note argues the Legislature should amend 20 U.S.C. §§ 1681–89 to include a provision which defines “federal financial assistance” and specifies that the term includes educational organizations that maintain a § 501(c)(3) tax-exemption. By doing so, Congress would honor the intent behind Title IX and fulfill the statute’s purpose. In addition, such legislation would prevent the judiciary from legislating by creating a judicial answer to a term not defined by the applicable legislation.

I. Bringing the Issue to Light: Buettner-Hartsoe and E.H. ex rel. Herrera

Both the Buettner-Hartsoe and E.H. ex rel. Herrera cases have brought the relationship between 26 U.S.C. § 501(c)(3) and Title IX to the forefront.[7] The most notable component of Title IX when considering the interplay between the statutes is § 1681(a), which states that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefit of, or be subjected to discrimination under any education program or activity receiving federal financial assistance . . . .”[8] Neither Congress, the IRS, nor the Supreme Court have provided an exact definition regarding what “federal financial assistance” fully entails. Meanwhile, 26 U.S.C. § 501(c)(3) provides a list of organizations that are exempt from taxation. This list states that any corporation and any community chest, fund, or foundation organized and operated exclusively for the following eight categories qualify for this exemption: (1) religious, (2) charitable, (3) scientific, (4) testing for public safety, (5) literary, (6) educational, (7) foster national or international amateur sports competition, or (8) prevention of cruelty to children or animals.[9] The crux of the issue returns to how “federal financial assistance” is defined under Title IX and whether it includes tax-exemptions under § 501(c)(3).

A. Buettner-Hartsoe v. Baltimore Lutheran High School Association

In Buettner-Hartsoe, the U.S. District Court for the District of Maryland considered five cases brought by separate women against an independent school, all alleging sexual assault and verbal sexual harassment by male students at the school.[10] The plaintiffs brought several of the claims under Title IX.[11] The defendant-school argued it was not subject to Title IX jurisdiction, as it was not a recipient of “federal financial assistance” during the times of the allegations.[12] Ultimately, the court found the defendant’s tax-exempt status maintained under § 501(c)(3) constitutes “federal financial assistance” for the purposes of Title IX, and the court deemed the plaintiffs had viable causes of action.[13]

To support this conclusion, the court first looked at how Title IX’s regulations clarify that a “recipient” under the statute is any entity or person to “whom Federal financial assistance is extended directly or through another recipient and which operates an education program or activity which receives such assistance.”[14] It further noted that neither the Supreme Court nor the Fourth Circuit had directly addressed the issue but provided that key decisions of both courts supported the District Court’s conclusion.[15] The cases that the court relied on involved the following issues: (1) when an entity qualifies as a direct, as opposed to indirect, recipient of “federal financial assistance” for purposes of Title IX;[16] (2) whether an institution must receive federal aid directly for the aid to qualify as “federal financial assistance” under § 501(c)(3);[17] (3) what the purpose and scope of tax-exemptions under § 501(c)(3) are;[18] (4) whether tax-exempt institutions must be in harmony with the public interest;[19] and (5) whether the remedies Congress created in Title IX were modeled after and comparable to those Congress created in Title VI.[20]

Additionally, the court referenced how the Eleventh Circuit had noted in dicta that tax-exemptions qualifying as “federal financial assistance” under Title IX were “neither immaterial nor wholly frivolous.”[21] The court concluded that enforcing the mandates of Title IX in schools with a § 501(c)(3) tax-exempt status aligns with the principal objectives of Title IX, which is to avoid the use of federal resources to support discriminatory practices and to ensure citizens have effective protection against discriminatory practices.[22] It thus found an independent school that maintains a § 501(c)(3) tax-exemption must comply with Title IX requirements.[23]

B. E.H. ex rel. Herrera v. Valley Christian Academy

Meanwhile, in E.H. ex rel. Herrera, the U.S. District Court for the Central District of California heard a suit that involved a female football player at a public high school alleging sex discrimination in violation of Title IX against a private school that refused to play the plaintiff’s football team entirely because of the plaintiff’s gender.[24] The defendant-school argued it did not derive financial assistance from the United States government and thus was not subject to Title IX.[25] The District Court noted that the Ninth Circuit had not addressed whether tax-exempt status confers “federal financial assistance” under Title IX.[26]

The District Court compared two district court cases that had come to opposite conclusions regarding whether tax-exempt status could subject an organization to the requirements of Title IX or Title VI.[27] In a somewhat more conclusory manner than the Buettner-Hartsoe court, the District Court found the “plain purpose of [Title IX] controlling” absent any controlling precedent or legislative history to the contrary.[28] The court noted that because Title IX’s purpose was to eliminate discrimination in programs benefiting from federal financial assistance, the school’s tax-exempt status qualified as “federal financial assistance” and obligated compliance with Title IX.[29]

II. Putting the Pieces Together: Analyzing Appellate and District Level Cases Dealing with Title IX and § 501(c)(3)

While no appellate court has directly addressed whether an educational organization maintaining a § 501(c)(3) tax-exemption must comply with Title IX requirements, there are a number of appellate decisions that address peripheral issues that may be melded together to answer this question. There are also several district level cases prior to Buettner-Hartsoe and E.H. ex rel. Herrera that have addressed the issue head-on.

A. Appellate Cases That Bring Clarity to Title IX and § 501(c)(3)

Grove City College v. Bell[30] is arguably the most vital Supreme Court case to the argument that an independent school maintaining a § 501(c)(3) tax exemption should be obligated to comply with Title IX.[31] In Grove City, the Supreme Court outlined its interpretation of federal financial assistance for civil rights statutory purposes, doing so in the context of defining what an “educational program or activity” is under Title IX.[32] The defendant, Grove City College, argued that neither it nor any education program affiliated with it received federal financial assistance within the meaning of Title IX.[33] Grove City College stated that just because some of its students received Basic Educational Opportunity Grants and used these funds to pay for their education did not alter the fact that it did not receive “federal financial assistance” per Title IX.[34] In Grove City, the Court stated there was no basis in Title IX for the view that only institutions that themselves apply for federal aid or receive checks directly from the federal government are subject to Title IX regulations.[35] The Court confirmed that an institution still qualifies as a recipient of “federal financial assistance” under Title IX even if the institution did not apply for the aid directly.[36] That the government granted the federal funds to Grove City College students rather than directly to one of the college’s educational programs did not preclude Title IX coverage.[37]

National Collegiate Athletic Ass’n v. Smith[38] is the next Supreme Court case that helps define key terms to identify whether a § 501(c)(3) tax-exemption qualifies as federal financial assistance for purposes of Title IX.[39] In this case, the Court defined “recipient” under 34 C.F.R. § 106.2.[40] The Court’s definition of “recipient” makes clear that an entity does not trigger Title IX coverage merely when it benefits from federal funding.[41] The Court stated that this definition is in accordance with Grove City Coll., noting that entities receiving federal financial assistance, whether directly or through an intermediary, are recipients within the meaning of Title IX, but entities that only benefit economically from federal assistance are not.[42]

Meanwhile, in Regan v. Taxation With Representation of Washington,[43] the Supreme Court addressed caveats to the exclusions provided for in 26 U.S.C. § 501(c)(3).[44] The Court ruled the provision in § 501(c)(3) that prohibits tax-exempt status for organizations that seek to influence legislation does not violate the First Amendment.[45] Notable for the argument that a tax-exemption constitutes federal financial assistance for purposes of Title IX, the Court concluded that tax exemptions are a form of subsidy that is administered through the tax system and “has much the same effect as a cash grant to the organization of the amount of tax it would have to pay on its income.”[46]

B. Modeled After Title VI: Title IX, § 504 of the Rehabilitation Act, and the Age Discrimination Act

Understanding “federal financial assistance” as defined in Title IX requires looking beyond the statute and identifying the connection between how the term is used in Title VI, § 504 of the Rehabilitation Act, and the Age Discrimination Act. In Cannon v. University of Chicago[47], the Supreme Court said the principal aim of Title IX was to “avoid the use of federal resources to support discriminatory practices” and “to provide individual citizens effective protection against those practices.”[48] Cannon also noted that Title VI served as a model for Title IX.[49] In coming to this determination, the Court looked to the legislative history and compared the comments of Congress when initially passing Title VI and Title IX.[50] When discussing Title VI, Senator Pastore noted the “purpose of [T]itle VI is to make sure that funds of the United States are not used to support racial discrimination.”[51] When pivoting to the discussion of Title IX, Representative Mink stated that “[a]ny college or university which has [a] … policy which discriminates against women applicants … is free to do so under [Title IX] but such institutions should not be asking the taxpayers of this country to pay for this kind of discrimination.”[52]

The Ninth Circuit noted in Schmitt v. Kaiser Foundation Health Plan of Washington[53] that not only did Title VI serve as a model for Title IX, but it also served as a model for the Age Discrimination Act and the Rehabilitation Act.[54] Accordingly, the court chose to interpret the four statutes similarly.[55] This is crucial, as any argument that states “federal financial assistance” should be defined a certain way regarding Title IX, likely must be able to support “federal financial assistance” being defined in the same manner when interpreting Title VI, § 504 of the Rehabilitation Act, and the Age Discrimination Act. The argument thus becomes significantly more expansive, and there are more potential pitfalls for a court or legislature seeking to define “federal financial assistance” in an overly broad manner.

When considering the importance of the connection between Title VI and Title IX, it becomes necessary to consider the public policy doctrine created by the Supreme Court in Bob Jones University v. United States.[56] Bob Jones was a significant case where the Supreme Court expanded the requirements that must be met to obtain tax-exempt charitable status by holding that a charitable organization may not violate “established public policy.”[57] In Bob Jones, the university was denied tax-exempt status because of its racially discriminatory admissions policy, and the university argued the practice was legal because it was based on religious doctrine.[58] The Court created the public policy doctrine, which supported the IRS’ argument that § 501(c)(3) implied that tax-exempt institutions had to meet common law definitions for charitable trusts, meaning they had to provide a public benefit and not be opposed to fundamental public policy.[59]

However, despite the creation of the public policy doctrine, the doctrine has not provided a significant amount of bite since the Court enacted it. Seventeen years later, in FDA v. Brown & Williamson Tobacco Corp.,[60] the Court noted that no matter how important an issue is, “an administrative agency’s power to regulate in the public interest must always be grounded in a valid grant of authority from Congress.”[61] This points to why the courts have not already used the public policy doctrine to incorporate Title IX. The Court noted that though it sought to effectuate the congressional purpose of protecting citizens as Title IX called for, it wanted to be cautious so as not to extend the scope of the statute beyond the intended parameters originally determined by Congress.[62]

Taking all the curated appellate court cases into consideration, no federal appellate court has directly considered whether an organization maintaining a tax-exempt status constitutes “federal financial assistance” for purposes of Title IX. However, the Eleventh Circuit has considered the issue most closely, as it provided in dicta in M.H.D. v. Westminster School[63] that allegations regarding an organization maintaining a tax-exempt status qualifies as “federal financial assistance” under Title IX provisions were “neither immaterial nor wholly frivolous.”[64] This is the most notable statement in support of the assertion that tax-exempt status under § 501(c)(3) qualifies as “federal financial assistance” under Title IX provisions from a United States federal appellate court. And though no appellate court has directly considered whether an organization maintaining a tax-exempt status constitutes “federal financial assistance” for purposes of Title IX, several district courts, besides the two most recent decisions, have either directly or peripherally considered the issue over the last forty years.

C. District Courts Addressing the Combined Issues of Title IX and § 501(c)(3)

In Fulani v. League of Women Voters Education Fund,[65] the Southern District of New York considered a suit brought by minor-party candidates alleging that, among other issues, they were excluded from debates sponsored by a nonprofit organization based on race and sex discrimination.[66] The court noted the entity was subject to Title VI and Title IX enforcement because it “receive[d] federal assistance indirectly through its tax exemption and directly through grants” from federal agencies.[67] In McGlotten v. Connally,[68] the District Court for the District of Columbia heard a suit brought by a black-American to enjoin the Secretary of Treasury from granting tax benefits to organizations that exclude non-whites from membership.[69] The D.C. Circuit considered whether tax benefits meet the definition of “federal financial assistance” within the terms of Title VI of the Civil Rights Act and whether Congress had clearly indicated that beneficiaries of tax-exemptions should not discriminate.[70] The court looked to how 42 U.S.C. § 2000d-1 defines “federal financial assistance” and ultimately held that tax-exemptions constitute “federal financial assistance” in the context of Title VI litigation.[71] Though the court noted nothing in the “massive legislative history” of the 1964 Civil Rights Act that indicated whether assistance provided through the tax system was intended to be treated differently than assistance provided directly, it deemed the plain purpose of Title VI controlling.[72] It stated that the statute’s plain purpose was to eliminate discrimination in programs benefitting from federal financial assistance.[73]

Meanwhile, Johnny’s Icehouse, Inc. v. Amateur Hockey Ass’n Illinois, Inc.[74] is the most recent district court case where the court concluded that an organization maintaining a § 501(c)(3) tax-exemption did not constitute a form of “federal financial assistance” and thus did not obligate the organization to comply with Title IX regulations.[75] The court’s reasoning centered on observations that income tax exemptions are “conspicuously absent” from the “laundry list” of Title IX regulations that define federal financial assistance.[76] However, this case is over twenty years old, and both the Buettner-Hartsoe and E.H. ex rel. Herrera courts found the court’s reasoning in Johnny’s Icehouse, Inc. unconvincing.[77] Bachman v. American Society of Clinical Pathologists[78] is an even earlier district court case where the court also found that tax benefits do not constitute “federal financial assistance” as defined in Title IX.[79] The court stated that only direct grants could qualify as federal financial assistance.[80] However, the Supreme Court rebuffed this line of reasoning a year later in Grove City College, which is notable because of the potential similarity between Title IX and § 504 of the Rehabilitation Act. Martin v. Delaware Law School of Widener University[81] is another district court case that goes against the proposition that a tax-exemption under § 501(c)(3) can constitute “federal financial assistance” in the context of the Rehabilitation Act.[82]

When viewing the aggregated appellate decisions that serve as building blocks for answering this question, as well as the inconsistent decisions that district courts have come to, it appears the issue is ripe for consideration by the courts. However, as indicated by courts noting the similarities between Title IX, Title VI, § 504 of the Rehabilitation Act, and the Age Discrimination Act, whatever decision a court comes to has broad implications beyond simply how “federal financial assistance” is defined in relation to Title IX.

III. Inadequate and Unlikely Remedies: The Public Policy Doctrine and Tax-Expenditure Theory

Up to this point, courts and scholars have sought to better hold organizations accountable for anti-discrimination regarding race and sex when the organization maintains tax-exemption but does not otherwise receive federal funding. The most successful example has been the ruling by the Supreme Court in Bob Jones with the creation of the public policy doctrine.[83] Other notable attempts by scholars have included using tax-expenditure theory to support the reasoning for why tax-exempt charities receive “federal financial assistance” based on their favored tax status and thus should comply with civil rights laws.[84] However, concerns exist that these remedies are either inadequate or unlikely.

A. Critique of the Public Policy Doctrine as an Effective Tool

In Bob Jones, the Supreme Court expanded requirements for tax-exempt charitable status under § 501(c)(3) by holding that a charitable organization cannot violate “established public policy,” despite the fact that this limitation was not set out in the Internal Revenue Code.[85] Though the Court stated that violation of public policy, like discriminatory admission policies based on race, must be “established,” it did not provide clear boundaries for how to determine when a policy other than discrimination based on race is sufficiently established.[86] A number of arguments can be made by different parties, all of them equally advocating that public policy is offended by a certain issue. The reality is that the lack of parameters means it is unlikely a court will enforce any of them. The substantial gridlock in Washington, D.C. that comes from an increasingly polarizing political atmosphere makes it incredibly unlikely that the Supreme Court would use the public policy doctrine to issue blanket statements that certain actions and policies violate public policy.

The public policy limitation on charities did not initially come from the judiciary or legislature but instead came from the Treasury in a 1970 News Release.[87] This release indicated that the IRS could not legally justify providing a tax-exempt status based on the charitable exception in § 501(c)(3) to organizations that practice racially discriminatory practices.[88] The IRS justified its position by relying on what it found were clearly established federal policies against racial discrimination in education as outlined in Brown v. Board of Education[89] and further expanded on in the Civil Rights Act of 1964.[90] It was this policy that the Supreme Court later approved by creating the public policy doctrine in Bob Jones.[91] However, soon after, the Supreme Court indicated that the lack of set boundaries is an issue when considering whether an action falls under the public policy doctrine in FDA v. Brown & Williamson Tobacco Corp.[92] The Brown & Williamson Tobacco Corp. decision supports the argument that the Court is not going to expand the public policy doctrine further because no matter how important and controversial an issue is, the Court likely believes the Legislative branch should be creating legislation instead of the judiciary.

Since the public policy doctrine came from a Treasury News Release, later adopted by the Supreme Court, and did not come directly from the Legislature, using the public policy doctrine to incorporate an organization’s tax-exempt status to constitute “federal financial assistance” for the purposes of Title IX would likely be seen as extending the scope of the statute beyond the point where Congress indicated it should reach. Though the statement that sex discrimination is against public policy seems rational enough, the nuances of Title IX and how it applies to educational entities, including parochial schools in certain situations, means it is unlikely the Supreme Court today would find the public policy doctrine an appropriate avenue to enforce independent schools to maintain a § 501(c)(3) tax-exemption to comply with Title IX requirements. Especially as divisive as society is today, arguing for the expansion of the public policy doctrine to serve as a remedy for this issue is inadequate and unlikely to gain traction in Congress or with the public.

B. Critique of Tax-Expenditure Theory as an Effective Tool

Another remedy that has been proposed, this time primarily by academics as opposed to by courts or agencies, is for courts to apply tax-expenditure theory to determine whether tax-exempt organizations should be obligated to comply with anti-discrimination laws due to being recipients of government financial assistance.[93] Tax-expenditures are alternative policy means by which governments deliver financial support to individuals and companies.[94] The primary question addressed by tax-expenditure theory is whether the receipt of a tax benefit should be legally regarded as equivalent to a direct government grant of money.[95] It is possible to interpret tax-expenditure theory to posture that an organization’s § 501(c)(3) tax-exemption is the equivalent of a cash subsidy from the government. Though this notably only applies when an organization seeks to advocate for or implement social policy by using tax benefits and not when an organization uses a tax-exemption simply as a “further delineation of the appropriate tax base.”[96]

Ultimately, while this certainly is a viable option, it is unlikely to be successful. The primary concern is that while tax expenditure theory relies on current civil rights laws to address discrimination in charitable organizations in a broad manner, doing so based on the current legislation will only address some forms of discrimination but not others.[97] Of course, such legislation would protect individuals against discrimination on the basis of race, sex, gender, national origin, religion, and disability. But there are certain forms of discrimination in charitable organizations that use a § 501(c)(3) tax-exemption status that would not be protected, such as sexual orientation.[98] The use of tax expenditure theory becomes too broad of a tool and, in doing so, becomes a less effective tool in addressing discriminatory practices by organizations that maintain a § 501(c)(3) tax-exemption.

IV. Amendment of 20 U.S.C. § 1681 to Define Federal Financial Assistance

Due to the limitations of the proposed remedies listed above, it seems the most effective solution to addressing whether independent schools that maintain a § 501(c)(3) tax-exemption should be obligated to comply with Title IX is to amend Title IX to include a provision that defines “federal financial assistance” and specifies inclusion of educational entities that maintain a tax-exemption in the definition. This would further help differentiate how “federal financial assistance” is defined under Title VI, § 504 of the Rehabilitation Act, and the Age Discrimination Act and why that definition should not have a direct bearing on how “federal financial assistance” is defined under Title IX. In doing so, this would eliminate concerns of the judiciary essentially creating legislation by applying “federal financial assistance” differently within the context of Title IX compared to Title VI, § 504 of the Rehabilitation Act, and the Age Discrimination Act. Most importantly, it would ensure that Congress and the courts honor Title IX’s purpose.

As stated above, in several cases the Supreme Court has attempted to clarify vagueness brought upon by the use of the phrase “federal financial assistance” in the first sentence of Title IX, § 1681(a), which says “[n]o person in the United States shall, on the basis of sex . . . be subjected to discrimination under any education program or activity receiving federal financial assistance . . . .” However, a murky understanding of the term remains. To amplify the problem, when attempting to define the term “federal financial assistance” specific to Title IX, one must look at how Congressional records show that Title IX was modeled after Title VI and is comparable to how the term is also used in § 504 of the Rehabilitation Act and the Age Discrimination Act.

In light of these problems, the most comprehensive solution is for Congress to amend Title IX to include a definition of “federal financial assistance.” This definition should be based on an understanding of the currently existing definition of “federal financial assistance” as provided for by the Supreme Court in Grove City, National Collegiate Athletic Ass’n v. Smith, and Cannon v. University of Chicago.[99] In addition, the definition should effectively mirror the plain purpose of Title IX, which is to ensure the removal of barriers that prevent people on the basis of sex from participating in educational opportunities of their choice. Congress could accomplish this via an amendment that adds a paragraph to Title IX following 20 U.S.C. § 1681(c), which defines “educational institution.” Said paragraph should be similar to the following:

For purposes of this chapter, federal financial assistance may include:

(1) A grant or loan of federal financial assistance, including funds made available for:

    1. The acquisition, construction, renovation, restoration, or repair of a building or facility or any portion thereof; and
    2. Scholarships, loans, grants, wages, or other funds extended to any entity for payment to or on behalf of students admitted to that entity, or extended directly to such students for payment to that entity.

(2) A grant of Federal real or personal property or any interest therein, including surplus property, and the proceeds of the sale or transfer of such property, if the Federal share of the fair market value of the property is not, upon such sale or transfer, properly accounted for to the Federal Government.

(3) Any other contract agreement or arrangement that has as one of its purposes the provision of assistance to any education program or activity, except a contract of insurance or guaranty.

(4) A grant or loan that is received directly or indirectly, even if an entity does not show a financial gain, in the sense of a net increment in its assets.

(5) A tax-exemption maintained by educational organizations under 26 U.S.C. § 501(c)(3).

(6) However, federal financial assistance does not include:

    1. A simple assertion that an entity receives something of value in nonmonetary form from the federal government’s presence or operations;
    2. Statutory programs or regulations that directly or indirectly support, or establish guidelines for, an entity’s operations;
    3. Programs owned and operated by the federal government; or
    4. Direct, unconditional assistance to ultimate beneficiaries, the intended class of private citizens receiving federal aid, such as social security payments and veterans pensions.[100]

A statutory amendment to define “federal financial assistance” will further Congressional intent regarding Title IX. As it stands now, independent schools may have the prerogative, as evidenced by the schools in Buettner-Hartsoe and E.H. ex rel. Herrera, to attempt to disregard what Title IX seeks to prevent: discrimination on the basis of sex.[101] This proposed amendment closes a loophole that independent schools may seek to exploit. It prevents schools that receive significant and tangible benefits by maintaining tax-exempt status under § 501(c)(3) from supporting discriminatory practices in education and also provides a broader base of individual citizens’ protection against those practices.

Notably, such an amendment does not impact parochial schools the same way it would impact independent schools that maintain a tax-exemption under § 501(c)(3). Educational institutions controlled by a religious organization are exempt from Title IX to the extent that the application of Title IX would be inconsistent with the organization’s religious tenets.[102] Thus, when categorizing independent schools, it is important to understand that an amendment would only impact independent schools, such as charter schools which may not receive public funds but that maintain a § 501(c)(3) tax-exemption; it would not impact parochial schools that already have certain exemptions provided for in 20 U.S.C. § 1681(a)(3).

Additionally, a benefit to amending Title IX as opposed to 26 U.S.C. § 501(c)(3) is that the charitable exemption exception contained in that statute includes a wide variety of organizations beyond just those organized for educational purposes. These include organizations operated for religious, charitable, scientific, testing for public safety, or literary purposes, as well as those that seek to foster national or international amateur sports competitions or that are designed to prevent cruelty to children or animals.[103] Amending § 501(c)(3) to remedy the issue of tax-exempt independent schools discriminating on the basis of sex would lead to questions of Title IX’s applicability outside of the educational context. Furthermore, even if Congress were to amend § 501(c)(3), there would still be ambiguity when it comes to how to define “federal financial assistance.” It would also not answer the question of if and how to differentiate how “federal financial assistance” is defined in Title IX compared to Title VI, § 504 of the Rehabilitation Act, and the Age Discrimination Act.

Some district courts have not quite comprehended the magnitude of a decision to determine that an organization maintaining a tax-exemption constitutes “federal financial assistance” for purposes of Title IX. Doing so not only requires organizations to abide by Title IX requirements, but also would likely lead to an expansion of such organizations having to abide by Title VI, § 504 of the Rehabilitation Act, and the Age Discrimination Act.[104] Title VI of the Civil Rights Act of 1964 and Title IX of the Education Amendments Act of 1972 are the principal laws that forbid discrimination based on race and sex, respectively, by private actors that receive federal financial assistance.  Both statutes condition federal funding on the promise that the recipient of the funds will not discriminate. Title VI, which the other statutes were modeled after, states that “[e]ach Federal department and agency which is empowered to extend Federal financial assistance . . . is authorized and directed to effectuate . . . this title . . . by issuing rules, regulations, or orders . . . which shall be consistent with achievement of the objectives of the statute authorizing the financial assistance in connection with which the action is taken.”[105] Section 1682 of Title IX almost repeats this definition word-for-word.

The Rehabilitation Act of 1973 and the Age Discrimination Act also impose civil rights restrictions based on a private actor’s receipt of federal financial assistance.[106] § 504 of the Rehabilitation Act was also modeled specifically after Title VI and may also provide guidance when analyzing Title IX.[107] However, Title IX, unlike Title VI, § 504 of the Rehabilitation Act, and the Age Discrimination Act, only applies to educational entities such as colleges, universities, elementary and secondary schools, as well as any educational or training program operated by a recipient of federal financial assistance.[108] Each of the other statutes applies in a significantly broader manner.

Thus, the parallel nature of each of the statutes lends to a similar, if not the exact same, analytical framework being used when applied to cases under all four statutes. However, this limits each of the statutes because how “federal financial assistance” is defined in one statute then must be used in a similar manner in the other three statutes. This lack of flexibility can cut against each of the statutes in different ways. For instance, while Title VI covers employment only in limited circumstances, employment discrimination is clearly covered in Title IX.[109] Meanwhile, holding that “federal financial assistance” applies to all institutions maintaining a § 501(c)(3) tax-exemption, while appropriately applicable to educational organizations, cuts in an overly broad manner when applied to the Title VI, § 504 of the Rehabilitation Act, and the Age Discrimination Act. Defining the term in such a way could be especially harmful to employers that must comply with § 504 of the Rehabilitation Act and the Age Discrimination Act. This would subject employers to additional regulations that they have arguably sought to avoid by not accepting federal financial assistance, notwithstanding maintaining a tax-exemption. It also would be less likely to receive support in Congress as such an expansive definition would have considerable detractors that prefer less governmental interference in the free market.

The legislative history behind Title IX is also significant in showing that it is reasonable to believe Congress intended for there to be a distinction in how “federal financial assistance” applies in the context of Title IX compared to Title VI, § 504 of the Rehabilitation Act, and the Age Discrimination Act. Congress designed Title IX specifically with schools and educational programs in mind. The statute initially came to life in Congress when Senator Bayh of Indiana introduced an amendment with the purpose of combating the “continuation of corrosive and unjustified discrimination against women in the American educational system.”[110] This distinction is nowhere to be found in the other three statutes, as Title IX is the only statute of the four that is siloed off and applies specifically to discriminatory practices within education programs. Since the purpose of Title IX, as supported by the legislative history, is to eliminate discrimination on the basis of sex in education programs, specifying how “federal financial assistance” is defined in Title IX in contrast to how it is defined in Title VI, § 504 of the Rehabilitation Act, and the Age Discrimination Act is appropriate in working towards achieving this goal.

Conclusion

Independent schools that choose to enjoy the benefits of a § 501(c)(3) tax-exemption should be obligated to comply with Title IX. However, a current gap exists in how “federal financial assistance” is defined under Title IX and if that same phrase should be defined similarly or differently when comparing Title IX with Title VI, § 504 of the Rehabilitation Act, and the Age Discrimination Act. This gap makes it unclear whether Title IX applies to § 501(c)(3) organizations. Whether Title IX applies to those organizations has been considered peripherally by several appellate courts and directly by a number of district courts over the past forty years. To clarify that independent schools that maintain a tax-exemption should be obligated to comply with Title IX, the courts or legislature must clarify: (1) when an entity qualifies as a recipient of “federal financial assistance;” (2) whether the definition of “federal financial assistance” applies differently across Title IX, Title VI, § 504 of the Rehabilitation Act, and the Age Discrimination Act; (3) what the purpose and scope of tax-exemptions under § 501(c)(3) are; and (4) whether Title IX, as it exists now, is fully accomplishing the purpose Congress set out for it to accomplish.

The most effective and comprehensive way to address this issue is for the Legislature to amend 20 U.S.C. §§ 1681–89 to include a provision that defines “federal financial assistance” and specifies including educational entities that maintain a tax-exemption. Such an amendment would faithfully fulfill Title IX’s purpose to ensure avoidance of the use of federal funds in aiding educational programs that support discriminatory practices based on sex and protect individuals against those discriminatory practices. Doing so would also provide clarity to both the courts and organizations on how to distinguish “federal financial assistance” as it is defined in Title IX as opposed to how it is defined in Title VI, § 504 of the Rehabilitation Act, and the Age Discrimination Act.

Furthermore, an amendment to Title IX by Congress would also save the judiciary from being put in a place where it is essentially being asked to legislate by finding a judicial answer to the question of whether maintaining a tax-exemption qualifies an educational organization as receiving “federal financial assistance” per Title IX. Up to this point, the Supreme Court has already had to interpret what Congress meant regarding the definition of “federal financial assistance” for civil rights statutory purposes in Grove City College, and the definition of “recipient” for purposes of 34 C.F.R. § 106.2 in National Collegiate Athletic Ass’n. The fact that a number of district courts in the time since the Supreme Court decided Grove City College and National Collegiate Athletic Ass’n have had to attempt to address whether an independent educational program that maintains a § 501(c)(3) tax-exemption is obligated to comply with Title IX means this is an issue still needing clarification. If Congress does not address the issue, it is that much more likely that courts will again be put into the position of having to determine what Congress’s intent was when drafting Title IX and whether it should apply to independent schools that maintain a § 501(c)(3) tax-exemption but receive no other form of federal financial assistance.

When first advocating for the adoption of Title IX, Senator Bayh sought to fight against the “sex discrimination that reaches into all facets of education,” and it was for this reason that Congress enacted Title IX.[111] The amendment of Title IX to define “federal financial assistance” to include independent educational entities that maintain a § 501(c)(3) tax-exemption and to obligate compliance with the statute furthers the goal of eliminating discrimination on the basis of sex in the field of education while providing continued protections for individuals in education.

  1. *. Third-year law student at the Wake Forest University School of Law. B.S. in Social Studies Education from the University of Oklahoma and will begin practicing with Conner & Winters, LLP in their Tulsa office following graduation. Many thanks to Dylan, Keegan, and the team at the Wake Forest Law Review Online for their partnership on this article. I am also forever grateful to my parents for encouraging my love of learning at my own pace, to Rob and Carilyn for fostering my connection with the law, and, most importantly, to Dr. Robin Rainey Kiehl for being the ultimate teammate, wife, and soon-to-be mother.
  2. . 20 U.S.C.A. § 1681(a) (West).
  3. . See Buettner-Hartsoe v. Balt. Lutheran High Sch. Ass’n, No. CV RDB-20-3132, 2022 WL 2869041 at *5 (D. Md. July 21, 2022), motion to certify appeal granted, No. CV RDB-20-3132, 2022 WL 4080294 (D. Md. Sept. 6, 2022); E.H. ex rel. Herrera v. Valley Christian Acad., 616 F. Supp. 3d 1040, 1049–50 (C.D. Cal. 2022).
  4. . See Buettner-Hartsoe, 2022 WL 2869041, at *3; E.H. ex rel. Herrera, 616 F. Supp. 3d at 1049–50.
  5. . Buettner-Hartsoe, 2022 WL 2869041.
  6. . E.H. ex rel. Herrera, 616 F. Supp. 3d 1040.
  7. . See id.; Buettner-Hartsoe, 2022 WL 2869041.
  8. . 20 U.S.C.A. § 1681(a) (West).
  9. . 26 U.S.C.A. § 501(c)(3) (West).
  10. . Buettner-Hartsoe, 2022 WL 2869041, at *1.
  11. . Id.
  12. . Id.
  13. . Id.
  14. . Id. at *3 (referencing 34 C.F.R. § 106.2(i) (2023)).
  15. . Id.
  16. . Grove City Coll. v. Bell, 465 U.S. 555, 569–70 (1984).
  17. . Nat’l Collegiate Athletic Ass’n v. Smith, 525 U.S. 459, 468–69 (1999).
  18. . Regan v. Tax’n With Representation, 461 U.S. 540, 550–51 (1983).
  19. . Bob Jones Univ. v. United States, 461 U.S. 574, 591–92 (1983).
  20. . Cannon v. Univ. of Chi., 441 U.S. 667, 694–96 (1979).
  21. . M.H.D. v. Westminster Schs., 172 F.3d 797, 802 n.12 (11th Cir. 1999).
  22. . Buettner-Hartsoe v. Balt. Lutheran High Sch. Ass’n, No. RDB-20-3132, 2022 WL 2869041, at *5 (D. Md. July 21, 2022) (quoting Cannon, 441 U.S. at 704).
  23. . Id. at *3. The court subsequently granted the school district’s motion for interlocutory appeal to the United States Court of Appeals for the Fourth Circuit to consider the issue of whether § 501(c)(3) tax-exempt status constitutes federal financial assistance under Title IX. See Buettner-Hartsoe, 2022 WL 4080294, at *1. The parties are currently in the pretrial stage of litigation regarding this interlocutory appeal.
  24. . E.H. ex rel. Herrera v. Valley Christian Acad., 616 F. Supp. 3d 1040, 1044 (C.D. Cal. 2022).
  25. . Id. at 1048–49.
  26. . Id. at 1050.
  27. . Id. (comparing Johnny’s Icehouse, Inc. v. Amateur Hockey Ass’n, 134 F. Supp. 2d 965, 972 (N.D. Ill. 2001) and McGlotten v. Connally, 338 F. Supp. 448, 461 (D.D.C. 1972)).
  28. . Id.
  29. . Id.
  30. . Grove City Coll. v. Bell, 465 U.S. 555 (1984).
  31. . Id. at 574–75.
  32. . Id. at 557.
  33. . Id. at 563.
  34. . Id.
  35. . Id. at 564.
  36. . Id. at 569–70.
  37. . Id.
  38. . Nat’l Collegiate Athletic Ass’n v. Smith, 525 U.S. 459 (1999).
  39. . Id. at 462.
  40. . Id. at 460. Part 106 of Title 34 of the Code of Federal Regulations contains regulations promulgated by the Office of Civil Rights within the Department of Education that concern nondiscrimination on the basis of sex in education programs or activities receiving federal financial assistance.
  41. . Id.
  42. . Id. at 460–61. The Court attempted to clarify where this line was drawn by noting that an entity does not open itself to Title IX obligations on the grounds it receives dues from its members, which receive federal financial assistance if the members do not earmark federal funds for the purpose of paying dues.
  43. . 461 U.S. 540 (1983).
  44. . Id. at 540.
  45. . Id.
  46. . Id. at 544.
  47. . 441 U.S. 677 (1979).
  48. . Id. at 704.
  49. . Id.
  50. . Id. at 704 n.6.
  51. . Id. (referencing 110 Cong. Rec. 7062 (1964)).
  52. . Id. (referencing 117 Cong. Rec. 39252 (1971)).
  53. . 965 F.3d 945 (9th Cir. 2020).
  54. . Id. at 953.
  55. . Id.
  56. . 461 U.S. 574, 603–04 (1983).
  57. . Id. at 591.
  58. . Id. at 577.
  59. . Id. at 579.
  60. . 529 U.S. 120 (2000).
  61. . Id. at 161.
  62. . Id.
  63. . 172 F.3d 797 (11th Cir. 1999).
  64. . Id. at 802 n.12.
  65. . 684 F. Supp. 1185 (S.D.N.Y. 1988).
  66. . Id. at 1186–87.
  67. . Id. at 1192.
  68. . 338 F. Supp. 448 (D.D.C. 1972).
  69. . Id. at 450.
  70. . Id. at 460.
  71. . Id. at 461.
  72. . Id.
  73. . Id.
  74. . 134 F. Supp. 2d 965 (N.D. Ill. 2001).
  75. . Id. at 972.
  76. . Id. at 971.
  77. . Buettner-Hartsoe v. Balt. Lutheran High Sch. Ass’n, No. CV RDB-20-3132, 2022 WL 2869041 at *5 (D. Md. July 21, 2022); E.H. ex rel. Herrera v. Valley Christian Acad., 616 F. Supp. 3d 1040, 1049–50 (C.D. Cal. 2022).
  78. . 577 F. Supp. 1257 (D.N.J. 1983).
  79. . Id. at 1264–65.
  80. . Id.
  81. . 625 F. Supp. 1288 (D. Del. 1985).
  82. . Id. at 1298.
  83. . Bob Jones Univ. v. United States, 461 U.S. 574, 586 (1983).
  84. . David A. Brennen, Tax Expenditures, Social Justice, and Civil Rights: Expanding the Scope of Civil Rights Laws to Apply to Tax-Exempt Charities, 2001 B.Y.U. L. Rev. 167, 206–07 (2001).
  85. . Bob Jones Univ., 461 U.S. at 601–02.
  86. . Id.
  87. . Brennen, supra note 83, at 183 (citing I.R.S. News Release (July 10 1970), reprinted in 7 Stand. Fed. Tax Rep. (CCH) ¶ 6,790).
  88. . Id.
  89. . 347 U.S. 483, 495 (1954).
  90. . 2000 EO CPE Text, Private School Update, at 187.
  91. . Bob Jones Univ., 461 U.S. at 605.
  92. . 529 U.S. 120, 161 (2000).
  93. . Brennen, supra note 83, at 191–92.
  94. . IMF, Tax Expenditure Reporting and Its Use in Fiscal Management: A Guide for Developing Economies, Fiscal Affairs Department (Mar. 2019).
  95. . Nicholas A. Mirkay, Is It “Charitable” to Discriminate?: The Necessary Transformation of Section 501(c)(3) into the Gold Standard for Charities, 2007 Wis. L. Rev. 45, 80 (2007).
  96. . Id. at 80–81.
  97. . Id. at 66, 68.
  98. . Id. at 68.
  99. . Grove City Coll. v. Bell, 465 U.S. 555, 569 (1984); Nat’l Collegiate Athletic Ass’n v. Smith, 525 U.S. 459, 466–67 (1999); Cannon v. Univ. of Chi., 441 U.S. 677, 704 (1979).
  100. . 20 U.S.C. §§ 1681(c); U.S. Dep’t of Just., Title IX Legal Manual § III(A)(1) (2021) (modeled off of discussion of the scope of coverage in the Title IX manual regarding federal financial assistance).
  101. . Buettner-Hartsoe v. Balt. Lutheran High Sch. Ass’n, No. CV RDB-20-3132, 2022 WL 2869041 at *5 (D. Md. July 21, 2022), motion to certify appeal granted, No. CV RDB-20-3132, 2022 WL 4080294 (D. Md. Sept. 6, 2022); E.H. ex rel. v. Valley Christian Acad., 616 F. Supp. 3d 1040, 1049–50 (C.D. Cal. 2022).
  102. . 20 U.S.C. §§ 1681(a)(3); 34 C.F.R. § 106.12(a) (2020).
  103. . 26 U.S.C.A. § 501(c)(3) (West).
  104. . Mirkay, supra note 94, at 75 n.176.
  105. . 42 U.S.C. § 2000d-1.
  106. . Brennen, supra note 83, at 192.
  107. . Alexander v. Choate, 469 U.S. 287, 294 (1985).
  108. . 20 U.S.C.A. § 1681 (West).
  109. . See 20 U.S.C. §§ 1681–89; U.S. Dep’t of Just., Title IX Legal Manual § I (2021).
  110. . 118 Cong. Rec. 5803 (1972) (statement of Sen. Bayh).
  111. . Id.

 

13 Wake Forest L. Rev. Online 42

Brandon J. Johnson[1]

Introduction

The North Carolina Supreme Court’s recent decision to reverse course on partisan gerrymandering has garnered national attention.[2] In the court’s third opinion issued in Harper v. Hall,[3] (“Harper III”) a newly elected 5-2 conservative majority of the state supreme court overruled the first opinion[4] authored by the previous 4-3 liberal majority and declared partisan gerrymandering to be a nonjusticiable political question.[5] Election law and constitutional law scholars have produced reams of content questioning how the ruling would impact the U.S. Supreme Court’s pending consideration of the state court’s prior decision in the case.[6] Many questioned whether the state court’s decision would cause the Court to dismiss the initial appeal.[7]

As it turned out, the U.S. Supreme Court’s ruling in what would be known as Moore v. Harper[8] was a significant election law case that expanded the federal judiciary’s role in regulating federal and even state elections. The Supreme Court’s opinion in the case received significant national attention and was largely greeted with a sigh of relief by many scholars and commentators who worried that the Court would adopt an extreme version of a fringe theory known as the Independent State Legislature Theory.[9] Indeed, the importance of the U.S. Supreme Court’s decision regarding the Independent State Legislature Theory has been the primary focus of the commentary surrounding Harper v. Hall and Moore v. Harper, and rightly so.[10] If the Court had adopted the most extreme version of the theory, state legislatures—including (and perhaps especially) significantly gerrymandered legislatures—would have free rein to craft election regulations that entrenched partisan advantages with no constitutional guardrails. Though the Court rejected this approach, the Moore majority left the door open for the U.S. Supreme Court to act as the final arbiter of state election practices, which by itself has caused significant consternation among election law scholars.[11]

Given the national consequences of Moore v. Harper, however, the state court decision Harper III has been largely ignored. While this oversight is understandable, an examination of the North Carolina Supreme Court’s opinion in the case yields vital insight into the ways in which state courts can hide behind a veneer of judicial independence while actually using state politics and polarization to reshape state law. This insight may yield immediate practical consequences given that partisan gerrymandering litigation is currently ongoing in approximately one-third of the states.[12]

The dissent in Harper III provides a searing indictment of the majority’s reasoning and sets forth a cogent argument explaining why the opinion is an incorrect interpretation of the North Carolina constitution. The analysis that follows in this Essay will not rehearse the persuasive criticisms leveled by the dissent. Rather, it will focus on two ways in which the majority opinion may provide insight into how state courts can use the traditional tools of judicial review to reshape a state’s political culture. After providing a brief sketch of the procedural history of Harper I, II, and III in Part I, Part II of this Essay then explores the ways in which the opinion attempts to enshrine an exceptionally narrow vision of originalism as the only acceptable method of interpreting North Carolina’s constitution. Part III criticizes the way in which the Harper III majority further entrenches an incorrect understanding of political accountability.

While the examination below is limited to the rhetoric and reasoning employed by the North Carolina Supreme Court, it should serve as a case study for how easy it can be for state courts to affect a state’s political and policy landscape without attracting much notice.

I. The Procedural Path

A quick (and by no means exhaustive) recap of the procedural history of the Harper opinions will illuminate the unusual issues created by the state court’s recent ruling and facilitate the discussion that follows. The litigation began after the North Carolina General Assembly issued a new districting map after the 2020 census.[13] Multiple parties filed suit alleging inter alia that the map employed unconstitutional partisan gerrymanders in violation of the North Carolina Constitution’s guarantee of free elections and the state’s equal protection clause.[14] In January 2022, a three-judge panel of the Wake County Superior Court ruled that partisan gerrymandering claims “presen[t] nonjusticiable, political questions” under the state constitution.[15]

Less than a month later, the state supreme court heard the case directly and reversed the lower court’s ruling.[16] The 4-3 majority in what would become known as Harper I held that partisan gerrymandering claims are justiciable and the “extreme” gerrymanders in the challenged districting map violated the state constitution’s free elections clause, equal protection clause, free speech clause, and freedom of assembly clause.[17]

While the state legislature proceeded to draft new districting maps to comply with Harper I, the litigation continued, and the U.S. Supreme Court agreed to hear a challenge to this ruling under the name Moore v. Harper.[18] The Supreme Court case garnered national attention, in part, because the petitioners advanced arguments under the Independent State Legislature Theory. The Independent State Legislature Theory posits that only the state legislature has any say in federal elections[19] because the Elections Clause of the U.S. Constitution instructs that “The Times, Places and Manner of holding Elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof.”[20] Put another way, the state constitution itself places no limits on the legislature’s ability to regulate federal elections leaving state courts with no authority to interpret state constitutional provisions in order to second guess election related legislation.

But while the U.S. Supreme Court litigation proceeded, various parties challenged the second districting map that the legislature drafted in response to Harper I and the case made its way back to the state supreme court.[21] In a December 2022 opinion, now known as Harper II[22], the same 4-3 majority that issued the Harper I opinion ruled that the map for the state house was constitutionally adequate but the maps for the state senate and the federal congressional districts still contained unconstitutional partisan gerrymanders.[23]

In between oral arguments in Harper II and the issuance of the opinion, the North Carlina midterm elections occurred.[24] North Carolina’s supreme court justices are elected in partisan contests, and two of the Democratic justices who had signed on to the Harper II majority were replaced by conservative challengers.[25] As a result of this change in personnel, the new 5-2 conservative majority expressed concern that the Harper II majority had “overlooked or misapprehended” a point “of fact or law,”[26] and granted a petition for rehearing.[27]

On April 28, 2023 this newly minted majority “withdrew” Harper II and “overruled” Harper I, finding that partisan gerrymandering claims presented a nonjusticiable political question.[28] The U.S. Supreme Court then issued its opinion in Moore v. Harper on June 27, 2023.[29] The majority opinion determined that the Court still had standing to decide the initial case but affirmed the Harper I decision.[30] In doing so, the Court rejected the state defendants’ primary legal argument regarding the Elections Clause and reaffirmed that “[t]he Elections Clause does not insulate state legislatures from the ordinary exercise of state judicial review.”[31] The Court did, however, reserve for itself the right to pass judgment on whether state courts correctly interpreted questions of state election law under state constitutions,[32] a significant increase in the Court’s review of state election laws.[33]

With this procedural sketch in place, this Essay now returns to its primary focus: an examination of the warning signs advocates, policymakers, and public law scholars should glean from the North Carolina Supreme Court’s opinion in Harper III. As discussed in the introduction, the focus of this examination will not be on the merits of the majority opinion as the dissent has already done an admirable job dissecting that on its own terms.[34] Instead, the remainder of this Essay delves into the more far-reaching consequences of the opinion. Though the ramifications of the majority’s opinion are limited to North Carolina, they provide a cautionary tale for the ways in which state courts—particularly those with elected judges—can involve the judiciary in the political fortunes of the state.

II. Regressive Originalism

Perhaps the most sweeping consequence of the opinion may be the majority’s efforts to enshrine originalism (and a crabbed version of originalism, at that) as the only acceptable methodology of constitutional interpretation.[35] From the first few pages, Harper III makes this view of constitutional interpretation clear. For example, on the second page of the opinion, the majority writes: “As the courts apply the constitutional text, judicial interpretations of that text should consistently reflect what the people agreed the text meant when they adopted it.”[36] This appeal to the original public meaning[37] of the state’s constitution returns time and again throughout the opinion, including the following concluding admonition: “Recently, this Court has strayed from this historic method of interpretation to one where the majority of justices insert their own opinions and effectively rewrite the constitution.”[38] This language makes clear that the current majority of the North Carolina Supreme Court views originalism as the only legitimate method of constitutional interpretation.

The current state court majority is not alone in its application of originalist methodology, nor unique in its attempts to privilege this school of constitutional interpretation above all others.[39] Nor is an originalist approach to interpreting the North Carolina constitution without precedent.[40] The version of originalist methodology operationalized in the Harper III opinion, however, is surprisingly (almost shockingly) pernicious.

As an initial matter, the majority seems to advocate for both original public meaning originalism and original intent originalism, despite the latter theory having been all but (though not entirely)[41] abandoned by originalism’s defenders.[42] In its introduction, for example, the majority insists that “judicial interpretations of [constitutional] text should consistently reflect what the people agreed the text meant when they adopted it”—a classic formulation of original public meaning originalism.[43] But when returning to a discussion of constitutional interpretation, the majority seems to urge an “original intent” approach, asserting that “courts determine the meaning of a constitutional provision by discerning the intent of its drafters when they adopted it.”[44]

The reliance on this largely abandoned[45] version of originalism is only one example of how the Harper III majority is attempting to mandate not just originalism, but a regressive vision of originalism. By focusing on the actual intent of the drafters of the document, a court limits the potential interpretations of a constitution to the world view of individuals at a fixed point in time—a world view that is in many ways incompatible with the present day. Additionally, by employing both original intent originalism and original public meaning originalism, the Harper III majority can switch back and forth between whichever methodology best supports its desired result, eliminating originalism’s supposed virtue of constraining judicial discretion.[46]

Nor does the majority escape the “law office historian” pitfalls that plague many originalist opinions.[47] For example, the court devotes several pages to recounting the history of the Glorious Revolution in a befuddling attempt to show that the state constitutional clauses cited by the plaintiffs in the underlying cases were directed at protecting North Carolinians from voting regulations designed to benefit the king.[48] As an initial matter, this history says nothing about the clauses’ relationship to gerrymandering—again, a phenomenon that was not even in the lexicon for more than a century.[49] But even taking the majority’s argument on its own terms, the historical narrative provided arguably supports applying the free elections clause to partisan gerrymandering rather than undermining such an interpretation.[50] The majority declares, for example, that one reason for the prohibition on dividing counties to make new districts comes in part from King James II’s practices of “adjusting a county’s or borough’s charter to embed the king’s agents and ensure a favorable outcome for the king in the 1685 election.”[51] The majority reiterates that “[i]n some instances these adjustments altered who could vote in order to limit the franchise to those most likely to support the king’s preferred candidates.”[52] But this type of result-oriented intervention is exactly the reason parties challenge partisan gerrymanders.

But beyond succumbing to these more common problems with originalist methodology, the majority also employs a particularly rigid approach to originalism that would severely inhibit applications of the state constitution to modern developments. The most plausible reading of the majority’s analysis of whether the constitution applies to partisan gerrymandering, for example, is that the state constitution is essentially irrelevant to any subject not explicitly discussed.[53] Because the constitution does not mention gerrymandering, the majority says, that document is irrelevant to evaluating any gerrymandering challenges.[54] But even staunch originalists like Ilan Wurman accept that applying the original meaning of the text does not mean that a constitution must anticipate and discuss every eventuality in order to apply to the subject at hand.[55] The fact that the U.S. Constitution makes no mention of the internet, for example, does not prevent originalists from agreeing that the protections of the First Amendment apply to this 21st century medium.[56]

In support of this tightly cabined interpretation of the state constitution, the majority highlights a case from the 1780s striking down a statute that directly conflicted with the then governing constitution by eliminating the right to a jury trial in cases where the state confiscated loyalist property.[57] The constitution at the time promised a jury trial “in all Controversies at Law respecting property.”[58] But simply because the first statute, which was deemed unconstitutional in the state, directly conflicted with express language in the constitution does not impose a lasting and immovable requirement that judicial review of a legislative act is permissible only if the constitution speaks directly to the subject at hand.[59]

The majority even attempts to graft on some version of this explicit language requirement to its discussion of the U.S. Constitution, asserting that the lack of any specific mention of partisan gerrymandering in that document demonstrates the framers’ intent to exclude the federal courts from any such oversight. The majority further claims that “[t]he framers could have limited partisan gerrymandering in the [U.S.] Constitution or assigned federal courts a role in policing it, but they did not.”[60] To take this statement at face value shows the absurdity that this explicit acknowledgement requirement would impose.[61] The term “gerrymander” did not even exist until more than two decades after the U.S. Constitution was ratified.[62] Nor did the U.S. Constitution make any mention of “partisanship” (or “factionalism” as this concept was more commonly called at the time) because one of the goals of the famers was to avoid factional divisions.[63]

The end result of this interpretative approach is that the majority seems far too comfortable with an interpretation of the North Carolina constitution that reflects a polity of exclusion. The opinion at one point even asserts that because the original understanding of the state constitution’s “free elections” clause still limited the franchise to land-holding “freemen,” the clause cannot be construed to prohibit limitations on voting rights beyond coercion and intimidation.[64] An application of such a regressive version of originalism is especially misplaced in deciding questions relating to elections based on a constitutional text ratified when the franchise was extremely limited. The majority, for example, argues that because the original North Carolina Constitution adopted in 1776 contained free elections and freedom of assembly clauses while still allowing the legislature to draw malapportioned districting maps, these same clauses should not be used to restrict legislative map drawing today.[65] But this rationale would also allow election regulations that discriminated on the basis of race, gender, sexual orientation, and even status as a property owner, as long as subsequent amendments did not address the specific types of discriminatory regulations employed. Indeed, the Harper III majority simply ignores fundamental developments in both federal and state constitutional law that took place after the ratification of the state’s first constitution—ignoring the fact that North Carolina adopted a new constitution in 1868 and again in 1971 and has significantly amended the document in the last two centuries.[66]

Even when the majority makes general assertions of law, it relies on authority that further illustrates the regressive results of the justices’ chosen interpretive methodology. The majority, for example, cites to a 1944 case, State v. Emery,[67] to support its assertion that “[constitutions] should receive a consistent and uniform construction . . . even though circumstances may have so changed as to render a different construction desirable.”[68] But the “consistent and uniform construction” urged by the court in Emery enshrined the barring of women from serving as jurors in the state based on language in the then governing constitution stating that “[n]o person shall be convicted of any crime but by the unanimous verdict of a jury of good and lawful men in open court.”[69] To be clear, the majority does not endorse (or even mention) the holding of Emery, but it is telling that the vision of originalism espoused by the Harper III opinion is the exact same reading of the state constitution that prohibited women from serving on juries as late as 1944.[70] The fact that this case would be used to support the majority’s preferred methodology when other options are readily available seems questionable.

In a similarly telling choice, the majority issues another generic statement regarding the nature of the state constitution, asserting that the document “‘is in no matter a grant of power.’”[71] This benign quote comes from McIntyre v. Clarkson,[72] but the opinion then traces the origins of this quote to Lassiter v. Northampton County Board of Elections,[73] a 1958 case that upheld North Carolina’s reading requirement at the polls, despite clear evidence that the requirement was used to impede the ability of black North Carolinians to vote.[74] Again, the choice to trace this general point of law to a case upholding racially discriminatory voting laws indicates that the majority is either unaware of, or indifferent to, the regressive results of its methodological approach.[75]

In fact, the majority opinion makes clear that the North Carolina constitution would not ban racial gerrymanders, or any other type of racially motivated voting restrictions, leaving such practices banned only by the U.S. Constitution.[76] The court’s emphasis on requiring an explicit, specific textual restriction in the Constitution leads to a listing of what the majority appears to consider the only permissible avenues for judicial review of legislative districting acts.[77] Notably absent from this list is any prohibition on district maps that discriminate based on race.[78] The opinion also quotes heavily from a prior state supreme court decision, Dickson v. Rucho,[79] to emphasize the difficulty in identifying a judicially manageable standard for evaluating partisan gerrymanders.[80] What goes unmentioned in this discussion, however, is that the U.S. Supreme Court vacated Dickson I because the districting map employed racial gerrymanders as well.[81]

Taken together, the majority’s vision for constitutional interpretation inescapably leads to a regressive application of the state’s constitution. Because the rhetoric here sounds in a traditional application of judicial review, however, the Harper III majority has laid out a blueprint for similarly inclined state court majorities to manipulate theories of constitutional interpretation to essentially control state electoral politics while shielding themselves from political accountability. With this concern in mind, the Essay now turns to an examination of the majority’s misleading invocation of political accountability as justification for its holding.

III. Manipulation of Political Accountability

The other rhetorical move made by the Harper III majority that is likely to have long reaching impact is the weaponization of political accountability. The majority relies on the time honored trope that the state legislature is the true “people’s branch” in state government, asserting from the beginning of the opinion that “[t]he people exercise [the political] power [granted to them by the state constitution] through the legislative branch, which is closest to the people and most accountable through the most frequent elections.”[82] The majority then implicitly ties this version of “accountability” to the state legislature’s ability to implement “the will of the people.”[83]

This lionization of state legislatures as the branch “closest to the people” has been effectively rebutted by legal scholars like Miriam Seifter.[84] As Seifter demonstrates, officials elected in statewide elections are often more representative of the whole people of a state than are state legislators.[85] In North Carolina, the very same justices who disclaim sufficient accountability are all elected statewide.[86] Indeed, it is because of the elected (and partisan) nature of these judicial offices that Harper II was granted a rehearing.[87] So, even from a threshold perspective, the democratic legitimacy foundation for the Harper III opinion is on shaky ground.

But this unsupported trope of American democracy has even less to recommend it in the context of a gerrymandering challenge. The essence of a claim of gerrymandering is that the body elected by the gerrymandered map is unrepresentative of the people.[88] Even a majority of voters cannot effectively hold a gerrymandered legislature “accountable” if the gerrymander is extreme enough to consistently transform minority preference into majority representation.[89] But the Harper III majority ignores this reality, blithely asserting that “those whose power or influence is stripped away by shifting political winds cannot seek a remedy from courts of law, but they must find relief from courts of public opinion in future elections.”[90] Indeed, the majority’s assurances then that “opponents of a redistricting plan are free to vote their opposition,”[91] ring hollow when addressing claims that the redistricting process has effectively undermined the ability of even a majority of voters to hold their legislature “accountable” in the traditional sense.

The Harper III majority also recounts language from Rucho v. Common Cause[92] that reiterates a “long-standing … myth[] about the rational, policy-oriented voter.”[93] The majority faults the Harper I opinion for focusing too much on the role of partisan affiliation in elections.[94] The opinion confidently asserts, for example, that “voters elect individual candidates in individual districts, and their selections depend on the issues that matter to them, the quality of the candidates, the tone of the candidates’ campaigns, the performance of an incumbent, national events or local issues that drive voter turnout, and other considerations.”[95] But, as I have written previously, much of modern political science literature documenting voter behavior indicates that voters are not nearly this nuanced, and instead partisan affiliation is a far better predictor of voter behavior than any of the factors identified in Rucho and parroted in Harper III.[96]

The majority quotes freely from Rucho and incorporates much of that decision’s language cautioning against involving the “unaccountable” federal judiciary against involving itself in the inherently political redistricting process.[97] Regardless of one’s views on the correctness of Rucho, it is clear that the accountability concerns discussed in the case stem from the federal judiciary’s position as an unelected branch of government.[98] Indeed, the connection between political accountability and the unelected nature of the federal judiciary is quoted in full by the Harper III majority: “Consideration of the impact of today’s ruling on democratic principles cannot ignore the effect of the unelected and politically unaccountable branch of the Federal Government assuming such an extraordinary and unprecedented role.”[99]

But recall that almost the entire North Carolina judiciary, including the justices of the state supreme court, are elected.[100] The Justices in particular, are elected statewide and are not subject to the gerrymandered districting maps.[101] As noted above, this makes them, arguably, more accountable to the people of North Carolina because the statewide election better reflects the full electorate than does a manipulated state legislature district.[102] Nor are these elected judges above the political fray because they are chosen in partisan elections appearing on the ballot with their party affiliation clearly identified.[103] The Harper III majority cautions against involving the judiciary in “[c]hoosing political winners and losers” because doing so “creates a perception that the courts are another political branch.”[104] But in North Carolina, the judiciary is, arguably, a political branch. The state’s justices owe their offices to a political election that is influenced, in part at least, by the partisan, political preferences of the voters.[105] This is not to say that there is no difference between a justice and a legislator. Rather, this criticism demonstrates why the Harper III majority’s reliance on the accountability justifications in Rucho are so misplaced.

The majority leans into this accountability narrative, despite eventually acknowledging the elected nature of the state’s judiciary.[106] Indeed, though still pushing its assertion that the state legislature is the “most accountable” branch of the state government, the majority does recognize that with the implementation of an elected judiciary “judges in North Carolina become directly accountable to the people through elections.”[107] And the Harper III majority itself seems to acknowledge that the judicial elections play (or should play) a role in shaping North Carolina law.[108] One of the criticisms levelled against the Harper II opinion is that the “four-justice majority issued its Harper II opinion on 16 December 2022 [after the most recent judicial election] when it knew that two members of its majority would complete their terms on this Court just fifteen days later.”[109] It is hard to read this statement as anything other than a concession that a change in the partisan makeup on the court would (and should) change the outcome of cases.

Yet the majority consistently focuses on the supposed dangers posed to the separation of powers by involving the judiciary in “policymaking.”[110] The majority insists, for example, that the lack of an explicit reference to gerrymandering means that any court exercising judicial review of a gerrymandered map is engaged in policymaking.[111] Such judicial policymaking, we are told, “usurps the role of the legislature by deferring to [the court’s] own preferences instead of the discretion of the people’s chosen representative.”[112]

But, in addition to the unsound political accountability foundation for this view of the role of an elected judiciary, the majority’s vision of “policymaking” ignores the reality that the decision to close the courthouse doors to partisan gerrymandering claims is also a policy choice.

In refusing to apply the state constitution’s equal protection clause to partisan gerrymandering claims, for example, the majority asserts that “the fundamental right to vote on equal terms simply means that each voter must have the same weight.”[113] The court dismisses any independent application of the clause to elections by claiming that any equal protection concerns raised by election procedures are fully addressed by the requirements in Article II that each state legislator “represent, as nearly as may be, an equal number of inhabitants.”[114] But, by insisting that the state constitution’s equal protection clause only addresses the “weight” of each individual vote, and by taking a step further and confining “weight” to only the number of voters represented by each representative, the majority is engaging in exactly the same type of policymaking it claims made the Harper I and Harper II decisions illegitimate.

The inconsistent, almost incoherent ways in which the Harper III majority has employed discredited myths about political accountability and the role of an elected judiciary will impact election law and constitutional interpretation in North Carolina far beyond the holding of the case. With more than three quarters of states employing at least some form of elections as part of their judicial selection process,[115] a failure to confront the realities of an elected judiciary will continue to leave open opportunities for state courts to employ fantasies of political accountability to reshape their state’s political processes. While acknowledging the political nature of an elected judiciary may not stop state courts from reaching their desired results, it will at least require state judiciaries to honestly assess their own political role in deciding separation of powers disputes.

Conclusion

While the U.S. Supreme Court’s opinion in Moore v. Harper captured national attention, the Harper III majority also rejected the broadest version of the Independent State Legislature Theory advanced in the Moore briefing. In doing so, the majority recognizes that the courts—and by implication the state constitution—do have some role to play in the districting process: “Under the North Carolina Constitution, redistricting is explicitly and exclusively committed to the General Assembly by the text of the constitution. The Executive branch has no role in the redistricting process, and the role of the judicial branch is limited by the principles of judicial review.”[116] But, as with the opinion in Moore, the majority opinion in Harper III will have a longer reach beyond a specific holding on partisan gerrymandering.

This Essay has specifically focused on the adoption of a regressive form of originalism, which ultimately results in a polity of exclusion and inhibits the court’s potential to employ the state constitution in addressing contemporary challenges. The Harper III majority’s reliance on a rigid and outdated version of originalism is deeply troubling. By adhering to a carefully crafted quasihistorical context that fails to account for societal evolution and progress, the state court disregards the dynamic nature of constitutional principles. And the majority’s willingness to interpret the state constitution in an intentionally exclusionary way will continue to echo through the court’s jurisprudence.

The Essay has also demonstrated the danger of relying on “mythical” notions of political accountability. The majority’s use of these largely unrealistic tropes to decry judicial policymaking, while conveniently overlooking the fact that the North Carolina judiciary is elected and therefore accountable to the public, highlights the ways in which state courts can weaponize accountability not just in North Carolina, but nationwide. As of July of this year, litigation around partisan gerrymandering is ongoing in at least seventeen states.[117] Because the Supreme Court has closed the door on such claims under federal law, state courts remain the only viable venue to address partisan gerrymanders.[118] Left unchecked, the Harper III opinion provides a dangerous blueprint—regressive originalism and unsubstantiated notions of political accountability—that state courts may apply to these claims in ways that will significantly influence state election processes (and likely results) for the foreseeable future.

Election law, constitutional law, and federalism scholars should take note of the jurisprudential tactics employed in the Harper III majority as they continue to work to protect American democracy.

  1. *. Assistant Professor of Law at University of Nebraska College of Law. Many thanks to Anna Arons, Eric Berger, Kristen Blankley, Tyler Rose Clemons, Haiyun Damon-Feng, Dorien Ediger-Soto, Danielle C. Jefferis, Kyle Langvardt, Elise Maizel, Matthew Schaefer, and the members of the University of Nebraska College of Law Faculty Workshop for their thoughts and comments.

  2. . See, e.g., Derek Muller, What happens to Moore v. Harper after the latest North Carolina Supreme Court decision in the partisan gerrymandering case?, Election Law Blog (Apr. 28, 2023, 10:04 AM), https://electionlawblog.org/?p=135865.

  3. . Harper v. Hall, 886 S.E.2d 393 (N.C. 2023) (hereinafter “Harper III”).

  4. . Harper v. Hall, 868 S.E.2d 499 (N.C. 2022) (hereinafter “Harper I”) (overruled by Harper III, 886 S.E.2d 393).

  5. . Harper III, 886 S.E.2d 393.

  6. . See, e.g., Muller, supra note 1.

  7. . See, e.g., Hansi Lo Wang, A North Carolina court overrules itself in a case tied to a disputed election theory, NPR (Apr. 28, 2023, 12:25 PM), https://www.npr.org/2023/04/28/1164942998/moore-v-harper-north-carolina-supreme-court.

  8. . 143 S. Ct. 2065 (2023).

  9. . See, e.g., Rick Hasen, Separating Spin from Reality in the Supreme Court’s Moore v. Harper Case: What Does It Really Mean for American Democracy and What Does It Say About the Supreme Court?, Election Law Blog (June 27, 2023, 3:29 PM), https://electionlawblog.org/?p=137129.

  10. . See e.g., id.

  11. . See e.g., id.

  12. . Redistricting Litigation Roundup, Brennan Center for Justice (updated July 7, 2023), https://www.brennancenter.org/our-work/research-reports/redistricting-litigation-roundup-0.

  13. . Harper III, 886 S.E.2d at 401.

  14. . Id.

  15. . Id. at 402.

  16. . Id. at 403.

  17. . Harper I, 868 S.E.2d at 559.

  18. . 142 S. Ct. 2901 (2022) (mem.).

  19. . See Brandon J. Johnson, The Accountability-Accessibility Disconnect, 58 Wake Forest L. Rev. 65, 90 (2023).

  20. . U.S. Const. art. I, § 4, cl. 1.

  21. . Harper III, 886 S.E.2d at 408.

  22. . 881 S.E.2d 156 (2022) (hereinafter “Harper II”).

  23. . Id. at 181.

  24. . See Ethan E. Horton & Eliza Benbow, Two Republicans Win Seats On The NC Supreme Court, Flipping Majority, The Daily Tar Heel (Nov. 9, 2022), https://www.dailytarheel.com/article/2022/11/city-nc-supreme-court-2022-election-results.

  25. . Id.

  26. . Harper III, 886 S.E.2d at 399–400 (quoting N.C. R. App. P. 31(a)).

  27. . Id. at 409.

  28. . Id. at 401.

  29. . 143 S.Ct. 2065 (2023).

  30. . Id. at 2079, 2081.

  31. . Id. at 2081.

  32. . Id. at 2088.

  33. . See Hasen, supra, note 8.

  34. . Harper III, 886 S.E.2d at 449–78 (Earls, J., dissenting).

  35. . Keith E. Whittington, Originalism: A Critical Introduction, 82 Fordham L. Rev. 375, 377 (2013) (“At its most basic, originalism argues that the discoverable public meaning of the Constitution at the time of its initial adoption should be regarded as authoritative for purposes of later constitutional interpretation.”).

  36. . Harper III, 886 S.E.2d at 399.

  37. . Whittington, supra note 34, at 380 (“Originalist theory has now largely coalesced around original public meaning as the proper object of interpretive inquiry.”).

  38. . Harper III, 886 S.E.2d at 448.

  39. . See, e.g., New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111, 2130 (2022) (“[R]eliance on history to inform the meaning of constitutional text—especially text meant to codify a pre-existing right—is, in our view, more legitimate, and more administrable, than asking judges to ‘make difficult empirical judgments’ about ‘the costs and benefits of firearms restrictions,’ especially given their ‘lack [of] expertise’ in the field.” (quoting McDonald v. Chicago, 561 U.S. 742, 790–91 (2010))).

  40. . See Harper III, 886 S.E.2d at 412–14 (collecting cases).

  41. . See, e.g., Scott A. Boykin, Original-Intent Originalism: A Reformulation and Defense, 60 Washburn L.J. 245 (2021).

  42. . Id. at 246.

  43. . Harper III, 886 S.E.2d at 399.

  44. . Id. at 431.

  45. . See Whittington, supra note 34, at 382.

  46. . See, e.g., Lawrence B. Solum, The Constraint Principle: Original Meaning and Constitutional Practice (2019) (asserting that “constraint” is a virtue agreed upon by most strands of originalist scholarship); but see William Baude, Originalism as a Constraint on Judges, 84 U. Chi. L. Rev. 2213, 2214 (2018) (claiming that “originalist scholars today are much more equivocal about the importance and nature of constraining judges”).

  47. . See, e.g., Saul Cornell, Heller, New Originalism, and Law Office History: Meet the New Boss, Same as the Old Boss, 56 UCLA L. Rev. 1095 (2009).

  48. . Harper III, 886 S.E.2d.at 434–38.

  49. . See Erick Trickey, Where Did the Term “Gerrymander” Come From?, Smithsonian Mag. (July 20, 2017), https://www.smithsonianmag.com/history/where-did-term-gerrymander-come-180964118/.

  50. . Harper III, 886 S.E. 2d at 434–38.

  51. . Id. at 435 (emphasis added).

  52. . Id. (emphasis added).

  53. . See Harper III, 886 S.E.2d at 415 (“When we cannot locate an express, textual limitation on the legislature, the issue at hand may involve a political question that is better suited for resolution by the policymaking branch.”).

  54. . See, e.g., Harper III, 886 S.E.2d at 400 (emphasis added) (“Our constitution expressly assigns the redistricting authority to the General Assembly subject to explicit limitations in the text. Those limitations do not address partisan gerrymandering. It is not within the authority of this Court to amend the constitution to create such limitations on a responsibility that is textually assigned to another branch.”).

  55. . Ilan Wurman, What is originalism? Debunking the myths, The Conversation (Oct. 24, 2020, 12:03 PM), https://theconversation.com/what-is-originalism-debunking-the-myths-148488.

  56. . Neil M. Gorsuch, Justice Neil Gorsuch: Why Originalism Is the Best Approach to the Constitution, Time (Sept. 6, 2019, 8:00 AM), https://time.com/5670400/justice-neil-gorsuch-why-originalism-is-the-best-approach-to-the-constitution/.

  57. . Harper III, 886 S.E.2d. at 415 (citing Bayard v. Singleton, 1 N.C. (Mart.) 5 (1787)).

  58. . Id. (quoting N.C. Const. of 1776, Declaration of Rights § XIV).

  59. . As the majority acknowledges, Bayard was the first exercise of judicial review of a statute in North Carolina, and may have been the first instance of a state court striking down a legislative act as contrary to the jurisdiction’s constitution. Id.

  60. . Id. at 410.

  61. . Id. at 415 (emphasis added) (“[T]he standard of review asks whether the redistricting plans drawn by the General Assembly, which are presumed constitutional, violate an express provision of the constitution beyond a reasonable doubt.”).

  62. . Trickey, supra note 48.

  63. . See, e.g., The Federalist No. 10 (James Madison).

  64. . See Harper III, 886 S.E.2d at 432–33.

  65. . Id. at 416–17.

  66. . Dr. Troy L. Kickler, North Carolina Constitution Is an Important Governing Document, N.C. Hist. Project, https://northcarolinahistory.org/encyclopedia/1573/ (last visited Sept. 17, 2023).

  67. . 31 S.E.2d 858 (N.C. 1944).

  68. . Harper III, 886 S.E.2d at 413 (alterations and omissions in Harper III) (quoting State v. Emery, 31 S.E.2d 858, 861 (N.C. 1944)). Notably, the omitted language from the quote would seem to caution against the majority’s decision to reverse a previous pronouncement of constitutional law. The full quote reads: “[Constitutions] should receive a consistent and uniform construction so as not to be given one meaning at one time and another meaning at another time even though circumstances may have so changed as to render a different construction desirable.” Emery, 31 S.E.2d at 861 (emphasized language was omitted from the quote in Harper III).

  69. . N.C. Const. art. I, § 13 (1868) (emphasis added).

  70. . Harper III, 886 S.E.2d at 413; Emery, 31 S.E.2d at 866.

  71. . Harper III, 886 S.E.2d at 414 (quoting McIntyre v. Clarkson, 119 S.E.2d 888, 891 (1961)).

  72. . 119 S.E.2d at 891.

  73. . 102 S.E.2d 853, 861 (N.C. 1958).

  74. . Paul Woolverton, Democrats in 1900 made the NC Constitution racist: Will voters today undo that?, Fayetteville Observer (Mar. 24, 2023, 5:06 AM), https://www.fayobserver.com/story/news/2023/03/24/ncs-constitution-has-a-racist-rule-will-voters-repeal-literacy-tests/70035467007/.

  75. . For further discussion of the morality of case citations—specifically in the context of citing to slave cases—see Alexander Walker III, On Taboos, Morality, and Bluebook Citations, Harv. L. Rev. Blog (June 10, 2023).

  76. . Compare Harper III, 886 S.E.2d at 449 (holding that “claims of partisan gerrymandering present nonjusticiable, political questions”), with Miller v. Johnson, 515 U.S. 900, 927–28 (holding that redistricting plans aiming to racially segregate voters are federally unconstitutional).

  77. . Harper III, 886 S.E.2d at 418 (quoting N.C. Const. art. II, § 3). The only restrictions on apportionment acknowledged by the majority are: (1) state senators must represent a (roughly) equal number of residents; (2) districts must be contiguous; (3); a prohibition on dividing counties to form a new district; and (4) a requirement that districts “remain unaltered” between censuses. Id.

  78. . See id.

  79. . 766 S.E.2d 238 (N.C. 2014).

  80. . See, e.g., Harper III, 886 S.E.2d at 402 (quoting Dickson, 766 S.E.2d at 260).

  81. . See Dickson v. Rucho, 137 S. Ct. 2186 (2017) (mem.). The Harper III opinion notes that the state court decision was vacated, but only using the euphemistic language “vacated on federal grounds.” See Harper III, 886 S.E.2d at 402.

  82. . Harper III, 886 S.E.2d at 398.

  83. . Id. at 398–99. The opinion returns to this theme of identifying the General Assembly as “the people’s branch” of state government. See, e.g., id. at 413 (“The legislative power is vested in the General Assembly, so called because all the people are present there in the persons of their representatives.” (quoting John V. Orth & Paul Martin Newby, The North Carolina State Constitution 95 (2d ed. 2013))); id. at 414 (citations omitted) (“Most accountable to the people, through the most frequent elections, “[t]he legislative branch of government is without question ‘the policy-making agency of our government[.]’” (quoting N.C. Const. art II)).

  84. . Miriam Seifter, Countermajoritarian Legislatures, 121 Colum. L. Rev. 1733, 1755–77 (2021); see also Johnson, supra note 18, at 101–02.

  85. . Seifter, supra note 83, at 1762–77.

  86. . N.C. Const. art IV, § 16.

  87. . See supra Part I.

  88. . See Kevin Wender, The “Whip Hand”: Congress’s Elections Clause Power as the Last Hope for Redistricting Reform After Rucho, 88 Fordham L. Rev. 2085, 2090 (2020).

  89. . For a discussion of the difficulty voters face in using the political process to change election laws, see Johnson, supra note 18, at 109.

  90. . Harper III, 886 S.E.2d 393, 423 (N.C. 2023) (quoting Dickson v. Rucho, Nos. 11-CVS-16896, 11-CVS-16940, 2013 WL 3376658, at *1–2 (N.C. Super. Ct. Wake Cnty. July 8, 2013)).

  91. . Id. at 443.

  92. . 139 S. Ct. 2484 (2019).

  93. . Johnson, supra note 18, at 103.

  94. . See Harper III, 886 S.E.2d at 428.

  95. . Harper III, 886 S.E.2d at 412 (quoting Rucho v. Common Cause, 139 S. Ct. 2484, 2503–04 (2019)). The majority repeats these assertions, again without providing any empirical support for this view of voter behavior. Id. at 428–29.

  96. . Johnson, supra note 18, at 104–05.

  97. . See, e.g., Harper III, 886 S.E.2d at 413 (quoting Rucho, 139 S. Ct. at 2507).

  98. . See Rucho, 139 S. Ct. at 2507.

  99. . Harper III, 886 S.E.2d 393, 413 (N.C. 2023) (quoting Rucho, 139 S. Ct. at 2507); see also id. at 427 (alteration in original) (“A judicially discoverable and manageable standard is necessary for resolving a redistricting issue because such a standard ‘meaningfully constrain[s] the discretion of the courts[] and [] win[s] public acceptance for the court’s intrusion into a process that is the very foundation of democratic decision making.’” (quoting Rucho, 139 S. Ct. at 2500)).

  100. . N.C. Const. art IV, §16.

  101. . Id.

  102. . See Seifter, supra note 83, at 1734–41.

  103. . See, e.g., Judicial voter guide: 2022 primary election, North Carolina State Board of Elections, (last visited Sept. 17, 2023), https://www.ncsbe.gov/judicial-voter-guide-2022-primary-election.

  104. . Harper III, 886 S.E.2d at 399.

  105. . See Nat Stern, Don’t Answer That: Revisiting the Political Question Doctrine in State Court, 21 U. Pa. J. Const. L. 153, 177–78 (2018) (observing that elected state court judges do not enjoy the same presumption of judicial independence that attaches to the federal judiciary).

  106. . Harper III, 886 S.E.2d at 418.

  107. . Id. (citing N.C. Const. of 1868, art IV, § 26).

  108. . Id. at 413–14.

  109. . Id. at 407 n.5.

  110. . See, e.g., Harper III, 886 S.E.2d at 399, 415, 431. The majority also ignores the differences between the ways in which power is separated at the state level instead of the federal level. For further discussion of these differences, see Robert F. Williams, The Law of American State Constitutions 238 (2009) and Helen Hershkoff, State Courts and the “Passive Virtues”: Rethinking the Judicial Function, 114 Harv. L. Rev. 1833 (2001).

  111. . See Harper III, 886 S.E.2d at 428 (“[S]ince the state constitution does not mention partisan gerrymandering, the four justices in Harper I first had to make a policy decision that the state constitution prohibits a certain level of partisan gerrymandering.”).

  112. . Id. at 431.

  113. . Id. at 440.

  114. . Id. at 442 (quoting N.C. Const. art. II, §§ 3(1), 5(1)).

  115. . Significant Figures in Judicial Selection, Brennan Ctr. for Just. (Apr. 14, 2023), https://www.brennancenter.org/our-work/research-reports/significant-figures-judicial-selection.

  116. . Harper III, 886 S.E.2d at 416.

  117. . Redistricting Litigation Roundup, Brennan Ctr. for Just., https://www.brennancenter.org/our-work/research-reports/redistricting-litigation-roundup-0 (July 7, 2023).

  118. . See generally Rucho v. Common Cause, 139 S. Ct. 2484 (2019) (holding that challenges to partisan gerrymandering are to be made under state statutes and state constitutions—not the U.S. Constitution); see also Alicia Bannon, North Carolina Supreme Court Unleashes Partisan Gerrymandering, Brennan Ctr. For Just. (May 10, 2023), https://www.brennancenter.org/our-work/analysis-opinion/north-carolina-supreme-court-unleashes-partisan-gerrymandering.

Kaylee Tillett

Prior to 2008, gun-rights advocates referred to the Second Amendment as a “second-class right” with courts relying on a militia-centric interpretation articulated by the Supreme Court of the United States in United States v. Miller.[1] Nearly seventy years after Miller, the Supreme Court radically changed its interpretation of the Second Amendment in District of Columbia v. Heller.[2] In Heller, the right to keep and bear arms in one’s home for purposes of self-defense became the core of the Second Amendment, with the Supreme Court applying this right to the states two years later in McDonald v. City of Chicago.[3] Finally, last year, in New York State Rifle & Pistol Ass’n v. Bruen, the Supreme Court expanded the Second Amendment’s reach post-Heller and McDonald, holding “that the Second and Fourteenth Amendments protect an individual’s right to carry a handgun for self-defense outside the home.”[4]

Bruen significantly altered the landscape of the Second Amendment, not only by expanding the reach of the right to keep and bear arms beyond the home, but also by rejecting the legal standard previously used to decide Second Amendment cases.[5] Under Bruen, the new two-step analysis for Second Amendment cases begins with a presumption that if the plain text of the Second Amendment includes an individual’s conduct, then the Constitution protects that conduct.[6] Then, the government bears the burden of justifying its proposed regulation “by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.”[7] When deciding Bruen, the Supreme Court focused its “historical analysis” on the firearm regulatory practices of the Founders in 1791 and the Reconstruction generation in 1868 because these are the relevant time periods when the Second and Fourteenth Amendments were written.[8] Specifically, the Supreme Court determined that the firearm regulations of the Twentieth Century put forth by the respondents were simply too recent to constitute a historical tradition and rejected this evidence, relying instead on the common understanding of firearms regulation at the time of the Founding and Reconstruction.[9]

One year post-Bruen, the landscape of the Second Amendment is primed for a novel legal issue that the Supreme Court evaded in Heller, McDonald, and Bruen, continuously passing the ball through dicta and concurrences—the right to keep and bear arms as applied to felons.[10] Born out of a series of high profile assassinations, the federal government’s regulation of a felon’s ability to possess firearms began as recently as the Gun Control Act of 1968, which was expanded by the Brady Handgun Violence Prevention Act of 1994, also known as the “Brady Bill.”[11] Today, a provision of the Brady Bill, 18 U.S.C. § 922(g)(1), makes it “unlawful for any person . . . who has been convicted in any court, of a crime punishable by imprisonment for a term exceeding one year . . . [to] possess in or affecting commerce, any firearm or ammunition.”[12] Federal courts are split on the validity of § 922(g)(1) after defendants began arguing that federal “felon-in-possession” laws violate the Second Amendment under Bruen.[13]

On June 6, 2023, the Third Circuit en banc determined that § 922(g)(1) violated the Second Amendment as applied to a non-violent offender.[14] Yet just four days prior, the Eighth Circuit ruled in the opposite, finding no constitutional violation.[15] Both Circuits relied on the two-step “historical foundations” analysis created in Bruen, yielding extensively disparate outcomes.[16] Prior to Bruen, in Heller, the Supreme Court explicitly included dicta deferring the analysis of whether the Second Amendment applied to felons.[17] In Bruen, the majority opinion did not address the issue at all.[18] In fact, the concurrences and the dissent in Bruen explain that the majority opinion need not include an analysis of federal “felon-in-possession” laws because they are “presumptively lawful.”[19]

On the contrary, government regulations prohibiting felons from possessing firearms are as recent as the historical evidence put forth by the respondents in Bruen, which the Supreme Court deemed too modern for “consisten[cy] with this Nation’s historical tradition of firearm regulation.”[20] As discussed above, the federal government only began regulating the firearm possession of felons in 1968—decades before the Reconstruction generation and more than a century after the Founding.[21] Further, the “historical tradition” that courts, such as the Eighth Circuit, are beginning to rely on to deny felons their Second Amendment rights is disturbing, including historical regulations that categorically exclude Black and Native Americans, as well as certain religious minorities, from possessing firearms.[22] Specifically, the Eighth Circuit recognized that regulations barring certain races from the right to keep and bear arms “would be impermissible today under other constitutional provisions,” yet included these regulations in its historical tradition analysis regardless.[23] Even the language of “law-abiding” citizen used throughout Bruen is ambiguous, as the sheer breadth and scope of what constitutes a “felony” has dramatically changed since the time of the Founding.[24]

As the number of Bruen challenges grow, it is time for the Supreme Court to define explicitly whether the Second Amendment extends to felons; however, this issue illuminates a Pandora’s box of sub-issues, including, but not limited to, (1) the differences between violent and non-violent felonies, (2) the disconnect between a state felony and a federal felony, (3) the length of time between the original felony conviction and the § 922(g)(1) charge, (4) the amount of time actually served in a jail or prison compared to a purely probationary sentence, and (5) the record of the particular felon.[25] The Supreme Court’s staunch devotion to originalism and the dead-hands of the Founders has brought the Supreme Court to a precipice.[26] Either the Second Amendment is an unmitigated right provided to all Americans based entirely on the historical traditions of the Nation, or it is not.

[1] United States v. Miller, 307 U.S. 174, 178 (1939).

[2] District of Columbia v. Heller, 554 U.S. 570, 577–78 (2008).

[3] Heller, 554 U.S. at 577–78; McDonald v. City of Chicago, 561 U.S. 742, 748 (2010).

[4] New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111, 2122 (2022) (emphasis added).

[5] Id. at 2125.

[6] Id. at 2129–30.

[7] Id. at 2129–30.

[8] Id. at 2132.

[9] Id. at 2138 (“[A]part from a handful of late-19th-century jurisdictions, the historical record compiled by respondents does not demonstrate a tradition of broadly prohibiting the public carry of commonly used firearms for self-defense.”).

[10] Range v. Att’y Gen. of the United States, 69 F.4th 96, 98 (3d Cir. 2023).

[11] Gun Control Act of 1968, Pub. L. No. 90-618, 82 Stat. 1213; Brady Handgun Violence Prevention Act, Pub. L. No. 103-159, 107 Stat. 1536 (later codified as amended at 18 U.S.C. § 922).

[12] The federal definition of a “felon” is broader than many state definitions, applying where the potential sentence is more than two years for misdemeanors and more than one year for felonies. 18 U.S.C. § 922(g)(1); 18 U.S.C. § 921(a)(20)(B).

[13] Albert W. Alschuler, Do Convicted Felons Have a Constitutional Right to Bear Arms?, Verdict Justia (June 21, 2023), https://verdict.justia.com/2023/06/21/do-convicted-felons-have-a-constitutional-right-to-bear-arms.

[14] Bryan Range pleaded guilty in 1995 to making a false statement to obtain food stamps, violating Pennsylvania law. Range, 69 F.4th at 98. Range was sentenced to three years’ probation, although his misdemeanor carried a maximum sentence of five years’ imprisonment. Id. Range sought to purchase a firearm for hunting and for self-defense in the home. Id.

[15] Edell Jackson had two convictions for sale of a controlled substance in the second degree from 2011 and 2012. United States v. Jackson, 69 F.4th 495, 501 (8th Cir. 2023). Jackson received a 78-month sentence  for the first conviction and a 144-month sentence for the second conviction. Id. Interestingly, the Eighth Circuit cited approvingly the paneled Third Circuit’s previous decision in Range that the above-referenced en banc Third Circuit overruled. Id.

[16] Alschuler, supra note 13; see also Zak Goldstein, Federal Third Circuit Finds Felon in Possession of Firearm Laws Unconstitutional as Applied to Old, Non-Violent Offenses, Goldstein Mehta, LLC, Blog (June 7, 2023), https://goldsteinmehta.com/blog/federal-third-circuit-finds-felon-in-possession-of-firearm-laws-unconstitutional-as-applied-to-old-non-violent-offenses#.

[17] Heller, 554 U.S. at 626.

[18] Bruen, 142 S. Ct. at 2111.

[19] Id. at 2163.

[20] Michael Luo, Felons Finding It Easy to Regain Gun Rights, New York Times (Nov. 13, 2011), https://www.nytimes.com/2011/11/14/us/felons-finding-it-easy-to-regain-gun-rights.html; United States v. Bullock, No. 3:18-CR-165-CWR-FKB, 2023 WL 4232309 (S.D. Miss. June 28, 2023) (order dismissing case).

[21] Gun Control Act of 1968, Pub. L. No. 90-618, 82 Stat. 1213.

[22] Jackson, 69 F.4th at 501.

[23] Id.

[24] Alec C. Ewald, “Civil Death”: The Ideological Paradox of Criminal Disenfranchisement Law in the U.S., 2002 Wis. L. Rev. 1045, 1060 (2002).

[25] Bullock, 2023 WL 4232309, at *71–75; see also Brian Doherty, Another Judge Chips Away at Laws Barring Felons From Owning Guns, Reason (June 29, 2023, 11:15 AM), https://reason.com/2023/06/29/another-judge-chips-away-at-laws-barring-felons-from-owning-guns/.

[26] Bullock, 2023 WL 4232309, at *71–75.

By Gabby Korb

President Biden signed Executive Order 14006 banning the renewal of private prison contracts, stating that “[t]his is the first step to stop corporations from profiting off of the incarcerated—incarceration that is less humane and less safe, as the studies show.”[1]  Although this can be seen as a positive step in the fight against injustice in the criminal system, the impact of this executive order is likely more rhetorical than concrete.  The main issue with Executive Order 14006 is that it only focuses on renewal of “Department of Justice contracts with privately operated criminal detention facilities,”[2] which means it only targets federal prisons.  This leaves a massive loophole for immigration detention centers and state and county-run detention centers.  Additionally, because it is an Executive Order, the policy will likely end up as a fleeting attempt to tackle a major issue because it is subject to the whim of future administrations.  These issues beg the question of what the strongest long-term solution for ending the private-prison industry is.  I believe the answer to this question is a Supreme Court opinion ruling private prisons unconstitutional.  This blog post will briefly explore the injustice of private prisons, how Executive Order 14006 attempts and fails to solve these injustices, and potential avenues for finding private prisons unconstitutional.

The existence of private prisons poses major moral and economic issues that undermine American values.  First, studies have shown that inmates held in private prisons are subjected to longer stays because it increases profit for the corporations.[3]  Private-prison corporations themselves admit that “the demand for [their] facilities and services could be adversely affected by . . . leniency in conviction or parole standards and sentencing practices.”[4]  Second, private prisons are known for their atrocious conditions and untrained workers, which saves money and turns a higher profit.[5]  The two largest private-prison corporations, Core Civic and GEO Group, have combined revenues of $3.5 billion as of 2015.[6]  The business model of private prisons is to reap financial gain from keeping people imprisoned at the lowest cost possible.  Third, private prisons profit off exploiting minority communities.[7]  Private prisons gained traction in the 1980’s during the War on Drugs when federal prisons became overcrowded.[8]  It is now a well-known fact that the War on Drugs had a racially motivated and detrimental impact on minority populations that has persisted with the use of private prisons, and minorities continue to be overrepresented in private prisons.[9]  This all means “that people of color are more likely to be arrested, more likely to be convicted, more likely to be placed in a private prison, and less likely to receive parole.” [10]  The ethical, moral, business, and legal implications of allowing prisons to exist that are less safe, depend on racial discrimination, and profit off of keeping citizens in jail is deeply disturbing, and addressing these implications is vital to uphold the values of freedom and equality that American society holds dear.

Executive Order 14006 was issued by President Biden on January 26, 2021, to pursue the administration’s goal of decreasing incarceration levels.[11]  The Executive Order states that “to decrease incarceration levels, we must reduce profit-based incentives to incarcerate by phasing out the Federal Government’s reliance on privately operated criminal detention facilities.”[12]  However, this Executive Order is inadequate in pursuing this goal.  It is likely the executive order will be repealed with a change in who occupies the presidency as was previously seen when President Trump repealed a similar Executive Order put forth by the Obama administration. [13]  Additionally, Executive Order 14006 allows major loopholes that prevent the majority of private prisons from being shut down.  One avenue for private-prison corporations to sidestep the effects of the order is to contract with county or state governments and other federal agencies, and there is evidence that these prison corporations have been doing just that since Executive Order 14006 was signed. [14]

Perhaps the most troubling aspect of this executive order is that it fails to encompass Immigration and Customs Enforcement (ICE) detention centers.  Before the Executive Order was enacted, roughly 80 percent of ICE detention beds were owned or managed by private prison corporations.[15]  With the passage of Executive Order 14006, this number will likely increase because private prison facilities shut down by the Order will take on new life as immigration detention centers.[16]  This is evidenced by one large prison company’s financial statements to its shareholders stating that it was “actively marketing and repurposing” prisons that would be phased out by Executive Order 14006.[17]  Therefore, it is clear that Executive Order 14006 is not a solution to the private prison problem.

I believe the most effective way to end the private-prison industry must come from the Supreme Court.  As of now, the Supreme Court has not touched the private-prison industry, but there are a variety of legal arguments that could be used to find it unconstitutional.  First, prisons are likely unconstitutional under the private nondelegation doctrine.  The private nondelegation doctrine forbids core governmental functions from being delegated and prohibits legal enforcement power from being granted outside the government to private groups over which the executive branch does not exercise control.[18]  Imprisonment is a core governmental function because it is the most severe form of punishment that strips citizens of their most basic liberties.  Second, private prisons could be eliminated under substantive due process.  It is widely held that individuals have the fundamental right to bodily freedom, and so any government interference of this right must meet the strict scrutiny standard.[19]  Strict scrutiny requires that infringement of a fundamental right be supported by a compelling government interest, and the government interference must be narrowly tailored to achieving the government’s compelling interest.[20]  Private prisons are not the most narrowly tailored means of incarceration because the government is fully capable of providing and maintaining prisons without help from private companies whose goal is to profit off incarcerated citizens.

Finally, private prisons could be attacked under the Thirteenth Amendment, which is generally known for prohibiting slavery.  The Thirteenth Amendment further reads that “[n]either slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist”. [21]  On its face, this seems to allow slavery in the prison context.  However, the Thirteenth Amendment has been under-litigated in the past century, and a flurry of scholarship suggests that a modern interpretation of the amendment may allow for the termination of for-profit prisons.[22]  It is undeniable that minorities make up higher rates of the private-prison population.[23]  These prisoners are then subject to work in private facilities for longer periods of time where they make pennies per hour.[24]  These inmates serve longer sentences and make a pittance in wages in order for private prison corporations to be profitable.[25]  This violates the spirit of the thirteenth amendment, and a new and contemporary meaning of slavery could evolve with a present interpretation of the amendment.

The private prisons industry has countless negative effects that the federal government has acknowledged, but change has not been swift.  Executive Order 14006 is an act of acknowledgment, but it is unlikely to drive substantial change.  The private prison industry will continue to thrive unless the Court acts.  There are many strong legal paths that allow true change in the criminal justice system by abolishing the private-prison industry, including the nondelegation doctrine, due process, and the Thirteenth Amendment.  An Executive Order will never be enough to create permanent change in the private-prison system. That change will best be served by the Court system.


[1] Luke Bar, BOP Finalizes Moving Inmates from Private Prisons, ABC News ( Dec. 1, 2022, 4:25 OM),

https://abcnews.go.com/Politics/bop-finalizes-moving-inmates-private-prisons/story?id=94281403.

[2] Exec. Order No. 14,006, 86 Fed. Reg. 7483 (Jan. 26, 2021).

[3] Josh Sanburn, Privately-Run Prisons Hold Inmates Longer, Study Finds, TIME (June 19, 2015, 11:44 AM EDT), https://time.com/3928184/private-prisons-longer-incarceration/.

[4] Banking on Bondage: Private Prisons and Mass Incarceration, ACLU ( Nov. 2, 2011), https://www.aclu.org/banking-bondage-private-prisons-and-mass-incarceration.

[5]  ACLU, supra note 3.

[6]Kara Gotsch, Capitalizing on Mass Incarceration: U.S. Growth in Private Prisons, The Sentencing Project (Aug. 2, 2018), https://www.sentencingproject.org/reports/capitalizing-on-mass-incarceration-u-s-growth-in-private-prisons/.

[7] Rina Palta, Why For-Profit Prisons House More Inmates Of Color, NPR ( March 13, 2014 , 7:12 AM ET), https://www.npr.org/sections/codeswitch/2014/03/13/289000532/why-for-profit-prisons-house-more-inmates-of-color.  

[8] andre douglas pond cummings, “All Eyez on Me”: America’s War on Drugs and the Prison-Industrial Complex, 15 J. Gender Race & Just. 417 (2012).

[9] Mitchell Abood, The Evolution of Private Prison Incarceration in the United States, UMLR Insights (Jan. 31, 2021), https://lawreview.law.miami.edu/evolution-private-prison-incarceration-united-states/.

[10] Id.

[11] Exec. Order No. 14,006, 86 Fed. Reg. 7483 (Jan. 26, 2021).

[12] Id.

[13] Jim Tankersley & Annie Karni, Biden Moves to End Justice Contracts with Private Prisons, NY Times (Jan. 26, 2021), https://www.nytimes.com/2021/01/26/business/biden-private-prisons-justice-department.html.

[14] Lauren-Brooke Eisen, Breaking Down Biden’s Order to Eliminate DOJ Private Prison Contracts, Brennan Ctr. for Just. (Aug. 27,  2021), https://www.brennancenter.org/our-work/research-reports/breaking-down-bidens-order-eliminate-doj-private-prison-contracts.

[15] Id.

[16] Chris Geidner, A Year After Biden’s Executive Order on Private Prisons, Business Is Still Booming, Grid (Jan. 26, 2022), https://www.grid.news/story/politics/2022/01/26/a-year-after-bidens-executive-order-on-private-prisons-business-is-still-booming/.

[17] Id.

[18] Robert Craig & andre douglas pond cummings, Abolishing Private Prisons: A Constitutional and Moral Imperative, 49 U. Balt. L. Rev. 261, 282 (2020).

[19] Salil Dudani, Unconstitutional Incarceration: Applying Strict Scrutiny to Criminal Sentences, 129 Yale L.J. 2112 (2020).

[20] Russell W. Galloway, Jr., Basic Substantive Due Process Analysis, 26 U.S.F. L. REV. 625, 627 (1992).

[21] U.S. Const. amend. XIII, § 1.

[22] Craig & cummings, supra note 15.

[23] Mitchell Abood, The Evolution of Private Prison Incarceration in the United States, UMLR Insights (Jan. 31, 2021), https://lawreview.law.miami.edu/evolution-private-prison-incarceration-united-states/.

[24] Comparing Compensation: What Inmates in Private Prisons Would Otherwise Get Paid, Human Trafficking Search (Nov. 13, 2017), https://humantraffickingsearch.org/comparing-compensation-what-inmates-in-private-prisons-would-otherwise-get-paid/.

[25] Abood, supra note 9; Comparing Compensation, supra note 24.

12 Wake Forest L. Rev. Online 111

INTRODUCTION

No one wonders about the strength of the First Amendment’s speech protections with the same level of intensity as someone who has just uttered an unpopular opinion or statement. Growing up, school children often defend their words by alleging that in the United States, we can say whatever we want because of the First Amendment’s right to freedom of speech. Unsurprisingly, the extent of First Amendment protections is much more complicated than that simple phrase of “freedom of speech.” First Amendment jurisprudence “has been called labyrinthine for good reason. It consists of overlapping doctrines, maddeningly inconsistent rulings and an uncertain future.”[1]

This Comment will examine the scope of the First Amendment for higher education, particularly for professors at public colleges and universities. Can professors insist on calling students pronouns contrary to the students’ stated preferred pronouns despite policies and high-ranking administrators requiring professor to comply? Should the answer to that question depend on the jurisdiction in which the professor is teaching?

In Meriwether v. Hartop,[2] the Sixth Circuit joined the circuit split regarding which freedom of speech test applies to higher-level teacher speech for First Amendment purposes.[3] The breadth of freedom of speech on campuses is a recurring issue and a highly litigated matter.[4] Until there is a consistent test that courts can apply, and that professors can rely upon, the confusion surrounding professors’ protections and academic freedom will continue.

As discussed in Part III, the Supreme Court has determined that Garcetti vs. Ceballos[5] is the controlling test in public employment settings.[6] However, the Supreme Court refused to confirm which test would apply for higher education by merely referencing that Garcetti may not be the adequate test for professors.[7] Since that opinion, there has been confusion and inconsistency among the appellate courts, as some interpreted Garcetti to apply to all employment sectors, including professors at colleges and universities,[8] and some circuits interpreted Garcetti not to apply to professors and therefore apply a different standard instead.[9]

While freedom of speech on campus is commonly analyzed, the focal point is typically on the students’ freedom of speech rights in the classroom or on campus property when engaging in speech such as protests.[10] In contrast, this Comment looks at the extent of public university professors’ rights rather than the rights of students. Specifically, this Comment focuses on higher education, as opposed to teachers at or below secondary education. Given the United States’ tense and ever-changing sociopolitical climate over the last two years, the breadth of the First Amendment is once again at the forefront of people’s minds.[11] Are our First Amendment rights in jeopardy? How far does this protection reach? How much protection is too much?

This Comment consists of six parts. Part I offers a brief overview of the First Amendment and its protections. Part II discusses the public policy of professors holding broad freedom of speech rights and the importance of academic freedom. In Part III, this Comment reviews the controlling cases that embody the freedom of speech tests in public employment. Next, Part IV reviews the inconsistencies in how different circuits are applying these cases to develop freedom of speech tests for higher education at colleges and universities. Further, Part V discusses why the gaps in Garcetti make Pickering the more appropriate standard for professors’ speech and why courts must adopt an academic freedom exception if they are going to apply Garcetti to all employment sectors. Finally, Part VI utilizes the Sixth Circuit’s application of the Garcetti test in its case Meriwether v. Hartop to demonstrate why the Pickering test is preferable and why the Supreme Court must step in to clarify the appropriate standard.

I. Background: First Amendment

The First Amendment not only guarantees freedom of speech, press, and religion, but also, it is a symbol of independence in the United States.[12] When the United States achieved independence from England, the Bill of Rights deliberately included the freedom of speech as the “first constitutional guarantee” and was later “ratified as part of the Constitution” along with the rest of the Bill of Rights on December 15, 1791.[13]

Freedom of speech has rich roots in the United States, and this constitutional provision has been “widely copied and admired” in other countries and served as a catalyst for “the subsequent progress towards freedom of speech” elsewhere.[14] The freedom of speech was at the forefront of the founding fathers’ minds at the time of independence because there was no such guarantee in Britain and the founders were framing a democratic government for the United States.[15] Under English law, which governed the United States prior to independence, there were exceptions to the freedom of speech, and there was no “positive guarantee of freedom of speech” except under the parliamentary privilege.[16]

After Gitlow v. New York,[17] a milestone case for American jurisprudence, the First Amendment’s protection extended to all fifty states through the incorporation doctrine of the Fourteenth Amendment, which “protects the citizen against the State itself and all of its creatures.”[18] Not only is the First Amendment symbolic of the United States independence from Britain, but also, it is crucial to this country’s democratic form of government. Without the explicit guarantee of the freedom of speech, no other fundamental human right can be advocated for, no democratic system of government or constitutional system of government would function properly, and “no potential for exposure of wrongdoing, particularly in high places,” would be permitted.[19]

Freedom of speech protects the political debate on which a democracy survives.[20] Without the freedom of speech and resulting political debate, “there can be no check on potential tyrants and, so, no guarantee of constitutional government and no guarantee of maintenance of freedom of speech.”[21] In a well-known Supreme Court First Amendment case, the Court stated that “if there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, or other matters of opinion or force citizens to confess by word or act their faith therein.”[22]

Aside from applying in all fifty states, the First Amendment has wide coverage in other senses as well. The First Amendment protects more than just verbal speech; it also protects symbolic speech, which is “nonverbal, nonwritten forms of communication.”[23] Importantly, the First Amendment protects against content discrimination, which prohibits restrictions on people speaking on certain subject matter.[24] While content discrimination is disfavored, viewpoint discrimination is disfavored even more because it restricts particular ideas and opinions within certain subject matter.[25]

II. The Intersection of the Freedom of Speech and Academic Freedom–Public Policy Requires Significant Speech Protections for Professors

Since education and academia contribute significantly to public debate, a lack of academic freedom threatens citizens’ ability to debate controversial issues.[26] Professors hold a unique role in society because they are responsible for encouraging introspection and disseminating information, ideas, and knowledge upon citizens so that the public can benefit from the wealth of knowledge and progress as a country. Notably,

teaching, scholarship and most, if not all, research, involves the comparatively wide dissemination of information, it is inextricably bound up with speech. Since the pursuit of truth itself involves discussion, any restriction on freedom of speech is a restriction on the pursuit of truth. Consequently, restriction of freedom of speech automatically involves a restriction of academic freedom, except where academics are given some special freedom of speech, not available to members of society in general.[27]

Appropriately, teaching, scholarship, and research are identified as the core duties of professors,[28] and these are the core duties that academic freedom seeks to protect. The unique role of professors, and the unique difficulties and situations professors face, require safeguards; this concept led to what is commonly referred to as “academic freedom.” Academic freedom is premised “on the idea that the free exchange of ideas on campus is essential to good education.”[29] It has been defined as the “freedom of a teacher to discuss or investigate any controversial social, economic, or political problems without interference or penalty from officials, organized groups, etc.”[30]

In 1915, the American Association of University Professors (AAUP) drafted the Declaration of Principles on Academic Freedom and Academic Tenure.[31] In this Declaration, academic freedom was “divided into ‘freedom of inquiry and research; freedom of teaching within the university or college; and freedom of [extramural] utterance and action.’”[32] A fourth principle was later added: freedom of intermural utterance and action, which entails the freedom to participate in and comment on how a school is administered.[33] However, the AAUP “did not advocate for unlimited faculty rights.” Instead, “academic freedom was tied to professional duties and responsibilities.”[34]

Because academia is “disproportionately concerned with new ideas and innovations, all of which inevitably challenge existing views,” education and academia are particularly and significantly “vulnerable to any lack of freedom of speech.”[35] This vulnerability arises because pre-existing “entrenched interests” are threatened by, and therefore resist, “the challenge posed by new ideas.”[36] In the United States, our public education system, “if faithful to the ideal of secular instruction and political neutrality, will not be partisan or enemy of any class, creed, party, or faction.”[37]

The United States’ prohibition on content and viewpoint discrimination is essential to the academic setting because professors must be able to lecture on a variety of different viewpoints and ideologies, even if the viewpoints and opinions are not the most popular or if the majority of the students in the classroom do not agree. That is the essence of a debate and a democratic form of government. Freedom of speech and academic freedom are necessary to a “proper political debate.”[38]

Beyond the importance of a proper political debate, the intersection of freedom of speech and professors’ academic freedom is important for a plethora of other developments, progressions, and civic functions. For example, until the seventeenth century, it was commonly taught in schools that the Sun revolved around the Earth.[39] Without the freedom to challenge viewpoints and lecture on alternative theories and ideologies, societies would make little progress.[40] This was shown to be true during the “anti-revolution movement of the 1920s” and the Scopes trial.[41]

Professors’ speech protections must be closely guarded given the unique role that professors hold, which can only be properly performed if professors know that they are protected by the First Amendment. Removing professors’ freedom of speech rights runs the risk of professors switching occupations if they are subjected to lawsuits or employment termination each time they lecture to students or publish an academic article as encouraged by universities. Aside from the United States recognizing the inherent value of education, education leads to progress and development, which benefits society.[42] However, this cannot come to fruition if professors are changing careers out of fear.

Without the freedom of speech, thoughts would be stagnant and cease to progress in many areas, including academically, scientifically, politically, and even socially. However, academic freedom is not absolute protection for professors. Following the thought process of the AAUP, professors must “act professionally in their scholarly research, their teaching, and their interactions with students and other faculty.”[43] This is ensured by universities’ policies and procedures that “safeguard both students and the academic integrity of the institutions and disciplines.”[44] Acting professionally has benefits for the reputation and integrity of the larger college or university, and it also contributes to the professor’s reliability, authority, and believability from the perspective of the student. This concept that academic freedom is not absolute will be addressed later when analyzing the facts of Meriwether.

III. Pickering, Connick, and Garcetti–The Focal Cases That Have Developed the Freedom of Speech Test

While the contours of the freedom of speech have been developed through a number of influential cases, this Comment will focus on three main cases that lay the foundation for the freedom of speech, especially in the public employment context. It is largely from these three cases that the different appellate circuit courts derive the test that they apply to professor speech in higher education.

In Pickering v. Board of Education,[45] a high school teacher was fired for submitting a letter to a local newspaper that criticized the school.[46] The Supreme Court found that the teacher’s freedom of speech rights were violated because “teachers and other public employees do not relinquish their First Amendment rights to comment as citizens on matters of public interests.”[47] Thus, Pickering established a right to comment on matters of public interest, and it further created a balancing test between the teacher’s freedom of speech interests and the employer’s interest in regulating its employees.[48] The Court reasoned that “teachers are, as a class, the members of a community most likely to have informed and definite opinions as to how funds allotted to the operations of schools should be spent.”[49] While Pickering established the governing test, the opinion did not clearly specify what constituted a matter of public concern.

Fifteen years later, the Supreme Court elaborated on the test for whether speech was on a matter of public concern in Connick v. Myers.[50] In Connick, an assistant district attorney was fired for distributing a questionnaire around the office regarding morale within the office.[51] The Supreme Court established that when determining whether “an employee’s speech addresses a matter of public concern,” the courts must look at the “content, form, and context of a given statement.”[52] In Connick, the content, form, and context were unrelated to “any matter of political, social, or other concern to the community.”[53] The speech was on a matter of personal interest, not public interest, and was not protected by the First Amendment.[54] Thus, Connick provided clarity to the freedom of speech test given in Pickering: courts must look at the content, form, and context for a concern to the community, and the interest must not be personal.

After Pickering and Connick, the prevailing First Amendment test was still the two-part Pickering test, which requires that (1) an employee speak about a matter of public concern, and (2) a balancing of the employee’s and employer’s interests.[55] Connick supplemented the first requirement by adding that when determining whether a matter is of public concern, the court should look at the content, form, and context of the statement and whether it was related to any political, social, or other concern to the community.[56] A personal interest would not suffice. While Pickering was bolstered by Connick and other First Amendment cases, this progressing foundation was rattled by the Garcetti opinion.

In Garcetti v. Ceballos, the Supreme Court added an additional, third step to the freedom of speech analysis in Pickering for employment contexts, namely that the public employee must be speaking outside of her official, professional duties for the speech to be protected.[57] Official duties include those that the employee is “paid to perform.”[58] When one speaks outside of one’s official duties, they are speaking as citizens and the speech is protected.[59] This additional third step is where the circuits diverge for the freedom of speech test that is applied at the university level.[60]

In Garcetti, a deputy district attorney wrote a memorandum to his supervisors regarding a legal issue.[61] The Supreme Court held that this speech was not protected because Garcetti was acting within his duties as deputy district attorney and was not speaking as a citizen.[62] By requiring this third prong for employees, “the Supreme Court suggested that First Amendment protections do not attach insofar as individuals are speaking as employees rather than as citizens.”[63] Importantly, the Garcetti Court expressly reserved judgment as to whether the newly espoused third prong would apply in a public university setting.[64] This was in response to Justice Souter’s dissenting opinion that the “official duties” rule would “imperil First Amendment protection of academic freedom in public colleges and universities, whose teachers necessarily speak and write ‘pursuant to . . . official duties.’”[65] Justice Souter’s dissent recognized that “universities occupy a special niche in our constitutional tradition” given the importance of public education and the “expansive freedoms of speech and thought associated with the university environment.”[66] Thus, the Court left the underlying question unanswered—does Garcetti apply to public universities? Is there an academic freedom exception? If Garcetti doesn’t apply, is Pickering the appropriate standard? Given this gray area, circuits have applied different First Amendment tests to university professors’ speech.

IV. Current Circuit Split—Inconsistent Freedom of Speech Test Applied to Professors Depending on the Jurisdiction

The Sixth Circuit has joined the circuit split surrounding the prevailing test for professor speech, which puts pressure on the Supreme Court to clarify the confusion and establish a consistent test across the United States for this Constitutional guarantee. The Fourteenth Amendment incorporates the First Amendment so that it applies to the states, and it should apply evenly to the states.[67] The constitutional guarantees should not be more protective in one state than another state. The United States operates on the premise that “all men are created equal”;[68] this should mean that citizens in New York are entitled to the same protections as the citizens in Texas, Maryland, or any other state. Since the First Amendment for professors has not yet achieved that level of consistency, this Comment will now turn to the different approaches that the circuits have adopted for professor speech at public universities and colleges.

In Weintraub v. Board of Education,[69] the Second Circuit adopted the Garcetti test, which adds the third prong to Pickering and requires one to speak as a citizen outside of one’s official job duties to be protected by the First Amendment. Similarly, the Seventh Circuit in Renken v. Gregory[70] hesitantly applied the Garcetti test and determined that a professor was acting within his “teaching, research and service responsibilities” when he “took issue” with the way the funds from a grant were to be allocated by the university.[71]

Alternatively, the Ninth and Tenth Circuits have taken approaches similar to one another and have chosen Pickering as the appropriate standard for professors. In Demers v. Austin,[72] the Ninth Circuit held that “Garcetti does not apply to ‘speech related to scholarship or teaching’” and rather Pickering is the test that applies.[73] Similarly, the Tenth Circuit held that the appropriate standard is the test articulated in Pickering for when “a professor was claiming his academic freedom was violated.”[74]

V. Why Pickering is the Superior Freedom of Speech Test Over Garcetti for Securing and Maintaining Academic Freedom

While speaking as a citizen and outside of an employee’s official duties may be an appropriate standard for other employment settings, it directly contradicts the values of the public education system. Teaching, scholarship, and research are official duties of a professor,[75] which means that while exercising these functions, professors would not be speaking as citizens. These are the functions professors exercise that we want to protect as a society.[76] The Garcetti third prong would heavily favor college and university administrations, while leaving professors to wonder about the extent of their speech rights.

Given our country’s history and tradition of valuing not only the freedom of speech, but also our public-school system, Pickering is a better test for public universities. Pickering does not require that the professors prove that they were speaking as citizens, so the core functions of teaching, scholarship, and research would still be protected by the First Amendment.

If Garcetti is to be the appropriate standard, then there must be an academic freedom exception. Otherwise, professors at public universities will fear each lecture.[77] Further, if our nation does not protect professors from either losing their job or from facing litigation, then professors will actively seek out jobs at private universities, or jobs outside of higher education altogether, and our public education system will deteriorate. “The professor must be assured beforehand that she is free to speak, and heightened First Amendment scrutiny gives her that assurance.”[78]

When creating an exception to the third prong of the Garcetti test, it is often hard to decide where to draw the line. What is academic freedom? Would the academic freedom exception apply to all university employees, or just those who teach doctrinal courses? What about employees at trade schools? Would this exception apply to an individual who gives a guest lecture? Does the audience of the speech matter in determining whether the exception would apply?

Pickering is a more desirable test for professors at colleges and universities because these ambiguous questions do not need to be answered since there is no third prong and thus no need for an exception. Given the confusion and inconsistencies surrounding the circuit courts regarding university speech already, there is a need for clarity. Creating a Garcetti exception would likely create more confusion and leave these questions unanswered, leading to even more division between the circuit courts. The Pickering framework is clear—the professor must speak on a matter of public importance and pass the balancing test.

However, for the courts that recognize the Garcetti test for all public employment sectors, including higher education, it is essential that those courts recognize the public policy of academic freedom and subject professors at colleges and universities to a different freedom of speech test than is used for other employment sectors. It is essential to have a system that protects professors. Not only are professors speaking daily for lectures but they also are required to publish a large quantity of material to advance their career and be considered for tenure.[79] While academic freedom is “broad and permissive,” the existing case precedent, including Pickering, Connick, and Garcetti, “do not adequately protect academic freedom.”[80]

At the university level, tenure creates even more academic freedom and job security for professors, yet it is difficult to achieve given the amount of scholarship that professors are required to produce in order to achieve tenure status.[81] Despite the pros and cons of the tenure system, tenure is another means by which academic freedom can be provided. Tenure “does not grant a teacher a job for life but simply protection from arbitrary firing and retribution; it safeguards academic freedom; it decreases turnover and creates a more stable learning environment for students.”[82] Since the First Amendment is needed to protect the untenured professor who is publishing the amount of material that is required to achieve tenure—without the fear of retribution for the words published—the First Amendment and the protections from tenure go hand in hand for academic freedom.

VI. The Sixth Circuit Case Meriwether v. Hartop Highlights the Issue of Defining the Breadth of an Academic Freedom Exception & Which Functions Must be Protected as Unique Roles of a Professor

Meriwether provides further insight on why Pickering is the more appropriate test for professors’ speech. Looking at the current circuit split regarding whether Pickering or Garcetti applies, the Sixth Circuit is one which turns to the academic freedom exception to Garcetti, and therefore, the concept of “academic freedom” must be analyzed closer. Attempting to pinpoint—and then apply—exactly what encompasses academic freedom creates more ambiguity. The issue of what constitutes academic freedom, the scope of that freedom, and which academic duties we are trying to protect is essential. It is no surprise that the circuits have varied in the way that they consider different roles and duties of university professors.

The core duties of a professor, such as research, scholarship, and teaching, should be included in academic freedom because these duties directly involve the dissemination of ideas and the passing on of knowledge and viewpoints to students. These have been the core duties of professors for generations. The Meriwether case has, however, sparked a debate over whether administrative duties such as classroom management should receive special First Amendment rights under the academic freedom ideal as the other core duties enjoy. Are administrative duties in the classroom unique to academia? Does a professor’s method for roll call at the beginning of class impact the dissemination of information? How does a teacher’s administrative duties differ from the administrative duties of other professions? These questions direct one to look at the Sixth Circuit’s decision in Meriwether and the implications that the scope of the academic freedom can have.

A. Review of the Sixth Circuit Case, Meriwether v. Hartop

In Meriwether, the plaintiff Nicholas Meriwether, a philosophy professor at the public college Shawnee State University (“Shawnee State”), was terminated from employment for refusing to call a transgender student by the student’s preferred pronouns given the professor’s conflicting religious beliefs.[83] Shawnee State had a standing policy that required professors to call students by their preferred pronouns.[84] The student was enrolled in Meriwether’s Political Philosophy course.[85] Meriwether addressed students in class by “Mr.” or “Ms.” and improperly called the student “sir.”[86] The student corrected Meriwether after class and requested to be called by female pronouns.[87]

Since Meriwether refused to comply with Shawnee State’s policy regarding pronouns, the Dean of the College of Arts and Sciences told Meriwether to eliminate sex-based references for all of the students in the class, not just the one transgender student.[88] Meriwether resumed calling all of the other students by “Mr.” or “Ms.” but singled out the transgender student and called the student by her last name.[89] Soon after, Meriwether accidentally called the student “Mr.” and then proceeded to call the student by her last name for the remainder of the semester.[90] Meriwether received multiple warnings and visits throughout the semester demanding that he follow the school policy and call the student by female pronouns or stop using gender-related titles for all students, thus treating the students in the class equally.[91]

B. Garcetti Academic Freedom Exception Applied to the Facts of Meriwether

The Sixth Circuit joined the Fourth,[92] Fifth,[93] and Ninth[94] Circuits and determined that there is an academic freedom exception to Garcetti; therefore, the third prong, which was developed in Garcetti, does not apply to higher-level education in the Sixth Circuit.[95] As previously mentioned, without an exception, professors’ speech would not be protected because their lectures and other core functions of teaching, scholarship, and research are directly within their ordinary, official duties and therefore would not be citizen speech. For that reason, the Sixth Circuit incorporates an academic freedom exception to award professors the guarantees of the First Amendment. The breadth of academic freedom and what actions contribute to the core functions of teaching, scholarship, and research are at debate.

Shawnee State argued that a professor’s use of titles and pronouns is not protected under the academic freedom exception to Garcetti because it is unrelated to the “substance of classroom instruction.”[96] The use of pronouns and titles was not the subject of the course, nor was this speech used for an academic purpose. The Meriwether court, however, stated that gender identity is a “matter of public concern that ‘often’ comes up during class discussion in Meriwether’s” courses.[97] Despite this fact, there was no showing that pronouns and titles are a substantive topic of discussion for the current course that the transgender student was taking.[98] The Meriwether court held that the exception to Garcetti for academic freedom “covers all classroom speech related to matters of public concern, whether that speech is germane to the contents of the lecture or not.”[99]

Therefore, the Sixth Circuit answered the scope of the academic exception question with a broad answer: it covers almost everything, regardless whether the questioned speech was contents of a lecture. This broad approach gives professors a degree of immunity that is unwarranted for functions outside of teaching, scholarship, and research. In Meriwether, the way that the professor called roll or addressed the students was not the subject of his class or a lecture, and professors are no different from other employees in other employment sectors in how they address colleagues, co-workers, or clients.

Professors deserve special attention given their unique role in society—that is why either Pickering or Garcetti with an academic freedom exception is an appropriate test. If the professor is not performing tasks required by this unique role, however, such as when the professor is not performing his or her core duties, then the professor is no different than an employee or worker in a different employment sector. There should not be special treatment. If the professor’s speech is not unique to a function that academic freedom seeks to protect, then the professor should be subject to the third prong in Garcetti, like the Supreme Court ruled was the appropriate test for all other public employees.

For example, simple administrative tasks that are not meant to communicate a lesson, ideology, or knowledge are not unique to a professor. All employment sectors deal with administrative functions; this is not unique to higher education. Therefore, if a professor is performing an administrative task rather than a task that furthers education or academia, then Garcetti is the more appropriate test.

Interestingly, the Meriwether court addresses some instances where the professor’s classroom speech falls outside of the Garcetti exception because it is a “non-ideological ministerial task” not protected by the First Amendment.[100] One example that the Sixth Circuit includes as a ministerial task is a professor calling roll before class begins.[101] The court says that the facts of Meriwether differ from calling roll because pronouns “carry a message.”[102]

However, it is highly questionable whether there is any difference between calling on individual students during the class period and calling roll at the beginning of class—a task that the court agreed is not protected speech. A professor could call roll at the beginning of the class by using pronouns as well, such as calling the students “Mr.” or “Ms.” while calling roll. However, under the Sixth Circuit’s reasoning, only calling roll is speech not protected by the First Amendment.[103] Whether using pronouns at the beginning of class or during class, these are administrative functions. To hold otherwise is splitting hairs. Many, if not all, employment sectors require communication between colleagues which implicates the use of pronouns or titles. This is not unique to a professor.

Further, the court differentiates the use of pronouns during the class from calling roll at the beginning of class because the use of pronouns “carr[ies] a message.”[104] It is questionable whether the use of pronouns during the class when calling on a student carries a message. If the professor was intentionally using pronouns or titles to further teaching, scholarship, or research, then pronouns can certainly carry a message. To provide one example, this may be the case in a gender studies course. To qualify for the academic freedom exception, the speech should convey an academic message, not just a message in general. Arguably all speech conveys a message—that does not mean that a professor can get away with uttering anything.

While pronouns can certainly convey an academic message, they can also be a mundane part of life and way that people communicate. There is not necessarily an academic message conveyed every time pronouns are uttered. The academic freedom exception is meant to shield professors so that they can adequately contribute to our public education system. It is not to serve as an absolute shield for tasks and functions that do not serve the goal of academia.

While the Sixth Circuit joins the Ninth Circuit in creating an academic freedom exception to Garcetti, it does not necessarily join the Ninth Circuit in what activities constitute academic freedom. The Ninth Circuit affirmed Hong v. Grant,[105] which held that the administrative functions of a professor were subject to the third prong of Garcetti—whether the professor was acting within his official duties—and therefore found that the professor’s administrative concerns were not protected by the First Amendment because they were in the course of his official duties.[106] The court reasoned that to hold otherwise for administrative functions “would require endless judicial supervision of the decisions university administrators must make on a daily basis to ensure the efficient and effective management of their institution.”[107] The Ninth Circuit therefore recognizes that administrative acts and speech do not carry the same public interest as the core duties of professors—teaching, scholarship, and research—and that universities and colleges have the right to oversee other functions for the sake of efficiency and effectiveness.

As previously mentioned, academic freedom is not an absolute protection. Michael LeRoy conducted research that shows that many professors may believe that “all speech in their classrooms, publications, and public announcements is constitutionally protected”; however, academic freedom is narrower than that.[108] Even if one is protected by the freedom of speech, the degree of protection “has not been specified and the First Amendment protection may be overridden if the speech causes disruption.”[109] It is difficult to decide where to draw the line for an academic freedom exception to the Garcetti test, but nonetheless, a line must be drawn.

C. Speech on a Matter of Public Concern Applied to the Facts of Meriwether

Without the ambiguous academic freedom exception to Garcetti, which adds an additional, unsettled step to the analysis, the test for whether professor speech is protected is a lot more straightforward. Regardless of whether a court is applying Pickering or Garcetti, the other steps from Pickering must still be satisfied, including that the speech be on a matter of public concern. Regarding whether the professor spoke on a matter of public concern, the Sixth Circuit says that the “pronoun debate is a hot issue” and when Meriwether “waded into the pronoun debate, he waded into a matter of public concern.”[110] Although gender identity and the use of conforming pronouns are matters of public concern, that was not the subject matter of Meriwether’s lecture nor was Meriwether intending to enter that particular debate on some of the occasions, as he admitted that he used the wrong pronouns by accident.[111] This shows that Meriwether was not intending to speak on an ideological matter at all but rather was exercising a nonideological administrative function, which as mentioned above should not be included in the academic freedom exception.

Further, looking at the Connick addition to the Pickering rule, the content of the speech must be on a matter of a public concern and not a private concern. The Sixth Circuit recognized this rule in Hardy v. Jefferson Community College,[112] when the court provided that when determining whether the speech was a matter of public concern, it must “determine ‘the point of the speech in question . . . [because] [c]ontroversial parts of speech advancing only private interest do not necessarily invoke First Amendment protection.’”[113]

Meriwether was speaking on a matter of private concern. He was not advocating for the general population nor on behalf of the school or any entity larger than himself. Meriwether had a private religious objection to a student’s preferred pronouns. This was a private belief held by the professor and was unrelated to the course curriculum or any teaching, scholarship, or research for that matter. Given the Supreme Court rule from Connick, Meriwether’s private religious objection was not a matter of public concern.

D. Balancing Test – Applied to the Facts of Meriwether

Lastly, under either the Garcetti or Pickering freedom of speech test, the final step to the analysis is a balancing test between the professor’s freedom of speech interests and the university’s interest in regulating its employees. There are often strong arguments on both sides. Here, the professor argues that he has interests given the history of protecting teacher speech and sharing different viewpoints in the classroom.[114] Alternatively, Shawnee State argued that it has an interest in stopping discrimination against transgender students.[115] The Sixth Circuit determined that the balancing test weighed in favor of Meriwether.[116]

The Sixth Circuit reasoned in the opinion that

[i]f professors lacked free-speech protections when teaching, a university would wield alarming power to compel ideological conformity. A university president could require a pacifist to declare that war is just, a civil rights icon to condemn the Freedom Riders, a believer to deny the existence of God, or a Soviet émigré to address his students as “comrades.”[117]

The Sixth Circuit’s reasoning is arguably an alarmist approach and exaggerates the effect that university policies and procedures have on the content of a professor’s lecture or the ideologies that the professor is allowed to share with the students.

First, the court’s hypothetical is premised on a professor losing First Amendment rights when teaching. It is arguable whether Meriwether’s use of pronouns during the class constitute “teaching.” Second, this reasoning confuses the difference between restricting speech and compelling speech. Here, Shawnee State merely restricted speech that was not related to the content of the lecture due to conflicting university policies. Shawnee State further gave Meriwether the option to call all of the students a gender-neutral option. It did not even require Meriwether to use the student’s preferred pronouns, merely that he did not single out the one student.

While acknowledging that the First Amendment is a bedrock principle of our Constitution and an important guarantee to protect, Shawnee State was not compelling speech. This is evidenced by the numerous options that the professor was given to avoid compelling his speech or compelling him to conform to a particular ideology or viewpoint. Here, Shawnee State was attempting to forbid certain speech, which is different than attempting to compel certain speech. As mentioned above, academic freedom is not an absolute right for professors, and it yields to the responsibility of the professor to act professionally and abide by university policies and protocols.

1. Balancing Test—Common Arguments for the Professors

As the arguments are looked at in further detail, the task of weighing the interests becomes more difficult. Professors commonly argue in freedom of speech cases that their constitutional guarantees and protections in the academic setting are crucial for the marketplace of ideas and for various ideologies to be discussed, learned, and fostered.[118] The United States strongly prohibits viewpoint discrimination, which prohibits only certain viewpoints to be discussed about a certain topic.[119]

University professors hold a unique role that must be protected given their task of educating not only their students but also the general public on “their area of expertise.”[120] Professors “directly contribute to ‘free and open debate’ on a myriad of scientific, political, religious, sociological, and philosophical matters” so that the public can make informed decisions on important matters.[121]  This civic and humanitarian duty to educate the public depends on the guarantees of the First Amendment “to protect the teaching and scholarship that makes this education possible.”[122] It is for this reason that some believe the First Amendment, which protects freedom of thought and expression for all, is most important for those who accept the role as a professor.[123] In addition to the importance of protecting the professors from adverse actions or retaliation in the workplace due to their speech, it is equally important for education and academia that professors are free to utter uncensored words to their students.

Some argue that the Pickering balancing test should “weigh decidedly” for the professor because the universities’ interests are “so minimal” in comparison to the strong First Amendment interests of the professors.[124] However, universities have strong corresponding interests as they must manage a large group of people and create an environment that is conducive to learning and education in the first place. Further, it is an overgeneralization to say that the universities’ interests are “so minimal.” Universities are responsible for the well-being of other students and faculty, which is hardly a minimal task. Therefore, a balancing test that weighs decidedly for the professors would essentially eliminate the balancing test for freedom of speech in the upper-level educational setting, despite the strong interests that universities have as well.

2. Balancing Test—Common Arguments for Colleges and Universities

Universities must ensure that their classrooms welcome the marketplace of ideas in a way that is conducive to learning. While our court system has a preference to rule in favor of the professor in freedom of speech cases,[125] this is not a blind analysis. There are instances where the school’s interests will outweigh the professor’s interests, such as where a professor violates the student’s constitutional rights or unlawfully discriminates against students.

One such instance where a professor may lose on the balancing-test prong of the analysis is when the professor’s speech creates a hostile environment in the classroom. Professors do not differ from other employment sectors in that they are not immune from the universities’ policies that protect the students and other co-workers.

Additionally, a hostile environment in the classroom and academic setting “disrupts the learning process itself.”[126] The Seventh Circuit recognized this reasoning in Piggee v. Carl Sandburg College[127] after a professor gave a gay student in the class “religious pamphlets on the sinfulness of homosexuality.”[128] The Piggee court reasoned that the professor’s speech “was not only not relevant to her job but in fact might have impeded her ability to work with students.”[129] The First Amendment is not a protective shield that permits “professors to use profane, racist, or sexist language without any legitimate academic justification.”[130] Piggee shows that professors must maintain their ability to work with students and other faculty, and they cannot say things that will impede that ability. In other words, the First Amendment does not protect all speech at all times.

Applied to an educational fact scenario, a public university or college has the right “to protect its academic integrity by disciplining professors who disregard professional standards, ignore the curriculum, or violate students’ rights.”[131] This discipline and restriction on speech is permissible by the university “assuming [the discipline] is pursuant to precisely tailored regulations . . . because the university has overriding interests in preventing such behavior.”[132]

Additionally, universities and colleges have an interest in harmony and positive working relationships between various faculty and administrators. The Sixth Circuit recognized this interest in Hardy when it admitted that the speech at issue in Hardy had “the effect of creating disharmony between Hardy and the College administrators.”[133] Additionally, the Sixth Circuit has considered factors such as federal funding and the effect that retaining a professor would have on enrollment.[134] In Bonnell v. Lorenzo,[135] the Sixth Circuit suggested that “a fear of a loss of federal funding was a legitimate consideration” for overriding a professor’s First Amendment rights.[136] While concerns over enrollment at the college due to retaining a professor is another common argument for schools, the Sixth Circuit dismissed that argument in Hardy.[137]

Professors must adhere to accepted professional standards. These standards and restrictions on speech apply in settings broader than just the professor’s interaction with students in the classroom. Professors who plagiarize academic and scholarly papers “may be disciplined for a gross violation of professional ethics.”[138]  Similarly, “grossly inaccurate speech about the Holocaust, for example, could be cause for dismissing a historian for incompetence.”[139]

Further, universities have an interest in protecting the students who attend their program, many of whom live on campus.[140] There is an increased risk of suicide associated with transgender students.[141]

CONCLUSION

As displayed above by the circuit splits over (1) the differing tests for professors’ freedom of speech rights and (2) the various ideas regarding what is encompassed in an academic freedom exception, there is a need for uniformity and consistency. Universities and professors are both looking to the Supreme Court to establish a uniform test for professors’ freedom of speech rights and the role that academic freedom plays in determining those freedom of speech rights. Universities need to know what speech can be disciplined, and professors need to know what speech can be uttered.

Constitutional rights should not change over the lines of a state border. The Supreme Court has the power and authority to review a case like Meriwether v. Hartop and provide clarity on this issue across all fifty states. Professors hold a unique role in society and that unique role should be protected. The marketplace of ideas and differing ideologies taught and shared in the classroom are of great importance—especially since the United States is a country that values the freedom of speech and curses content or viewpoint discrimination.

That said, professors do not have an absolute shield to say whatever they deem fit. The Garcetti test for the freedom of speech in employment settings does not fit the role of professors well because of the importance of academic freedom. Professors must be awarded protections in teaching, scholarship, and research, or professors will seek other occupations given the constant fear of litigation or an adverse employment action. The academic freedom exception should not, however, protect professors from administrative duties, or from speech that has nothing to do with what they are teaching—such as calling roll or calling on a student during the class. Administrative tasks are not unique to education and academia; a professor does not differ from other employment sectors in that they must communicate with others in a professional fashion. Therefore, while academic freedom and professors’ confidence in their freedom of speech rights are essential, professors should not be protected from an academic freedom exception to Garcetti for tasks that are not unique or crucial to teaching, scholarship, or research.

                                                                      Hanna Diamond

  1. . David L. Hudson, The First Amendment: Freedom of Speech § 2:2 (2012).
  2. . 992 F.3d 492 (6th Cir. 2021).
  3. . Id. at 509.
  4. . Jack Karp, Vaccines, Tuition, Race: The Litigation on Law Schools’ Radar, Law 360 (August 30, 2021, 12:02 PM), https://plus.lexis.com/newsstand#/law360/article/1416940.
  5. . 547 U.S. 410 (2006).
  6. . Id. at 426.
  7. . Id. at 425 (stating “[w]e need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching”).
  8. . See, e.g., Evans-Marshall v. Bd. of Educ., 642 F.3d 332, 342 (6th Cir. 2010).
  9. . See, e.g., Demers v. Austin, 746 F.3d 402, 412 (9th Cir. 2014).
  10. . See, e.g., Widmar v. Vincent, 454 U.S. 263, 264–66 (1981).
  11. . For example, First Amendment issues have been implicated in recent presidential campaigns, the insurrection at the United States Capitol, COVID-19 awareness, and the Black Lives Matter movement. See, e.g., Knight Foundation, Future of the First Amendment 2022: High Schooler Views on Speech Over Time (2022), https://knightfoundation.org/wp-content/uploads/2022/05/2022_Future-of-the-First-Amendment_FINAL.pdf.
  12. . For more information on a full review of the First Amendment, see generally Hudson, supra note 1.
  13. . A. Alun Preece, Academic Freedom and Freedom of Speech, 16 Bull. Austl. Soc. Leg. Phil. 32, 35 (1991).
  14. . Id.
  15. . Henry L. Baumann & Jay S. Kogan, Would We Have a Fairness Doctrine if Marconi had Lived Before the Constitutional Convention?, 1986 Det. Coll. L. Rev. 947, 947.
  16. . Preece, supra note 13, at 36. While no “positive guarantee” existed, “[e]nglish law proceed[ed] generally on the assumption that anything may be said or done, which is not specifically prohibited by law.” Id.
  17. . 268 U.S. 652 (1925).
  18. . W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 637 (1943).
  19. . Preece, supra note 13, at 56.
  20. . Id. at 33.
  21. . Id.
  22. . Barnette, 319 U.S. at 642.
  23. . Ronald Kahn, Symbolic Speech, The First Amend. Encyc. (2009), https://www.mtsu.edu/first-amendment/article/1022/symbolic-speech (providing examples of symbolic speech such as “flag burning, wearing arm bands, and burning of draft cards”).
  24. . Hudson, supra note 1.
  25. . Id. at § 2.2 (stating that “[c]ontent discrimination is considered bad, but so-called “viewpoint discrimination” is considered even worse”).
  26. . Preece, supra note 13, at 33.
  27. . Id. at 32.
  28. . Id. See also Mark Strasser, Pickering, Garcetti, & Academic Freedom, 83 Brook. L. Rev. 579, 605 (2018) (stating that “[a]t the university level, research is often an important component of a professor’s job responsibilities”).
  29. . Academic Freedom, American Federation of Teachers https://www.aft.org/position/academic-freedom (last visited Sept. 20, 2022) [hereinafter Academic Freedom].
  30. . Academic Freedom, Random House Unabridged Dictionary (2022).
  31. . Richard K. Neumann Jr., Academic Freedom, Job Security, and Costs, 66 J. Legal Educ. 595, 596 (2017).
  32. . Id. at 596–97.
  33. . Id. at 597.
  34. . Michael H. LeRoy, How Courts View Academic Freedom, 42 J.C. & U.L. 1, 10 (2016).
  35. . Preece, supra note 13, at 33.
  36. . Id.
  37. . W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 637 (1943).
  38. . Preece, supra note 13, at 33.
  39. . Nola Taylor Tillman, Nicolaus Copernicus Biography: Facts & Discoveries, Space (Jan. 17, 2022), https://www.space.com/15684-nicolaus-copernicus.html.
  40. . See generally Kenneth Garcia, Religion, Sectarianism, and the Pursuit of Truth: Reexamining Academic Freedom in the Twenty-First Century, AAUP J. Acad. Freedom, 4 (2014) (discussing the tension between religion and academia; “Religious strife had been a cause of war and division in Europe for centuries. In a pluralistic society such as that of the United States, with no established religion, sectarian efforts to condemn and exclude the conceptions of others—including scientists, nonbelievers, and believers from other denominations—created discord. Both Catholics and Protestants were guilty of this throughout the nineteenth and first half of the twentieth century. . . . For too long it has been detrimental to scholarship as a whole and to the relationship between theology and other academic disciplines.”).
  41. . See Karmen Melissa Stephenson, Academic Freedom, Critical Thinking, and the Culture of American Science Education, 10 (2018) (Ph.D. Dissertation, University of Tennessee) (stating that after the Scopes trial most science textbooks limited or removed evolution from public science education. Teaching evolution was especially limited in states that had no “anti-evolution statutes in place.” This changed in the 1950s and 60s as First Amendment cases were decided).
  42. . See Elizabeth King, Education is Fundamental to Development and Growth, World Bank Blogs (Jan. 28, 2011), https://blogs.worldbank.org/education/education-is-fundamental-to-development-and-growth (discussing education as the tool to “reap” the benefits of the human mind to make possible all developments in society).
  43. . Academic Freedom, supra note 29.
  44. . Id.
  45. . 391 U.S. 563 (1968).
  46. . Id.
  47. . Joseph J. Martins, Tipping the Pickering Balance: A Proposal for Heightened First Amendment Protection for the Teaching and Scholarship of Public University Professors, 25 Cornell J.L. & Pub. Pol’y 649, 654 (2016).
  48. . Pickering, 391 U.S. at 569–70
  49. . Id. at 572.
  50. . 461 U.S. 138 (1983).
  51. . Id.
  52. . Id. at 147–48.
  53. . Id. at 146.
  54. . Id. at 148.
  55. . Martins, supra note 47, at 655–56.
  56. . Connick, 461 U.S. at 147–48.
  57. . Garcetti v. Ceballos, 547 U.S. 410, 421 (2006).
  58. . Id. at 422.
  59. . Id.
  60. . See infra Part IV.
  61. . Garcetti, 547 U.S. at 414.
  62. . Id. at 421.
  63. . Strasser, supra note 28, at 579; see also LeRoy, supra note 34, at 14 (stating that “the law did little to distinguish between the expressive elements for the occupation of professor, on the one hand, and high school teacher, hospital nurse, and assistant state’s attorney, on the other. The result is a one-size-fits-all First Amendment jurisprudence”).
  64. . Garcetti, 547 U.S. at 425.
  65. . Id. at 438 (Souter, J., dissenting).
  66. . Id. at 438–39.
  67. . Gitlow v. New York, 268 U.S. 652, 666 (1925).
  68. . The Declaration of Independence para. 2 (U.S. 1776).
  69. . 593 F.3d 196 (2d Cir. 2010).
  70. . 541 F.3d 769 (7th Cir. 2008).
  71. . Carol N. Tran, Recognizing an Academic Freedom Exception to the Garcetti Limitation on the First Amendment Right to Free Speech, 45 Akron L. Rev. 945, 967–68 (2011). But see Piggee v. Carl Sandburg Coll., 464 F.3d 667, 672 (7th Cir. 2006), where the court declined to apply Garcetti in its reasoning.
  72. . 746 F.3d 402 (9th Cir. 2014).
  73. . Victoria Jones, Comment, Developing a Speech Standard for Public University Faculty in the Academic Environment, 87 Miss. L.J. Supra 37, 54, LEXIS (2018).
  74. . Jones, supra note 73, at 55–56. See also Schrier v. Univ. of Colo., 427 F.3d 1253 (10th Cir. 2005).
  75. . Demers, 746 F.3d at 411.
  76. . See Preece, supra note 13, at 33.
  77. . See id. (arguing that professors’ freedom of speech rights are already subject to censorship because “‘political correctness’ is often a pre-requisite for appointment, tenure, or promotion . . . in modern Universities”).
  78. . Martins, supra note 47, at 678.
  79. . Dennis J. Turner, Publish or be Damned, 31 J. Legal Educ. 550, 554 (1981).
  80. . LeRoy, supra note 34, at 38 (stating that “the First Amendment is not synonymous with academic freedom”).
  81. . Turner, supra note 79, at 554 (This pressure on professors to publish and produce scholarship has been referred to as the “publish or perish” phenomenon, and some critics argue that while this pressure “may force the pen to the paper . . . it cannot instill creativity and inspiration”).
  82. . Molly Worthen, The Fight Over Tenure is Not Really About Tenure, N.Y. Times (Sept. 21, 2021), https://www.nytimes.com/2021/09/20/opinion/tenure-college-university.html.
  83. . Meriwether v. Hartop, 992 F.3d 492, 498 (6th Cir. 2021).
  84. . Id.
  85. . Id. at 499.
  86. . Id.
  87. . Id.
  88. . Id.
  89. . Id.
  90. . Id. at 500.
  91. . Id.
  92. . Adams v. Tr. of the Univ. of N.C.–Wilmington, 640 F.3d 550, 566 (4th Cir. 2011).
  93. . Buchanan v. Alexander, 919 F.3d 847, 856 (5th Cir. 2019).
  94. . Demers v. Austin, 746 F.3d 402, 418 (9th Cir. 2014).
  95. . Meriwether, 992 F.3d at 505.
  96. . Id. at 505.
  97. . Id.
  98. . Id. at 506.
  99. . Id. at 507.
  100. . Id.
  101. . Id.
  102. . Id.
  103. . Id.
  104. . Id.
  105. . 516 F. Supp. 2d 1158, 1170 (C.D. Cal. 2007), aff’d, 403 F. App’x 236 (9th Cir. 2010).
  106. . Id. at 1166–68.
  107. . Id. at 1169–70.
  108. . LeRoy, supra note 34, at 4.
  109. . Strasser, supra note 28, at 595.
  110. . Meriwether v. Hartop, 992 F.3d 492, 509 (6th Cir. 2021).
  111. . Id. at 500.
  112. . 260 F.3d 671 (6th Cir. 2001).
  113. . Id. at 678 (citing Dambrot v. Cent. Mich. Univ., 55 F.3d 1177, 87 (6th Cir. 1995)).
  114. . Meriwether, 992 F.3d at 509–10.
  115. . Id. at 510.
  116. . Id. at 511–12.
  117. . Id. at 506.
  118. . See Arnold H. Loewy, Freedom of Speech as a Product of Democracy, 27 U. Rich. L. Rev. 427, 437 (1993).
  119. . Hudson, supra note 1.
  120. . Id. at 669.
  121. . Id. at 669–70.
  122. . Id. at 670.
  123. . Id. at 669–70.
  124. . Id. at 668 (stating that “[i]n the academic context, because the First Amendment value of core academic speech to the professor and society is so high, and the university’s corresponding interest in restraining such speech is so minimal, the Pickering balance should weigh decidedly in the professor’s favor”).
  125. . For a discussion of this preference, see Strasser, supra note 28, at 596–605.
  126. . Martins, supra note 47, at 685.
  127. . 464 F.3d 667, 672 (7th Cir. 2006).
  128. . Id. at 668.
  129. . Strasser, supra note 28, at 602. See also Piggee, 464 F.3d at 672 (“Piggee’s ‘speech,’ both verbal and through the pamphlets . . . was not related to her job of instructing students . . . [but] inhibited her ability to perform that job by undermining her relationship with . . . other students who disagreed with or were offended by her expressions of her beliefs.”).
  130. . Martins, supra note 47, at 685–86.
  131. . Id. at 686.
  132. . Id.
  133. . Strasser, supra note 28, at 599 (quoting Hardy v. Jefferson Cmty. Coll., 260 F.3d 671, 681 (6th Cir. 2001)).
  134. . Id. at 603.
  135. . 241 F.3d 800 (6th Cir. 2001).
  136. . Strasser, supra note 28, at 603.
  137. . Id.
  138. . Martins, supra note 47, at 683.
  139. . Id. See also Stephenson, supra note 41, at 20 (stating that science advocates argue that “‘Holocaust denial’ is not a topic that teachers have the academic freedom to include in public school history courses, as it is not part of the mainstream knowledge or scholarship in the field”).
  140. . Understanding College Affordability: Room and Board, Urb. Inst., http://collegeaffordability.urban.org/prices-and-expenses/room-and-board/#/ (“Almost 60 percent of full-time students enrolled in private nonprofit four-year colleges and universities live in college housing, compared with 36 percent of public four-year college students.”).
  141. . Amanda Ottaway, Medical Association Wants 6th Circ. Pronoun Ruling Redo, Law 360 (May 18, 2021, 9:10 PM), https://plus.lexis.com/newsstand#/article/1385929 (“The empirical data demonstrates that singling out a transgender student in this manner is likely to significantly imperil the student’s health and educational outcomes.”).

By Kendall Carter

Florida has executed more people than just about any other state.[1]  However, Florida also gets it wrong more than anyone else.  Florida has had thirty exonerations from death row, more than any other state, and it’s not even close.[2]

On October 13, 2022, after months of proceedings, a Broward County jury recommended a sentence of life in prison without the possibility of parole for each of Nicholas Cruz’s 17 counts of first-degree murder.[3]  Cruz carried out the February 14, 2018, massacre at Marjory Stoneman Douglas High School in Parkland, Florida, slaying fourteen students and three faculty and staff members.[4]  Cruz had plead guilty to the charges last year, so the jury trial focused solely on the sentencing phase.[5]  Prosecutors submitted seven aggravating factors—circumstances required to make an individual guilty of first-degree murder eligible for the death penalty—including that the offender created a “great risk of death” to many persons, the homicides were especially heinous, atrocious, and cruel, and the homicides were committed in a cold, calculated, and premeditated manner.[6]  The defense submitted forty-one mitigating factors,[7] far more than the seven statutorily defined mitigating factors, relying on the residual provision in Fla. Stat. § 921.141(7)(h) to present “any other factor[s]” that would make the imposition of a life sentence more appropriate.[8]  One statutory factor presented was that “the defendant was under the influence of extreme mental or emotional disturbance” when the crime took place.[9]  One “other factor” presented was that Cruz’s mother’s heavy alcohol use while pregnant “poisoned” Cruz, leading to fetal alcohol spectrum disorder.[10]  While the jurors unanimously determined that the prosecutors had proven seven aggravating factors beyond a reasonable doubt,[11] three of the jurors did not agree that the aggravating factors outweighed the mitigating factors.[12]  As such, the jury could not recommend a sentence of death.[13]

Many of the victims’ families expressed shock and outrage at the verdict, including Linda Beigel Schulman, whose son, Scott Beigel, a geography teacher at Stoneman Douglas, was killed.[14]  After the verdict was read, Ms. Schulman lamented, “If this was not the most perfect death penalty case, then why do we have the death penalty at all?”[15]  Fred Guttenberg, whose 14-year-old daughter, Jamie, was also among the victims, said, “This jury failed our families today.  Seventeen families did not receive justice.”[16]  Surprise, however, was not limited to the victims’ families.  Indeed, “[w]ith the trial being watched worldwide and with ample evidence of the brutality of Cruz’s rampage, many legal observers had believed Cruz’s defense team faced an uphill battle in convincing a jury to spare his life.”[17]  This was the deadliest mass shooting to be adjudicated by a trial in the U.S., yet it still didn’t result in a death verdict.[18]

One may, understandably, feel that a life without parole sentence in such a high-profile case—in a death penalty-friendly state like Florida, no less—might signal a shift in public sentiment against the death penalty.  Certainly, support for the death penalty in the U.S. is at its lowest point (fifty-four percent) since 1972,[19] when the Supreme Court issued, what amounted to, a four-year moratorium on the death penalty in Furman v. Georgia, but this verdict reveals a far more complex picture of where the death penalty stands in America.[20]  On one hand, says Former Miami-Dade senior homicide prosecutor Abe Laeser, defense attorneys will likely use this case as leverage with prosecutors: “[A] lawyer will say, ‘My client didn’t shoot 17 school kids with 139 bullets.  If that guy doesn’t deserve it, my guy doesn’t deserve it.’”[21]  Likewise, Laeser predicts, “Across the board, prosecutors who are pro-death penalty are going to be in a difficult position to make their cases to trial juries and trial judges.”[22]

On the other hand, Cruz’s verdict appears to have galvanized pro-death penalty sentiment in Florida, spurring demands to reform Florida’s death penalty laws.[23]  In recent years, the death penalty has been overhauled in Florida.[24]  First, in 2016, the Supreme Court of the United States ruled that Florida’s death penalty was unconstitutional as it violated the Sixth Amendment’s guarantee of the right to a jury trial.[25]  The Florida sentencing statute at the time “does not make a defendant eligible for death until ‘findings by the court that such person shall be punished by death.’”[26]  Additionally, Florida’s capital punishment-specific statute tasks the trial court alone with the finding “[t]hat sufficient aggravating circumstances exist” and “[t]hat there are insufficient mitigating circumstances to outweigh the aggravating circumstances.”[27]  This effectively meant that the jury’s recommendation was “advisory only,” empowering judges to find that a death sentence was warranted, even if the jury recommended life in prison.[28]

However, during this time, another element of Florida’s sentencing statute elicited questions.[29]  A simple majority vote was all that was required in Florida, one of only three states that permitted nonunanimous jury recommendations in capital sentencing.[30]  Not only could death sentences be overruled by the judge, but also, they need not be unanimous.[31]  Hurst called Florida’s death penalty practices into question, so the legislature amended the death penalty statute to align Florida’s practice with constitutional principles.[32]  First, the March 2016 amendment eliminated judges’ ability to override jury sentencing recommendations.[33]  Second, the amendment mandated that jurors unanimously determine that the prosecution has proven aggravating factors, making the defendant eligible for a possible death sentence.[34]  Finally, the statute no longer permitted a simple majority to impose the death penalty but did not go so far as requiring a unanimous vote, instead requiring that at least ten jurors sign on to the ultimate death sentence.[35]  However, in October 2016, the Supreme Court of Florida struck down the statutory amendment because while aggravating factors must be found by unanimous vote, the statute still did not require a unanimous vote for the ultimate imposition of the death penalty.[36]  As a result, it was not until March 2017 that death sentences in Florida had to be unanimous, after the Florida legislature again amended the statute.[37]  It is this statute that guided the prosecution in Cruz’s case.[38]

With Ron DeSantis securing reelection as governor of Florida in a decisive victory earlier this month,[39] Florida is poised to make a significant change in its death penalty policies.[40]  At a campaign stop on October 16, 2022, Governor DeSantis expressed his frustration at Cruz’s jury verdict, lamenting, “I’m sorry, when you murder 17 people in cold blood, the only appropriate punishment is capital punishment.”[41]  Governor DeSantis also signaled his intentions to work with the Florida legislature to reform the laws governing the death penalty, hinting at Florida’s fickle sentencing statute.[42]  During DeSantis’s first term as governor, as many people were executed as were exonerated from Florida’s death row.[43]  Yet Governor DeSantis looks to return to the prior sentencing regime, specifically sanctioned by the United States Supreme Court, that would allow fewer than twelve jurors or even just one particularly pro-death judge to sentence a criminal defendant to death.[44]  When death verdicts are easier to come by, it is easy to see how innocent people get swept up in the melee. Eliminating the need for unanimous jury verdicts in capital cases would, warns Robert Durham, executive director of the Death Penalty Information Center, “make it more likely innocent people will receive the death penalty.”[45]  Durham directly attributes Florida’s high exoneration rate to its history of relying on nonunanimous juries to sentence its defendants to death.[46]  Given that he plead guilty last year, Cruz’s case is probably not one that elicits concerns of a possible exoneration down the line.  Nonetheless, the high-profile nature of the case opens the door to significant changes in the way Florida juries hand down death sentences.  As a result, future defendants whose guilt is less than certain may have only ten or even seven jurors to decide if they live or die.  If Governor DeSantis keeps his word to make imposing the death penalty easier in Florida, the Broward County jurors may have had more of an impact on the future of the death penalty than they realized when they took their oaths.


[1] Executions Overview, Death Penalty Info. Ctr., https://deathpenaltyinfo.org/executions/executions-overview. Only Texas (577), Oklahoma (118), and Virginia (113) have carried out more executions since 1976.

[2] Florida, Death Penalty Info. Ctr., https://deathpenaltyinfo.org/state-and-federal-info/state-by-state/florida; Innocence, Death Penalty Info. Ctr., https://deathpenaltyinfo.org/policy-issues/innocence.  The state with the second highest number of exonerations is Illinois with 22, and then the numbers fall off from there.

[3] Dakin Andone et al., Parkland School Shooter Avoids the Death Penalty after Jury Recommends Life in Prison, CNN (Nov. 9, 2022, 11:47 PM), https://www.cnn.com/2022/10/13/us/nikolas-cruz-jury-deliberation-thursday.

[4] Id.

[5] Id.

[6] Id.; Fla. Stat. § 921.141(6).

[7] Andone et al., supra note 3.

[8] Fla. Stat. § 921.141(7).

[9] Patrick J. Lyons & Patricia Mazzei, ‘Mitigating Circumstances’ Spared the Gunman’s Life. What Are They?, N.Y. Times (Oct 13. 2022, 2:21 PM), https://www.nytimes.com/2022/10/13/us/mitigating-factors-parkland-jury.html?smid=url-share.

[10] Id.

[11] Patricia Mazzei & Nicholas Bogel-Burroughs, The Gunman Will Be Sentenced to Life in Prison Without Parole, N.Y. Times (Oct. 14, 2022), https://www.nytimes.com/2022/10/13/us/parkland-trial-verdict-gunman.html?smid=url-share.

[12] Andone et al., supra note 3.

[13] Patricia Mazzei & Audra D. S. Burch, Juror Describes Last-Ditch Bid to Deliver Death Sentence in Parkland Trial, NY Times (Oct. 15, 2022), https://www.nytimes.com/2022/10/15/us/parkland-trial-juror-death-sentence.html.

[14] Patricia Mazzei & Nicholas Bogel-Burroughs, ‘What Is the Death Penalty For?’ Parkland Victims’ Families Question Jury’s Decision., N.Y. Times (Oct. 13, 2022, 2:02 PM), https://www.nytimes.com/2022/10/13/us/parkland-families-death-penalty.html?smid=url-share.

[15] Id.

[16] Id.

[17] David Ovalle & Mary Ellen Klas, What’s Next for the Death Penalty – in Florida? – Legal Experts Predict That the Parkland Verdict for a Life Sentence Will Make It Harder to Secure Death-Penalty Convictions in Florida., Mia. Herald (Oct 14. 2022), https://www.miamiherald.com/news/local/crime/article267258577.html.

[18] Terry Spencer, Parkland School Shooter Spared from Execution for Killing 17, AP News (Oct. 13, 2022), https://apnews.com/article/parkland-shooter-jury-recommendation-live-updates-15c5121be1b8b7a73b85607d602e6ba2.

[19] Death Penalty, Gallup, https://news.gallup.com/poll/1606/death-penalty.aspx.

[20] Furman v. Georgia, 408 U.S. 238 (1972).  The moratorium ended four years later with Gregg v. Georgia, 428 U.S. 153 (1976).

[21] Ovalle & Klas, supra note 17.

[22] Id.

[23] Gary Fineout, Parkland Verdict May Reopen Florida Death Penalty Law, POLITICO (Oct. 14, 2022, 7:05 AM), https://www.politico.com/newsletters/florida-playbook/2022/10/14/parkland-verdict-may-reopen-florida-death-penalty-law-00061815.

[24] Hurst v. Florida, Death Penalty Info. Ctr., https://deathpenaltyinfo.org/stories/hurst-v-florida.

[25] Hurst v. Florida, 577 U.S. 92 (2016).

[26] Id. at 99–100 (quoting Fla. Stat. § 775.082(1) (emphasis added)).

[27] Id. at 100 (quoting Fla. Stat. § 921.141(3)).

[28] Spaziano v. State, 433 So.2d 508, 512 (Fla. 1983).  See James C. McKinley Jr., Why Does Florida Require a Unanimous Jury Decision to Impose a Death Sentence?, N.Y. Times (Oct. 13, 2022), https://www.nytimes.com/2022/10/13/us/florida-death-penalty-jury.html.

[29] Hurst v. Florida, supra note 24.

[30] McKinley, supra note 28.

[31] Id.

[32] Hurst v. Florida, supra note 24.

[33] Id.

[34] Id.

[35] Id.

[36] Id.

[37] Id.

[38] McKinley, supra note 28.

[39] Anthony Izaguirre, DeSantis Defeats Crist, Wins 2nd Term as Florida governor, AP News (Nov. 8, 2022), https://apnews.com/article/florida-governor-race-2022-midterm-elections-4b2fe3a05668ed67119511838339110e.

[40] Fineout, supra note 23.

[41] Demie Johnson, Gov. DeSantis Calls on Changes to Death Penalty Law after Parkland Shooter Sentencing Hearing, WFTV (Oct. 16, 2022, 10:29 PM), https://www.wftv.com/news/local/gov-desantis-calls-changes-death-penalty-law-after-parkland-shooter-sentencing-hearing/57NEAEVPVFHNRIHQWBHTAWFHFY/.

[42] Id.

[43] Florida, supra note 2; Innocence Database – Florida, Death Penalty Info. Ctr., https://deathpenaltyinfo.org/policy-issues/innocence-database?state=Florida.

[44] Bruce Ritchie, DeSantis Says Parkland Shooter Deserves the Death Penalty, POLITICO (Oct. 13, 2022, 2:02 PM), https://www.politico.com/news/2022/10/13/parkland-school-shooter-to-get-life-sentence-for-killing-17-00061661.

[45] Greg Allen, Florida Is Poised to Change the Way It Imposes the Death Sentence in Trials, Morning Edition, NPR (Nov. 1, 2022, 5:02 AM), https://www.npr.org/2022/11/01/1133041129/florida-is-poised-to-change-the-way-it-imposes-the-death-sentence-in-trials.

[46] Id.

By Grace Koppenheffer

As morbid as it is, most of us have probably thought about the way we would want to die, and the ways we definitely would not.  We instinctively recoil against those deaths that seem the most painful, the most inhumane.

Richard Bernard Moore, a death row inmate in South Carolina, was the first South Carolina prisoner to decide the method of his execution.[1]  In 2021, after South Carolina had had problems for years securing lethal injection drugs, the state passed a law that “made the electric chair the default execution method instead of lethal injection, and also codified the firing squad as an alternative option for condemned inmates.”[2]  Moore’s options were either death via electric chair or death via firing squad, and although he found both options unconstitutional, “he more strongly opposed death by electrocution and only chose the firing squad because he was required to make a choice.”[3]  His death was scheduled for April 29, 2022, but the South Carolina Supreme Court issued a temporary stay on April 20, 2022.[4]

Moore’s death would have been the first time South Carolina killed an inmate via firing squad, and only the fourth firing squad execution in the country since 1976.[5]  Although four states (Mississippi, Oklahoma, South Carolina, and Utah) allow death by firing squad, the previous three all happened in Utah, with the most recent firing squad execution in 2010.[6]  In Utah, “[t]he prisoner is strapped into a chair, has a hood put over his or her face and a target placed on his or her chest above the heart.”[7]  In the event of stray bullets or ricochet, sandbags are placed around the chair.[8]  There are five sharpshooters, but one has a blank, so that each shooter can have “psychological deniability,” which may itself be imperfect because “they can tell the difference between live ammunition and a blank.”[9]  The South Carolina law provides, “[i]n the case of a firing squad execution, three volunteer prison workers will train their rifles on the condemned prisoner’s heart.”[10]

The Eighth Amendment guarantees that “cruel and unusual punishment [cannot be] inflicted.”[11]  The United States Supreme Court, however, has never struck down a method of carrying out the death penalty as unconstitutional.[12]  In the 1878 case Utah v. Wilkerson,[13] the Court explicitly stated that death by firing squad was constitutional: “[c]ruel and unusual punishments are forbidden by the Constitution, but . . . the punishment of shooting as a mode of executing the death penalty for the crime of murder in the first degree is not included in that category, within the meaning of the eighth amendment.”[14]  The Court, however, acknowledged that “punishments of torture,” including being “embowelled alive, beheaded, and quartered,” all practices that were at one time legal but which even the Court in 1878 recognized as “atrocious,” would be unconstitutional.[15]  When Wilkerson was executed sixty days after the Court’s decision, he chose not to be blindfolded.[16]  “[W]hen the sheriff commanded, ‘Ready, aim,’ Wilkerson would draw up his shoulders, causing the target to move and the bullets to miss the target, causing him to jump forward, screaming, ‘Oh God!’”[17] It took him twenty-seven minutes to die, bleeding and withering on the ground.[18]

In Baze v. Rees,[19] followed by Glossip v. Gross[20] and Bucklew v. Precythe,[21] the Court created a two-pronged test for an inmate to challenge the constitutionality of the method of his death: “first, he must demonstrate that the method of execution is very likely to cause substantial harm or suffering, and second, he must present a feasible, readily implemented, less painful alternative that is prescribed by at least one state.”[22]

Scholars, politicians, and those sentenced to death have various opinions about execution by firing squad.  In 2014, Representative Paul Ray from Utah described execution by firing squad as “probably the most humane way to kill somebody.”[23]  Some scholars also argue that the firing squad is better than lethal injection as a means of execution because it is less likely to be botched and it is less painful.[24]  Additionally, “[i]nmates in Alabama, Ohio, Tennessee, and Texas have asked to be executed by firing squad, arguing that lethal injection is very likely to have a risk of serious harm,” providing some evidence that if forced to choose, people would rather die by firing squad.[25]  Even Moore chose death by firing squad over the electric chair when he had to choose between them.

On the other hand, some, like Moore’s lawyers, have argued that execution by firing squad is “barbaric.”[26]  Some scholars contend that death by firing squad is not any less painful or less likely to be botched because “[h]urling projectiles toward an inmate in the hopes of causing cardiac failure, asphyxiation, or some other condition that will result in death, is far from an exact science.”[27]  Additionally, the inmates requesting execution by firing squad reside in states that do not allow that method to carry out the death penalty.[28]  In those states that do allow inmates to choose death by firing squad, they rarely do, and if they do elect such a method, they do so for reasons other than to reduce pain.[29]

Moreover, the Americans Civil Liberties Union of South Carolina has criticized South Carolina’s death penalty legislation as “modern-day lynching,” in part because only 27% of the state’s population is black but over half of those on death row are black.[30]  Executive director Frank Knaack stated, “[l]et’s not kid ourselves, this bill is about finding a new way to restart executions within a racist, arbitrary, and error-prone system.  We cannot divorce the method of execution from the system itself.”[31]

For those who oppose carrying out the death penalty by firing squad, the best route may be to go through legislatures rather than trying to have courts invalidate the method.  After all, “[s]hocking as they are, archaic methods of execution can affect how the public regards capital punishment,” and the legislature is designed to respond to public sentiment.[32]  If our modern sensibilities recoil from the thought of the firing squad being humane, not only will we as a society have to grapple with what methods are humane, but also we will need to grapple with whether the death penalty as a whole is humane.  As one judge put it, “[i]f we, as a society, cannot stomach the splatter from an execution carried out by firing squad, then we shouldn’t be carrying out executions at all.”[33]


[1] Michelle Liu, South Carolina Inmate Picks Firing Squad over Electric Chair, AP News (Apr. 15, 2022), https://apnews.com/article/business-south-carolina-executions-5517b5184f8818bdd53e252af3b9cfc1.

[2] South Carolina’s Planned Execution by Firing Squad Is on Hold for Now, NPR (Apr. 20, 2022, 2:38 PM), https://www.npr.org/2022/04/20/1093812483/firing-squad-execution-blocked-south-carolina.

[3] Liu, supra note 1.

[4] South Carolina’s Planned Execution by Firing Squad Is on Hold for Now, supra note 2.

[5] Id.

[6] Id.

[7] Laurel Wamsley, With Lethal Injections Harder To Come by, Some States Are Turning to Firing Squads, NPR (May 19, 2021, 5:00 AM)), https://www.npr.org/2021/05/19/997632625/with-lethal-injections-harder-to-come-by-some-states-are-turning-to-firing-squad.

[8] Id.

[9] Id.

[10] Liu, supra note 1.

[11] U.S. Const. amend. VIII.

[12] Methods of Execution, Death Penalty Info. Ctr., https://deathpenaltyinfo.org/executions/methods-of-execution (last visited Apr. 25, 2022).

[13] 99 U.S. 130 (1878).

[14] Id. at 134–35

[15] Id. at 135–36.

[16] Rob Warden & Daniel Lennard, Death in America Under Color of Law: Our Long, Inglorious Experience with Capital Punishment, 13 Nw. J. L. & Soc. Pol’y 194, 214 (2018).

[17] Id.

[18] Id.

[19] 553 U.S. 35 (2008) (plurality opinion).

[20] 135 S. Ct. 2726 (2015).

[21] 139 S. Ct. 1112 (2019).

[22] Stephanie Moran, Note, A Modest Proposal: The Federal Government Should Use Firing Squads to Execute Federal Death Row Inmates, 74 U. Mia. L. Rev. 276, 296 (2019).

[23] Mark Berman, The Recent History of States Contemplating Firing Squads and Other Execution Methods, Wash. Post (May 22, 2014), https://www.washingtonpost.com/news/post-nation/wp/2014/05/22/the-recent-history-of-states-contemplating-firing-squads-and-other-execution-methods/.

[24] See, e.g., Moran, supra note 22, at 299 (“[S]cientific research indicates that the initial pain felt by the victim may be comparable to being punched in the chest. There is some indication that the pain may also be hampered by an ‘adrenaline surge.’”) (quoting Christopher Q. Cutler, Nothing Less than the Dignity of Man: Evolving Standards, Botched Executions and Utah’s Controversial Use of the Firing Squad, 50 Cleveland St. L. Rev. 335, 413 (2002)).

[25] Id. at 304.

[26] South Carolina’s Planned Execution by Firing Squad Is on Hold for Now, supra note 2

[27] Michael Conklin, No, the Firing Squad Is Not Better Than Lethal Injection: A Response to Stephanie Moran’s A Modest Proposal, 44 Seattle U. L. Rev. 357, 369 (2021).

[28] Id. at 362

[29] Id.

[30] Wamsley, supra note 7.

[31] Id.

[32] Id.

[33] Wood v. Ryan, 759 F.3d 1076, 1103 (9th Cir. 2014) (Kozinski, C.J., dissenting), vacated by Ryan v. Wood, 573 U.S. 976 (2014).