Online

Black Women’s Hair and Natural Hairstyles in the Workplace: Expanding the Definition of Race Under Title VII

Despite the Equal Employment Opportunity Commission’s (“EEOC”) interpretation of Title VII as including cultural characteristics often associated with race or ethnicity, Black women have not successfully litigated the freedom to wear their hair in natural hairstyles in the workplace. Courts have held that racial discrimination in the workplace must be based on immutable characteristics to trigger Title VII. Black women who deviate from the norm face significant barriers in the workplace. The bias against Black women’s hair, which has been perceived as unprofessional, adds additional burdens on Black women leading to pressure to conform to Eurocentric beauty standards. This pressure has had significant detrimental financial, health, and professional implications for Black women. This Essay contributes to debates on employment discrimination by arguing for the expansion of the definition of Title VII’s racial discrimination to include natural hair and natural hairstyle discrimination following the Supreme Court’s reasoning in Title VII sex discrimination cases. This Essay outlines the history of Black hair, its meaning in Black culture, and how implicit bias against Black hair has negatively affected Black women in the workplace. This Essay also provides a description of seminal cases on Black Women’s hair in the workplace and the immutability standard’s flaws. Lastly, this Essay makes a case for expanding Title VII’s definition of racial discrimination, drawing on the principle of reasonably comparable evils.

Introduction

Upon entering the professional world, students are often told to be themselves because interviews are a way for firms to determine whether they will fit into the firms’ culture. Implicit or unconscious bias plays a role in determining how they will be judged in the workplace context. They are encouraged to be themselves but do not understand that this “self” will be judged based on proximity to the accepted norm––straight white men. Deviating from the norm can be a liability in the workplace. In order to penetrate influential networks and take advantage of promotion opportunities, a person has to be perceived as “fitting in” with the dominant firm culture.1 1.Ashleigh Shelby Rosette & Tracy L. Dumas, The Hair Dilemma: Conform to Mainstream Expectations or Emphasize Racial Identity, 14 Duke J. Gender L. & Pol’y 407, 412 (2007) (explaining that socio-psychology research has provided strong evidence showing that being viewed as different can be a liability in the workplace); Steven Reidy & Meher Kanigiri, How Are Ethnic Hairstyles Really Viewed in the Workplace?, Cornell Univ. ILR School (2016) (explaining that the more someone is perceived as “fitting in” with the firm culture “the better their workplace outcomes, and the greater the degree of deviation from the group the worse the outcome,” and thus workers whose identity differs from the dominant firm culture face two choices: assimilating to the dominant firm culture or being excluded).Show More Additionally, how others view them has implications on how their non-visual qualities are assessed, including their ability to do the work assigned to them or how professional they look.

For Black women, who differ from this norm because of their skin color and gender, being themselves includes bringing their natural hair to these firms.2 2.Ra’Mon Jones, What the Hair: Employment Discrimination Against Black People Based on Hairstyles, 36 Harv. BlackLetter L.J. 27, 29 (2020) (defining natural hair “as hair that has not been altered by chemical straighteners, including relaxers and texturizers”).Show More Black women’s hairstyle choices can exacerbate the perceptions of dissimilarity or deviation from the norm.3 3.See Rosette & Dumas, supra note 1, at 413.Show More Many Black women know that the more different they appear to be, the more “uncomfortable” their white colleagues will be with them, and the harder it will be for them to achieve full acceptance at work.4 4.Id. at 412.Show More Hence, Black women are routinely motivated to achieve the looks of their white counterparts.5 5.Id.; seeJena McGregor, More States Are Trying to Protect Black Employees Who Want to Wear Natural Hairstyles at Work, Wash. Post (Sept. 19, 2019), https://www.washingtonpost.com/business/2019/09/19/more-states-are-trying-protect-black-employees-who-want-wear-natural-hairstyles-work/ [https://perma.cc/S26M-ABL6] (noting that Minda Harts, founder of a career development company for women of color, stated that she wears her hair straight 99 percent of the time because she has seen how others look upon clients wearing braids and natural hairstyles in corporate America).Show More Black hair texture is a physical characteristic and ethnic indicator of African descent, different from all other races’ hair because of its shape and composition.6 6.Kim Carter, Workplace Discrimination and Eurocentric Beauty Standards, 36 GPSOLO 36, 36 (2019); Venessa Simpson, What’s Going on Hair?: Untangling Societal Misconceptions that Stop Braids, Twists, and Dreads from Receiving Deserved Title VII Protection, 47 Sw. L. Rev. 265, 265 (2017).Show More However, throughout history, Black hair textures and natural hairstyles have been considered “unprofessional,” “unkempt,” and “messy.”7 7.See Carter, supra note 6, at 36.Show More

As a young Black woman born and raised in Cameroon, a majority Black country in Africa, I had never considered my natural hair or protective hairstyles,8 8.“Protective hairstyles” are also called natural hairstyles. They can be used interchangeably.Show More such as box braids, cornrows, and Senegalese twists, to be unprofessional, unkempt, and messy. They have always been a part of my identity. As a young girl, a lady would “cornrow” or “thread” my hair every two weeks on Saturday mornings, sometimes adding beads to the hairstyle.9 9.Cornrows are also called plaits. Threading one’s hair means wrapping one’s hair in thread.Show More As I grew older, I was able to get box braids and other natural hairstyles. Changing one’s hair was the norm. Adorning one’s hair with beads, cowries, scarves, and other accessories was not unconventional. No one would frown upon me for wearing cornrows for two weeks and then wearing my hair in braids the following weeks. Women in the workforce in Cameroon would always wear their hair in intricate hairstyles.10 10.The historian John Thornton wrote that when Europeans first came into contact with western Africa in the late fifteenth century, they remarked on the many hairstyles African wore. There were “various combinations of braids, plaits . . . shaved areas, and areas cut to different lengths . . . creating a stunning effect.” See Shane White & Graham White, Slave Hair and African American Culture in the Eighteenth and Nineteenth Centuries, 61 J. Southern Hist. 45, 51 (1995).Show More It is not until I moved to the United States that I realized that others might perceive my hair as unprofessional, unkempt, and messy.

Title VII of the Civil Rights Act of 1964 prohibits workplace discrimination on the basis of “race, color, religion, sex or national origin.”11 11.Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241, 254.Show More Workplace discrimination based on natural hair and natural hairstyles is not one of the protected classes enumerated in Title VII. Because courts have determined that racial discrimination in the workplace must be based on immutable characteristics to trigger Title VII, a Black woman who is discriminated against because she wears her hair in a natural hairstyle is not protected under the law in most states.12 12.See infraSection III.C.Show More Afros have been the only recognized “immutable” hairstyle that a Black woman can wear in the workplace.

This Essay argues that the Supreme Court should expand the definition of racial discrimination under Title VII to include natural hair and natural hairstyle discrimination, dropping the immutability standard. Part I provides a brief history of Black hair and its meaning in Black cultures and explores the prejudice against Black women’s hair in the workplace. Part II provides background information on Title VII of the Civil Rights Act of 1964 and discusses prominent case precedent establishing that Title VII’s protections against racial discrimination in the workplace did not extend to hair discrimination against Black women. Part II also addresses the Equal Employment Opportunity Commission’s (EEOC) interpretation of racial discrimination under Title VII, the immutability standard used by courts, and objections to the standard. Lastly, Part III describes Title VII discrimination cases and the Supreme Court’s expansion of the definition of Title VII’s sex discrimination through a series of seminal sex discrimination cases. Additionally, Part III applies the Supreme Court’s reasoning in Title VII sex discrimination cases to hair discrimination, adopting the “reasonably comparable evils” principle enunciated in these cases to argue for the expansion of the definition of racial discrimination under Title VII.

I. Black Hair: its Meaning in Black Culture and Prejudice Against Black Women’s Hair in the Workplace

A. Black Hair History and its Meaning in Black Culture

In African civilizations, hair served a broad range of purposes, including aesthetic, defining social status, class distinction and identification, enhancing self-image and esteem, and cultural and religious purposes.13 13.See Sharon Adetutu Omotoso, Gender and Hair Politics: An African Philosophical Analysis, 12 J. Pan African Stud. 5, 5 (2018); Ciera Berkemeyer, New Growth: Afro-Textured Hair, Mental Health, and the Professional Workplace, 44 J. Legal Prof. 279, 284 (2020); see also Rumeana Jahangir, How Does Black Hair Reflect Black History?, BBC News (May 31, 2015), https://www.bbc.com/news/uk-england-merseyside-31438273 [https://perma.cc/‌XZF2-UUN2]; White & White, supra note 10, at 49;Reidy & Kanigiri, supra note 1.Show More It is the texture of African hair that allowed it to be designed and shaped in different ways.14 14.See White & White, supra note 10, at 50.Show More As an instrument for identity, ethnic group societies in West Africa, including the Mendes and the Mandingo, would use their hair to communicate among themselves.15 15.See Omotoso, supra note 13, at 9.Show More Hairstyles worn by community members helped identify a person’s age, rank in the community, ethnic identity, marital status, and religion, among other things.16 16.Id.Show More For example, powerful hunters and warriors would wear a patch of hair that would grow on a spot in the middle of their head infused with potent medicine to boost their body physically and spiritually.17 17.Id. at 10.Show More Black hair is also associated with religion and spirituality.18 18.See id. at 11; Berkemeyer, supra note 13, at 284.Show More Given its location at the highest point of the body, hair was said to be the channel for spiritual interaction with God.19 19.See Jahangir, supranote 13; seealsoOmotoso, supra note 13, at 12.Show More It was held that God would set the occasions that would then primarily determine hairstyles or hair patterns.20 20.See Omotoso, supra note 13, at 11.Show More In the Yoruba culture, children born with knotted hair (i.e., dreadlocks) were regarded as particularly favored with wealth.21 21.Id.Show More The child’s name would reflect that belief––“Dada-olowo eyo,” which means a person who is “divinely blessed with cowries (money) to attract wealth to their family.”22 22.Id.Show More Consequently, their head would not be washed during the naming ceremony because the hair had “special powers.”23 23.Id.Show More Even if the hair was washed, it would not be combed.24 24.Id.Show More

Exposure to Western cultures through the slave trade, colonialism, neo-colonialism, and globalization have transformed the meaning of Black hair in Africa and around the world, with African cultures coming to be viewed as unconventional and uncivilized.25 25.Id. at 12.Show More Slavery, a traumatic experience for Africans both physically and psychologically, contributed to the obliteration of Africans’ culture and identity.26 26.See Berkemeyer, supra note 13, at 284.Show More Europeans had traded and communicated with Africans for a long time and thus knew the complexity and the importance of Black hair.27 27.Tabora A. Johnson & Teiahsha Bankhead, Hair It Is: Examining the Experiences of Black Women with Natural Hair, 2 Open J. Soc. Sci. 86, 87 (2014).Show More European captors would shave African slaves’ heads to rob them of their humanity and break their spirit before they boarded slave ships or upon their arrival to the Americas.28 28.See Berkemeyer, supra note 13, at 284; Johnson & Bankhead, supra note 27, at 87.Show More Nevertheless, slaves would use their hair and hairstyles, specifically braids, as a carrier of messages to communicate the number of roads leading to freedom or places of meeting to escape servitude.29 29.See Berkemeyer, supra note 13, at 284.Show More They would also wear myriad hairstyles, engaging in the same cultural activity as their African counterparts.30 30.See White & White, supra note 10, at 51 (explaining that “[d]escriptions of hair arrangements contained in eighteenth-century runaway advertisements indicate that, within the obvious limits imposed by an oppressive system, African American slaves were engaged in the same cultural activity”).Show More

Eighteenth-century America viewed the physical traits of African Americans, including their hair, negatively.31 31.See White & White, supra note 10, at 58 (explaining that Black people “were not supposed to be proud of their hair, as they or their ancestors had been in Africa; any suggestion that they were would have sharply challenged complacent white cultural assumptions”).Show More “To have Black hair was to have slave hair,” which was considered to be the quintessential trait of “negro” status.32 32.Crystal Powell, Bias, Employment Discrimination, and Black Women’s Hair: Another Way Forward, 2018 BYU L. Rev. 933, 940–41 (2019) (explaining that “negro status” was the status of a “sub-human” with natural hair linked to non-human qualities, such as wool or bush).Show More Europeans did not consider Black hair to be hair at all.33 33.See Johnson & Bankhead, supra note 27, at 88.Show More After the abolishment of slavery in much of the world, including the United States, several Black people adjusted their hair to fit in with mainstream white society.34 34.See Jahangir, supranote 13.Show More To achieve that, Black people would smooth their hair texture, sometimes using chemical mixtures.35 35.See Omotoso, supra note 13, at 13–14 (noting that as of 2005, African-Americans spent $81.6 million per annum on chemical products (especially relaxers)); Chante Griffin, How Natural Black Hair at Work Became a Civil Rights Issue, JSTOR Daily (July 3, 2019), https://daily.jstor.org/how-natural-black-hair-at-work-became-a-civil-rights-issue/ [https://perma.cc/H9P4-6J79] (explaining that Madam C.J. Walker, a Black woman, invented the hot comb used to straighten Black hair, providing Black women an “avenue for increased societal acceptance in an era when minstrel songs mocked” African Americans’ hair texture).Show More With the 1960s Civil Rights Movement in the United States and protests against racial segregation and tyranny, the afro became a “symbol of rebellion, pride and empowerment,” and a prominent affirmation of African roots and Black beauty.36 36.Jahangir, supranote 13; see also Reidy & Kanigiri, supra note 1.Show More Colonialism caused a similar ambivalence toward Black hair in Africa. African men and women alike were caught in a predicament––they either had to assimilate to colonialist culture or adhere strictly to their cultural ideals.37 37.See Omotoso, supra note 13, at 12.Show More In modern Africa, recent trends show a tendency towards the use of hair extensions and chemical application among women due to continued exposure to Western culture through the media and globalization and the desire to gain social acceptance.38 38.See id. at 6.Show More Nonetheless, hair continues to serve many of its original purposes in Africa, and intricate African hairstyles continue to be seen across the continent.

Today, more than just serving its traditional purposes, African hairstyles have come to serve new purposes. Cutting one’s hair, once associated with the mourning of close relatives in some ethnic groups, has now become a time-saving hairstyle.39 39.See id. at 13.Show More Similarly, protective styles provide a way for Black women to protect their hair. Due to its texture and shape, Black hair is more susceptible to dryness and breakage than straight hair.40 40.See Berkemeyer, supra note 13, at 281 (explaining that “when follicles curve sebum is not able to travel the length of the hair. Because moisture is harder to retain in [curly and kinky] textures, the natural hair community often turns to protective styling to maintain healthy, moisturized hair” because it reduces continuous manipulation of hair, promotes growth retention, and protects the ends of the hair).Show More Protective styles enable Black women to maintain healthy and moisturized hair.41 41.See id. at 281.Show More They also allow Black women to reduce daily manipulation of their hair, which helps to prevent breakage.42 42.See Simpson, supra note 6, at 266.Show More

However, biases, implicit or explicit, toward African attributes continue to persist today, especially in the United States, resulting in Black people seeking to conform to European beauty standards by “straitening—or removing the kink from—[their] Black hair.”43 43.Carter, supra note 6, at 36.Show More Some people still consider Black hair to be “unacceptable, unprofessional and even ugly.”44 44.Reidy & Kanigiri, supra note 1; see also Rosette & Dumas, supra note 1, at 407.Show More Despite the Civil Rights Act of 1964, which ended segregation in public areas and prohibited employment discrimination, the social pressure to mimic European hair has persisted in the United States, affecting Black women’s hair-grooming decisions.45 45.See Griffin, supra note 35 (noting that the Act created the EEOC, which operates “as the lead enforcement agency in the area of workplace discrimination” and explaining that when the EEOC was introduced, the federal government’s main concern was to ensure that individuals be granted equal access to public workplaces—it did not envisage that Black hair would require equal access as well); Kalen Kennedy, My Natural Hair Is Unprofessional: The Impact of Black Hairstyles on Perceived Employment-Related Characteristics 8 (2020) (Master’s Thesis, Marquette University), https://epublications.marquette.edu/cgi/viewcontent‌.cgi?article=1580&context=theses_open [https://perma.cc/D9EN-H43Q](explaining that Black women are aware of the general public’s perceptions of their hair and go to great lengths to avoid being perceived negatively because of their hair and hairstyle. This includes “spending hours preparing their hair for work . . . spending large amounts of money on hair supplies, avoiding physical activity, or avoiding going outdoors when it is raining”).Show More

B. How Implicit Bias Against Black Hair Has Affected Black
Women in the Workplace

While not all employers have grooming policies that expressly address Black hair and protective hairstyles in the workplace, there remains a perception that Black hair is unprofessional and unkempt.46 46.See Berkemeyer, supra note 13, at 282 (stating that even where grooming policies do not specifically target Black women’s hair, implicit bias may play a significant role in crafting grooming policies that seem to be racially neutral but that adversely affect Black professionals and Black employees); Kennedy, supra note 45, at 8.Show More Multiple studies have documented implicit bias against Black hair.47 47.All the studies that I found related to implicit bias against Black hair. It would be rare for someone to make overtly racist comments about Black women’s hair in the workplace since that could open the door to liability in some states. Depending on whether the style is the Afro, it could also be a Title VII violation.Show More While a person’s unconscious beliefs may not always align with their conscious beliefs,48 48.See Laura McLaughlin, Self-Sabotaging: How Implicit Bias May Be Contributing to your “Can’t Find Any Women or Diverse Associates” Hiring Problem, ABA (Mar. 31, 2016),https://www.americanbar.org/groups/litigation/committees/commercial-business/practice/2016/self-sabotaging-how-implicit-bias-may-be-contributing-cant-find-any-women-diverse-associates-hiring-problem/ [https://perma.cc/77XL-23YF]; Melissa Little, Implicit Bias: Be an Advocate for Change, ABA, https://www.americanbar.org/groups/‌young_lawyers/publications/tyl/topics/professional-development/implicit-bias-be-an-advocate-for-change/ [https://perma.cc/WW7H-93PL] (last visited Nov. 18, 2020).Show More when it comes to Black women’s hair, the result remains the same––pressure on Black women to style their hair in a way that conforms to Eurocentric hair standards. Participants in a study were asked to link a hairstyle to different traits.49 49.See Kennedy, supra note .Show More They associated straightened hair with “clean, professional, feminine, and pretty,” afro with “wild, radical, and solidarity,” and dreadlocks with “drug use, ghetto, nasty, and gross.”50 50.Id. at 17.Show More

The Perception Institute’s “Good Hair” study examined the explicit and implicit views about Black women’s hairstyles.51 51.See Alexis McGill Johnson et al., Perception Inst., The “Good Hair” Study: Explicit and Implicit Attitudes Toward Black Women’s Hair (2017), https://perception.org/wp-content/uploads/2017/01/TheGood-HairStudyFindingsReport.pdf [https://perma.cc/592M-J8KE].Show More The study comprised of a national sample of 4,163 women and men who were asked about their opinions concerning textured hair––“hairstyles that exhibit a prototypically Black hair texture”––and smooth hair.52 52.Id. at 4; Kennedy, supra note , at 9.Show More The research’s findings revealed that participants viewed Black women’s textured hair as “less beautiful, sexy, attractive, and professional than smooth hair.”53 53.Id.Show More Women participants describe “good hair” as “straight, smooth, silky, and soft, not frizzy or ‘kinky.’”54 54.Johnson et al., supra note 51, at 11.Show More Black women perceived their textured hair as socially stigmatized, a view which is confirmed by white women’s devaluation of textured hair.55 55.See Kennedy, supra note 45, at 10; Johnson et al., supra note 51, at 6; see Rosette & Dumas, supra note 1, at 415–16 (Black women “are highly aware that their hairstyles may highlight the fact that they are different and thereby invite negative stereotypes about Black women . . . [and have had to] ‘shift so that their hair doesn’t blind their employers to their talent’” (citation omitted)).Show More Some women went as far as linking good hair to whiteness, “explaining that the ‘good hair’ standard is based on the type of hair that white women have, and is often hair that biracial women have.”56 56.Johnson et al., supra note 51, at 11.Show More Both Black and white women thought that afros are considered unprofessional in the United States, indicating a common understanding across races of the innate bias in the United States’ conceptualization of professionalism.57 57.See Kennedy, supra note , at 10.Show More Black women are also more likely to be sent home from the workplace because of their hair.58 58.The CROWN Act, The Official Campaign of the CROWN Act Led by the CROWN Coalition, https://www.thecrownact.com [https://perma.cc/UE6K-XA2X] (last visited May 8, 2021).Show More Similarly, the Hair Implicit Association Test’s findings indicated that while most participants, regardless of race, show an implicit bias against textured hair, white men and women displayed stronger levels of implicit bias against textured hair.59 59.SeeKennedy, supra note 45, at 10 (hairstyles were categorized as either textured (afro, dreadlocks, twist-out, braids) or smooth (straight, long curls, short curls, and pixie cut)); see also Johnson et al., supra note 51, at 13.Show More

II. Seminal Cases on the Issue of Black Women’s Hair in the Workplace and the Immutability Requirement

A. Black Women’s Inability to Successfully Litigate the Freedom to Wear Their Hair in Natural Hairstyles

Title VII of the Civil Rights Act of 1964 bans employment discrimination based on “race, color, religion, sex and national origin” in making hiring decisions, granting or denying promotions, or determining a person’s pay or benefits.60 60.See Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241, 254.Show More In its manual interpreting Title VII, the EEOC, the federal agency responsible for enforcing Title VII, prohibits employment discrimination against a person based on an immutable characteristic associated with race, such as hair texture or certain facial features.61 61.SeeFacts About Race/Color Discrimination, U.S. Equal Emp’t Opportunity Comm’n, https://www.eeoc.gov/laws/guidance/facts-about-racecolor-discrimination [https://perma.cc/MX5A-VGQQ] (last visited May 8, 2021).Show More The EEOC’s interpretation of Title VII also includes “cultural characteristics often linked to race or ethnicity,” such as grooming habits provided that “the cultural practice or characteristic does not materially interfere with the ability to perform job duties.”62 62.See id.; see also Equal Emp’t Opportunity Comm’n, Notice Concerning the Supreme Court’s Decision in Vance v. Ball State University, 133 S. Ct. 2434 (2013), https://www.eeoc.gov/laws/guidance/section-15-race-and-color-discrimination [https://perma.cc/7CFV-BXSG] (last visited May 8, 2021).Show More

Because of courts’ definition of race under Title VII as including immutable characteristics only and their rejection of cultural practices or characteristics arguments, Black women have not successfully litigated the freedom to wear their hair in natural hairstyles in the workplace.63 63.See Renee Henson, Are My Cornrows Unprofessional?: Title VII’s Narrow Application of Grooming Policies, and its Effect on Black Women’s Natural Hair in the Workplace, 1 Bus., Entrepreneurship & Tax L. Rev. 521, 523 (2017).Show More In Rogers v. American Airlines, Renee Rogers, a Black woman and long-term employee of American Airlines, filed a discrimination lawsuit under Title VII.64 64.527 F. Supp. 229 (S.D.N.Y. 1988).Show More She maintained that the airline discriminated against her as a Black woman because of its grooming policy that prohibited employees in certain positions from wearing an all-braided hairstyle. The United States District Court for the Southern District of New York held that a neutral employer policy that prohibited an all-braided hairstyle did not constitute racial discrimination. The court suggested that a racially neutral employer’s policy would violate Title VII in two circumstances: (1) the policy has a disparate impact on Black women and was not related to the job or consistent with a business necessity or (2) the policy is applied in a discriminatory fashion.65 65.Rogers v. Am. Airlines, Inc., 527 F. Supp. 229 (S.D.N.Y. 1988); Imani Gandy, Black Hair Discrimination is Real––But is it Against the Law?, Rewire News Group (Apr. 17, 2017), https://rewirenewsgroup.com/ablc/2017/04/17/black-hair-discrimination-real-but-is-it-against-law/ [https://perma.cc/E3JT-8KCM].Show More The court distinguished American Airlines’ policy from policies prohibiting afros because an all-braided is not an immutable characteristic but rather “the product…of artifice” and is an “easily changed characteristic.”66 66.Rogers, 527 F. Supp. at 232.Show More Lastly, the court rejected Rogers’ cultural argument stating that even if the all-braided hairstyle is associated with a particular race or nationality, it is not an impermissible basis for distinctions in applying an employer’s policy.

In EEOC v. Catastrophe Management Solutions, the Eleventh Circuit affirmed the dismissal of a lawsuit filed by the EEOC on behalf of Chasity Jones, a Black woman who wore dreadlocks, under Title VII.67 67.852 F.3d 1018 (11th Cir. 2016).Show More While Catastrophe Management Solution (CMS)’s grooming policy did not explicitly prohibit dreadlocks, CMS’s human resources manager, Jeannie Wilson, rescinded Jones’s offer after refusing to cut her dreadlocks according to the race-neutral policy. Wilson told Jones that dreadlocks “tend to get messy.”68 68.See Catastrophe Mgmt. Solutions, 852 F.3d at 1021.Show More Because the EEOC indicated an intention to proceed under a disparate treatment theory but made disparate impact arguments, the court refused to address EEOC’s arguments that CMS’s policy disproportionately affected Black employees.69 69.See id. at 1024 (explaining that a disparate treatment claim requires a plaintiff to show that an employer intentionally discriminated against the plaintiff based on their race, while a disparate impact claim only requires proof that an employment practice has an actual adverse impact on a protected group); Dawn D. Bennett-Alexander & Linda F. Harrison, My Hair Is Not Like Yours: Workplace Hair Grooming Policies for African American Women as Racial Stereotyping in Violation of Title VII, 22 Cardozo J.L. & Gender 437, 441 (2016) (explaining that a plaintiff can bring either a disparate treatment or disparate impact claim); see Ricci v. DeStefano, 557 U.S. 557, 581 (2009).Show More The court held that even though dreadlocks were a common way of wearing hair for Black people and suitable for Black hair texture, they were not an immutable characteristic of Black people; hence, there was no violation of Title VII.

These cases suggest that wearing the afro is the only natural hairstyle that a Black woman could legally wear in the workplace.70 70.See Powell, supra note , at 933–34.Show More Every other natural hairstyle, including braids, dreadlocks, and cornrows, can be prohibited.71 71.Id.Show More As mentioned before, afros have been perceived negatively, which means that Black women’s only option is to alter their hair texture to make it straight,72 72.Id.Show More imposing significant burdens on Black women.73 73.See infraSection III.B. for a description of the burdens imposed on Black women.Show More

B. The Case for Dropping the Immutability Requirement

While the EEOC is responsible for enforcing Title VII, courts ultimately have the authority to interpret Title VII’s statutory language. The Supreme Court explained that Congress in Title VII did not grant the EEOC the power to promulgate substantive regulations.74 74.James J. Brudney, Chevron and Skidmore in the Workplace: Unhappy Together, 83 Fordham L. Rev. 497, 505 (2014).Show More Hence, the EEOC’s manual interpreting Title VII’s race as including cultural characteristics often linked to race or ethnicity has not been accorded the same deference as rules that Congress has proclaimed as carrying the force of law.75 75.See id.; Theodore W. Wern, Judicial Deference to EEOC Interpretations of the Civil Rights Act, the ADA, and the ADEA: Is the EEOC a Second Class Agency, 60 Ohio State Law J. 1533, 1549–50 (1999) (explaining that between 1964 and 1998, the Supreme Court deferred to the EEOC’s position approximately 54 percent compared to the baseline figure of 72 percent for other administrative agencies).Show More As a result, despite the EEOC’s more expansive definition of “race,” courts have historically interpreted race as falling into one of two categories of immutability.

First, the Supreme Court has defined immutable characteristics as those characteristics that their “possessors are powerless to escape or set aside.”76 76.Jessica A. Clarke, Against Immutability, 125 Yale L.J. 2, 14 (2015).Show More The Supreme Court considered such traits as suspect, and a legislative classification that is based on such a trait deserves heightened scrutiny by the courts.77 77.See id. at 13–14; see Sharona Hoffman, The Importance of Immutability in Employment Discrimination Law, 52 Wm. & Mary L. Rev. 1483, 1510 (2011).Show More In Frontiero v. Richardson, the Supreme Court defined sex, race, and national origin, as immutable characteristics that are determined “solely by the accident of birth.”78 78.411 U.S. 677, 686 (1973).Show More Similarly, the Eleventh Circuit in Catastrophe Management Solutions concluded that immutable traits are defined as physical characteristics that a group of people shares and transmit to the next generations over time.79 79.EEOC v. Catastrophe Mgmt. Solutions,852 F.3d 1018, 1027 (11th Cir. 2016).Show More The court considered such characteristics as a matter of birth and not culture.80 80.See id.Show More

Courts have also defined immutable characteristics as traits that are “so fundamental to the identities or consciences of its members that members either cannot or should not be required to change it.”81 81.Hoffman, supra note 77, at 1512.Show More The characteristic does not have to be completely fixed to be considered immutable.82 82.Id.Show More This notion of immutability has been associated with ideas about privacy and liberty,83 83.See Clarke, supra note 76, at 26.Show More finding inspiration in Justice Blackmun’s dissent in Bowers v. Hardwick.84 84.478 U.S. 186 (1986).Show More Justice Blackmun objected to anti-sodomy laws by drawing on cases protecting the right to privacy. He argued that rights associated with the family are protected, not because of their direct effects on the general public welfare but “because they form so central a part of an individual’s life” and are “significant” ways “that individuals define themselves.”85 85.Bowers, 478 U.S. at 204–05 (1986), overruled by Lawrence v. Texas, 539 U.S. 558 (2003).Show More Kerrigan v. Commissioner of Public Health cemented the idea of immutability as an argument about choice––“a person’s fundamental right to self-determination.”86 86.See Clarke, supra note 76, at 26–27 (citing Kerrigan v. Commissioner of Public Health, 957 A.2d 407, 438 (Conn. 2008)) (explaining that “cases on the new immutability hold that, if a trait is not innocent in the sense of being an accident of birth, it must be innocent in the sense of being an ‘integral part of human freedom’”).Show More In Kerrigan, the Connecticut Supreme Court held that sexual orientation is immutable because the Constitution protects the right of “homosexual adults to engage in intimate, consensual conduct” as an “integral part of human freedom.”87 87.Kerrigan v. Commissioner of Public Health, 957 A.2d 407, 438 (Conn. 2008) (citing Lawrence, 539 U.S. at 576–77.Show More

However, the Rogers court did not find that an all-braided hairstyle was so fundamental to Black women’s identities that Black women should not be required to change it.88 88.Rogers v. Am. Airlines, Inc., 527 F. Supp. 229 (S.D.N.Y. 1988) Rogers, an American Airlines employee whose duties consisted of extensive passenger contact, had worn an all-braided hairstyle at work against American Airlines’ grooming policy.Show More Instead, the court ruled that Rogers’s braided hairstyle could easily be changed, and as such, her employer’s policy did not constitute a Title VII violation. The court’s ruling would then run counter to the Constitution’s protection of the right to privacy because it would assume that the Constitution would not protect Rogers’s right to choose to wear an all-braided hairstyle. Although Rogers implicates Title VII and not the Equal Protection Clause, the notion of immutability from the equal protection context plays a role in employment discrimination law.89 89.See Clarke, supra note 76, at 31.Show More While the term “immutability” is not mentioned in any employment discrimination statute, including Title VII, courts have adopted its concept from the equal protection context to interpret the scope of statutory prohibitions on discrimination.90 90.Seeid. at 29.Show More Beyond the courtrooms, immutability-based ideas have influenced discourses about which characteristics should be prohibited bases for discrimination.91 91.Seeid.at 30–31.Show More

Courts should dismiss both definitions of immutability because they are fundamentally flawed. By defining immutable traits as accidents of birth in natural hair and hairstyles discrimination cases, the Eleventh Circuit ignored “basic elements of antidiscrimination analysis.”92 92.Paulette M. Caldwell, A Hair Piece: Perspectives on the Intersection of Race and Gender, 1991 Duke L.J. 365, 377 (1991).Show More Such elements include the group’s history, patterns of oppression of the group that may help define its social and economic position, the group’s current position relative to that of other groups in society, and whether employment practices perpetuate the subordination of the individual or group.93 93.Seeid.Show More The Eleventh Circuit overlooked that African Americans are descendants of slaves who were forced to come to the United States under extremely abhorrent conditions. Before their arrival to the United States and after they were in the United States, their natural hair and natural hairstyles were an integral part of their identity.94 94.See infra Part I.Show More

The Eleventh Circuit disregarded the patterns of oppression against African Americans since their arrival in the United States and their current position relative to that of other groups. Black individuals have been discriminated against since the inception of the United States in every aspect of their lives, including in the healthcare system. For example, Black women were subjected to non-consensual medical experiments during slavery.95 95.Cynthia Prather et al., Racism, African American Women, and Their Sexual and Reproductive Health: A Review of Historical and Contemporary Evidence and Implications for Health Equity, 2 Health Equity 249, 251–52 (2018), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6167003/ [https://perma.cc/MDJ2-NFDQ] (describing experimental reproductive surgeries performed on enslaved Black women during slavery).Show More Jim Crow laws restricted their civil rights, and they were not protected against rape in some states.96 96.See id. at 252.Show More Today, Black individuals’ social and economic position is no better than other racial or ethnic groups. The poverty rate for Black people is 21.2 percent, although Black individuals only represent 13.4 percent of the U.S. population.97 97.See Kaiser Fam. Found., Poverty Rate by Race/Ethnicity (2019), https://www.kff.org/other/state-indicator/poverty-rate-by-raceethnicity/?currentTimeframe=‌0&sortModel=%7B%22colId%22:%22Location%22,%22sort%22:%22asc%22%7D [https://perma.cc/N6VP-AF8E]; U.S. Census Bureau, Quick Facts, https://www.census.gov/quickfacts/fact/table/US/IPE120219 [https://perma.cc/C357-JR7Q].Show More On the other hand, the poverty rate for white individuals is 9 percent, and they represent 76.3 percent of the population.98 98.Seeid.Show More

The Eleventh Circuit did not consider that employment practices can perpetuate the subordination of Black individuals. Several employment policy decisions are made without a Black person’s input.99 99.See Taylor Mioko Dewberry, Title VII and African American Hair: A Clash of Cultures, 54 Wash. U. J.L. & Pol’y 329, 348 (2017).Show More In fact, “whites hold a disproportionate share of business ownership and decision-making power within corporate structures.”100 100.See Barbara Flagg, Fashioning a Title VII Remedy for Transparently White Subjective Decisionmaking, 104 Yale L.J. 2009, 2036 (1995).Show More Additionally, upper management consists primarily of non-Black individuals. Black people account for only 3.2 percent of the senior leadership roles at large companies, and there are only three African American CEOs at Fortune 500 companies today.101 101.See Khristopher J. Brooks, Why So Many Black Business Professionals Are Missing from the C-Suite, CBS (Dec. 10, 2019, 9:14AM), https://www.cbsnews.com/news/black-professionals-hold-only-3-percent-of-executive-jobs-1-percent-of-ceo-jobs-at-fortune-500-firms-new-report-says/ [https://perma.cc/T6HS-V98T].Show More Consequently, individuals to whom “racial identity is not a central life experience” have promulgated many supposedly race-neutral policies, including grooming policies.102 102.See Dewberry,supra note 99, at 348.Show More And studies have shown that white men and women displayed stronger levels of implicit bias against textured hair.103 103.See Kennedy, supra note 45, at 10; Johnson et al., supra note 51, at 13.Show More

Courts should also reject the “fundamental to the identities” definition of immutability. Rogers and Jones would have likely succeeded under this definition of immutability because their natural hair and natural hairstyles are so fundamental to Black women’s identities that they should not be required to change them. However, this definition has some flaws. First, this definition of immutability masked moralizing judgments about what is fundamental to a group, who gets to decide what is fundamental to say group, and what ought to be protected under Title VII.104 104.SeeClarke, supra note 76, at 33–35.Show More Another issue is the notion of “fundamental” itself. Why is it that a trait or characteristic must be viewed as fundamental before finding that it is protected under Title VII? Anti-discrimination law’s underlying predicate is that people should be judged on the basis of their qualifications and not based on extraneous identity traits, such as race, disability, and sex.105 105.SeeRobert Post, Prejudicial Appearances: The Logic of American Antidiscrimination Law, 88 Calif. L. Rev. 1, 11-16 (2000) (discussing the concept of blindness in antidiscrimination law).Show More Lastly, another problem with this definition of immutability is that it does not incorporate any limiting principle, which could make it difficult for judges and the public to accept arguments based on it.106 106.See Clarke, supra note 76, at 45.Show More Unlike the definition of immutability that is restricted to traits that are accidents of birth, this definition does not have any apparent limits on which traits are fundamental to a group.107 107.See id.Show More

III. Expanding Title VII’s Definition of Racial Discrimination
to Include Natural Hair and Natural Hair Discrimination
as a Form of Racial Discrimination

A. The Supreme Court’s Extension of the Definition of Title VII’s Sex Discrimination over the Years

Title VII prohibits an employer from treating an employee unfavorably because of their sex.108 108.See Sex-Based Discrimination, Equal Emp. Opportunity Comm’n, https://www.eeoc.gov/sex-based-discrimination [https://perma.cc/7CZ7-8NS2] (last visited Jan. 21, 2021).Show More The EEOC has interpreted Title VII’s sex discrimination as discrimination based on sexual harassment, sexual orientation, and gender identity.109 109.Id.Show More The Supreme Court’s expanded view of sex discrimination aligned with the EEOC’s interpretation after the Court overruled Willingham v. Macon Telegraph Publishing Co.

In Willingham, the Fifth Circuit held that a plaintiff must show sex discrimination based on an immutable trait. The employer’s grooming policy required employees, men and women, who came into contact with the public to be neatly dressed and groomed following the standards traditionally accepted in the business community.110 110.See Willingham v. Macon Tel. Pub. Co., 507 F.2d 1084, 1087 (5th Cir. 1975).Show More The plaintiff was denied employment solely because he did not have a short haircut as required of male employees. The plaintiff argued that since “short hair is stereotypically male, requiring it of all male applicants” violated Title VII.111 111.Id.at 1089.Show More The Court stated that though the legislative history is inconclusive, it is unlikely that Congress intended for its prohibition of sexual discrimination to have “significant and sweeping implications.”112 112.Id. at 1090.Show More The Court then concluded that congressional action was required to read Title VII as barring discrimination based on sexual stereotypes.

However, in Price Waterhouse v. Hopkins, the Supreme Court ruled that Congress intended for its prohibition of sexual discrimination to have significant and sweeping implications and held that employment discrimination based on sex stereotypes is illegal sex discrimination under Title VII. The Court indicated that Title VII’s prohibition against discrimination based on a statutorily protected class is not limited to protecting only those characteristics of the class that may be viewed as immutable.113 113.See Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).Show More The employee, Ann Hopkins, alleged that her employer, the accounting firm Price Waterhouse, denied her a promotion to the partnership because her gender presentation defied the firm’s view of how a woman should look and act. For instance, one partner told Hopkins that she needed to “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.”114 114.Id. at 235.Show More While the characteristics that Price Waterhouse identified as reasons for not promoting Hopkins were mutable, the Court ruled that discrimination based on these characteristics, which Hopkins could have changed but did not, constituted sex discrimination. The Court noted that Congress intended to “strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.”115 115.Id. at 251.Show More The court found that in asking Hopkins to make herself more feminine, her employer required her to conform to the stereotype associated with sex. The Court also opined that “Congress’ intent to forbid employers to take gender into account in making employment decisions appears on the face of the statute”116 116.Id. at 239.Show More and that any “employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender.”117 117.Id. at 250.Show More

In Oncale v. Sundowner Offshore Services, Inc., the Court expanded Title II’s definition of sex discrimination to include same-sex harassment. The Court ruled that a plaintiff could bring a male-on-male sexual harassment claim under Title VII, regardless of whether the drafters of Title VII had contemplated it at the time it was enacted.118 118.See Oncale v. Sundowner Offshore Services., Inc., 523 U.S. 75, 79–82 (1998).Show More Joseph Oncale was employed on an oil platform by Sundowner Offshore Services when he was forcibly subjected to sex-related, humiliating actions, physical assault, and rape threats by his supervisors. The Court stated that “statutory prohibitions often go beyond the principal evil [they were passed to fight] to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”119 119.Id. at 79.Show More Oncale established that Title VII prohibits discrimination because of sex in the terms or conditions of employment, with the critical issue being “whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.”120 120.Id. at 80.Show More

In Bostock v. Clayton County, the Court extended Title VII protections to sexual orientation and gender identity. In each of the cases presented before the Court, an employer allegedly fired a long-time employee for being homosexual or transgender. The Court noted that it is unlikely that when Congress passed Title VII, it intended it to cover gay and transgender people. Similarly, drafters of Title VII “[l]ikely…weren’t thinking about many of the Act’s consequences that have become apparent over the years,” including the protections against discrimination based on sexual harassment.121 121.Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1737 (2020).Show More The Court explained that “the limits of the drafters’ imagination supply no reason to ignore the law’s demands.”122 122.Id.Show More The Court focused its decision on the “ordinary public meaning” of the terms used in Title VII when it was enacted.123 123.Id. at 1738.Show More Accordingly, the Court found that “sex” as used in 1964 referred to “status as either male or female [as] determined by reproductive biology.”124 124.Id. at 1739.Show More The Court applied this definition of “sex” to Title VII’s “but for” causation standard. The Court then established the legal test as follows: whether a “particular outcome would not have happened ‘but for’ the purported cause.”125 125.Id. at 1739.Show More According to the Court, with a but-for test, a court must change one thing at a time and see if the outcome changes. If the outcome does change, there is a but-for cause.126 126.Id.Show More The Court explained that while there may be other causes of a particular outcome, in Title VII cases, an employer cannot avoid liability by citing another factor that contributed to its challenged employment action or decision. As long as the plaintiff’s sex was one but-for cause of the employer’s action or decision, Title VII is triggered.127 127.Id. at 1745.Show More

B. The Case for Extending the Definition of Title VII’s Prohibition of Racial Discrimination to Include Hair Discrimination

Even though Title VII does not define “race” or “sex,” Rogers, Catastrophe Management Solutions, and Willingham have interpreted it to mean that a plaintiff must show racial or sex discrimination based on an immutable trait or characteristic. The Willingham’s court explained its decision by stating that Congress did not intend for its prohibition of sexual discrimination to have significant and sweeping implications.

However, the Supreme Court in Price Waterhouse indicated that it was precisely Congress’ intent for its prohibition of sexual discrimination to have significant and sweeping implications, noting that Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from stereotypes. In Oncale, the Court explained that “statutory prohibitions often go beyond the principal evil [they were passed to fight] to cover reasonably comparable evils.”128 128.SeeOncale, 523 U.S. at 79.Show More In Bostock, the Supreme Court noted that the drafters of Title VII likely did not think about many of the Act’s consequences that have become apparent over the years.

The pressure on Black women to change their hair to adapt it to the mainstream standard imposes significant burdens on Black women, which Congress almost certainly did not contemplate at the time Title VII was enacted. Wearing smooth or straight hairstyles to fit in means that Black women have to change their hair texture.129 129.See Carter, supra note 6, at 36–37.Show More This can be achieved by using chemical treatments, commonly known as relaxers, that have the effect of altering the texture of Black hair to straight and can impose an important financial burden on Black women.130 130.See Powell, supra note , at 963.Show More To maintain straight hair, Black women spend a lot of money on relaxers and other hair straightener products. The sales of relaxers were valued at $131.8 million in 2014 in the United States.131 131.Nana Sidibe, This Hair Trend Is Shaking up the Beauty Biz, CNBC (July 1, 2015), https://www.cnbc.com/2015/07/01/african-americans-changing-hair-care-needs.html [https://perma.cc/BTQ5-5T4Z].Show More

Resorting to chemical treatments also has profound health implications for Black women. Black women can experience balding, burns on the scalp, and other scalp diseases due to chemical use and heat damage.132 132.See Powell, supra note , at 965; Fuqua Insights, Research Suggests Bias Against Natural Hair Limits Job Opportunities for Black Women (Aug. 12, 2020), https://www.fuqua.duke.edu/duke-fuqua-insights/ashleigh-rosette-research-suggests-bias-against-natural-hair-limits-job [https://perma.cc/C56J-RMEL].Show More In addition, a study has shown that Black women exercise less than any other group, and hair presents a critical barrier to exercise for many Black women in that the “time and economic constraints involved in preserving a hairstyle postexercise frames physical activity as prohibitive, or perhaps a luxury.”133 133.H. Shellae Versey, Centering Perspectives on Black Women, Hair Politics, and Physical Activity, 104 Am. J. Public Health 810, 813 (2014), https://www.ncbi.nlm.nih.gov/pmc/‌articles/PMC3987595/pdf/AJPH.2013.301675.pdf [https://perma.cc/MM8G-MNA7] (out of 123 Black women aged 21 to 60, 38% of women surveyed “cited avoiding exercise because of their hair”).Show More The hairstyles that Black women referenced in the study for accommodating exercise generally involve the least amount of maintenance––ponytails, braids, cornrows, and natural hairstyles134 134.Id.Show More––some of the same styles that are not considered to be professional. Another study determined that the use of hair relaxers or chemical hair straighteners increased Black’s women exposure to deleterious tumor-causing hormones.135 135.See Carter, supra note 6, at 39.Show More The study found that Black women were two to three times more likely than white women to develop uterine fibroids.136 136.Id.Show More Although uterine fibroids are benign, they can cause gynecologic morbidity and are the leading indication of hysterectomy in the United States.137 137.Id.; see Lauren A. Wise, et al., Hair Relaxer Use and Risk of Uterine Leiomyomata in African-American Women, 175 Am. J. of Epidemiology 432, 432 (2012), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3282879/pdf/kwr351.pdf [https://perma.cc/Z87T-QKQ6].Show More Even if a Black woman does not experience explicit racism in the workplace, microaggressions, such as hair practices and comments about one’s appearance, is a form of discrimination that can lead to mental health problems, including anxiety, depression, and stress.138 138.See Berkemeyer, supra note 13, at 285.Show More The Good Hair study showed that “Black women suffer more anxiety around hair issues than their white peers” because of the pressure to conform to Eurocentric standards of beauty and professionalism.139 139.Id. at 287.Show More

Black women who choose to wear their natural hair and natural hairstyles and who, as a result, do not conform to their employers’ grooming standards, have faced discrimination in the form of lack of employment or promotion opportunities, and termination.140 140.See Carter, supra note 6, at 37.Show More Brittany Noble, a news anchor, faced criticism for her natural hair and was eventually terminated for wearing a natural hairstyle while on air in 2019.141 141.Id. at 39.Show More A recent experiment shows that bias against natural hair often starts during the hiring process. During the study, participants from various backgrounds assumed the role of recruiters and had to assess fictitious job applicants.142 142.SeeFuqua Insights, supra note 132.Show More The participants were more likely to rate Black women with straight hair and white women with either curly or straight hairstyles as more professional than Black women with natural hairstyles, who were deemed less professional and less competent.143 143.Id.Show More The participants were, thus, less likely to recommend Black women with natural hairstyles for interviews.144 144.Id.; see Chelsea Stein, MSU Research Exposes Discrimination Against Black Women with Natural Hair, Broad College of Business (Sept. 18, 2020), https://broad.msu.edu/news/msu-research-exposes-discrimination-against-black-women-with-natural-hair/ [https://perma.cc/D73C-HSYA].Show More In another instance of the same study, two groups of participants had to evaluate the same Black woman candidate: one group saw a photo of the candidate with natural hair, and the other group saw the candidate with straight hair.145 145.SeeFuqua Insights, supra note 132.Show More The latter group rated the candidate higher for professionalism and strongly recommended her for an interview.146 146.Id.Show More In that study, discrimination against natural hairstyles was for fictitious jobs in consultancy, an industry with more conservative dress norms.147 147.Seeid. (explaining that candidate’s hair texture did not influence perceptions of professionalism in the ad industry perhaps because advertising is viewed as a more creative industry than consulting).Show More

The burdens that Black women face when it comes to their hair and natural hairstyles could be described as “reasonably comparable evils” similar to the principal evil––race discrimination––that Title VII was passed to combat. Afros or natural hairstyles have historically and culturally been associated with the Black race.148 148.See Part I for the history and meaning of Black hair.Show More They are part of a Black person’s identity and a physical manifestation of their blackness. The pressures that Black women face in the workplace to assimilate to Eurocentric standards of professionalism come at a great cost to their finances, health, and professional growth. The fact that a Black woman can be fired, passed over for promotion, or simply not hired because of her hair is a form of racial discrimination. This is especially the case because none of the employer’s practice or grooming policies in Catastrophe Management Solutions or Rogers were related to job performance. Jones was hired before her offer was rescinded when she refused to cut her dreadlocks. Jones’ hiring showed that Jones had the required qualifications to get the job done. However, her natural hairstyle of choice became an impediment to her career advancement. Likewise, Rogers was a long-term employee of American Airlines. Nothing in the fact of the case suggests that her job performance was subpar. Similarly, her hairstyle of choice became an impediment to her career development.

Moreover, hair discrimination is similar to the sex stereotype discrimination that Hopkins faced when Price Waterhouse declined to promote her. Similar to the characteristics that Price Waterhouse identified as reasons for not promoting Hopkins, the characteristic that Wilson identified as a reason for rescinding Jones’ offer, is mutable. However, this did not deter the Court in Price Waterhouse in finding that requiring an employee to conform to a stereotype associated with sex constituted a violation of Title VII. Unlike Hopkins, who was required to conform to a stereotype, Jones was asked to “deviate” from a stereotype that associated dreadlocks––a hairstyle historically and culturally associated with Black individuals––with messiness and unprofessionalism. The result in both cases is the same. Just as Hopkins’ ability to get promoted depended on her willingness to conform to a stereotype requiring her to become more feminine, Jones’ ability to keep her offer was based on her willingness to deviate from a widely-held belief in professional environments that dreadlocks are unprofessional.

The terms or conditions that the Court in Oncale determined could trigger Title VII are like the terms or conditions placed on Jones and Rogers. Jones had to cut her dreadlocks before being hired for a position, and in Rogers, some employees could not hold certain positions if they wore their hair in an all-braided hairstyle. In Catastrophe Management Solutions and Rogers, Rogers and Jones, members of one race, were exposed to disadvantageous terms or conditions of employment to which members of other races were not exposed. In order for Rogers to have access to certain positions, she had to avoid wearing an all-braided hairstyle, and Jones had to cut her dreadlocks to be hired. Conditions like the ones presented to Jones and Rogers do not factor into the equation when hiring or promoting women of other races for the simple fact that it is rare, if not impossible, to see women professionals of other races with an all-braided hairstyle or dreadlocks. Similarly, a Black woman is 80 percent more likely to change her hair to meet social norms or expectations at work than a white woman is,149 149.See Cache McClay, Why Women Are Fighting Back Against Hair Oppression, BBC News (Dec. 13, 2019), https://www.bbc.com/news/world-us-canada-50786370 [https://perma‌.cc/9E62-6XS2].Show More showing that these terms or conditions disproportionately affect Black women.

Lastly, applying Bostock’s legal test to Catastrophe Management Solutions and Rogers would provide a different result than what the courts held in both cases. Had the employer’s grooming practice or policy in each case not prohibited Jones or Rogers from wearing a natural hairstyle, Jones would have been hired, and Rogers would have been able to keep her all-braided hairstyle. Bostock’s legal test is whether a particular outcome would not have happened but for the purported cause. In both instances, the plaintiff was intentionally penalized for wearing their hair in natural hairstyles. They would not have been penalized but for the fact that they wore their hair in natural hairstyles. And as mentioned before, it is rare, if not impossible, to find women professionals of other races wearing a hairstyle historically and culturally associated with Black individuals in the workplace. It is because the hairstyle is historically and culturally associated with Black individuals that it is viewed unfavorably. As described before, African cultures were seen as unconventional and uncivilized when they came to be viewed through Europeans’ lenses. There was no other factor that could explain the decision to rescind Jones’ offer as Wilson clearly stated that Jones had a choice between cutting her dreadlocks and working at CMS or refusing to do so and not working at CMS. Likewise, Rogers had to change her all-braided hairstyle. And even assuming that there was another factor that contributed to Jones and Rogers being penalized because of their choice of hairstyle, their employers would not be able to avoid liability under Title VII by citing that the other factor contributed to their employer’s decision under Bostock.

C. Addressing Dissenting Viewpoints on the Expansion of Title VII’s Prohibition of Racial Discrimination to Include Hair Discrimination

People who do not believe that natural hair and hairstyle discrimination is a form of racial discrimination may disagree with expanding the definition of racial discrimination following the sex discrimination example. Many individuals, both Black women and non-Black individuals, may argue that there is no bias against natural hair and natural hairstyles in the workplace. However, the data shows that many Black women have been discriminated against because of their hair and natural hairstyles. And Jones’s and Rogers’s stories are great illustrations of the consequences of the bias and discrimination that Black women experience in the workplace.

Opponents of the expansion may also argue that employers have the right, as private companies, to adopt rules regarding professional code of conduct and grooming policies. However, if a practice or grooming policy disproportionately affects Black women because of their racial identity, the law should protect them. In Rogers, American Airlines asserted that its “policy was adopted in order to help American project a conservative and business-like image.”150 150.Rogers,527 F. Supp. at 233.Show More This implies that Black women’s hair and natural hairstyles are not conservative and business-like and refers back to the perception that natural hair and natural hairstyles are not professional. Giving employers the broad authority to adopt the policies that would govern their businesses “leaves room for decisions informed by implicit bias” against Black women.151 151.SeeDewberry, supranote 99, at 352.Show More

Opponents of expanding the definition of Title VII racial discrimination to include natural hair and natural hairstyle discrimination may argue that employers’ grooming policies did not explicitly target Black women and their natural hairstyles. The well-documented history of prejudice and discrimination against Black individuals in the United States has shown otherwise. Discriminatory hair policies may seem neutral, but they may appear to be so simply because the expectation is that all employees have to assimilate to the dominant hair culture and hairstyles of white individuals.152 152.See Michelle L. Turner, The Braided Uproar: A Defense of My Sister’s Hair and a Contemporary Indictment of Rogers v. American Airlines, 7 Cardozo Women’s L.J. 115, 129–30 (2001).Show More Additionally, racial discrimination that was characterized by overt discriminatory acts has now been transformed into more subtle and indirect discriminatory practices.153 153.See Dewberry,supranote 99, at 345.Show More By extending the definition of racial discrimination to include natural hair and natural hairstyle discrimination, employers would be more mindful of the type of grooming policies they promulgate or practices that they perpetuate. Similarly, it would force them to confront their implicit bias because, otherwise, they open the door to potential liability.

Further, critics may oppose extending Title VII protections to natural hairstyles because of the possibility that other characteristics would be deemed Title VII violations. It is unlikely that expanding Title VII in such a way would lead to a chain reaction whereby other things would be viewed as violations of Title VII. In the sex discrimination cases, the Supreme Court has incorporated a limiting principle based on “reasonably comparable evils.” The Court did not create newly protected categories under Title VII. The Court has determined that sexual stereotypes, sexual harassment, and sexual orientation, and gender identity discrimination are reasonably comparable evils to the principal evil––sex discrimination. Similarly, natural hair and hairstyle discrimination is a reasonably comparable evil to the principal evil––racial discrimination. In both instances, the reasonably comparable evils are derived from the principal evil.

Lastly, the judiciary may refuse to expand the definition of Title VII’s racial discrimination to include natural hair and natural hairstyle discrimination, positing that legislatures, as elected bodies, have the authority to legislate. Recent legislative developments have aimed at protecting Black individuals from discrimination based on natural hair and natural hairstyles. However, they are recent, local, and not broadly implemented. The CROWN (Creating a Respectful and Open Workforce for Natural Hair) Act became effective in California in January 2020 and bans employment discrimination against employees who choose to wear natural hairstyles.154 154.See Senate Bill No. 188, 2019-2020 Reg. Sess. ch. 58 (Cal. 2019) https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200SB188 [https://perma.cc/R2P5-PW3E]; Natasha L. Domek and Lauren J. Blaes, A Heads up on the CROWN Act: Employees’ Natural Hairstyles now Protected, 9 Nat’l L. Rev. (2019) (explaining that Senate Bill 188 is also known as the Creating a Respectful and Open Workplace for Natural Hair (CROWN) Act, which revises the California Education Code and the Fair Employment and Housing Act’s definition of race).Show More Its definition of “race” includes traits historically associated with race, such as hair texture and protective hairstyles.155 155.Senate Bill No. 188, 2019-2020 Reg. Sess., ch. 58, § 2(a)(1) (Cal. 2019).Show More It acknowledges that U.S. history is “riddled with laws and societal norms that equated ‘blackness,’ and [the associated] physical traits,” such as “dark skin, kinky and curly hair to a badge of inferiority, sometimes subject to separate and unequal treatment.”156 156.Senate Bill No. 188, 2019-2020 Reg. Sess., ch. 58, § 1(a) (Cal. 2019).Show More Similarly, the CROWN Act became law in Montgomery County, Maryland, in February 2020.157 157.See Press Release, Montgomery County Council, CROWN Act Becomes Law in Montgomery County, (Feb. 6, 2020), https://www2.montgomerycountymd.gov/‌mcgportalapps/Press_Detail.aspx?Item_ID=23850&Dept=1 [https://perma.cc/7XEF-NPYM].Show More The Virginia legislature passed a bill that became effective in July 2020, amending its Human Rights Act to extend the definition of “because of race” or “on the basis of race” to include traits historically associated with race, including hair texture, type, and style.158 158.SeeKatherine P. Sandberg et al., Natural Hair Movement Spurs Nationwide Legislative Response to Prevent Hairstyle Discrimination, 48 ABA J. Lab. & Emp. Law 1, 6 (2020). For more examples of similar initiatives, see also NYC Commission on Human Rights, Legal Enforcement Guidance on Race Discrimination on the Basis of Hair (2019), https://www1.nyc.gov/assets/cchr/downloads/pdf/Hair-Guidance.pdf [https://perma.cc/A5GY-KPMT] (The New York City’s Commission on Human rights’ guidelines to protect “rights of New Yorkers to maintain natural hair or hairstyles that are closely associated with their racial, ethnic, or cultural identities,” including “the right to maintain natural hair, treated or untreated hairstyles such as locs, cornrows, twists, braids, Bantu knots, fades, Afros, and/or the right to keep hair in an uncut or untrimmed state”).Show More In many states, where natural hair and natural hairstyle discrimination is not prohibited, Black women have no recourse against discrimination. And the U.S. Congress has yet to pass a law banning race-based hair discrimination.159 159.CROWN ACT of 2019, S. 3167, 116th Congress (2020). The U.S. House of Representatives passed the CROWN Act in September 2020. The Act moved to the U.S. Senate, which did not vote on it before the end of the 116th Congress in January 2021.Show More

Conclusion

Black women who deviate from the norm of straight hair face significant barriers in the workplace. Implicit bias surrounding Black women’s hair, which has been perceived as unprofessional and associated with less competence, adds additional burdens on Black women leading to pressure to conform to the norm. This pressure has several detrimental financial, health, and professional implications for Black women. A Black woman’s decision to straighten her hair should be based on “a personal preference, not a burden to conform to a set of criteria,”160 160.Fuqua Insights, supra note 132 (citing Ashleigh Shelby Rosette, a management professor and a senior associate dean at the Fuqua School of Business at Duke University).Show More written or otherwise. While braids, twists, and dreadlocks are the main hairstyle choices that would not fit these criteria, they would release Black women from the burdens of hair straightening. However, these natural hairstyles are not protected under the law because they are not viewed as immutable characteristics of the Black race. The only legally permissible hairstyle that Black women can wear in the workplace, and that is protected under Title VII is the afro, which has also been perceived negatively.

Over the decades, the Supreme Court has demonstrated by its decisions in sex discrimination cases that Title VII could be expanded to account for injustices that were not contemplated when Title VII was originally passed. Likewise, it is unlikely that Congress considered the burdens that Black women would face in the workplace because of the negative perceptions around Black hair and natural hairstyles. Consequently, Title VII’s drafters did not consider prohibitions on natural hair and natural hairstyles to constitute racial discrimination when it passed Title VII. By its extension of the definition of sex discrimination under Title VII, the Supreme Court has shown its willingness to go beyond the original understating of Title VII sex discrimination “to accommodate new understandings of the nature and expression of sex discrimination.”161 161.Charlie Birkel, “Comparable Evils”: How to Read Sexual Orientation into Title VII’s Evolving Protections, Harv. C.R.-C.L. L. Rev. (2017), https://harvardcrcl.org/comparable-evils-how-to-read-sexual-orientation-into-title-viis-evolving-protections/ [https://perma.cc/E3AX-DGJE].Show More Expanding the definition of Title VII’s racial discrimination to include hair discrimination would ensure that Black women no longer face pressures to continually choose between retaining their own identity at the expense of their career goals or abandoning their cultural heritage to conform with the dominant culture.162 162.See Reidy & Kanigiri, supra note 1.Show More

  1. * Law clerk at Baker McKenzie. I would like to thank the Virginia Law Review Online staff, especially Editor in Chief Tiffany Mickel and Online Editor Allison Burns for their hard work on the piece; Catherine Guerrier for her feedback and support; Courtney Davis for her thoughtful comments and encouragement; and my family for their continued love and support. ↑
  2. Ashleigh Shelby Rosette & Tracy L. Dumas, The Hair Dilemma: Conform to Mainstream Expectations or Emphasize Racial Identity, 14 Duke J. Gender L. & Pol’y 407, 412 (2007) (explaining that socio-psychology research has provided strong evidence showing that being viewed as different can be a liability in the workplace); Steven Reidy & Meher Kanigiri, How Are Ethnic Hairstyles Really Viewed in the Workplace?, Cornell Univ. ILR School (2016) (explaining that the more someone is perceived as “fitting in” with the firm culture “the better their workplace outcomes, and the greater the degree of deviation from the group the worse the outcome,” and thus workers whose identity differs from the dominant firm culture face two choices: assimilating to the dominant firm culture or being excluded). ↑
  3. Ra’Mon Jones, What the Hair: Employment Discrimination Against Black People Based on Hairstyles, 36 Harv. BlackLetter L.J. 27, 29 (2020) (defining natural hair “as hair that has not been altered by chemical straighteners, including relaxers and texturizers”). ↑
  4. See Rosette & Dumas, supra note 1, at 413. ↑
  5. Id. at 412. ↑
  6. Id.; see Jena McGregor, More States Are Trying to Protect Black Employees Who Want to Wear Natural Hairstyles at Work, Wash. Post (Sept. 19, 2019), https://www.washingtonpost.com/business/2019/09/19/more-states-are-trying-protect-black-employees-who-want-wear-natural-hairstyles-work/ [https://perma.cc/S26M-ABL6] (noting that Minda Harts, founder of a career development company for women of color, stated that she wears her hair straight 99 percent of the time because she has seen how others look upon clients wearing braids and natural hairstyles in corporate America). ↑
  7. Kim Carter, Workplace Discrimination and Eurocentric Beauty Standards, 36 GPSOLO 36, 36 (2019); Venessa Simpson, What’s Going on Hair?: Untangling Societal Misconceptions that Stop Braids, Twists, and Dreads from Receiving Deserved Title VII Protection, 47 Sw. L. Rev. 265, 265 (2017). ↑
  8. See Carter, supra note 6, at 36. ↑
  9. “Protective hairstyles” are also called natural hairstyles. They can be used interchangeably. ↑
  10. Cornrows are also called plaits. Threading one’s hair means wrapping one’s hair in thread. ↑
  11. The historian John Thornton wrote that when Europeans first came into contact with western Africa in the late fifteenth century, they remarked on the many hairstyles African wore. There were “various combinations of braids, plaits . . . shaved areas, and areas cut to different lengths . . . creating a stunning effect.” See Shane White & Graham White, Slave Hair and African American Culture in the Eighteenth and Nineteenth Centuries, 61 J. Southern Hist. 45, 51 (1995). ↑
  12. Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241, 254. ↑
  13. See infra Section III.C. ↑
  14. See Sharon Adetutu Omotoso, Gender and Hair Politics: An African Philosophical Analysis, 12 J. Pan African Stud. 5, 5 (2018); Ciera Berkemeyer, New Growth: Afro-Textured Hair, Mental Health, and the Professional Workplace, 44 J. Legal Prof. 279, 284 (2020); see also Rumeana Jahangir, How Does Black Hair Reflect Black History?, BBC News (May 31, 2015), https://www.bbc.com/news/uk-england-merseyside-31438273 [https://perma.cc/‌XZF2-UUN2]; White & White, supra note 10, at 49; Reidy & Kanigiri, supra note 1. ↑
  15. See White & White, supra note 10, at 50. ↑
  16. See Omotoso, supra note 13, at 9. ↑
  17. Id. ↑
  18. Id. at 10. ↑
  19. See id. at 11; Berkemeyer, supra note 13, at 284. ↑
  20. See Jahangir, supra note 13; see also Omotoso, supra note 13, at 12. ↑
  21. See Omotoso, supra note 13, at 11. ↑
  22. Id. ↑
  23. Id. ↑
  24. Id. ↑
  25. Id. ↑
  26. Id. at 12. ↑
  27. See Berkemeyer, supra note 13, at 284. ↑
  28. Tabora A. Johnson & Teiahsha Bankhead, Hair It Is: Examining the Experiences of Black Women with Natural Hair, 2 Open J. Soc. Sci. 86, 87 (2014). ↑
  29. See Berkemeyer, supra note 13, at 284; Johnson & Bankhead, supra note 27, at 87. ↑
  30. See Berkemeyer, supra note 13, at 284. ↑
  31. See White & White, supra note 10, at 51 (explaining that “[d]escriptions of hair arrangements contained in eighteenth-century runaway advertisements indicate that, within the obvious limits imposed by an oppressive system, African American slaves were engaged in the same cultural activity”). ↑
  32. See White & White, supra note 10, at 58 (explaining that Black people “were not supposed to be proud of their hair, as they or their ancestors had been in Africa; any suggestion that they were would have sharply challenged complacent white cultural assumptions”). ↑
  33. Crystal Powell, Bias, Employment Discrimination, and Black Women’s Hair: Another Way Forward, 2018 BYU L. Rev. 933, 940–41 (2019) (explaining that “negro status” was the status of a “sub-human” with natural hair linked to non-human qualities, such as wool or bush). ↑
  34. See Johnson & Bankhead, supra note 27, at 88. ↑
  35. See Jahangir, supra note 13. ↑
  36. See Omotoso, supra note 13, at 13–14 (noting that as of 2005, African-Americans spent $81.6 million per annum on chemical products (especially relaxers)); Chante Griffin, How Natural Black Hair at Work Became a Civil Rights Issue, JSTOR Daily (July 3, 2019), https://daily.jstor.org/how-natural-black-hair-at-work-became-a-civil-rights-issue/ [https://perma.cc/H9P4-6J79] (explaining that Madam C.J. Walker, a Black woman, invented the hot comb used to straighten Black hair, providing Black women an “avenue for increased societal acceptance in an era when minstrel songs mocked” African Americans’ hair texture). ↑
  37. Jahangir, supra note 13; see also Reidy & Kanigiri, supra note 1. ↑
  38. See Omotoso, supra note 13, at 12. ↑
  39. See id. at 6. ↑
  40. See id. at 13. ↑
  41. See Berkemeyer, supra note 13, at 281 (explaining that “when follicles curve sebum is not able to travel the length of the hair. Because moisture is harder to retain in [curly and kinky] textures, the natural hair community often turns to protective styling to maintain healthy, moisturized hair” because it reduces continuous manipulation of hair, promotes growth retention, and protects the ends of the hair). ↑
  42. See id. at 281. ↑
  43. See Simpson, supra note 6, at 266. ↑
  44. Carter, supra note 6, at 36. ↑
  45. Reidy & Kanigiri, supra note 1; see also Rosette & Dumas, supra note 1, at 407. ↑
  46. See Griffin, supra note 35 (noting that the Act created the EEOC, which operates “as the lead enforcement agency in the area of workplace discrimination” and explaining that when the EEOC was introduced, the federal government’s main concern was to ensure that individuals be granted equal access to public workplaces—it did not envisage that Black hair would require equal access as well); Kalen Kennedy, My Natural Hair Is Unprofessional: The Impact of Black Hairstyles on Perceived Employment-Related Characteristics 8 (2020) (Master’s Thesis, Marquette University), https://epublications.marquette.edu/cgi/viewcontent‌.cgi?article=1580&context=theses_open [https://perma.cc/D9EN-H43Q](explaining that Black women are aware of the general public’s perceptions of their hair and go to great lengths to avoid being perceived negatively because of their hair and hairstyle. This includes “spending hours preparing their hair for work . . . spending large amounts of money on hair supplies, avoiding physical activity, or avoiding going outdoors when it is raining”). ↑
  47. See Berkemeyer, supra note 13, at 282 (stating that even where grooming policies do not specifically target Black women’s hair, implicit bias may play a significant role in crafting grooming policies that seem to be racially neutral but that adversely affect Black professionals and Black employees); Kennedy, supra note 45, at 8. ↑
  48. All the studies that I found related to implicit bias against Black hair. It would be rare for someone to make overtly racist comments about Black women’s hair in the workplace since that could open the door to liability in some states. Depending on whether the style is the Afro, it could also be a Title VII violation. ↑
  49. See Laura McLaughlin, Self-Sabotaging: How Implicit Bias May Be Contributing to your “Can’t Find Any Women or Diverse Associates” Hiring Problem, ABA (Mar. 31, 2016),https://www.americanbar.org/groups/litigation/committees/commercial-business/practice/2016/self-sabotaging-how-implicit-bias-may-be-contributing-cant-find-any-women-diverse-associates-hiring-problem/ [https://perma.cc/77XL-23YF]; Melissa Little, Implicit Bias: Be an Advocate for Change, ABA, https://www.americanbar.org/groups/‌young_lawyers/publications/tyl/topics/professional-development/implicit-bias-be-an-advocate-for-change/ [https://perma.cc/WW7H-93PL] (last visited Nov. 18, 2020). ↑
  50. See Kennedy, supra note . ↑
  51. Id. at 17. ↑
  52. See Alexis McGill Johnson et al., Perception Inst., The “Good Hair” Study: Explicit and Implicit Attitudes Toward Black Women’s Hair (2017), https://perception.org/wp-content/uploads/2017/01/TheGood-HairStudyFindingsReport.pdf [https://perma.cc/592M-J8KE]. ↑
  53. Id. at 4; Kennedy, supra note , at 9. ↑
  54. Id. ↑
  55. Johnson et al., supra note 51, at 11. ↑
  56. See Kennedy, supra note 45, at 10; Johnson et al., supra note 51, at 6; see Rosette & Dumas, supra note 1, at 415–16 (Black women “are highly aware that their hairstyles may highlight the fact that they are different and thereby invite negative stereotypes about Black women . . . [and have had to] ‘shift so that their hair doesn’t blind their employers to their talent’” (citation omitted)). ↑
  57. Johnson et al., supra note 51, at 11. ↑
  58. See Kennedy, supra note , at 10. ↑
  59. The CROWN Act, The Official Campaign of the CROWN Act Led by the CROWN Coalition, https://www.thecrownact.com [https://perma.cc/UE6K-XA2X] (last visited May 8, 2021). ↑
  60. See Kennedy, supra note 45, at 10 (hairstyles were categorized as either textured (afro, dreadlocks, twist-out, braids) or smooth (straight, long curls, short curls, and pixie cut)); see also Johnson et al., supra note 51, at 13. ↑
  61. See Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241, 254. ↑
  62. See Facts About Race/Color Discrimination, U.S. Equal Emp’t Opportunity Comm’n, https://www.eeoc.gov/laws/guidance/facts-about-racecolor-discrimination [https://perma.cc/MX5A-VGQQ] (last visited May 8, 2021). ↑
  63. See id.; see also Equal Emp’t Opportunity Comm’n, Notice Concerning the Supreme Court’s Decision in Vance v. Ball State University, 133 S. Ct. 2434 (2013), https://www.eeoc.gov/laws/guidance/section-15-race-and-color-discrimination [https://perma.cc/7CFV-BXSG] (last visited May 8, 2021). ↑
  64. See Renee Henson, Are My Cornrows Unprofessional?: Title VII’s Narrow Application of Grooming Policies, and its Effect on Black Women’s Natural Hair in the Workplace, 1 Bus., Entrepreneurship & Tax L. Rev. 521, 523 (2017). ↑
  65. 527 F. Supp. 229 (S.D.N.Y. 1988). ↑
  66. Rogers v. Am. Airlines, Inc., 527 F. Supp. 229 (S.D.N.Y. 1988); Imani Gandy, Black Hair Discrimination is Real––But is it Against the Law?, Rewire News Group (Apr. 17, 2017), https://rewirenewsgroup.com/ablc/2017/04/17/black-hair-discrimination-real-but-is-it-against-law/ [https://perma.cc/E3JT-8KCM]. ↑
  67. Rogers, 527 F. Supp. at 232. ↑
  68. 852 F.3d 1018 (11th Cir. 2016). ↑
  69. See Catastrophe Mgmt. Solutions, 852 F.3d at 1021. ↑
  70. See id. at 1024 (explaining that a disparate treatment claim requires a plaintiff to show that an employer intentionally discriminated against the plaintiff based on their race, while a disparate impact claim only requires proof that an employment practice has an actual adverse impact on a protected group); Dawn D. Bennett-Alexander & Linda F. Harrison, My Hair Is Not Like Yours: Workplace Hair Grooming Policies for African American Women as Racial Stereotyping in Violation of Title VII, 22 Cardozo J.L. & Gender 437, 441 (2016) (explaining that a plaintiff can bring either a disparate treatment or disparate impact claim); see Ricci v. DeStefano, 557 U.S. 557, 581 (2009). ↑
  71. See Powell, supra note , at 933–34. ↑
  72. Id. ↑
  73. Id. ↑
  74. See infra Section III.B. for a description of the burdens imposed on Black women. ↑
  75. James J. Brudney, Chevron and Skidmore in the Workplace: Unhappy Together, 83 Fordham L. Rev. 497, 505 (2014). ↑
  76. See id.; Theodore W. Wern, Judicial Deference to EEOC Interpretations of the Civil Rights Act, the ADA, and the ADEA: Is the EEOC a Second Class Agency, 60 Ohio State Law J. 1533, 1549–50 (1999) (explaining that between 1964 and 1998, the Supreme Court deferred to the EEOC’s position approximately 54 percent compared to the baseline figure of 72 percent for other administrative agencies). ↑
  77. Jessica A. Clarke, Against Immutability, 125 Yale L.J. 2, 14 (2015). ↑
  78. See id. at 13–14; see Sharona Hoffman, The Importance of Immutability in Employment Discrimination Law, 52 Wm. & Mary L. Rev. 1483, 1510 (2011). ↑
  79. 411 U.S. 677, 686 (1973). ↑
  80. EEOC v. Catastrophe Mgmt. Solutions, 852 F.3d 1018, 1027 (11th Cir. 2016). ↑
  81. See id. ↑
  82. Hoffman, supra note 77, at 1512. ↑
  83. Id. ↑
  84. See Clarke, supra note 76, at 26. ↑
  85. 478 U.S. 186 (1986). ↑
  86. Bowers, 478 U.S. at 204–05 (1986), overruled by Lawrence v. Texas, 539 U.S. 558 (2003). ↑
  87. See Clarke, supra note 76, at 26–27 (citing Kerrigan v. Commissioner of Public Health, 957 A.2d 407, 438 (Conn. 2008)) (explaining that “cases on the new immutability hold that, if a trait is not innocent in the sense of being an accident of birth, it must be innocent in the sense of being an ‘integral part of human freedom’”). ↑
  88. Kerrigan v. Commissioner of Public Health, 957 A.2d 407, 438 (Conn. 2008) (citing Lawrence, 539 U.S. at 576–77. ↑
  89. Rogers v. Am. Airlines, Inc., 527 F. Supp. 229 (S.D.N.Y. 1988) Rogers, an American Airlines employee whose duties consisted of extensive passenger contact, had worn an all-braided hairstyle at work against American Airlines’ grooming policy. ↑
  90. See Clarke, supra note 76, at 31. ↑
  91. See id. at 29. ↑
  92. See id. at 30–31. ↑
  93. Paulette M. Caldwell, A Hair Piece: Perspectives on the Intersection of Race and Gender, 1991 Duke L.J. 365, 377 (1991). ↑
  94. See id. ↑
  95. See infra Part I. ↑
  96. Cynthia Prather et al., Racism, African American Women, and Their Sexual and Reproductive Health: A Review of Historical and Contemporary Evidence and Implications for Health Equity, 2 Health Equity 249, 251–52 (2018), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6167003/ [https://perma.cc/MDJ2-NFDQ] (describing experimental reproductive surgeries performed on enslaved Black women during slavery). ↑
  97. See id. at 252. ↑
  98. See Kaiser Fam. Found., Poverty Rate by Race/Ethnicity (2019), https://www.kff.org/other/state-indicator/poverty-rate-by-raceethnicity/?currentTimeframe=‌0&sortModel=%7B%22colId%22:%22Location%22,%22sort%22:%22asc%22%7D [https://perma.cc/N6VP-AF8E]; U.S. Census Bureau, Quick Facts, https://www.census.gov/quickfacts/fact/table/US/IPE120219 [https://perma.cc/C357-JR7Q]. ↑
  99. See id. ↑
  100. See Taylor Mioko Dewberry, Title VII and African American Hair: A Clash of Cultures, 54 Wash. U. J.L. & Pol’y 329, 348 (2017). ↑
  101. See Barbara Flagg, Fashioning a Title VII Remedy for Transparently White Subjective Decisionmaking, 104 Yale L.J. 2009, 2036 (1995). ↑
  102. See Khristopher J. Brooks, Why So Many Black Business Professionals Are Missing from the C-Suite, CBS (Dec. 10, 2019, 9:14AM), https://www.cbsnews.com/news/black-professionals-hold-only-3-percent-of-executive-jobs-1-percent-of-ceo-jobs-at-fortune-500-firms-new-report-says/ [https://perma.cc/T6HS-V98T]. ↑
  103. See Dewberry, supra note 99, at 348. ↑
  104. See Kennedy, supra note 45, at 10; Johnson et al., supra note 51, at 13. ↑
  105. See Clarke, supra note 76, at 33–35. ↑
  106. See Robert Post, Prejudicial Appearances: The Logic of American Antidiscrimination Law, 88 Calif. L. Rev. 1, 11-16 (2000) (discussing the concept of blindness in antidiscrimination law). ↑
  107. See Clarke, supra note 76, at 45. ↑
  108. See id. ↑
  109. See Sex-Based Discrimination, Equal Emp. Opportunity Comm’n, https://www.eeoc.gov/sex-based-discrimination [https://perma.cc/7CZ7-8NS2] (last visited Jan. 21, 2021). ↑
  110. Id. ↑
  111. See Willingham v. Macon Tel. Pub. Co., 507 F.2d 1084, 1087 (5th Cir. 1975). ↑
  112. Id. at 1089. ↑
  113. Id. at 1090. ↑
  114. See Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). ↑
  115. Id. at 235. ↑
  116. Id. at 251. ↑
  117. Id. at 239. ↑
  118. Id. at 250. ↑
  119. See Oncale v. Sundowner Offshore Services., Inc., 523 U.S. 75, 79–82 (1998). ↑
  120. Id. at 79. ↑
  121. Id. at 80. ↑
  122. Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1737 (2020). ↑
  123. Id. ↑
  124. Id. at 1738. ↑
  125. Id. at 1739. ↑
  126. Id. at 1739. ↑
  127. Id. ↑
  128. Id. at 1745. ↑
  129. See Oncale, 523 U.S. at 79. ↑
  130. See Carter, supra note 6, at 36–37. ↑
  131. See Powell, supra note , at 963. ↑
  132. Nana Sidibe, This Hair Trend Is Shaking up the Beauty Biz, CNBC (July 1, 2015), https://www.cnbc.com/2015/07/01/african-americans-changing-hair-care-needs.html [https://perma.cc/BTQ5-5T4Z]. ↑
  133. See Powell, supra note , at 965; Fuqua Insights, Research Suggests Bias Against Natural Hair Limits Job Opportunities for Black Women (Aug. 12, 2020), https://www.fuqua.duke.edu/duke-fuqua-insights/ashleigh-rosette-research-suggests-bias-against-natural-hair-limits-job [https://perma.cc/C56J-RMEL]. ↑
  134. H. Shellae Versey, Centering Perspectives on Black Women, Hair Politics, and Physical Activity, 104 Am. J. Public Health 810, 813 (2014), https://www.ncbi.nlm.nih.gov/pmc/‌articles/PMC3987595/pdf/AJPH.2013.301675.pdf [https://perma.cc/MM8G-MNA7] (out of 123 Black women aged 21 to 60, 38% of women surveyed “cited avoiding exercise because of their hair”). ↑
  135. Id. ↑
  136. See Carter, supra note 6, at 39. ↑
  137. Id. ↑
  138. Id.; see Lauren A. Wise, et al., Hair Relaxer Use and Risk of Uterine Leiomyomata in African-American Women, 175 Am. J. of Epidemiology 432, 432 (2012), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3282879/pdf/kwr351.pdf [https://perma.cc/Z87T-QKQ6]. ↑
  139. See Berkemeyer, supra note 13, at 285. ↑
  140. Id. at 287. ↑
  141. See Carter, supra note 6, at 37. ↑
  142. Id. at 39. ↑
  143. See Fuqua Insights, supra note 132. ↑
  144. Id. ↑
  145. Id.; see Chelsea Stein, MSU Research Exposes Discrimination Against Black Women with Natural Hair, Broad College of Business (Sept. 18, 2020), https://broad.msu.edu/news/msu-research-exposes-discrimination-against-black-women-with-natural-hair/ [https://perma.cc/D73C-HSYA]. ↑
  146. See Fuqua Insights, supra note 132. ↑
  147. Id. ↑
  148. See id. (explaining that candidate’s hair texture did not influence perceptions of professionalism in the ad industry perhaps because advertising is viewed as a more creative industry than consulting). ↑
  149. See Part I for the history and meaning of Black hair. ↑
  150. See Cache McClay, Why Women Are Fighting Back Against Hair Oppression, BBC News (Dec. 13, 2019), https://www.bbc.com/news/world-us-canada-50786370 [https://perma‌.cc/9E62-6XS2]. ↑
  151. Rogers, 527 F. Supp. at 233. ↑
  152. See Dewberry, supra note 99, at 352. ↑
  153. See Michelle L. Turner, The Braided Uproar: A Defense of My Sister’s Hair and a Contemporary Indictment of Rogers v. American Airlines, 7 Cardozo Women’s L.J. 115, 129–30 (2001). ↑
  154. See Dewberry, supra note 99, at 345. ↑
  155. See Senate Bill No. 188, 2019-2020 Reg. Sess. ch. 58 (Cal. 2019) https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200SB188 [https://perma.cc/R2P5-PW3E]; Natasha L. Domek and Lauren J. Blaes, A Heads up on the CROWN Act: Employees’ Natural Hairstyles now Protected, 9 Nat’l L. Rev. (2019) (explaining that Senate Bill 188 is also known as the Creating a Respectful and Open Workplace for Natural Hair (CROWN) Act, which revises the California Education Code and the Fair Employment and Housing Act’s definition of race). ↑
  156. Senate Bill No. 188, 2019-2020 Reg. Sess., ch. 58, § 2(a)(1) (Cal. 2019). ↑
  157. Senate Bill No. 188, 2019-2020 Reg. Sess., ch. 58, § 1(a) (Cal. 2019). ↑
  158. See Press Release, Montgomery County Council, CROWN Act Becomes Law in Montgomery County, (Feb. 6, 2020), https://www2.montgomerycountymd.gov/‌mcgportalapps/Press_Detail.aspx?Item_ID=23850&Dept=1 [https://perma.cc/7XEF-NPYM]. ↑
  159. See Katherine P. Sandberg et al., Natural Hair Movement Spurs Nationwide Legislative Response to Prevent Hairstyle Discrimination, 48 ABA J. Lab. & Emp. Law 1, 6 (2020). For more examples of similar initiatives, see also NYC Commission on Human Rights, Legal Enforcement Guidance on Race Discrimination on the Basis of Hair (2019), https://www1.nyc.gov/assets/cchr/downloads/pdf/Hair-Guidance.pdf [https://perma.cc/A5GY-KPMT] (The New York City’s Commission on Human rights’ guidelines to protect “rights of New Yorkers to maintain natural hair or hairstyles that are closely associated with their racial, ethnic, or cultural identities,” including “the right to maintain natural hair, treated or untreated hairstyles such as locs, cornrows, twists, braids, Bantu knots, fades, Afros, and/or the right to keep hair in an uncut or untrimmed state”). ↑
  160. CROWN ACT of 2019, S. 3167, 116th Congress (2020). The U.S. House of Representatives passed the CROWN Act in September 2020. The Act moved to the U.S. Senate, which did not vote on it before the end of the 116th Congress in January 2021. ↑
  161. Fuqua Insights, supra note 132 (citing Ashleigh Shelby Rosette, a management professor and a senior associate dean at the Fuqua School of Business at Duke University). ↑
  162. Charlie Birkel, “Comparable Evils”: How to Read Sexual Orientation into Title VII’s Evolving Protections, Harv. C.R.-C.L. L. Rev. (2017), https://harvardcrcl.org/comparable-evils-how-to-read-sexual-orientation-into-title-viis-evolving-protections/ [https://perma.cc/E3AX-DGJE]. ↑

  163. See Reidy & Kanigiri, supra note 1. ↑

From Carrie Buck to Britney Spears: Strategies for Disrupting the Ongoing Reproductive Oppression of Disabled People

In June 2021, Britney Spears made headlines when she testified to a judge that she was being prevented from having children because her conservator would not allow her to stop using contraception. Britney Spears’s dreadful experiences are a glaring reminder that nearly 100 years after the infamous Buck v. Bell decision, reproduction is still weaponized to subjugate people with disabilities. Indeed, the reproductive oppression experienced by Britney Spears and other people with actual or perceived disabilities is deeply entrenched in our laws, in our policies, and in our collective conscience. Confronting these persistent inequities will require us to radically transform our laws and policies. This Essay responds to the ongoing reproductive injustice experienced by disabled people by proposing a vision to assist activists, legal professionals, scholars, and policymakers conceive of and articulate the basic contours of a paradigm shift that supports the coalescence of the reproductive justice and disability justice movements. The guiding principles set forth herein are intended to advance a long-overdue conversation about reproductive justice for people with disabilities by providing a starting point for activists, scholars, legal professionals, and policymakers to use, critique, and improve upon. The need for action could not be more timely or clear.

Introduction

“I want to be able to get married and have a baby . . . . I wanted to take the (IUD) out so I could start trying to have another baby. But this so-called team won’t let me go to the doctor to take it out because they don’t want me to have children—any more children.” – Britney Spears1 1.Jem Aswad, Read Britney Spears’ Full Statement Against Conservatorship: ‘I Am Traumatized’, Variety (June 23, 2021, 3:59 PM), https://variety.com/2021/music/‌news/britney-spears-full-statement-conservatorship-1235003940/ [https://perma.cc/QJ6Y-9UBH] (transcript of Spears’s June 23, 2021, statement to Los Angeles Superior Court Judge, Brenda Penny).Show More

On June 23, 2021, Britney Spears delivered a twenty-four-minute statement to the Los Angeles Superior Court passionately pleading for an end to the thirteen-year conservatorship to which she has been subjected.2 2.Id. At the time of this writing, Britney Spears’s case is ongoing. On September 29, 2021, the court suspended Britney Spears’s father, James Spears, as his daughter’s conservator and temporarily replaced him with a new conservator. Joe Coscarelli, Julia Jacobs & Liz Day, Judge Frees Spears From Father’s Control (Oct. 2, 2021), https://www.nytimes.com/‌2021/09/29/arts/music/britney-spears-court-decision-conservatorship.html [https://perma.cc/9N3S-S8NA]. The court has scheduled a hearing for November 12, 2021, to determine whether the conservatorship should end.Id.Show More In her heartbreaking testimony, Britney Spears presented a lengthy list of abuses she has allegedly endured, including surveillance, confinement, forced medication, and arduous labor demands.3 3.Aswad, supra note 1.Show More One detail stood out as especially egregious: Britney Spears wants to get married and have more children but is being prevented from doing so because her conservators will not authorize the removal of her intrauterine device (“IUD”).4 4.Id.Show More The juxtaposed responses of people with and without disabilities are a telling commentary on the state of reproductive freedom for disabled people.5 5.Consistent with disability rights and disability justice movements, this Essay acknowledges the importance of language in shaping how we think about disability and how ableism can pervade language choices as well as reflect and perpetuate disability-based subordination. Lydia X. Z. Brown, Ableism/Language, Autistic Hoya(Feb. 27, 2021), https://www.autistichoya.com/p/ableist-words-and-terms-to-avoid.html [https://perma.cc/HS2F-LJ2C]. To that end, I use person-first and identity-first language interchangeably (e.g., “parents with disabilities” and “disabled parents”) in recognition of the disability community’s diverse language preferences. See generally Dana S. Dunn & Erin E. Andrews, Person-First and Identity-First Language: Developing Psychologists’ Cultural Competence Using Disability Language, 70 Am. Psych. 255 (2015) (exploring the evolving language preferences among people with disabilities).Show More Fans, celebrities, and public officials, on the one hand, expressed horror and astonishment that such reproductive oppression was lawfully occurring in the United States.6 6.See, e.g., @yooitsmo, Twitter (June 24, 2021, 11:58 AM), https://twitter.com/yooitsmo/‌status/1408092248265445387 [https://perma.cc/UX86-TLL3] (“I’m sorry but…Britney HAS to keep an [IUD] in under her conservatorship??? How is any of this legal/okay???”); Meghan McCain (@MeghanMcCain), Twitter (June 23, 2021, 9:14 PM), https://twitter.com/‌MeghanMcCain/‌status/1407869786156146689 [https://perma.cc/T7S7-3X6G] (“This goes beyond any normal courts, there should be human rights violations investigations. Britney Spears was held captive, out in the open and we gawked at her and didn’t listen. This is how we treat famous women. Thank God she didn’t kill herself. There is a rot in our culture”); Congresswoman Katie Porter (@katieporteroc), Twitter (June 24, 2021, 7:25 PM), https://twitter.com/katieporteroc/status/1408204566592561157 [https://perma.cc/‌AA53-C7WG] (“Every American—regardless of their gender identity or disability status—ought to be able to make decisions about their own bodies. #FreeBritney”).Show More People with disabilities, on the other hand, while enraged, were not surprised that Britney Spears’s conservator was exerting reproductive control over her, explaining that such efforts are emblematic of the United States’ ongoing practice of weaponizing their reproduction to subjugate them.7 7.See, e.g., Imani Barbarin (@Imani_Barbarin), Twitter (June 24, 2021, 10:54 AM), https://twitter.com/Imani_Barbarin/status/1408076140028305422 [https://perma.cc/3W8S-DPTB] (“I don’t like the gaslighting that goes on when disabled people tell y’all that what’s happening with #FreeBritney is not at all unique. You just have a hierarchy of disability and a point at which you think someone is “too disabled” to care about.”); Sarah Lerner (@SarahLerner), Twitter (June 23, 2021, 6:42 PM), https://twitter.com/SarahLerner/status/‌1407831499164962817 [https://perma.cc/A8BU-TS75] (“Britney Spears being held under a 13-year conservatorship and being forced to keep her IUD in despite the fact that she wants another child is where disability rights and reproductive rights intertwine.”); Dr. Sherri G. (@onlymeindc), Twitter (June 24, 2021, 9:27 PM), https://twitter.com/onlymeindc/‌status/1408235268545519617 [https://perma.cc/UV6J-LU5J] (“The Britney Spears situation is most definitely a disability rights issue. The medical and social models of disability are clashing right in front of your eyes. One model boils us down to impairment through oppressive paternalism forcing us in the sick role and the other doesn’t.”); Eric Michael Garcia (@EricMGarcia), Twitter (June 23, 2021, 5:55 PM), https://twitter.com/EricMGarcia/‌status/1407819545394434051 [https://perma.cc/8BKP-PMAL] (“As always, it’s important to remember that #FreeBritney is a disability rights issue. If the state can do this to one of the most influential pop stars in my lifetime, think about what it can do to others.”).Show More

Britney Spears’s experiences are neither unique nor uncommon. Rather, the belief that people with actual or perceived disabilities—including physical, intellectual, sensory, and psychiatric disabilities—should not have reproductive autonomy is woven into our nation’s fabric.8 8.See infra Part I (contextualizing the United States’ history of the reproductive oppression of people with disabilities and the ways in which it persists today).Show More Each day, disabled people experience reproductive oppression, including forced sterilization, coerced abortion, inadequate access to sexual and reproductive health services and information, and loss of custody of their children.9 9.Id.Show More The injustices are even more pronounced for multiply marginalized people with disabilities, including disabled people of color and LGBTQ+ people.10 10.Zoe Brennan-Krohn & Rebecca McCray, Britney Spears’ Reproductive Freedom Is a Disability Rights Issue, ACLU (June 25, 2021), https://www.aclu.org/news/civil-liberties/britney-spears-reproductive-freedom-is-a-disability-rights-issue/ [https://perma.cc/KZ9E-75WS] (“Spears’ experience is part of a long history of people with disabilities—most often people of color—being robbed of the right to control their reproductive destinies.”); Nat’l LGBTQ Task Force, Queering Reproductive Justice: A Toolkit 5–7 (Zsea Beaumonis, Candace Bond-Theriault, Stacey Long Simmons & Sabrina Rewald eds., 2017), https://www.thetaskforce.org/wp-content/uploads/2017/03/Queering-Reproductive-Justice-A-Toolkit-FINAL.pdf [https://perma.cc/5L88-TMXB].Show More The reproductive oppression experienced by disabled people is deeply entrenched in our laws, in our policies, and perhaps most importantly, in our collective conscience. To transform our society into one that respects and supports reproductive freedom for people with disabilities, therefore, the systems that propagate these injustices must be entirely dismantled.

This Essay responds to the persistent reproductive oppression experienced by people with disabilities by proposing a vision to help activists, legal professionals, scholars, and policymakers conceive of and articulate the basic contours of a paradigm shift that supports the coalescence of the reproductive justice and disability justice movements. Part I examines the social context, institutions, and history that perpetuate reproductive oppression among people with disabilities in the United States. It describes the origins of weaponizing reproduction to subjugate disabled people and contemporary examples of such injustice. Part II explores two complementary frameworks for analyzing and confronting the reproductive oppression of disabled people: reproductive justice and disability justice. Finally, guided by reproductive justice and disability justice, Part III proposes four guiding principles necessary for a jurisprudential and legislative agenda to achieve and deliver reproductive justice for people with disabilities.

I. Persistent Reproductive Injustice

The recent revelations of the reproductive control being exerted by Britney Spears’s conservator must be situated within the nation’s long and reprehensible history of weaponizing reproduction to oppress disabled people, as well as other marginalized communities. This Part limns the ways in which laws and policies have led to the reproductive oppression of people with disabilities—particularly girls and women with disabilities11 11.Roberta Cepko, Involuntary Sterilization of Mentally Disabled Women, 8Berkeley Women’s L.J. 122, 123–24 (1993) (“Only a few of the dozens of cases regarding involuntary sterilizations involve the sterilization of males. Therefore, sterilization practice is interwoven with the issue of control of female reproductive rights and, to some extent, of female sexual expression.”). But seeIn reGuardianship of Kennedy, 845 N.W.2d 707, 708–09 (Iowa 2014) (evaluating an appeal brought by a 21-year-old man with intellectual disabilities challenging the legality of a vasectomy his guardian had arranged for him without obtaining a court order); Renu Barton-Hanson, Sterilization of Men with Intellectual Disabilities: Whose Best Interest Is It Anyway?, 15 Med. L. Int’l 49, 57–58 (2015) (examining recent cases concerning sterilization of men with intellectual disabilities and noting the frequent justification as purportedly promoting sexual freedom).Show More—beginning with the eugenics movement. Without attempting to provide a complete description of the myriad ways in which reproduction has been weaponized to subjugate disabled people, this Part highlights examples of how these practices have lawfully endured over time, focusing primarily on contemporary practices.

A. Historical Reproductive Injustice

The United States has a horrible history of preventing disabled people from controlling their destinies, including enacting laws and policies restricting their reproductive decision-making. During the eugenics movement of the early 1900s, more than thirty states passed involuntary sterilization laws, postulating that people with disabilities and other marginalized communities were socially inadequate and should be prevented from procreating.12 12.See Eric M. Jaegers, Note, Modern Judicial Treatment of Procreative Rights of Developmentally Disabled Persons: Equal Rights to Procreation and Sterilization, 31 U. Louisville J. Fam. L. 947, 948, 953–54 (1993) (“The purpose of these laws was to protect and streamline society by preventing reproduction by those deemed socially or mentally inferior.”).Show More This line of reasoning underscored the infamous 1927 Buck v. Bell decision.13 13.274 U.S. 200 (1927).Show More Carrie Buck was purportedly a “feeble minded” woman institutionalized in Virginia.14 14.Id. at 205; see also Stephen Jay Gould, Carrie Buck’s Daughter, 2 Const. Comment.331, 336 (1985) (asserting that Buck was not “feebleminded” but rather institutionalized to hide her rape).Show More She was likewise the daughter of a “feeble minded” woman committed to the same institution.15 15.Buck, 274 U.S. at 205; Gould, supra note 14, at 334.Show More At seventeen years old, Carrie Buck became pregnant after being raped; her daughter Vivian was also deemed “feebleminded.”16 16.Gould, supra note 14, at 333, 336; Buck, 274 U.S. at 205.Show More After Vivian’s birth, the institution sought to sterilize Carrie Buck in accordance with Virginia’s compulsory sterilization statute.17 17.Buck, 274 U.S. at 205–06; Gould, supra note 14, at 331.Show More It should be noted that Vivian was removed from her mother after birth and placed in a foster home.18 18.Paul A. Lombardo, Three Generations, No Imbeciles: Eugenics, the Supreme Court, and Buck v. Bell 104–05 (2008).Show More Following a series of appeals, the law was upheld as constitutional in part on the grounds that it served “the best interests of the patients and of society.”19 19.Buck, 274 U.S. at 206–08.Show More Concluding this historical decision, Justice Oliver Wendell Holmes, Jr. declared, “It is better for all the world, if . . . society can prevent those who are manifestly unfit from continuing their kind.”20 20.Id. at 207.Show More During the twentieth century, as many as 70,000 Americans, many of whom were people of color or whom had disabilities, were sterilized.21 21.Fresh Air, The Supreme Court Ruling That Led to 70,000 Forced Sterilizations, NPR (Mar. 17, 2016), https://www.npr.org/sections/health-shots/2016/03/07/469478098/the-supreme-court-ruling-that-led-to-70-000-forced-sterilizations [https://perma.cc/5KYD-Z79X].Show More Notably, Buck v. Bell has never been overturned.22 22.Fifteen years after Buck v. Bell was decided, the Supreme Court struck down an Oklahoma law requiring that people with two or more convictions for felonious offenses be sterilized. Skinner v. Oklahoma, 316 U.S. 535, 536–37, 543 (1942). Although both Skinner and Buck concern involuntary sterilization statutes, Skinner’s analysis took a narrower focus, relating only to the punitive sterilization of criminals, thereby avoiding addressing the forced sterilization of people with disabilities. Id. at 542–43.Show More

Laws forbidding people with disabilities from marrying were another hallmark of the eugenics movement.23 23.Brooke Pietrzak, Marriage Laws and People with Mental Retardation: A Continuing History of Second Class Treatment, 17 Dev. Mental Health L. 1, 34–35 (1997).Show More Specifically, three eugenics-based justifications were put forth to advance marriage restrictions: “the potential children must be protected; people with [disabilities] themselves must be protected; and society at large must be protected.”24 24.Id. at 35.Show More For example, a Connecticut law banned “epileptics, imbeciles, and feebleminded persons” from marrying or having extramarital sexual relations before the age of forty-five.25 25.Robert J. Cynkar, Buck v. Bell: “Felt Necessities” v. Fundamental Values?, 81 Colum. L. Rev. 1418, 1432 (1981).Show More In 1974, a study found that over forty states had laws preventing people with intellectual disabilities from marrying.26 26.President’s Comm. on Mental Retardation, OHD 74-21002, Silent Minority 33 (1974).Show More The most recent systematic investigation of these statutes was undertaken in 1997 and found that thirty-three states still had laws restricting people with intellectual or psychiatric disabilities from marrying.27 27.Pietrzak, supra note 23, at 1–2. Although no known studies have systematically examined marriage laws as they apply to people with disabilities, scholars contend that these statutes continue to exist in some states. Michael E. Waterstone, Disability Constitutional Law, 63 Emory L.J. 527, 548–49 (2014).Show More

B. Contemporary Reproductive Injustice

As Britney Spears’s recent testimony demonstrates, people with disabilities’ reproductive freedom continues to be controlled in a multitude of ways. For example, while nearly all states have repealed their involuntary sterilization laws, most states still permit sterilization with prior judicial authorization.28 28.See Vanessa Volz, Note, A Matter of Choice: Women with Disabilities, Sterilization, and Reproductive Autonomy in the Twenty-First Century, 27 Women’s Rts. L. Rep. 203, 207–08 (2006).Show More Recently, the parents of Mary Moe,29 29.Mary Moe is a pseudonym; Massachusetts General Law requires that informed consent proceedings for an abortion be kept confidential. Mass. Gen. Laws ch. 112, § 12R (2020).Show More a 32-year-old pregnant woman with a psychiatric disability, petitioned a Massachusetts court for guardianship over Mary Moe to consent to an abortion.30 30.In re Guardianship of Mary Moe, 960 N.E.2d 350, 352 (Mass. App. Ct. 2012).Show More Although Mary Moe vehemently opposed abortion, the trial court appointed her parents as co-guardians and authorized that Mary Moe be “coaxed, bribed, or even enticed . . . by ruse” into a hospital for an abortion.31 31.Id. at 353 (quoting the family court’s decision).Show More Further, the trial judge ordered sua sponte, and without notice, that Mary Moe be sterilized “to avoid this painful situation from recurring in the future.”32 32.Id. (quoting the family court’s decision).Show More Eventually, the decision was reversed on appeal, with the appellate court noting in regard to the sterilization order, “No party requested this measure, none of the attendant procedural requirements has been met, and the judge appears to have simply produced the requirement out of thin air.”33 33.Id. at 355.Show More Although Moe’s case had a positive outcome consistent with her articulated desires, her case demonstrates how disabled people experience threats to their reproductive freedom even with supposed judicial protections.

The “Ashley X” case provides another disturbing example of how the reproductive freedom of people with disabilities is subordinated. Ashley was a young girl with intellectual and physical disabilities.34 34.Daniel F. Gunther & Douglas S. Diekema, Attenuating Growth in Children with Profound Developmental Disability: A New Approach to an Old Dilemma, 160 Archives Pediatrics & Adolescent Med. 1013, 1014 (2006); Marcia H. Rioux & Lora Patton, Beyond Legal Smokescreens: Applying a Human Rights Analysis to Sterilization Jurisprudence, in Critical Perspectives on Human Rights and Disability Law 243, 243–44 (Marcia H. Rioux, Lee Ann Basser & Melinda Jones eds., 2011).Show More In 2004, at age six, a Washington hospital, with Ashley’s parents’ permission, performed a series of procedures, including growth attenuation via hormone therapy, a hysterectomy, and bilateral breast bud removal.35 35.Gunther & Diekema, supranote 34; Rioux & Patton, supra note 34, at 244.Show More Her physicians and family justified the permanent alteration of her body by arguing that the procedures ensured “the best possible quality of life,” by enabling her to be more easily cared for by her family, while also allowing her to “retain more dignity in a body that is healthier, more of a comfort to her, and more suited to her state of development.”36 36.The “Ashley Treatment”, Towards a Better Quality of Life for “Pillow Angels”, at 3, 12 (Mar. 17, 2012), http://pillowangel.org/Ashley%20Treatment.pdf [https://perma.cc/8E3Z-VCEQ] (the document is authored by: “Ashley’s Mom and Dad”).Show More Further, Ashley’s parents asserted, “Ashley has no need for her uterus since she will not be bearing children,”37 37.Id. at 10.Show More and her physicians contended that the hysterectomy benefited both Ashley and her family because it “eliminate[d] the complications of menses.”38 38.Gunther & Diekema, supranote 34, at 1015.Show More Thus, Ashley’s “best interest was equated with her parents’ ability to maintain her at home and being easily able to carry and move her.”39 39.Rioux & Patton, supra note 34, at 244–45.Show More Notably, Ashley’s parents successfully sought these procedures with just the authorization of an internal ethics board and not through adjudication.40 40.Id. at 244.Show More Years later, an investigation revealed that the hospital had violated state law in this matter.41 41.Amy Burkholder, Report: ‘Pillow Angel’ Surgery Broke Law, CNN (May 8, 2007), http://www.cnn.com/2007/HEALTH/05/08/ashley.ruling/index.html [https://perma.cc/Z8RD-LF78] (“Children’s Hospital, in acknowledging its error, said that beyond implementing changes to ensure that sterilization of disabled children doesn’t happen again without a court order, it will seek court approval for other procedures involved in the controversial growth attenuation therapy.”).Show More Nonetheless, the “Ashley Treatment” remains accepted globally, with more than 100 families estimated to have subjected their children to similar procedures while thousands more are said to have considered it.42 42.Ed Pilkington & Karen McVeigh, ‘Ashley Treatment’ on the Rise Amid Concerns from Disability Rights Groups, The Guardian (Mar. 15, 2012) http://www.guardian.co.uk/society/‌2012/mar/15/ashley-treatment-rise-amid-concerns/ [https://perma.cc/B5WF-ENKY].Show More Thus, “[i]f the parents and doctors are all on board, these sorts of sterilization decisions can easily fly under the radar and evade mechanisms of legal accountability.”43 43.Samuel R. Bagenstos, Disability and Reproductive Justice, 14 Harv. L. & Pol’y Rev. 273, 289 (2020).Show More

Sterilization remains a standard procedure for many people with disabilities. Indeed, several recent studies have found that disabled women, especially those with intellectual disabilities, are significantly more likely than nondisabled women to be sterilized and at younger ages.44 44.See Justine P. Wu et al., Female Sterilization Is More Common Among Women with Physical and/or Sensory Disabilities than Women Without Disabilities in the United States, 10 Disability & Health J. 400, 403 (2017); William Mosher et al., Contraceptive Use by Disability Status: New National Estimates from the National Survey of Family Growth, 97 Contraception 552, 555 (2018); Henan Li et al., Female Sterilization and Cognitive Disability in the United States, 2011–2015, 132 Obstetrics & Gynecology 559, 561 (2018).Show More Further, today, sterilization of people with disabilities is primarily “driven by parents, guardians, and social service providers who are uneasy . . . [that] they will incur the additional burden of caring for the offspring.”45 45.Beverly Horsburgh, Schrödinger’s Cat, Eugenics, and the Compulsory Sterilization of Welfare Mothers: Deconstructing an Old/New Rhetoric and Constructing the Reproductive Right to Natality for Low-Income Women of Color, 17 Cardozo L. Rev. 531, 572 (1996).Show More Tellingly, in petitions to courts for approval to sterilize people with disabilities or terminate their pregnancies, guardians often cite cost as a prevailing factor.46 46.Roberta Cepko, Involuntary Sterilization of Mentally Disabled Women, 8 Berkeley Women’s L.J. 122, 126 (1993).Show More In fact, in authorizing the sterilization of disabled people, courts often advance analogous presumptions to those put forward in Buck, such as that people with disabilities are “incapable of adequate parenting” and their children will “inevitably be a financial burden on the state.”47 47.Id.Show More Thus, while the “[e]ugenic rhetoric might have declined,” the “eugenic motivations and eugenic laws did not.”48 48.Mary Ziegler, Reinventing Eugenics: Reproductive Choice and Law Reform After World War II, 14 Cardozo J.L. & Gender 319, 350 (2008).Show More While sterilization should unquestionably be an option for permanent contraception for people who choose it, given the country’s history, it is not difficult to imagine that many of these sterilizations may be coerced.

Inadequate access to sexual and reproductive health services and information, including contraception, also thwarts disabled people’s reproductive autonomy. As Britney Spears’s experiences demonstrate, there is significant tension concerning people with disabilities and contraception. On the one hand, research indicates that disabled women have less contraception knowledge and lower contraception use compared to nondisabled women.49 49.Robyn M. Powell, Susan L. Parish, Monika Mitra, & Eliana Rosenthal, Role of Family Caregivers Regarding Sexual and Reproductive Health for Women and Girls with Intellectual Disability: A Scoping Review, 64 J. Intell. Disability Rsch. 131, 132 (2020) (citing studies).Show More On the other hand, like Britney Spears, some women with disabilities are forced by family members or guardians to use contraception out of fear that their disabled relative will become pregnant.50 50.Id. at 151 (citing studies).Show More In these instances, Britney Spears and others are in effect sterilized since they cannot reproduce due to forced contraception. Thus, some disabled people have inadequate access while other people are denied contraceptive decision-making. Extant research also suggests that pregnant women with disabilities experience higher risks of complications and poorer outcomes than nondisabled women because of inadequate access to health care.51 51.Monika Mitra, Linda M. Long-Bellil, Suzanne C. Smeltzer & Lisa I. Iezzoni, A Perinatal Health Framework for Women with Physical Disabilities, 8 Disability Health J.499, 499 (2015) (citing studies); Lesley A. Tarasoff et al., Health of Newborns and Infants Born to Women with Disabilities: A Meta-Analysis, 146 Pediatrics, e20201635, at 2 (2020) (citing studies); Ilhom Akobirshoev, Susan L. Parish, Monika Mitra & Eliana Rosenthal, Birth Outcomes Among US Women with Intellectual and Developmental Disabilities, 10 Disability & Health J. 406, 409tbl. 2 (2017) (comparing maternal and infant outcomes of women with and without intellectual disabilities).Show More Indeed, adverse perinatal outcomes are often the result of physical barriers, communication barriers, and programmatic barriers, including healthcare providers’ negative attitudes about sexuality and reproduction among disabled women.52 52.Robyn M. Powell, Erin E. Andrews & Kara B. Ayers, Becoming a Disabled Parent: Eliminating Access Barriers to Health Care Before, During, and After Pregnancy, 96 Tul. L. Rev. (forthcoming 2021) (manuscript at 2), https://papers.ssrn.com/sol3/papers.cfm?abstract‌_id=3808017 [https://perma.cc/3JD2-WD5G] (interviewing disabled parents about their experiences accessing health care services).Show More

Finally, prejudice and speculation about the competencies of parents with disabilities—emulating those raised during the eugenics movement—have led to contemporary discriminatory child welfare, family law, and adoption and foster care policies and practices that assume parental unfitness.53 53.See generally Nat’l Council on Disability, Rocking the Cradle: Ensuring the Rights of Parents with Disabilities and Their Children 15 (2012) [hereinafter “Rocking the Cradle”], https://www.ncd.gov/sites/default/files/Documents/NCD_Parenting_508_0.pdf [https://perma.cc/UB7C-XMMG] (“The report provides a comprehensive review of the barriers and facilitators people with diverse disabilities—including intellectual and developmental, psychiatric, sensory, and physical disabilities—experience when exercising their fundamental right to create and maintain families, as well as persistent, systemic, and pervasive discrimination against parents with disabilities. The report analyzes how U.S. disability law and policy apply to parents with disabilities in the child welfare and family law systems, and the disparate treatment of parents with disabilities and their children. Examination of the impediments prospective parents with disabilities encounter when accessing assisted reproductive technologies or adopting provides further examples of the need for comprehensive protection of these rights.”).Show More For example, disabled parents experience disproportionate rates of child welfare system involvement and loss of parental rights.54 54.Id. at 16.Show More Parents with disabilities also contend with state statutes that include disability as grounds for the termination of parental rights.55 55.Id. at 265–300 (finding that over two-thirds of state dependency laws list parental disability as grounds for termination of parental rights).Show More Family courts often deny parents with disabilities custody of or visitation with their children.56 56.Robyn M. Powell, Family Law, Parents with Disabilities, and the Americans with Disabilities Act, 57 Fam. Ct. Rev. 37, 38 (2019) (“Indeed, parents with disabilities contend with substantial and persistent bias within the family law system, often threatening their custody and visitation rights.”).Show More For example, Britney Spears has had limited access to her children since she was placed under conservatorship.57 57.Laura Rizzo, Inside Britney Spears’ Custody Battle with Kevin Federline for Kids Sean Preston and Jayden, Life & Style Mag. (June 24, 2021), https://www.lifeandstylemag.com/‌posts/does-britney-spears-have-custody-of-kids-preston-and-jayden/ [https://perma.cc/EQY3-9KZ3] (explaining that Britney Spears had 30% custody at the time and was reportedly seeking 50%).Show More Meanwhile, foster care and adoption agencies regularly discriminate against prospective disabled parents based on presumptions that they are unfit to care for children.58 58.Rocking the Cradle,supranote 53, at 153–66 (describing the ways prospective parents with disabilities experience discrimination within the foster care and adoption system).Show More

II. Reproductive Justice and Disability Justice

Britney Spears’s tragic experiences are a stark reminder that nearly 100 years after the infamous Buck v. Bell decision, reproductive freedom is still denied to far too many disabled people, often because of discriminatory laws and policies. Thus, attention by activists, legal professionals, scholars, and policymakers to these matters is urgently needed. The four guiding principles for achieving reproductive justice for disabled people proposed in Part III infra are guided by two complementary frameworks: reproductive justice and disability justice. Both reproductive justice and disability justice are intersectional social movements, theories, and praxes which provide important lenses for analyzing and responding to the ongoing weaponization of reproduction to subjugate people with disabilities. This Part briefly describes each framework.

A. Reproductive Justice

Reproductive justice is based on the international human rights framework. It draws from reproductive rights and social justice. Reproductive justice was first “conceived in 1994 by feminists of color to conceptualize reproductive rights struggles embedded in social justice organizing that simultaneously challenged racism and classism, among other oppressions.”59 59.Zakiya Luna & Kristin Luker, Reproductive Justice, 9 Ann. Rev. L. & Soc. Sci. 327, 328 (2013).Show More According to Loretta Ross, co-founder of the SisterSong Women of Color Reproductive Health Collective, “[t]he Reproductive Justice framework analyzes how the ability of any woman to determine her own reproductive destiny is linked directly to the conditions in her community—and these conditions are not just a matter of individual choice and access.”60 60.Loretta Ross, What is Reproductive Justice?, in Reproductive Justice Briefing Book: A Primer on Reproductive Justice and Social Change 4, https://www.law.berkeley.edu/php-programs/courses/fileDL.php?fID=4051 [https://perma.cc/5SSG-QVSD] (last visited Oct. 1, 2021) [hereinafter “Reproductive Justice Briefing Book”].Show More

Drawing from intersectionality, which “illustrate[s] how racial and gender oppression interact in the lives of Black women,”61 61.Loretta J. Ross & Rickie Solinger, Reproductive Justice: An Introduction 73 (2017).Show More reproductive justice is “based on the understanding that the impacts of race, class, gender, and sexual identity oppressions are not additive but integrative,”62 62.Id. at 74.Show More and understands that only a holistic lens can address them. Accordingly, reproductive justice centers on “the ways in which aspects of social status and social identity (e.g., age, race/ethnicity, socioeconomic class, sexual orientation, gender identity, religion, ability) combine to impact women’s experiences.”63 63.Joan C. Chrisler, Introduction: A Global Approach to Reproductive Justice—Psychosocial and Legal Aspects and Implications, 20 Wm. & Mary J. Women & L. 1, 4 (2013).Show More In other words, reproductive justice recognizes the ways in which intersecting factors, such as race and disability, constrain the reproductive freedom of marginalized communities.

Reproductive justice emerged as a movement because women of color and other marginalized communities felt that the reproductive rights movement disregarded their needs and experiences.64 64.Sarah London, Reproductive Justice: Developing a Lawyering Model, 13 Berkeley J. Afr.-Am. L. & Pol’y 71, 75 (2011).Show More Reproductive justice, therefore, goes beyond our traditional understanding of reproductive rights in two critical ways. First, reproductive justice recognizes the importance of choice while also considering the broader social, legal, and institutional structures that affect people’s reproductive decision-making.65 65.Reproductive Justice Briefing Book, supranote 60, at 4. (“Moving beyond a demand for privacy and respect for individual decision making to include the social supports necessary for our individual decisions to be optimally realized, this framework also includes obligations from our government for protecting women’s human rights. Our options for making choices have to be safe, affordable and accessible, three minimal cornerstones of government support for all individual life decisions.”).Show More Second, and relatedly, reproductive justice applies to all aspects of reproductive freedom instead of just abortion rights.66 66.Id. (“Instead of focusing on the means—a divisive debate on abortion and birth control that neglects the real-life experiences of women and girls— the Reproductive Justice analysis focuses on the ends: better lives for women, healthier families, and sustainable communities.”).Show More Accordingly, reproductive justice “includes not only a woman’s right not to have a child, but also the right to have children and to raise them with dignity in safe, healthy, and supportive environments.”67 67.Dorothy Roberts, Reproductive Justice, Not Just Rights, Dissent (Fall 2015), https://www.dissentmagazine.org/article/reproductive-justice-not-just-rights [https://perma.cc/C37U-GS88]; see also Luna & Luker, supra note 59, at 343 (“[R]eproductive justice is equally about the right to not have children, the right to have children, the right to parent with dignity, and the means to achieve these rights.”).Show More Thus, “[b]y moving beyond the traditional pro-choice narrative and into the reality of lived experiences within the women’s communities, the reproductive justice movement focuses on the inequality among groups of women that inhibits access to these rights for some more than others.”68 68.Seema Mohapatra, Law in the Time of Zika: Disability Rights and Reproductive Justice Collide, 84 Brook. L. Rev. 325, 343 (2019).Show More In other words, reproductive justice challenges the pro-choice/pro-life dichotomy, viewing “choice” as something that divides people in policy and practice because it accepts that all people have an equal ability to make the same choices.

Reproductive justice necessitates “an integrated approach that draws on constitutional protections and movement-based policy strategies.”69 69.Priscilla A. Ocen, Incapacitating Motherhood, 51 U.C. Davis L. Rev. 2191, 2240 (2018).Show More Further, reproductive justice recognizes that “many kinds of laws shape the conditions in which women conceive and bear children.”70 70.Reva B. Siegel, ProChoiceLife: Asking Who Protects Life and How—and Why It Matters in Law and Politics, 93 Ind. L.J. 207, 210 (2018).Show More Reproductive justice emphasizes an affirmative government role “in ensuring that all women have the social, political, and economic power and resources to make the best decisions for themselves and their families.”71 71.Sujatha Jesudason & Julia Epstein, Editorial, The Paradox of Disability in Abortion Debates: Bringing the Pro-Choice and Disability Rights Communities Together, 84 Contraception 541, 542 (2011).Show More Rather than relying only on litigation and attorneys, reproductive justice also engages in grassroots and community organizing.72 72.London, supra note 64, at 71–72.Show More

Extant legal scholarship has demonstrated the importance of applying reproductive justice to dissect and address the reproductive oppression of people with disabilities.73 73.See, e.g., Robyn M. Powell, Confronting Eugenics Means Finally Confronting Its Ableist Roots, 27 Wm. & Mary J. Race, Gender & Soc. Just. 607, 628–31 (2021) (examining the history of eugenics in the United States and calling for a justice-based approach to address the role of ableism in eugenics); Bagenstos, supra note 43, at 279–86; Mary Ziegler, The Disability Politics of Abortion, 2017 Utah L. Rev. 587, 627–30 (2017) (describing ways in which reproductive justice should be used to advocate for programs to support people with disabilities as a mechanism for reducing disability-based abortions); Mohapatra, supra note 68, at 325–27 (2019) (using the Zika virus to highlight the tensions between reproductive rights and disability rights); Dorothy Roberts & Sujatha Jesudason, Movement Intersectionality: The Case of Race, Gender, Disability, and Genetic Technologies, 10 Du Bois Rev. 313, 316–18 (2013) (proposing how organizing based on an intersectional analysis can help facilitate alliances between reproductive justice, racial justice, women’s rights, and disability rights activists to develop strategies to address reproductive genetic technologies); Roberts, supra note 67 (describing the failures of the reproductive rights movement to respond to the needs of marginalized communities, including people with disabilities, and calling for a reproductive justice framework instead).Show More As Samuel Bagenstos notes, “[j]ust as ‘regulating Black women’s reproductive decisions has been a central aspect of racial oppression in America,’ regulating disabled people’s reproductive decisions has been a central aspect of disability oppression in America.”74 74.Bagenstos, supranote 43, at 285 (quoting Dorothy Roberts, Killing the Black Body: Race, Reproduction, and the Meaning of Liberty 6 (1997)).Show More Hence, reproductive justice can be engaged to confront the myriad oppressions that prohibit people with disabilities from enjoying their reproductive freedoms by confronting and disrupting the longstanding systems that propagate reproductive injustice.

B. Disability Justice

Disability justice is an equally important lens for dislocating the nation’s ongoing reproductive oppression of people with disabilities. Indeed, “reproductive justice is disability justice.”75 75.Sins Invalid, Skin, Tooth, and Bone—The Basis of Movement is Our People: A Disability Justice Primer 59 (2d ed. 2019) (capital letters omitted).Show More Specifically, disability justice provides an important framework for examining ableism as it relates to other forms of oppression and identity. Disability justice was first conceived in 2005 by the Disability Justice Collaborative, a group of Black, brown, queer, and trans people.76 76.Leah Lakshmi Piepzna-Samarasinha, Care Work: Dreaming Disability Justice 11 (2018).Show More Disability justice includes ten fundamental principles needed to achieve a truly inclusive and just society: “intersectionality . . . leadership of those most impacted . . . anti-capitalist politics . . . cross-movement solidarity . . . recognizing wholeness . . . sustainability . . . commitment to cross-disability solidarity . . . interdependence . . . collective access . . . [and] collective liberation.”77 77.Sins Invalid, supranote 75, at 22–26 (capital letters omitted).Show More

Similar to reproductive justice, disability justice distinguishes itself from a rights-based approach and calls for a holistic approach to disrupting the longstanding systems that cause oppression. According to Sins Invalid, a disability justice performance project, “Rights-based strategies often address the symptoms of inequity but not the root. The root of disability oppression is ableism and we must work to understand it, combat it, and create alternative practices rooted in justice.”78 78.Id. at 15, 47.Show More Thus, “[w]here disability rights seeks to change social conditions for some disabled people via law and policy, disability justice moves beyond law and policy: It seeks to radically transform social conditions and norms in order to affirm and support all people’s inherent right to live and thrive.”79 79.Talila “TL” Lewis, Disability Justice Is an Essential Part of Abolishing Police and Prisons, Level (Oct. 7, 2020), https://level.medium.com/disability-justice-is-an-essential-part-of-abolishing-police-and-prisons-2b4a019b5730 [https://perma.cc/J5QL-9UNR].Show More In other words, “[a]t its core, the disability rights framework centers people who can achieve status, power and access through a legal or rights-based framework, which we know is not possible for many disabled people, or appropriate for all situations.”80 80.Sins Invalid, supra note 75, at 15.Show More Disability justice is based on community and grassroots organizing.

Further, like reproductive justice, intersectionality81 81.In 1989, Kimberlé Crenshaw coined the term “intersectionality” to help explain the oppression of African-American women. SeeKimberlé Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics, 1 U. Chi. Legal F. 139, 140 (1989). Since then, intersectionality has been used to study how people who are members of multiple socially marginalized communities experience discrimination, including people with disabilities. See, e.g., Beth Ribet, Surfacing Disability Through a Critical Race Theoretical Paradigm, 2 Geo. J.L. & Mod. Critical Race Persps. 209, 211–22 (2010).Show More is a fundamental aspect of disability justice. Indeed, disability justice was developed as a “movement-building framework that would center the lives, needs, and organizing strategies of disabled queer and trans and/or Black and brown people marginalized from mainstream disability rights organizing’s white-dominated, single-issue focus.”82 82.Piepzna-Samarasinha, supra note 76, at 11.Show More Notably, “disability justice values an intersectional analysis which requires us to consider the complexities of reproductive justice in the context of ableism.”83 83.Sins Invalid, Reproductive Justice is Disability Justice 1, https://www.sinsinvalid.‌org/s/Reproductive_Justice_is_Disability_Justice.pdf [https://perma.cc/6XUF-Z8JL] (last visited June 26, 2021).Show More For example, disabled people at the intersection of other marginalized identities, such as disabled people of color or LGBTQ+ disabled people, experience even greater reproductive oppression. Hence, “[p]eople who exist at the intersection of race and disability experience a multi-dimensional form of discrimination that is continually at risk of being flattened to a single dimension—either race or disability—due to the limitations of our collective understanding of intersectionality.”84 84.Alice Abrokwa, “When They Enter, We All Enter”: Opening the Door to Intersectional Discrimination Claims Based on Race and Disability, 24 Mich. J. Race & L.15, 20–21 (2018).Show More

III. Achieving Reproductive Justice: Four Guiding Principles

“Big problems require big solutions.” –Ruth Wilson Gilmore85 85.Ruth Wilson Gilmore, Foreword to Dan Berger, The Struggle Within: Prisons, Political Prisoners, and Mass Movements in the United States viii (2014).Show More

The ongoing reproductive control of Britney Spears exposes the persistent subordination of people with disabilities. Moreover, it shines a light on the urgent need for a long-overdue conversation: How does the United States finally confront its deplorable history of weaponizing reproduction to subjugate disabled people? As this Essay demonstrates, the reproductive oppression experienced by people with disabilities is deeply entrenched in our laws, in our policies, and in our collective conscience. Indeed, the problems of reproductive oppression are complex and require an interdisciplinary and interprofessional response that engages all fields of expertise, including law, medicine, public health, social work, and organizing, among others.

Below, I propose four guiding principles that I believe are necessary for a jurisprudential and legislative approach to achieving reproductive justice for people with disabilities. First, achieving reproductive justice for disabled people requires activists, scholars, legal professionals, and policymakers to actively engage people with disabilities. Second, legal and policy responses must be developed and implemented to ensure people with disabilities’ rights to autonomy and self-determination are protected. Third, sexual and reproductive health services and information must be accessible and available for people with disabilities. Finally, people with disabilities and their families must be guaranteed rights, justice, and wellness for themselves and their families.

These guiding principles, which are grounded in the extant legal and social science scholarship, are foundational elements of more significant legal and policy changes that will need to be fleshed out in considerable detail. They are outlined in broad strokes to help facilitate a discussion among activists, legal professionals, scholars, and policymakers about the basic contours of a paradigm shift that supports the coalescence of reproductive justice and disability justice. Disrupting the longstanding systems that oppress disabled people’s reproductive freedom will undeniably require a multifaceted approach. However, the need for such action could not be more timely or clear.

A. Center People with Disabilities as Leaders

Both reproductive justice and disability justice underscore the importance of centering people from marginalized communities as leaders in developing and implementing laws and policies that impact them. Indeed, a fundamental aspect of justice-based approaches is “listening to, engaging, and developing affected communities.”86 86.Emily A. Benfer, Health Justice: A Framework (and Call to Action) for the Elimination of Health Inequity and Social Injustice, 65 Am. U. L. Rev. 275, 338 (2015) (describing the importance of actively engaging socially marginalized communities to address inequities).Show More According to Sins Invalid, “By centering the leadership of those most impacted, we keep ourselves grounded in real-world problems and find creative strategies for resistance.”87 87.Sins Invalid,supra note 75, at 23.Show More Centering disabled people as leaders is also consistent with the disability community’s mantra, “nothing about us, without us,” which emphasizes that people with disabilities should be actively involved in legal and policy efforts that affect them.88 88.James I. Charlton, Nothing About Us Without Us: Disability Oppression and Empowerment 3 (1998).Show More Undeniably, when the voices of marginalized communities, including people with disabilities, are centered, solutions that benefit all members of society are conceived.

Cross-movement organizing is an important aspect of disrupting the reproductive oppression of disabled people. Historically, there have been significant tensions—particularly concerning issues of prenatal genetic testing for markers of disability and abortion on grounds of fetal disability—between the disability rights and reproductive rights movements.89 89.Bagenstos, supra note 43, at 280–81.Show More However, as the Center for Reproductive Rights notes, “[t]he cost of ignoring tensions between the disability rights and reproductive rights movements is high.”90 90.Center for Reproductive Rights, Shifting the Frame on Disability Rights for the U.S. Reproductive Rights Movement 2 (2017), https://reproductiverights.org/wp-content/uploads/‌2020/12/Disability-Briefing-Paper-FINAL.pdf [https://perma.cc/52GS-T2NV].Show More Accordingly, the Center for Reproductive Rights intentionally developed partnerships with disability rights groups in an effort to begin bridging the gap between the movements.91 91.See id. at 1–2.Show More These discussions are an important reminder that the movements must work collectively to confront the subjugation of disabled people’s reproductive freedom, and that intentionally including people with disabilities is critical to developing legal and policy responses.

Accordingly, the first guiding principle to achieving reproductive justice for disabled people requires activists, scholars, legal professionals, and policymakers to actively engage people with disabilities, especially disabled people of color and LGBTQ+ disabled people, in leading legal and policy responses to address reproductive oppression. Such engagement will require an understanding of and respect for disabled people sharing their lived experiences and should elevate people with disabilities to leadership positions within movements. Because disabled people are the experts of their lives, centering them will lead to legal and policy responses that are disability-competent and address the actual reproductive needs of people with disabilities.

As previously explained, centering disabled people as leaders should also lead to cross-movement organizing and a broader effort to foster alliances and grow partnerships among the impacted communities. Cross-movement solidarity will produce progress toward specific policy goals and increase and enhance the dignity of people who can value one another’s shared humanity. Practically, this means that reproductive justice activists must make concerted efforts to include disabled people in their work. Similarly, disability rights and justice activists must recognize the diversity of the disability community and ensure that disabled people from marginalized communities hold leadership roles within the movements. To achieve reproductive justice, disabled people, especially disabled people of color and LGBTQ+ people, must be centered in all legal and policy efforts.

B. Protect Autonomy and Self-Determination

As Britney Spears’s heartbreaking ordeal exposes, people with disabilities are often denied bodily autonomy and self-determination, which in turn can result in reproductive oppression. Constitutional doctrine relating to abortion is rooted in a principle of autonomy.92 92.See Pamela S. Karlan & Daniel R. Ortiz, In a Diffident Voice: Relational Feminism, Abortion Rights, and the Feminist Legal Agenda, 87 Nw. U. L. Rev.858, 876 (1993) (“The language of autonomy has provided the central rationale for protecting individual women’s control over the abortion decision.”).Show More Specifically, constitutional protections of abortion rights are rooted in the guarantee of “liberty” in the Due Process Clause of the Fourteenth Amendment.93 93.Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 844 (1992) (“Liberty finds no refuge in a jurisprudence of doubt. Yet 19 years after our holding [in Roe v. Wade] that the Constitution protects a woman’s right to terminate her pregnancy in its early stages . . . that definition of liberty is still questioned. Joining the respondents as amicus curiae, the United States, as it has done in five other cases in the last decade, again asks us to overrule Roe.”).Show More Indeed, the Supreme Court of the United States has held that the liberty protected by the U.S. Constitution involves freedom in making “the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy.”94 94.Id. at 851.Show More Likewise, a cornerstone of the disability rights movement is autonomy.95 95.Samuel R. Bagenstos & Margo Schlanger, Hedonic Damages, Hedonic Adaptation, and Disability, 60 Vand. L. Rev. 745, 795 (2007) (“[P]aternalism has historically been one of the most significant contributors to the disadvantage people with disabilities experience. Non-disabled parents, teachers, doctors, rehabilitation counselors, employers, and others have arrogated to themselves the prerogative to decide what is best for people with disabilities. In so doing, they have deprived people with disabilities of opportunities to work and participate in the community. They have denied people with disabilities the autonomy that consists in making one’s own choices. And they have denied people with disabilities the dignity of risk— the opportunity to develop their skills, test them in the world, and succeed or fail according to their talents.” (internal quotation marks omitted)).Show More Indeed, disabled people have continuously fought against paternalism and the notion that other people—namely, family members and professionals—are best equipped to make decisions for disabled people.96 96.Charlton, supra note 88, at 3 (“Control has universal appeal for [disability rights movement] activists because the needs of people with disabilities and the potential for meeting these needs are everywhere conditioned by a dependency born of powerlessness, poverty, degradation, and institutionalization. This dependency, saturated with paternalism, begins with the onset of disability and continues until death.”)Show More

Guardianship, also known as conservatorship in some states, is a draconian and antiquated system that has existed for centuries and robs disabled people of autonomy and self-determination.97 97.Candida Moss, The Romans, the Supreme Court, and Britney Spears—Conservatorship Abuse Has Been Happening for 2000 Years, The Daily Beast (June 26, 2021), https://www.thedailybeast.com/britney-spears-the-romans-and-the-supreme-court-conservatorship-abuse-has-been-happening-for-2000-years [https://perma.cc/7UJL-389G] (tracing the history of guardianship to Roman law).Show More According to disability justice advocates:

While the law varies from state to state, guardianship orders routinely authorize third parties to make decisions about the most personal and important decisions in an individual’s life—choices that impact the person’s own body and reproductive health; how and where they receive medical, psychiatric, and psychological treatment; how the money and resources they work to earn are spent; and even with whom they associate.98 98.Ctr. for Pub. Representation, Statement from Disability Justice and Supported Decision-Making Advocates: Britney Spears Spotlights the Need for Change Now (June 25, 2021), https://supporteddecisions.org/2021/06/25/britney-spears/ [https://perma.cc/SKK5-2HKH].Show More

Notably, like Britney Spears, many people under guardianship are forced to use contraception to prevent pregnancy.99 99.Sara Luterman, For Women Under Conservatorship, Forced Birth Control Is Routine, The Nation(July 15, 2021), https://www.thenation.com/article/society/conservatorship-iud-britney-spears/ [https://perma.cc/Q9WD-SSCC].Show More According to the National Council on Disability, an estimated 1.3 million people with disabilities currently have guardians.100 100.Nat’l Council on Disability, Beyond Guardianship: Toward Alternatives that Promote Greater Self-Determination 17 (2018), https://ncd.gov/sites/default/files/NCD_Guardianship_‌Report_Accessible.pdf [https://perma.cc/D8WG-5HBX].Show More

Although “[t]he guardianship system is designed as a last resort, applied only when an individual lacks capacity to make decisions,” there is “reason to believe that guardianships are imposed on many individuals without sufficient evidence of their decision-making incapacity and that, in some cases, disability alone appears to be used as a sufficient justification for the imposition of guardianship.”101 101.Nina A. Kohn, Jeremy A. Blumenthal & Amy T. Campbell, Supported Decision-Making: A Viable Alternative to Guardianship?, 117 Pa. St. L. Rev. 1111, 1117 (2013).Show More Consequently, the second guiding principle for achieving reproductive justice for disabled people requires the development and implementation of legal and policy responses that ensure people with disabilities’ autonomy and self-determination are protected. For example, disability rights advocates are pushing states to implement supported decision-making as a least restrictive alternative to guardianship.102 102.Ctr. for Pub. Representation, U.S. Supported Decision-Making Laws, https://supported‌decisions.org/resources-on-sdm/state-supported-decision-making-laws-and-court-decisions/ [https://perma.cc/L58P-TTEY] (last visited Sept. 2, 2021) (listing states that have implemented supported decision-making).Show More Broadly, supported decision-making provides people with disabilities greater autonomy in their choices while receiving assistance from people whom they choose and trust.103 103.Ctr. for Pub. Representation, About Supported Decision-Making, https://supported‌decisions.org/about-supported-decision-making/ [https://perma.cc/KG45-F327] (last visited June 25, 2021).Show More It “does not require court involvement and can be coupled with other legal tools, such as powers of attorney and advance health care directives, that promote self-determination and autonomy.”104 104.Ctr. for Pub. Representation, supra note 98.Show More In addition to states enacting supported decision-making, efforts are needed to thwart the “school-to-guardianship pipeline,” whereby schools encourage parents to attain guardianship of their children once they reach the age of majority.105 105.Nat’l Council on Disability, Turning Rights into Reality: How Guardianship and Alternatives Impact the Autonomy of People with Intellectual and Developmental Disabilities 29–36 (2019), https://ncd.gov/sites/default/files/NCD_Turning-Rights-into-Reality_508_0.‌pdf [https://perma.cc/H2PR-X7Y7].Show More In sum, to achieve reproductive justice, legal and policy efforts must protect the autonomy and self-determination of people with disabilities, including ensuring that they receive the least restrictive supports and abolishing guardianship.

C. Ensure Sexual and Reproductive Health Services and Information Are Accessible and Available to People with Disabilities

As described in Part II, disabled people experience a range of barriers to sexual and reproductive health services and information, often resulting in inadequate access and adverse outcomes.106 106.See supra Section II.B.Show More Although federal disability laws, including the Americans with Disabilities Act (“ADA”),107 107.Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101–12213.Show More Section 504 of the Rehabilitation Act of 1973 (“Section 504”),108 108.Rehabilitation Act of 1973, 29 U.S.C. §§ 701–796.Show More and Section 1557 of the Patient Protection and Affordable Care Act (“Section 1557”)109 109.Patient Protection and Affordable Care Act, 42 U.S.C. § 18116(a); 45 C.F.R §§ 92.102–105.Show More mandate that healthcare providers be accessible and prohibit disability-based discrimination, these laws are often violated.110 110.Powell, supranote 73, at 625–27 (describing federal disability laws’ application to matters concerning reproductive justice).Show More Moreover, disabled people often do not have access to adequate sexual and reproductive health information, such as sexuality education.111 111.Robyn M. Powell & Michael Ashley Stein, Persons with Disabilities and Their Sexual, Reproductive, and Parenting Rights: An International and Comparative Analysis, 11 Frontiers L. China 53, 57–58 (2016) (explaining the implications of disabled people not receiving sexuality education).Show More Without comprehensive information, people with disabilities are unable to make informed decisions about their reproductive wellbeing. Further, because disabled people are more likely to be poor and receive public benefits, policies such as the Hyde Amendment, which bars the use of federal Medicaid funds for abortion care,112 112.SeeHyde Amendment Codification Act, S. 142, 113th Cong. (2013) (originally passed in 1977);Alina Salganicoff, Laurie Sobel & Amrutha Ramaswamy, The Hyde Amendment and Coverage for Abortion Services, Kaiser Fam. Found.(Mar. 5, 2021), https://www.kff.org/womens-health-policy/issue-brief/the-hyde-amendment-and-coverage-for-abortion-services/ [https://perma.cc/NT7W-QL6W].Show More often inhibit their access to comprehensive sexual and reproductive health services.113 113.Rocking the Cradle,supranote 53, at 178 (noting that “Medicaid and Medicare [are] the primary health insurers for people with disabilities”).Show More

As such, the third guiding principle for achieving reproductive justice for disabled people necessitates ensuring that sexual and reproductive health services and information are accessible and available. Greater compliance with and enforcement of existing legal protections are urgently needed to ensure reproductive justice for people with disabilities. To that end, the United States Departments of Justice (DOJ) and Health and Human Services’ Office for Civil Rights (OCR) should prioritize the reproductive rights of people with disabilities, such as by investigating alleged violations of disability-based discrimination by reproductive health providers and enforcing the law as necessary.

Disabled people also need access to comprehensive and accessible information about sexuality and reproduction. For example, existing research indicates that people with disabilities may be at increased risk of exposure to HIV/AIDS due in part to limited access to education and information about prevention.114 114.Nora Ellen Groce et al., HIV Issues and People with Disabilities: A Review and Agenda for Research, 77 Soc. Sci. & Med. 31–37 (2013) (analyzing research about the intersection of HIV/AIDS and people with disabilities and calling for greater attention to the topic).Show More For people with intellectual disabilities, not receiving sexual education has led to high rates of sexually transmitted infections and sexual assaults, along with limited ability to report abuses because of lack of knowledge.115 115.Amy Swango-Wilson, Meaningful Sex Education Programs for Individuals with Intellectual/Developmental Disabilities, 29 Sexuality & Disability 113–16 (2011).Show More

Further, a health justice approach is needed, recognizing that the social determinants of health impact access to sexual and reproductive health services and information.116 116.See generallyBenfer, supra note 86 (explaining the social determinants of health and the health justice framework).Show More Developing and implementing laws and policies that are consistent with health justice will allow for addressing factors such as poverty and transportation and how they affect disabled people’s access to sexual and reproductive health services and information. Hence, by addressing the social determinants of health, people will have greater access to those services and information.

D. Guarantee Rights, Justice, and Wellness for People with Disabilities and Their Families

Finally, people with disabilities and their families encounter numerous laws and policies that threaten their rights, justice, and wellness. For example, consider a parent with a physical disability who is unemployed and receives monthly Supplemental Security Income (“SSI”) benefits of $794.117 117.Soc. Sec. Admin., SSI Federal Payment Amounts for 2021, https://www.ssa.gov/oact/‌cola/SSI.html [https://perma.cc/DW5R-6MY3] (last visited July 20, 2021).Show More She also receives Medicaid, which pays for in-home personal care assistants. Although she would like to work, at least part-time, draconian rules proscribe that she will lose her SSI benefits if she earns more than $1,310.118 118.Soc. Sec. Admin., Substantial Gainful Activity, https://www.ssa.‌gov/oact/cola/sga.html [https://perma.cc/9YWP-XS5G] (last visited September 2, 2021).Show More Since Medicaid eligibility in her state is tied to receipt of SSI benefits, she will also lose Medicaid and needed in-home supports. Thus, stringent federal and state rules force this mother to live in poverty.

Reproductive justice should not depend on where people live, how much they make, or who they are. And yet, as the above narrative illustrates, all too often these factors infringe on people with disabilities’ reproductive justice. For example, for people with disabilities, especially disabled parents, poverty is a persistent issue that directly affects access to housing, food, and other basic necessities needed for people’s wellbeing.119 119.Rocking the Cradle,supra note 53, at 202 (“[T]he most significant difference between parents with disabilities and parents without disabilities is economic . . . .”).Show More Although many people with disabilities receive government benefits, these benefit programs often keep people in poverty. Antiquated rules and restrictions force some people with disabilities to choose between creating families and receiving necessary income assistance.120 120.While marriage is certainly not required to form families, it should be available to people with disabilities the same as it is for nondisabled people. However, strict asset programs prevent disabled people from marrying. See Waterstone, supra note 27, at 549 n. 132.Show More Poverty is also a persistent issue because of high rates of unemployment among disabled people. U.S. Census Bureau data shows that compared to nondisabled people, people with disabilities have lower rates of employment, lower median annual earnings, and higher rates of poverty.121 121.U.S. Census Bureau, Selected Economic Characteristics for the Civilian Noninstitutionalized Population by Disability Status, https://data.census.gov/‌cedsci/table?t=Disability&tid=ACSST1Y2019.S1811&hidePreview=true&vintage=2018 [https://perma.cc/6JFJ-DATH] (last visited July 11, 2021).Show More

People with disabilities, especially disabled people of color and LGBTQ+ people, often additionally contend with discriminatory legal and social service systems that separate them from their families.122 122.See Section I.B supra (noting that disabled parents have disproportionate rates of child welfare system involvement and termination of parental rights).Show More For example, the child welfare system—more accurately known as the family policing system123 123.‘Abolition Is the Only Answer’: A Conversation with Dorothy Roberts, Rise Mag. (Oct. 20, 2020), https://www.risemagazine.org/2020/10/conversation-with-dorothy-roberts/ [https://perma.cc/9DMC-DQBL] (“Policing captures what this system does. It polices families with the threat of taking children away. Even when its agents don’t remove children, they can take children and that threat is how they impose their power and terror. It is a form of punishment, harm and oppression.” (quoting Dorothy Roberts) (emphasis in original)).Show More—targets people of color and disabled parents using pathology, control, and punishment.124 124.See generallyRobyn M. Powell, Achieving Justice for Disabled Parents and Their Children: An Abolitionist Approach, 33 Yale J.L. & Feminism (forthcoming 2022) (on file with author) (arguing that child welfare system abolition is necessary to protect disabled parents and their children).Show More An estimated two-thirds of state child welfare system laws explicitly include parental disability, usually intellectual or psychiatric disabilities, as grounds for termination of parental rights.125 125.Rocking the Cradle,supra note 53, at 16.Show More Thus, in many states, disabled people are lawfully denied their right to raise children.

Accordingly, the fourth guiding principle recognizes that to achieve reproductive justice, people with disabilities and their families must be guaranteed rights, justice, and wellness for themselves and their families. Changing the income and asset rules that keep people with disabilities in poverty would enable them to have livable incomes and the families they desire. Employment opportunities similarly need to be expanded so that people with disabilities can work and earn livable wages. Further, parents with disabilities and their children must be able to live free from fear of unnecessary separation and have access to non-punitive supports and resources. Thus, the child welfare system, and other carceral systems, must be abolished to achieve true reproductive justice. Legal and policy solutions that reflect the fourth guiding principle will need to be comprehensive and transformative.

Conclusion

Britney Spears’s appalling experiences are a stark reminder that nearly 100 years after the infamous Buck v. Bell decision, reproductive freedom is still denied to far too many disabled people. Although forced sterilization of people with disabilities has waned over time, reproductive justice still has not been realized for all people with disabilities. Indeed, revelations about Britney Spears’s harrowing struggles show that the right to decide whether to have children is still not fully afforded to people with disabilities.

The reproductive oppression experienced by people with disabilities is deeply entrenched in our laws, in our policies, and in our collective conscience. Accordingly, addressing the persistent reproductive oppression of people with disabilities will require us to transform our laws and policies radically. Informed by reproductive justice and disability justice frameworks, the four guiding principles set forth above provide a vision for transforming laws and policies to ensure reproductive justice for people with disabilities. This Essay seeks to advance a long-overdue conversation about reproductive justice for people with disabilities by providing a starting point for activists, scholars, legal professionals, and policymakers to use, critique, and improve upon. The need for such action could not be more timely or clear.

  1. * JD, PhD, Bruce R. Jacob Visiting Assistant Professor at Stetson University College of Law. Concepts from this Essay were presented during ReproAction’s webinar, “#FreeBritney? Respecting the Autonomy and Decision-Making of People with Disabilities,” on September 29, 2020. This Essay was supported by a generous research grant from the Stetson University College of Law. I extend my appreciation to Edson Abadia, Jr., for his critical research assistance. ↑

  2. Jem Aswad, Read Britney Spears’ Full Statement Against Conservatorship: ‘I Am Traumatized’, Variety (June 23, 2021, 3:59 PM), https://variety.com/2021/music/‌news/britney-spears-full-statement-conservatorship-1235003940/ [https://perma.cc/QJ6Y-9UBH] (transcript of Spears’s June 23, 2021, statement to Los Angeles Superior Court Judge, Brenda Penny). ↑

  3. Id. At the time of this writing, Britney Spears’s case is ongoing. On September 29, 2021, the court suspended Britney Spears’s father, James Spears, as his daughter’s conservator and temporarily replaced him with a new conservator. Joe Coscarelli, Julia Jacobs & Liz Day, Judge Frees Spears From Father’s Control (Oct. 2, 2021), https://www.nytimes.com/‌2021/09/29/arts/music/britney-spears-court-decision-conservatorship.html [https://perma.cc/9N3S-S8NA]. The court has scheduled a hearing for November 12, 2021, to determine whether the conservatorship should end. Id. ↑

  4. Aswad, supra note 1. ↑

  5. Id. ↑

  6.  Consistent with disability rights and disability justice movements, this Essay acknowledges the importance of language in shaping how we think about disability and how ableism can pervade language choices as well as reflect and perpetuate disability-based subordination. Lydia X. Z. Brown, Ableism/Language, Autistic Hoya (Feb. 27, 2021), https://www.autistichoya.com/p/ableist-words-and-terms-to-avoid.html [https://perma.cc/HS2F-LJ2C]. To that end, I use person-first and identity-first language interchangeably (e.g., “parents with disabilities” and “disabled parents”) in recognition of the disability community’s diverse language preferences. See generally Dana S. Dunn & Erin E. Andrews, Person-First and Identity-First Language: Developing Psychologists’ Cultural Competence Using Disability Language, 70 Am. Psych. 255 (2015) (exploring the evolving language preferences among people with disabilities). ↑

  7. See, e.g., @yooitsmo, Twitter (June 24, 2021, 11:58 AM), https://twitter.com/yooitsmo/‌status/1408092248265445387 [https://perma.cc/UX86-TLL3] (“I’m sorry but…Britney HAS to keep an [IUD] in under her conservatorship??? How is any of this legal/okay???”); Meghan McCain (@MeghanMcCain), Twitter (June 23, 2021, 9:14 PM), https://twitter.com/‌MeghanMcCain/‌status/1407869786156146689 [https://perma.cc/T7S7-3X6G] (“This goes beyond any normal courts, there should be human rights violations investigations. Britney Spears was held captive, out in the open and we gawked at her and didn’t listen. This is how we treat famous women. Thank God she didn’t kill herself. There is a rot in our culture”); Congresswoman Katie Porter (@katieporteroc), Twitter (June 24, 2021, 7:25 PM), https://twitter.com/katieporteroc/status/1408204566592561157 [https://perma.cc/‌AA53-C7WG] (“Every American—regardless of their gender identity or disability status—ought to be able to make decisions about their own bodies. #FreeBritney”). ↑

  8. See, e.g., Imani Barbarin (@Imani_Barbarin), Twitter (June 24, 2021, 10:54 AM), https://twitter.com/Imani_Barbarin/status/1408076140028305422 [https://perma.cc/3W8S-DPTB] (“I don’t like the gaslighting that goes on when disabled people tell y’all that what’s happening with #FreeBritney is not at all unique. You just have a hierarchy of disability and a point at which you think someone is “too disabled” to care about.”); Sarah Lerner (@SarahLerner), Twitter (June 23, 2021, 6:42 PM), https://twitter.com/SarahLerner/status/‌1407831499164962817 [https://perma.cc/A8BU-TS75] (“Britney Spears being held under a 13-year conservatorship and being forced to keep her IUD in despite the fact that she wants another child is where disability rights and reproductive rights intertwine.”); Dr. Sherri G. (@onlymeindc), Twitter (June 24, 2021, 9:27 PM), https://twitter.com/onlymeindc/‌status/1408235268545519617 [https://perma.cc/UV6J-LU5J] (“The Britney Spears situation is most definitely a disability rights issue. The medical and social models of disability are clashing right in front of your eyes. One model boils us down to impairment through oppressive paternalism forcing us in the sick role and the other doesn’t.”); Eric Michael Garcia (@EricMGarcia), Twitter (June 23, 2021, 5:55 PM), https://twitter.com/EricMGarcia/‌status/1407819545394434051 [https://perma.cc/8BKP-PMAL] (“As always, it’s important to remember that #FreeBritney is a disability rights issue. If the state can do this to one of the most influential pop stars in my lifetime, think about what it can do to others.”). ↑

  9. See infra Part I (contextualizing the United States’ history of the reproductive oppression of people with disabilities and the ways in which it persists today). ↑

  10. Id. ↑

  11. Zoe Brennan-Krohn & Rebecca McCray, Britney Spears’ Reproductive Freedom Is a Disability Rights Issue, ACLU (June 25, 2021), https://www.aclu.org/news/civil-liberties/britney-spears-reproductive-freedom-is-a-disability-rights-issue/ [https://perma.cc/KZ9E-75WS] (“Spears’ experience is part of a long history of people with disabilities—most often people of color—being robbed of the right to control their reproductive destinies.”); Nat’l LGBTQ Task Force, Queering Reproductive Justice: A Toolkit 5–7 (Zsea Beaumonis, Candace Bond-Theriault, Stacey Long Simmons & Sabrina Rewald eds., 2017), https://www.thetaskforce.org/wp-content/uploads/2017/03/Queering-Reproductive-Justice-A-Toolkit-FINAL.pdf [https://perma.cc/5L88-TMXB]. ↑

  12. Roberta Cepko, Involuntary Sterilization of Mentally Disabled Women, 8

     

    Berkeley Women’s L.J. 122, 123–24 (1993) (“Only a few of the dozens of cases regarding involuntary sterilizations involve the sterilization of males. Therefore, sterilization practice is interwoven with the issue of control of female reproductive rights and, to some extent, of female sexual expression.”). But see In re Guardianship of Kennedy, 845 N.W.2d 707, 708–09 (Iowa 2014) (evaluating an appeal brought by a 21-year-old man with intellectual disabilities challenging the legality of a vasectomy his guardian had arranged for him without obtaining a court order); Renu Barton-Hanson, Sterilization of Men with Intellectual Disabilities: Whose Best Interest Is It Anyway?, 15 Med. L. Int’l 49, 57–58 (2015) (examining recent cases concerning sterilization of men with intellectual disabilities and noting the frequent justification as purportedly promoting sexual freedom). ↑

  13. See Eric M. Jaegers, Note, Modern Judicial Treatment of Procreative Rights of Developmentally Disabled Persons: Equal Rights to Procreation and Sterilization, 31 U. Louisville J. Fam. L. 947, 948, 953–54 (1993) (“The purpose of these laws was to protect and streamline society by preventing reproduction by those deemed socially or mentally inferior.”). ↑

  14. 274 U.S. 200 (1927). ↑

  15. Id. at 205; see also Stephen Jay Gould, Carrie Buck’s Daughter, 2 Const. Comment.

     

    331, 336 (1985) (asserting that Buck was not “feebleminded” but rather institutionalized to hide her rape). ↑

  16. Buck, 274 U.S. at 205; Gould, supra note 14, at 334. ↑

  17. Gould, supra note 14, at 333, 336; Buck, 274 U.S. at 205. ↑

  18. Buck, 274 U.S. at 205–06; Gould, supra note 14, at 331. ↑

  19. Paul A. Lombardo, Three Generations, No Imbeciles: Eugenics, the Supreme Court, and Buck v. Bell 104–05 (2008). ↑

  20. Buck, 274 U.S. at 206–08. ↑

  21. Id. at 207. ↑

  22. Fresh Air, The Supreme Court Ruling That Led to 70,000 Forced Sterilizations, NPR (Mar. 17, 2016), https://www.npr.org/sections/health-shots/2016/03/07/469478098/the-supreme-court-ruling-that-led-to-70-000-forced-sterilizations [https://perma.cc/5KYD-Z79X]. ↑

  23. Fifteen years after Buck v. Bell was decided, the Supreme Court struck down an Oklahoma law requiring that people with two or more convictions for felonious offenses be sterilized. Skinner v. Oklahoma, 316 U.S. 535, 536–37, 543 (1942). Although both Skinner and Buck concern involuntary sterilization statutes, Skinner’s analysis took a narrower focus, relating only to the punitive sterilization of criminals, thereby avoiding addressing the forced sterilization of people with disabilities. Id. at 542–43. ↑

  24. Brooke Pietrzak, Marriage Laws and People with Mental Retardation: A Continuing History of Second Class Treatment, 17 Dev. Mental Health L. 1, 34–35 (1997). ↑

  25. Id. at 35. ↑

  26. Robert J. Cynkar, Buck v. Bell: “Felt Necessities” v. Fundamental Values?, 81 Colum. L. Rev. 1418, 1432 (1981). ↑

  27. President’s Comm. on Mental Retardation, OHD 74-21002, Silent Minority 33 (1974). ↑

  28. Pietrzak, supra note 23, at 1–2. Although no known studies have systematically examined marriage laws as they apply to people with disabilities, scholars contend that these statutes continue to exist in some states. Michael E. Waterstone, Disability Constitutional Law, 63 Emory L.J. 527, 548–49 (2014). ↑

  29. See Vanessa Volz, Note, A Matter of Choice: Women with Disabilities, Sterilization, and Reproductive Autonomy in the Twenty-First Century, 27 Women’s Rts. L. Rep. 203, 207–08 (2006). ↑

  30. Mary Moe is a pseudonym; Massachusetts General Law requires that informed consent proceedings for an abortion be kept confidential. Mass. Gen. Laws ch. 112, § 12R (2020). ↑

  31. In re Guardianship of Mary Moe, 960 N.E.2d 350, 352 (Mass. App. Ct. 2012). ↑

  32. Id. at 353 (quoting the family court’s decision). ↑

  33. Id. (quoting the family court’s decision). ↑

  34. Id. at 355. ↑

  35. Daniel F. Gunther & Douglas S. Diekema, Attenuating Growth in Children with Profound Developmental Disability: A New Approach to an Old Dilemma, 160 Archives Pediatrics & Adolescent Med. 1013, 1014 (2006); Marcia H. Rioux & Lora Patton, Beyond Legal Smokescreens: Applying a Human Rights Analysis to Sterilization Jurisprudence, in Critical Perspectives on Human Rights and Disability Law 243, 243–44 (Marcia H. Rioux, Lee Ann Basser & Melinda Jones eds., 2011). ↑

  36. Gunther & Diekema, supra note 34; Rioux & Patton, supra note 34, at 244. ↑

  37. The “Ashley Treatment”, Towards a Better Quality of Life for “Pillow Angels”, at 3, 12 (Mar. 17, 2012), http://pillowangel.org/Ashley%20Treatment.pdf [https://perma.cc/8E3Z-VCEQ] (the document is authored by: “Ashley’s Mom and Dad”). ↑

  38. Id. at 10. ↑

  39. Gunther & Diekema, supra note 34, at 1015. ↑

  40. Rioux & Patton, supra note 34, at 244–45. ↑

  41. Id. at 244. ↑

  42. Amy Burkholder, Report: ‘Pillow Angel’ Surgery Broke Law, CNN (May 8, 2007), http://www.cnn.com/2007/HEALTH/05/08/ashley.ruling/index.html [https://perma.cc/Z8RD-LF78] (“Children’s Hospital, in acknowledging its error, said that beyond implementing changes to ensure that sterilization of disabled children doesn’t happen again without a court order, it will seek court approval for other procedures involved in the controversial growth attenuation therapy.”). ↑

  43. Ed Pilkington & Karen McVeigh, ‘Ashley Treatment’ on the Rise Amid Concerns from Disability Rights Groups, The Guardian (Mar. 15, 2012) http://www.guardian.co.uk/society/‌2012/mar/15/ashley-treatment-rise-amid-concerns/ [https://perma.cc/B5WF-ENKY]. ↑

  44. Samuel R. Bagenstos, Disability and Reproductive Justice, 14 Harv. L. & Pol’y Rev. 273, 289 (2020). ↑

  45. See Justine P. Wu et al., Female Sterilization Is More Common Among Women with Physical and/or Sensory Disabilities than Women Without Disabilities in the United States, 10 Disability & Health J. 400, 403 (2017); William Mosher et al., Contraceptive Use by Disability Status: New National Estimates from the National Survey of Family Growth, 97 Contraception 552, 555 (2018); Henan Li et al., Female Sterilization and Cognitive Disability in the United States, 2011–2015, 132 Obstetrics & Gynecology 559, 561 (2018). ↑

  46. Beverly Horsburgh, Schrödinger’s Cat, Eugenics, and the Compulsory Sterilization of Welfare Mothers: Deconstructing an Old/New Rhetoric and Constructing the Reproductive Right to Natality for Low-Income Women of Color, 17 Cardozo L. Rev. 531, 572 (1996). ↑

  47. Roberta Cepko, Involuntary Sterilization of Mentally Disabled Women, 8 Berkeley Women’s L.J. 122, 126 (1993). ↑

  48. Id. ↑

  49. Mary Ziegler, Reinventing Eugenics: Reproductive Choice and Law Reform After World War II, 14 Cardozo J.L. & Gender 319, 350 (2008). ↑

  50. Robyn M. Powell, Susan L. Parish, Monika Mitra, & Eliana Rosenthal, Role of Family Caregivers Regarding Sexual and Reproductive Health for Women and Girls with Intellectual Disability: A Scoping Review, 64 J. Intell. Disability Rsch. 131, 132 (2020) (citing studies). ↑

  51. Id. at 151 (citing studies). ↑

  52. Monika Mitra, Linda M. Long-Bellil, Suzanne C. Smeltzer & Lisa I. Iezzoni, A Perinatal Health Framework for Women with Physical Disabilities, 8 Disability Health J.

     

    499, 499 (2015) (citing studies)

    ;

    Lesley A. Tarasoff et al., Health of Newborns and Infants Born to Women with Disabilities: A Meta-Analysis, 146 Pediatrics, e20201635, at 2 (2020) (citing studies); Ilhom Akobirshoev, Susan L. Parish, Monika Mitra & Eliana Rosenthal, Birth Outcomes Among US Women with Intellectual and Developmental Disabilities, 10 Disability & Health J.

    406, 409

    tbl. 2

    (2017) (

    comparing maternal and infant outcomes of women with and without intellectual disabilities)

    .

    ↑

  53. Robyn M. Powell, Erin E. Andrews & Kara B. Ayers, Becoming a Disabled Parent: Eliminating Access Barriers to Health Care Before, During, and After Pregnancy, 96 Tul. L. Rev. (forthcoming 2021) (manuscript at 2), https://papers.ssrn.com/sol3/papers.cfm?abstract‌_id=3808017 [https://perma.cc/3JD2-WD5G] (interviewing disabled parents about their experiences accessing health care services). ↑

  54. See generally Nat’l Council on Disability, Rocking the Cradle: Ensuring the Rights of Parents with Disabilities and Their Children 15 (2012) [hereinafter “Rocking the Cradle”], https://www.ncd.gov/sites/default/files/Documents/NCD_Parenting_508_0.pdf [https://perma.cc/UB7C-XMMG] (“The report provides a comprehensive review of the barriers and facilitators people with diverse disabilities—including intellectual and developmental, psychiatric, sensory, and physical disabilities—experience when exercising their fundamental right to create and maintain families, as well as persistent, systemic, and pervasive discrimination against parents with disabilities. The report analyzes how U.S. disability law and policy apply to parents with disabilities in the child welfare and family law systems, and the disparate treatment of parents with disabilities and their children. Examination of the impediments prospective parents with disabilities encounter when accessing assisted reproductive technologies or adopting provides further examples of the need for comprehensive protection of these rights.”). ↑

  55. Id. at 16. ↑

  56. Id. at 265–300 (finding that over two-thirds of state dependency laws list parental disability as grounds for termination of parental rights). ↑

  57. Robyn M. Powell, Family Law, Parents with Disabilities, and the Americans with Disabilities Act, 57 Fam. Ct. Rev. 37, 38 (2019) (“Indeed, parents with disabilities contend with substantial and persistent bias within the family law system, often threatening their custody and visitation rights.”). ↑

  58. Laura Rizzo, Inside Britney Spears’ Custody Battle with Kevin Federline for Kids Sean Preston and Jayden, Life & Style Mag. (June 24, 2021), https://www.lifeandstylemag.com/‌posts/does-britney-spears-have-custody-of-kids-preston-and-jayden/ [https://perma.cc/EQY3-9KZ3] (explaining that Britney Spears had 30% custody at the time and was reportedly seeking 50%). ↑

  59. Rocking the Cradle, supra note 53, at 153–66 (describing the ways prospective parents with disabilities experience discrimination within the foster care and adoption system). ↑

  60. Zakiya Luna & Kristin Luker, Reproductive Justice, 9 Ann. Rev. L. & Soc. Sci. 327, 328 (2013). ↑

  61. Loretta Ross, What is Reproductive Justice?, in Reproductive Justice Briefing Book: A Primer on Reproductive Justice and Social Change 4, https://www.law.berkeley.edu/php-programs/courses/fileDL.php?fID=4051 [https://perma.cc/5SSG-QVSD] (last visited Oct. 1, 2021) [hereinafter “Reproductive Justice Briefing Book

    ”]

    . ↑

  62. Loretta J. Ross & Rickie Solinger, Reproductive Justice: An Introduction 73 (2017). ↑

  63. Id. at 74. ↑

  64.  Joan C. Chrisler, Introduction: A Global Approach to Reproductive Justice—Psychosocial and Legal Aspects and Implications, 20 Wm. & Mary J. Women & L. 1, 4 (2013). ↑

  65. Sarah London, Reproductive Justice: Developing a Lawyering Model, 13 Berkeley J. Afr.-Am. L. & Pol’y 71, 75 (2011). ↑

  66. Reproductive Justice Briefing Book

    ,

    supra note 60, at 4. (“Moving beyond a demand for privacy and respect for individual decision making to include the social supports necessary for our individual decisions to be optimally realized, this framework also includes obligations from our government for protecting women’s human rights. Our options for making choices have to be safe, affordable and accessible, three minimal cornerstones of government support for all individual life decisions.”). ↑

  67. Id. (“Instead of focusing on the means—a divisive debate on abortion and birth control that neglects the real-life experiences of women and girls— the Reproductive Justice analysis focuses on the ends: better lives for women, healthier families, and sustainable communities.”). ↑

  68. Dorothy Roberts, Reproductive Justice, Not Just Rights, Dissent (Fall 2015), https://www.dissentmagazine.org/article/reproductive-justice-not-just-rights [https://perma.cc/C37U-GS88]; see also Luna & Luker, supra note 59, at 343 (“[R]eproductive justice is equally about the right to not have children, the right to have children, the right to parent with dignity, and the means to achieve these rights.”). ↑

  69. Seema Mohapatra, Law in the Time of Zika: Disability Rights and Reproductive Justice Collide, 84 Brook. L. Rev. 325, 343 (2019). ↑

  70. Priscilla A. Ocen, Incapacitating Motherhood, 51 U.C. Davis L. Rev. 2191, 2240 (2018). ↑

  71. Reva B. Siegel, ProChoiceLife: Asking Who Protects Life and How—and Why It Matters in Law and Politics, 93 Ind. L.J. 207, 210 (2018). ↑

  72. Sujatha Jesudason & Julia Epstein, Editorial, The Paradox of Disability in Abortion Debates: Bringing the Pro-Choice and Disability Rights Communities Together, 84 Contraception 541, 542 (2011). ↑

  73. London, supra note 64, at 71–72. ↑

  74. See, e.g., Robyn M. Powell, Confronting Eugenics Means Finally Confronting Its Ableist Roots, 27 Wm. & Mary J. Race, Gender & Soc. Just. 607, 628–31 (2021) (examining the history of eugenics in the United States and calling for a justice-based approach to address the role of ableism in eugenics); Bagenstos, supra note 43, at 279–86; Mary Ziegler, The Disability Politics of Abortion, 2017 Utah L. Rev. 587, 627–30 (2017) (describing ways in which reproductive justice should be used to advocate for programs to support people with disabilities as a mechanism for reducing disability-based abortions); Mohapatra, supra note 68, at 325–27 (2019) (using the Zika virus to highlight the tensions between reproductive rights and disability rights); Dorothy Roberts & Sujatha Jesudason, Movement Intersectionality: The Case of Race, Gender, Disability, and Genetic Technologies, 10 Du Bois Rev. 313, 316–18 (2013) (proposing how organizing based on an intersectional analysis can help facilitate alliances between reproductive justice, racial justice, women’s rights, and disability rights activists to develop strategies to address reproductive genetic technologies); Roberts, supra note 67 (describing the failures of the reproductive rights movement to respond to the needs of marginalized communities, including people with disabilities, and calling for a reproductive justice framework instead). ↑

  75. Bagenstos, supra note 43, at 285 (quoting Dorothy Roberts, Killing the Black Body: Race, Reproduction, and the Meaning of Liberty 6 (1997)). ↑

  76. Sins Invalid, Skin, Tooth, and Bone—The Basis of Movement is Our People: A Disability Justice Primer 59 (2d ed. 2019) (capital letters omitted). ↑

  77. Leah Lakshmi Piepzna-Samarasinha, Care Work: Dreaming Disability Justice 11 (2018). ↑

  78. Sins Invalid, supra note 75, at 22–26 (capital letters omitted). ↑

  79. Id. at 15, 47. ↑

  80. Talila “TL” Lewis, Disability Justice Is an Essential Part of Abolishing Police and Prisons, Level (Oct. 7, 2020), https://level.medium.com/disability-justice-is-an-essential-part-of-abolishing-police-and-prisons-2b4a019b5730 [https://perma.cc/J5QL-9UNR]. ↑

  81. Sins Invalid, supra note 75, at 15. ↑

  82. In 1989, Kimberlé Crenshaw coined the term “intersectionality” to help explain the oppression of African-American women. See Kimberlé Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics, 1 U. Chi. Legal F. 139, 140 (1989). Since then, intersectionality has been used to study how people who are members of multiple socially marginalized communities experience discrimination, including people with disabilities. See, e.g., Beth Ribet, Surfacing Disability Through a Critical Race Theoretical Paradigm, 2 Geo. J.L. & Mod. Critical Race Persps. 209, 211–22 (2010). ↑

  83. Piepzna-Samarasinha, supra note 76, at 11. ↑

  84. Sins Invalid, Reproductive Justice is Disability Justice

    1,

    https://www.sinsinvalid.‌org/s/Reproductive_Justice_is_Disability_Justice.pdf [https://perma.cc/6XUF-Z8JL] (last visited June 26, 2021). ↑

  85. Alice Abrokwa, “When They Enter, We All Enter”: Opening the Door to Intersectional Discrimination Claims Based on Race and Disability, 24 Mich. J. Race & L.

     

    15, 20–21 (2018). ↑

  86. Ruth Wilson Gilmore, Foreword to Dan Berger, The Struggle Within: Prisons, Political Prisoners, and Mass Movements in the United States viii (2014). ↑

  87. Emily A. Benfer, Health Justice: A Framework (and Call to Action) for the Elimination of Health Inequity and Social Injustice, 65 Am. U. L. Rev. 275, 338 (2015) (describing the importance of actively engaging socially marginalized communities to address inequities). ↑

  88. Sins Invalid,

     

    supra note 75, at 23. ↑

  89. James I. Charlton, Nothing About Us Without Us: Disability Oppression and Empowerment 3 (1998). ↑

  90. Bagenstos, supra note 43, at 280–81. ↑

  91. Center for Reproductive Rights, Shifting the Frame on Disability Rights for the U.S. Reproductive Rights Movement 2 (2017), https://reproductiverights.org/wp-content/uploads/‌2020/12/Disability-Briefing-Paper-FINAL.pdf [https://perma.cc/52GS-T2NV]. ↑

  92. See id. at 1–2. ↑

  93. See Pamela S. Karlan & Daniel R. Ortiz, In a Diffident Voice: Relational Feminism, Abortion Rights, and the Feminist Legal Agenda, 87 Nw. U. L. Rev.

     

    858, 876 (1993) (“The language of autonomy has provided the central rationale for protecting individual women’s control over the abortion decision.”). ↑

  94. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 844 (1992) (“Liberty finds no refuge in a jurisprudence of doubt. Yet 19 years after our holding [in Roe v. Wade] that the Constitution protects a woman’s right to terminate her pregnancy in its early stages . . . that definition of liberty is still questioned. Joining the respondents as amicus curiae, the United States, as it has done in five other cases in the last decade, again asks us to overrule Roe.”). ↑

  95. Id. at 851. ↑

  96. Samuel R. Bagenstos & Margo Schlanger, Hedonic Damages, Hedonic Adaptation, and Disability, 60 Vand. L. Rev. 745, 795 (2007) (“[P]aternalism has historically been one of the most significant contributors to the disadvantage people with disabilities experience. Non-disabled parents, teachers, doctors, rehabilitation counselors, employers, and others have arrogated to themselves the prerogative to decide what is best for people with disabilities. In so doing, they have deprived people with disabilities of opportunities to work and participate in the community. They have denied people with disabilities the autonomy that consists in making one’s own choices. And they have denied people with disabilities the dignity of risk— the opportunity to develop their skills, test them in the world, and succeed or fail according to their talents.” (internal quotation marks omitted)). ↑

  97. Charlton

    ,

    supra note 88, at 3 (“Control has universal appeal for [disability rights movement] activists because the needs of people with disabilities and the potential for meeting these needs are everywhere conditioned by a dependency born of powerlessness, poverty, degradation, and institutionalization. This dependency, saturated with paternalism, begins with the onset of disability and continues until death.”) ↑

  98. Candida Moss, The Romans, the Supreme Court, and Britney Spears—Conservatorship Abuse Has Been Happening for 2000 Years, The Daily Beast (June 26, 2021), https://www.thedailybeast.com/britney-spears-the-romans-and-the-supreme-court-conservatorship-abuse-has-been-happening-for-2000-years [https://perma.cc/7UJL-389G] (tracing the history of guardianship to Roman law). ↑

  99. Ctr. for Pub. Representation, Statement from Disability Justice and Supported Decision-Making Advocates: Britney Spears Spotlights the Need for Change Now (June 25, 2021), https://supporteddecisions.org/2021/06/25/britney-spears/ [https://perma.cc/SKK5-2HKH]. ↑

  100. Sara Luterman, For Women Under Conservatorship, Forced Birth Control Is Routine, The Nation

     

    (July 15, 2021), https://www.thenation.com/article/society/conservatorship-iud-britney-spears/ [https://perma.cc/Q9WD-SSCC]. ↑

  101. Nat’l Council on Disability, Beyond Guardianship: Toward Alternatives that Promote Greater Self-Determination 17 (2018), https://ncd.gov/sites/default/files/NCD_Guardianship_‌Report_Accessible.pdf [https://perma.cc/D8WG-5HBX]. ↑

  102. Nina A. Kohn, Jeremy A. Blumenthal & Amy T. Campbell, Supported Decision-Making: A Viable Alternative to Guardianship?, 117 Pa. St. L. Rev. 1111, 1117 (2013). ↑

  103. Ctr. for Pub. Representation, U.S. Supported Decision-Making Laws, https://supported‌decisions.org/resources-on-sdm/state-supported-decision-making-laws-and-court-decisions/ [https://perma.cc/L58P-TTEY] (last visited Sept. 2, 2021) (listing states that have implemented supported decision-making). ↑

  104. Ctr. for Pub. Representation, About Supported Decision-Making, https://supported‌decisions.org/about-supported-decision-making/ [https://perma.cc/KG45-F327] (last visited June 25, 2021). ↑

  105. Ctr. for Pub. Representation, supra note 98. ↑

  106. Nat’l Council on Disability, Turning Rights into Reality: How Guardianship and Alternatives Impact the Autonomy of People with Intellectual and Developmental Disabilities

    29–36 (2019),

    https://ncd.gov/sites/default/files/NCD_Turning-Rights-into-Reality_508_0.‌pdf [https://perma.cc/H2PR-X7Y7].

     

    ↑

  107. See supra Section II.B. ↑

  108. Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101–12213. ↑

  109. Rehabilitation Act of 1973, 29 U.S.C. §§ 701–796. ↑

  110. Patient Protection and Affordable Care Act, 42 U.S.C. § 18116(a); 45 C.F.R §§ 92.102–105. ↑

  111. Powell, supra note 73, at 625–27 (describing federal disability laws’ application to matters concerning reproductive justice). ↑

  112. Robyn M. Powell & Michael Ashley Stein, Persons with Disabilities and Their Sexual, Reproductive, and Parenting Rights: An International and Comparative Analysis, 11 Frontiers L. China 53, 57–58 (2016) (explaining the implications of disabled people not receiving sexuality education). ↑

  113. See Hyde Amendment Codification Act, S. 142, 113th Cong. (2013) (originally passed in 1977); Alina Salganicoff, Laurie Sobel & Amrutha Ramaswamy, The Hyde Amendment and Coverage for Abortion Services, Kaiser Fam. Found. (Mar. 5, 2021), https://www.kff.org/womens-health-policy/issue-brief/the-hyde-amendment-and-coverage-for-abortion-services/ [https://perma.cc/NT7W-QL6W]. ↑

  114. Rocking the Cradle, supra note 53, at 178 (noting that “Medicaid and Medicare [are] the primary health insurers for people with disabilities”). ↑

  115. Nora Ellen Groce et al., HIV Issues and People with Disabilities: A Review and Agenda for Research, 77 Soc. Sci. & Med. 31–37 (2013) (analyzing research about the intersection of HIV/AIDS and people with disabilities and calling for greater attention to the topic). ↑

  116. Amy Swango-Wilson, Meaningful Sex Education Programs for Individuals with Intellectual/Developmental Disabilities, 29 Sexuality & Disability 113–16 (2011). ↑

  117. See generally Benfer, supra note 86 (explaining the social determinants of health and the health justice framework). ↑

  118. Soc. Sec. Admin., SSI Federal Payment Amounts for 2021, https://www.ssa.gov/oact/‌cola/SSI.html [https://perma.cc/DW5R-6MY3] (last visited July 20, 2021). ↑

  119. Soc. Sec. Admin., Substantial Gainful Activity, https://www.ssa.‌gov/oact/cola/sga.html [https://perma.cc/9YWP-XS5G] (last visited September 2, 2021). ↑

  120. Rocking the Cradle, supra note 53, at 202 (“[T]he most significant difference between parents with disabilities and parents without disabilities is economic . . . .”). ↑

  121. While marriage is certainly not required to form families, it should be available to people with disabilities the same as it is for nondisabled people. However, strict asset programs prevent disabled people from marrying. See Waterstone, supra note 27, at 549 n. 132. ↑

  122. U.S. Census Bureau, Selected Economic Characteristics for the Civilian Noninstitutionalized Population by Disability Status, https://data.census.gov/‌cedsci/table?t=Disability&tid=ACSST1Y2019.S1811&hidePreview=true&vintage=2018 [https://perma.cc/6JFJ-DATH] (last visited July 11, 2021). ↑

  123. See Section I.B supra (noting that disabled parents have disproportionate rates of child welfare system involvement and termination of parental rights). ↑

  124. ‘Abolition Is the Only Answer’: A Conversation with Dorothy Roberts, Rise Mag. (Oct. 20, 2020), https://www.risemagazine.org/2020/10/conversation-with-dorothy-roberts/ [https://perma.cc/9DMC-DQBL] (“Policing captures what this system does. It polices families with the threat of taking children away. Even when its agents don’t remove children, they can take children and that threat is how they impose their power and terror. It is a form of punishment, harm and oppression.” (quoting Dorothy Roberts) (emphasis in original)). ↑

  125. See generally Robyn M. Powell, Achieving Justice for Disabled Parents and Their Children: An Abolitionist Approach, 33 Yale J.L. & Feminism (forthcoming 2022) (on file with author) (arguing that child welfare system abolition is necessary to protect disabled parents and their children). ↑

  126. Rocking the Cradle, supra note 53, at 16. ↑

Government Speech and First Amendment Capture

Alarm regarding government speech is not new. In earlier decades, scholars worried that the government’s speech might monopolize a marketplace and drown out opposing viewpoints. But today, using a move I term “First Amendment capture,” the government need not be the loudest speaker because it can become the only speaker. First Amendment capture has been made possible by the Supreme Court’s developing government speech doctrine, which holds that government speech is not subject to the Free Speech Clause. Consequently, once speech is declared governmental, the government may censor viewpoints it does not like. First Amendment capture—categorizing contested speech as government speech and then eliminating contrary viewpoints—is an increasingly frequent occurrence and risks giving the government too much power to suppress those who would criticize it or blow the whistle on it. While one solution is to resist the government speech label, this Essay also proposes recognizing “mixed speech” as a potential means of curtailing the expansiveness of the government speech doctrine.

Introduction

Government speech is inevitable; the government cannot operate without speaking.1 1.See infra notes 21–25 and accompanying text.Show More Because government speech can educate, inform, and make positive contributions to the marketplace of ideas, government speech is not necessarily problematic.2 2.See generally Abner S. Greene, Government of the Good, 53 Vand. L. Rev. 1, 7–12 (2000) (listing four ways that government speech can be viewed as an affirmative good).Show More At the same time, government speech may threaten free speech values if it overwhelms critics or distorts debate.

What role government should play in our political discourse was the subject of much debate in the 1980s.3 3.See, e.g., John E. Nowak, Using the Press Clause to Limit Government Speech, 30 Ariz. L. Rev. 1, 9 (1988) (“In recent years, perhaps due to an awareness of the changing factors that increase the danger to our society from government speech, several scholars have examined the topic of whether the judiciary could use the free speech clause of first amendment to limit governmental speech.”); Steven Shiffrin, Government Speech, 27 UCLA L. Rev. 565, 570 (1980) (“The government speech problem is to determine when and by what means government may promote controversial values and when it may not.”); see alsoRichard Delgado, The Language of the Arms Race: Should the People Limit Government Speech?, 64 B.U. L. Rev. 961 (1984) (discussing prominent themes in the government speech debate); Robert D. Kamenshine, The First Amendment’s Implied Political Establishment Clause, 67 Cal. L. Rev. 1104 (1979) (arguing that the First Amendment prohibits government from advocating political ideas); Mark G. Yudof, When Governments Speak: Toward a Theory of Government Expression and the First Amendment, 57 Tex. L. Rev. 863 (1979) (arguing that governments should not have free speech rights); Edward H. Ziegler, Jr., Government Speech and the Constitution: The Limits of Official Partisanship, 21 B.C. L. Rev. 578 (1980) (arguing that partisan government speech does not and should not receive First Amendment protection).Show More Scholars worried that the government might monopolize speech marketplaces and drown out other views.4 4.See, e.g., Kamenshine, supranote 3, at 1104 (“[P]articipation by the government in the dissemination of political ideas poses a threat to open public debate . . . .”); Shiffrin, supra note 3, at 601 (“[O]ne of the problems to be faced in assessing government speech [is] the concern that government speech could result in unacceptable domination of the marketplace and the need for measures to confine the danger.”).Show More The concern that government speech might distort a marketplace of ideas remains, but thanks to the newly developed government speech doctrine,5 5.See infra Part I (describing the development of the government speech doctrine).Show More the government need not be the loudest speaker because it can become the only speaker. According to the Supreme Court’s government speech doctrine, once speech is deemed government speech, it falls outside the purview of the Free Speech Clause.6 6.Reed v. Town of Gilbert, 135 S. Ct. 2218, 2235 (2015) (“The Court has also said that ‘government speech’ escapes First Amendment strictures.”).Show More That is, while suppressing a viewpoint in private speech triggers strict scrutiny and is presumptively unconstitutional,7 7.Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 828–29 (1995) (“It is axiomatic that the government may not regulate speech based on its substantive content or the message it conveys. . . . When the government targets not subject matter, but particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant.”).Show More the same action under the government speech label is perfectly constitutional as the government may exert complete control over its own speech.8 8.See infra Part I.Show More A free speech challenge will consequently fail if the contested speech is classified as government speech9 9.See infra notes 26–34 and accompanying text (discussing cases involving specialty license plates and monuments in public parks).Show More rather than private speech.10 10.Governments often provide spaces, such as the plaza in front of the town hall, for private citizens to speak. These are known as forums. Different doctrinal rules might apply depending on the type of forum, but viewpoint regulations are always subject to strict scrutiny. See generally Lyrissa Lidsky, Public Forum 2.0, 91 B.U. L. Rev. 1975, 1980–89 (2011) (describing public forum doctrine).Show More Thus, the former fear that competing viewpoints will be buried under government speech has given way to the fear that competing viewpoints will be altogether eliminated by the government speech doctrine.11 11.See, e.g., Daniel J. Hemel & Lisa Larrimore Ouellette, Public Perceptions of Government Speech, 2017 Sup. Ct. Rev. 33, 34–35 (2017) (“[W]ithout some meaningful limit on the government’s ability to claim expression as its own, the government speech doctrine could eviscerate the bar on viewpoint discrimination among private speakers.”).Show More

I call this move—classifying contested speech as government speech and then clamping down on certain viewpoints—“First Amendment capture.” “Agency capture” occurs when the regulated gain control of the agency charged with regulating them.12 12.Rachel E. Barkow, Insulating Agencies: Avoiding Agency Capture Through Institutional Design, 89 Tex. L. Rev. 15, 21 n.23 (2010) (“Capture, for the purposes of agency design, may be defined as responsiveness to the desires of the industry or groups being regulated.”).Show More Likewise, the government, which is supposed to be regulated by the First Amendment, gains control of speech in First Amendment capture.

One obvious way to prevent First Amendment capture is to categorize contested speech as private speech. But that may come with its own costs, such as forcing government to support or sponsor denigrating speech or highly religious speech.13 13.See infra Part III.B.Show More Another way to address exponential expansion of government speech is to recognize a new category of speech in addition to private speech and government speech. This new category—“mixed speech”—would cover speech that has both private and government components, and it would trigger intermediate scrutiny.14 14.In contrast, regulations of private speech regularly trigger strict scrutiny while regulations of government speech trigger no scrutiny at all. See infra Part I.Show More This recognition would allow more speech to be subject to the free speech prohibition on viewpoint discrimination yet still allow a degree of government control.15 15.I have discussed this proposal in an earlier work. See Caroline Mala Corbin, Mixed Speech: When Speech Is Both Private and Governmental, 83 N.Y.U. L. Rev. 605, 675–77 (2008) [hereinafter Corbin, Mixed Speech]. Unlike this Article, the earlier one did not focus on the problems of First Amendment capture.Show More

This Article has three parts. Part I describes the current government speech doctrine. Part II describes the problems raised by government speech. It begins with a brief review of early government speech literature. It then examines how these concerns manifest today. Part III considers Free Speech Clause solutions,16 16.This Essay focuses on how the Free Speech Clause itself might be mobilized, though obviously solutions might be found elsewhere as well.Show More including the recognition of mixed speech as a potential limit on unregulated government speech.

I.  Government Speech Doctrine

The government speech doctrine is a late twentieth century judicial creation.17 17.Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550, 574 (2005) (Souter, J., dissenting) (“The government-speech doctrine is relatively new, and correspondingly imprecise.”). The 1991 Rust v. Sullivan, 500 U.S. 173 (1991), decision is now heralded as one of the first government speech cases, though the decision itself did not use that term. Rather, a decade later Legal Servs. Corp. v. Velazquez, 531 U.S. 533 (2001), identified Rust as a government speech decision: “The Court in Rust did not place explicit reliance on the rationale that the counseling activities of the doctors under Title X amounted to governmental speech; when interpreting the holding in later cases, however, we have explained Rust on this understanding.” Id. at 541.Show More Its primary rule is fairly straightforward: If the speech is the government’s, then the Free Speech Clause does not apply.18 18.Matal v. Tam, 137 S. Ct. 1744, 1757 (2017) (“[O]ur cases recognize that ‘[t]he Free Speech Clause . . . does not regulate government speech.’”).Show More One of the core tenets of the Free Speech Clause is that the government may not censor viewpoints it does not like.19 19.Iancu v. Brunetti, 139 S. Ct. 2294, 2299 (2019) (“The government may not discriminate against speech based on the ideas or opinions it conveys.”); see also supra note 7.Show More However, “[t]he Government’s own speech . . . is exempt from First Amendment scrutiny.”20 20.Johanns, 544 U.S. at 553.Show More

The starting assumption for the government speech doctrine is that the government must be able to control its own speech in order to function.21 21.Matal, 137 S. Ct. at 1757 (“[I]mposing a requirement of viewpoint-neutrality on government speech would be paralyzing.”).Show More Government officials are chosen because of their political platforms, and “[w]hen a government entity embarks on a course of action, it necessarily takes a particular viewpoint and rejects others.” 22 22.Id.Show More As the Supreme Court has observed, when the government promoted the war effort during World War II, the First Amendment did not demand that it simultaneously discourage those efforts.23 23.Id. at 1758.Show More Similarly, the government could not effectively promote vaccinations if it also had to balance its pro-vaccine message by supporting anti-vaxxers.24 24.Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 135 S. Ct. 2239, 2246 (2015).Show More The government cannot do the job it was elected to do without the ability to decide what it says and does not say.25 25.Id. at 2246 (“But, as a general matter, when the government speaks it is entitled to promote a program, to espouse a policy, or to take a position. In doing so, it represents its citizens and it carries out its duties on their behalf.”).Show More

Two recent cases—Pleasant Grove City v. Summum (2009)26 26.555 U.S. 460 (2009).Show More and Walker v. Texas Division, Sons of Confederate Veterans, Inc. (2015)27 27.135 S. Ct. 2239 (2015).Show More—have cemented the government speech doctrine. In Summum, a small religious group offered to donate a Summum religious monument to a public park that hosted several previously donated monuments, including one of the Ten Commandments.28 28.Pleasant Grove City, 555 U.S. at 466.Show More When the town refused, the group accused it of unconstitutional viewpoint discrimination.29 29.Id.Show More The Supreme Court held that monuments in a public park constitute government speech, and therefore the town could welcome a Ten Commandments monument while refusing Summum’s Seven Aphorisms monument.30 30.Id. at 472.Show More

In Walker, Texas found itself accused of unconstitutional viewpoint discrimination because, despite offering drivers dozens of specialty license plates, it had refused to make one bearing the confederate flag for the Sons of Confederate Veterans group.31 31.Walker, 135 S. Ct. at 2245.Show More Again, the Supreme Court found the contested speech to be government speech.32 32.Id. at 2246.Show More As a result, Texas was free to reject the Sons of Confederate Veterans license plate.33 33.Id. at 2253.Show More “When government speaks, it is not barred by the Free Speech Clause from determining the content of what it says.”34 34.Id. at 2245; see also id. at 2245–46 (“Thus, government statements (and government actions and programs that take the form of speech) do not normally trigger the First Amendment rules designed to protect the marketplace of ideas.”).Show More

Although government speech is not subject to the Free Speech Clause, other clauses might limit it. For example, government speech might violate the Equal Protection Clause, which bars discrimination on the basis of race,35 35.Cf. Plyler v. Doe, 457 U.S. 202, 213 (1982) (“The Equal Protection Clause was intended to work nothing less than the abolition of all caste-based and invidious class-based legislation.”).Show More or the Establishment Clause, which bars endorsing one religion over others.36 36.Pleasant Grove City v. Summum, 555 U.S. 460, 468 (2009) (“[G]overnment speech must comport with the Establishment Clause.”).Show More However, the Supreme Court has argued that the primary check on government speech is the democratic process.37 37.Walker, 135 S. Ct. at 2245 (“[I]t is the democratic electoral process that first and foremost provides a check on government speech.”).Show More People express their approval or disapproval of the government and its speech with their vote. Because the government “is ultimately ‘accountable to the electorate and the political process for its advocacy,’”38 38.Pleasant Grove City, 555 U.S. at 468 (quoting Bd. of Regents of Univ. of Wis. Sys. v. Southworth, 529 U.S. 217, 235 (2000)).Show More the government may discriminate against certain viewpoints in its own speech. “If the citizenry objects, newly elected officials later could espouse some different or contrary position.”39 39.Id. at 468–69 (quoting Bd. of Regents, 529 U.S. at 235).Show More

In short, under the government speech doctrine, the government can choose its own words. If the electorate does not like the government’s chosen viewpoint, it can act to change the government.

II. Problems of Government Speech

Three justifications are regularly offered for why free speech is so important that government regulation of speech triggers concern and heightened scrutiny.40 40.Cf. Kent Greenawalt, Free Speech Justifications, 89 Colum. L. Rev. 119, 120 (1989) (arguing that any attempt to articulate a single unifying theory of free speech risks oversimplification).Show More First, free speech promotes a marketplace of ideas, which helps us in our search for knowledge, including political knowledge.41 41.See, e.g., Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting) (“[T]he ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market . . . . That at any rate is the theory of our Constitution.”).Show More Second, free speech is key for our system of democratic self-governance; a free flow of information ensures that people can keep tabs on the government and make informed political decisions.42 42.See, e.g., First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 776–77 (1978) (“[T]here is practically universal agreement that a major purpose of [the First] Amendment was to protect the free discussion of governmental affairs.”).Show More Finally, free speech furthers autonomy and self-expression and is thus an end in itself.43 43.See, e.g., C. Edwin Baker, Harm, Liberty, and Free Speech, 70 S. Cal. L. Rev. 979, 980 (1997) (“Speech can relate to autonomy in two ways: as itself an exercise of autonomy or as an informational resource arguably essential for meaningful exercise of autonomy.”).Show More Just as a government monopoly over speech might distort the marketplace of ideas, and with it, our ability to govern ourselves, so too does First Amendment capture.

A. First Generation Concerns: Monopoly

To the extent that free speech scholarship in the 1980s examined government speech, the debate focused primarily on the degree to which the government should be permitted to act as a speaker within the marketplace of ideas. Animating these early discussions was a fear that government might overwhelm private speakers and monopolize the market. A government speech monopoly would not only inhibit a robust exchange of ideas but the resulting distorted free speech markets might also undermine the consent of the governed—a cornerstone of our democracy.

At the birth of the government speech doctrine (and before), scholars differed on the degree to which the government should be a speaker in the marketplace of ideas on controversial subjects. While acknowledging the government’s need to communicate in order to enact the democratic will,44 44.Yudof, supra note 3, at865 (“Government expression is critical to the operation of a democratic polity . . .”).Show More some believed the government should speak only when necessary.45 45.Ziegler, supra note 3, at 585–86 (“If the democratic process is to operate with a minimum of distortion, government information and communication functions in connection with structured political questions must be limited by law to those activities necessary for the effective operation of the process.”).Show More Others argued that the government’s speech could actually enrich the marketplace of ideas.46 46.Greene, supra note 2, at 8–11. As Greene points out, government can make distinctive contributions to public debate. Id.at 8. For example, it can subsidize arts and science. Id. at 9. It can use its power of persuasion to alter social norms regarding race, smoking, and overeating. Id. at 10. Government can also check concentrations of private power. Id. at 11; see also John Fee, Speech Discrimination, 85 B.U. L. Rev. 1103, 1137 (2005). (“[G]overnment can and should make a positive difference in the world of ideas . . .”).Show More

In spite of these differences, there was general consensus that a government monopoly would pose a problem with potential constitutional implications.47 47.See, e.g., Shiffrin, supranote 3, at 607 (“If a system of free expression is to be preserved, either custom, or statutes, or constitutionally based limitations must provide assurances that government speech will not unfairly dominate the intellectual marketplace.”).Show More As Richard Delgado noted: “A prominent theme in this ‘government speech’ debate is that the government’s powerful voice can easily overwhelm weaker private voices, creating a monopoly of ideas and inhibiting the dialectic on which we rely to reach decisions.”48 48.See Delgado, supranote 3, at 961–62.Show More Even those like Abner Greene, a strong supporter of the government as a participant in debate,49 49.Greene, supra note 2, at 5 (“Government may, and should, use its speech powers to advance specific conceptions of the good, even if those conceptions are contested, controversial, or seen as favoring a particular viewpoint.”).Show More agreed that “government speech is highly problematic when it is the only voice in a relevant speech market.”50 50.Greene, supra note 2, at 27.Show More Mark Yudof argued that such a government monopoly was tantamount to censoring of private speech: “The passage of time since adoption of the Bill of Rights has revealed that laws and practices that permit massive government communications activities may as effectively silence private speakers as a direct regime of censorship.”51 51.Yudof, supra note 3, at897.Show More Most agreed that government speech that monopolizes might be constrained by the First Amendment.52 52.Greene, supra note 2, at 27 (“[A]ctual monopolization [of the speech market] should be understood to violate the Constitution.”); see also Randall P. Bezanson & William G. Buss, The Many Faces of Government Speech, 86 Iowa L. Rev. 1377, 1487 (2001) (“We conclude that government speech should receive little or no immunity from the rules that otherwise apply to government regulations when the government’s speech creates a monopoly for a particular point of view.”).Show More

B. Second Generation Concerns: First Amendment Capture

The worry that the government will drown out private speakers in a particular forum has given way to the worry that the forum will vanish altogether because the speech in it has been deemed government speech.53 53.See, e.g., Steven G. Gey, Why Should the First Amendment Protect Government Speech When the Government Has Nothing to Say?, 95 Iowa L. Rev.1259, 1264 (2010) (“The real point of these [government speech] cases may not be, as the Court innocuously suggests, to facilitate government speech. Rather, the point may be to give the government another tool with which to silence its critics.”).Show More Thus, the fear is not that competing viewpoints will be buried under government speech. Instead, the fear is that the contested speech will be categorized as government speech, giving the government the ability to eliminate competing viewpoints entirely. After all, under the government speech doctrine, government speech lies outside the protection of the Free Speech Clause. 54 54.See, e.g., Daniel J. Hemel & Lisa Larrimore Ouellette, Public Perceptions of Government Speech, 2017 Sup. Ct. Rev. 33, 34–35 (2017) (“[W]ithout some meaningful limit on the government’s ability to claim expression as its own, the government speech doctrine could eviscerate the bar on viewpoint discrimination among private speakers.”).Show More

As described in the introduction, I call this move “First Amendment capture.” In “agency capture,” the regulated gain control of the agency that is supposed to regulate them. For example, the Food and Drug Administration is the agency charged with regulating the food industry. However, if the FDA falls under the influence of the food industry and its lobbyists, it has been captured.55 55.Barkow, supra note 12, at 21 n.23 (2010) (“Capture, for the purposes of agency design, may be defined as responsiveness to the desires of the industry or groups being regulated.”).Show More In “First Amendment capture,” the government, which is supposed to be regulated by the First Amendment, gains control of speech. As explained above, free speech is protected given the crucial role it plays in advancing knowledge (including political knowledge) and in fostering democratic self-governance.56 56.See supra notes 41–42 and accompanying text.Show More First Amendment capture undermines these free speech goals by curtailing political speech markets and political accountability.

1. Capture of Forums

This First Amendment capture is evident in the two government speech cases mentioned in Part I, both of which presented the question of whether the speech at issue was private speech in a forum (and therefore protected by the Free Speech Clause) or government speech (and therefore under complete government control).

Recall that in Pleasant Grove City v. Summum,57 57.555 U.S. 460 (2009).Show More a small religious group known as the Summum attempted to place a monument in a town park. The park already had a donated Ten Commandments monument (along with ten other donated displays),58 58.Id. at 464–65.Show More and the Summum wanted to donate an equivalent monument representing their religion’s main commandments, the Seven Aphorisms.59 59.Id. at 465.Show More The Tenth Circuit debated what kind of forum for private speech the Park represented, eventually deciding that the City violated the Summums’ free speech rights.60 60.Summum v. Pleasant Grove City, 483 F.3d 1044, 1050–54, 1057 (10th Cir. 2007).Show More The Supreme Court reversed, holding that, unlike speech in public parks, permanent monuments in public parks represented government speech, and “[are] therefore not subject to scrutiny under the Free Speech Clause.”61 61.Pleasant Grove City, 555 U.S. at 464.Show More As a result, the only monuments seen will be those chosen by the government.

A similar denouement occurred with specialty license plates. These are plates like “Choose Life” that are approved, manufactured, and owned by the government but appear on private vehicles because private individuals select and pay for them.62 62.“First surfacing in the late 1980s, specialty license plates are now available in most states.” The number of choices varies, with some states offering more than a hundred different options. Corbin, supra note 15, at 608–09.Show More Several states were sued on free speech grounds for issuing pro-life plates while refusing to issue pro-choice ones.63 63.Hill v. Kemp, 478 F.3d 1236, 1239 (10th Cir. 2007); ACLU of Tenn. v. Bredesen, 441 F.3d 370, 371–72 (6th Cir. 2006); Henderson v. Stalder, 407 F.3d 351, 352 (5th Cir. 2005); Planned Parenthood of S.C., Inc. v. Rose, 361 F.3d 786, 787–88 (4th Cir. 2004).Show More In Walker v. Texas Division, Sons of Confederate Veterans, Inc., Texas declined to issue a Sons of Confederate Veterans plate featuring a confederate flag.64 64.Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 135 S. Ct. 2239, 2243–44 (2015).Show More While the Fifth Circuit held that Texas had unconstitutionally discriminated in a forum on the basis of viewpoint,65 65.Id. at 2245.Show More the Supreme Court ruled that specialty license plates were actually government speech, and “[w]hen government speaks, it is not barred by the Free Speech Clause from determining the content of what it says.”66 66.Id.Show More Consequently, the only viewpoints emblazoned on specialty license plates will be the ones endorsed by the government.67 67.See, e.g., ACLU of N.C. v. Tennyson, 815 F.3d 183, 185 (4th Cir. 2016) (allowing North Carolina to issue pro-life specialty license plates without issuing pro-choice plates).Show More

These may seem like insignificant forums, or rather, former speech forums.68 68.In each case, the court held that the speech was not private speech in a forum, but rather government speech outside the protection of the Free Speech Clause. See supra note 10 (describing forums as government-owned spaces open to private speakers and subject to the Free Speech Clause).Show More How much harm can the government do by controlling park statutes and the messages on specialty license plates? Nevertheless, complete control of even these presumably low-stakes forums may have repercussions. After Summum, for example, the primary religious monuments people will see in public parks and other public spaces are likely to be Christian ones.69 69.Cf. Aleksandra Sandstrom, Majority of States Have All-Christian Congressional Delegations, Pew Res. Ctr. (Mar. 21, 2017), https://www.pewresearch.org/fact-tank/2017/03/21/majority-of-states-have-all-christian-congressional-delegations/ [https://perma.cc/U6C3-3U6Y] (“The vast majority of the nation’s federal lawmakers (91%) describe themselves as Christians, compared with 71% of U.S. adults who say the same.”).Show More This link between American government and Christianity, when made again and again,70 70.For example, municipalities across the country erect a nativity scene, which depicts the birth of Jesus Christ, during Christmastime. See, e.g., Freedom from Religion Found., Inc. v. City of Warren, 707 F.3d 686, 689–90 (6th Cir. 2013) (upholding holiday display with nativity in atrium of civic center despite refusing to include Winter Solstice display); Wells v. City & Cty. of Denver, 257 F.3d 1132, 1152–53 (10th Cir. 2002) (upholding City and County Building’s holiday display with nativity scene despite rejecting Winter Solstice sign).Show More in multiple contexts,71 71.For example, in addition to displays, many towns and cities open their legislative sessions with Christian prayers. See, e.g., Town of Greece v. Galloway, 572 U.S. 565, 591–92 (2014) (upholding town’s practice of starting town board meetings with prayer despite most prayers being overwhelmingly Christian).Show More inevitably sends a subtle message that America is a Christian nation and that real Americans are Christian Americans.72 72.Cf. Caroline Mala Corbin, Ceremonial Deism and the Reasonable Religious Outsider, 57 UCLA L. Rev. 1545, 1582 (2010) (“The power of government expression to reinforce the outsider status of certain groups should not be underestimated. While many factors determine a group’s status, symbols of government are one of them, and government’s religious speech signals who belongs and who does not, who is preferred and who is second-class.”).Show More This message from the government runs contrary to the constitutional promise to reject religious hierarchies in favor of religious equality.

Moreover, government speech has not been limited to parks and plates,73 73.In fact, federal appeals courts have held that speech ranging from advertising banners displayed at public schools, Mech v. Sch. Bd. of Palm Beach Cty., 806 F.3d 1070, 1072 (11th Cir. 2015), to tourism brochures displayed for a fee at state rest areas, Vista-Graphics, Inc. v. Va. Dep’t of Transp., 682 F. App’x 231, 236 (4th Cir. 2017), was government speech, thereby allowing the government to exclude viewpoints it found objectionable.Show More and future decisions may more directly implicate democratic self-governance. Erwin Chemerinsky, for example, has wondered, “Could a city library choose to have only books by Republican authors by saying that it is the government speaking?”74 74.Erwin Chemerinsky, Free Speech, Confederate Flags and License Plates, Orange County Reg. (June 25, 2015, 12:00 AM), http://www.ocregister.com/articles/government-668320-texas-license.html [https://perma.cc/6UWX-PPH4].Show More Or could a government Facebook page eliminate unfavorable hyperlinks or public comments on the grounds that everything on its webpage is government speech?75 75.Cf. Sutliffe v. Epping Sch. Dist., 584 F.3d 314, 331 (1st Cir. 2009) (holding that Town website, including hyperlinks to private websites, was government speech); Page v. Lexington Cty. Sch. Dist. One, 531 F.3d 275, 283–85 (4th Cir. 2008) (holding that school district’s website, which included links to private websites, was government speech).Show More

In fact, Trump’s Twitter feed was the focus of a free speech lawsuit by litigants arguing that the feed was a forum.76 76.Knight First Amendment Inst. v. Trump, 302 F. Supp. 3d 541, 549 (S.D.N.Y. 2018); Knight First Amendment Inst. v. Trump, 928 F.3d 226, 233–34 (2d Cir. 2019).Show More Twitter is a modern-day marketplace of ideas.77 77.Two-thirds of adults in the United States now get some of their news from social media, and almost three-quarters of those on Twitter use it at least in part for news. See Elisa Shearer & Jeffrey Gottfried, News Use Across Social Media Platforms 2017, Pew Res. Ctr. (Sept. 7, 2017), http://www.journalism.org/2017/09/07/news-use-across-social-media-platforms-2017/ [https://perma.cc/Y7ZN-P98R] (finding that 67% of users get news on social media at least occasionally and 74% of Twitter users get news on Twitter).Show More Anyone can follow someone and see their “tweets,” whether they contain news or opinion. Moreover, anyone can then comment on the original tweet, either by replying directly or by retweeting the original tweet with added commentary.78 78.Knight, 928 F.3d at 230.Show More Both replies and retweets are publicly visible and amenable to comment.79 79.Id.Show More As is well known, Donald Trump was a prolific tweeter,80 80.Kevin Breuninger, Trump’s Most Memorable Twitter Bombshells of 2018, CNBC.com (Dec. 31, 2018, 11:44 AM), https://www.cnbc.com/2018/12/31/trumps-top-10-biggest-twitter-bombshells-made-history-in-2018.html [https://perma.cc/F6C2-9ZR7] (noting that Trump averaged nearly 10 tweets per day in 2018).Show More and the tweets from his @realDonaldTrump account generated extensive response and media coverage.81 81.Knight, 928 F.3d at 231 (“The President’s tweets produce an extraordinarily high level of public engagement, typically generating thousands of replies, some of which, in turn, generate hundreds of thousands of additional replies.”).Show More (Although Trump inherited @POTUS from Barack Obama for the duration of his presidency, he preferred @realDonaldTrump, which predated his administration.82 82.Meredith MacLeod, We’ve Read All President Trump’s Tweets, So You Don’t Have to, CTVNews.ca (Apr. 28, 2017, 7:09 PM), https://www.ctvnews.ca/world/analysis-we-ve-read-all-president-trump-s-tweets-so-you-don-t-have-to-1.3389513 [https://perma.cc/ZK4N-7CED].Show More)

Before a court declared his conduct unconstitutional,83 83.Knight First Amendment Inst. v. Trump, 302 F. Supp. 3d 541, 549 (S.D.N.Y. 2018) (“We hold that . . . the blocking of the plaintiffs based on their political speech constitutes viewpoint discrimination that violates the First Amendment.”); Knight, 928 F.3d at 234 (“Because we agree that in blocking the Individual Plaintiffs the President engaged in prohibited viewpoint discrimination, we affirm.”).Show More Trump had taken to blocking people who criticized him on his @realDonaldTrump account.84 84.Ashley Feinberg, A Running List of People Donald Trump Has Blocked on Twitter, Wired (June 14, 2017, 3:30 PM), https://www.wired.com/story/donald-trump-twitter-blocked/ [https://perma.cc/94KS-VCLZ].Show More He blocked everyday people, celebrities, nonprofit organizations, and even journalists.85 85.Id.Show More Seven of these blocked Twitter users sued Trump, arguing that his actions violated the Free Speech Clause by discriminating against them on the basis of viewpoint.86 86.Knight, 302 F. Supp. 3d at 549, 553.Show More Trump did not deny that he blocked them because he did not like their comments.87 87.Knight, 928 F.3d at 234 (“The President concedes that he blocked the Individual Plaintiffs because they posted tweets that criticized him or his policies.”).Show More Instead, he argued that the act of blocking did not implicate the Free Speech Clause because his Twitter feed was not a public forum run by the government, but rather, was a purely personal account.88 88.Assoc. Press, Judge to Trump: Muting, Not Blocking Twitter Followers, May End Lawsuit, NBCNews.com (Mar. 8, 2018, 2:56 PM), https://www.nbcnews.com/tech/social-media/judge-trump-muting-not-blocking-twitter-followers-may-end-lawsuit-n854951 [https://perma.cc/7SSC-KWC8]. (“The government says Trump’s Twitter feed is a personal account and not a public forum requiring him to welcome all voices.”).Show More

While President, Trump’s claim that his Twitter feed was purely private was untenable, and every court to consider it has firmly rejected his defense.89 89.A district court, Knight, 302 F. Supp. 3d at 549, and Second Circuit panel, Knight, 928 F.3d at 230–31, have both rejected Trump’s claim, and the Second Circuit declined to rehear the case en banc. Knight First Amendment Institute v. Trump, 953 F.3d 216, 217 (2d Cir. 2020).Show More As one court observed, Trump “use[d] the account to take actions that can be taken only by the President as President.”90 90.Knight, 302 F. Supp. 3d at 567.Show More For example, Trump made official proclamations and announced executive policy from his @realDonaldTrump account.91 91.For example, Trump announced his ban on transgender troops for the first time on Twitter. Jessica Estepa, We’re All Atwitter: Three Times President Trump Made Major Announcements Via Tweets, USA Today (Mar. 13, 2018, 4:33 PM), https://www.usatoday.com/story/news/politics/onpolitics/2018/03/13/were-all-atwitter-3-times-president-trump-made-major-announcements-via-tweets/420085002/ [https://perma.cc/D2HC-KC6A].Show More In fact, the National Archives and Records Administration advised that as official records, the @realDonaldTrump tweets must be preserved pursuant to the Presidential Records Act.92 92.Knight, 928 F.3d at 232.Show More In short, Trump’s Twitter feed, including the interactive part, was not purely private speech, and Trump’s actions with regard to it were government actions that are subject to constitutional limits.93 93.Id. at 236 (“In sum, since [Trump] took office, the President has consistently used the Account as an important tool of governance . . . ”).Show More

Given that Trump used his Twitter account for official purposes, the real risk to the interactive part of Trump’s Twitter feed was not that it would be found to be purely private, but that it would be found to be purely governmental.94 94.Cf. N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270 (1964) (endorsing “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open . . . ”).Show More After all, if a court had deemed Trump’s feed to be government speech, then Trump could have exerted total control over its content and excluded anyone who criticized him or challenged his claims. In fact, Trump argued in the alternative that “to the extent [his Twitter] Account [was] government-controlled, posts on it are government speech to which the First Amendment does not apply.”95 95.Knight, 928 F.3d at 234; see also id. at 237, 239.Show More

There is no gainsaying the importance of the President’s feed to the marketplace of political ideas and democratic self-governance. Before he was banned for inciting a violent insurrection,96 96.Brian Fung, Twitter Bans President Trump Permanently, CNN Business (Jan. 9, 2021, 9:19 AM ET), https://www.cnn.com/2021/01/08/tech/trump-twitter-ban/index.html [https://perma.cc/6HDT-GTCZ] (quoting Twitter explaining that “we have permanently suspended the account due to the risk of further incitement of violence”).Show More Twitter was one of President Trump’s primary channels for communicating with the public. Given Trump’s love of Twitter, blocking people meant depriving them of a crucial in-real-time source of information.97 97.Even if other people retweet Trump, the blocked user sees only a gray box.Show More As one plaintiff lamented, “I may not be crazy about President Trump, but he is my president, and I want to know what he is saying.”98 98.Rebecca Pilar Buckwalter-Poza, Philip Cohen, Eugene Gu, Holly Figueroa & Brandon Neely, I Was Blocked by @realDonaldTrump, Knight First Amend. Inst. (Mar. 25, 2019), https://knightcolumbia.org/content/i-was-blocked-realdonaldtrump [https://perma.cc/YH5M-ZUMB] (quoting Holly Figueroa) [hereinafter I Was Blocked].Show More

In addition, Trump’s Twitter feed provided a rare forum for the exchange of different points of view. In the past, Americans typically shared a common source of news, which exposed them to a range of viewpoints.99 99.Shanto Iyengar & Kyu S. Hahn, Red Media, Blue Media: Evidence of Ideological Selectivity in Media Use, 59 J. Comm. 19, 20 (2009) (“Forty years ago, the great majority of Americans got their daily news from one of three network newscasts [that] offered a homogeneous and generic ‘point-counterpoint’ perspective on the news, thus ensuring that exposure to the news was a common experience.”).Show More Today, the abundance of news sources allows people to select those outlets that tend to confirm their pre-existing world views.100 100.Patricia Donovan, Study Demonstrates How We Support Our False Beliefs, U. Buff. News Ctr. (Aug. 21, 2009), http://www.buffalo.edu/news/releases/2009/08/10364.html [https://perma.cc/XL9X-Z8LK]. (“[R]ather than search rationally for information that either confirms or disconfirms a particular belief, people actually seek out information that confirms what they already believe.”); see also Brendan Nyhan & Jason Reifler, When Corrections Fail: The Persistence of Political Misperceptions, 32 Pol. Behav. 303, 307 (2010) (“[R]espondents may engage in a biased search process, seeking out information that supports their preconceptions and avoiding evidence that undercuts their beliefs.”).Show More Studies show that this is especially true for Trump voters, who have an affinity for conservative media such as Fox News and Breitbart.101 101.Yochai Benkler, Robert Faris, Hal Roberts & Ethan Zuckerman, Study: Breitbart-Led Right-Wing Media Ecosystem Altered Broader Media Agenda, Colum. Journalism Rev. (Mar. 3, 2017), https://www.cjr.org/analysis/breitbart-media-trump-harvard-study.php [https://perma.cc/33JP-HBY5] (noting that Clinton supporters “were highly attentive to traditional media outlets” but Trump supporters inhabited a “distinct and insulated” right-wing media system anchored around Breitbart that “transmit[ted] a hyper-partisan perspective”); see also id. (“[O]ur study suggests that polarization was asymmetric.”); Jeffrey Gottfried, Michael Barthel & Amy Mitchell, Trump, Clinton Voters Divided in Their Main Source for Election News, Pew Res. Ctr. (Jan. 18, 2017), http://www.journalism.org/2017/01/18/trump-clinton-voters-divided-in-their-main-source-for-election-news/ [https://perma.cc/YNL2-2F4J] (noting that Fox News was the main source of news for 40% of Trump voters).Show More Trump’s Twitter feed was arguably one of the few places where people with divergent political outlooks might interact with each other. For the President to block his critics denied them access to a diverse audience and denied them the opportunity to contribute to the formation of public opinion. As one blocked user, and litigant in the suit against Trump, put it, “[b]eing blocked has kept me from participating in critical public conversations.”102 102.I Was Blocked, supra note 98 (quoting Rebecca Buckwalter-Poza); see also id. (quoting Philip Cohen) (“Being blocked by Trump diminished my ability to respond and engage in the political process.”).Show More

Finally, blocking dissenters created a false sense of consensus. It allowed Trump to “create a space on Twitter—where there are millions of people—that he can manipulate to give the impression that more agree with him than actually do.”103 103.I Was Blocked, supra note 98 (quoting Philip Cohen).Show More Erasing opposing viewpoints enhances the persuasiveness of the remaining ones because studies show that positions perceived as popular wield outsized influence.104 104.This proposition, that a position perceived as popular is likely to wield greater influence, was established by the famous Asch studies. In these studies, when subjects were questioned alone, 99% correctly identified the length of a line. When questioned in the presence of those who intentionally gave the same incorrect answer, 70% agreed with the incorrect answer at least once. Solomon E. Asch, Social Psychology 450–59 (1952); see Solomon E. Asch, Studies of Independence and Conformity: A Minority of One Against a Unanimous Majority, 70 Psychol. Monographs: Gen. & Applied 1, 1, 9–24 (1956).Show More “It is a ‘social psychological truism that individuals tend to yield to a majority position even when that position is clearly incorrect.’”105 105.Saumya Manohar, Comment, Look Who’s Talking Now: “Choose Life” License Plates and Deceptive Government Speech, 25 Yale L. & Pol’y Rev. 229, 236 (2006) (quoting Anne Maass & Russell D. Clark, III, Internalization Versus Compliance: Differential Processes Underlying Minority Influence and Conformity, 13 Eur. J. Soc. Psychol. 197, 197 (1983)); see also Stephan Lewandowsky, Ullrich K.H. Ecker & John Cook, Beyond Misinformation: Understanding and Coping with the “Post-Truth” Era, 6 J. Applied Res. Memory & Cognition 353, 361 (2017) (People tend to believe things “that they believe to be widely shared—irrespective of whether or not they are actually widely shared.”).Show More In sum, a free and robust exchange of political ideas should occur on the Twitter feed of the President and other public officials. While Trump is no longer in office, political officials’ use of social media is growing all the time.106 106.See, e.g., Patrick Van Kessel, Regina Widjaya, Sono Shah, Aaron Smith & Adam Hughes, Congress Soars to New Heights on Social Media, Pew Res. Ctr.,(July 16, 2020), https://www.pewresearch.org/internet/2020/07/16/congress-soars-to-new-heights-on-social-media/ [https://perma.cc/JH78-BWU6].Show More Declaring these feeds government speech, subject to total government control, risks distorting the marketplace of political ideas.

2. Capture of Whistleblowers

Potential speech forums are not alone in their importance to democratic self-governance or their vulnerability to First Amendment capture. Government employee speech likewise plays an important role in our democracy, and it has already suffered from the expansion of the government speech doctrine. Citizens in democracies must be able to hold government officials accountable for their actions. To do this, they need information on their public servants.107 107.Lewandowsky, Ecker & Cook, supra note 105, at 354 (“It is a truism that a functioning democracy relies on a well-informed public.”).Show More Because public employees are uniquely well-placed to know what government officials are doing, they are some of the best government whistleblowers.108 108.Pauline T. Kim, Market Norms and Constitutional Values in the Government Workplace, 94 N.C. L. Rev. 601, 642 (2016) (“Because political accountability is the primary means by which the public seeks to ensure that public managers are pursuing public goals, speech by public employees plays a particularly important role in self-governance.”).Show More

Unfortunately, the government speech doctrine’s expansion into the government employee speech context discourages whistleblowing by government employees. Previously, the Free Speech Clause would cover this speech.109 109.Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968) (holding that the idea “that teachers may constitutionally be compelled to relinquish the First Amendment rights they would otherwise enjoy as citizens . . . has been unequivocally rejected in numerous prior decisions of this Court.”).Show More It did not always protect it, but the Court would perform a balancing test, weighing the public’s interest in hearing speech on matters of public concern against the government employer’s interest in avoiding disruption in the workplace.110 110.City of San Diego v. Roe, 543 U.S. 77, 82–83 (2004) (describing the Pickering-Connick balancing test).Show More Since the Supreme Court’s decision in Garcetti v. Ceballos,111 111.547 U.S. 410 (2006).Show More however, if the employees’ speech is “pursuant to . . . official duties,” it is essentially the government’s speech, and therefore not covered by the Free Speech Clause.112 112.Id.at 436 (Souter, J., dissenting) (“The majority accepts the fallacy . . . that any statement made within the scope of public employment is (or should be treated as) the government’s own speech.”).Show More Regardless of how important it may be for political accountability, it lies outside free speech protection.113 113.Id. at 421 (majority opinion) (“We hold that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”).Show More

Due to this new government speech rule, countless public officials lost constitutional protection for reporting government malfeasance in the course of their official duties.114 114.See, e.g., Caroline Mala Corbin, Government Employee Religion, 49 Ariz. St. L.J. 1193, 1244 (2017) (collecting cases).Show More “In fact, in the years following Garcetti, the lower federal courts denied protection to numerous government employees who objected to their employers’ illegal practices, health and safety violations, and financial improprieties.”115 115.Kim, supra note 108, at 644; see also Mark Strasser, Whistleblowing, Public Employees, and the First Amendment, 60 Clev. St. L. Rev. 975, 993 (2013) (“Regrettably, lower courts have learned the lessons of Garcetti quite well. Numerous individuals have suffered adverse employment actions when seeking to expose the kinds of practices that whistleblower protections are designed to bring to light.”).Show More

If government employees can be fired for trying to hold the government to account, then they may just stop trying. As Helen Louise Norton summarized, the Garcetti rule “allows government officials to punish, and thus deter, whistleblowing and other on-the-job speech that would otherwise inform voters’ views and facilitate their ability to hold the government politically accountable for its choices.” 116 116.Helen Norton, Constraining Public Employee Speech: Government’s Control of Its Workers’ Speech to Protect Its Own Expression, 59 Duke L.J. 1, 4 (2009).Show More In short, the expansion of the government speech doctrine—essentially the First Amendment capture of government employee speech—has undermined government accountability.

Thanks to the government speech doctrine, the government does not need to overpower to dominate the marketplace of ideas. Rather, it manages to eliminate the competition with a doctrinal sleight of hand. Once a stream of information is labeled governmental, the state may completely control it and exclude any contrary opinion or whistleblowing it does not like. The Free Speech Clause provides no protection in these cases of First Amendment capture. As the Supreme Court itself acknowledged, “while the government-speech doctrine is important—indeed, essential—it is a doctrine that is susceptible to dangerous misuse.”117 117.Matal v. Tam, 137 S. Ct. 1744, 1758 (2017).Show More

III. Solutions to First Amendment Capture

There are two potential approaches to limiting the risks of censorship created by an ever-expanding government speech doctrine. The first is to limit what is classified as government, as opposed to private, speech. But as discussed below, this may be an imperfect solution if the speech is not, in fact, purely private. The second is to change free speech doctrine by recognizing “mixed speech” as a new category of speech protected by the Free Speech Clause. Thus, which approach is preferable may be case-specific, but a reevaluation of the doctrine is ultimately needed.118 118.Note that while this Article explains the usefulness of a mixed speech category in containing the excesses of the government speech doctrine, it does not recapitulate the comprehensive analysis of mixed speech available in earlier work. See generallyCorbin, supra note 15.Show More

A. Private Speech Not Government Speech

The less-government-speech approach dictates that when the status of speech is in dispute, the speech should usually be categorized as private speech rather than government speech. In other words, private speech is the default. If the contested speech is deemed private speech, then the government cannot censor private speakers under the guise of government speech because any viewpoint restrictions on private speech are subject to strict scrutiny under the Free Speech Clause.119 119.Regardless of the forum, whether traditional, designated, limited, or nonpublic, the government may not discriminate on the basis of viewpoint without passing strict scrutiny. Pleasant Grove City v. Summum, 555 U.S. 460, 469 (2009); Rosenberger v. Rector & Visitors of Univ. of Va, 515 U.S. 819, 829–30 (1995).Show More And only in the rarest of circumstances will speech regulations survive strict scrutiny.120 120.Indeed, the Court tends to characterize them as “presumptively unconstitutional.” See, e.g., Matal v. Tam, 137 S. Ct. 1744, 1766 (2017) (“A law found to discriminate based on viewpoint . . . is ‘presumptively unconstitutional.’”).Show More

Accordingly, a court faced with a claim that a President’s or other politician’s Twitter feed was government speech rather than a government forum hosting private speech should hold that it is a forum for private speech. In this way, the debate on the politician’s policy decisions will remain “uninhibited, robust, and wide-open.”121 121.N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).Show More Everyone would be able to participate in the discussion, and all viewpoints would be aired at one of the few online sites where people with radically different points of view might still interact with each other. Furthermore, the government would no longer be able to manipulate the political conversation to make it seem like its viewpoint was more popular than it really was.122 122.See supra notes 103–105 and accompanying text.Show More

B. Mixed Speech Not Government Speech

The problem with relying on the less-government-speech approach alone is that sometimes the speech in dispute is not actually private speech, or at least it is not only private speech. Take the specialty license plates at issue in Walker v. Texas Division, Sons of Confederate Veterans, Inc., discussed earlier.123 123.135 S. Ct. 2239, 2243 (2015).Show More There is a strong private element. Private individuals select the plate with the message they want, pay extra money for it, and fasten it on their vehicles.124 124.Corbin, supra note 15, at 646–47 (“[N]o one who sees a specialty license plate imprinted with the phrase ‘Choose Life’ would doubt that the owner of that vehicle holds a pro-life viewpoint.”).Show More In my family, we have a “Save the Manatee” specialty license plate because we care enough about these sea creatures to announce that fact and to serve as a “mobile billboard” for their cause.125 125.Cf. Wooley v. Maynard, 430 U.S. 705, 715 (1977) (describing standard license plates “as a ‘mobile billboard’ for the State’s ideological message”).Show More But specialty license plates are also governmental and irreducibly so. After all, the State approves the plates, manufactures them, owns them, and has its name emblazoned across the top.126 126.Corbin, supra note 15, at 647.Show More People will inevitably attribute the plate’s message not just to the car’s owner, but also to the State that issued it. “When the government component in mixed speech is undeniably strong, as it is with specialty license plates, the messages very likely will be linked to the government, regardless of how courts analyze them.”127 127.Id. at 654.Show More

Consequently, a state has a legitimate interest in not endorsing certain messages on plates that bear its name. In Walker, to avoid condoning racism and violating equal protection norms, Texas declined to issue plates with a confederate flag.128 128.Walker, 135 S. Ct. at 2245 (explaining that the state declined the plate because many find the confederate flag offensive and associate it with hate groups); Corbin, supra note 15, at 657 (“States that hoped to keep the Confederate flag off their specialty license plates realized that for many, it represents a celebration of slavery and a not-so-subtly coded message of racial superiority.”).Show More Other states might not want to issue “Say Yes to Jesus” plates to avoid endorsing religion and violating establishment norms.129 129.Corbin, supra note 15, at 659 (“If specialty license plates are treated as purely private speech, then the establishment clause does not forbid, and the free speech clause may require, plates with religious messages. But as discussed above, because the plates are actually mixed speech, the state may well be seen as endorsing these religious messages and will thereby run afoul of the establishment clause.”).Show More Yet, had the Supreme Court held that the license plates—or any other contested speech—were private speech, then the State would not be able to discriminate on the basis of viewpoint.130 130.See supra note 119 and accompanying text (explaining viewpoint regulations are subject to strict scrutiny).Show More If speech is private, then all viewpoints, including racist viewpoints and religious viewpoints, must be allowed.131 131.See supra note 120 and accompanying text (explaining speech regulations subject to strict scrutiny are almost never constitutional).Show More This viewpoint-neutral regime would force the government to associate itself with messages that it should not endorse or tolerate. The same problem may present itself in other situations, whether it be speech by a police chief,132 132.Cf. Cochran v. City of Atlanta, 289 F. Supp. 3d 1276, 1289 (N.D. Ga. 2017) (involving an anti-LGBTQ book written by fire chief and disseminated at work).Show More commemorative bricks on school property,133 133.Cf. Kiesinger v. Mex. Acad. & Cent. Sch., 427 F. Supp. 2d 182, 185 (N.D.N.Y. 2006) (involving commemorative bricks on school property); Demmon v. Loudoun Cty. Pub. Sch., 342 F. Supp. 2d 474, 476 (E.D. Va. 2004) (involving bricks on school property).Show More or advertisements on public transportation.134 134.Am. Freedom Def. Initiative v. King Cty., 796 F.3d 1165, 1168 (9th Cir. 2015) (involving advertisements on city’s transit system); Women’s Health Link, Inc. v. Fort Wayne Pub. Transp. Corp., 826 F.3d 947, 949–50 (7th Cir. 2016) (involving advertisements on city’s buses); see also Corbin, supra note 15, at 623–26 (describing examples of mixed speech).Show More

Under the current binary regime, where speech must be labeled either private speech or government speech, there seems to be no satisfactory solution when elements of both are undeniably present. Labeling a contested stream of speech as government speech removes it entirely from free speech protection, creating the problem of First Amendment capture and government censorship.135 135.See supra Part II.B.Show More But insisting that such speech is private speech, with its bar on viewpoint discrimination, risks giving short shrift to the government interests in disassociating from certain speech.136 136.Corbin, supra note 15, at 656 (“From the government’s perspective, a viewpoint neutrality regime would be objectionable because it would force the government to associate itself with messages that it would not voluntarily endorse or tolerate.”).Show More

A third option is warranted. When contested speech cannot be fairly treated as purely private or purely governmental, it should be treated as falling within a new category: mixed speech.137 137.Id. at 671–72.Show More That is, instead of treating mixed speech as private speech or government speech, acknowledge that it is mixed speech, with both private and government interests present. In contrast to strict scrutiny (for private speech) or no scrutiny (for government speech), any government restrictions on viewpoint would be subject to a rigorous intermediate scrutiny.138 138.Id. at 675 (“This three-part test is a rigorous intermediate scrutiny. Its ‘intermediate scrutiny’ counterpart is the heightened scrutiny given to sex classifications under equal protection rather than the cursory scrutiny given to content-neutral restrictions on expressive conduct.”).Show More

A rigorous intermediate scrutiny means that contested streams of information would no longer fall outside the purview of the Free Speech Clause, thereby guarding against attempts to suppress contrary viewpoints simply because the government disapproves of them. At the same time, it would not leave the government without any control over speech that may be attributed to it. If the government articulates a strong enough reason, such as complying with constitutional values (e.g., equal protection or establishment), and a sufficiently tailored means, then the regulation could survive intermediate scrutiny.

Labeling speech as government speech makes it too easy for the government to censor speech it does not like. Classifying such speech as private speech (when appropriate) and recognizing a category of mixed speech (when the government component precludes classification as private speech) would help forestall the expansion of government speech into realms where it does not belong, and as a result, would preserve the marketplace of ideas and protect government whistleblowers.

Conclusion

Although inescapable and not necessarily detrimental, government speech has the potential to undermine the necessary mechanisms of democracy. In particular, the expansion of the government speech doctrine allows for First Amendment capture. Once speech is labeled government speech, the government may exercise complete control over it. Such control may stymy robust political discussion needed for informed political decision-making or suppress whistleblowing needed for political accountability.

One solution to First Amendment capture is to categorize speech as private speech, rather than government speech, so that any viewpoint-based restrictions are presumptively unconstitutional. Another is to recognize a new category of speech—mixed speech—where viewpoint regulations must pass intermediate scrutiny, thereby allowing the government to regulate when it has a valid reason, yet at the same time preventing First Amendment capture and censorship.

  1. * Professor of Law and Dean’s Distinguished Scholar, University of Miami School of Law. B.A., Harvard University; J.D., Columbia Law School. I would like to thank the participants at the Sixth Annual Freedom of Expression Scholars Conference at Yale Law School. I would also like to thank Michael Cheah and Jean Phillip Shami, my research assistants Alejandra De La Camera and Luciana Jhon Urranaga, and the Virginia Law Review Online staff. Copyright © 2021 by Caroline Mala Corbin. ↑

  2. See infra notes 21–25 and accompanying text. ↑

  3. See generally Abner S. Greene, Government of the Good, 53 Vand. L. Rev

    .

    1, 7–12 (2000) (listing four ways that government speech can be viewed as an affirmative good). ↑

  4. See, e.g., John E. Nowak, Using the Press Clause to Limit Government Speech, 30 Ariz. L. Rev

    .

    1, 9 (1988) (“In recent years, perhaps due to an awareness of the changing factors that increase the danger to our society from government speech, several scholars have examined the topic of whether the judiciary could use the free speech clause of first amendment to limit governmental speech.”); Steven Shiffrin, Government Speech, 27 UCLA L. Rev

    .

    565, 570 (1980) (“The government speech problem is to determine when and by what means government may promote controversial values and when it may not.”); see also Richard Delgado, The Language of the Arms Race: Should the People Limit Government Speech?, 64 B.U. L. Rev

    .

    961 (1984) (discussing prominent themes in the government speech debate); Robert D. Kamenshine, The First Amendment’s Implied Political Establishment Clause, 67 Cal. L. Rev

    .

    1104 (1979) (arguing that the First Amendment prohibits government from advocating political ideas); Mark G. Yudof, When Governments Speak: Toward a Theory of Government Expression and the First Amendment, 57 Tex. L. Rev

    .

    863 (1979) (arguing that governments should not have free speech rights); Edward H. Ziegler, Jr., Government Speech and the Constitution: The Limits of Official Partisanship, 21 B.C. L. Rev

    .

    578 (1980) (arguing that partisan government speech does not and should not receive First Amendment protection). ↑

  5. See, e.g., Kamenshine, supra note 3, at 1104 (“[P]articipation by the government in the dissemination of political ideas poses a threat to open public debate . . . .”); Shiffrin, supra note 3, at 601 (“[O]ne of the problems to be faced in assessing government speech [is] the concern that government speech could result in unacceptable domination of the marketplace and the need for measures to confine the danger.”). ↑

  6. See infra Part I (describing the development of the government speech doctrine). ↑

  7. Reed v. Town of Gilbert, 135 S. Ct. 2218, 2235 (2015) (“The Court has also said that ‘government speech’ escapes First Amendment strictures.”). ↑

  8. Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 828–29 (1995) (“It is axiomatic that the government may not regulate speech based on its substantive content or the message it conveys. . . . When the government targets not subject matter, but particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant.”). ↑

  9. See infra Part I. ↑

  10. See infra notes 26–34 and accompanying text (discussing cases involving specialty license plates and monuments in public parks). ↑

  11. Governments often provide spaces, such as the plaza in front of the town hall, for private citizens to speak. These are known as forums. Different doctrinal rules might apply depending on the type of forum, but viewpoint regulations are always subject to strict scrutiny. See generally Lyrissa Lidsky, Public Forum 2.0, 91 B.U. L. Rev

    .

    1975, 1980–89 (2011) (describing public forum doctrine). ↑

  12. See, e.g., Daniel J. Hemel & Lisa Larrimore Ouellette, Public Perceptions of Government Speech, 2017 Sup. Ct. Rev

    .

    33, 34–35 (2017) (“[W]ithout some meaningful limit on the government’s ability to claim expression as its own, the government speech doctrine could eviscerate the bar on viewpoint discrimination among private speakers.”). ↑

  13. Rachel E. Barkow, Insulating Agencies: Avoiding Agency Capture Through Institutional Design, 89 Tex. L. Rev

    .

    15, 21 n.23 (2010) (“Capture, for the purposes of agency design, may be defined as responsiveness to the desires of the industry or groups being regulated.”). ↑

  14. See infra Part III.B. ↑

  15. In contrast, regulations of private speech regularly trigger strict scrutiny while regulations of government speech trigger no scrutiny at all. See infra Part I. ↑

  16. I have discussed this proposal in an earlier work. See Caroline Mala Corbin, Mixed Speech: When Speech Is Both Private and Governmental, 83 N.Y.U. L. Rev

    .

    605, 675–77 (2008) [hereinafter Corbin, Mixed Speech]. Unlike this Article, the earlier one did not focus on the problems of First Amendment capture. ↑

  17. This Essay focuses on how the Free Speech Clause itself might be mobilized, though obviously solutions might be found elsewhere as well. ↑

  18. Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550, 574 (2005) (Souter, J., dissenting) (“The government-speech doctrine is relatively new, and correspondingly imprecise.”). The 1991 Rust v. Sullivan, 500 U.S. 173 (1991), decision is now heralded as one of the first government speech cases, though the decision itself did not use that term. Rather, a decade later Legal Servs. Corp. v. Velazquez, 531 U.S. 533 (2001), identified Rust as a government speech decision: “The Court in Rust did not place explicit reliance on the rationale that the counseling activities of the doctors under Title X amounted to governmental speech; when interpreting the holding in later cases, however, we have explained Rust on this understanding.” Id. at 541. ↑

  19. Matal v. Tam, 137 S. Ct. 1744, 1757 (2017) (“[O]ur cases recognize that ‘[t]he Free Speech Clause . . . does not regulate government speech.’”). ↑

  20. Iancu v. Brunetti, 139 S. Ct. 2294, 2299 (2019) (“The government may not discriminate against speech based on the ideas or opinions it conveys.”); see also supra note 7. ↑

  21. Johanns, 544 U.S. at 553. ↑

  22. Matal, 137 S. Ct. at 1757 (“[I]mposing a requirement of viewpoint-neutrality on government speech would be paralyzing.”). ↑

  23. Id. ↑

  24. Id. at 1758. ↑

  25. Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 135 S. Ct. 2239, 2246 (2015). ↑

  26. Id. at 2246 (“But, as a general matter, when the government speaks it is entitled to promote a program, to espouse a policy, or to take a position. In doing so, it represents its citizens and it carries out its duties on their behalf.”). ↑

  27. 555 U.S. 460 (2009). ↑

  28. 135 S. Ct. 2239 (2015). ↑

  29. Pleasant Grove City, 555 U.S. at 466. ↑

  30. Id. ↑

  31. Id. at 472. ↑

  32. Walker, 135 S. Ct. at 2245. ↑

  33. Id. at 2246. ↑

  34. Id. at 2253. ↑

  35. Id. at 2245; see also id. at 2245–46 (“Thus, government statements (and government actions and programs that take the form of speech) do not normally trigger the First Amendment rules designed to protect the marketplace of ideas.”). ↑

  36. Cf. Plyler v. Doe, 457 U.S. 202, 213 (1982) (“The Equal Protection Clause was intended to work nothing less than the abolition of all caste-based and invidious class-based legislation.”). ↑

  37. Pleasant Grove City v. Summum, 555 U.S. 460, 468 (2009) (“[G]overnment speech must comport with the Establishment Clause.”). ↑

  38. Walker, 135 S. Ct. at 2245 (“[I]t is the democratic electoral process that first and foremost provides a check on government speech.”). ↑

  39. Pleasant Grove City, 555 U.S. at 468 (quoting Bd. of Regents of Univ. of Wis. Sys. v. Southworth, 529 U.S. 217, 235 (2000)). ↑

  40. Id. at 468–69 (quoting Bd. of Regents, 529 U.S. at 235). ↑

  41. Cf. Kent Greenawalt, Free Speech Justifications, 89 Colum. L. Rev

    .

    119, 120 (1989) (arguing that any attempt to articulate a single unifying theory of free speech risks oversimplification). ↑

  42. See, e.g., Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting) (“[T]he ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market . . . . That at any rate is the theory of our Constitution.”). ↑

  43. See, e.g., First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 776–77 (1978) (“[T]here is practically universal agreement that a major purpose of [the First] Amendment was to protect the free discussion of governmental affairs.”). ↑

  44. See, e.g., C. Edwin Baker, Harm, Liberty, and Free Speech, 70 S. Cal. L. Rev

    .

    979, 980 (1997) (“Speech can relate to autonomy in two ways: as itself an exercise of autonomy or as an informational resource arguably essential for meaningful exercise of autonomy.”). ↑

  45. Yudof, supra note 3, at 865 (“Government expression is critical to the operation of a democratic polity . . .”). ↑

  46. Ziegler, supra note 3, at 585–86 (“If the democratic process is to operate with a minimum of distortion, government information and communication functions in connection with structured political questions must be limited by law to those activities necessary for the effective operation of the process.”). ↑

  47. Greene, supra note 2, at 8–11. As Greene points out, government can make distinctive contributions to public debate. Id. at 8. For example, it can subsidize arts and science. Id. at 9. It can use its power of persuasion to alter social norms regarding race, smoking, and overeating. Id. at 10. Government can also check concentrations of private power. Id. at 11; see also John Fee, Speech Discrimination, 85 B.U. L. Rev. 1103, 1137 (2005). (“[G]overnment can and should make a positive difference in the world of ideas . . .”). ↑

  48. See, e.g., Shiffrin, supra note 3, at 607 (“If a system of free expression is to be preserved, either custom, or statutes, or constitutionally based limitations must provide assurances that government speech will not unfairly dominate the intellectual marketplace.”). ↑

  49. See Delgado, supra note 3, at 961–62. ↑

  50. Greene, supra note 2, at 5 (“Government may, and should, use its speech powers to advance specific conceptions of the good, even if those conceptions are contested, controversial, or seen as favoring a particular viewpoint.”). ↑

  51. Greene, supra note 2, at 27. ↑

  52. Yudof, supra note 3, at 897. ↑

  53. Greene, supra note 2, at 27 (“[A]ctual monopolization [of the speech market] should be understood to violate the Constitution.”); see also Randall P. Bezanson & William G. Buss, The Many Faces of Government Speech, 86 Iowa L. Rev. 1377, 1487 (2001) (“We conclude that government speech should receive little or no immunity from the rules that otherwise apply to government regulations when the government’s speech creates a monopoly for a particular point of view.”). ↑

  54. See, e.g., Steven G. Gey, Why Should the First Amendment Protect Government Speech When the Government Has Nothing to Say?, 95 Iowa L. Rev.

     

    1259, 1264 (2010) (“The real point of these [government speech] cases may not be, as the Court innocuously suggests, to facilitate government speech. Rather, the point may be to give the government another tool with which to silence its critics.”). ↑

  55. See, e.g., Daniel J. Hemel & Lisa Larrimore Ouellette, Public Perceptions of Government Speech, 2017 Sup. Ct. Rev

    .

    33, 34–35 (2017) (“[W]ithout some meaningful limit on the government’s ability to claim expression as its own, the government speech doctrine could eviscerate the bar on viewpoint discrimination among private speakers.”). ↑

  56. Barkow, supra note 12, at 21 n.23 (2010) (“Capture, for the purposes of agency design, may be defined as responsiveness to the desires of the industry or groups being regulated.”). ↑

  57. See supra notes 41–42 and accompanying text. ↑

  58. 555 U.S. 460 (2009). ↑

  59. Id. at 464–65. ↑

  60. Id. at 465. ↑

  61. Summum v. Pleasant Grove City, 483 F.3d 1044, 1050–54, 1057 (10th Cir. 2007). ↑

  62. Pleasant Grove City, 555 U.S. at 464. ↑

  63. “First surfacing in the late 1980s, specialty license plates are now available in most states.” The number of choices varies, with some states offering more than a hundred different options. Corbin, supra note 15, at 608–09. ↑

  64. Hill v. Kemp, 478 F.3d 1236, 1239 (10th Cir. 2007); ACLU of Tenn. v. Bredesen, 441 F.3d 370, 371–72 (6th Cir. 2006); Henderson v. Stalder, 407 F.3d 351, 352 (5th Cir. 2005); Planned Parenthood of S.C., Inc. v. Rose, 361 F.3d 786, 787–88 (4th Cir. 2004). ↑

  65. Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 135 S. Ct. 2239, 2243–44 (2015). ↑

  66. Id. at 2245. ↑

  67. Id. ↑

  68. See, e.g., ACLU of N.C. v. Tennyson, 815 F.3d 183, 185 (4th Cir. 2016) (allowing North Carolina to issue pro-life specialty license plates without issuing pro-choice plates). ↑

  69. In each case, the court held that the speech was not private speech in a forum, but rather government speech outside the protection of the Free Speech Clause. See supra note 10 (describing forums as government-owned spaces open to private speakers and subject to the Free Speech Clause). ↑

  70. Cf. Aleksandra Sandstrom, Majority of States Have All-Christian Congressional Delegations, Pew Res. Ctr

    .

    (Mar. 21, 2017), https://www.pewresearch.org/fact-tank/2017/03/21/majority-of-states-have-all-christian-congressional-delegations/ [https://perma.cc/U6C3-3U6Y] (“The vast majority of the nation’s federal lawmakers (91%) describe themselves as Christians, compared with 71% of U.S. adults who say the same.”). ↑

  71. For example, municipalities across the country erect a nativity scene, which depicts the birth of Jesus Christ, during Christmastime. See, e.g., Freedom from Religion Found., Inc. v. City of Warren, 707 F.3d 686, 689–90 (6th Cir. 2013) (upholding holiday display with nativity in atrium of civic center despite refusing to include Winter Solstice display); Wells v. City & Cty. of Denver, 257 F.3d 1132, 1152–53 (10th Cir. 2002) (upholding City and County Building’s holiday display with nativity scene despite rejecting Winter Solstice sign). ↑

  72. For example, in addition to displays, many towns and cities open their legislative sessions with Christian prayers. See, e.g., Town of Greece v. Galloway, 572 U.S. 565, 591–92 (2014) (upholding town’s practice of starting town board meetings with prayer despite most prayers being overwhelmingly Christian). ↑

  73. Cf. Caroline Mala Corbin, Ceremonial Deism and the Reasonable Religious Outsider, 57 UCLA L. Rev

    .

    1545, 1582 (2010) (“The power of government expression to reinforce the outsider status of certain groups should not be underestimated. While many factors determine a group’s status, symbols of government are one of them, and government’s religious speech signals who belongs and who does not, who is preferred and who is second-class.”). ↑

  74. In fact, federal appeals courts have held that speech ranging from advertising banners displayed at public schools, Mech v. Sch. Bd. of Palm Beach Cty., 806 F.3d 1070, 1072 (11th Cir. 2015), to tourism brochures displayed for a fee at state rest areas, Vista-Graphics, Inc. v. Va. Dep’t of Transp., 682 F. App’x 231, 236 (4th Cir. 2017), was government speech, thereby allowing the government to exclude viewpoints it found objectionable. ↑

  75. Erwin Chemerinsky, Free Speech, Confederate Flags and License Plates, Orange County Reg. (June 25, 2015, 12:00 AM), http://www.ocregister.com/articles/government-668320-texas-license.html [https://perma.cc/6UWX-PPH4]. ↑

  76. Cf. Sutliffe v. Epping Sch. Dist., 584 F.3d 314, 331 (1st Cir. 2009) (holding that Town website, including hyperlinks to private websites, was government speech); Page v. Lexington Cty. Sch. Dist. One, 531 F.3d 275, 283–85 (4th Cir. 2008) (holding that school district’s website, which included links to private websites, was government speech). ↑

  77. Knight First Amendment Inst. v. Trump, 302 F. Supp. 3d 541, 549 (S.D.N.Y. 2018); Knight First Amendment Inst. v. Trump, 928 F.3d 226, 233–34 (2d Cir. 2019). ↑

  78. Two-thirds of adults in the United States now get some of their news from social media, and almost three-quarters of those on Twitter use it at least in part for news. See Elisa Shearer & Jeffrey Gottfried, News Use Across Social Media Platforms 2017, Pew Res. Ctr

    .

    (Sept. 7, 2017), http://www.journalism.org/2017/09/07/news-use-across-social-media-platforms-2017/ [https://perma.cc/Y7ZN-P98R] (finding that 67% of users get news on social media at least occasionally and 74% of Twitter users get news on Twitter). ↑

  79. Knight, 928 F.3d at 230. ↑

  80. Id. ↑

  81. Kevin Breuninger, Trump’s Most Memorable Twitter Bombshells of 2018, CNBC.com (Dec. 31, 2018, 11:44 AM), https://www.cnbc.com/2018/12/31/trumps-top-10-biggest-twitter-bombshells-made-history-in-2018.html [https://perma.cc/F6C2-9ZR7] (noting that Trump averaged nearly 10 tweets per day in 2018). ↑

  82. Knight, 928 F.3d at 231 (“The President’s tweets produce an extraordinarily high level of public engagement, typically generating thousands of replies, some of which, in turn, generate hundreds of thousands of additional replies.”). ↑

  83. Meredith MacLeod, We’ve Read All President Trump’s Tweets, So You Don’t Have to, CTVNews.ca (Apr. 28, 2017, 7:09 PM), https://www.ctvnews.ca/world/analysis-we-ve-read-all-president-trump-s-tweets-so-you-don-t-have-to-1.3389513 [https://perma.cc/ZK4N-7CED]. ↑

  84. Knight First Amendment Inst. v. Trump, 302 F. Supp. 3d 541, 549 (S.D.N.Y. 2018) (“We hold that . . . the blocking of the plaintiffs based on their political speech constitutes viewpoint discrimination that violates the First Amendment.”); Knight, 928 F.3d at 234 (“Because we agree that in blocking the Individual Plaintiffs the President engaged in prohibited viewpoint discrimination, we affirm.”). ↑

  85. Ashley Feinberg, A Running List of People Donald Trump Has Blocked on Twitter, Wired (June 14, 2017, 3:30 PM), https://www.wired.com/story/donald-trump-twitter-blocked/ [https://perma.cc/94KS-VCLZ]. ↑

  86. Id.

     

    ↑

  87. Knight, 302 F. Supp. 3d at 549, 553. ↑

  88. Knight, 928 F.3d at 234 (“The President concedes that he blocked the Individual Plaintiffs because they posted tweets that criticized him or his policies.”). ↑

  89. Assoc. Press, Judge to Trump: Muting, Not Blocking Twitter Followers, May End Lawsuit, NBCNews.com (Mar. 8, 2018, 2:56 PM), https://www.nbcnews.com/tech/social-media/judge-trump-muting-not-blocking-twitter-followers-may-end-lawsuit-n854951 [https://perma.cc/7SSC-KWC8]. (“The government says Trump’s Twitter feed is a personal account and not a public forum requiring him to welcome all voices.”). ↑

  90. A district court, Knight, 302 F. Supp. 3d at 549, and Second Circuit panel, Knight, 928 F.3d at 230–31, have both rejected Trump’s claim, and the Second Circuit declined to rehear the case en banc. Knight First Amendment Institute v. Trump, 953 F.3d 216, 217 (2d Cir. 2020). ↑

  91. Knight, 302 F. Supp. 3d at 567. ↑

  92. For example, Trump announced his ban on transgender troops for the first time on Twitter. Jessica Estepa, We’re All Atwitter: Three Times President Trump Made Major Announcements Via Tweets, USA Today (Mar. 13, 2018, 4:33 PM), https://www.usatoday.com/story/news/politics/onpolitics/2018/03/13/were-all-atwitter-3-times-president-trump-made-major-announcements-via-tweets/420085002/ [https://perma.cc/D2HC-KC6A]. ↑

  93. Knight, 928 F.3d at 232. ↑

  94. Id. at 236 (“In sum, since [Trump] took office, the President has consistently used the Account as an important tool of governance . . . ”). ↑

  95. Cf. N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270 (1964) (endorsing “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open . . . ”). ↑

  96. Knight, 928 F.3d at 234; see also id. at 237, 239. ↑

  97. Brian Fung, Twitter Bans President Trump Permanently, CNN Business (Jan. 9, 2021, 9:19 AM ET), https://www.cnn.com/2021/01/08/tech/trump-twitter-ban/index.html [https://perma.cc/6HDT-GTCZ] (quoting Twitter explaining that “we have permanently suspended the account due to the risk of further incitement of violence”). ↑

  98. Even if other people retweet Trump, the blocked user sees only a gray box. ↑

  99. Rebecca Pilar Buckwalter-Poza, Philip Cohen, Eugene Gu, Holly Figueroa & Brandon Neely, I Was Blocked by @realDonaldTrump, Knight First Amend. Inst

    .

    (Mar. 25, 2019), https://knightcolumbia.org/content/i-was-blocked-realdonaldtrump [https://perma.cc/YH5M-ZUMB] (quoting Holly Figueroa) [hereinafter I Was Blocked]. ↑

  100. Shanto Iyengar & Kyu S. Hahn, Red Media, Blue Media: Evidence of Ideological Selectivity in Media Use, 59 J. Comm

    .

    19, 20 (2009) (“Forty years ago, the great majority of Americans got their daily news from one of three network newscasts [that] offered a homogeneous and generic ‘point-counterpoint’ perspective on the news, thus ensuring that exposure to the news was a common experience.”). ↑

  101. Patricia Donovan, Study Demonstrates How We Support Our False Beliefs, U. Buff. News Ctr. (Aug. 21, 2009), http://www.buffalo.edu/news/releases/2009/08/10364.html [https://perma.cc/XL9X-Z8LK]. (“[R]ather than search rationally for information that either confirms or disconfirms a particular belief, people actually seek out information that confirms what they already believe.”); see also Brendan Nyhan & Jason Reifler, When Corrections Fail: The Persistence of Political Misperceptions, 32 Pol. Behav

    .

    303, 307 (2010) (“[R]espondents may engage in a biased search process, seeking out information that supports their preconceptions and avoiding evidence that undercuts their beliefs.”). ↑

  102. Yochai Benkler, Robert Faris, Hal Roberts & Ethan Zuckerman, Study: Breitbart-Led Right-Wing Media Ecosystem Altered Broader Media Agenda, Colum. Journalism Rev

    .

    (Mar. 3, 2017), https://www.cjr.org/analysis/breitbart-media-trump-harvard-study.php [https://perma.cc/33JP-HBY5] (noting that Clinton supporters “were highly attentive to traditional media outlets” but Trump supporters inhabited a “distinct and insulated” right-wing media system anchored around Breitbart that “transmit[ted] a hyper-partisan perspective”); see also id. (“[O]ur study suggests that polarization was asymmetric.”); Jeffrey Gottfried, Michael Barthel & Amy Mitchell, Trump, Clinton Voters Divided in Their Main Source for Election News, Pew Res. Ctr

    .

    (Jan. 18, 2017), http://www.journalism.org/2017/01/18/trump-clinton-voters-divided-in-their-main-source-for-election-news/ [https://perma.cc/YNL2-2F4J] (noting that Fox News was the main source of news for 40% of Trump voters). ↑

  103. I Was Blocked, supra note 98 (quoting Rebecca Buckwalter-Poza); see also id. (quoting Philip Cohen) (“Being blocked by Trump diminished my ability to respond and engage in the political process.”). ↑

  104. I Was Blocked, supra note 98 (quoting Philip Cohen). ↑

  105. This proposition, that a position perceived as popular is likely to wield greater influence, was established by the famous Asch studies. In these studies, when subjects were questioned alone, 99% correctly identified the length of a line. When questioned in the presence of those who intentionally gave the same incorrect answer, 70% agreed with the incorrect answer at least once. Solomon E. Asch, Social Psychology 450–59 (1952); see Solomon E. Asch, Studies of Independence and Conformity: A Minority of One Against a Unanimous Majority, 70 Psychol. Monographs: Gen. & Applied 1, 1, 9–24 (1956). ↑

  106. Saumya Manohar, Comment, Look Who’s Talking Now: “Choose Life” License Plates and Deceptive Government Speech, 25 Yale L. & Pol’y Rev

    .

    229, 236 (2006) (quoting Anne Maass & Russell D. Clark, III, Internalization Versus Compliance: Differential Processes Underlying Minority Influence and Conformity, 13 Eur. J. Soc. Psychol

    .

    197, 197 (1983)); see also Stephan Lewandowsky, Ullrich K.H. Ecker & John Cook, Beyond Misinformation: Understanding and Coping with the “Post-Truth” Era, 6 J. Applied Res. Memory & Cognition 353, 361 (2017) (People tend to believe things “that they believe to be widely shared—irrespective of whether or not they are actually widely shared.”). ↑

  107. See, e.g., Patrick Van Kessel, Regina Widjaya, Sono Shah, Aaron Smith & Adam Hughes, Congress Soars to New Heights on Social Media, Pew Res. Ctr.

    ,

    (July 16, 2020), https://www.pewresearch.org/internet/2020/07/16/congress-soars-to-new-heights-on-social-media/ [https://perma.cc/JH78-BWU6]. ↑

  108. Lewandowsky, Ecker & Cook, supra note 105, at 354 (“It is a truism that a functioning democracy relies on a well-informed public.”). ↑

  109. Pauline T. Kim, Market Norms and Constitutional Values in the Government Workplace, 94 N.C. L. Rev

    .

    601, 642 (2016) (“Because political accountability is the primary means by which the public seeks to ensure that public managers are pursuing public goals, speech by public employees plays a particularly important role in self-governance.”). ↑

  110. Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968) (holding that the idea “that teachers may constitutionally be compelled to relinquish the First Amendment rights they would otherwise enjoy as citizens . . . has been unequivocally rejected in numerous prior decisions of this Court.”). ↑

  111. City of San Diego v. Roe, 543 U.S. 77, 82–83 (2004) (describing the Pickering-Connick balancing test). ↑

  112. 547 U.S. 410 (2006). ↑

  113. Id. at 436 (Souter, J., dissenting) (“The majority accepts the fallacy . . . that any statement made within the scope of public employment is (or should be treated as) the government’s own speech.”). ↑

  114. Id. at 421 (majority opinion) (“We hold that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”). ↑

  115. See, e.g., Caroline Mala Corbin, Government Employee Religion, 49 Ariz. St. L.J

    .

    1193, 1244 (2017) (collecting cases). ↑

  116. Kim, supra note 108, at 644; see also Mark Strasser, Whistleblowing, Public Employees, and the First Amendment, 60 Clev. St. L. Rev

    .

    975, 993 (2013) (“Regrettably, lower courts have learned the lessons of Garcetti quite well. Numerous individuals have suffered adverse employment actions when seeking to expose the kinds of practices that whistleblower protections are designed to bring to light.”). ↑

  117. Helen Norton, Constraining Public Employee Speech: Government’s Control of Its Workers’ Speech to Protect Its Own Expression, 59 Duke L.J. 1, 4 (2009). ↑

  118. Matal v. Tam, 137 S. Ct. 1744, 1758 (2017). ↑

  119. Note that while this Article explains the usefulness of a mixed speech category in containing the excesses of the government speech doctrine, it does not recapitulate the comprehensive analysis of mixed speech available in earlier work. See generally Corbin, supra note 15. ↑

  120. Regardless of the forum, whether traditional, designated, limited, or nonpublic, the government may not discriminate on the basis of viewpoint without passing strict scrutiny. Pleasant Grove City v. Summum, 555 U.S. 460, 469 (2009); Rosenberger v. Rector & Visitors of Univ. of Va, 515 U.S. 819, 829–30 (1995). ↑

  121. Indeed, the Court tends to characterize them as “presumptively unconstitutional.” See, e.g., Matal v. Tam, 137 S. Ct. 1744, 1766 (2017) (“A law found to discriminate based on viewpoint . . . is ‘presumptively unconstitutional.’”). ↑

  122. N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). ↑

  123. See supra notes 103–105 and accompanying text. ↑

  124. 135 S. Ct. 2239, 2243 (2015). ↑

  125. Corbin, supra note 15, at 646–47 (“[N]o one who sees a specialty license plate imprinted with the phrase ‘Choose Life’ would doubt that the owner of that vehicle holds a pro-life viewpoint.”). ↑

  126. Cf. Wooley v. Maynard, 430 U.S. 705, 715 (1977) (describing standard license plates “as a ‘mobile billboard’ for the State’s ideological message”). ↑

  127. Corbin, supra note 15, at 647. ↑

  128. Id. at 654. ↑

  129. Walker, 135 S. Ct. at 2245 (explaining that the state declined the plate because many find the confederate flag offensive and associate it with hate groups); Corbin, supra note 15, at 657 (“States that hoped to keep the Confederate flag off their specialty license plates realized that for many, it represents a celebration of slavery and a not-so-subtly coded message of racial superiority.”). ↑

  130. Corbin, supra note 15, at 659 (“If specialty license plates are treated as purely private speech, then the establishment clause does not forbid, and the free speech clause may require, plates with religious messages. But as discussed above, because the plates are actually mixed speech, the state may well be seen as endorsing these religious messages and will thereby run afoul of the establishment clause.”). ↑

  131. See supra note 119 and accompanying text (explaining viewpoint regulations are subject to strict scrutiny). ↑

  132. See supra note 120 and accompanying text (explaining speech regulations subject to strict scrutiny are almost never constitutional). ↑

  133. Cf. Cochran v. City of Atlanta, 289 F. Supp. 3d 1276, 1289 (N.D. Ga. 2017) (involving an anti-LGBTQ book written by fire chief and disseminated at work). ↑

  134. Cf. Kiesinger v. Mex. Acad. & Cent. Sch., 427 F. Supp. 2d 182, 185 (N.D.N.Y. 2006) (involving commemorative bricks on school property); Demmon v. Loudoun Cty. Pub. Sch., 342 F. Supp. 2d 474, 476 (E.D. Va. 2004) (involving bricks on school property). ↑

  135. Am. Freedom Def. Initiative v. King Cty., 796 F.3d 1165, 1168 (9th Cir. 2015) (involving advertisements on city’s transit system); Women’s Health Link, Inc. v. Fort Wayne Pub. Transp. Corp., 826 F.3d 947, 949–50 (7th Cir. 2016) (involving advertisements on city’s buses); see also Corbin, supra note 15, at 623–26 (describing examples of mixed speech). ↑

  136. See supra Part II.B. ↑

  137. Corbin, supra note 15, at 656 (“From the government’s perspective, a viewpoint neutrality regime would be objectionable because it would force the government to associate itself with messages that it would not voluntarily endorse or tolerate.”). ↑

  138. Id. at 671–72. ↑

  139. Id. at 675 (“This three-part test is a rigorous intermediate scrutiny. Its ‘intermediate scrutiny’ counterpart is the heightened scrutiny given to sex classifications under equal protection rather than the cursory scrutiny given to content-neutral restrictions on expressive conduct.”). ↑

©Virginia Law Review Association. All rights reserved.