Article - Virginia Law Review

Becoming the “Bill of Rights”: The First Ten Amendments from Founding to Reconstruction

The first ten amendments to the federal Constitution have no formal title. It is only by cultural tradition that Americans refer to these provisions as our national “Bill of Rights.” Until recently, most scholars assumed that this tradition could be traced back to the moment of ratification. Over the last decade or so, however, a number of scholars have challenged this assumption. These “Bill of Rights revisionists” claim that Americans did not commonly refer to the first ten amendments as “the bill of rights” until the twentieth century. Prior to that, most Americans either did not believe they had a national bill of rights, or they would have more likely pointed to the Declaration of Independence as the country’s “bill of rights.” If the revisionists are right, then a substantial portion of constitutional historical scholarship is shot through with historical error, in particular scholarship supporting the incorporation of the Bill of Rights as part of the Fourteenth Amendment.

This Article conducts an exhaustive investigation of political, legal, and cultural references to the “bill of rights” from the time of the Founding to Reconstruction (and beyond). These references, most of which are presented here for the first time, prove that the revisionist claims about the first ten amendments are false. Long before the twentieth century, and decades before Reconstruction, Americans commonly referred to the 1791 amendments as “the Bill of Rights.” These references vastly outnumber historical references to the Declaration of Independence as a “bill of rights,” and indicate that nineteenth-century Americans were not at all confused about the meaning and content of their national “Bill of Rights.” If any revision is in order, it is the need to revisit and revise our understanding of how post-Civil War Americans abandoned the original federalist understanding of the Bill of Rights and embraced a new nationalist understanding of their enumerated rights.

Introduction

Americans commonly refer to the first ten amendments to the federal Constitution as “the Bill of Rights.” The amendments themselves, however, have no such title. Unlike the “Declaration of Rights” annexed to many state constitutions,¹1.See, e.g., Va. Const. art. 1 (drafted 1776, affixed to its constitution in 1830); Pa. Const. ch. I (1776); Mass. Const. pt. I (1780).Show More the ten amendments added to the federal Constitution in 1791 have no formal title at all.²2.For a transcription of the official copy of the 1791 amendments, including the message submitted with the original proposed twelve amendments, see The Bill of Rights: A Transcription, National Archives, https://www.archives.gov/founding-docs/bill-of-rights-transcript [https://perma.cc/5YP9-2EPP] (last visited Jan. 15, 2024). For a PDF of the actual document, see The Bill of Rights, National Archives, https://www.archives.gov/founding-docs/bill-of-rights [https://perma.cc/5K6S-4ZRD] (last visited Jan. 15, 2024).Show More It is only by cultural tradition that Americans refer to these provisions as our national “Bill of Rights.” Until recently, scholars assumed that this tradition could be traced back to the moment of ratification.

Over the last decade or so, however, a number of scholars have challenged this assumption. These “Bill of Rights revisionists” claim that Americans did not commonly refer to the first ten amendments as “the Bill of Rights” until the twentieth century.³3.See, e.g., Randy Barnett & Evan Bernick, The Original Meaning of the Fourteenth Amendment: Its Letter and Spirit 326 (2021) (“[T]his phrase [the Bill of Rights] did not commonly refer to the first ten amendments until sometime in the twentieth century . . . . [E]ven after the first ten amendments were added to the end [of the Constitution], people often characterized the rights affirmed by the previously enacted Declaration of Independence as a ‘bill of rights.’”); Ilan Wurman, The Second Founding: An Introduction to the Fourteenth Amendment 111 (2020) (“[T]he term ‘bill of rights’ was not used as a term of art for the first eight Amendments to the U.S. Constitution until well after the Civil War.”); Gerard N. Magliocca, The Heart of the Constitution: How the Bill of Rights Became the Bill of Rights 6 (2018) (“The belief that the first ten amendments are the Bill of Rights did not become dominant until the twentieth century.”); Michael J. Douma, How the First Ten Amendments Became the Bill of Rights, 15 Geo. J.L. & Pub. Pol’y 593, 609–11 (2017) (explaining that the term “Bill of Rights” was not defined as the first ten amendments prior to the late 1920s and early 1930s); Pauline Maier, The Strange History of the Bill of Rights, 15 Geo. J.L. & Pub. Pol’y 497, 506–11 (2017) (arguing that the “Bill of Rights” did not take on its current meaning as a reference to the 1791 amendments until the 1930s).Show More Prior to that, revisionists argue, most Americans either did not believe they had a national bill of rights⁴4.Magliocca, supra note 3, at 5 (“[D]uring the nineteenth century, most people simply did not think that the country had a national bill of rights . . . .”).Show More or they would have pointed to the Declaration of Independence as the country’s “bill of rights.”⁵5.Id. at 58–59 (“Until 1860, the first ten amendments lagged well behind the Declaration of Independence in the race for public recognition as the national bill of rights.”); Maier, supra note 3, at 503 (“The most important statement of rights for early nineteenth century Americans—particularly those who opposed slavery—was not what we call the Bill of Rights but the Declaration of Independence.”); see also Barnett & Bernick, supra note 3, at 326 (arguing that “even after the first ten amendments were added to the [Constitution], people often characterized the rights affirmed by the previously enacted Declaration of Independence as a ‘bill of rights’”).Show More A number of revisionists insist that nineteenth-century Americans used the term “bill of rights” as an abstract reference to a variety of culturally important documents, including the Declaration of Independence and the entire federal Constitution.⁶6.Douma, supra note 3, at 600–01 (“[A] bill of rights was conceived of as an abstraction . . . . [I]n the early Republic, ‘bill of rights’ as a term was quite distinct from and referred to more than just the first ten amendments.”); id. at 602 (noting that prior to the twentieth century, the term “Bill of Rights” was more often used as an “abstract concept” than a reference to a specific document); Randy Barnett & Evan Bernick, The Privileges or Immunities Clause Abridged: A Critique of Kurt Lash on the Fourteenth Amendment, 95 Notre Dame L. Rev. 499, 568–69 (2019) (first citing Magliocca, supra note 3, at 6, 90; then citing Douma, supra note 3, at 609–11; and then citing Maier, supra note 3, at 506–11) (“To begin with, recent scholarship has shown that the first eight or ten amendments to the Constitution were not commonly referred to as ‘the Bill of Rights’ until well into the twentieth century . . . . [As late as 1868,] ‘the Bill of Rights’ lacked a standard meaning.”).Show More These scholars maintain that the term “bill of rights” remained a “mass of linguistic confusion” until the twentieth century, when common usage finally coalesced around the 1791 amendments.⁷7.Douma, supra note 3, at 598.Show More

If the revisionists are right, then a substantial portion of constitutional historical scholarship is shot through with historical error.⁸8.According to Randy Barnett and Evan Bernick, “[a]ttributing the post-New Deal meaning of ‘the Bill of Rights’ to the pre-Fourteenth Amendment public is anachronistic. (Although, we admit, it was an understandable mistake to have made before this recent revisionist scholarship.).” Barnett & Bernick, supra note 6, at 568. Similarly, Michael Douma insists that “anachronistic” scholarly references to the 1791 amendments as the “bill of rights” “runs through the whole sub-field of constitutional history.” Douma, supra note 3, at 596.Show More For more than a century, historians and legal scholars have presumed that, absent a specific signal indicating otherwise, nineteenth-century references to the American “bill of rights” referred to the rights listed in the 1791 amendments.⁹9.A full list would fill libraries. Among some of the more influential works that would have to be revised or reevaluated would include 1 Joseph Story, Commentaries on the Constitution 276 (1st ed. 1833); Thomas Cooley, The General Principles of Constitutional Law in the United States 199–204 (1880); Edward Dumbauld, The Bill of Rights and What It Means Today vii (1957); Learned Hand, The Bill of Rights 1–2 (1958); Charles Fairman, Reconstruction and Reunion, 1864–88: Part One, in 6 The Oliver Wendell Holmes Devise: History of the Supreme Court of the United States 1123–24 (1971); Bernard Schwartz, The Great Rights of Mankind: A History of the American Bill of Rights 165–67 (1992); Michael Kent Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights 1 (1986); Akhil Reed Amar, The Bill of Rights: Creation and Reconstructionxi (1998); Leonard W. Levy, Origins of the Bill of Rights 1 (1999); Carol Berkin, The Bill of Rights: The Fight to Secure America’s Liberties 1–3 (2015).Show More If this assumption is not correct, then this calls into question a great body of historical scholarship on everything from the history of the original “bill of rights,”¹⁰10.See, e.g., Levy, supra note 9, at 1.Show More to antebellum abolitionist efforts to enforce “the bill of rights,”¹¹11.See, e.g., Kent Curtis, supra note 9, at 51–54; Amar, supra note 9, at 161–62.Show More to Reconstruction Republican claims that the Fourteenth Amendment would apply “the bill of rights” against the states.¹²12.See, e.g., 2 G. Edward White, Law in American History: From Reconstruction Through the 1920s, at 10 (2016).Show More Moreover, since scholars and judges (including Supreme Court Justices) have relied on this scholarship in considering whether the Fourteenth Amendment incorporates the Bill of Rights, revisionist claims call into question the historical justification for contemporary incorporation doctrine.¹³13.See, e.g., McDonald v. City of Chicago, 561 U.S. 742, 754 (2010); Adamson v. California, 332 U.S. 46, 70–72, 92–110 (1947) (Black, J., dissenting); McDonald, 561 U.S. at 828 (Thomas, J., concurring in part and concurring in the judgment) (discussing the history of the Fourteenth Amendment, including Justice Black’s historical appendix in Adamson). Bill of Rights revisionism, if correct, also would require rethinking a number of additional common assumptions in legal historical scholarship, including the presumed shift from a federalist reading of the 1791 “bill of rights” to a more libertarian understanding at the time of Reconstruction. See Amar, supra note 9, at 190, 284. But see Maier, supranote 3, at 505 (specifically rejecting Amar’s account). Revisionism also calls into question scholarship on the move from natural rights to a more positivist approach to legal rights during the nineteenth century. Presumptions that Americans came to view the Constitution with its “bill of rights” as representing a document of the unified American people rather than a federalist document of limited national power guaranteeing reserved powers to the states would also have to be re-envisioned since, again, much of this scholarship relies on antebellum discussions of the “bill of rights.”Show More

This Article examines the historical record in order to determine whether the claims of the Bill of Rights revisionists are correct. It presents the results of an exhaustive investigation of political, legal, and cultural references to the “bill of rights” from the time of the Founding to the end of the nineteenth century. These references, most of which are presented here for the first time, suggest that the central revisionist claims are false. Long before the twentieth century, and decades before Reconstruction, Americans commonly referred to the first ten constitutional amendments as “the Bill of Rights.” References to the 1791 amendments as the national bill of rights vastly outnumber historical references to the Declaration of Independence as a “bill of rights,” and nineteenth-century Americans were not at all confused about the meaning and content of the national “Bill of Rights.”

Although antebellum Americans embraced the ten amendments as their Bill of Rights, their understanding of those amendments significantly changed between the Founding and Reconstruction. At the time of the Founding, most Americans viewed the national Bill of Rights as symbolizing a general theory of limited and enumerated federal power.¹⁴14.See infra note 136 and accompanying text.Show More Over time, however, this federalist understanding of the Bill of Rights gave way to a more individual-liberty reading of the ten amendments.¹⁵15.See infra note 277 and accompanying text.Show More By the time of Reconstruction, both Democrats and Republicans viewed the Bill of Rights as declaring the fundamental rights of American citizenship.¹⁶16.See infra note 318 and accompanying text.Show More When John Bingham proposed the addition of an amendment enforcing the “Bill of Rights” against the states, his colleagues understood the proposal as an effort to enforce the personal rights listed in the 1791 amendments. To date, scholars have failed to recognize the significance of the Reconstruction-era vision of “the Bill of Rights” and the role it played in the original understanding of Section One of the Fourteenth Amendment.

* * *

This Article begins by briefly addressing the basic claims of Bill of Rights revisionists. Although not entirely uniform in their individual conclusions or theoretical approach, they share a number of common assertions. All insist that references to the ten amendments as a bill of rights were extremely rare between the time of the Founding and Reconstruction. This rarity, we are told, reflects the fact that the 1791 amendments lacked the essential characteristics of a bill of rights in late-eighteenth-century America—the amendments did not “look” like a bill of rights.¹⁷17.See, e.g., Maier, supra note 3, at 500 (“Congress did not label the amendments it endorsed a Bill of Rights nor did they look like one to eighteenth century Americans.”); Magliocca, supra note 3, at 37 (“[O]ne reason that the ten amendments ratified by the states in 1791 were not seen as a bill of rights is that they did not match the eighteenth-century expectations of how one was supposed to look.”).Show More During the first half of the nineteenth century, revisionists claim, almost no one referred to the 1791 amendments as a bill of rights.¹⁸18.Magliocca, supra note 3, at 5 (“[F]or more than a century after the first ten amendments were ratified, hardly anyone called them a bill of rights, let alone the Bill of Rights.”).Show More Although some referred to the 1791 amendments as having “the nature of a bill of rights” or were “equivalent to a bill of rights,” they avoided actually naming the amendments “the Bill of Rights.”¹⁹19.Maier, supra note 3, at 502 (emphases added) (noting that such phrases were “more descriptive than [normative]”—“[t]hat is, they fell short of giving [the amendments] the name”).Show More Instead, antebellum Americans more often pointed to the Declaration of Independence as the nation’s Bill of Rights.²⁰20.Magliocca, supra note 3, at 58–59 (“Until 1860, the first ten amendments lagged well behind the Declaration of Independence in the race for public recognition as the national bill of rights.”); Maier, supra note 3, at 503 (“The most important statement of rights for early nineteenth century Americans—particularly those who opposed slavery—was not what we call the Bill of Rights but the Declaration of Independence.”); see also Barnett & Bernick, supra note 3, at 326 (“[T]his phrase [the Bill of Rights] did not commonly mean the first ten amendments until sometime in the twentieth century. . . . [E]ven after the first ten amendments were added to the end [of the Constitution], people often characterized the rights affirmed by the previously enacted Declaration of Independence as a ‘bill of rights.’”).Show More Although some revisionists point to Reconstruction as the moment when Americans began to call the ten amendments a bill of rights, others insist that the term “bill of rights” remained an “abstract concept” that would not be clarified prior to the twentieth century.²¹21.Douma, supra note 3, at 602.Show More Part I concludes by analyzing the empirical nature of the revisionists’ claims and the manner by which such claims can be tested.

Subsequent Parts then take a deep dive into the historical record. Part II explores the meaning of the term “bill of rights” at the time of the Founding. Understood as simply an enumeration of constraints on government power, late-eighteenth-century Americans applied the term “bill of rights” to a number of historical documents, including the Magna Charta,²²22.See, e.g., 1 Gazette U.S. (N.Y.C.), Dec. 30, 1789, at 299 (describing how guarantees of individual rights grew out of the conflict between King John and the rebel barons).Show More the English Petition of Right, the English Bill of Rights, and the states’ “Declarations of Rights.”²³23.Interestingly, late-eighteenth-century Americans did not refer to the Declaration of Independence as a bill of rights. This usage seems not to have occurred until much later, driven primarily by the rising abolitionist movement in the early decades of the nineteenth century, no earlier than 1817. See infra note 196 and accompanying text.Show More All of these otherwise distinguishable documents could be viewed as bills of rights because, according to contemporary definitions, “a bill of rights” was nothing more than a list of enumerated rights or constraints on government power. Placement was not important: there is no evidence that Founding-era Americans believed “bills of rights” needed to be at the beginning or at the end of a constitution or attached to a constitution at all. Nor was the term “bill of rights” reserved for particular kinds of rights or principles—one might criticize a bill of rights for being incomplete, but still consider the incomplete list to be a “bill of rights.”²⁴24.Infra note 66 and accompanying text.Show More

Part III explores antebellum legal and political rhetoric and the degree to which Americans during that period described the 1791 amendments as a “bill of rights.” Although the amendments themselves lacked an official title, late-eighteenth- and early-nineteenth-century speakers, politicians, and legal commentators repeatedly described the first ten amendments as “a bill of rights,” “the bill of rights,” “our Bill of Rights,” and the “national bill of rights.” These references are found in everything from congressional speeches to children’s schoolbooks. This common way of labeling the 1791 amendments became even more frequent in the decades prior to the Civil War. As the debate over slavery increasingly divided the country, both abolitionists and states’ rights advocates invoked the national “Bill of Rights” in support of their theories of constitutional liberty. By the time of the Civil War, presidential speeches, abolitionist newspapers, essays by critics of the national government, and congressional debates are full of references to the first ten amendments as a (or the) “bill of rights.” Although there are a few scattered references to the Declaration of Independence as a “national bill of rights,” the historical record overwhelmingly indicates that the term “bill of rights” was most commonly used in reference to the 1791 amendments.

Part IV investigates the Civil War and Reconstruction Eras, including the period coinciding with the ratification of the Fourteenth Amendment. As had their antebellum counterparts, both Republican abolitionists and states-rights Democrats repeatedly pointed to the 1791 Bill of Rights in support of their particular legal and political goals. During the Fourteenth Amendment debates, members of both parties unambiguously referred to the 1791 amendments as the Bill of Rights. When Ohio Republican John Bingham announced his intention to pass an amendment enforcing the “Bill of Rights” against the states, his colleagues in the Thirty-Ninth Congress understood Bingham to be referring to the 1791 amendments and his desire to apply those amendments against the states. Throughout the Reconstruction Congresses, members used the term “Bill of Rights” as a reference to provisions in the 1791 amendments. This practice continued from Reconstruction to the end of the nineteenth century.

The Article concludes by summarizing the historical evidence and considering the implications for future historical research on the national Bill of Rights and the original understanding of the Fourteenth Amendment. Although historians may confidently continue to presume that Reconstruction-era references to the national bill of rights were references to the enumerated rights of the 1791 amendments, it appears the public understanding of those amendments had changed between the time of the Founding and the Fourteenth Amendment. This has important implications for our understanding of the Privileges or Immunities Clause of the Fourteenth Amendment, a clause written by John Bingham, who described his efforts as an attempt to enforce the bill of rights as incorporated against the states.²⁵25.John Bingham, Speech on the Privileges or Immunities Clause of Section One of the Fourteenth Amendment, March 31, 1791, in 2 The Reconstruction Amendments: Essential Documents 620, 624 (Kurt T. Lash ed., 2021).Show More

See, e.g., Va. Const. art. 1 (drafted 1776, affixed to its constitution in 1830); Pa. Const. ch. I (1776); Mass. Const. pt. I (1780). ↑
For a transcription of the official copy of the 1791 amendments, including the message submitted with the original proposed twelve amendments, see The Bill of Rights: A Transcription, National Archives, https://www.archives.gov/founding-docs/bill-of-rights-transcript [https://perma.cc/5YP9-2EPP] (last visited Jan. 15, 2024). For a PDF of the actual document, see The Bill of Rights, National Archives, https://www.archives.gov/founding-docs/bill-of-rights [https://perma.cc/5K6S-4ZRD] (last visited Jan. 15, 2024). ↑
See, e.g., Randy Barnett & Evan Bernick, The Original Meaning of the Fourteenth Amendment: Its Letter and Spirit 326 (2021) (“[T]his phrase [the Bill of Rights] did not commonly refer to the first ten amendments until sometime in the twentieth century . . . . [E]ven after the first ten amendments were added to the end [of the Constitution], people often characterized the rights affirmed by the previously enacted Declaration of Independence as a ‘bill of rights.’”); Ilan Wurman, The Second Founding: An Introduction to the Fourteenth Amendment 111 (2020) (“[T]he term ‘bill of rights’ was not used as a term of art for the first eight Amendments to the U.S. Constitution until well after the Civil War.”); Gerard N. Magliocca, The Heart of the Constitution: How the Bill of Rights Became the Bill of Rights 6 (2018) (“The belief that the first ten amendments are the Bill of Rights did not become dominant until the twentieth century.”); Michael J. Douma, How the First Ten Amendments Became the Bill of Rights, 15 Geo. J.L. & Pub. Pol’y 593, 609–11 (2017) (explaining that the term “Bill of Rights” was not defined as the first ten amendments prior to the late 1920s and early 1930s); Pauline Maier, The Strange History of the Bill of Rights, 15 Geo. J.L. & Pub. Pol’y 497, 506–11 (2017) (arguing that the “Bill of Rights” did not take on its current meaning as a reference to the 1791 amendments until the 1930s). ↑
Magliocca, supra note 3, at 5 (“[D]uring the nineteenth century, most people simply did not think that the country had a national bill of rights . . . .”). ↑
Id. at 58–59 (“Until 1860, the first ten amendments lagged well behind the Declaration of Independence in the race for public recognition as the national bill of rights.”); Maier, supra note 3, at 503 (“The most important statement of rights for early nineteenth century Americans—particularly those who opposed slavery—was not what we call the Bill of Rights but the Declaration of Independence.”); see also Barnett & Bernick, supra note 3, at 326 (arguing that “even after the first ten amendments were added to the [Constitution], people often characterized the rights affirmed by the previously enacted Declaration of Independence as a ‘bill of rights’”). ↑
Douma, supra note 3, at 600–01 (“[A] bill of rights was conceived of as an abstraction . . . . [I]n the early Republic, ‘bill of rights’ as a term was quite distinct from and referred to more than just the first ten amendments.”); id. at 602 (noting that prior to the twentieth century, the term “Bill of Rights” was more often used as an “abstract concept” than a reference to a specific document); Randy Barnett & Evan Bernick, The Privileges or Immunities Clause Abridged: A Critique of Kurt Lash on the Fourteenth Amendment, 95 Notre Dame L. Rev. 499, 568–69 (2019) (first citing Magliocca, supra note 3, at 6, 90; then citing Douma, supra note 3, at 609–11; and then citing Maier, supra note 3, at 506–11) (“To begin with, recent scholarship has shown that the first eight or ten amendments to the Constitution were not commonly referred to as ‘the Bill of Rights’ until well into the twentieth century . . . . [As late as 1868,] ‘the Bill of Rights’ lacked a standard meaning.”). ↑
Douma, supra note 3, at 598. ↑
According to Randy Barnett and Evan Bernick, “[a]ttributing the post-New Deal meaning of ‘the Bill of Rights’ to the pre-Fourteenth Amendment public is anachronistic. (Although, we admit, it was an understandable mistake to have made before this recent revisionist scholarship.).” Barnett & Bernick, supra note 6, at 568. Similarly, Michael Douma insists that “anachronistic” scholarly references to the 1791 amendments as the “bill of rights” “runs through the whole sub-field of constitutional history.” Douma, supra note 3, at 596. ↑
A full list would fill libraries. Among some of the more influential works that would have to be revised or reevaluated would include 1 Joseph Story, Commentaries on the Constitution 276 (1st ed. 1833); Thomas Cooley, The General Principles of Constitutional Law in the United States 199–204 (1880); Edward Dumbauld, The Bill of Rights and What It Means Today vii (1957); Learned Hand, The Bill of Rights 1–2 (1958); Charles Fairman, Reconstruction and Reunion, 1864–88: Part One, in 6 The Oliver Wendell Holmes Devise: History of the Supreme Court of the United States 1123–24 (1971); Bernard Schwartz, The Great Rights of Mankind: A History of the American Bill of Rights 165–67 (1992); Michael Kent Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights 1 (1986); Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction

xi (1998); Leonard W. Levy, Origins of the Bill of Rights

1

(1999); Carol Berkin, The Bill of Rights: The Fight to Secure America’s Liberties 1–3 (2015). ↑
See, e.g., Levy, supra note 9, at 1. ↑
See, e.g., Kent Curtis, supra note 9, at 51–54; Amar, supra note 9, at 161–62. ↑
See, e.g., 2 G. Edward White, Law in American History: From Reconstruction Through the 1920s, at

10

(2016). ↑
See, e.g., McDonald v. City of Chicago, 561 U.S. 742, 754 (2010); Adamson v. California, 332 U.S. 46, 70–72, 92–110 (1947) (Black, J., dissenting); McDonald, 561 U.S. at 828 (Thomas, J., concurring in part and concurring in the judgment) (discussing the history of the Fourteenth Amendment, including Justice Black’s historical appendix in Adamson). Bill of Rights revisionism, if correct, also would require rethinking a number of additional common assumptions in legal historical scholarship, including the presumed shift from a federalist reading of the 1791 “bill of rights” to a more libertarian understanding at the time of Reconstruction. See Amar, supra note 9, at 190, 284. But see Maier, supra note 3, at 505 (specifically rejecting Amar’s account). Revisionism also calls into question scholarship on the move from natural rights to a more positivist approach to legal rights during the nineteenth century. Presumptions that Americans came to view the Constitution with its “bill of rights” as representing a document of the unified American people rather than a federalist document of limited national power guaranteeing reserved powers to the states would also have to be re-envisioned since, again, much of this scholarship relies on antebellum discussions of the “bill of rights.” ↑
See infra note 136 and accompanying text. ↑
See infra note 277 and accompanying text. ↑
See infra note 318 and accompanying text. ↑
See, e.g., Maier, supra note 3, at 500 (“Congress did not label the amendments it endorsed a Bill of Rights nor did they look like one to eighteenth century Americans.”); Magliocca, supra note 3, at 37 (“[O]ne reason that the ten amendments ratified by the states in 1791 were not seen as a bill of rights is that they did not match the eighteenth-century expectations of how one was supposed to look.”). ↑
Magliocca, supra note 3, at 5 (“[F]or more than a century after the first ten amendments were ratified, hardly anyone called them a bill of rights, let alone the Bill of Rights.”). ↑
Maier, supra note 3, at 502 (emphases added) (noting that such phrases were “more descriptive than [normative]”—“[t]hat is, they fell short of giving [the amendments] the name”). ↑
Magliocca, supra note 3, at 58–59 (“Until 1860, the first ten amendments lagged well behind the Declaration of Independence in the race for public recognition as the national bill of rights.”); Maier, supra note 3, at 503 (“The most important statement of rights for early nineteenth century Americans—particularly those who opposed slavery—was not what we call the Bill of Rights but the Declaration of Independence.”); see also Barnett & Bernick, supra note 3, at 326 (“[T]his phrase [the Bill of Rights] did not commonly mean the first ten amendments until sometime in the twentieth century. . . . [E]ven after the first ten amendments were added to the end [of the Constitution], people often characterized the rights affirmed by the previously enacted Declaration of Independence as a ‘bill of rights.’”). ↑
Douma, supra note 3, at 602. ↑
See, e.g., 1 Gazette U.S. (N.Y.C.), Dec. 30, 1789, at 299 (describing how guarantees of individual rights grew out of the conflict between King John and the rebel barons). ↑
Interestingly, late-eighteenth-century Americans did not refer to the Declaration of Independence as a bill of rights. This usage seems not to have occurred until much later, driven primarily by the rising abolitionist movement in the early decades of the nineteenth century, no earlier than 1817. See infra note 196 and accompanying text. ↑
Infra note 66 and accompanying text. ↑
John Bingham, Speech on the Privileges or Immunities Clause of Section One of the Fourteenth Amendment, March 31, 1791, in 2 The Reconstruction Amendments: Essential Documents 620, 624 (Kurt T. Lash ed., 2021). ↑

The Education Power

Public officials are increasingly warring over the power to set fundamental education policies. A decade ago, disputes over Common Core Curriculum and school choice programs produced a level of acrimony between policymakers not seen since school desegregation. Recent fights over critical race theory and COVID-19 policies are even worse. The disputes are so intense that some officials assert power that they do not possess—power that state constitutions often reserve exclusively for state superintendents and boards of education.

Political polarization contributes to the problem, but the issue runs deeper. Judicial precedent regarding education powers is so grossly underdeveloped and contradictory that it invites conflict. This Article identifies two steps for bringing substantive coherence to the field. First, courts should apply the principles that they have already articulated in the school funding context when adjudicating questions of education power. School funding precedent sets forth constitutional duties in education, which necessarily alter certain aspects of education powers analysis. Second, courts should recognize that the constitutional offices of state superintendents and boards of education entail inherent powers that constrain legislatures’ and governors’ authority in education.

Building on this analysis, this Article offers the first comprehensive framework for analyzing the constitutional balance of power in education. It surveys existing precedent and constitutional text, identifies the key principles for analyzing education powers, articulates the scope of those powers, and applies them to recent controversies. This analysis will be an essential resource for courts and policymakers as they navigate current and future disputes.

Introduction

Over the last decade, public education has increasingly taken center stage in culture wars and partisan ideology. Not since Brown v. Board of Education¹1.347 U.S. 483 (1954).Show More has education policy been as polemic. The battles are so intense that, like southern resistance to Brown, political actors are willing to overreach their legal authority and seize power from others.²2.The first direct divestment of State Executive Officer power was in P.J. Willis & Bro. v. Owen, 43 Tex. 41, 55–56 (1875). The most notable power grabs, however, followed Brown v. Board of Education, 347 U.S. 483 (1954), when legislatures seized power over assigning students to schools, displacing local authorities’ powers. See, e.g., Griffin v. Cnty. Sch. Bd., 377 U.S. 218, 221–22 (1964) (summarizing Virginia’s constitutional changes and legislative action to subvert school desegregation); Cooper v. Aaron, 358 U.S. 1, 17 (1958) (striking down the Arkansas governor and legislature’s attempts to prevent local district from complying with school desegregation order).Show More State constitutions provide structural firewalls that should ward off some of this behavior,³3.See, e.g., Mich. Const. art. VIII, § 3 (vesting “[l]eadership and general supervision over all public education” in a state board of education). See generally Powers v. State, 318 P.3d 300, 323 (Wyo. 2014) (holding that the legislature cannot eliminate or transfer the inherent powers of the state superintendent).Show More but they are failing. Politics and expediency are, quite simply, overtaking poorly understood constitutional principles.

Most state constitutions vest substantial public education authority in state superintendents and state boards of education—hereinafter “state executive officers” (“SEOs”).⁴4.See infra notes 33–41.Show More In states with constitutional SEOs, governors typically have very little, if any, direct authority over education.⁵5.Governors appoint SEOs in several states, but those officers do not necessarily report to the governor. Moreover, in many states, the governor lacks appointment power of the board, the superintendent, or both. See Vincent Scudella, State Education Governance Models, Educ. Comm’n of the States 2–3 (2013), https://www.ecs.org/clearinghouse/01/08/70/10‌870.pdf [https://perma.cc/KR4L-7ZZA] (charting different models, though not distinguishing between constitutional and statutory systems).Show More Legislatures, by contrast, have important exclusive powers in this area—such as school funding—but those powers do not extend to all aspects of education.⁶6.See, e.g., Ohio Const. art. VI, § 2 (directing the legislature to tax for the support of education); Mich. Const. art. 8, §2 (directing the legislature to maintain and support schools).Show More Federal officials have no constitutional authority over public education.⁷7.See United States v. Lopez, 514 U.S. 549, 567–68 (1995) (holding that Congress’s attempt to regulate schools pursuant to the Commerce Clause was unconstitutional).Show More Yet federal officials, governors, and legislatures are asserting unilateral power over everything from school curricula to daily operations.

Educational power disputes lie at the heart of nearly all of the last decade’s major controversies. Beginning in 2011, the U.S. Secretary of Education demanded that states immediately adopt college- and career-ready standards—the Common Core Curriculum.⁸8.See Derek W. Black, Federalizing Education by Waiver?, 68 Vand. L. Rev. 607, 652–59 (2015) (detailing federal administrative attempts to force states to adopt policy positions that had previously failed in Congress).Show More The Secretary persisted even when state officials indicated that state officials lacked the unilateral power to change academic standards.⁹9.See, e.g., Miker Wiser, Feds Deny Iowa No Child Left Behind Waiver, Waterloo-Cedar Falls Courier (June 21, 2012), http://wcfcourier.com/news/local/govt-and-politics/feds-deny-iowa-no-child-left-behind-waiver/article_ee035d3a-bc09-11e1-9db6-0019bb2963f4.html [https://perma.cc/AKB6-XXJX]. Legislatures and governors later attempted to reverse this coerced adoption of Common Core. See, e.g., Brandi M. Haskins, State Discretion Over Subject Matter Standards: The Rise and Fall of Common Core in Oklahoma, 39 Okla. City U. L. Rev. 441, 460–61 (2014); Andrew Ujifusa, S.C. Governor Signs Bill Requiring State to Replace Common Core, Educ. Week (June 4, 2014), https://www.edweek.org/policy-politics/‌s-c-governor-signs-bill-requiring-state-to-replace-common-core/2014/06 [https://perma.cc/C‌94A-GS3V]. Congress mooted such disputes when it passed legislation that effectively rescinded and precluded the Secretary’s actions. See Derek W. Black, Abandoning the Federal Role in Education: The Every Student Succeeds Act, 105 Calif. L. Rev. 1309, 1311–13, 1336–38 (2017).Show More At the same time that federal officials were forcing curriculum on schools, some governors were attacking public education itself, pursuing privatization and antiteacher agendas.¹⁰10.See Derek W. Black, Schoolhouse Burning: Public Education and the Assault on American Democracy 19, 43–44 (2020) (discussing gubernatorial efforts to undermine public education in Arizona, Wisconsin, and New Jersey).Show More One of the strategies for achieving their goals was to strip state superintendents of their authority.¹¹11.See, e.g., Coyne v. Walker, 879 N.W.2d 520, 525–27 (Wis. 2016) (discussing 2011 legislation that gave the governor the ability to veto SEO’s rulemaking); Pence Signs Bill Stripping Ritz of Education Authority, Indy Star (May 7, 2015, 5:30 PM), https://www.indy‌star.com/story/news/politics/2015/05/07/pence-signs-bill-stripping-ritz-education-authority/‌70966236/ [https://perma.cc/49CJ-6PSZ] (discussing governor’s attempt to take power from superintendent); Deborah Yetter & Mandy McLaren, Kentucky Education Board Members Voted to Oust Commissioner, but Few Willing to Explain, Courier J. (Apr. 19, 2018, 6:22 AM), https://www.courier-journal.com/story/news/2018/04/18/kentucky-education-boa‌rd-stephen-pruitt-ouster-explained-matt-bevin/528536002/ [https://perma.cc/36QZ-HS78] (discussing how the governor orchestrated the removal of the education commissioner).Show More

The COVID-19 pandemic has brought additional fights. In 2020, President Trump and the U.S. Secretary of Education sought to force schools to resume in-person instruction.¹²12.See, e.g., Peter Baker, Erica L. Green & Noah Weiland, Trump Threatens to Cut Funding If Schools Do Not Fully Reopen, N.Y. Times (July 24, 2020), https://www.nytimes.com/2020/‌07/08/us/politics/trump-schools-reopening.html [https://perma.cc/Q2VS-8BRJ].Show More When their lack of authority quickly became obvious,¹³13.See, e.g., Edwin Rios, Trump and DeVos Say They’ll Withhold Money From Schools For Not Reopening. Can They?, Mother Jones (July 8, 2020), https://www.motherjones.com/‌politics/2020/07/trump-devos-schools-reopening/ [https://perma.cc/K9LX-JWSV]; Libby Cathey, Education Secretary Faces Backlash After Demanding Schools Reopen Full-Time Amid Pandemic, ABC News (July 13, 2020, 2:00 PM), https://abcnews.go.com/Politics/‌education-secretary-faces-backlash-demanding-schools-reopen-full/story?id=71752468 [https://perma.cc/TW7G-7W53] (noting that DeVos did not cite authority for her plan).Show More governors intervened and attempted to force schools to reopen.¹⁴14.See, e.g., Ariel Gilreath, SC Superintendent and Teachers Push Back on Governor’s Direction for In-Person Classes, Greenville News (July 15, 2020, 4:14 PM), https://www.‌greenvilleonline.com/story/news/2020/07/15/sc-education-superintendent-pushes-back-gove‌rnors-direction/5442495002/ [https://perma.cc/V48P-EJ9Z] (describing how governor instructed superintendent of education to reject school plans that did not include physical reopening); Mary Ellen Klas, Gov. Ron DeSantis Doubles Down on Schools Reopening Full Time in August, Tampa Bay Times (July 9, 2020), https://www.tampabay.com/florida-politics/buzz/2020/07/09/gov-ron-desantis-doubles-down-on-schools-reopening-full-time-in-august/ [https://perma.cc/53L5-7YAD] (reporting on executive order to reopen schools).Show More Yet governors’ power to reopen schools was uncertain as well.¹⁵15.See, e.g., Alexa Lardieri, Florida Teachers Union Sues DeSantis Over Order to Reopen Schools, U.S. News (July 20, 2020), https://www.usnews.com/news/education-news/articles/‌2020-07-20/florida-education-association-sues-gov-ron-desantis-over-order-to-reopen-scho‌ols [https://perma.cc/Q5U7-AMVX]; Andy Brack, Brack: Don’t Use Pandemic, Schools for Foghorn-Leghorning, Statehouse Rep. (July 17, 2020, 10:42 AM), https://www.statehouse‌report.com/2020/07/17/foghorn-leghorn/ [https://perma.cc/ZH5P-33FH] (explaining the possibility of a constitutional crisis with competing positions on school reopening).Show More The power struggle did not end there. A year after the school reopening debacle, governors and legislatures sought to eliminate mask mandates.¹⁶16.See Katie Reilly, As Some Governors Forbid Mask Mandates, Schools Are Pushing Back, Time (Aug. 11, 2021, 5:07 PM), https://time.com/6089640/schools-masks-covid-19/ [https://‌perma.cc/DWP6-ZDHT]. South Carolina’s Superintendent resisted the usurpation of her office. Jamie Lovegrove, SC Superintendent Disagrees With Governor, Says Schools Should Be Able to Mandate Masks, Post & Courier (Aug. 17, 2021), https://www.postandcourier.‌com/politics/sc-superintendent-disagrees-with-governor-says-schools-should-be-able-to-man‌date-masks/article_b82556c6-ff72-11eb-bb82-ffc3f4d5c826.html [https://perma.cc/23E5-M9‌EZ]. After making a forceful show of power, Florida’s governor later appeared to reverse course. Jeffrey S. Solochek, DeSantis Overrules Lawmakers, Rejects Penalties for School Mask Mandates, Tampa Bay Times (June 2, 2022), https://www.tampabay.com/news/‌education/2022/06/02/desantis-overrules-lawmakers-rejects-penalties-for-school-mask-mand‌ates/ [https://perma.cc/S6U2-AZEA].Show More Following that, the claim that schools were teaching critical race theory triggered multiple controversies.¹⁷17.Because legislatures, governors, and SEOs have often aligned on the issue of critical race theory, the more salient issue has been whether the bans violate students’ and teachers’ constitutional rights. See Jennifer Schuessler, Bans on Critical Race Theory Threaten Free Speech, Advocacy Group Says, N.Y. Times (Nov. 9, 2021), https://www.nytimes.com/‌2021/11/08/arts/critical-race-theory-bans.html [https://perma.cc/BN3H-4B3D].Show More Virginia’s governor, for instance, purported to ban critical race theory on his first day in office.¹⁸18.Oliver Laughland, Glenn Youngkin Attempts to Ban Critical Race Theory on Day One as Virginia Governor, Guardian (Jan. 16, 2022, 12:59 PM), https://www.theguardian.com/us-news/2022/jan/16/virginia-governor-glenn-youngkin-sworn-into-office-critical-race-theory [https://perma.cc/Z7EB-VZ9U].Show More Similarly, Florida’s governor has played a major, if not the lead, role in purging the state’s curriculum of materials he deems objectionable, including rejecting an Advanced Placement course on African American studies in January 2023.¹⁹19.Aaron Navarro, DeSantis Defends Rejecting AP African American Studies Course, Says It’s “Indoctrination,” CBS News (Jan. 23, 2023, 2:36 PM), https://www.cbsnews.com/news/‌ron-desantis-ap-african-american-history-florida-press-conference-today-2023-01-23/ [https://perma.cc/63RV-EC7Z].Show More

The immediacy of these controversies is overshadowing the dangerous long-term implications of invading the authority of constitutional education officers. Exercising illegitimate or uncertain power erodes the rule of law, provokes confrontations between constitutional branches of government, and undermines predictability.²⁰20.See Steven Levitsky & Daniel Ziblatt, How Democracies Die 8–9 (2018) (arguing that executive power must be exercised with restraint to maintain healthy democracy); Joseph Fishkin & David E. Pozen, Essay, Asymmetric Constitutional Hardball, 118 Colum. L. Rev. 915, 927 (2018) (“[C]onstitutional hardball lends itself to retaliation and escalation.”).Show More Political power grabs are particularly corrosive in public education. Public education has long stood as a foundational pillar of the nation’s republican form of government that,²¹21.See, e.g., George Washington, Eighth Annual Message to Congress (Dec. 7, 1796), in Presidential Speeches, Univ. of Va. Miller Ctr., https://millercenter.org/the-presidency/pres‌idential-speeches/december-7-1796-eighth-annual-message-congress [https://perma.cc/N9G‌V-3UKK] (last visited Feb. 4, 2024); Kara A. Millonzi, Education as a Right of National Citizenship Under the Privileges or Immunities Clause of the Fourteenth Amendment, 81 N.C. L. Rev. 1286, 1286 (2003); Ross J. Pudaloff, Education and the Constitution: Instituting American Culture, in Laws of Our Fathers: Popular Culture and the U.S. Constitution 23, 26–27 (Ray B. Browne & Glenn J. Browne eds., 1986) (“By a necessary definition, a republican education was a mass education.”); Proceedings of the Constitutional Convention of South Carolina 692, 696 (J. Woodruff ed., 1868) (emphasizing education’s necessity in a republican form of government); see also Derek W. Black, The Fundamental Right to Education, 94 Notre Dame L. Rev. 1059, 1097–99 (2019) (explaining the early connection between a republican form of government and public education).Show More like the judiciary, should stand outside the normal political process. For that reason, all state constitutions guarantee public education,²²22.Derek W. Black, Reforming School Discipline, 111 Nw. U. L. Rev. 1, 10 (2016).Show More and most attempt to insulate education from political pressure through various nuanced proscriptions and power structures.²³23.See, e.g., 2 Debates of the Convention to Amend the Constitution of Pennsylvania 388 (1873) [hereinafter Pennsylvania Debates] (emphasizing the superintendent should be free “from all the contaminating influences of political manipulation and management”); Derek W. Black, The Constitutional Compromise to Guarantee Education, 70 Stan. L. Rev. 735, 808–16 (2018) (detailing southern constitutional conventions’ mechanisms to shield education from manipulation and politics); Colo. Const. art. IX, § 1 (providing for the appointment of the superintendent by the state board, which is elected, rather than by the governor).Show More Nonetheless, political contests and breaches of education power are becoming the rule rather than the exception.

Eroding norms and polarized politics surely contribute to the trend,²⁴24.See, e.g., Daphna Renan, Presidential Norms and Article II, 131 Harv. L. Rev. 2187, 2189–90 (2018) (emphasizing the important role that norms play in shaping presidential power); Clare Foran, An Erosion of Democratic Norms in America, Atlantic (Nov. 22, 2016), https://www.theatlantic.com/politics/archive/2016/11/donald-trump-democratic-norms/508‌469/ [https://perma.cc/QW6C-C6QJ] (discussing the erosion of presidential norms in the face of political polarization).Show More but they do not fully explain it. Case law, which would normally clarify the lines of power in these struggles, has created a vacuum. The jurisprudence on education powers is so grossly underdeveloped that it invites conflict and power grabs. As a practical matter, governmental actors simply cannot be certain who holds power because few state supreme courts have given education powers the serious analysis they deserve.²⁵25.This uncertainty is, in part, belied by the abundance of requested opinions of state attorneys general. This Article identifies seventeen relevant attorney general opinions, ten of which were issued between 1963 and 1978. See infra Table 1.Show More The precedent that exists is often thin and contradictory, regularly ignoring or misunderstanding the constitutional dimensions of education power.²⁶26.See, e.g., Pack v. State, 330 P.3d 1216 (Okla. 2014) (per curiam) (two paragraph decision); Becker v. Bd. of Educ., 138 N.W.2d 909, 912 (Iowa 1965) (presuming the constitutionality of the statute); State ex rel. Bd. of Educ. of Whitehall City Sch. Dist. v. Bd. of Educ. of Columbus City Sch. Dist., 179 N.E.2d 347, 349 (Ohio 1961) (distinguishing precedent on constitutional issues); see also G. Alan Tarr, Of Time, Place, and the Alaska Constitution, 35 Alaska L. Rev. 155, 155 (2018) (suggesting that “knowing when and where a state constitution originated” is necessary for interpretation).Show More For instance, even when education agencies are creatures of constitutional text rather than statutes, courts tend to treat them no differently than any other executive agency.²⁷27.See, e.g., Koschkee v. Taylor, 929 N.W.2d 600, 605–06 (Wis. 2019) (applying general administrative agency rules); Bd. of Educ. of Cmty. Consol. Sch. Dist. No. 59 v. Ill. State Bd. of Educ., 740 N.E.2d 428, 432 (Ill. App. Ct. 2000) (treating state board the same as other administrative agencies that “possess no inherent or common law powers”).Show More The result is a constitutionally suspect body of law.

Poor timing is also to blame. The specific constitutional provision that establishes an SEO’s office is the starting point for any analysis, but those provisions must be read in conjunction with the larger education articles and clauses that require states to ensure a system of education that delivers adequate and equal educational opportunities.²⁸28.See infra notes 64–72 and accompanying text.Show More Most state supreme courts, however, did not fully elucidate those Education Clauses until the late 1980s and 1990s.²⁹29.See generally Joshua E. Weishart, Transcending Equality Versus Adequacy, 66 Stan. L. Rev. 477, 499–507 (2014) (surveying school funding cases).Show More Three-quarters of SEO litigation preceded that era.³⁰30.See Derek W. Black, Database on School Education Officer Precedent (Apr. 21, 2022) [hereinafter Database I] (on file with author).Show More As a result, SEO precedent rests on premises that no longer hold true—most notably the notion that legislatures possess full, unfettered discretion in education policy.³¹31.See, e.g., Rose v. Council for Better Educ., Inc., 790 S.W.2d 186, 209 (Ky. 1989) (explaining constitutional limits on legislature); Pauley v. Kelly, 255 S.E.2d 859, 874 (W. Va. 1979) (rejecting unbounded legislative discretion). But see Comm. for Educ. Rts. v. Edgar, 672 N.E.2d 1178, 1185 (Ill. 1996) (noting that framers “did not intend to otherwise limit legislative discretion”).Show More

This Article is the first to provide a comprehensive framework for analyzing the constitutional balance of power in education.³²32.Education law handbooks devote some attention to state officials’ power, but their treatment is relatively cursory. See James A. Rapp, Education Law § 3.02[4], LEXIS (database updated Sept. 2023); Kern Alexander & M. David Alexander, American Public School Law 103–05 (6th ed. 2005); 78 C.J.S. Schools and School Districts § 107 (2023). These works also unfortunately collapse statutory and constitutional authority of SEOs. The only scholarly articles on education power address individual states or cases. See, e.g., Andrew Owens, North Carolina’s Superintendent of Public Instruction: Defining a Constitutional Office, 4 Charlotte L. Rev. 103, 129, 138–39 (2013) (describing North Carolina’s approach); Jonathan Zasloff, Taking Politics Seriously: A Theory of California’s Separation of Powers, 51 UCLA L. Rev. 1079, 1136 n.258 (2004) (analyzing an SEO separation of powers case); Miriam Seifter, Understanding State Agency Independence, 117 Mich. L. Rev. 1537, 1574 n.232 (2019) (citing cases where courts refused to allow the legislature to eliminate the core functions of a constitutional office); Michele L. Harrington, Note, State v. Whittle Communications: Allowing Local School Boards to Turn On “Channel One,” 70 N.C. L. Rev. 1929, 1929–30 (1992) (summarizing case where the North Carolina State Board of Education passed a rule preventing local school boards from subscribing to a commercially sponsored video news program).Show More This framework brings much-needed coherence to the field and offers crucial guideposts for state supreme courts, state superintendents of education, state boards of education, and legislatures as they navigate future disputes. First, this Article identifies the powers of state superintendents and state boards of education as they currently exist in constitutional text and precedent. Second, drawing on additional sources, this Article theorizes the principles for identifying SEOs’ core constitutional powers. Third, those principles provide the basis to articulate the full scope of SEOs’ explicit power of supervision, inherent powers (including rulemaking), and shared powers with the legislature. This Article concludes by applying this framework to recent controversies regarding mask mandates and critical race theory, paving the way for similar future analyses regarding school accountability, student discipline, campus safety, and more.

Two general caveats should be noted. First, this Article addresses only those states that have constitutionalized either a state board or state superintendent. When state constitutions do not establish one of those offices, the analysis is simple: virtually all power rests with the legislature. Second, because the most important line of contested power is between the legislature or governor and SEOs, this Article does not analyze potential disputes between superintendents and boards of education.

This Article proceeds in five Parts. Part I focuses on constitutional text, identifying the thirty-five state constitutions that refer to an SEO, the explicit powers that the constitutions extend to the SEO, and the larger constitutional contexts in which SEO power rests. Part I also traces the genealogy of SEO provisions from 1835 to today. Part II provides an analysis of nearly two hundred final court opinions regarding SEO powers, systematically evaluating them based on eras, outcomes, analytical depth, and reoccurring doctrinal approaches. It finds an overall lack of depth and consistency.

Part III aims to fill existing precedential gaps and resolve contradictions by identifying the key principles necessary for analyzing SEO powers: the adequacy and equity mandate in Education Clauses; the constitutional independence of SEOs; the intersection of SEO independence and legislative prerogative; the inherent powers of constitutional officers; and the unique separation of powers context in which SEOs operate.

Based on that framework, Part IV details the full scope and limits of SEOs’ constitutional powers. First, it analyzes SEOs’ explicit and exclusive power to supervise public education and all its logical components, including rulemaking and other discrete powers. Second, it demonstrates how the nature of the office creates a vast area of shared power with the legislature. Third, it articulates legislatures’ exclusive powers in education as a limiting principle for SEO power.

Part V applies this Article’s theory of constitutional education powers to recent and ongoing controversies, examining mask mandates and critical race theory disputes as illustrative examples. It demonstrates that the precise manner in which a legislature or an SEO exercises power is important, as their primary areas of power are distinct yet overlap in certain respects. Part V also briefly explains the federal constitutional and statutory provisions that place limits on both legislative and SEO action regarding masks and the curriculum.

347 U.S. 483 (1954). ↑
The first direct divestment of State Executive Officer power was in P.J. Willis & Bro. v. Owen, 43 Tex. 41, 55–56 (1875). The most notable power grabs, however, followed Brown v. Board of Education, 347 U.S. 483 (1954), when legislatures seized power over assigning students to schools, displacing local authorities’ powers. See, e.g., Griffin v. Cnty. Sch. Bd., 377 U.S. 218, 221–22 (1964) (summarizing Virginia’s constitutional changes and legislative action to subvert school desegregation); Cooper v. Aaron, 358 U.S. 1, 17 (1958) (striking down the Arkansas governor and legislature’s attempts to prevent local district from complying with school desegregation order). ↑
See, e.g., Mich. Const. art. VIII, § 3 (vesting “[l]eadership and general supervision over all public education” in a state board of education). See generally Powers v. State, 318 P.3d 300, 323 (Wyo. 2014) (holding that the legislature cannot eliminate or transfer the inherent powers of the state superintendent). ↑
See infra notes 33–41. ↑
Governors appoint SEOs in several states, but those officers do not necessarily report to the governor. Moreover, in many states, the governor lacks appointment power of the board, the superintendent, or both. See Vincent Scudella, State Education Governance Models, Educ. Comm’n of the States 2–3 (2013), https://www.ecs.org/clearinghouse/01/08/70/10‌870.pdf [https://perma.cc/KR4L-7ZZA] (charting different models, though not distinguishing between constitutional and statutory systems). ↑
See, e.g., Ohio Const. art. VI, § 2 (directing the legislature to tax for the support of education); Mich. Const. art. 8, §2 (directing the legislature to maintain and support schools). ↑
See United States v. Lopez, 514 U.S. 549, 567–68 (1995) (holding that Congress’s attempt to regulate schools pursuant to the Commerce Clause was unconstitutional). ↑
See Derek W. Black, Federalizing Education by Waiver?, 68 Vand. L. Rev. 607, 652–59 (2015) (detailing federal administrative attempts to force states to adopt policy positions that had previously failed in Congress). ↑
See, e.g., Miker Wiser, Feds Deny Iowa No Child Left Behind Waiver, Waterloo-Cedar Falls Courier (June 21, 2012), http://wcfcourier.com/news/local/govt-and-politics/feds-deny-iowa-no-child-left-behind-waiver/article_ee035d3a-bc09-11e1-9db6-0019bb2963f4.html [https://perma.cc/AKB6-XXJX]. Legislatures and governors later attempted to reverse this coerced adoption of Common Core. See, e.g., Brandi M. Haskins, State Discretion Over Subject Matter Standards: The Rise and Fall of Common Core in Oklahoma, 39 Okla. City U. L. Rev. 441, 460–61 (2014); Andrew Ujifusa, S.C. Governor Signs Bill Requiring State to Replace Common Core, Educ. Week (June 4, 2014), https://www.edweek.org/policy-politics/‌s-c-governor-signs-bill-requiring-state-to-replace-common-core/2014/06 [https://perma.cc/C‌94A-GS3V]. Congress mooted such disputes when it passed legislation that effectively rescinded and precluded the Secretary’s actions. See Derek W. Black, Abandoning the Federal Role in Education: The Every Student Succeeds Act, 105 Calif. L. Rev. 1309, 1311–13, 1336–38 (2017). ↑
See Derek W. Black, Schoolhouse Burning: Public Education and the Assault on American Democracy 19, 43–44 (2020) (discussing gubernatorial efforts to undermine public education in Arizona, Wisconsin, and New Jersey). ↑
See, e.g., Coyne v. Walker, 879 N.W.2d 520, 525–27 (Wis. 2016) (discussing 2011 legislation that gave the governor the ability to veto SEO’s rulemaking); Pence Signs Bill Stripping Ritz of Education Authority, Indy Star (May 7, 2015, 5:30 PM), https://www.indy‌star.com/story/news/politics/2015/05/07/pence-signs-bill-stripping-ritz-education-authority/‌70966236/ [https://perma.cc/49CJ-6PSZ] (discussing governor’s attempt to take power from superintendent); Deborah Yetter & Mandy McLaren, Kentucky Education Board Members Voted to Oust Commissioner, but Few Willing to Explain, Courier J. (Apr. 19, 2018, 6:22 AM), https://www.courier-journal.com/story/news/2018/04/18/kentucky-education-boa‌rd-stephen-pruitt-ouster-explained-matt-bevin/528536002/ [https://perma.cc/36QZ-HS78] (discussing how the governor orchestrated the removal of the education commissioner). ↑
See, e.g., Peter Baker, Erica L. Green & Noah Weiland, Trump Threatens to Cut Funding If Schools Do Not Fully Reopen, N.Y. Times (July 24, 2020), https://www.nytimes.com/2020/‌07/08/us/politics/trump-schools-reopening.html [https://perma.cc/Q2VS-8BRJ]. ↑
See, e.g., Edwin Rios, Trump and DeVos Say They’ll Withhold Money From Schools For Not Reopening. Can They?, Mother Jones (July 8, 2020), https://www.motherjones.com/‌politics/2020/07/trump-devos-schools-reopening/ [https://perma.cc/K9LX-JWSV]; Libby Cathey, Education Secretary Faces Backlash After Demanding Schools Reopen Full-Time Amid Pandemic, ABC News (July 13, 2020, 2:00 PM), https://abcnews.go.com/Politics/‌education-secretary-faces-backlash-demanding-schools-reopen-full/story?id=71752468 [https://perma.cc/TW7G-7W53] (noting that DeVos did not cite authority for her plan). ↑
See, e.g., Ariel Gilreath, SC Superintendent and Teachers Push Back on Governor’s Direction for In-Person Classes, Greenville News (July 15, 2020, 4:14 PM), https://www.‌greenvilleonline.com/story/news/2020/07/15/sc-education-superintendent-pushes-back-gove‌rnors-direction/5442495002/ [https://perma.cc/V48P-EJ9Z] (describing how governor instructed superintendent of education to reject school plans that did not include physical reopening); Mary Ellen Klas, Gov. Ron DeSantis Doubles Down on Schools Reopening Full Time in August, Tampa Bay Times (July 9, 2020), https://www.tampabay.com/florida-politics/buzz/2020/07/09/gov-ron-desantis-doubles-down-on-schools-reopening-full-time-in-august/ [https://perma.cc/53L5-7YAD] (reporting on executive order to reopen schools). ↑
See, e.g., Alexa Lardieri, Florida Teachers Union Sues DeSantis Over Order to Reopen Schools, U.S. News (July 20, 2020), https://www.usnews.com/news/education-news/articles/‌2020-07-20/florida-education-association-sues-gov-ron-desantis-over-order-to-reopen-scho‌ols [https://perma.cc/Q5U7-AMVX]; Andy Brack, Brack: Don’t Use Pandemic, Schools for Foghorn-Leghorning, Statehouse Rep. (July 17, 2020, 10:42 AM), https://www.statehouse‌report.com/2020/07/17/foghorn-leghorn/ [https://perma.cc/ZH5P-33FH] (explaining the possibility of a constitutional crisis with competing positions on school reopening). ↑
See Katie Reilly, As Some Governors Forbid Mask Mandates, Schools Are Pushing Back, Time (Aug. 11, 2021, 5:07 PM), https://time.com/6089640/schools-masks-covid-19/ [https://‌perma.cc/DWP6-ZDHT]. South Carolina’s Superintendent resisted the usurpation of her office. Jamie Lovegrove, SC Superintendent Disagrees With Governor, Says Schools Should Be Able to Mandate Masks, Post & Courier (Aug. 17, 2021), https://www.postandcourier.‌com/politics/sc-superintendent-disagrees-with-governor-says-schools-should-be-able-to-man‌date-masks/article_b82556c6-ff72-11eb-bb82-ffc3f4d5c826.html [https://perma.cc/23E5-M9‌EZ]. After making a forceful show of power, Florida’s governor later appeared to reverse course. Jeffrey S. Solochek, DeSantis Overrules Lawmakers, Rejects Penalties for School Mask Mandates, Tampa Bay Times (June 2, 2022), https://www.tampabay.com/news/‌education/2022/06/02/desantis-overrules-lawmakers-rejects-penalties-for-school-mask-mand‌ates/ [https://perma.cc/S6U2-AZEA]. ↑
Because legislatures, governors, and SEOs have often aligned on the issue of critical race theory, the more salient issue has been whether the bans violate students’ and teachers’ constitutional rights. See Jennifer Schuessler, Bans on Critical Race Theory Threaten Free Speech, Advocacy Group Says, N.Y. Times (Nov. 9, 2021), https://www.nytimes.com/‌2021/11/08/arts/critical-race-theory-bans.html [https://perma.cc/BN3H-4B3D]. ↑
Oliver Laughland, Glenn Youngkin Attempts to Ban Critical Race Theory on Day One as Virginia Governor, Guardian (Jan. 16, 2022, 12:59 PM), https://www.theguardian.com/us-news/2022/jan/16/virginia-governor-glenn-youngkin-sworn-into-office-critical-race-theory [https://perma.cc/Z7EB-VZ9U]. ↑
Aaron Navarro, DeSantis Defends Rejecting AP African American Studies Course, Says It’s “Indoctrination,” CBS News (Jan. 23, 2023, 2:36 PM), https://www.cbsnews.com/news/‌ron-desantis-ap-african-american-history-florida-press-conference-today-2023-01-23/ [https://perma.cc/63RV-EC7Z]. ↑
See Steven Levitsky & Daniel Ziblatt, How Democracies Die 8–9 (2018) (arguing that executive power must be exercised with restraint to maintain healthy democracy); Joseph Fishkin & David E. Pozen, Essay, Asymmetric Constitutional Hardball, 118 Colum. L. Rev. 915, 927 (2018) (“[C]onstitutional hardball lends itself to retaliation and escalation.”). ↑
See, e.g., George Washington, Eighth Annual Message to Congress (Dec. 7, 1796), in Presidential Speeches, Univ. of Va. Miller Ctr., https://millercenter.org/the-presidency/pres‌idential-speeches/december-7-1796-eighth-annual-message-congress [https://perma.cc/N9G‌V-3UKK] (last visited Feb. 4, 2024); Kara A. Millonzi, Education as a Right of National Citizenship Under the Privileges or Immunities Clause of the Fourteenth Amendment, 81 N.C. L. Rev. 1286, 1286 (2003); Ross J. Pudaloff, Education and the Constitution: Instituting American Culture, in Laws of Our Fathers: Popular Culture and the U.S. Constitution 23, 26–27 (Ray B. Browne & Glenn J. Browne eds., 1986) (“By a necessary definition, a republican education was a mass education.”); Proceedings of the Constitutional Convention of South Carolina 692, 696 (J. Woodruff ed., 1868) (emphasizing education’s necessity in a republican form of government); see also Derek W. Black, The Fundamental Right to Education, 94 Notre Dame L. Rev. 1059, 1097–99 (2019) (explaining the early connection between a republican form of government and public education). ↑
Derek W. Black, Reforming School Discipline, 111 Nw. U. L. Rev. 1, 10 (2016). ↑
See, e.g., 2 Debates of the Convention to Amend the Constitution of Pennsylvania 388 (1873) [hereinafter Pennsylvania Debates] (emphasizing the superintendent should be free “from all the contaminating influences of political manipulation and management”); Derek W. Black, The Constitutional Compromise to Guarantee Education, 70 Stan. L. Rev. 735, 808–16 (2018) (detailing southern constitutional conventions’ mechanisms to shield education from manipulation and politics); Colo. Const. art. IX, § 1 (providing for the appointment of the superintendent by the state board, which is elected, rather than by the governor). ↑
See, e.g., Daphna Renan, Presidential Norms and Article II, 131 Harv. L. Rev. 2187, 2189–90 (2018) (emphasizing the important role that norms play in shaping presidential power); Clare Foran, An Erosion of Democratic Norms in America, Atlantic (Nov. 22, 2016), https://www.theatlantic.com/politics/archive/2016/11/donald-trump-democratic-norms/508‌469/ [https://perma.cc/QW6C-C6QJ] (discussing the erosion of presidential norms in the face of political polarization). ↑
This uncertainty is, in part, belied by the abundance of requested opinions of state attorneys general. This Article identifies seventeen relevant attorney general opinions, ten of which were issued between 1963 and 1978. See infra Table 1. ↑
See, e.g., Pack v. State, 330 P.3d 1216 (Okla. 2014) (per curiam) (two paragraph decision); Becker v. Bd. of Educ., 138 N.W.2d 909, 912 (Iowa 1965) (presuming the constitutionality of the statute); State ex rel. Bd. of Educ. of Whitehall City Sch. Dist. v. Bd. of Educ. of Columbus City Sch. Dist., 179 N.E.2d 347, 349 (Ohio 1961) (distinguishing precedent on constitutional issues); see also G. Alan Tarr, Of Time, Place, and the Alaska Constitution, 35 Alaska L. Rev. 155, 155 (2018) (suggesting that “knowing when and where a state constitution originated” is necessary for interpretation). ↑
See, e.g., Koschkee v. Taylor, 929 N.W.2d 600, 605–06 (Wis. 2019) (applying general administrative agency rules); Bd. of Educ. of Cmty. Consol. Sch. Dist. No. 59 v. Ill. State Bd. of Educ., 740 N.E.2d 428, 432 (Ill. App. Ct. 2000) (treating state board the same as other administrative agencies that “possess no inherent or common law powers”). ↑
See infra notes 64–72 and accompanying text. ↑
See generally Joshua E. Weishart, Transcending Equality Versus Adequacy, 66 Stan. L. Rev. 477, 499–507 (2014) (surveying school funding cases). ↑
See Derek W. Black, Database on School Education Officer Precedent (Apr. 21, 2022) [hereinafter Database I] (on file with author). ↑
See, e.g., Rose v. Council for Better Educ., Inc., 790 S.W.2d 186, 209 (Ky. 1989) (explaining constitutional limits on legislature); Pauley v. Kelly, 255 S.E.2d 859, 874 (W. Va. 1979) (rejecting unbounded legislative discretion). But see Comm. for Educ. Rts. v. Edgar, 672 N.E.2d 1178, 1185 (Ill. 1996) (noting that framers “did not intend to otherwise limit legislative discretion”). ↑
Education law handbooks devote some attention to state officials’ power, but their treatment is relatively cursory. See James A. Rapp, Education Law § 3.02[4], LEXIS (database updated Sept. 2023); Kern Alexander & M. David Alexander, American Public School Law 103–05 (6th ed. 2005); 78 C.J.S. Schools and School Districts § 107 (2023). These works also unfortunately collapse statutory and constitutional authority of SEOs. The only scholarly articles on education power address individual states or cases. See, e.g., Andrew Owens, North Carolina’s Superintendent of Public Instruction: Defining a Constitutional Office, 4 Charlotte L. Rev. 103, 129, 138–39 (2013) (describing North Carolina’s approach); Jonathan Zasloff, Taking Politics Seriously: A Theory of California’s Separation of Powers, 51 UCLA L. Rev. 1079, 1136 n.258 (2004) (analyzing an SEO separation of powers case); Miriam Seifter, Understanding State Agency Independence, 117 Mich. L. Rev. 1537, 1574 n.232 (2019) (citing cases where courts refused to allow the legislature to eliminate the core functions of a constitutional office); Michele L. Harrington, Note, State v. Whittle Communications: Allowing Local School Boards to Turn On “Channel One,” 70 N.C. L. Rev. 1929, 1929–30 (1992) (summarizing case where the North Carolina State Board of Education passed a rule preventing local school boards from subscribing to a commercially sponsored video news program). ↑

Race in the Machine: Racial Disparities in Health and Medical AI

What does racial justice—and racial injustice—look like with respect to artificial intelligence in medicine (“medical AI”)? This Article offers that racial injustice might look like a country in which law and ethics have decided that it is unnecessary to inform people of color that their health is being managed by a technology that likely encodes the centuries of inequitable medical care that people of color have received. Racial justice might look like an informed consent process that is reformed in light of this reality. This Article makes this argument in four Parts. Part I canvases the deep and wide literature that documents that people of color suffer higher rates of illness than their white counterparts while also suffering poorer health outcomes than their white counterparts when treated for these illnesses. Part II then provides an introduction to AI and explains the uses that scholars and developers predict medical AI technologies will have in healthcare, focusing specifically on the management of pregnancy. Part III subsequently serves as a primer on algorithmic bias—that is, systematic errors in the operation of an algorithm that result in a group being unfairly advantaged or disadvantaged. This Part argues that we should expect algorithmic bias that results in people of color receiving inferior pregnancy-related healthcare, and healthcare generally, because medical AI technologies will be developed, trained, and deployed in a country with striking and unforgivable racial disparities in health.

Part IV forms the heart of the Article, making the claim that obstetricians, and healthcare providers generally, should disclose during the informed consent process their reliance on, or consultation with, medical AI technologies that likely encode inequities. To be precise, providers should have to tell their patients that an algorithm has informed the recommendation that the provider is making; moreover, providers should inform their patients how racial disparities in health may have impacted the algorithm’s accuracy. It supports this argument by recounting the antiracist, anti-white supremacist—indeed radical—origins of informed consent in the Nuremberg Trials’ rebuke of Nazi “medicine.” This Part argues that the introduction into the clinical encounter of medical AI—and the likelihood that these technologies will perpetuate racially inequitable healthcare while masking the same—is an invitation to reform the informed consent process to make it more consistent with the commitments that spurred its origination. This Part proposes that, given the antiracist roots of the doctrine of informed consent, it would be incredibly ironic to allow the informed consent process to permit a patient—and, particularly, a patient of color—to remain ignorant of the fact that their medical care is being managed by a device or system that likely encodes racism. This Part argues that informing patients about the likelihood of race-based algorithmic bias—and the reasons that we might expect race-based algorithmic bias—may, in fact, be a prerequisite for actually transforming the inequitable social conditions that produce racial disparities in health and healthcare.

Introduction

As artificial intelligence (“AI”) technologies proliferate across sundry sectors of society—from mortgage lending and marketing to policing and public health—it has become apparent to many observers that these technologies will need to be regulated to ensure both that their social benefits outweigh their social costs and that these costs and benefits are distributed fairly across society. In October 2022, the Biden Administration announced its awareness of the dangers that “technology, data, and automated systems” pose to individual rights.¹1.See Blueprint for an AI Bill of Rights: Making Automated Systems Work for the American People, The White House Off. of Sci. & Tech. Pol’y, https://www.white‌house.gov/ostp/ai-bill-of-rights/ [https://perma.cc/E5GS-6ZP3] (last visited Jan. 5, 2024). Some states and cities have also initiated efforts to regulate AI. See, e.g.,Laura Schneider, Debo Adegbile, Ariella Feingold & Makenzie Way, NYC Soon to Enforce AI Bias Law, Other Jurisdictions Likely to Follow, WilmerHale (Apr. 10, 2023), https://www.wilmerhale.com/insights/client-alerts/‌20230410-nyc-soon-to-enforce-ai-bias-law-other-jurisdictions-likely-to-follow [https://perm‌a.cc/K47J-XZUQ] (“New York City’s Department of Consumer and Worker Protection (DCWP) is expected to begin enforcing the City’s novel artificial intelligence (AI) bias audit law on July 5, 2023. This law prohibits the use of automated decision tools in employment decisions within New York City unless certain bias audit, notice, and reporting requirements are met.”); Jonathan Kestenbaum, NYC’s New AI Bias Law Broadly Impacts Hiring and Requires Audits, Bloomberg Law (July 5, 2023, 5:00 AM), https://news.bloomberglaw.com/‌us-law-week/nycs-new-ai-bias-law-broadly-impacts-hiring-and-requires-audits [https://perm‌a.cc/L94C-X3BN] (observing that the “New Jersey Assembly is considering a limit on use of AI tools in hiring unless employers can prove they conducted a bias audit,” that “Maryland and Illinois have proposed laws that prohibit use of facial recognition and video analysis tools in job interviews without consent of the candidates,” and that “the California Fair Employment and Housing Council is mulling new mandates that would outlaw use of AI tools and tests that could screen applicants based on race, gender, ethnicity, and other protected characteristics”); Attorney General Bonta Launches Inquiry into Racial and Ethnic Bias in Healthcare Algorithms, State of Cal. Dep’t of Just. Off. of the Att’y Gen. (Aug. 31, 2022), https://oag.‌ca.gov/‌news/press-releases/attorney-general-bonta-launches-inquiry-racial-and-ethnic-bias-healthca‌re [https://perma.cc/ERC4-GVJJ] (“California Attorney General Rob Bonta today sent letters to hospital CEOs across the state requesting information about how healthcare facilities and other providers are identifying and addressing racial and ethnic disparities in commercial decision-making tools. The request for information is the first step in a DOJ inquiry into whether commercial healthcare algorithms—types of software used by healthcare providers to make decisions that affect access to healthcare for California patients—have discriminatory impacts based on race and ethnicity.”).Show More Through its Office of Science and Technology Policy, the Administration declared the need for a coordinated approach to address the problems that AI technologies have generated—problems that include “[a]lgorithms used in hiring and credit decisions [that] have been found to reflect and reproduce existing unwanted inequities or embed new harmful bias and discrimination,” “[u]nchecked social media data collection [that] has been used to threaten people’s opportunities, undermine their privacy, or pervasively track their activity,” and, most germane to the concerns of this Article, “systems [that are] supposed to help with patient care [but that] have proven unsafe, ineffective, or biased.”²2.See Blueprint for an AI Bill of Rights: Making Automated Systems Work for the American People, supra note 1.Show More

As an initial measure in the effort to eliminate—or, at least, contain—the harms that automation poses, the Administration offers a Blueprint for an AI Bill of Rights, which consists of “five principles that should guide the design, use, and deployment of automated systems to protect the American public in the age of artificial intelligence.”³3.Id.Show More Crucially, the Blueprint identifies “notice and explanation” as a central element in a program that protects the rights of individuals in an increasingly automated society.⁴4.Id.Show More That is, the Biden Administration proposes that in order to ensure that AI does not threaten “civil rights or democratic values,” individuals should be informed when “an automated system is being used,” and they should “understand how and why it contributes to outcomes that impact” them.⁵5.Id.Show More To apply it to the context to which this Article is most attuned, if a hospital system or healthcare provider relies upon an AI technology when making decisions about a patient’s care, then the patient whose health is being managed by the technology ought to know about the technology’s usage.

Although the Biden Administration appears committed to the idea that an individual’s rights are violated when they are unaware that an AI technology has had some impact on the healthcare that they have received, many actors on the ground, including physicians and other healthcare providers, do not share this commitment. As one journalist reports:

[T]ens of thousands of patients hospitalized at one of Minnesota’s largest health systems have had their discharge planning decisions informed with help from an artificial intelligence model. But few if any of those patients [have] any idea about the AI involved in their care. That’s because frontline clinicians . . . generally don’t mention the AI whirring behind the scenes in their conversations with patients.⁶6.Rebecca Robbins & Erin Brodwin, An Invisible Hand: Patients Aren’t Being Told About the AI Systems Advising Their Care, STAT (July 15, 2020), https://www.statnews.com/‌2020/07/15/artificial-intelligence-patient-consent-hospitals/ [https://perma.cc/R3F5-NNX4].Show More

This health system is hardly unique in its practice of keeping this information from patients. “The decision not to mention these systems to patients is the product of an emerging consensus among doctors, hospital executives, developers, and system architects who see little value . . . in raising the subject.”⁷7.Id.Show More Moreover, while these actors see few advantages associated with informing patients that AI has informed a healthcare decision or recommendation, they see lots of disadvantages, with the disclosure operating as a “distraction” and “undermin[ing] trust.”⁸8.Id.Show More

We exist in a historical moment in which the norms around notice and consent in the context of AI in healthcare have not yet emerged—with some powerful actors in the federal government proposing that patients are harmed when they are not notified that AI has impacted their healthcare, and other influential actors on the ground proposing that patients are harmed when they are notified that AI has impacted their healthcare.⁹9.See also Attorney General Bonta Launches Inquiry into Racial and Ethnic Bias in Healthcare Algorithms, supra note 1 (understanding as problematic the fact that some AI tools used in healthcare “are not fully transparent to healthcare consumers”); cf. Schneider et al., supra note 1 (noting that New York City’s law regulating AI in employment requires an employer to provide “applicants and employees who reside in New York City notice of its use of AI in hiring and/or promotion decisions, either via website, job posting, mail or e-mail”). Interestingly, some investigations have shown that some patients do not want to know when physicians and hospital administrators rely on medical AI when managing their healthcare. See Robbins & Brodwin, supra note 6 (reporting that some patients who were interviewed stated that “they wouldn’t expect or even want their doctor to mention” the use of medical AI and stating that these patients “likened it to not wanting to be privy to numbers around their prognosis, such as how much time they might expect to have left, or how many patients with their disease are still alive after five years”). However, other studies have shown that patients do desire this information. See Anjali Jain et al., Awareness of Racial and Ethnic Bias and Potential Solutions to Address Bias with Use of Health Care Algorithms, JAMA Health F., June 2, 2023, at 10, https://jamanetwork.com/journals/jama-health-forum/fullarticle/2805595 [https://perma.cc/9FMK-E4VV] (discussing a “recent, nationally representative survey” that showed that “patients . . . wanted to know when [AI] was involved in their care”).Show More As we think about the shape that these norms ought to take, this Article implores us to keep in mind the fact of racial inequality and the likelihood that AI will have emerged from, and thereby reflect, that racial inequality. Indeed, this Article’s central claim is that the well-documented racial disparities in health that have existed in the United States since the dawn of the nation demand that providers inform all patients—but especially patients of color—that they have relied on or consulted with an AI technology when providing healthcare to them.

Although much has been written about AI in healthcare,¹⁰10.Indeed, volumes have been written about algorithmic bias, what AI technologies mean with respect to data privacy, and how we ought to regulate AI inside the medical context. See generally The Oxford Handbook of Digital Ethics (Carissa Véliz ed., 2021).Show More or medical AI, very little has been written about the effects that medical AI can and should have on the informed consent process.¹¹11.See I. Glenn Cohen, Informed Consent and Medical Artificial Intelligence: What to Tell the Patient?, 108 Geo. L.J. 1425, 1428 (2020) (noting that his Article, which was published just three years ago, was “the first to examine in-depth how medical AI / [machine learning] intersects with our concept of informed consent”).Show More Moreover, no article to date has interrogated what the reality of racial disparities in health should mean with respect to obtaining a patient’s informed consent to a medical intervention (or nonintervention) that an AI system has recommended. This Article offers itself as the beginning of that conversation. It makes the case that we ought to reform the informed consent process to ensure that patients of color are aware that their health is being managed by a technology that likely encodes the centuries of inequitable medical care that people of color have received in this country and around the world.

The Article proceeds in four Parts. Part I canvases the deep and wide literature that documents that people of color suffer higher rates of illness than their white counterparts while also suffering poorer health outcomes than their white counterparts when treated for these illnesses. These racial disparities in health are also present in the context of pregnancy, a fact that is illustrated most spectacularly by the often-quoted statistic describing black women’s three- to four-fold increased risk of dying from a pregnancy-related cause as compared to white women.¹²12.Elizabeth A. Howell, Reducing Disparities in Severe Maternal Morbidity and Mortality, 61 Clinical Obstetrics & Gynecology 387, 387 (2018).Show More Part II then provides an introduction to AI and explains the uses that scholars and developers predict medical AI technologies will have in healthcare and, specifically, the management of pregnancy. Part III subsequently serves as a primer on algorithmic bias—that is, systematic errors in the operation of an algorithm that result in a group being unfairly advantaged or disadvantaged. This Part explains the many causes of algorithmic bias and gives examples of algorithmic bias in medicine and healthcare. This Part argues that we should expect algorithmic bias from medical AI that results in people of color receiving inferior healthcare. This is because medical AI technologies will be developed, trained, and deployed in a country with striking and unforgivable racial disparities in health.

Part IV forms the heart of the Article. It begins by asking a question: Will patients of color even want medical AI? There is reason to suspect that significant numbers of them do not. Media attention to the skepticism with which many black people initially viewed COVID-19 vaccines has made the public newly aware of the higher levels of mistrust that black people, as a racial group, have toward healthcare institutions and their agents. That is, the banality of racial injustice has made black people more suspicious of medical technologies. This fact suggests that ethics—and justice—require providers to inform their patients of the use of a medical technology that likely embeds racial injustice within it.

The Part continues by making the claim that healthcare providers should disclose during the informed consent process their reliance on medical AI. To be precise, providers should have to tell their patients that an algorithm has affected the providers’ decision-making around the patients’ healthcare; moreover, providers should inform their patients how racial disparities in health may have impacted the algorithm’s predictive accuracy. This Part argues that requiring these disclosures as part of the informed consent process revives the antiracist, anti-white supremacist origins of the informed consent process. To be sure, the practice of informed consent originated in the Nuremberg Trials’ rebuke of Nazi medicine. These defiant, revolutionary origins have been expunged from the perfunctory form that the informed consent process has taken at present. Resuscitating the rebelliousness that is latent within informed consent will not only help to protect patient autonomy in the context of medical AI but may also be the condition of possibility for transforming the social conditions that produce racial disparities in health and healthcare. That is, the instant proposal seeks to call upon the rebellious roots of the doctrine of informed consent and use it as a technique of political mobilization. A short conclusion follows.

Two notes before beginning: First, although this Article focuses on medical AI in pregnancy and prenatal care, its argument is applicable to informed consent in all contexts—from anesthesiology to x-rays—in which a provider might utilize a medical AI device. Concentrating on pregnancy and prenatal care allows the Article to offer concrete examples of the phenomena under discussion and, in so doing, make crystal clear the exceedingly high stakes of our societal and legal decisions in this area.

Second, the moment that a provider consults a medical AI device when delivering healthcare to a patient of color certainly is not the first occasion in that patient’s life in which racial disenfranchisement may come to impact the healthcare that they receive. That is, we can locate racial bias and exclusion at myriad sites within healthcare, medicine, and the construction of medical knowledge well before a clinical encounter in which medical AI is used. For example: people of color are underrepresented within clinical trials that test the safety and efficacy of drugs—a fact that might impact our ability to know whether a drug actually is safe and effective for people of color.¹³13.See The Nat’l Acads. of Scis., Eng’g & Med., Improving Representation in Clinical Trials and Research: Building Research Equity for Women and Underrepresented Groups 24 (Kirsten Bibbins-Domingo & Alex Helman eds., 2022), https://nap.nationalacademies.org/‌catalog/26479/improving-representation-in-clinical-trials-and-research-building-research‌-equity [https://perma.cc/FE2H-9YC5] (explaining that “research has demonstrated that many groups underrepresented and excluded in clinical research can have distinct disease presentations or health circumstances that affect how they will respond to an investigational drug or therapy” and that “[s]uch differences contribute to variable therapeutic responses and necessitate targeted efficacy and safety evaluation”). An FDA report of clinical trials that took place between 2015 and 2019 revealed that while non-Hispanic white people constituted only 61% of the general population in the United States, they were 78% of trial participants. See id. at 35; see also id. at 44–45 (“Even recently completed trials have failed to include enrollment consistent with the distribution of disease across the population—a Phase 2 trial of crenezumab in Alzheimer’s disease with 360 participants across 83 sites in 6 countries reported 97.5 percent of participants being white, and only 2.8 percent of all participants being Hispanic.”). Notably, clinical trials only rarely include pregnant and lactating people. See id. at 40. This means that when most medications are introduced into the market, their safety and efficacy vis-à-vis pregnant and lactating people are unknown—although it is quite common for people to take medications while pregnant or lactating. See id. (“During pregnancy and lactation, greater than 90 percent of these individuals take at least one medication, either to treat pregnancy-related complications or to treat ongoing medical issues.”).Show More For example: the National Institute of Health (“NIH”) and the National Science Foundation (“NSF”) fund medical research conducted by investigators of color at lower rates than that conducted by white investigators¹⁴14.See Christine Yifeng Chen et al., Meta-Research: Systemic Racial Disparities in Funding Rates at the National Science Foundation, eLife, Nov. 29, 2022, at 2, https://doi.org/10.7554/‌eLife.83071 [https://perma.cc/NFS8-T3LB] (showing that the National Science Foundation funded proposals by white principal investigators at +8.5% of the average funding rate while funding proposals by Asian, black, and Native Hawaiian/Pacific Islander principal investigators at 21.2%, 8.1%, and 11.3% of the average funding rate, respectively); Donna K. Ginther et al., Race, Ethnicity, and NIH Research Awards, 333 Science 1015, 1016 (2011), https://doi.org/10.1126/science.1196783 [https://perma.cc/NQA9-LYMG] (showing that the National Institute of Health funded proposals by black principal investigators at close to half the rate as white principal investigators).Show More—a fact that might contribute to the underfunding of medical conditions that disproportionately impact people of color. For example: most medical schools still approach race as a genetic fact instead of a social construction, with the result being that most physicians in the United States have not been disabused of the notion that people of color—black people, specifically—possess genes and genetic variations that make them get sicker and die earlier than their white counterparts.¹⁵15.See Christina Amutah et al., Misrepresenting Race—The Role of Medical Schools in Propagating Physician Bias, 384 New Eng. J. Med. 872, 873–74 (2021). Funding for research into the imagined genetic causes of racial disparities in health outcomes vastly outstrips funding for research into social determinants of health or the physiological effects of stress and racism on people of color. Shawn Kneipp et al., Trends in Health Disparities, Health Inequity, and Social Determinants of Health Research, 67 Nursing Rsch. 231, 231 (2018). See also René Bowser, Racial Profiling in Health Care: An Institutional Analysis of Medical Treatment Disparities, 7 Mich. J. Race & L. 79, 114 (2001) (arguing that “physicians who focus on racism as opposed to cultural peculiarities or the genetic basis of disease are likely to be considered both as not ‘real scientists’ and as dangerous” and stating that producing research that explains racial disparities in health outcomes in terms of culture and genes, as opposed to structural racism and inherited disadvantage, “enhances the researcher’s status”). This funding disparity undoubtedly contributes to the perpetuation of the myth of biological race.Show More For example: pulse oximeters, which use infrared light to measure an individual’s blood saturation levels, are so common as to be called ubiquitous, even though it is well-known that the devices do not work as well on more pigmented skin.¹⁶16.See Haley Bridger, Skin Tone and Pulse Oximetry: Racial Disparities in Care Tied to Differences in Pulse Oximeter Performance, Harv. Med. Sch. (July 14, 2022), https://hms.‌harvard.edu/news/skin-tone-pulse-oximetry [https://perma.cc/HZW8-YMAS].Show More For example: most clinical studies that are used to establish evidence-based practices are conducted in well-resourced facilities, making their generalizability to more contingently equipped and more unreliably funded facilities uncertain.¹⁷17.See The National Academies of Sciences, Engineering, and Medicine, supra note 13, at 25 (observing that “[c]linical research is often performed in well-resourced tertiary care sites in large urban centers, and may have limited applicability to community sites, less well-resourced safety net settings, and rural settings”).Show More For example: many research studies do not report their findings by race, thereby impeding our ability to know whether the studies’ results are equally true for all racial groups.¹⁸18.See id. at 31 (stating that the “[l]ack of representative studies on screening for cancer or cardiometabolic disease may lead to recommendations that fail to consider earlier ages or lower biomarker thresholds to start screening that might be warranted in some populations” and observing that “due to [a] lack of studies that report findings by race,” the guidelines for some screenings are universal, although there is some evidence that they should vary by race and age).Show More And so on. If providers ought to notify their patients (especially their patients of color) that the provider has relied upon medical AI when caring for the patient, then it is likely true that providers similarly ought to notify their patients about racial inequity in other contexts as well. That is, there is a compelling argument that when a provider prescribes a medication to a patient, they might need to notify the patient that preciously small numbers of people who were not white cisgender men participated in the clinical trial of the medication.¹⁹19.See Barbara A. Noah, Racial Disparities in the Delivery of Health Care,35 San Diego L. Rev. 135, 152 (1998) (noting that “[b]efore the National Institutes of Health (NIH) issued a directive in 1990, investigators almost uniformly tested new chemical entities only on white male subjects”).Show More There is a compelling argument that when a provider tells a black patient that the results of her pulmonary function test were “normal,” they might also need to inform that patient that if she were white, her results would be considered “abnormal,” as the idea that the races are biologically distinct has long informed notions of whether a set of lungs is healthy or not.²⁰20.See Lundy Braun, Breathing Race into the Machine: The Surprising Career of the Spirometer from Plantation to Genetics, at xv (2014).Show More There is a compelling argument that when a provider affixes a pulse oximeter to the finger of a patient of color, they might also need to inform that patient that the oximeter’s readings may be inaccurate—and the care that she receives based on those readings may be inferior²¹21.See Bridger, supra note 16 (describing a study that showed that pulse oximeters reported blood oxygen saturation levels for patients of color that were higher than what they actually were, leading these patients’ providers to give them supplemental oxygen at lower rates).Show More—given the widely known and undisputed fact that such devices do not work as well on darker skin. There is a compelling argument that when a physician tells a pregnant patient laboring in a safety net hospital that the evidence-based practice for patients presenting in the way that she presents is an artificial rupture of membranes (“AROM”) to facilitate the progression of the labor, they might also need to inform the patient that the studies that established AROM as an evidence-based practice were conducted in well-funded research hospitals that were affiliated with universities.²²22.See, e.g., Alan F. Guttmacher & R. Gordon Douglas, Induction of Labor by Artificial Rupture of the Membranes, 21 Am. J. Obstetrics & Gynecology 485, 485 (1931) (establishing artificial rupture of the membranes as an evidence-based practice in obstetrics after studying the safety and efficacy of the procedure among patients cared for at a clinic affiliated with Johns Hopkins University).Show More There is a compelling argument that when a physician tells a forty-year-old black patient that he does not need to do a screening for colorectal cancer until age forty-five, they might also need to inform the patient that the studies that established forty-five as the age when such screenings should commence did not report their findings by race.²³23.See Screening for Colorectal Cancer: US Preventive Services Task Force Recommendation Statement, 325 JAMA 1965, 1970 (2021), https://jamanetwork.com/jour‌nals/jama/fullarticle/2779985 [https://perma.cc/TV68-6W75].Show More And so on.

It does not defeat this Article’s claim to observe that racial bias and exclusion are pervasive throughout medicine and healthcare and that providers in many contexts outside of the use of medical AI ought to notify patients how this bias and exclusion may affect the healthcare that they are receiving. Indeed, it is seductive to claim in those other contexts that it is better to fix the inequities in the healthcare than to tell patients of color about them—a fact that is also true in the context of medical AI. However, fixing the inequities in healthcare in those other contexts and telling patients about them are not mutually exclusive—a fact that is also true in the context of medical AI. And as Part IV argues, telling patients about the inequities in those other contexts might be the condition of possibility of fixing the inequities—a fact that is also true in the context of medical AI.

Essentially, this Article’s claim may be applied in a range of circumstances. In this way, this Article’s investigation into how algorithmic bias in medical AI should affect the informed consent process is simply a case study of a broader phenomenon. This Article’s insights vis-à-vis medical AI are generalizable to all medical interventions and noninterventions.

See Blueprint for an AI Bill of Rights: Making Automated Systems Work for the American People, The White House Off. of Sci. & Tech. Pol’y, https://www.white‌house.gov/ostp/ai-bill-of-rights/ [https://perma.cc/E5GS-6ZP3] (last visited Jan. 5, 2024). Some states and cities have also initiated efforts to regulate AI. See, e.g., Laura Schneider, Debo Adegbile, Ariella Feingold & Makenzie Way, NYC Soon to Enforce AI Bias Law, Other Jurisdictions Likely to Follow, WilmerHale (Apr. 10, 2023), https://www.wilmerhale.com/insights/client-alerts/‌20230410-nyc-soon-to-enforce-ai-bias-law-other-jurisdictions-likely-to-follow [https://perm‌a.cc/K47J-XZUQ] (“New York City’s Department of Consumer and Worker Protection (DCWP) is expected to begin enforcing the City’s novel artificial intelligence (AI) bias audit law on July 5, 2023. This law prohibits the use of automated decision tools in employment decisions within New York City unless certain bias audit, notice, and reporting requirements are met.”); Jonathan Kestenbaum, NYC’s New AI Bias Law Broadly Impacts Hiring and Requires Audits, Bloomberg Law (July 5, 2023, 5:00 AM), https://news.bloomberglaw.com/‌us-law-week/nycs-new-ai-bias-law-broadly-impacts-hiring-and-requires-audits [https://perm‌a.cc/L94C-X3BN] (observing that the “New Jersey Assembly is considering a limit on use of AI tools in hiring unless employers can prove they conducted a bias audit,” that “Maryland and Illinois have proposed laws that prohibit use of facial recognition and video analysis tools in job interviews without consent of the candidates,” and that “the California Fair Employment and Housing Council is mulling new mandates that would outlaw use of AI tools and tests that could screen applicants based on race, gender, ethnicity, and other protected characteristics”); Attorney General Bonta Launches Inquiry into Racial and Ethnic Bias in Healthcare Algorithms, State of Cal. Dep’t of Just. Off. of the Att’y Gen. (Aug. 31, 2022), https://oag.‌ca.gov/‌news/press-releases/attorney-general-bonta-launches-inquiry-racial-and-ethnic-bias-healthca‌re [https://perma.cc/ERC4-GVJJ] (“California Attorney General Rob Bonta today sent letters to hospital CEOs across the state requesting information about how healthcare facilities and other providers are identifying and addressing racial and ethnic disparities in commercial decision-making tools. The request for information is the first step in a DOJ inquiry into whether commercial healthcare algorithms—types of software used by healthcare providers to make decisions that affect access to healthcare for California patients—have discriminatory impacts based on race and ethnicity.”). ↑
See Blueprint for an AI Bill of Rights: Making Automated Systems Work for the American People, supra note 1. ↑
Id. ↑
Id. ↑
Id. ↑
Rebecca Robbins & Erin Brodwin, An Invisible Hand: Patients Aren’t Being Told About the AI Systems Advising Their Care, STAT (July 15, 2020), https://www.statnews.com/‌2020/07/15/artificial-intelligence-patient-consent-hospitals/ [https://perma.cc/R3F5-NNX4]. ↑
Id. ↑
Id. ↑
See also Attorney General Bonta Launches Inquiry into Racial and Ethnic Bias in Healthcare Algorithms, supra note 1 (understanding as problematic the fact that some AI tools used in healthcare “are not fully transparent to healthcare consumers”); cf. Schneider et al., supra note 1 (noting that New York City’s law regulating AI in employment requires an employer to provide “applicants and employees who reside in New York City notice of its use of AI in hiring and/or promotion decisions, either via website, job posting, mail or e-mail”).
Interestingly, some investigations have shown that some patients do not want to know when physicians and hospital administrators rely on medical AI when managing their healthcare. See Robbins & Brodwin, supra note 6 (reporting that some patients who were interviewed stated that “they wouldn’t expect or even want their doctor to mention” the use of medical AI and stating that these patients “likened it to not wanting to be privy to numbers around their prognosis, such as how much time they might expect to have left, or how many patients with their disease are still alive after five years”). However, other studies have shown that patients do desire this information. See Anjali Jain et al., Awareness of Racial and Ethnic Bias and Potential Solutions to Address Bias with Use of Health Care Algorithms, JAMA Health F., June 2, 2023, at 10, https://jamanetwork.com/journals/jama-health-forum/fullarticle/2805595 [https://perma.cc/9FMK-E4VV] (discussing a “recent, nationally representative survey” that showed that “patients . . . wanted to know when [AI] was involved in their care”). ↑
Indeed, volumes have been written about algorithmic bias, what AI technologies mean with respect to data privacy, and how we ought to regulate AI inside the medical context. See generally The Oxford Handbook of Digital Ethics (Carissa Véliz ed., 2021). ↑
See I. Glenn Cohen, Informed Consent and Medical Artificial Intelligence: What to Tell the Patient?, 108 Geo. L.J. 1425, 1428 (2020) (noting that his Article, which was published just three years ago, was “the first to examine in-depth how medical AI / [machine learning] intersects with our concept of informed consent”). ↑
Elizabeth A. Howell, Reducing Disparities in Severe Maternal Morbidity and Mortality, 61 Clinical Obstetrics & Gynecology 387, 387 (2018). ↑
See The Nat’l Acads. of Scis., Eng’g & Med., Improving Representation in Clinical Trials and Research: Building Research Equity for Women and Underrepresented Groups 24 (Kirsten Bibbins-Domingo & Alex Helman eds., 2022), https://nap.nationalacademies.org/‌catalog/26479/improving-representation-in-clinical-trials-and-research-building-research‌-equity [https://perma.cc/FE2H-9YC5] (explaining that “research has demonstrated that many groups underrepresented and excluded in clinical research can have distinct disease presentations or health circumstances that affect how they will respond to an investigational drug or therapy” and that “[s]uch differences contribute to variable therapeutic responses and necessitate targeted efficacy and safety evaluation”). An FDA report of clinical trials that took place between 2015 and 2019 revealed that while non-Hispanic white people constituted only 61% of the general population in the United States, they were 78% of trial participants. See id. at 35; see also id. at 44–45 (“Even recently completed trials have failed to include enrollment consistent with the distribution of disease across the population—a Phase 2 trial of crenezumab in Alzheimer’s disease with 360 participants across 83 sites in 6 countries reported 97.5 percent of participants being white, and only 2.8 percent of all participants being Hispanic.”).
Notably, clinical trials only rarely include pregnant and lactating people. See id. at 40. This means that when most medications are introduced into the market, their safety and efficacy vis-à-vis pregnant and lactating people are unknown—although it is quite common for people to take medications while pregnant or lactating. See id. (“During pregnancy and lactation, greater than 90 percent of these individuals take at least one medication, either to treat pregnancy-related complications or to treat ongoing medical issues.”). ↑
See Christine Yifeng Chen et al., Meta-Research: Systemic Racial Disparities in Funding Rates at the National Science Foundation, eLife, Nov. 29, 2022, at 2, https://doi.org/10.7554/‌eLife.83071 [https://perma.cc/NFS8-T3LB] (showing that the National Science Foundation funded proposals by white principal investigators at +8.5% of the average funding rate while funding proposals by Asian, black, and Native Hawaiian/Pacific Islander principal investigators at 21.2%, 8.1%, and 11.3% of the average funding rate, respectively); Donna K. Ginther et al., Race, Ethnicity, and NIH Research Awards, 333 Science 1015, 1016 (2011), https://doi.org/10.1126/science.1196783 [https://perma.cc/NQA9-LYMG] (showing that the National Institute of Health funded proposals by black principal investigators at close to half the rate as white principal investigators). ↑
See Christina Amutah et al., Misrepresenting Race—The Role of Medical Schools in Propagating Physician Bias, 384 New Eng. J. Med. 872, 873–74 (2021). Funding for research into the imagined genetic causes of racial disparities in health outcomes vastly outstrips funding for research into social determinants of health or the physiological effects of stress and racism on people of color. Shawn Kneipp et al., Trends in Health Disparities, Health Inequity, and Social Determinants of Health Research, 67 Nursing Rsch. 231, 231 (2018). See also René Bowser, Racial Profiling in Health Care: An Institutional Analysis of Medical Treatment Disparities, 7 Mich. J. Race & L. 79, 114 (2001) (arguing that “physicians who focus on racism as opposed to cultural peculiarities or the genetic basis of disease are likely to be considered both as not ‘real scientists’ and as dangerous” and stating that producing research that explains racial disparities in health outcomes in terms of culture and genes, as opposed to structural racism and inherited disadvantage, “enhances the researcher’s status”). This funding disparity undoubtedly contributes to the perpetuation of the myth of biological race. ↑
See Haley Bridger, Skin Tone and Pulse Oximetry: Racial Disparities in Care Tied to Differences in Pulse Oximeter Performance, Harv. Med. Sch. (July 14, 2022), https://hms.‌harvard.edu/news/skin-tone-pulse-oximetry [https://perma.cc/HZW8-YMAS]. ↑
See The National Academies of Sciences, Engineering, and Medicine, supra note 13, at 25 (observing that “[c]linical research is often performed in well-resourced tertiary care sites in large urban centers, and may have limited applicability to community sites, less well-resourced safety net settings, and rural settings”). ↑
See id. at 31 (stating that the “[l]ack of representative studies on screening for cancer or cardiometabolic disease may lead to recommendations that fail to consider earlier ages or lower biomarker thresholds to start screening that might be warranted in some populations” and observing that “due to [a] lack of studies that report findings by race,” the guidelines for some screenings are universal, although there is some evidence that they should vary by race and age). ↑
See Barbara A. Noah, Racial Disparities in the Delivery of Health Care, 35 San Diego L. Rev. 135, 152 (1998) (noting that “[b]efore the National Institutes of Health (NIH) issued a directive in 1990, investigators almost uniformly tested new chemical entities only on white male subjects”). ↑
See Lundy Braun, Breathing Race into the Machine: The Surprising Career of the Spirometer from Plantation to Genetics, at xv (2014). ↑
See Bridger, supra note 16 (describing a study that showed that pulse oximeters reported blood oxygen saturation levels for patients of color that were higher than what they actually were, leading these patients’ providers to give them supplemental oxygen at lower rates). ↑
See, e.g., Alan F. Guttmacher & R. Gordon Douglas, Induction of Labor by Artificial Rupture of the Membranes, 21 Am. J. Obstetrics & Gynecology 485, 485 (1931) (establishing artificial rupture of the membranes as an evidence-based practice in obstetrics after studying the safety and efficacy of the procedure among patients cared for at a clinic affiliated with Johns Hopkins University). ↑
See Screening for Colorectal Cancer: US Preventive Services Task Force Recommendation Statement, 325 JAMA 1965, 1970 (2021), https://jamanetwork.com/jour‌nals/jama/fullarticle/2779985 [https://perma.cc/TV68-6W75]. ↑

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