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 Education1.347 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.2.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,3.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”).4.See infra notes 33–41.Show More In states with constitutional SEOs, governors typically have very little, if any, direct authority over education.5.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.6.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.7.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.8.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.9.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.10 10.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.11 11.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.12 12.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,13 13.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.14 14.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.15 15.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.16 16.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.17 17.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.18 18.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 2023.19 19.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.20 20.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,21 21.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,22 22.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.23 23.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,24 24.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.25 25.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.26 26.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.27 27.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.28 28.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.29 29.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.30 30.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.31 31.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.32 32.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.

  1.  347 U.S. 483 (1954).
  2.  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).
  3.  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).
  4.  See infra notes 33–41.
  5.  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).
  6.  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).
  7.  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).
  8.  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).
  9.  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).
  10.  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).
  11.  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).
  12.  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].
  13.  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).
  14.  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).
  15.  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).
  16.  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].
  17.  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].
  18.  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].
  19.  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].
  20.  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.”).
  21.  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).
  22.  Derek W. Black, Reforming School Discipline, 111 Nw. U. L. Rev. 1, 10 (2016).
  23.  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).
  24.  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).
  25.  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.
  26.  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).
  27.  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”).
  28.  See infra notes 64–72 and accompanying text.
  29.  See generally Joshua E. Weishart, Transcending Equality Versus Adequacy, 66 Stan. L. Rev. 477, 499–507 (2014) (surveying school funding cases).
  30.  See Derek W. Black, Database on School Education Officer Precedent (Apr. 21, 2022) [hereinafter Database I] (on file with author).
  31.  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”).
  32.  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.1.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.”2.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.”3.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.4.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.5.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.6.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.”7.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.”8.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.9.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,10 10.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.11 11.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.12 12.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.13 13.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 investigators14 14.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.15 15.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.16 16.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.17 17.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.18 18.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.19 19.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.20 20.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 inferior21 21.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.22 22.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.23 23.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.

  1.  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.”).
  2.  See Blueprint for an AI Bill of Rights: Making Automated Systems Work for the American People, supra note 1.
  3.  Id.
  4.  Id.
  5.  Id.
  6.  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].
  7.  Id.
  8.  Id.
  9.  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”).

  10.  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).
  11.  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”).
  12.  Elizabeth A. Howell, Reducing Disparities in Severe Maternal Morbidity and Mortality, 61 Clinical Obstetrics & Gynecology 387, 387 (2018).
  13.  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.”).

  14.  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).
  15.  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.
  16.  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].
  17.  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”).
  18.  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).
  19.  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”).
  20.  See Lundy Braun, Breathing Race into the Machine: The Surprising Career of the Spirometer from Plantation to Genetics, at xv (2014).
  21.  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).
  22.  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).
  23.  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].

Making Section 1983 Malicious-Prosecution Suits Work

The Supreme Court can’t seem to get over Section 1983 malicious prosecution. Thirty years and three significant cases into its project, however, the lower courts look about the same as they did in the early 1990s. The problem is not lack of effort, but lack of proper focus. The Court first endeavored to identify the proper constitutional source of a malicious-prosecution right, all the while failing to consider the more practical problems that make Section 1983 malicious-prosecution claims nearly impossible to win.

The Court seemed to reverse its course in Thompson v. Clark, eschewing big constitutional questions in favor of a narrow, practical one. This Note applauds that turn in spirit. But it seems that the Court overcorrected by choosing too small of a question. This Note contributes the first postmortem of Thompson and finds that a year later, the lower courts look like nothing ever happened: almost every Section 1983 malicious-prosecution case since has been dismissed for reasons unrelated to Thompson’s favorable-termination rule.

What if instead of asking questions too big to be practically impactful, or too small to do much work on their own, we found the questions that are “just right”? This Note identifies these questions by analyzing remaining splits in the lower courts and where those splits overlap with the issues killing otherwise meritorious Section 1983 malicious-prosecution claims. By asking and answering the right questions, this Note constructs a version of Section 1983 malicious prosecution that could work in real life.

Introduction

How do you define a right if you aren’t sure it exists? The right to be free from malicious prosecution has remained elusive despite decades of judicial and scholarly attention. Some still debate whether it even exists, and many more argue that it should not. The constitutional malicious-prosecution claim often brought under Section 1983 is something of an enigma—despite the name, the claims generally are not brought against prosecutors, and they rarely involve malice in an ordinary sense. Rather, they are part of the family of constitutional torts aimed at addressing police misconduct—here, for initiating criminal prosecutions without probable cause.

These lawsuits serve two critical roles. First, they provide redress for the harms uniquely associated with enduring a criminal prosecution, namely, being deprived of rights “to make basic decisions about the future; to participate in community affairs; to take advantage of employment opportunities; to cultivate family, business, and social relationships; and to travel from place to place.”1.Albright v. Oliver, 510 U.S. 266, 294 (1994) (Stevens, J., dissenting).Show More And second, because malicious-prosecution claims are not ripe until favorable termination—which occurs when a prosecution ends without a conviction2.Thompson v. Clark, 142 S. Ct. 1332, 1335 (2022).Show More—they may extend the timeframe to bring civil-rights suits. Because companion constitutional torts generally accrue much earlier,3.If a person was unlawfully arrested and then fought charges resulting from the false arrest for two years (and thus was procedurally barred from raising the claim, see Heck v. Humphrey, 512 U.S. 477, 486–87 (1994) (holding that a damages suit challenging the constitutionality of an imprisonment or conviction “is not cognizable under § 1983” unless plaintiff can demonstrate favorable termination of underlying criminal matter)), for example, the statute of limitations on that false-arrest claim might expire while the harm of the officer’s misconduct was still ongoing. Federal courts also generally abstain from hearing cases challenging state prosecutions while they are ongoing. See Younger v. Harris, 401 U.S. 37, 53 (1971) (reaffirming this principle); see also Brief for Federal Courts Scholars as Amicus Curiae Supporting Petitioner, Thompson, 142 S. Ct. 1332 (No. 20-659) (clarifying that these doctrines and their underlying federalism rationales have little force after favorable termination).Show More malicious-prosecution suits give a person more time to vindicate at least some of their rights.4.Compare Manuel v. City of Joliet, 590 F. App’x 641, 643 (7th Cir. 2015) (rejecting unlawful-arrest claim as time barred), with Manuel v. City of Joliet, 580 U.S. 357, 360 (2017) (finding malicious-prosecution claim did not accrue until prosecution ended, thus extending time to file by about two months).Show More

But regardless of how important they are in theory, in practice, these suits rarely succeed. Despite significant debate over the proper constitutional home of malicious prosecution,5.See, e.g., Eric J. Wunsch, Note, Fourth Amendment and Fourteenth Amendment—Malicious Prosecution and 1983: Is There a Constitutional Violation Remediable Under Section 1983?, 85 J. Crim. L. & Criminology 878, 878 (1995) (arguing that malicious prosecutions violate the Procedural Due Process Clause); John T. Ryan, Note, Malicious Prosecution Claims Under Section 1983: Do Citizens Have Federal Recourse?, 64 Geo. Wash. L. Rev. 776, 778 (1996) (favoring due process framework and disputing that Albright forecloses it); Esther M. Schonfeld, Malicious Prosecution as a Constitutional Tort, 15 Touro L. Rev. 1681, 1682 (1999) (describing Albright as a failed effort); Jacques L. Schillaci, Note, Unexamined Premises: Toward Doctrinal Purity in § 1983 Malicious Prosecution Doctrine, 97 Nw. U. L. Rev. 439, 443 (2002) (supporting “divorce” between malicious prosecution and Section 1983); Jacob Paul Goldstein, Note, From the Exclusionary Rule to a Constitutional Tort for Malicious Prosecutions, 106 Colum. L. Rev. 643, 657 (2006) (describing “a Fourth Amendment right to be free from malicious prosecution” but suggesting that current version is not functional); Lyle Kossis, Note, Malicious Prosecution Claims in Section 1983 Lawsuits, 99 Va. L. Rev. 1635, 1637 (2013) (suggesting the Fifth and Fourteenth Amendments as better homes); Erin E. McMannon, Note, The Demise of § 1983 Malicious Prosecution: Separating Tort Law From the Fourth Amendment, 94 Notre Dame L. Rev. 1479, 1498–99 (2019) (arguing that no constitutional right to be free from malicious prosecution exists); Timothy Tymkovich & Hayley Stillwell, Malicious Prosecution as Undue Process: A Fourteenth Amendment Theory of Malicious Prosecution, 20 Geo. J.L. & Pub. Pol’y 225, 228 (2022) (describing substantive due process as a “superior doctrinal account of malicious prosecution”).Show More there is little clarity on its practicalities: after thirty years of effort, an “embarrassing diversity of judicial opinion” remains.6.Albright v. Oliver, 975 F.2d 343, 345 (7th Cir. 1992) (Posner, J.).Show More In Albright v. Oliver,7.510 U.S. 266 (1994) (plurality opinion).Show More and again nearly twenty-five years later in Manuel v. City of Joliet,8.580 U.S. 357 (2017).Show More the U.S. Supreme Court made its first error: by focusing only on whether malicious prosecution is properly housed in the Fourth or Fourteenth Amendment, the Court twice missed its chance to intervene in any practical sense. Both decisions had shockingly little real-world impact.9.See, e.g., Kossis, supra note 5, at 1646–48 (describing post-Albright circuit splits); McMannon, supra note 5, at 1493 (same post-Manuel).Show More But two years ago, in Thompson v. Clark,10 10.142 S. Ct. 1332 (2022).Show More the Court made a new kind of error: by failing to address the most important problems in Section 1983 malicious-prosecution litigation, the Court issued an ostensibly good decision that, as this Note discovers, also failed to make much of a difference.11 11.See infra Section II.C.Show More At each turn, the Court has failed to identify the sources of malicious prosecution’s challenges and thus has failed to provide solutions tailored to those core problems. This Note fills that gap.

By exploring for the first time how the U.S. Courts of Appeals have responded to Thompson, this Note identifies two primary issues. First, in the wake of Thompson, the high-level disagreement that Judge Posner called “embarrassing”12 12.Albright v. Oliver, 975 F.2d 343, 345 (7th Cir. 1992).Show More endures.13 13.See infra Section II.C for discussion of the many differences between the circuits, and even within them, on the basic elements of a Section 1983 malicious-prosecution claim.Show More Here, “[v]aried interpretation of federal constitutional law raises . . . troubling[] questions,” and nonuniformity has had tangible consequences.14 14.See Amanda Frost, Overvaluing Uniformity, 94 Va. L. Rev. 1567, 1569 n.5 (2008) (suggesting that uniformity may be important where nonuniformity has tangible consequences or where questions of federal constitutional law are at stake).Show More The details of these claims diverge wildly depending on the circuit, and even within circuits, so plaintiffs—many of whom are not represented by counsel15 15.See Joanna C. Schwartz, Civil Rights Without Representation, 64 Wm. & Mary L. Rev 641, 650–52 (2023) (discussing difficulties securing counsel in civil-rights cases).Show More—have little chance of figuring it out. Specifically, there is significant disagreement on the two usual elements of a Section 1983 malicious-prosecution claim that most often prove fatal: probable cause and malice. The initiation of criminal charges without probable cause is the “gravamen” of malicious prosecution,16 16.Thompson v. Clark, 142 S. Ct. 1332, 1337 (2022).Show More but there is little clarity on what probable cause is relevant.17 17.There is little guidance, generally, on what courts are supposed to make of probable cause. See Andrew Manuel Crespo, Probable Cause Pluralism, 129 Yale L.J. 1276, 1370 (2020) (“[I]n an effort to make probable cause mean everything at once, those entrusted with its enforcement have made it so vague as to mean almost nothing at all.”). As Professor Crespo has argued, existing probable-cause doctrine fails “to guide the judge through that decision—and to help everyone else predict how a judge might rule.” Id. at 1280.Show More Because malicious-prosecution defendants are typically police officers or investigators, and not those directly responsible for decisions to prosecute,18 18.SeeImbler v. Pachtman, 424 U.S. 409, 431 (1976) (holding that prosecutors have absolute immunity from Section 1983 malicious-prosecution suits).Show More it can be hard to parse whose decisions—and which of those decisions—matter. Lack of malice, while not always even an element of malicious prosecution, can serve as a nearly insurmountable barrier to plaintiffs.

Second, because the Court has never directly considered what the “seizure” in a malicious prosecution is, some lower courts have artificially narrowed Section 1983 malicious-prosecution claims to encompass only suits where the plaintiff was detained. This misunderstands the harm of a malicious prosecution and closes courthouse doors to individuals whose constitutional rights have been violated. Although we more often think of trans-substantive doctrines like qualified immunity as limitations on the availability of damages remedies, here we see remedial access limited through a restrictive framing of the substantive right itself.19 19.See John C. Jeffries, Jr., Pamela S. Karlan, Peter W. Low & George A. Rutherglen, Civil Rights Actions: Enforcing the Constitution 255 (5th ed. 2022); see also Richard H. Fallon, Jr., The Linkage Between Justiciability and Remedies—And Their Connections to Substantive Rights, 92 Va. L. Rev. 633, 637 (2006) (“[W]hen the Court dislikes an outcome or pattern of outcomes, it will often be equally possible for the Justices to reformulate applicable justiciability doctrine, substantive doctrine, or remedial doctrine.”).Show More

Answering these questions the right way could produce the result the Court’s repeated efforts would suggest it desires—a settled doctrinal framework for malicious-prosecution claims brought under Section 1983. And more importantly, clarifying the scope of malicious-prosecution claims should cure the notice issues and inconsistencies that make them harder to win than they should be. Maybe the fourth time could be the charm?

This Note explores these questions through three Parts. Part I will discuss the Court’s historical efforts to determine where a right to be free from malicious prosecution is located in the Constitution, a project that failed to yield doctrinal stability. Part II will provide the first postmortem of Thompson—a case that, promisingly, addressed a narrow, technical aspect of Section 1983 litigation—and explore its (limited) impacts on the lower courts. Part III will answer the questions at the root of Section 1983 malicious prosecution’s problems—those identified in Part II. This Note thus has two primary contributions: first, it provides a descriptive account of the lower courts after Thompson, which both makes evident the Court’s failure in problem identification and identifies the right problems to address next; and second, through answering the questions left open after Thompson, it provides the first account of malicious prosecution that solves the meaningful practical problems that have, until now, gone unaddressed. The goal of this Note is simple: to make Section 1983 malicious-prosecution suits work.

  1.  Albright v. Oliver, 510 U.S. 266, 294 (1994) (Stevens, J., dissenting).
  2.  Thompson v. Clark, 142 S. Ct. 1332, 1335 (2022).
  3.  If a person was unlawfully arrested and then fought charges resulting from the false arrest for two years (and thus was procedurally barred from raising the claim, see Heck v. Humphrey, 512 U.S. 477, 486–87 (1994) (holding that a damages suit challenging the constitutionality of an imprisonment or conviction “is not cognizable under § 1983” unless plaintiff can demonstrate favorable termination of underlying criminal matter)), for example, the statute of limitations on that false-arrest claim might expire while the harm of the officer’s misconduct was still ongoing. Federal courts also generally abstain from hearing cases challenging state prosecutions while they are ongoing. See Younger v. Harris, 401 U.S. 37, 53 (1971) (reaffirming this principle); see also Brief for Federal Courts Scholars as Amicus Curiae Supporting Petitioner, Thompson, 142 S. Ct. 1332 (No. 20-659) (clarifying that these doctrines and their underlying federalism rationales have little force after favorable termination).
  4.  Compare Manuel v. City of Joliet, 590 F. App’x 641, 643 (7th Cir. 2015) (rejecting unlawful-arrest claim as time barred), with Manuel v. City of Joliet, 580 U.S. 357, 360 (2017) (finding malicious-prosecution claim did not accrue until prosecution ended, thus extending time to file by about two months).
  5.  See, e.g., Eric J. Wunsch, Note, Fourth Amendment and Fourteenth Amendment—Malicious Prosecution and 1983: Is There a Constitutional Violation Remediable Under Section 1983?, 85 J. Crim. L. & Criminology 878, 878 (1995) (arguing that malicious prosecutions violate the Procedural Due Process Clause); John T. Ryan, Note, Malicious Prosecution Claims Under Section 1983: Do Citizens Have Federal Recourse?, 64 Geo. Wash. L. Rev. 776, 778 (1996) (favoring due process framework and disputing that Albright forecloses it); Esther M. Schonfeld, Malicious Prosecution as a Constitutional Tort, 15 Touro L. Rev. 1681, 1682 (1999) (describing Albright as a failed effort); Jacques L. Schillaci, Note, Unexamined Premises: Toward Doctrinal Purity in § 1983 Malicious Prosecution Doctrine, 97 Nw. U. L. Rev. 439, 443 (2002) (supporting “divorce” between malicious prosecution and Section 1983); Jacob Paul Goldstein, Note, From the Exclusionary Rule to a Constitutional Tort for Malicious Prosecutions, 106 Colum. L. Rev. 643, 657 (2006) (describing “a Fourth Amendment right to be free from malicious prosecution” but suggesting that current version is not functional); Lyle Kossis, Note, Malicious Prosecution Claims in Section 1983 Lawsuits, 99 Va. L. Rev. 1635, 1637 (2013) (suggesting the Fifth and Fourteenth Amendments as better homes); Erin E. McMannon, Note, The Demise of § 1983 Malicious Prosecution: Separating Tort Law From the Fourth Amendment, 94 Notre Dame L. Rev. 1479, 1498–99 (2019) (arguing that no constitutional right to be free from malicious prosecution exists); Timothy Tymkovich & Hayley Stillwell, Malicious Prosecution as Undue Process: A Fourteenth Amendment Theory of Malicious Prosecution, 20 Geo. J.L. & Pub. Pol’y 225, 228 (2022) (describing substantive due process as a “superior doctrinal account of malicious prosecution”).
  6.  Albright v. Oliver, 975 F.2d 343, 345 (7th Cir. 1992) (Posner, J.).
  7.  510 U.S. 266 (1994) (plurality opinion).
  8.  580 U.S. 357 (2017).
  9.  See, e.g., Kossis, supra note 5, at 1646–48 (describing post-Albright circuit splits); McMannon, supra note 5, at 1493 (same post-Manuel).
  10.  142 S. Ct. 1332 (2022).
  11.  See infra Section II.C.
  12.  Albright v. Oliver, 975 F.2d 343, 345 (7th Cir. 1992).
  13.  See infra Section II.C for discussion of the many differences between the circuits, and even within them, on the basic elements of a Section 1983 malicious-prosecution claim.
  14.  See Amanda Frost, Overvaluing Uniformity, 94 Va. L. Rev. 1567, 1569 n.5 (2008) (suggesting that uniformity may be important where nonuniformity has tangible consequences or where questions of federal constitutional law are at stake).
  15.  See Joanna C. Schwartz, Civil Rights Without Representation, 64 Wm. & Mary L. Rev 641, 650–52 (2023) (discussing difficulties securing counsel in civil-rights cases).
  16.  Thompson v. Clark, 142 S. Ct. 1332, 1337 (2022).
  17.  There is little guidance, generally, on what courts are supposed to make of probable cause. See Andrew Manuel Crespo, Probable Cause Pluralism, 129 Yale L.J. 1276, 1370 (2020) (“[I]n an effort to make probable cause mean everything at once, those entrusted with its enforcement have made it so vague as to mean almost nothing at all.”). As Professor Crespo has argued, existing probable-cause doctrine fails “to guide the judge through that decision—and to help everyone else predict how a judge might rule.” Id. at 1280.
  18.  See Imbler v. Pachtman, 424 U.S. 409, 431 (1976) (holding that prosecutors have absolute immunity from Section 1983 malicious-prosecution suits).
  19.  See John C. Jeffries, Jr., Pamela S. Karlan, Peter W. Low & George A. Rutherglen, Civil Rights Actions: Enforcing the Constitution 255 (5th ed. 2022); see also Richard H. Fallon, Jr., The Linkage Between Justiciability and Remedies—And Their Connections to Substantive Rights, 92 Va. L. Rev. 633, 637 (2006) (“[W]hen the Court dislikes an outcome or pattern of outcomes, it will often be equally possible for the Justices to reformulate applicable justiciability doctrine, substantive doctrine, or remedial doctrine.”).