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Foreword: We Have Only Begun to Fight

Introduction

This story begins with one parent who took his demands for equal educational opportunity for his children all the way to the highest court of our land. Demetrio Rodriguez served our nation in World War II and the Korean War.1 1.Charles J. Ogletree, Jr. & Kimberly Jenkins Robinson, Introduction: The Enduring Legacy of San Antonio Independent School District v. Rodriguez, in The Enduring Legacy of Rodriguez: Creating New Pathways to Equal Educational Opportunity 1, 3 (Charles J. Ogletree, Jr. & Kimberly Jenkins Robinson eds., 2015).Show More Yet, back in Texas, his children were in subpar and inferior schools when compared with other schools in San Antonio. Following a student walkout in spring 1968 that protested the subpar and inferior school facilities at Edgewood High School, Rodriguez organized other Mexican American parents in the Edgewood School District.2 2.Id.Show More He and his fellow parents obtained legal counsel and challenged the school funding disparities between Edgewood and nearby Alamo Heights under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.3 3.Id. at 3–4.Show More

The parents convinced a federal court in the Western District of Texas to strike down the Texas funding system as a violation of equal protection.4 4.Rodriguez v. San Antonio Indep. Sch. Dist., 337 F. Supp. 280, 285 (W.D. Tex. 1971), rev’d, 411 U.S. 1 (1973).Show More The court noted that despite the Edgewood district’s higher tax rate, the lower property wealth of their district yielded only $21 per pupil while a lower tax rate in Alamo Heights yielded $307, and that the state had failed to close this funding gap.5 5.Id. at 282.Show More The lower court applied strict scrutiny to the funding system and found that the system harmed a fundamental interest and did not advance the local control of schools that the state had alleged justified the system.6 6.Id. at 282–85.Show More

In San Antonio Independent School District v. Rodriguez, the United States Supreme Court overturned that decision in a 5-4 ruling that reaffirmed the primacy of state and local authority over education.7 7.San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 58–59 (1973).Show More The Court held that the federal constitution neither explicitly nor implicitly guarantees a right to education and rejected the families’ arguments that the close connection between education and the right to vote and to the First Amendment right to free speech served as sufficient justification for recognizing a fundamental right to education.8 8.Id. at 35–37.Show More The Court emphasized the importance of deference to states in how they raise and distribute public revenue.9 9.Id. at 40–41.Show More The Court highlighted the establishment and increase of state aid, as well as Texas’ decision to grant localities the ability to tax and spend on education as “an effort to extend public education and to improve its quality” that warranted due regard to the rights that the Constitution reserves to states.10 10.Id. at 39.Show More Rational basis review, rather than strict scrutiny, was appropriate given the Court’s tradition of deference to a state legislature’s decision on how to distribute state and local tax revenues.11 11.Id. at 40–41.Show More

The Court further justified its decision to apply rational basis review by disclaiming any expertise on the education debates at the heart of the lawsuit regarding whether money matters for educational quality and the aims of public schools.12 12.Id. at 42–43.Show More The Court leaned heavily on federalism as a justification for its decision and emphasized the tradition of local control of education. Indeed, the Court could not imagine a decision with more potential to impact federalism, because the case ultimately pressed the Court “to abrogate systems of financing public education presently in existence in virtually every State.”13 13.Id. at 44.Show More In other words, the widespread nature of the problem was one of several reasons why the Court stayed its hand. The Court upheld Texas’ approach to funding schools as rationally related to its interest in local control of schools and the flexibility it provides localities to design education in ways that best serve local interests.14 14.Id. at 47–55.Show More According to the Court, this local control further permits “experimentation, innovation, and a healthy competition for educational excellence” in ways that are analogous to the freedom of states within our federal system of government.15 15.Id. at 50.Show More

The Court’s refusal to recognize education as a fundamental right in Rodriguez closed the federal courthouse doors to parents and students who are experiencing harmful funding disparities that hinder the quality of their educational opportunities and the primary mechanism to become college and career ready, as well as engaged citizens. Fortunately, parents, students, and the lawyers who represent them were undeterred by the Supreme Court’s rejection of their claims. They continued their battles in state courts, and these battles continue to yield victories for students and families today. The effectiveness and persuasiveness of these cases has been buttressed by the standards and accountability movement that gave courts a clearly defined legislative goal for education and concrete evidence of when that goal was not being met.16 16.See Charles J. Ogletree, Jr. & Kimberly Jenkins Robinson, Conclusion: Creating New Pathways to Equal Educational Opportunity, in The Enduring Legacy of Rodriguez: Creating New Pathways to Equal Educational Opportunity, supra note 1, at 263, 266–70; Michael A. Rebell, Rodriguez Past, Present, and Future, in The Enduring Legacy of Rodriguez: Creating New Pathways to Equal Educational Opportunity, supra note 1, at 65, 70.Show More Despite important victories, these efforts have not been able to secure a high-quality and equitable education for every child in the United States due in large part to the inconsistent state approaches to state rights to education.17 17.See Kimberly Jenkins Robinson, Learning Pol’y Inst., Protecting Education as a Civil Right: Remedying Racial Discrimination and Ensuring a High-Quality Education 13–15 (2021), https://learningpolicyinstitute.org/media/548/download?inline&file=Education_As_Civil_Right_REPORT.pdf [https://perma.cc/JV3X-88YH]; Kimberly Jenkins Robinson, Introduction: The Essential Questions Regarding a Federal Right to Education, in A Federal Right to Education: Fundamental Questions for Our Democracy 1, 13–16 (Kimberly Jenkins Robinson ed., 2019) [hereinafter Robinson, The Essential Questions Regarding a Federal Right to Education].Show More

I. Some Battles Won Since Rodriguez

The fiftieth anniversary of San Antonio Independent School District v. Rodriguez provides an opportune time to reflect on both the victories and losses that have followed in its wake. First, it is important to acknowledge the victories. One important victory from these state court cases has been the building of scholarly and judicial consensus that—not surprisingly—money spent well matters for schools. Another important victory has been confirmation that courts possess the ability to insist upon reforms that advance equity and adequacy and the capacity to competently analyze the complex educational and social science research and data at the heart of these cases. The success of courts in adjudicating these claims undermines the Rodriguez Court’s assertions that courts should not be deciding these challenging issues.18 18.Rodriguez, 411 U.S. at 41–43; Rebell, supranote 16, at 72.Show More

Battles have been won for students in states throughout our nation where courts have held that state legislatures have denied the students’ right to an equal or adequate education, as guaranteed by state constitutions.19 19.Appendix: School Finance Litigation Cases, in The Enduring Legacy of Rodriguez: Creating New Pathways to Equal Educational Opportunity, supra note 1, at 275 (providing a list of successful school funding decisions).Show More Two recent rulings show the vital role that the courts play in remedying school funding inequities and inadequacies.

In 2022, the highest court in North Carolina held in Hoke County Board of Education v. State20 20.879 S.E.2d 193, 197–99 (N.C. 2022).Show More that the state had to remedy the violations of the state constitutional rights of its schoolchildren to the “sound basic education” that the court had recognized in Leandro I in 199721 21.Leandro v. State (Leandro I), 488 S.E.2d 249, 254 (N.C. 1997) (holding that the North Carolina Constitution guarantees a “sound basic education” to all students and that the state has an obligation to provide this education).Show More and that the court had found were being violated in its 2004 ruling in Leandro II.22 22.Hoke Cnty. Bd. of Educ. v. State (Leandro II), 599 S.E.2d 365, 390–91 (N.C. 2004) (holding that the state had not fulfilled its constitutional duty to deliver a sound basic education and that the state must remedy the constitutional violation).Show More A trial court oversaw an eighteen-year remedial phase in which the court held many hearings and appointed a consultant, WestEd, to provide recommendations on what changes needed to be implemented.23 23.Hoke Cnty. Bd. of Educ., 879 S.E.2d at 206–13, 246.Show More The trial court found a wide array of challenges that fell short of the components needed to run an effective school system: “teacher quality and supply, principal quality and supply, resources and school funding, assessment and accountability systems, low-performing and high-poverty schools, early childhood learning and Pre-K, and alignment and preparation for post-secondary opportunities.”24 24.Id. at 212.Show More

In light of the constitutional violations, the court ordered the state to develop a “Leandro Comprehensive Remedial Plan” through discussions with the plaintiffs and then to begin implementation of the plan.25 25.Id.Show More The state repeatedly refused to appropriate the funds needed to implement the Comprehensive Remedial Plan, despite the trial court ordering the state to do so.26 26.Id. at 213–14.Show More Eventually, the trial court ordered the state to transfer from its general fund: “(a) Department of Health and Human Services (“DHHS”): $189,800,000.00; (b) Department of Public Instruction (“DPI”): $1,522,058,000.00; and (c) University of North Carolina System: $41,300,000.00.”27 27.Id. at 216–17.Show More The court criticized the state for failing to fund a sound basic education for North Carolina’s students and for “the antagonism demonstrated by legislative leaders towards these proceedings, the constitutional rights of North Carolina children, and this [c]ourt’s authority.”28 28.Id. at 215.Show More

The North Carolina Supreme Court in 2022 affirmed the trial court’s order to the legislature.29 29.Id. at 239.Show More The court noted that the North Carolina Constitution made clear that it is the state’s obligatory “sacred duty” to ensure that the fundamental right to education was protected.30 30.Id. at 224 (citation omitted).Show More The court explained that it had an obligation to provide a remedy for violations of constitutional rights, and that it may be called upon to take action that is usually reserved to another branch to fulfil its constitutional obligation.31 31.Id. at 230.Show More The court acknowledged the extraordinary nature of this remedy, but explained that it was warranted because both the legislative and executive branches had failed for eighteen years to remedy the established denial of the constitutional guarantee of access to a “sound basic education.”32 32.Id. at 242.Show More The court also instructed the trial court to retain jurisdiction and expressed hope that this order would mark the beginning of a “new chapter” that moved beyond the distrust and divisions of the past and to march toward constitutional compliance with good faith collaboration.33 33.Id. at 249.Show More

Most recently, a Pennsylvania trial court agreed with a group of low-wealth districts, which regularly serve students with greater needs, that alleged that the state was not providing the “thorough and efficient” education that the Pennsylvania Constitution guarantees all students.34 34.William Penn Sch. Dist. v. Pa. Dep’t of Educ., No. 587 M.D. 2014, 2023 WL 1990723, at *354–55 (Pa. Commw. Ct. Feb. 7, 2023).Show More The court interpreted the Education Clause’s guarantee of a “thorough and efficient” education as a right for each student to receive “a meaningful opportunity to succeed academically, socially, and civically, which requires that all students have access to a comprehensive, effective, and contemporary system of public education.”35 35.Id. at *293.Show More The court then examined both the inputs and outputs of Pennsylvania’s education system and found that students in low-wealth districts were both disproportionately and negatively impacted by the state’s approach to funding schools.36 36.Id. at *312–33, 352.Show More It explained that the system heavily relies on local taxes, which benefits wealthier districts, and that the system failed to adequately account for students’ needs given the typically higher needs of students in low-wealth districts.37 37.Id. at *352.Show More The court rejected the state’s contention that local control justified the current funding approach because, despite its importance, local control was not possible for low-wealth districts that regularly faced difficult decisions regarding which programs to eliminate and which students to serve, when all needed resources.38 38.Id. at *353–54.Show More The trial court ordered the Commonwealth to establish an education system that “does not discriminate against students based on the level of income and value of taxable property in their school districts.”39 39.Id. at *356.Show More

Research confirms that these types of school litigation victories can reap important benefits. Sustained reform of school funding systems that invests 10% more funding over the course of a K–12 education for children from low-income households raises the number of years that students complete in school by 0.46 and adult earnings by almost 10%, while it reduces adult poverty by 6.1%.40 40.C. Kirabo Jackson, Rucker C. Johnson & Claudia Persico, The Effects of School Spending on Educational and Economic Outcomes: Evidence from School Finance Reforms, 131 Q.J. Econ. 157, 160 (2016).Show More Court victories also have been shown to lead states to increase their funding for low-income districts and these “[r]eforms increased the absolute and relative achievement of students in low-income districts.”41 41.Julien Lafortune, Jesse Rothstein & Diane Whitmore Schanzenbach, School Finance Reform and the Distribution of Student Achievement, 10 Am. Econ. J. 1, 23 (2018).Show More These results show that students and society can reap critical tangible benefits when courts require state legislatures to invest additional resources in the educational opportunities of low-income districts. They also show that some states will not make such investments unless ordered to do so by courts.

II. More Battles Ahead

Despite these and numerous other wins and gains from state school finance litigation, far too many students continue to receive low-quality and inequitable educational opportunities, in no small part due to the Court’s decision in San Antonio Independent School District v. Rodriguez. The lived reality of many students, court delays and defeats, as well as data and research, confirm that fifty years after the Court’s decision in Rodriguez, our nation has only begun to fight for a high-quality education for every student––one that prepares them to be engaged citizens and college and career ready. Fifty years after Rodriguez, it is clear that many states will continue to provide students a low-quality and inequitable education unless courts or Congress order them to do otherwise. I briefly highlight here some of the stark realities of conditions in today’s schools, court delays and defeats in school funding litigation,42 42.See also Robinson, The Essential Questions Regarding a Federal Right to Education, supra note 17, at 13–14 (describing some of the delays and defeats in school funding litigation).Show More as well as the research and data that confirms both inequitable and inadequate inputs and outputs from our nation’s schools that establish that we have a long fight ahead of us to ensure that all students in the United States receive a high-quality education. Although the Court claimed that its involvement in school funding would have been “premature” in 1973,43 43.San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 42 (1973).Show More fifty years after Rodriguez it is clear that federal intervention is now overdue.44 44.See generally Kimberly Jenkins Robinson, A Congressional Right to Education: Promises, Pitfalls, and Politics, in A Federal Right to Education: Fundamental Questions for Our Democracy, supra note 17, at 186 (examining why a federal law would be an effective and advantageous pathway for recognizing a federal right to education).Show More

Court opinions from school finance litigation teach us that far too many students within our nation are educated without access to the well-qualified teachers and administrators, resources, and facilities that they need to become college and career ready and engaged and informed civic participants. For example, when litigators returned to federal court in Detroit to argue that students were being denied a constitutional right to literacy, the opinion by the U.S. Court of Appeals for the Sixth Circuit ruling in their favor notes the shocking plaintiff allegations that the educational opportunities provided were “schools in name only,” which included an eighth grader in one school teaching math for one month to seventh and eighth grade students, large numbers of teacher vacancies, combined classes that rose to as high as sixty students in a single classroom, and teaching from paraprofessionals and teachers who lacked knowledge about the subject that they were teaching.45 45.Gary B. v. Whitmer, 957 F.3d 616, 624–25 (6th Cir. 2020), vacated en banc, 958 F.3d 1216 (6th Cir. 2020).Show More The court also noted that plaintiffs described schools that were unsafe, where vermin were commonplace, and the heating and cooling systems were so poor that students sometimes passed out from heat or wore coats in school all day.46 46.Id. at 626.Show More Finally, such basic resources as up-to-date textbooks and school libraries also were too often lacking.47 47.Id. at 626–27.Show More

In addition, the North Carolina Supreme Court’s decision to order the state to pay more than $1.7 billion to remedy the statewide violation of the constitutional guarantee of education relied upon compelling evidence that “in way too many school districts across the state, thousands of children in the public schools have failed to obtain, and are not now obtaining[,] a sound basic education as defined by and required by the Leandro decisions.”48 48.Hoke Cnty. Bd. of Educ. v. State, 879 S.E.2d 193, 209, 212, 216–17 (N.C. 2022).Show More The wide array of deficiencies to be remedied indicate that no aspect of the education system was left untouched by constitutional infirmities.49 49.Id. at 212 (noting that the extensive nature of the shortcomings throughout the state included school funding, principal and teacher quality and supply, accountability, early childhood education, low-performing schools of concentrated poverty, and preparation for opportunities upon graduation).Show More

The Pennsylvania litigation also revealed a broad range of educational deficits, such as a high school teacher teaching upper-level French and Spanish in the same classroom; insufficient numbers of special education teachers, English language teachers, and reading specialists; and teachers teaching courses that they are not certified to teach.50 50.William Penn Sch. Dist. v. Pa. Dep’t of Educ., No. 587 M.D. 2014, 2023 WL 1990723, at *62, *76, *78, *99 (Pa. Commw. Ct. Feb. 7, 2023) (citation omitted).Show More The court also noted testimony that documented how students’ educational needs were unmet due to such deficits as large kindergarten classes, an insufficient supply of textbooks for each student, and inadequate funding due to a strong reliance on local funds for schools in low-wealth districts.51 51.Id. at *64, *79–80, *102, *313 (citation omitted).Show More School facility concerns included an inaccessible disability ramp due to unrepaired cracks, a lack of adequate instructional spaces, an elementary school with one bathroom for 125 students, and leaking roofs, including a classroom with water leaking into trashcans placed strategically to catch the water.52 52.Id. at *71, *89–90, *115, *142, *163 (citation omitted).Show More In addition to the widespread deficiencies in cases finding a state constitutional violation, students themselves also have shared tales of unsafe and unsanitary conditions in their schools.53 53.See, e.g.,CNN Newsource, GA High School Students Expose Mold, Crumbling Wall, Sewage Leak at School, WGXA News (Apr. 13, 2022, 2:53 PM), https://wgxa.tv/news/local/‌ga-high-school-students-expose-mold-crumbling-wall-sewage-leak-at-school [https://perma.‌cc/LVM2-CJLX].Show More

In my work teaching law students before the pandemic at the University of Richmond School of Law, I annually took my education law students into two starkly different Virginia high schools: Armstrong High School in Richmond, and Deep Run High School in Henrico County. Although dedicated and capable principals greeted me at each school, the similarities often ended there. At Armstrong High School, my students and I were greeted with metal detectors and school security, and the facilities did not create a welcome learning environment due to signs of neglect and disrepair. Our time in classrooms revealed that many students lacked a computer, out-of-date textbooks were common, and teaching oftentimes focused on the basics. A short distance away in Deep Run High School, we entered a beautiful building where every student had access to a laptop and the teachers used technology to create a rich learning environment. These experiences confirmed those chronicled by University of Virginia President James Ryan in his book Five Miles Away, A World Apart, in which he documents the many ways that students in inner-city and suburban Richmond high schools are experiencing harmful disparities in their learning opportunities.54 54.See generallyJames E. Ryan, Five Miles Away, A World Apart: One City, Two Schools, and the Story of Educational Opportunity in Modern America (2010) (describing the array of differences in educational opportunities, achievement, and life outcomes for students in Thomas Jefferson High School in Richmond and Freeman High School in Henrico County).Show More These disparities are too often replicated throughout our nation.55 55.Robinson, The Essential Questions Regarding a Federal Right to Education, supra note 17, at 3–7.Show More

Furthermore, many students live in states where their state courts either refuse to adjudicate or reject claims that the state’s approach to funding schools results in a violation of the state constitution. The Florida Supreme Court in its 2019 decision in Citizens for Strong Schools, Inc. v. Florida State Board of Education reaffirmed that the Florida Constitution’s protection of education as a paramount state duty and guarantee of an efficient and “high quality” education failed to provide the court with a standard that it could administer without intruding into the legislature’s authority over education, as it had previously determined in Coalition for Adequacy & Fairness in School Funding, Inc. v. Chiles.56 56.Citizens for Strong Schs., Inc. v. Fla. State Bd. of Educ., 262 So. 3d 127, 141 (Fla. 2019) (citing Coal. for Adequacy & Fairness in Sch. Funding, Inc. v. Chiles, 680 So. 2d 400 (Fla. 1996)).Show More Similarly, the Nevada Supreme Court in its 2022 decision in Shea v. State rejected plaintiffs’ argument that the state was not fulfilling its constitutional obligation to provide sufficient education resources because the Nevada Constitution committed education to the legislature, rendering the claims nonjusticiable.57 57.Shea v. State, 510 P.3d 148, 150 (Nev. 2022).Show More These and other losses confirm that many students lack access to a remedy for their inadequate or inequitable school funding system and thus need a federal right to education to remedy the harms caused by their state’s approach to funding schools.

Many other students live in states where repeated implementation delays of court orders means that years of their education can be completed without them experiencing any change in their educational opportunities. For instance, the North Carolina Supreme Court in the Hoke County litigation noted above upheld the extraordinary remedy of ordering the transfer of more than $1.7 billion in state funds to implement a plan to remedy the constitutional violation because, “[f]or eighteen years, the executive and legislative branches have repeatedly failed to remedy an established statewide violation of the constitutional right to the opportunity to a sound basic education.”58 58.Hoke Cnty. Bd. of Educ. v. State, 879 S.E.2d 193, 242, 267 (N.C. 2022).Show More This means that more than a generation of students entered and departed the North Carolina schools without attending schools in compliance with their right to a sound, basic education. Similarly, the Washington Supreme Court held the state in contempt for almost four years, from September of 2014 to June of 2018, for failing to comply with its constitutional obligation to provide a basic education for the students of the state and initiated a fine of $100,000 per day in 2015.59 59.For the litigation in Washington, see McCleary v. State, No. 84362-7, at 4 (Wash. Sept. 11, 2014) (order); McCleary v. State, No. 84362-7, at 2 (Wash. Aug. 13, 2015) (order); McCleary v. State, No. 84362-7, at 4 (Wash. June 7, 2018) (order).Show More In 2016, in the Gannon v. State litigation, the Kansas Supreme Court threatened to shut down the entire school system by June 30, 2016, if the legislature did not remedy the court’s 2014 finding that a variety of wealth-based disparities in its funding of the schools were unconstitutional.60 60.For the litigation in Kansas, see Gannon v. State, 368 P.3d 1024, 1061–62 (Kan. 2016); Gannon v. State, 319 P.3d 1196, 1204 (Kan. 2014).Show More The Kansas legislature eventually passed a law in June 2016 that cured the violation in a special legislative session.61 61.Julie Bosman, Kansas Lawmakers Pass Bill in Bid to Stop Court from Closing Schools, N.Y. Times(June 24, 2016), https://www.nytimes.com/2016/06/25/us/kansas-lawmakers-pass-bill-in-bid-to-stop-court-from-closing-schools.html [https://perma.cc/Z5QG-7S7V].Show More Securing a constitutional school finance system and the benefits that it brings remains a long and arduous journey, even when courts declare that students are entitled to one.62 62.Robinson, The Essential Questions Regarding a Federal Right to Education, supra note 17, at 13 (“[R]esistance to successful school finance litigation is often fierce, protracted, and effective in limiting the scope of reforms.”).Show More

Data and research on opportunities to learn as well as student achievement complete the compelling portrait of state education systems that are not providing students high-quality and equitable educational opportunities nor preparing them effectively to be college and career ready. First, social scientists agree that students in districts with higher poverty concentrations need additional funding for their educational, family, and social support to compete on anything close to a level playing field with their peers.63 63.See generally Richard Rothstein, Why Children from Lower Socioeconomic Classes, on Average, Have Lower Academic Achievement than Middle-Class Children, in Closing the Opportunity Gap: What America Must Do to Give Every Child an Even Chance 61 (Prudence L. Carter & Kevin G. Welner eds., 2013) (explaining how concentrated socioeconomic disadvantage depresses academic achievement and discussing possible social and economic reforms).Show More Data confirms that a majority of states in the United States provide either the same or less funding to students who need the most funding. A recent school funding analysis found that when all districts are divided into quintiles, on average the highest poverty districts spend 13% less than adequate spending levels and the lowest poverty districts spend 32% above adequacy, a 45% age point opportunity gap between these districts.64 64.Bruce D. Baker, Matthew Di Carlo & Mark Weber, The Adequacy and Fairness of State School Finance Systems4 (5th ed. 2022), https://files.eric.ed.gov/fulltext/ED625887.pdf [https://perma.cc/T35U-558X].Show More Even more troubling is the pervasive nature of these gaps in opportunity throughout each of the states, with the size of the gap varying significantly.65 65.Danielle Farrie & David G. Sciarra, Educ. L. Center, Making the Grade: How Fair is School Funding in Your State? 16 (2022), https://edlawcenter.org/assets/files/pdfs/publication‌s/Making-the-Grade-2022-Report.pdf [https://perma.cc/FL73-ZCEM].Show More

Second, states also are disadvantaging the educational opportunities of the majority of students, with a disproportionate burden inflicted on our students of color. More than half (52%) of students in our nation attend schools that are below adequate funding to reach the modest aim of average U.S. test scores.66 66.Baker et al., supra note 64, at 35.Show More Even more troubling is the fact that 71% of Latinx and 75% of African American students, along with 55% of American Indian and Alaskan Native students, attend such schools.67 67.Id.Show More In contrast, just over a third (35%) of white students and 44% of Asian students attend schools that are inadequately funded.68 68.Id.Show More African American students experience the largest average funding inadequacies at 17%, and Latinx students receive the next largest at 11% below adequate funding.69 69.Id.Show More White students on average attend schools that receive approximately 22% more funding than is needed to attain adequacy, while Asian students receive about 15% more funding than is needed to attain adequacy.70 70.Id.Show More

In addition, EdBuild found in a 2019 report that districts in which more than 75% of students are nonwhite receive a startling $23 billion less than districts in which more than 75% of students are white, even though they educate the same number of students.71 71.EdBuild, $23 Billion 4 (2019), https://edbuild.org/content/23-billion/full-report.pdf [https://perma.cc/G2VH-2WDB].Show More On average, nonwhite districts received about $2,200 less per student than predominantly white districts.72 72.Id. (finding that white school districts receive $13,908 and nonwhite districts receive $11,682 per pupil).Show More No child in our nation should be disadvantaged by such state underinvestment in education, and such disadvantages are more egregious when they are disproportionately inflicted on traditionally underserved students of color.

Third, our national test scores and other research confirm that we are not preparing students well for college and career or to be engaged citizens. Recent results from the National Assessment of Educational Progress (“NAEP”) found that more than one third (37%) of fourth grade students performed below NAEP Basic and 29% performed at NAEP Basic in reading, which means fully two-thirds of fourth graders in our nation are not acquiring the fundamental reading skills that they will need for future schooling.73 73.Nat’l Ctr. for Educ. Stat., NCES 2022-126, 2022 Reading Assessment Highlighted Results for the Nation, States, and Districts at Grades 4 and 8 (2022), https://www.nationsreportcard.gov/highlights/reading/2022/ [https://perma.cc/S4D4-Y3TU].Show More The 37% who scored below NAEP Basic represent the largest percentage below NAEP Basic of all prior assessments, dating back to 2005.74 74.Id.Show More At eighth grade, more than two-thirds of students also are at or below basic in reading, with 30% below NAEP Basic and 39% at NAEP Basic.75 75.Id.Show More The 30% of eighth graders below NAEP Basic represent the largest percentage of students at this level from all prior assessments, which began in 1998.76 76.Id.Show More Hispanic, Black, and Native American students performed below their White and Asian peers, with Asians attaining the highest achievement levels.77 77.Id.Show More

Turning to math, in 2022, 25% of fourth graders scored at the below basic level and 39% performed at the basic level in math on NAEP.78 78.Nat’l Ctr. for Educ. Stat., NCES 2022-124, 2022 Mathematics Assessment Highlighted Results for the Nation, States, and Districts at Grades 4 and 8 (2022) [hereinafter 2022 Mathematics Assessment Highlighted Results], https://www.nationsreportcard.gov/‌highlights/mathematics/2022/ [https://perma.cc/F8F8-E89E].Show More NAEP Basic is defined as an achievement level that “denotes partial mastery of prerequisite knowledge and skills that are fundamental for proficient work at each grade,” while NAEP Proficient “represents solid academic performance” and “demonstrate[s] competency over challenging subject matter.”79 79.Nat’l Ctr. for Educ. Stat., NCES 2010-468, An Introduction to NAEP: National Assessment of Educational Progress 13 (2010), https://nces.ed.gov/nationsreportcard/pdf/‌parents/2010468.pdf [https://perma.cc/H7M7-U3FK].Show More This means that almost two-thirds of fourth graders are not successfully mastering the mathematical foundations that will enable them to succeed at higher level math in later grades. In addition, the percentage of students who performed below Basic was larger than all prior NAEP test scores since 2003.80 80.2022 Mathematics Assessment Highlighted Results, supra note 78.Show More Even larger percentages of students were below NAEP Basic (38%) and at NAEP Basic (35%) by eighth grade, which places almost three quarters of students at this low level of math performance.81 81.Id.Show More White and Asian students similarly outperformed their Hispanic, Black, and Native American peers on these assessments, with Asian students performing the best of all students.82 82.Id.Show More

History confirms that although our nation’s founders and the architects of common schools created public schools to enable students to one day fulfill their civic duties, schools have been failing to serve this function for many years.83 83.See Michael A. Rebell, Flunking Democracy: Schools, Courts, and Civic Participation 2–5 (2018); Derek W. Black, The Constitutional Compromise to Guarantee Education, 70 Stan. L. Rev. 735, 765–816 (2018).Show More Evidence of this failure can be found in the last administration of the NAEP civics assessment, which found that only one in four students in eighth grade were proficient in civics in 2018.84 84.Nat’l Ctr. for Educ. Statistics, NCES 2020-017, 2018 Civics Report Card at Grade 8 (2020) [hereinafter 2018 Civics Report Card], https://www.nationsreportcard.gov/civics/‌results/achievement/ [https://perma.cc/G2F7-MH22].Show More One cause for this low performance has been the emphasis on reading and math skills,85 85.The shift away from a focus on civics education occurred in the second part of the twentieth century. Rebell, supra note 83, at 17.Show More despite the lackluster NAEP scores in those areas as well. Like school funding, this democracy gap has a racial dimension, with white students possessing greater knowledge of and skills in civics than students of color and students from low-income households.86 86.2018 Civics Report Card, supra note 84.Show More

Finally, prior to the pandemic, research shows that students lost $600 billion in state and local funding of public schools from 2008–2018 due to states’ refusal to return their fiscal effort to the levels that existed before the Great Recession.87 87.Danielle Farrie & David G. Sciarra, Educ. L. Center, $600 Billion Lost: State Disinvestment in Education Following the Great Recession 2 (2020), https://edlawcenter.org/‌assets/$600%20Billion/$600%20Billion%20Lost.pdf [https://perma.cc/H2TN-6KF3].Show More This means that schools entered the pandemic with a deficit that the pandemic then exacerbated by placing unprecedented new demands on students, staff, and teachers. Generous federal funding through the three pandemic relief laws that together resulted in approximately $3,720 in additional funding per student is beginning to empower states and districts to address the harms inflicted by the pandemic.88 88.American Rescue Plan Act of 2021, Pub. L. No. 117-2, § 2001(b), 135 Stat. 4, 19; Consolidated Appropriations Act, 2021, Pub. L. No. 116-260, div. M, tit. III, §§ 311(b)–312, 134 Stat. 1182, 1924–29 (2020); Coronavirus Aid, Relief, and Economic Security (“CARES”) Act, Pub. L. No. 116-136, 134 Stat. 281 (2020); seeMichael Griffith, An Unparalleled Investment in U.S. Public Education: Analysis of the American Rescue Plan Act of 2021, Learning Pol’y Inst. Blog (Mar. 11, 2021), https://learningpolicyinstitute.org/blog/covid-analysis-american-rescue-plan-act-2021 [https://perma.cc/5KNG-6JRG]; Chad Aldeman, Best- and Worst-Case Scenarios for How Stimulus Dollars Will Be Spent,Thomas B. Fordham Inst. (Mar. 26, 2021), https://fordhaminstitute.org/national/commentary/best-and-worst-case-scenarios-how-school-stimulus-dollars-will-be-spent [https://perma.cc/4W3A-6K4R]; see generallyKimberly Jenkins Robinson, Strengthening the Federal Approach to Educational Equity During the Pandemic, 59 Harv. J. on Legis. 35 (2022) (documenting the educational harms inflicted by the pandemic and critiquing the strengths and weaknesses of the federal approach to K–12 education during the pandemic).Show More However, diminished educational opportunities before the pandemic hit mean that some of these funds will inevitably be diverted to get schools and staffing back to the funding levels that they were at before the Great Recession, rather than for the remediation that the funds were distributed to address. Recent achievement data shows great cause for concern about the impact of the pandemic on students, particularly those who were already further behind.89 89.Sarah Mervosh, The Pandemic Erased Two Decades of Progress in Math and Reading, N.Y. Times (Sept. 1, 2022), https://www.nytimes.com/2022/09/01/us/national-test-scores-math-reading-pandemic.html [https://perma.cc/JB4Z-C8SE].Show More

Conclusion

The enduring nature of low-quality and inadequate public schools confirm that the fiftieth anniversary of San Antonio Independent School District v. Rodriguez provides an occasion to launch a more fulsome attack on the funding systems and political inertia that enable inequitable and inadequate educational opportunities to persist that impact far too many students and that disproportionately impact students from low-income families and children of color. Evidence abounds of the need to increase our fight for our students’ education, our democracy, and our economy. Our nation must expand and energize the fight for the right of every student to receive a high-quality education that prepares students for civic engagement, as well as college and career. We must fight for equitable and excellent schools with even more determination than those who engaged in and continue to fight for our civil rights. Until our nation reaches the point when low-quality and inequitable educational opportunities are a thing of the past, the fight that Demetrio Rodriguez began more than fifty years ago must not only be continued, but it must be amplified to a national scale.

  1.  Charles J. Ogletree, Jr. & Kimberly Jenkins Robinson, Introduction: The Enduring Legacy of San Antonio Independent School District v. Rodriguez, in The Enduring Legacy of Rodriguez: Creating New Pathways to Equal Educational Opportunity 1, 3 (Charles J. Ogletree, Jr. & Kimberly Jenkins Robinson eds., 2015). ↑
  2.  Id. ↑
  3.  Id. at 3–4. ↑
  4.  Rodriguez v. San Antonio Indep. Sch. Dist., 337 F. Supp. 280, 285 (W.D. Tex. 1971), rev’d, 411 U.S. 1 (1973). ↑
  5.  Id. at 282. ↑
  6.  Id. at 282–85. ↑
  7.  San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 58–59 (1973). ↑
  8.  Id. at 35–37. ↑
  9.  Id. at 40–41. ↑
  10.  Id. at 39. ↑
  11.  Id. at 40–41. ↑
  12.  Id. at 42–43. ↑
  13.  Id. at 44. ↑
  14.  Id. at 47–55. ↑
  15.  Id. at 50. ↑
  16.  See Charles J. Ogletree, Jr. & Kimberly Jenkins Robinson, Conclusion: Creating New Pathways to Equal Educational Opportunity, in The Enduring Legacy of Rodriguez: Creating New Pathways to Equal Educational Opportunity, supra note 1, at 263, 266–70; Michael A. Rebell, Rodriguez Past, Present, and Future, in The Enduring Legacy of Rodriguez: Creating New Pathways to Equal Educational Opportunity, supra note 1, at 65, 70. ↑
  17.  See Kimberly Jenkins Robinson, Learning Pol’y Inst., Protecting Education as a Civil Right: Remedying Racial Discrimination and Ensuring a High-Quality Education 13–15 (2021), https://learningpolicyinstitute.org/media/548/download?inline&file=Education_As_Civil_Right_REPORT.pdf [https://perma.cc/JV3X-88YH]; Kimberly Jenkins Robinson, Introduction: The Essential Questions Regarding a Federal Right to Education, in A Federal Right to Education: Fundamental Questions for Our Democracy
    1, 13–16

    (Kimberly Jenkins Robinson ed., 2019) [hereinafter Robinson, The Essential Questions Regarding a Federal Right to Education]. ↑

  18.  Rodriguez, 411 U.S. at 41–43; Rebell, supra note 16, at 72. ↑
  19.  Appendix: School Finance Litigation Cases, in The Enduring Legacy of Rodriguez: Creating New Pathways to Equal Educational Opportunity, supra note 1, at 275 (providing a list of successful school funding decisions). ↑
  20.  879 S.E.2d 193, 197–99 (N.C. 2022). ↑
  21.  Leandro v. State (Leandro I), 488 S.E.2d 249, 254 (N.C. 1997) (holding that the North Carolina Constitution guarantees a “sound basic education” to all students and that the state has an obligation to provide this education). ↑
  22.  Hoke Cnty. Bd. of Educ. v. State (Leandro II), 599 S.E.2d 365, 390–91 (N.C. 2004) (holding that the state had not fulfilled its constitutional duty to deliver a sound basic education and that the state must remedy the constitutional violation). ↑
  23.  Hoke Cnty. Bd. of Educ., 879 S.E.2d at 206–13, 246. ↑
  24.  Id. at 212. ↑
  25.  Id. ↑
  26.  Id. at 213–14. ↑
  27.  Id. at 216–17. ↑
  28.  Id. at 215. ↑
  29.  Id. at 239. ↑
  30.  Id. at 224 (citation omitted). ↑
  31.  Id. at 230. ↑
  32.  Id. at 242. ↑
  33.  Id. at 249. ↑
  34.  William Penn Sch. Dist. v. Pa. Dep’t of Educ., No. 587 M.D. 2014, 2023 WL 1990723, at *354–55 (Pa. Commw. Ct. Feb. 7, 2023). ↑
  35.  Id. at *293. ↑
  36.  Id. at *312–33, 352. ↑
  37.  Id. at *352. ↑
  38.  Id. at *353–54. ↑
  39.  Id. at *356. ↑
  40.  C. Kirabo Jackson, Rucker C. Johnson & Claudia Persico, The Effects of School Spending on Educational and Economic Outcomes: Evidence from School Finance Reforms, 131 Q.J. Econ
    .

    157, 160 (2016). ↑

  41.  Julien Lafortune, Jesse Rothstein & Diane Whitmore Schanzenbach, School Finance Reform and the Distribution of Student Achievement, 10 Am. Econ. J. 1, 23 (2018). ↑
  42.  See also Robinson, The Essential Questions Regarding a Federal Right to Education, supra note 17, at 13–14 (describing some of the delays and defeats in school funding litigation). ↑
  43.  San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 42 (1973). ↑
  44.  See generally Kimberly Jenkins Robinson, A Congressional Right to Education: Promises, Pitfalls, and Politics, in A Federal Right to Education: Fundamental Questions for Our Democracy, supra note 17, at
    186

    (examining why a federal law would be an effective and advantageous pathway for recognizing a federal right to education). ↑

  45.  Gary B. v. Whitmer, 957 F.3d 616, 624–25 (6th Cir. 2020), vacated en banc, 958 F.3d 1216 (6th Cir. 2020). ↑
  46.  Id. at 626. ↑
  47.  Id. at 626–27. ↑
  48.  Hoke Cnty. Bd. of Educ. v. State, 879 S.E.2d 193, 209, 212, 216–17 (N.C. 2022). ↑
  49.  Id. at 212 (noting that the extensive nature of the shortcomings throughout the state included school funding, principal and teacher quality and supply, accountability, early childhood education, low-performing schools of concentrated poverty, and preparation for opportunities upon graduation). ↑
  50.  William Penn Sch. Dist. v. Pa. Dep’t of Educ., No. 587 M.D. 2014, 2023 WL 1990723, at *62, *76, *78, *99 (Pa. Commw. Ct. Feb. 7, 2023) (citation omitted). ↑
  51.  Id. at *64, *79–80, *102, *313 (citation omitted). ↑
  52.  Id. at *71, *89–90, *115, *142, *163 (citation omitted). ↑
  53.  See, e.g., CNN Newsource, GA High School Students Expose Mold, Crumbling Wall, Sewage Leak at School, WGXA News (Apr. 13, 2022, 2:53 PM), https://wgxa.tv/news/local/‌ga-high-school-students-expose-mold-crumbling-wall-sewage-leak-at-school [https://perma.‌cc/LVM2-CJLX]. ↑
  54.  See generally James E. Ryan, Five Miles Away, A World Apart: One City, Two Schools, and the Story of Educational Opportunity in Modern America
    (2010) (

    describing the array of differences in educational opportunities, achievement, and life outcomes for students in Thomas Jefferson High School in Richmond and Freeman High School in Henrico County)

    .

    ↑

  55.  Robinson, The Essential Questions Regarding a Federal Right to Education, supra note 17, at 3–7. ↑
  56.  Citizens for Strong Schs., Inc. v. Fla. State Bd. of Educ., 262 So. 3d 127, 141 (Fla. 2019) (citing Coal. for Adequacy & Fairness in Sch. Funding, Inc. v. Chiles, 680 So. 2d 400 (Fla. 1996)). ↑
  57.  Shea v. State, 510 P.3d 148, 150 (Nev. 2022). ↑
  58.  Hoke Cnty. Bd. of Educ. v. State, 879 S.E.2d 193, 242, 267 (N.C. 2022). ↑
  59.  For the litigation in Washington, see McCleary v. State, No. 84362-7, at 4 (Wash. Sept. 11, 2014) (order); McCleary v. State, No. 84362-7, at 2 (Wash. Aug. 13, 2015) (order); McCleary v. State, No. 84362-7, at 4 (Wash. June 7, 2018) (order). ↑
  60.  For the litigation in Kansas, see Gannon v. State, 368 P.3d 1024, 1061–62 (Kan. 2016); Gannon v. State, 319 P.3d 1196, 1204 (Kan. 2014). ↑
  61.  Julie Bosman, Kansas Lawmakers Pass Bill in Bid to Stop Court from Closing Schools, N.Y. Times

    (June 24, 2016), https://www.nytimes.com/2016/06/25/us/kansas-lawmakers-pass-bill-in-bid-to-stop-court-from-closing-schools.html [https://perma.cc/Z5QG-7S7V]. ↑

  62.  Robinson, The Essential Questions Regarding a Federal Right to Education, supra note 17, at 13 (“[R]esistance to successful school finance litigation is often fierce, protracted, and effective in limiting the scope of reforms.”). ↑
  63.  See generally Richard Rothstein, Why Children from Lower Socioeconomic Classes, on Average, Have Lower Academic Achievement than Middle-Class Children, in Closing the Opportunity Gap: What America Must Do to Give Every Child an Even Chance 61 (Prudence L. Carter & Kevin G. Welner eds., 2013) (explaining how concentrated socioeconomic disadvantage depresses academic achievement and discussing possible social and economic reforms). ↑
  64.  Bruce D. Baker, Matthew Di Carlo & Mark Weber, The Adequacy and Fairness of State School Finance Systems
    4 (

    5th ed. 2022), https://files.eric.ed.gov/fulltext/ED625887.pdf [https://perma.cc/T35U-558X]. ↑

  65.  Danielle Farrie & David G. Sciarra, Educ. L. Center, Making the Grade: How Fair is School Funding in Your State? 16 (2022), https://edlawcenter.org/assets/files/pdfs/publication‌s/Making-the-Grade-2022-Report.pdf [https://perma.cc/FL73-ZCEM]. ↑
  66.  Baker et al., supra note 64, at 35. ↑
  67.  Id. ↑
  68.  Id. ↑
  69.  Id. ↑
  70.  Id. ↑
  71.  EdBuild, $23 Billion
    4 (2019),

    https://edbuild.org/content/23-billion/full-report.pdf [https://perma.cc/G2VH-2WDB]. ↑

  72.  Id.
    (

    finding that white school districts receive $13,908 and nonwhite districts receive $11,682 per pupil). ↑

  73.  Nat’l Ctr. for Educ. Stat., NCES 2022-126, 2022 Reading Assessment Highlighted Results for the Nation, States, and Districts at Grades 4 and 8 (2022), https://www.nationsreportcard.gov/highlights/reading/2022/ [https://perma.cc/S4D4-Y3TU]. ↑
  74.  Id. ↑
  75.  Id. ↑
  76.  Id. ↑
  77.  Id. ↑
  78.  Nat’l Ctr. for Educ. Stat., NCES 2022-124, 2022 Mathematics Assessment Highlighted Results for the Nation, States, and Districts at Grades 4 and 8 (2022) [hereinafter 2022 Mathematics Assessment Highlighted Results], https://www.nationsreportcard.gov/‌highlights/mathematics/2022/ [https://perma.cc/F8F8-E89E]. ↑
  79.  Nat’l Ctr. for Educ. Stat., NCES 2010-468, An Introduction to NAEP: National Assessment of Educational Progress 13 (2010), https://nces.ed.gov/nationsreportcard/pdf/‌parents/2010468.pdf [https://perma.cc/H7M7-U3FK]. ↑
  80.  2022 Mathematics Assessment Highlighted Results, supra note 78. ↑
  81.  Id. ↑
  82.  Id. ↑
  83.  See Michael A. Rebell, Flunking Democracy: Schools, Courts, and Civic Participation 2–5 (2018); Derek W. Black, The Constitutional Compromise to Guarantee Education, 70 Stan. L. Rev. 735, 765–816 (2018). ↑
  84.  Nat’l Ctr. for Educ. Statistics, NCES 2020-017, 2018 Civics Report Card at Grade 8 (2020) [hereinafter 2018 Civics Report Card], https://www.nationsreportcard.gov/civics/‌results/achievement/ [https://perma.cc/G2F7-MH22]. ↑
  85.  The shift away from a focus on civics education occurred in the second part of the twentieth century. Rebell, supra note 83, at 17. ↑
  86.  2018 Civics Report Card, supra note 84. ↑
  87.  Danielle Farrie & David G. Sciarra, Educ. L. Center, $600 Billion Lost: State Disinvestment in Education Following the Great Recession 2 (2020), https://edlawcenter.org/‌assets/$600%20Billion/$600%20Billion%20Lost.pdf [https://perma.cc/H2TN-6KF3]. ↑
  88.  American Rescue Plan Act of 2021, Pub. L. No. 117-2, § 2001(b), 135 Stat. 4, 19; Consolidated Appropriations Act, 2021, Pub. L. No. 116-260, div. M, tit. III, §§ 311(b)–312, 134 Stat. 1182, 1924–29 (2020); Coronavirus Aid, Relief, and Economic Security (“CARES”) Act, Pub. L. No. 116-136, 134 Stat. 281 (2020); see Michael Griffith, An Unparalleled Investment in U.S. Public Education: Analysis of the American Rescue Plan Act of 2021, Learning Pol’y Inst. Blog (Mar. 11, 2021), https://learningpolicyinstitute.org/blog/covid-analysis-american-rescue-plan-act-2021 [https://perma.cc/5KNG-6JRG]; Chad Aldeman, Best- and Worst-Case Scenarios for How Stimulus Dollars Will Be Spent, Thomas B. Fordham Inst. (Mar. 26, 2021), https://fordhaminstitute.org/national/commentary/best-and-worst-case-scenarios-how-school-stimulus-dollars-will-be-spent [https://perma.cc/4W3A-6K4R]; see generally Kimberly Jenkins Robinson, Strengthening the Federal Approach to Educational Equity During the Pandemic, 59 Harv. J. on Legis.
    35

    (2022) (documenting the educational harms inflicted by the pandemic and critiquing the strengths and weaknesses of the federal approach to K–12 education during the pandemic). ↑

  89.  Sarah Mervosh, The Pandemic Erased Two Decades of Progress in Math and Reading, N.Y. Times (Sept. 1, 2022), https://www.nytimes.com/2022/09/01/us/national-test-scores-math-reading-pandemic.html [https://perma.cc/JB4Z-C8SE]. ↑

Severability First Principles

The United States Supreme Court has decided a number of cases involving severability in the last decade, from NFIB v. Sebelius and Murphy v. NCAA to Seila Law v. CFPB, Barr v. AAPC, United States v. Arthrex, California v. Texas, and Collins v. Yellen. The analysis has not been consistent, the Justices have not been able to agree, and the results have not been intuitive. Some of the Justices have proposed a revisionist approach, but they too have been unable to agree on what it requires.

This Article proposes a return to first principles. Severability is a question of what the law is. Severability also includes two principles of constitutional law: that judges should enforce the law, and that the Constitution displaces ordinary law that is repugnant to it. And it also includes principles of non-constitutional law: that validly enacted statutes are law if they are not repugnant to the Constitution, that unenacted hopes and dreams are not, and that Congress may legislate for contingencies.

Much of the time, these principles lead to a simple bottom line: effectively complete severability, rebutted only by an inseverability clause or something else with the force of law. There are also harder cases where the bottom line is not so simple, but where the first principles of severability will nonetheless lead the way—the relevance of unconstitutional removal restrictions, the non-constitutional law that resolves unconstitutional combinations, and the relevance of severability to standing and other procedural questions.

Introduction

When part of a statute is unconstitutional, the courts engage in severability analysis. According to the cases, this analysis couples a presumption with a possible rebuttal. The presumption is one of severability: “[T]he invalid part may be dropped.”1 1.Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684 (1987) (quoting Buckley v. Valeo, 424 U.S. 1, 108 (1976) (per curiam)).Show More The presumption is rebutted based on either an objective analysis, asking whether “what is left is fully operative as a law,”2 2.Id. (quoting Buckley, 424 U.S. at 108).Show More or a subjective analysis, asking whether “it is evident that the Legislature would not have enacted those provisions which are within its power, independently of that which is not.”3 3.Id.Show More Slightly more controversially, the same seems to be true for a single provision with constitutional and unconstitutional applications.4 4.Ayotte v. Planned Parenthood of N. New Eng., 546 U.S. 320, 328–29 (2006).Show More

There have been many calls to abandon or reform severability doctrine.5 5.See, e.g., Murphy v. NCAA, 138 S. Ct. 1461, 1487 (2018) (Thomas, J., concurring) (“[O]ur modern severability precedents are in tension with longstanding limits on the judicial power.”); Kevin C. Walsh, Partial Unconstitutionality, 85 N.Y.U. L. Rev. 738, 742 (2010) (calling for a “displacement-based approach”); Tom Campbell, Severability of Statutes, 62 Hastings L.J. 1495, 1497 (2011) (proposing a “complete abolition of the severability doctrine”); Lisa Marshall Manheim, Beyond Severability, 101 Iowa L. Rev. 1833, 1838 (2016) (advocating for the replacement of severability with a broader inquiry into legislative intent).Show More But there is no consensus about what the problem is or what to do instead. At least one problem, though, is methodological: the modern approach to statutory interpretation is heavily influenced by formalism generally and textualism specifically. Such judges have extra reason to be skeptical of current doctrine. They doubt the coherence or the relevance of counterfactual inquiries into legislative intent and also tend to resist the normative analysis that sometimes lies behind particular severability arguments. And severability can look uncomfortably like “rewriting” a statute, which most judges today know they are not supposed to get caught doing. So, we need an account of severability that makes formal sense.

This is a natural occasion for a return to first principles, and some have tried. Several recent articles make promising contributions,6 6.Especially noteworthy are Walsh, supra note 5; John Harrison, Severability, Remedies, and Constitutional Adjudication, 83 Geo. Wash. L. Rev. 56 (2014); and Jonathan F. Mitchell, The Writ-of-Erasure Fallacy, 104 Va. L. Rev. 933 (2018).Show More and recent opinions by Justices Thomas and Gorsuch have attempted to synthesize them into a new revisionist account of severability.7 7.See infra Section II.B.Show More But their work is incomplete. Justices Thomas and Gorsuch cannot even agree among themselves in several recent cases, and throughout they may be trying to squeeze more certainty out of the literature than it can supply. We still need a clearer account of the first principles that answer the severability problem and of what those principles do and do not imply.

Returning to first principles also requires us to determine whether severability analysis comes from the Constitution or instead from statutory interpretation or other non-constitutional law. In truth, it is both. Severability principles are a combination of both constitutional and non-constitutional law. The Constitution tells us that it displaces ordinary law that is inconsistent with it. It also tells us that judges (among others) are supposed to apply the law. But these constitutional principles are not all there is to severability. We also need to know what is the law, when some part of a statute has been found to be constitutionally repugnant? Ordinary principles of statutory interpretation fill in this answer. Federal law is what has been enacted by Congress and not otherwise displaced, including any fallback law. And, of course, any non-federal legal rules also continue to apply.

Much of the time, these principles lead to a simple bottom line: judges should enforce a statute except in the specific cases where its application is unconstitutional. But this simplicity is deceptive. The bottom line becomes more difficult to see in the case of unconstitutional combinations: when two statutory requirements are unconstitutional if taken together, which one should be disregarded? These difficult cases—more widespread than many realize—illuminate an aspect of the Constitution that has been there all along: the Constitution tells us what the law isn’t, but not always what it is. Solving the severability problem in these cases—saying what the law is—requires going beyond the text of the statute, whether formalist judges like it or not.

Other difficulties come up in the context of standing and other threshold questions. When can a plaintiff establish standing on the basis of an inseverability argument, and when can a severability argument defeat standing? These questions have proven difficult for the courts, but this time it is the difficulty that is deceptive. Once we straighten out our severability analysis, it drives us to straightforward answers in these cases.

This Article puts forward the first principles of severability and then applies them, first to the easy cases and then to the hard ones. Part I argues that severability is a question of law; that the Constitution displaces repugnant law; and that all non-repugnant law should be enforced, including fallback law such as severability and inseverability clauses. Part II describes how these principles would reframe severability doctrine, how Justices Gorsuch and Thomas have come close to restating these principles, and how the principles also clarify facial challenges and national injunctions. Part III tackles the harder cases, such as unconstitutional combinations and severability procedure.

  1. Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684 (1987) (quoting Buckley v. Valeo, 424 U.S. 1, 108 (1976) (per curiam)). ↑
  2. Id. (quoting Buckley, 424 U.S. at 108). ↑
  3. Id. ↑
  4. Ayotte v. Planned Parenthood of N. New Eng., 546 U.S. 320, 328–29 (2006). ↑
  5. See, e.g., Murphy v. NCAA, 138 S. Ct. 1461, 1487 (2018) (Thomas, J., concurring) (“[O]ur modern severability precedents are in tension with longstanding limits on the judicial power.”); Kevin C. Walsh, Partial Unconstitutionality, 85 N.Y.U. L. Rev. 738, 742 (2010) (calling for a “displacement-based approach”); Tom Campbell, Severability of Statutes, 62 Hastings L.J. 1495, 1497 (2011) (proposing a “complete abolition of the severability doctrine”); Lisa Marshall Manheim, Beyond Severability, 101 Iowa L. Rev. 1833, 1838 (2016) (advocating for the replacement of severability with a broader inquiry into legislative intent). ↑
  6. Especially noteworthy are Walsh, supra note 5; John Harrison, Severability, Remedies, and Constitutional Adjudication, 83 Geo. Wash. L. Rev. 56 (2014); and Jonathan F. Mitchell, The Writ-of-Erasure Fallacy, 104 Va. L. Rev. 933 (2018). ↑

  7. See infra Section II.B. ↑

Property’s Boundaries

Property law has a boundary problem. Courts are routinely called upon to decide whether certain kinds of things can be owned—cells, genes, organs, gametes, embryos, corpses, personal data, and more. Under prevailing contemporary theories of property law, questions like these have no justiciable answers. Because property has no conceptual essence, they maintain, its boundaries are arbitrary—a flexible normative choice more properly legislative than judicial.

This Article instead offers a straightforward descriptive theory of property’s boundaries. The common law of property is legitimated by its basis in the concept of ownership, a descriptive relationship of absolute control that exists outside of the law. Ownership’s limits thus lie at the limits of absolute control—that which cannot in principle be the subject of human dominion cannot be owned. In short, this Article both offers a comprehensive explanation for why a conceptual theory of property’s limits matters and how one can be possible, and defends a substantive theory of the concept of ownership as control.

Under this theory, cells, organs, gametes, embryos, and corpses can be owned. But information—like genes and personal data—that cannot be controlled cannot be owned. Viewed through this lens, intellectual property—a challenge for any theory of property that appears to entail ownership in information—can be understood either as a statutory analogy or a rough approximation of the real but temporary control of information exercised by those who create or discover it.

Introduction

In October 2021, the estate of Henrietta Lacks sued Thermo Fisher Scientific.1 1.Civil Complaint & Request for Jury Trial, Lacks v. Thermo Fisher Sci. Inc., No. 1:21-cv-02524 (D. Md. filed Oct. 4, 2021) [hereinafter Lacks Complaint].Show More The underlying facts are by now well-known.2 2.See generally Rebecca Skloot, The Immortal Life of Henrietta Lacks (2010) (summarizing the Henrietta Lacks story).Show More On February 5, 1951, Ms. Lacks sought treatment for cervical cancer at Johns Hopkins Hospital.3 3.Lacks Complaint, supra note 1, at 2.Show More In the course of her treatment, physicians removed, without her consent, a portion of her tumor for research.4 4.Id.Show More The cells were found to have a stunning quality—they reproduced indefinitely outside the human body.5 5.Id. at 3.Show More For the first time, scientists could conduct research on mass-produced human cells.6 6.Id.Show More This cell-line, known as “HeLa” after its source, underwrote the biotechnology revolution and the immeasurable profits of companies—including Thermo Fisher—that have intellectual property in HeLa cells.7 7.Id. at 3–4.Show More But Ms. Lacks, who died shortly after the operation, never knew any of this, and her family has never legally owned any part of the HeLa cell line. This, the Lacks family’s complaint alleges, was “theft”—“this genetic material was stolen from Ms. Lacks.”8 8.Id. at 12. Although rhetorically describing the incident as “theft,” the complaint sounds in unjust enrichment. Id. at 12–13. Unjust enrichment is an equitable remedy whereby a plaintiff is entitled to the gains of a defendant “enriched by misconduct and who acts . . . with knowledge of the underlying wrong.” Restatement (Third) of Restitution and Unjust Enrichment § 51(3) (Am. L. Inst. 2011). It seems that the plaintiffs have three distinct theories of the underlying “wrong”—(1) “theft,” Lacks Complaint, supra note 1, at 12; (2) “assault,” id. at 5; and (3) violation of privacy, id. at 4. This Article only touches on the legal plausibility of the first—whether or not a claim for unjust enrichment on the basis of conversion is plausible. Lacks’s claim based on assault or violation of privacy remains independently plausible.Show More

The plaintiffs face an uphill battle convincing the court that Lacks’s doctors stole her cells. In the famous case Moore v. Regents of the University of California, the Supreme Court of California rejected a similar claim for conversion by a plaintiff whose spleen was used for research without his consent. The court observed the law “deal[s] with human biological materials as objects sui generis,” not subject to the “general law of personal property.”9 9.793 P.2d 479, 489 (Cal. 1990).Show More Human biological materials, the court suggested—organs, cells, gametes, and more—cannot be owned.10 10.Id. (“[T]he laws governing such things as human tissues, transplantable organs, blood, fetuses, pituitary glands, corneal tissue, and dead bodies deal with human biological materials as objects sui generis, regulating their disposition to achieve policy goals rather than abandoning them to the general law of personal property.” (footnotes omitted)).Show More

But why? After all, many people (maybe most) feel that they own their cells and genetic material, and that Henrietta Lacks owned hers.11 11.See, e.g., Barbara J. Evans, Barbarians at the Gate: Consumer-Driven Health Data Commons and the Transformation of Citizen Science, 42 Am. J.L. & Med. 651, 659 (2016) (revealing that in a 2014 survey on personal health data, only thirteen percent of respondents were agnostic to the question of ownership).Show More Others disagree.12 12.See, e.g., Henry H. Heng, HeLa Genome Versus Donor’s Genome, 501 Nature 167, 167 (2013) (“I contend that the continual divergence of chromosomal features (‘karyotype’) and DNA sequence in dynamic cancer-cell populations undermines debate over ownership of the HeLa cancer-cell line derived from Henrietta Lacks six decades ago.”).Show More Debates in the public sphere like this—about the boundaries of property law, about whether a kind of thing can be owned—are hardly limited to Henrietta Lacks and immortal cell lines. Indeed, we debate and litigate the ownership of organs,13 13.See, e.g., B. Björkman & S.O. Hansson, Bodily Rights and Property Rights, 32 J. Med. Ethics 209, 209 (2006) (“An underlying issue in these discussions is whether various types of biological material can be owned.”).Show More tissue samples,14 14.See, e.g., Shannon Cunningham, Kieran C. O’Doherty, Karine Sénécal, David Secko & Denise Avard, Public Concerns Regarding the Storage and Secondary Uses of Residual Newborn Bloodspots: An Analysis of Print Media, Legal Cases, and Public Engagement Activities, 6 J. Cmty. Genetics 117, 124 (2015) (“Across the public engagement activities we reviewed, numerous participants stated that parents have a right to retain ownership of their child’s blood samples and control over who has access to the specimens.”).Show More genetic information,15 15.See, e.g., Jon F. Merz & Mildred K. Cho, What Are Gene Patents and Why Are People Worried About Them?, 8 Cmty. Genetics 203, 203 (2005) (noting that “[n]umerous ethical concerns have been raised about the effects of [gene] patents on clinical medical practice as well as on research and development,” although “[n]early 30,000 human genes have been patented in the US”).Show More gametes and embryos,16 16.See, e.g., Radhika Rao, Property, Privacy, and the Human Body, 80 B.U. L. Rev. 359, 414 (2000) (“Courts appear utterly confused as to how to classify these objects, characterizing sperm and embryos variously as property, quasi-property, or not the subject of property rights at all but governed instead by precepts of privacy.”); see also Hecht v. Superior Court, 16 Cal. App. 4th 836, 850 (1993) (holding that a decedent “had an interest, in the nature of ownership,” permitting sperm to be bequeathed); David Horton, Indescendibility, 102 Calif. L. Rev. 543, 580–81 (2014) (discussing the extent to which Hecht supports the existence of property rights in sperm).Show More corpses,17 17.See, e.g., Ray D. Madoff, Immortality and the Law: The Rising Power of the American Dead 16–17 (2010).Show More digital data,18 18.See, e.g., David A. Dana & Nadav Shoked, Property’s Edges, 60 B.C. L. Rev. 753, 761 (2019) (“[O]ver the past few months, popular and legislative disputes over privacy on the Internet and the allocation of rights to information between users, websites, and providers[] have likewise extensively employed—somewhat thoughtlessly—the boundary-focused terms supposedly derived from traditional property law.”).Show More and much more. These debates arise whenever value is discovered within—or technology makes it possible to capture value in—something new.19 19.See, e.g., Meredith M. Render, The Law of the Body, 62 Emory L.J. 549, 569 (2013) [hereinafter Render, The Law of the Body] (noting that “when conditions are ripe—when we discover something new (or something that is useful in a new way) that is also ‘ownable’—our concept of property bends to accommodate the new entity”); Abraham Bell & Gideon Parchomovsky, A Theory of Property, 90 Cornell L. Rev. 531, 563 (2005) (“As society changes, the value derived from different assets is transformed, and therefore the objects of property law will change over time.”).Show More

Courts presented with these kinds of questions need a theory of property’s boundaries. But they would search largely in vain for one in contemporary property theory. Indeed, conventional legal wisdom has it that there are no conceptual answers to what can be owned.20 20.See, e.g., Guido Calabresi & A. Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 Harv. L. Rev. 1089, 1089–93 (1972) (arguing that society chooses to protect entitlements with “property rules” or “liability rules” in order to maximize welfare); Jessica L. Roberts, Progressive Genetic Ownership, 93 Notre Dame L. Rev. 1105, 1159–60 (2018) (arguing that the state should recognize individual ownership of genetic information because doing so would maximize human flourishing under Roberts’s pluralistic theory of human flourishing).Show More Instead, the law of property is widely understood to be an arbitrary “bundle of sticks”—a collection of rights and responsibilities designed to achieve exogenous social goals, not a coherent concept with determinable boundaries.21 21.See, e.g., Abraham Bell & Gideon Parchomovsky, Reconfiguring Property in Three Dimensions, 75 U. Chi. L. Rev. 1015, 1015 (2008) (“As any first-year student knows, modern theorists have savaged the idea of ‘absolute dominion’ and tend, instead, to view property as a ‘bundle of rights,’ . . . .”).Show More From this perspective, the question of what can be owned is a normative one. It is necessarily coterminous with questions about what should be owned, who should own what, and how ownership ought to be regulated.22 22.Cf. J.E. Penner, The Idea of Property in Law 106 (paperback ed. 2000) (“For most philosophers, the actual objects of property are uninteresting, and the real meat of the question about property is how we can justify unequal holdings.”).Show More In our system of popular sovereignty and separation of powers, these questions are inappropriate for judicial resolution. If the conventional legal wisdom is correct, we would need to adopt by statute a code of property’s boundaries.23 23.See infra Section II.A.Show More

This Article, in contrast, argues that the concept of ownership—which exists outside the law and from which the common law of property derives its legitimacy—offers a descriptive, properly judicial theory of the boundaries of property law. Ownership is a relationship characterized by absolute control, and it cannot exist where a person could not in principle exercise absolute control over something.24 24.See infra Section III.A.Show More This means that ownership can properly apply to anything over which control can in principle be exercised, but not to those things that it cannot be.25 25.See infra Part IV.Show More

This distinction illuminates many public and legal controversies about ownership. On the one hand, because it can be subject to absolute control, human biological matter—from organs and corpses to cells and embryos—can be owned.26 26.See infra Section IV.A.Show More We control, and therefore own, our bodies and their constituents. On the other hand, information that is in principle accessible to anyone and cannot be manipulated cannot be owned.27 27.See infra Section IV.B.Show More This means that human genetic information and personal data are not ownable. In cases such as Lacks’s, the theory tells us that when Ms. Lacks walked into the clinic for treatment, she owned the cells of her tumor.28 28.See, e.g., Thomas W. Merrill & Henry E. Smith, Property: Principles and Policies 57 (3d ed. 2017) (“[A]mong the ways that ownership can get started is for someone to possess a thing for the first time with the requisite intent.”).Show More But that is of course not really what her claim of theft is about.29 29.At least, it’s not what the rhetoric of the lawsuit is about. It is in fact possible to have a claim for unjust enrichment even if the only thing Lacks owned were her cells ab initio, as the derivation of the metaphysically distinct HeLa cell line may have been premised on the underlying wrong.Show More It’s the HeLa cell line—not Lacks’s cancer cells—from which the biotechnology companies have profited. HeLa is not metaphysically identical to Lacks’s cancer cells—what they share is genetic information.30 30.See generally Heng, supra note 12.Show More Because information, genetic or otherwise, cannot be owned, Lacks’s estate has never owned the HeLa line.

The theory of property’s boundaries offered in this Article is descriptive, not normative. It is a theory of the entailments of ownership as the concept actually exists outside the law, not a claim about whether the outcomes it suggests are good or bad, or whether we ought to have a common law of property organized around the concept of ownership in the first place. As such, the theory is entirely compatible with the possibility that people like Ms. Lacks have remedies in other areas of law—privacy, informed consent, or intentional torts, most prominently.31 31.Indeed, in Moore, the court held that Moore had stated a claim for breach of informed consent after dismissing Moore’s claim for conversion. See Moore v. Regents of the Univ. of Cal., 793 P.2d 479, 497 (Cal. 1990).Show More Indeed, it is also entirely legitimate for legislatures to codify structures analogous to ownership by statute (as discussed below, this is one way to understand intellectual property).32 32.See infra Section IV.C.Show More But this theory tells us the boundaries of the judge-made law of property—so long as judges ground their decisions on the concept of ownership, they might get it wrong, but they do not act illegitimately. And this matters because, for better or worse, courts are in fact regularly called upon to adjudicate whether something can be owned.33 33.See, e.g., Lacks Complaint, supra note 1, at 13; Moore, 793 P.2d at 488–89; Wash. Univ. v. Catalona, 490 F.3d 667, 670 (8th Cir. 2007); Greenberg v. Mia. Child.’s Hosp. Rsch. Inst., Inc., 264 F. Supp. 2d 1064, 1074 (S.D. Fla. 2003) (holding that individuals with Canavan disease did not have an ownership interest in the gene that causes Canavan disease isolated from their tissue samples); Szafranski v. Dunston, 993 N.E.2d 502, 517–18 (Ill. App. Ct. 2013) (resolving a dispute of ownership between ex-boyfriend and ex-girlfriend over embryos they had jointly created).Show More

This Article builds on growing scholarly criticism of the “bundle of sticks” model of property.34 34.See, e.g., Henry E. Smith, Property as the Law of Things, 125 Harv. L. Rev. 1691, 1695 (2012) (criticizing the bundle theory); J.E. Penner, Property Rights: A Re-Examination 3–4 (2020) (same).Show More Indeed, although that model remains predominate,35 35.See, e.g., Eric R. Claeys, Property, Concepts, and Functions, 60 B.C. L. Rev. 1, 10 (2019) [hereinafter Claeys, Property, Concepts, and Functions] (“Bundle views probably remain dominant both in legal scholarship and in analytical-philosophy scholarship.”).Show More the view of property law as essentially arbitrary and normative has come under sustained attack over the past several decades.36 36.See, e.g., Jane B. Baron, Property as Control: The Case of Information, 18 Mich. Telecomms. & Tech. L. Rev. 367, 384 (2012) (noting that “the bundle-of-rights metaphor . . . has been under particularly heavy weather recently”); see also Shane Nicholas Glackin, Back to Bundles: Deflating Property Rights, Again, 20 Legal Theory 1, 1 (2014) (“My aim in this paper may, at first glance, strike the reader as somewhat odd. It is a defense of a theory of property rights that after all has been prevalent among legal theorists for most of the last century and that is taught as a matter of routine in most undergraduate property-law courses in order ‘to disabuse entering law students of their primitive lay notions regarding ownership.’”).Show More Moreover, some scholars have outlined conceptual theories of property’s boundaries analogous to this Article’s, although they offer different views of the concept’s substance.37 37.See Thomas W. Merrill, Property and the Right to Exclude, 77 Neb. L. Rev. 730, 753 (1998) [hereinafter Merrill, Property and the Right to Exclude] (arguing that the essence of property is exclusion); Arthur Ripstein, Possession and Use, in Philosophical Foundations of Property Law 156, 156 (James Penner & Henry E. Smith eds., 2013) (same for “exclusive use”); Penner, supra note 22, at 111 (arguing that “separability” delimits the boundaries of the concept of property); John Locke, Two Treatises of Government 185 (The Legal Classic Libr. 1994) (1690) (arguing that labor is the essence of property); Bart J. Wilson, The Property Species: Mine, Yours, and the Human Mind 19 (2020), https://doi.org/​10.1093/oso/9780190936785.003.0001 [https://perma.cc/PX8D-CW8B] (arguing that an irreducible concept of “mine” organizes property law).Show More Building within this intellectual movement, this Article offers a comprehensive explanation for why a conceptual theory of property’s boundaries matters and how it is possible.38 38.See infra Part II.Show More Further, it defends a substantive theory of the concept of ownership as control—and ownership’s boundaries at the boundaries of control—as opposed to the alternatives.39 39.See infra Part III.Show More

The argument proceeds in four Parts. In Part I, I canvass the development of contemporary property theory and illustrate the extent to which still-prevailing theories conflate theories about what can be owned with what should be, rendering questions about the boundaries of property fundamentally legislative.

In Part II, I lay the groundwork for a conceptual theory of property’s boundaries by explaining why such a theory matters and how it could be possible. In short, the extra-legal existence of concepts relied on by the common law legitimates common law law-making consistent with democratic theory, and the concept of ownership could exist metaphysically, psychologically, or socially.

In Part III, I outline a theory of property law as grounded in an extra-legal concept of ownership understood as absolute control. I argue that ownership—absolute control—is a determinate category. And I situate ownership as control in relation to other conceptual theories of property and show how it fares better at explaining the concept.

Finally, in Part IV, I apply this theory to some contemporary boundary challenges in property law, bioethics, and law and technology. I find that, under the theory, such things as organs, gametes, tissue samples, organisms, and corpses fall within property’s conceptual domain. In contrast, genetic information, gene sequences, information derived from tissue samples, and personal data cannot conceptually be subject to property law. Moreover, I apply the theory to the most challenging case recognized in positive law at the boundaries of ownership—intellectual property—and find that it fares plausibly, if roughly.

  1. Civil Complaint & Request for Jury Trial, Lacks v. Thermo Fisher Sci. Inc., No. 1:21-cv-02524 (D. Md. filed Oct. 4, 2021) [hereinafter Lacks Complaint]. ↑
  2. See generally Rebecca Skloot, The Immortal Life of Henrietta Lacks (2010) (summarizing the Henrietta Lacks story). ↑
  3. Lacks Complaint, supra note 1, at 2. ↑
  4. Id. ↑
  5. Id. at 3. ↑
  6. Id. ↑
  7. Id. at 3–4. ↑
  8. Id. at 12. Although rhetorically describing the incident as “theft,” the complaint sounds in unjust enrichment. Id. at 12–13. Unjust enrichment is an equitable remedy whereby a plaintiff is entitled to the gains of a defendant “enriched by misconduct and who acts . . . with knowledge of the underlying wrong.” Restatement (Third) of Restitution and Unjust Enrichment § 51(3) (Am. L. Inst. 2011). It seems that the plaintiffs have three distinct theories of the underlying “wrong”—(1) “theft,” Lacks Complaint, supra note 1, at 12; (2) “assault,” id. at 5; and (3) violation of privacy, id. at 4. This Article only touches on the legal plausibility of the first—whether or not a claim for unjust enrichment on the basis of conversion is plausible. Lacks’s claim based on assault or violation of privacy remains independently plausible. ↑
  9. 793 P.2d 479, 489 (Cal. 1990). ↑
  10. Id. (“[T]he laws governing such things as human tissues, transplantable organs, blood, fetuses, pituitary glands, corneal tissue, and dead bodies deal with human biological materials as objects sui generis, regulating their disposition to achieve policy goals rather than abandoning them to the general law of personal property.” (footnotes omitted)). ↑
  11.  See, e.g., Barbara J. Evans, Barbarians at the Gate: Consumer-Driven Health Data Commons and the Transformation of Citizen Science, 42 Am. J.L. & Med. 651, 659 (2016) (revealing that in a 2014 survey on personal health data, only thirteen percent of respondents were agnostic to the question of ownership). ↑
  12. See, e.g., Henry H. Heng, HeLa Genome Versus Donor’s Genome, 501 Nature 167, 167 (2013) (“I contend that the continual divergence of chromosomal features (‘karyotype’) and DNA sequence in dynamic cancer-cell populations undermines debate over ownership of the HeLa cancer-cell line derived from Henrietta Lacks six decades ago.”). ↑
  13. See, e.g., B. Björkman & S.O. Hansson, Bodily Rights and Property Rights, 32 J. Med. Ethics 209, 209 (2006) (“An underlying issue in these discussions is whether various types of biological material can be owned.”). ↑
  14. See, e.g., Shannon Cunningham, Kieran C. O’Doherty, Karine Sénécal, David Secko & Denise Avard, Public Concerns Regarding the Storage and Secondary Uses of Residual Newborn Bloodspots: An Analysis of Print Media, Legal Cases, and Public Engagement Activities, 6 J. Cmty. Genetics 117, 124 (2015) (“Across the public engagement activities we reviewed, numerous participants stated that parents have a right to retain ownership of their child’s blood samples and control over who has access to the specimens.”). ↑
  15. See, e.g., Jon F. Merz & Mildred K. Cho, What Are Gene Patents and Why Are People Worried About Them?, 8 Cmty. Genetics 203, 203 (2005) (noting that “[n]umerous ethical concerns have been raised about the effects of [gene] patents on clinical medical practice as well as on research and development,” although “[n]early 30,000 human genes have been patented in the US”). ↑
  16. See, e.g., Radhika Rao, Property, Privacy, and the Human Body, 80 B.U. L. Rev. 359, 414 (2000) (“Courts appear utterly confused as to how to classify these objects, characterizing sperm and embryos variously as property, quasi-property, or not the subject of property rights at all but governed instead by precepts of privacy.”); see also Hecht v. Superior Court, 16 Cal. App. 4th 836, 850 (1993) (holding that a decedent “had an interest, in the nature of ownership,” permitting sperm to be bequeathed); David Horton, Indescendibility, 102 Calif. L. Rev. 543, 580–81 (2014) (discussing the extent to which Hecht supports the existence of property rights in sperm). ↑
  17. See, e.g., Ray D. Madoff, Immortality and the Law: The Rising Power of the American Dead 16–17 (2010). ↑
  18. See, e.g., David A. Dana & Nadav Shoked, Property’s Edges, 60 B.C. L. Rev. 753, 761 (2019) (“[O]ver the past few months, popular and legislative disputes over privacy on the Internet and the allocation of rights to information between users, websites, and providers[] have likewise extensively employed—somewhat thoughtlessly—the boundary-focused terms supposedly derived from traditional property law.”). ↑
  19. See, e.g., Meredith M. Render, The Law of the Body, 62 Emory L.J. 549, 569 (2013) [hereinafter Render, The Law of the Body] (noting that “when conditions are ripe—when we discover something new (or something that is useful in a new way) that is also ‘ownable’—our concept of property bends to accommodate the new entity”); Abraham Bell & Gideon Parchomovsky, A Theory of Property, 90 Cornell L. Rev. 531, 563 (2005) (“As society changes, the value derived from different assets is transformed, and therefore the objects of property law will change over time.”). ↑
  20. See, e.g., Guido Calabresi & A. Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 Harv. L. Rev. 1089, 1089–93 (1972) (arguing that society chooses to protect entitlements with “property rules” or “liability rules” in order to maximize welfare); Jessica L. Roberts, Progressive Genetic Ownership, 93 Notre Dame L. Rev. 1105, 1159–60 (2018) (arguing that the state should recognize individual ownership of genetic information because doing so would maximize human flourishing under Roberts’s pluralistic theory of human flourishing). ↑
  21. See, e.g., Abraham Bell & Gideon Parchomovsky, Reconfiguring Property in Three Dimensions, 75 U. Chi. L. Rev. 1015, 1015 (2008) (“As any first-year student knows, modern theorists have savaged the idea of ‘absolute dominion’ and tend, instead, to view property as a ‘bundle of rights,’ . . . .”). ↑
  22. Cf. J.E. Penner, The Idea of Property in Law 106 (paperback ed. 2000) (“For most philosophers, the actual objects of property are uninteresting, and the real meat of the question about property is how we can justify unequal holdings.”). ↑
  23. See infra Section II.A. ↑
  24. See infra Section III.A. ↑
  25. See infra Part IV. ↑
  26. See infra Section IV.A. ↑
  27. See infra Section IV.B. ↑
  28. See, e.g., Thomas W. Merrill & Henry E. Smith, Property: Principles and Policies 57 (3d ed. 2017) (“[A]mong the ways that ownership can get started is for someone to possess a thing for the first time with the requisite intent.”). ↑
  29. At least, it’s not what the rhetoric of the lawsuit is about. It is in fact possible to have a claim for unjust enrichment even if the only thing Lacks owned were her cells ab initio, as the derivation of the metaphysically distinct HeLa cell line may have been premised on the underlying wrong. ↑
  30. See generally Heng, supra note 12. ↑
  31. Indeed, in Moore, the court held that Moore had stated a claim for breach of informed consent after dismissing Moore’s claim for conversion. See Moore v. Regents of the Univ. of Cal., 793 P.2d 479, 497 (Cal. 1990). ↑
  32. See infra Section IV.C. ↑
  33. See, e.g., Lacks Complaint, supra note 1, at 13; Moore, 793 P.2d at 488–89; Wash. Univ. v. Catalona, 490 F.3d 667, 670 (8th Cir. 2007); Greenberg v. Mia. Child.’s Hosp. Rsch. Inst., Inc., 264 F. Supp. 2d 1064, 1074 (S.D. Fla. 2003) (holding that individuals with Canavan disease did not have an ownership interest in the gene that causes Canavan disease isolated from their tissue samples); Szafranski v. Dunston, 993 N.E.2d 502, 517–18 (Ill. App. Ct. 2013) (resolving a dispute of ownership between ex-boyfriend and ex-girlfriend over embryos they had jointly created). ↑
  34. See, e.g., Henry E. Smith, Property as the Law of Things, 125 Harv. L. Rev. 1691, 1695 (2012) (criticizing the bundle theory); J.E. Penner, Property Rights: A Re-Examination 3–4 (2020) (same). ↑
  35. See, e.g., Eric R. Claeys, Property, Concepts, and Functions, 60 B.C. L. Rev. 1, 10 (2019) [hereinafter Claeys, Property, Concepts, and Functions] (“Bundle views probably remain dominant both in legal scholarship and in analytical-philosophy scholarship.”). ↑
  36.  See, e.g., Jane B. Baron, Property as Control: The Case of Information, 18 Mich. Telecomms. & Tech. L. Rev. 367, 384 (2012) (noting that “the bundle-of-rights metaphor . . . has been under particularly heavy weather recently”); see also Shane Nicholas Glackin, Back to Bundles: Deflating Property Rights, Again, 20 Legal Theory 1, 1 (2014) (“My aim in this paper may, at first glance, strike the reader as somewhat odd. It is a defense of a theory of property rights that after all has been prevalent among legal theorists for most of the last century and that is taught as a matter of routine in most undergraduate property-law courses in order ‘to disabuse entering law students of their primitive lay notions regarding ownership.’”). ↑
  37. See Thomas W. Merrill, Property and the Right to Exclude, 77 Neb. L. Rev. 730, 753 (1998) [hereinafter Merrill, Property and the Right to Exclude] (arguing that the essence of property is exclusion); Arthur Ripstein, Possession and Use, in Philosophical Foundations of Property Law 156, 156 (James Penner & Henry E. Smith eds., 2013) (same for “exclusive use”); Penner, supra note 22, at 111 (arguing that “separability” delimits the boundaries of the concept of property); John Locke, Two Treatises of Government 185 (The Legal Classic Libr. 1994) (1690) (arguing that labor is the essence of property); Bart J. Wilson, The Property Species: Mine, Yours, and the Human Mind 19 (2020), https://doi.org/​10.1093/oso/9780190936785.003.0001 [https://perma.cc/PX8D-CW8B] (arguing that an irreducible concept of “mine” organizes property law). ↑
  38. See infra Part II. ↑

  39. See infra Part III. ↑

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