Issue 8

White Injury and Innocence: On the Legal Future of Antiracism Education

In the wake of the “racial reckoning” of 2020, antiracism education attracted intense attention and prompted renewed educator commitments to teach more explicitly about the function, operation, and harm of racism in the United States. The increased visibility of antiracism education engendered sustained critique and opposition, resulting in executive orders prohibiting its adoption in the federal government, the introduction or adoption of over sixty state-level bills attempting to control how race is taught in schools, and a round of lawsuits challenging antiracism education as racially discriminatory. Because antiracism so directly runs afoul of norms underlying American antidiscrimination law, including anticlassification, colorblindness, and white innocence, antiracism education is vulnerable to legal challenge in a way that precursors like multi-culturalism were not. The vulnerability of antiracism education to constitutional censure is the most recent illustration of how far antidiscrimination law has gone not in undercutting, but further entrenching, racial hierarchy in the United States. The legislative, litigation, and curricular wars surrounding antiracism education also remind us that race is significant for reasons that go beyond materiality. Rather, legal and social discourse about racism shapes notions of racial injury and ultimately impedes efforts to respond to even the material consequences of enduring racial inequality. Tracking and analyzing the anti-antiracism legislation and lawsuits provides those who are willing to follow it a map both to where antidiscrimination law must be changed, and to where antiracism education is most needed.

Introduction

In June of 2021, a student testified before his school board in Lakeville, Minnesota. In what surely was stirring testimony coming from a child so young, nine-year-old N.W. stated:

I do not judge people by the color of their skin, I don’t really care what color their hair, skin, or eyes is [sic]. I judge by the way they treat me . . . I do not care or look at the color of skin, but you make me think of it. I have Asian, Mexican, white, Chinese, black [sic] friends and I don’t care . . . They are just my friends. You have lied to me and I am very disappointed in all of you.1 1.Complaint at 3, Cajune v. Indep. Sch. Dist. 194, 2022 WL 179517 (D. Minn. Aug. 6, 2021) (No. 0:21-cv-01812) (first alteration in original).Show More

The “lies” to which N.W. referred purportedly came from antiracism initiatives adopted in Independent School District 194 and included an “Inclusive Poster Series” which approved the statement “At Lakeville Area Schools we believe Black Lives Matter and stand with the social justice movement this statement represents.”2 2.Id. at 1.Show More In the lawsuit parents and students brought challenging these initiatives, plaintiffs focused on the district’s efforts to “instruct[] children as young as fifth grade that structural racism dominates” American society.3 3.Id. at 3.Show More

The Lakeville testimony and accompanying lawsuit are but one flashpoint in a larger movement challenging antiracism (also referred to as “anti-racist”) teachings and curricular initiatives in schools across the country. Although antiracism education has a long history, in the wake of George Floyd’s murder in the summer of 2020, its teachings attracted intense attention and elicited renewed commitments among educators to teach more explicitly about the function, operation, and harm of racism in the United States. Opposition to antiracism education, however, eventually became a political rallying cry for conservative politicians and policymakers. Reframing the teachings as the deployment of critical race theory (“CRT”) in K–12 curricula, pundits and politicians sounded alarms regarding this sort of education, prompting censure, even, by former President Donald Trump in the fall of 2020.4 4.Michael Crowley, Trump Calls for ‘Patriotic Education’ to Defend American History from the Left, N.Y. Times (Sept. 17, 2020), https://www.nytimes.com/2020/09/17/us/politics/trump​-patriotic-education.html [https://perma.cc/K56W-F7Z2]; see Evan Gerstmann, Trump Says He Will Punish Schools that Teach the New York Times’ ‘1619’ Project by Withholding Federal Funds, Forbes (Sept. 6, 2020), https://www.forbes.com/sites/evangerstmann/2020/09/​06/trump-says-he-will-punish-schools-that-teach-the-new-york-times-1619-project-by-withh​olding-federal-funds/?sh=4a241ca17cb5 [https://perma.cc/YDN3-8DSM].Show More

That critical race theory is a graduate-level, methodological interrogation of race not taught at the primary and secondary level is of no consequence.5 5.Critical race theory is a race-based systemic interrogation of legal reasoning, doctrine, and institutions, taught in law schools but also used in other disciplines. Although it overlaps with other legal subjects that implicate race, it is distinct from subjects like constitutional law, immigration law, and criminal law in its comprehensive examination of the function of race in American law. While CRT considers some of the same issues and problems that civil rights and ethnic studies courses engage, the theory broadens the methodological perspective, bringing in history, economics, and group- and self-interest, among other discourses. In a departure from traditional civil rights work, CRT questions the foundations of liberalism, including legal theories regarding equality, the mechanics of legal reasoning, and principles of constitutional law. Richard Delgado & Jean Stefancic, Critical Race Theory: An Introduction 3 (2001).Show More The phrase “critical race theory” has become shorthand for education that teaches students about structural or institutional racism, prompts children to consider their social identities, or makes explicit commitments to educational equity—the essential work of antiracism education. And through legislation, parent advocacy, and litigation, antiracism education is under attack.

Observers might be tempted to dismiss the attacks as a temporary political strategy, and indeed, there are suggestions that politicians understand these attacks to be useful for energizing voters. Nevertheless, the scope of the challenges, as well as the issues they raise in litigation, compel parents, policymakers, and legal scholars to consider the nature of antiracist education and the social and legal responses to its inclusion in K–12 education.

Fully considering antiracism education reveals it to be both less and more threatening than supposed. Less because at its core are basic lessons about race and individual responses to injustice that should not conflict with a social6 6.Jennifer L. Hochschild & Nathan Scovronick, The American Dream and the Public Schools 1–2 (2003) (arguing that most Americans understand education as a place where children will reach their full potential and become good citizens).Show More and jurisprudential7 7.See W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 637 (1943) (explaining that schools educate the young for citizenship); New Jersey v. T.L.O., 469 U.S. 325, 373 (1985) (Stevens, J., concurring in part and dissenting in part) (noting that schools are places to inculcate the values essential to meaningful exercise of the rights and responsibilities of a self-governing citizenry); Brown v. Bd. of Educ., 347 U.S. 483, 493 (1954) (recognizing that education is “the very foundation of good citizenship” and “a principal instrument in awakening the child to cultural values”); San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35–36 (1973) (“Exercise of the franchise . . . cannot be divorced from the educational foundation of the voter.”).Show More understanding of schools as sites for cultivating citizenship and instilling the practices of democracy. Antiracism education, however, is also more threatening because it attempts to reveal and interrogate racial hierarchies—a problem for those who either deny those hierarchies or believe them to be justified. Further, to the extent that antiracism education explicitly names whites as beneficiaries of racism, it is also a frontal assault on “innocent” white racial identity—a commitment which is implicit throughout equal protection jurisprudence,8 8.See infra notes 203–08 and accompanying text.Show More and is now made explicit in the vociferous challenges to antiracism education.

Ultimately, the reaction to antiracism education illustrates just how deeply invested Americans are, wittingly and unwittingly, in white supremacy, how disorienting it can feel to individuals to destabilize racial hierarchy, and how far antidiscrimination law has gone not in undercutting, but in further entrenching, these attitudes and norms. Because antiracism so directly runs afoul of norms underlying American antidiscrimination law, including anticlassification, colorblindness, and white innocence, antiracism education is vulnerable to legal challenge in a way that precursors like multi-culturalism were not.

Litigation challenges are still developing. Some lawsuits will ultimately be dismissed on account of pleading defects, while other suits may be resolved on freedom of expression grounds. Nevertheless, closely examining the antidiscrimination legal framework within which challenges to antiracism education will play out presents an opportunity not only to reconsider those frameworks, but to think more broadly about the nature of race, particularly as it operates in school settings.

Racial equality work is sometimes critiqued as excessively invested in psychic harm, language, and symbols,9 9.See, e.g., Wendy Brown, Wounded Attachments, 21 Pol. Theory 390, 398, 403 (1993) (“[I]nsofar as [identity politics is] premised on exclusion from a universal ideal, [politicized identities] require that ideal, as well as their exclusion from it, for their own perpetuity as identities. . . . [I]dentity structured by this ethos becomes deeply invested in its own impotence, even while it seeks to assuage the pain of its powerlessness through its vengeful moralizing, through its wide distribution of suffering, through its reproach of power as such.”).Show More instead of more properly focused on the material sources and consequences of racial inequality. Epitomized by the writing of a scholar like Cedric Johnson, the critique maintains that antiracism education and racial affinity movements, despite having brought the marginalization of Black civilians to the forefront of public consciousness, have moved the United States no closer to “concrete, substantive reform.”10 10.Cedric Johnson, The Panthers Can’t Save Us Now, Catalyst: A Journal of Theory & Strategy (Spring 2017), https://catalyst-journal.com/2017/11/panthers-cant-save-us-cedric-johnson#po-fn. [https://perma.cc/737Z-KVU7].Show More As Johnson insists, what is needed instead is a “popular, anti-capitalist politics, rooted in situated class experiences.”11 11.Id.Show More In the context of public education, this critique might demand equalized resources rather than diversity training.

To be sure, the ways in which material inequality informs racial inequality is key to realizing substantive equality for all Americans. That disparities in wealth and income make Black Americans vulnerable to heightened rates of incarceration,12 12.Nathaniel Lewis, Mass Incarceration: New Jim Crow, Class War, or Both?, People’s Pol’y Project (Jan. 30, 2018), https://www.peoplespolicyproject.org/wp-content/uploads/2018/01/​MassIncarcerationPaper.pdf [https://perma.cc/TF53-RV5J] (arguing that the primary reason for the large gap between black and white incarceration rates is the differences in class composition of each racial group).Show More abusive policing,13 13.U.S. Dep’t of Just. C.R. Div., Investigation of the Ferguson Police Department 3, 42 (2015), https://www.justice.gov/sites/default/files/opa/press-releases/attachments/2015/03/04​/ferguson_police_department_report.pdf [https://perma.cc/E7MP-8MGH] (documenting municipal court practices that exact harsh penalties and fines in an attempt to sustain the city’s budget); Campbell Robertson, A City Where Policing, Discrimination and Raising Revenue Went Hand in Hand, N.Y. Times (Mar. 4, 2015), https://www.nytimes.com/2015/03/05/us/us-details-a-persistent-pattern-of-police-discrimination-in-a-small-missouri-city.html [https://pe​rma.cc/QV4J-DJQL] (documenting the “reflexive and gratuitous hostility [of Ferguson police] toward black residents that goes beyond arrests into routine uses of force”).Show More more dangerous neighborhoods,14 14.See, e.g., Chaeyoung Cheon, Yuzhou Lin, David J. Harding, Wei Wang & Dylan S. Small, Neighborhood Racial Composition and Gun Homicides, 3 JAMA Network Open 1, 1–2 (2020) (suggesting that lack of institutional resources and opportunities created by racial wealth gaps and underinvestment subject Black people to higher gun homicide rates in their neighborhoods, even after controlling for individual socioeconomic status).Show More and inferior health and social services15 15.See, e.g., Tiffiany Howard, Marya Shegog, DeaJiane McNair & Mikale Lowery, Black Health and Black Wealth: Understanding the Intricate Linkages Between Income, Health, and Wealth for African Americans 7–8, 14 (2019) (finding that while income dictates access to high nutrient food and healthier neighborhoods, lack of wealth contributes to intergenerational insecurity that corresponds with negative health outcomes).Show More is well-documented. In education, public school financing, anchored in local tax bases themselves shaped by residential segregation, housing discrimination, redlining, and blockbusting, continues to limit the tax pool from which majority-minority schools can draw. A 2019 study, for example, found that non-white school districts received $23 billion less in funding than did white schools, and that for every student enrolled, non-white school districts received $2,226 less than did white districts.16 16.$23 Billion, EdBuild 4, app. A (2019), https://edbuild.org/content/23-billion/full-report.pdf [https://perma.cc/AX8H-R5FL].Show More Accordingly, there have long17 17.See Derrick A. Bell, Jr., Serving Two Masters: Integration Ideals and Client Interests in School Desegregation Litigation, 85 Yale L.J. 470, 487–92 (1976) (documenting the resistance of civil rights organizations like LDF to strategies that deemphasized integration, even after it became obvious that alternatives to desegregation, like genuinely equal funding for black schools, should have been considered in the face of white resistance and in response to the requests of Black parents).Show More been warranted calls for the redistribution of resources as a solution to the education gap, particularly in the wake of a failed integration project and the resegregation of American public schools by race.18 18.Proceeding from the assumption that a segregated school is one where less than 40 percent of students are white, the number of schools where less than forty percent of students are white approximately doubled between 1996 and 2016, while the percentage of children of color attending such schools rose from fifty-nine to sixty-six percent. The percentage of Black students, in particular, attending segregated schools rose from fifty-nine to seventy-one percent. Will Stancil, School Segregation Is Not a Myth, The Atlantic (Mar. 14, 2018), https://www.theatlantic.com/educati​on​/archive/2018/03/school-segregation-is-not-a-myth​/555614/ [https://perma.cc/6ZCF-YWF​J]; Gary Orfield, Erica Frankenberg, Jongyeon Ee & John Kuscera, Brown at 60: Great Progress, a Long Retreat and an Uncertain Future, Civil Rights Project 10 tbl.3 (2014), https://www.civilrightsproject.ucla.edu/research/k-12-education/integration-and-diversity/br​own-at-60-great-progress-a-long-retreat-and-an-uncertain-future/Brown-at-60-051814.pdf [https://perma.cc/86WC-VWY2] (documenting a long-term trend toward resegregation); Alvin Chang, The Data Proves that School Segregation Is Getting Worse, Vox (Mar. 5, 2018), https://www.vox.com/2018/3/5/17080218/school-segregation-getting-worse-data [https://perma.cc/TPK8-EQPM] (explaining that Black students are increasingly isolated in poor, segregated neighborhoods).Show More

Nevertheless, the curricular wars surrounding antiracism education remind us that the ideology of race still functions in less concrete, but no less powerful, ways. Race and racial disparities are more than just material, more than new classroom supplies and equitable teacher salaries. Rather, race is also about psychic harm. Part of that psychic harm is certainly in the story that material inequalities tell: that children of color deserve less because they are valued less. But harm also stems from the national mythologies we construct about race, and the ways in which those mythologies dictate our responses to inequality, legal and otherwise. Our national story about the end of racism as the result of a victorious civil rights movement has impeded efforts to engage institutional bias and systemic oppression. Our national story about innocent white identity has obstructed efforts to interrogate racial hierarchy and adopt solutions necessary to dismantle racial stratification.

Our mythologies about race have also set baselines for the conception of racial harm. Indeed, the ways in which society collectively understands the nature of racial injury will dictate the very remedies we choose to address racialized material disparities if we choose to do so at all. The narrative regarding racial injury dictated by antidiscrimination law tells Americans that the harm of homogenous classrooms for whites is a compelling interest justifying race-conscious remedies, but societal discrimination leveled against Black students is not. Exclusion from elite education in the absence of race-conscious admissions policies is not an equal protection violation, but the de minimis19 19.See Neil S. Siegel, Race-Conscious Student Assignment Plans: Balkanization, Integration, and Individualized Consideration, 56 Duke L.J. 781, 807 n.112 (2006) (explaining that affirmative action programs lead to a “modest decrease” in white students’ chances of being admitted); Goodwin Liu, The Causation Fallacy: Bakke and the Basic Arithmetic of Selective Admissions, 100 Mich. L. Rev. 1045, 1046 (2002) (describing the “common yet mistaken” belief that when white applicants are denied admission in preference of minority applicants with equal or lesser qualifications, the cause is affirmative action).Show More harm to “innocent” whites from affirmative action is. The repeated and consistent exposure of Black students to racial epithets in required reading is not a harm recognized by equal protection.20 20.See, e.g., Monteiro v. Tempe Union High Sch. Dist., 158 F.3d 1022, 1024, 1029, 1032 (9th Cir. 1998) (concluding that the required reading that included over two hundred instances of racial slurs regarding Black people did not run afoul of equal protection).Show More But, as illustrated by the emerging round of legal opposition to antiracism education, teaching students about how whites benefit from whiteness in a racialized society is a cognizable harm because it might make students “feel bad.”

These asymmetric narratives regarding injury are central to maintaining racial hierarchy. Accordingly, it is no surprise that politicians and parents are so heavily invested in the outcome, for nothing less than racial status is at stake in the battle for what we teach young people about race. Though dismissal of all anti-antiracism education legislation and lawsuits is possible, the opportunity that current antidiscrimination law provides plaintiffs to present antiracism education as racist education is a reminder of the symbolic import of race, a red flag regarding inversions in racial injury, and a troubling sign of equality jurisprudence’s instability.

Part I considers the form and function of antiracism education, considering its basic tenets, documenting its rise in prominence, and noting the critiques antiracist education prompts. Part II engages the legal responses to antiracism education, from legislation intended to undermine it to lawsuits that challenge it as an affront to civil rights and equality. Given both conceptual and instrumental differences between antiracism education and the multicultural education curricula that came before it, antiracism education is particularly vulnerable to attack under current antidiscrimination norms and doctrine. Part III considers the ways in which antidiscrimination law creates, protects, and increasingly centers “innocent” white racial identity and closes with a reminder of the importance of K–12 schools as sites for understanding race and racial subordination in the United States.

  1. Complaint at 3, Cajune v. Indep. Sch. Dist. 194, 2022 WL 179517 (D. Minn. Aug. 6, 2021) (No. 0:21-cv-01812) (first alteration in original). ↑
  2. Id. at 1. ↑
  3. Id. at 3. ↑
  4. Michael Crowley, Trump Calls for ‘Patriotic Education’ to Defend American History from the Left, N.Y. Times
    (

    Sept. 17, 2020), https://www.nytimes.com/2020/09/17/us/politics/trump​-patriotic-education.html [https://perma.cc/K56W-F7Z2]; see Evan Gerstmann, Trump Says He Will Punish Schools that Teach the New York Times’ ‘1619’ Project by Withholding Federal Funds, Forbes (Sept. 6, 2020), https://www.forbes.com/sites/evangerstmann/2020/09/​06/trump-says-he-will-punish-schools-that-teach-the-new-york-times-1619-project-by-withh​olding-federal-funds/?sh=4a241ca17cb5 [https://perma.cc/YDN3-8DSM]. ↑

  5. Critical race theory is a race-based systemic interrogation of legal reasoning, doctrine, and institutions, taught in law schools but also used in other disciplines. Although it overlaps with other legal subjects that implicate race, it is distinct from subjects like constitutional law, immigration law, and criminal law in its comprehensive examination of the function of race in American law. While CRT considers some of the same issues and problems that civil rights and ethnic studies courses engage, the theory broadens the methodological perspective, bringing in history, economics, and group- and self-interest, among other discourses. In a departure from traditional civil rights work, CRT questions the foundations of liberalism, including legal theories regarding equality, the mechanics of legal reasoning, and principles of constitutional law. Richard Delgado & Jean Stefancic, Critical Race Theory: An Introduction 3 (2001). ↑
  6. Jennifer L. Hochschild & Nathan Scovronick
    ,

    The American Dream and the Public Schools 1–2 (2003) (arguing that most Americans understand education as a place where children will reach their full potential and become good citizens). ↑

  7. See W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 637 (1943) (explaining that schools educate the young for citizenship); New Jersey v. T.L.O., 469 U.S. 325, 373 (1985) (Stevens, J., concurring in part and dissenting in part) (noting that schools are places to inculcate the values essential to meaningful exercise of the rights and responsibilities of a self-governing citizenry); Brown v. Bd. of Educ., 347 U.S. 483, 493 (1954) (recognizing that education is “the very foundation of good citizenship” and “a principal instrument in awakening the child to cultural values”); San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35–36 (1973) (“Exercise of the franchise . . . cannot be divorced from the educational foundation of the voter.”). ↑
  8. See infra notes 203–08 and accompanying text. ↑
  9. See, e.g., Wendy Brown, Wounded Attachments, 21 Pol. Theory 390, 398, 403 (1993) (“[I]nsofar as [identity politics is] premised on exclusion from a universal ideal, [politicized identities] require that ideal, as well as their exclusion from it, for their own perpetuity as identities. . . . [I]dentity structured by this ethos becomes deeply invested in its own impotence, even while it seeks to assuage the pain of its powerlessness through its vengeful moralizing, through its wide distribution of suffering, through its reproach of power as such.”). ↑
  10. Cedric Johnson, The Panthers Can’t Save Us Now, Catalyst: A Journal of Theory & Strategy (Spring 2017), https://catalyst-journal.com/2017/11/panthers-cant-save-us-cedric-johnson#po-fn. [https://perma.cc/737Z-KVU7]. ↑
  11. Id. ↑
  12. Nathaniel Lewis, Mass Incarceration: New Jim Crow, Class War, or Both?, People’s Pol’y Project (Jan. 30, 2018), https://www.peoplespolicyproject.org/wp-content/uploads/2018/01/​MassIncarcerationPaper.pdf [https://perma.cc/TF53-RV5J] (arguing that the primary reason for the large gap between black and white incarceration rates is the differences in class composition of each racial group). ↑
  13. U.S. Dep’t of Just. C.R. Div., Investigation of the Ferguson Police Department 3, 42 (2015), https://www.justice.gov/sites/default/files/opa/press-releases/attachments/2015/03/04​/ferguson_police_department_report.pdf [https://perma.cc/E7MP-8MGH] (documenting municipal court practices that exact harsh penalties and fines in an attempt to sustain the city’s budget); Campbell Robertson, A City Where Policing, Discrimination and Raising Revenue Went Hand in Hand, N.Y. Times (Mar. 4, 2015), https://www.nytimes.com/2015/03/05/us/us-details-a-persistent-pattern-of-police-discrimination-in-a-small-missouri-city.html [https://pe​rma.cc/QV4J-DJQL] (documenting the “reflexive and gratuitous hostility [of Ferguson police] toward black residents that goes beyond arrests into routine uses of force”). ↑
  14. See, e.g., Chaeyoung Cheon, Yuzhou Lin, David J. Harding, Wei Wang & Dylan S. Small, Neighborhood Racial Composition and Gun Homicides, 3 JAMA Network Open 1, 1–2 (2020) (suggesting that lack of institutional resources and opportunities created by racial wealth gaps and underinvestment subject Black people to higher gun homicide rates in their neighborhoods, even after controlling for individual socioeconomic status). ↑
  15. See, e.g., Tiffiany Howard, Marya Shegog, DeaJiane McNair & Mikale Lowery, Black Health and Black Wealth: Understanding the Intricate Linkages Between Income, Health, and Wealth for African Americans 7–8, 14 (2019) (finding that while income dictates access to high nutrient food and healthier neighborhoods, lack of wealth contributes to intergenerational insecurity that corresponds with negative health outcomes). ↑

  16. $23 Billion, EdBuild

    4,

    app. A

    (

    2019), https://edbuild.org/content/23-billion/full-report.pdf [https://perma.cc/AX8H-R5FL]. ↑

  17. See Derrick A. Bell, Jr., Serving Two Masters: Integration Ideals and Client Interests in School Desegregation Litigation, 85 Yale L.J. 470, 487–92 (1976) (documenting the resistance of civil rights organizations like LDF to strategies that deemphasized integration, even after it became obvious that alternatives to desegregation, like genuinely equal funding for black schools, should have been considered in the face of white resistance and in response to the requests of Black parents). ↑
  18. Proceeding from the assumption that a segregated school is one where less than 40 percent of students are white, the number of schools where less than forty percent of students are white approximately doubled between 1996 and 2016, while the percentage of children of color attending such schools rose from fifty-nine to sixty-six percent. The percentage of Black students, in particular, attending segregated schools rose from fifty-nine to seventy-one percent. Will Stancil, School Segregation Is Not a Myth, The Atlantic (Mar. 14, 2018), https://www.theatlantic.com/educati​on​/archive/2018/03/school-segregation-is-not-a-myth​/555614/ [https://perma.cc/6ZCF-YWF​J]; Gary Orfield, Erica Frankenberg, Jongyeon Ee & John Kuscera, Brown at 60: Great Progress, a Long Retreat and an Uncertain Future, Civil Rights Project 10 tbl.3 (2014), https://www.civilrightsproject.ucla.edu/research/k-12-education/integration-and-diversity/br​own-at-60-great-progress-a-long-retreat-and-an-uncertain-future/Brown-at-60-051814.pdf [https://perma.cc/86WC-VWY2] (documenting a long-term trend toward resegregation); Alvin Chang, The Data Proves that School Segregation Is Getting Worse, Vox (Mar. 5, 2018), https://www.vox.com/2018/3/5/17080218/school-segregation-getting-worse-data [https://perma.cc/TPK8-EQPM] (explaining that Black students are increasingly isolated in poor, segregated neighborhoods). ↑
  19. See Neil S. Siegel, Race-Conscious Student Assignment Plans: Balkanization, Integration, and Individualized Consideration, 56 Duke L.J. 781, 807 n.112 (2006) (explaining that affirmative action programs lead to a “modest decrease” in white students’ chances of being admitted); Goodwin Liu, The Causation Fallacy: Bakke and the Basic Arithmetic of Selective Admissions, 100 Mich. L. Rev. 1045, 1046 (2002) (describing the “common yet mistaken” belief that when white applicants are denied admission in preference of minority applicants with equal or lesser qualifications, the cause is affirmative action). ↑

  20. See, e.g., Monteiro v. Tempe Union High Sch. Dist., 158 F.3d 1022, 1024, 1029, 1032 (9th Cir. 1998) (concluding that the required reading that included over two hundred instances of racial slurs regarding Black people did not run afoul of equal protection). ↑

Defining “Substantial Burdens” on Religion and Other Liberties

The U.S. Supreme Court seems poised to restore free exercise exemptions from neutral laws that burden religion. But pivotal Justices have asked how to narrow religious exemptions. This Article proposes answers with wide-ranging implications for the future—and limits—of free exercise, and for the doctrine on other liberties.

To date, courts applying exemptions from “substantial burdens” on religion have tended to narrow protections to the detriment of religious minorities. But many fear that expanding exemptions would over-protect Christians in culture-war cases.

Striking a balance will require a sound definition of “substantial burdens.” But the current, strongly pro-religion Court will not impose real limits unless it is given a way to do so that avoids forcing judges to second-guess claimants’ beliefs about what is important in religious matters. And here legal texts, history, and precedent do not shed much light.

For answers, this Article looks to how our law handles the same issue for other liberties—when legal burdens on them trigger scrutiny. It is the first article to pursue this approach, which has support in case law on other liberties. This Article offers, in the process, the most comprehensive theory to date of how other liberties guard against incidental burdens. Each liberty is shaped by what I call an “adequate alternatives” principle: a law that burdens the liberty will trigger heightened scrutiny if the law leaves no adequate alternative way to exercise that liberty. And an alternative is adequate if it lets someone realize the interests served by that liberty to the same degree, and at no greater cost. This principle can guide doctrine on those liberties in new circumstances and inform debates about which liberties to constitutionalize in the first place.

And applying the principle to define “substantial burdens” on religious liberty would resolve many issues that have vexed courts. The resulting test would urge deference to believers on religious questions but not on what “substantial” means, thus limiting this liberty. Yet the test would expand protection for religious minorities harmed by existing doctrines biased toward mainstream religions. And it would offer cogent answers to a range of cases discussed here, involving inmates, street preachers, and protesters; government contractors raising conscience claims; churches challenging zoning laws; and tribes challenging public works projects.

Introduction

Does the Free Exercise Clause entitle people to exemptions from general laws that happen to burden their religion? For decades, the U.S. Supreme Court said yes.1 1.See, e.g., Sherbert v. Verner, 374 U.S. 398, 403–04 (1963); Wisconsin v. Yoder, 406 U.S. 205, 214–29 (1972).Show More Then in Employment Division v. Smith (1990),2 2.494 U.S. 872, 878–79 (1990).Show More it said no. Now, in Fulton v. City of Philadelphia (2021),3 3.141 S. Ct. 1868 (2021).Show More five Justices have signaled a willingness to reverse Smith and say yes again.4 4.See id. at 1882 (Barrett, J., joined by Kavanaugh, J., concurring) (finding “textual and structural arguments against Smith . . . more compelling”); id. at 1883, 1926 (Alito, J., joined by Thomas & Gorsuch, JJ., concurring in the judgment) (calling for Smith to be overruled).Show More That would restore heightened scrutiny of—and exemptions from—neutral laws that incidentally burden religion. But two pivotal Justices in Fulton said that if and when the Court reverses Smith, it will face several questions about what should replace Smith. This Article proposes answers, with wide-ranging implications for the future—and limits—of free exercise rights. Its framework also provides a method for developing doctrines on other liberties, like speech, guns, and travel—and for telling which liberties a system ought to constitutionalize at all.

Under the pre-Smith regime, which exists now in more limited contexts under some federal and state statutes, courts would ask if a law had “placed a substantial burden” on a person’s religious exercise.5 5.Hernandez v. Comm’r, 490 U.S. 680, 699 (1989).Show More If so, courts would apply heightened scrutiny, granting her an exemption from the law unless doing so would have harmed a compelling interest.6 6.Sherbert, 374 U.S. at 404, 406–07.Show More But how to test for substantial burdens? That is, when should heightened scrutiny kick in?

This Article develops answers based on how our law handles the same issue as it arises for other constitutional liberties—when legal burdens on them are serious enough to trigger heightened scrutiny.7 7.See infra Section II.A.Show More Courts have developed large bodies of case law on that question. And in answering this issue for one liberty, courts have often drawn on the doctrines defining the trigger for heightened scrutiny under other liberties.8 8.Id.Show More Some Justices have hinted that borrowing from other liberties might be the best way to limit religious liberty, too (and one circuit has already gestured vaguely in this direction9 9.See, e.g.,Mahoney v. Doe, 642 F.3d 1112, 1117, 1121 (D.C. Cir. 2011) (determining whether a law substantially burdens religion by asking whether it leaves open a “multitude of means” for practicing religion, echoing the “ample alternative channels of communication” test used in the same opinion to evaluate a free speech claim (internal quotation marks and citation omitted)).Show More).10 10.See Fulton v. City of Philadelphia, 141 S. Ct. 1868, 1882–83 (2021) (Barrett, J., joined by Breyer & Kavanaugh, JJ., concurring) (suggesting, based on analogies to other liberties, that free exercise protections against incidental burdens should not be categorical).Show More This method promises to provide a practical way for courts to limit religious liberty. But this Article is the first to pursue this approach—offering, in the process, the most comprehensive theory to date of how constitutional liberties in general guard against incidental burdens.

As shown below, courts have relied on what I call an adequate alternatives principle.11 11.See infra Part II.Show More This principle triggers heightened scrutiny of a law that burdens a civil liberty if the law leaves no adequate alternative means of exercising the liberty at issue. And an alternative is adequate if it allows people to pursue the interests served by that liberty to the same degree and at no greater cost.

This Article shows that applying that principle to religion offers easy-to-implement answers to several questions about the scope of religious liberty. The answers are especially timely as critics fear that if and when this particular Court reinstates free exercise exemptions, it will fail to impose sensible limits on exemptions.12 12.See, e.g., Micah Schwartzman, Richard Schragger & Nelson Tebbe, Symposium: Religious Privilege in Fulton and Beyond, SCOTUSblog (Nov. 2, 2020, 9:29 AM), https://www.scotusblog.com/2020/11/symposium-religious-privilege-in-fulton-and-beyond/ [https://perma.cc/3RD3-T74T].Show More The concern not to over-protect has arisen especially in politically charged cases raising Christian claims in the “conscience wars.”13 13.See Douglas NeJaime & Reva B. Siegel, Conscience Wars: Complicity-Based Conscience Claims in Religion and Politics, 124 Yale L.J. 2516, 2520 (2015).Show More These include Fulton itself, which involved a Catholic agency declining to work with same-sex couples as foster parents.14 14.Fulton, 141 S. Ct. at 1874–75.Show More

There and elsewhere, if courts found a “substantial burden” anytime someone claimed one, however trivial the burden in fact was, courts would be doing what skeptics of exemptions—and several Justices in Fulton15 15.Justice Barrett wrote an opinion, joined in full by Justice Kavanaugh, that indicated a willingness to revisit Smith. Id. at 1882 (Barrett, J., joined by Kavanaugh, J., concurring). Both Justices may be needed for a majority to reverse Smith since only three Justices called for reversal outright. See id. at 1883, 1926 (Alito, J., joined by Thomas & Gorsuch, JJ., concurring). Justice Breyer joined the portion of Justice Barrett’s opinion raising questions about what would replace Smith. Id.at 1882 (Barrett, J., joined by Breyer & Kavanaugh, JJ., concurring). However, Justice Breyer himself had previously joined an opinion arguing that Smith was wrongly decided. See City of Boerne v. Flores, 521 U.S. 507, 544–45 (1997) (O’Connor, J., joined by Breyer, J., dissenting).Show More—oppose: replacing Smith’s categorical denial of exemptions with “an equally categorical strict scrutiny regime,”16 16.Fulton, 141 S. Ct. at 1883 (Barrett, J., joined by Breyer & Kavanaugh, JJ., concurring).Show More as Justice Barrett put it. This would give religious claimants carte blanche. To avoid doing so, courts must insist, as Justice Sotomayor once wrote of a statutory religious exemptions regime, that merely “thinking one’s religious beliefs are substantially burdened . . . does not make it so.”17 17.Wheaton Coll. v. Burwell, 573 U.S. 958, 966 (2014) (Sotomayor, J., dissenting).Show More

But as Part I shows, a single fear has stopped the Court from setting real limits on “substantial burdens,” including in culture-war-related cases like Burwell v. Hobby Lobby Stores, Inc.18 18.Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 688–91 (2014) (granting religious exemptions from a federal regulation requiring employers to provide insurance coverage for contraceptives).Show More The Court worried that any attempt to limit successful claims would require judges to play theologians, deciding for themselves what is true or important in religious matters.19 19.Id. at 725. The risk of forcing judges into this role also concerned the Justices in Fulton who held off on reversing Smith, see Fulton, 141 S. Ct. at 1883 (Barrett, J., joined by Breyer & Kavanaugh, JJ., concurring), as well as the Smith Court itself, see Emp. Div. v. Smith, 494 U.S. 872, 886–87 (1990).Show More

So for any substantial burdens test to have a shot at appealing to this strongly pro-religion Court, it will have to avoid forcing judges to do theology. This Article offers a practical test that does so while still imposing real limits on religious claims in culture-war cases. But as seen in many other applications below, this test is also well-suited to “the vast majority of claims brought under” religious liberty statutes, which “have nothing to do with topics like contraception, gay rights, or abortion.”20 20.Mark Storslee, Religious Accommodation, the Establishment Clause, and Third-Party Harm, 86 U. Chi. L. Rev. 871, 874 (2019); see also Luke W. Goodrich & Rachel N. Busick, Sex, Drugs, and Eagle Feathers: An Empirical Study of Federal Religious Freedom Cases, 48 Seton Hall L. Rev. 353, 384 (2018) (finding only two Religious Freedom and Restoration Act (“RFRA”) challenges filed in the U.S. Court of Appeals for the Tenth Circuit in the thirty-two months after the Hobby Lobby decision, neither of which involve abortion, contraception, or gay rights).Show More

The substantial burdens test proposed here also aims to avoid a second problem, which has plagued lower courts’ substantial burden doctrines: by relying on concepts drawn from mainstream religions, courts have harmed religious minorities.21 21.See infra Subsection III.D.1.Show More So for minorities and also (as seen below) inmates, the substantial burdens test has been “the most difficult doctrinal hurdle” to clear.22 22.Michael A. Helfand, Identifying Substantial Burdens, 2016 U. Ill. L. Rev. 1771, 1777.Show More For example, one study found that courts hearing “Muslim prisoner claims” often second-guessed the prisoners’ religious views and “summarily den[ied]” their claims.23 23.Adeel Mohammadi, Note, Sincerity, Religious Questions, and the Accommodation Claims of Muslim Prisoners, 129 Yale L.J. 1836, 1841–42, 1886 (2020).Show More Because minorities bring the majority of claims under existing statutes,24 24.Over five years in the Tenth Circuit, “half of all decisions involve[d] prisoners or asylum seekers,” and over half of the prisoners’ claims were brought by non-Christians. Goodrich & Busick, supra note 20, at 356–57, 376. Among non-prisoner and non-asylum cases, Muslims were overrepresented by a ratio of 11.86:1, Native Americans 6.78:1, Fundamentalist Mormons 5.08:1, and Hindus 3.39:1. Id. at 374.Show More refining the “substantial burdens” test would meet a pressing need whether or not Smith is reversed. That need arises in cases involving Apache Indians wearing headdresses with eagle feathers, Sikhs carrying kirpans to work, Santerían priests performing sacrifices, Black churches using inner-city spaces, Muslim prisoners growing beards, and Jewish inmates keeping kosher.25 25.John Corvino, Ryan T. Anderson & Sherif Girgis, Debating Religious Liberty and Discrimination 10, 17 (2017).Show More This Article’s substantial burdens test aims to offer protection in such cases without over-protecting in others.

But as Part II reveals, this basic problem—developing a balanced but limited trigger for exemptions from incidental burdens—is not unique to religious liberty. Courts face the same challenge in implementing other constitutional liberties. For example, this exact issue arose regarding abortion in Planned Parenthood of Southeastern Pennsylvania v. Casey.26 26.505 U.S. 833, 874 (1992).Show More In fact, it is an underappreciated fact that the changes Casey made to Roe v. Wade27 27.410 U.S. 113 (1973).Show More were entirely about limiting which incidental burdens on pre-viability abortion would require a compelling justification and which would not.28 28.It is sometimes supposed that Casey did away with Roe’s heightened scrutiny—Roe’s demand for a compelling justification for abortion laws—altogether. See, e.g., Mark D. Rosen & Christopher W. Schmidt, Why Broccoli? Limiting Principles and Popular Constitutionalism in the Health Care Case, 61 UCLA L. Rev. 66, 95 (2013) (noting Casey “rejected Roe v. Wade’s test of strict scrutiny, adopting in its place the new and unique undue burden standard” (footnote omitted)). But, in fact, Casey did not “disturb” but rather “reaffirm[ed]” what it called Roe’s “essential holding” on when the state interest in fetal life was and was not constitutionally sufficient to support laws preventing abortion—and thus also reaffirmed, implicitly, Roe’s demand that such laws serve a compelling interest. 505 U.S. at 871, 878–79. Casey simply shrank the class of regulations that would trigger such scrutiny: not all abortion restrictions, but only those imposing an “undue burden” or prohibition. See Sherif Girgis, Misreading and Transforming Casey for Dobbs, 20 Geo. J.L. & Pub. Pol’y 331, 340 n.46 (2022). While the Court has since, in Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228, 2242 (2022), reversed Casey along with Roe, Casey’s framework remains a helpful guide to how our law has long addressed incidental burdens on individual liberties.Show More And Casey’s express reason for introducing this distinction into abortion law was to bring abortion in line with all other constitutional liberties, under which “not every law which makes [the liberty] more difficult to exercise is, ipso facto, an infringement of that right.”29 29.Casey, 505 U.S at 873 (plurality opinion).Show More Specifically, Casey held, only laws imposing an “undue burden” on abortion should require a compelling justification.30 30.See id. at 874.Show More And while this test was criticized as novel, its substance resembled doctrines playing the same narrowing role for other liberties.31 31.See generally Alan Brownstein, How Rights Are Infringed: The Role of Undue Burden Analysis in Constitutional Doctrine, 45 Hastings L.J. 867, 894–908 (1994) (arguing that the Supreme Court has undertaken analyses similar to the undue burden analysis when considering liberties such as the right to marry, the right of political association, and property rights, among others); see also infra Section II.A.Show More Bringing out the resemblance here will show how to extend those other liberties’ doctrines to new circumstances—and how to fashion a well-supported substantial burdens test for religion, in the absence of textual or historical guidance for doing so.

To that end, Part II draws a principle from the laws of speech, abortion under Roe and Casey, and other liberties. These doctrines not only forbid state action that targets protected conduct, but also guard against incidental burdens from some neutral laws.32 32.See Michael C. Dorf, Incidental Burdens on Fundamental Rights, 109 Harv. L. Rev. 1175, 1178–79, 1202, 1209, 1223 (1996) (noting that a “floodgates concern” has led courts to limit civil liberties protections against merely incidental burdens).Show More Which? The law’s answer is guided by what I call an adequate alternatives principle. This principle triggers heightened scrutiny of a law burdening a civil liberty if the law leaves no adequate alternative means of exercising the liberty. But courts have said little on what makes an alternative “adequate.” To derive an answer, Part II extrapolates from case law and rights theory. Ultimately, the adequate alternatives principle ensures that laws curbing some liberty will leave people other ways to pursue the interests served by that liberty to the same degree, at no greater cost. This account can be used to clarify the scope of any number of liberties.

Finally, Part III applies the adequate alternatives principle to limit what will count as a “substantial burden” on religion.33 33.Other scholars have discussed the adequate alternatives principle in the context of religion but to opposite effect—arguing that because such alternatives are hard to come by in the case of religion, religious burdens should trigger stricter protection. See Douglas Laycock & Thomas C. Berg, Protecting Free Exercise Under Smith and After Smith, 2020–2021 Cato Sup. Ct. Rev. 33, 48–49.Show More It offers a unified resolution of dozens of cases and several unsettled questions. The cases addressed involve prisoners and death row inmates; street preachers and protesters; government contractors raising conscience claims; churches challenging zoning laws; and tribes challenging public works projects. And the general legal questions addressed in Part III, some of which were raised by Justices in Fulton, include the following: What questions judges should ask in assessing substantiality, whether to allow exemptions from “garden-variety laws,”34 34.Fulton v. City of Philadelphia, 141 S. Ct. 1868, 1883 (2021) (Barrett, J., joined by Breyer & Kavanaugh, JJ., concurring) (citation omitted).Show More whether to treat “indirect and direct burdens on” religion differently,35 35.Id.Show More what forms of religious exercise to count in the first place, when to defer to claimants’ beliefs about a burden’s significance, and when not to defer. The test will ensure that heightened scrutiny applies only when the religious claimant really is worse off than others subject to the same law, allaying concerns about over-protecting religion. But the test will also avoid the constitutional landmines of having judges do theology or giving short shrift to less familiar, minority religious claims.

  1. See, e.g., Sherbert v. Verner, 374 U.S. 398, 403–04 (1963); Wisconsin v. Yoder, 406 U.S. 205, 214–29 (1972). ↑
  2. 494 U.S. 872, 878–79 (1990). ↑
  3. 141 S. Ct. 1868 (2021). ↑
  4. See id. at 1882 (Barrett, J., joined by Kavanaugh, J., concurring) (finding “textual and structural arguments against Smith . . . more compelling”); id. at 1883, 1926 (Alito, J., joined by Thomas & Gorsuch, JJ., concurring in the judgment) (calling for Smith to be overruled). ↑
  5. Hernandez v. Comm’r, 490 U.S. 680, 699 (1989). ↑
  6. Sherbert, 374 U.S. at 404, 406–07. ↑
  7. See infra Section II.A. ↑
  8. Id. ↑
  9.  See, e.g., Mahoney v. Doe, 642 F.3d 1112, 1117, 1121 (D.C. Cir. 2011) (determining whether a law substantially burdens religion by asking whether it leaves open a “multitude of means” for practicing religion, echoing the “ample alternative channels of communication” test used in the same opinion to evaluate a free speech claim (internal quotation marks and citation omitted)). ↑
  10. See Fulton v. City of Philadelphia, 141 S. Ct. 1868, 1882–83 (2021) (Barrett, J., joined by Breyer & Kavanaugh, JJ., concurring) (suggesting, based on analogies to other liberties, that free exercise protections against incidental burdens should not be categorical). ↑
  11. See infra Part II. ↑
  12.  See, e.g., Micah Schwartzman, Richard Schragger & Nelson Tebbe, Symposium: Religious Privilege in Fulton and Beyond, SCOTUSblog (Nov. 2, 2020, 9:29 AM), https://www.scotusblog.com/2020/11/symposium-religious-privilege-in-fulton-and-beyond/ [https://perma.cc/3RD3-T74T]. ↑
  13. See Douglas NeJaime & Reva B. Siegel, Conscience Wars: Complicity-Based Conscience Claims in Religion and Politics, 124 Yale L.J. 2516, 2520 (2015). ↑
  14. Fulton, 141 S. Ct. at 1874–75. ↑
  15. Justice Barrett wrote an opinion, joined in full by Justice Kavanaugh, that indicated a willingness to revisit Smith. Id. at 1882 (Barrett, J., joined by Kavanaugh, J., concurring). Both Justices may be needed for a majority to reverse Smith since only three Justices called for reversal outright. See id. at 1883, 1926 (Alito, J., joined by Thomas & Gorsuch, JJ., concurring). Justice Breyer joined the portion of Justice Barrett’s opinion raising questions about what would replace Smith. Id. at 1882 (Barrett, J., joined by Breyer & Kavanaugh, JJ., concurring). However, Justice Breyer himself had previously joined an opinion arguing that Smith was wrongly decided. See City of Boerne v. Flores, 521 U.S. 507, 544–45 (1997) (O’Connor, J., joined by Breyer, J., dissenting). ↑
  16. Fulton, 141 S. Ct. at 1883 (Barrett, J., joined by Breyer & Kavanaugh, JJ., concurring). ↑
  17. Wheaton Coll. v. Burwell, 573 U.S. 958, 966 (2014) (Sotomayor, J., dissenting). ↑
  18. Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 688–91 (2014) (granting religious exemptions from a federal regulation requiring employers to provide insurance coverage for contraceptives). ↑
  19. Id. at 725. The risk of forcing judges into this role also concerned the Justices in Fulton who held off on reversing Smith, see Fulton, 141 S. Ct. at 1883 (Barrett, J., joined by Breyer & Kavanaugh, JJ., concurring), as well as the Smith Court itself, see Emp. Div. v. Smith, 494 U.S. 872, 886–87 (1990). ↑
  20. Mark Storslee, Religious Accommodation, the Establishment Clause, and Third-Party Harm, 86 U. Chi. L. Rev. 871, 874 (2019); see also Luke W. Goodrich & Rachel N. Busick, Sex, Drugs, and Eagle Feathers: An Empirical Study of Federal Religious Freedom Cases, 48 Seton Hall L. Rev. 353, 384 (2018) (finding only two Religious Freedom and Restoration Act (“RFRA”) challenges filed in the U.S. Court of Appeals for the Tenth Circuit in the thirty-two months after the Hobby Lobby decision, neither of which involve abortion, contraception, or gay rights). ↑
  21. See infra Subsection III.D.1. ↑
  22. Michael A. Helfand, Identifying Substantial Burdens, 2016 U. Ill. L. Rev. 1771, 1777. ↑
  23.  Adeel Mohammadi, Note, Sincerity, Religious Questions, and the Accommodation Claims of Muslim Prisoners, 129 Yale L.J. 1836, 1841–42, 1886 (2020). ↑
  24. Over five years in the Tenth Circuit, “half of all decisions involve[d] prisoners or asylum seekers,” and over half of the prisoners’ claims were brought by non-Christians. Goodrich & Busick, supra note 20, at 356–57, 376. Among non-prisoner and non-asylum cases, Muslims were overrepresented by a ratio of 11.86:1, Native Americans 6.78:1, Fundamentalist Mormons 5.08:1, and Hindus 3.39:1. Id. at 374. ↑
  25. John Corvino, Ryan T. Anderson & Sherif Girgis, Debating Religious Liberty and Discrimination 10, 17 (2017). ↑
  26. 505 U.S. 833, 874 (1992). ↑
  27. 410 U.S. 113 (1973). ↑
  28. It is sometimes supposed that Casey did away with Roe’s heightened scrutiny—Roe’s demand for a compelling justification for abortion laws—altogether. See, e.g., Mark D. Rosen & Christopher W. Schmidt, Why Broccoli? Limiting Principles and Popular Constitutionalism in the Health Care Case, 61 UCLA L. Rev. 66, 95 (2013) (noting Casey “rejected Roe v. Wade’s test of strict scrutiny, adopting in its place the new and unique undue burden standard” (footnote omitted)). But, in fact, Casey did not “disturb” but rather “reaffirm[ed]” what it called Roe’s “essential holding” on when the state interest in fetal life was and was not constitutionally sufficient to support laws preventing abortion—and thus also reaffirmed, implicitly, Roe’s demand that such laws serve a compelling interest. 505 U.S. at 871, 878–79. Casey simply shrank the class of regulations that would trigger such scrutiny: not all abortion restrictions, but only those imposing an “undue burden” or prohibition. See Sherif Girgis, Misreading and Transforming Casey for Dobbs, 20 Geo. J.L. & Pub. Pol’y 331, 340 n.46 (2022). While the Court has since, in Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228, 2242 (2022), reversed Casey along with Roe, Casey’s framework remains a helpful guide to how our law has long addressed incidental burdens on individual liberties. ↑
  29. Casey, 505 U.S at 873 (plurality opinion). ↑
  30. See id. at 874. ↑
  31. See generally Alan Brownstein, How Rights Are Infringed: The Role of Undue Burden Analysis in Constitutional Doctrine, 45 Hastings L.J. 867, 894–908 (1994) (arguing that the Supreme Court has undertaken analyses similar to the undue burden analysis when considering liberties such as the right to marry, the right of political association, and property rights, among others); see also infra Section II.A. ↑
  32. See Michael C. Dorf, Incidental Burdens on Fundamental Rights, 109 Harv. L. Rev. 1175, 1178–79, 1202, 1209, 1223 (1996) (noting that a “floodgates concern” has led courts to limit civil liberties protections against merely incidental burdens). ↑
  33. Other scholars have discussed the adequate alternatives principle in the context of religion but to opposite effect—arguing that because such alternatives are hard to come by in the case of religion, religious burdens should trigger stricter protection. See Douglas Laycock & Thomas C. Berg, Protecting Free Exercise Under Smith and After Smith, 2020–2021 Cato Sup. Ct. Rev. 33, 48–49. ↑
  34. Fulton v. City of Philadelphia, 141 S. Ct. 1868, 1883 (2021) (Barrett, J., joined by Breyer & Kavanaugh, JJ., concurring) (citation omitted). ↑

  35. Id. ↑

The But-For Theory of Anti-Discrimination Law

Discrimination law has long been in theoretical crisis. Its central theory—disparate treatment law—has no agreed-upon core principles. Because prevailing theories of discrimination once treated “disparate treatment” and “discriminatory intent” as coextensive—something we now know not to be true—it is unclear whether all “disparate treatment” is truly proscribed. In the absence of a clear commitment to proscribing all disparate treatment, judicial law-making has run amok. The result has been the development of a network of technical rules that have all but eclipsed the factual question of whether discrimination took place, and that have been devastating to discrimination plaintiffs’ success.

This Article contends that the time has come to resolve the theoretical crisis in anti-discrimination law. In a series of recent cases, the Supreme Court has situated the question of whether an individual or group would have fared differently “but for” their protected class status as the central defining question of anti-discrimination law. Moreover, the Court has suggested that this inquiry flows from anti-discrimination law’s plain text. As such, there are compelling arguments to be made that a true disparate treatment principle—the but-for principle—is the textually mandated inquiry in anti-discrimination law, and that judicial deviations from this standard are illegitimate.

This idea—that our anti-discrimination laws must reach all contexts where the outcome would be different “but for” the sex, race, or other protected class status of those affected—is simultaneously conservative in its aspirations and potentially radical in its legal effects. Such an approach comports with our often-stated commitment that all individuals in our society be given equal opportunities, and not be judged on the basis of their race, sex, or other protected class status. But anti-discrimination law has strayed far from these anti-disparate treatment principles—and thus taking such a commitment seriously would have truly significant effects. This Article thus suggests that reorienting our inquiry around the factual question of whether the outcome would be different “but for” protected class status is important to ensuring that anti-discrimination law can achieve its basic promises.

Introduction

Discrimination law has long been in theoretical crisis. Because its core theory—disparate treatment—was recognized at a time when “disparate treatment” and “intentional discrimination” were believed to be one and the same, anti-discrimination law’s foundational cases conflate the two.1 1.See, e.g., Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 335 & n.15, 382 (1977); see also infra notes 39–60 and accompanying text (discussing this issue in depth).Show More This has created a fundamental question as to disparate treatment law’s central theoretical principles. Does disparate treatment law in fact prohibit all “disparate treatment,” (i.e., all decisions in which the outcome would have been different “but for” race, sex, or other protected class status)? Or does it prohibit only the narrower category of “intentional discrimination” (i.e., decisions in which protected class status played a conscious role)?

These questions about anti-discrimination law’s core principles remain unanswered even today, with important adverse consequences for anti-discrimination law. In the absence of a clear commitment to barring “disparate treatment,” judicial law-making has run amok. Few judges even ask the question of whether a policy decision—or an employment action—would have turned out differently had the individual or group affected been white, male, or of a majority religion.2 2.See, e.g., Katie Eyer, The Return of the Technical McDonnell Douglas Paradigm, 94 Wash. L. Rev. 967, 1017 (2019). In the interest of brevity, I do not always list every protected group when giving examples of the “but for” principle. This is not intended to suggest the exclusion of other groups from the but-for principle, and, indeed, the application of the but-for principle would be the same across all of the various contexts in which groups have protections under statutory or constitutional anti-discrimination law.Show More Instead, across both constitutional and statutory law, convoluted doctrines result in the dismissal of the majority of anti-discrimination claims, whether or not “disparate treatment” (in the literal sense) has in fact occurred.3 3.See infranotes 61–71 and accompanying text; Sandra F. Sperino & Suja A. Thomas, Unequal: How America’s Courts Undermine Discrimination Law 13–14, 40–44, 158 (2017).Show More

This Article suggests that the time has come to address this theoretical crisis, and recenter anti-discrimination doctrine around what ought to be its core principles. As the very name of the doctrine suggests, “disparate treatment” law is supposed to be centrally concerned with differential treatment. This simple principle—that all groups and individuals have a right to receive the same treatment at the hands of government, employers, and others, regardless of race, sex, or other protected class status—is central to what anti-discrimination law is supposed to do. If our “anti-discrimination” principles regularly absolve defendants of liability where groups or individuals in fact would have been treated better if they were white, or men, or non-disabled, then anti-discrimination law is not worthy of its name.

While addressing anti-discrimination law’s theoretical crisis has long been urgent, it has recently become far more plausible. Across a series of recent cases, the Supreme Court has articulated the view that anti-discrimination’s law’s central defining principle is what I refer to in this Article as the “but-for principle.”4 4.Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 180 (2009) (Age Discrimination in Employment Act claim); see, e.g., Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 362 (2013) (Title VII retaliation claim); Comcast Corp. v. Nat’l Ass’n of Afr. Am.-Owned Media, 140 S. Ct. 1009, 1018–19 (2020) (42 U.S.C. § 1981 claim); Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1739–40 (2020) (Title VII sex discrimination claim); see also City of L.A. Dep’t of Water & Power v. Manhart, 435 U.S. 702, 711 (1978) (same); McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 282 n.10 (1976) (Title VII race discrimination claim).Show More Thus, the Court has embraced the view that where the outcome would be different “but for” the protected class status of those affected, anti-discrimination law is violated.5 5.See sources cited supra note 4.Show More This is of course simply another way of saying that disparate treatment (in its literal, not technical, sense) is proscribed. As such, the Court’s recent cases offer renewed opportunities to suggest that anti-discrimination law must be centered on a true “disparate treatment” theory, which would mandate liability wherever differential treatment occurs (i.e., wherever the outcome would be different “but for” protected class status).

Importantly, the Court has situated its reasoning in these cases as founded on the “plain meaning” of anti-discrimination law’s statutory text.6 6.Bostock, 140 S. Ct. at 1743, 1750.Show More As such, they offer an unusual opportunity to argue that a true disparate treatment principle not only resides at the core of anti-discrimination law but also in its plain textual meaning. In a Supreme Court where textualism is the ascendant method of statutory interpretation, this makes it uniquely plausible to claim that a commitment to proscribing all actual differential treatment is not only the preferred theory of disparate treatment law but (at least for statutory anti-discrimination law) the textually mandated one. And because disparate treatment doctrine has typically been construed comparably across the constitutional and statutory domains,7 7.See, e.g., Richard Primus, The Future of Disparate Impact, 108 Mich. L. Rev. 1341, 1354–55 (2010). Importantly, no textual barriers would exist to such an interpretation of the Equal Protection Clause, which is fully consistent textually with the but-for principle. SeeU.S. Const. amend. XIV, § 1 (“No state shall . . . deny to any person within its jurisdiction the equal protection of the laws.”).The one major difference between disparate treatment principles in the constitutional context and in most statutory contexts has traditionally been that the Constitution permits the government to show they had a sufficient “interest” to justify the discrimination. This Article addresses only the initial threshold inquiry into whether there was discrimination—and if so, of what kind—and does not address the ability of the government to justify the discrimination based on the government’s interests.Show More such a move could have profound impacts in the constitutional domain as well. As such, the current moment offers unique opportunities for resolving the theoretical crisis at the heart of anti-discrimination law and for addressing the many doctrinal pathologies that have arisen out of it.

Ironically, if there is one major obstacle to harnessing this recent turn in the Supreme Court’s case law toward a true disparate treatment paradigm, it may be those who are, in theory, most committed to building a meaningful body of anti-discrimination law. Many anti-discrimination scholars and advocates have critiqued the but-for principle—and indeed at times disparate treatment law in general—perceiving it as a weak substitute for preferred theories of anti-discrimination law, such as disparate impact and motivating factor liability.8 8.Indeed, in 2013, this Author joined a brief arguing against the but-for principle and in favor of a motivating factor standard. See Brief of Employment Law Professors as Amici Curiae in Support of Respondent at 5, app. 3, Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338 (2013) (No. 12-484).Show More This longstanding opposition to the but-for principle may make anti-discrimination scholars and advocates reluctant to draw on these cases and accompanying theoretical principles, regardless of their potential.

But this Article suggests that the increased risks of embracing the but-for principle are slight—and that the opportunity costs of not doing so are considerable. The opportunity to recenter disparate treatment law around what should be its core theoretical commitment is not one we ought to take lightly. Without such a core theoretical commitment, we can expect to continue to see an anti-discrimination law without any central rudder, overrun by judge-made doctrines, and highly susceptible to individual judicial biases.9 9.See generally Sperino & Thomas, supra note 3, at 58–83 (describing in detail the judge-made doctrines that the courts use to routinely dismiss discrimination claims); Katie Eyer, That’s Not Discrimination: American Beliefs and the Limits of Anti-Discrimination Law, 96 Minn. L. Rev. 1275, 1276 (2012) (noting that dismissals on summary judgment and motions to dismiss are “extremely common in discrimination litigation, accounting for a full 86% of litigated outcomes”).Show More Punitive or harmful government policies that would not have been adopted “but for” the (minority) race of those affected will continue to proliferate and go unremedied.10 10.See, e.g., Petula Dvorak, We Scorned Addicts When They Were Black. It Is Different Now That They Are White, Wash. Post (Apr. 12, 2018), https://www.washingtonpost.com/local/we-hated-addicts-when-they-were-black-it-is-different-now-that-they-are-white/2018/04/12/cd845f20-3e5b-11e8-974f-aacd97698cef_story.html [https://perma.cc/E49E-ZSGX].Show More Employment decisions that treat women, minorities and members of the LGBTQ community more harshly than those who are men, white, cisgender and straight will continue to be evaluated—and often dismissed—under a network of doctrines that bear little relationship to whether differential treatment occurred.11 11.See Sperino & Thomas, supra note 3, at 1–4.Show More

In contrast, an embrace of the but-for principle—and centering it as anti-discrimination law’s core commitment—offers myriad concrete opportunities to argue for a more sensible and elegant approach to anti-discrimination law. Under the but-for principle, our foundational inquiry ought to be a simple and factual one: would the outcome have been different “but for” the race, sex, or other protected class status of those adversely affected? While in many cases answering this factual question may be difficult—just as it is in, for example, tort claims—the procedure for doing so is straightforward. The fact finder (jury or judge) ought to consider all of the relevant evidence and consider whether it appears, by a preponderance of the evidence, that a different outcome would have resulted had the protected class status of those affected been different. For example, would the Voter ID law have been passed, if those it had been likely to disenfranchise were overwhelmingly white? Or would a man have been assumed to be uncommitted to work—and thus denied a promotion—simply because he had small kids?

Centering this approach has the potential to address many of the pathologies that currently plague both statutory and constitutional anti-discrimination law. The search for a particular individual bad actor (or actors) becomes far less relevant if the but-for principle is the central defining principle of disparate treatment doctrine since the question can be asked without defining the precise role of particular individuals in producing the discriminatory action.12 12.Cf. McCleskey v. Kemp, 481 U.S. 279, 293–95 (1987) (rejecting Equal Protection claim in part on the grounds that statistical study could not identify the actors who engaged in discrimination).Show More So too, the search for a strong form of self-aware conscious intent should not be dispositive if our central focus is on whether the outcome would have been different “but for” the protected class of those affected. Self-aware intent certainly may be helpful in proving “but for” causation, but it is only one of many ways that but-for causation can be shown.13 13.Cf. Linda Hamilton Krieger & Susan T. Fiske, Behavioral Realism in Employment Discrimination Law: Implicit Bias and Disparate Treatment, 94 Calif. L. Rev. 997, 1029–38 (2006) (describing aspects of disparate treatment doctrine that assume the existence of a self-aware discriminatory actor).Show More Finally, widespread recognition of the but-for principle as the central defining feature of disparate treatment doctrine would provide an opportunity to address the myriad technical doctrines that currently result in the dismissal of numerous statutory anti-discrimination claims, without ever asking the core question of whether discrimination took place.14 14.See generally Sperino & Thomas, supra note 3 passim (detailing such doctrines and their impact on anti-discrimination litigants); Eyer, supra note 9, at 1276 (noting that dismissals of plaintiffs’ claims at motions to dismiss and summary judgment account for 86% of litigated outcomes in discrimination cases); Eyer, supra note 2, 969–72 (describing the ways in which technical rules attached to the McDonnell Douglas paradigm are used to dismiss anti-discrimination claims).Show More

In addition to providing the opportunity to address many of anti-discrimination law’s pathologies, the but-for principle could also provide a stronger foundation for many of anti-discrimination law’s equality-promoting doctrines and scholarly ideas. As the case of Bostock v. Clayton County demonstrates, the stereotyping principle—long critiqued by some for its lack of statutory foundation15 15.See, e.g., Hamm v. Weyauwega Milk Prods., 332 F.3d 1058, 1066–67 (7th Cir. 2003) (Posner, J., concurring).Show More—can be situated comfortably within the but-for principle, offering it renewed vigor and promise.16 16.See, e.g., Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1741, 1748–49 (2020).Show More Similarly, the theory of “negligent discrimination”—long argued for by some anti-discrimination scholars17 17.See infra notes 226–29 and accompanying text.Show More—becomes largely unnecessary under a but-for discrimination regime.18 18.See infra Section IV.B.Show More A true but-for standard would also effectuate many—though certainly not all—goals of other equality-promoting doctrines, such as motivating factor and disparate impact.19 19.See infra Part IV.Show More

As such, there are many potential benefits to embracing the but-for principle as the theoretical core of disparate treatment doctrine and relatively few genuine drawbacks. Indeed, many of the sources of opposition have rested on misconceptions about what “but for” demands or permits (including, for example, misconceptions that a but-for standard effectively requires a showing that protected class status was the sole cause of the defendant’s actions).20 20.See infra Part V.Show More Other sources of opposition have rested on fears that the but-for principle (or other anti-classificationist approaches) would endanger minority-protective doctrines such as affirmative action.21 21.See infra Subsection V.A.2.Show More But as this Article demonstrates, much of what anti-discrimination scholars and advocates hope to accomplish through alternatives to the but-for principle can be achieved through the embrace of the principle—and much of what they hope to avoid has already come to pass.22 22.Id.Show More

The time has come to resolve the theoretical crisis in anti-discrimination law. This Article takes up that work. The Parts that follow describe the theoretical crisis at the heart of anti-discrimination law, develop arguments for how it may be resolved, and suggest what the benefits of such a resolution might be. But before proceeding to this substantive discussion, it is important to note the role of terminology in both generating—and ultimately solving—anti-discrimination law’s theoretical crisis. For too long we have conflated two concepts—“disparate treatment” and “intentional discrimination”—and we ought not to do so going forward. Thus, in this Article, when I use the term “disparate treatment,” I mean a true disparate treatment standard—that the outcome would have been different “but for” the protected class of those affected. When I refer to “intentional discrimination,” I mean to describe the narrower class of disparate treatment that is perpetrated with discriminatory intent.23 23.Though there may be some theoretical possibility of distinguishing between “intent,” “purpose,” and “motive,” (and any number of scholars have attempted to do so) I follow the convention of the Supreme Court herein, which is to use those terms interchangeably. See Katie Eyer, Ideological Drift and the Forgotten History of Intent, 51 Harv. C.R.-C.L. L. Rev. 1, 56 n.318 (2016).Show More Both of these standards are distinct from a “disparate impact” standard, which asks whether the burdens of a policy or practice fall more heavily on a particular group, but in a context where disparate treatment need not be present.24 24.42 U.S.C. § 2000e-2(k).Show More

The remainder of this Article proceeds as follows. Part I makes the case that anti-discrimination law is in conceptual crisis, describes the origins of this crisis, and details the ways that this theoretical crisis has led to serious pathologies in contemporary anti-discrimination law. Part II turns to the set of recent cases in which the Supreme Court has described the but-for principle—a true disparate treatment principle—as the central defining feature of anti-discrimination law and describes the potential of such cases for resolving anti-discrimination law’s theoretical crisis. Part III illustrates what a factual, but-for-centered inquiry might look like in an individual case and describes the radical systematic potential of arguing that this simple factual inquiry must control. Part IV describes how many of the objectives of the equality-promoting doctrines that anti-discrimination scholars and advocates have favored can be effectuated by turning to a true disparate treatment inquiry, via the but-for principle. Finally, Part V addresses likely headwinds to a project of recentering anti-discrimination law around the but-for principle, including potential progressive objections to such a project, potential legal obstacles, and judicial attitudes that may pose a barrier to reform.

  1. * Many thanks to Michael Carrier, Jessica Clarke, Tristin Green, Guha Krishnamurthi, Alexandra Lahav, Shannon Minter, Zalman Rothschild, D’Andra Shu, Joseph Singer, Sandra Sperino, Michael Selmi, Brian Soucek, Charles Sullivan, and Deb Widiss for helpful conversations and feedback regarding this project, and to the editors of the Virginia Law Review for excellent editorial suggestions. Special thanks are owed to Jessica Clarke, Sandra Sperino, and Deb Widiss for extensive feedback. This Article was presented at the 15th Annual Colloquium on Labor and Employment Law (“COSELL”) and at the Association of American Law Schools 2021 Meeting and received excellent feedback from participants. ↑
  2. See, e.g., Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 335 & n.15, 382 (1977); see also infra notes 39–60 and accompanying text (discussing this issue in depth). ↑
  3. See, e.g., Katie Eyer, The Return of the Technical McDonnell Douglas Paradigm, 94 Wash. L. Rev. 967, 1017 (2019). In the interest of brevity, I do not always list every protected group when giving examples of the “but for” principle. This is not intended to suggest the exclusion of other groups from the but-for principle, and, indeed, the application of the but-for principle would be the same across all of the various contexts in which groups have protections under statutory or constitutional anti-discrimination law. ↑
  4. See infra notes 61–71 and accompanying text; Sandra F. Sperino & Suja A. Thomas, Unequal: How America’s Courts Undermine Discrimination Law 13–14, 40–44, 158 (2017). ↑
  5. Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 180 (2009) (Age Discrimination in Employment Act claim); see, e.g., Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 362 (2013) (Title VII retaliation claim); Comcast Corp. v. Nat’l Ass’n of Afr. Am.-Owned Media, 140 S. Ct. 1009, 1018–19 (2020) (42 U.S.C. § 1981 claim); Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1739–40 (2020) (Title VII sex discrimination claim); see also City of L.A. Dep’t of Water & Power v. Manhart, 435 U.S. 702, 711 (1978) (same); McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 282 n.10 (1976) (Title VII race discrimination claim). ↑
  6. See sources cited supra note 4. ↑
  7. Bostock, 140 S. Ct. at 1743, 1750. ↑
  8. See, e.g., Richard Primus, The Future of Disparate Impact, 108 Mich. L. Rev. 1341, 1354–55 (2010). Importantly, no textual barriers would exist to such an interpretation of the Equal Protection Clause, which is fully consistent textually with the but-for principle. See
    U.S.

    Const. amend. XIV, § 1 (“No state shall . . . deny to any person within its jurisdiction the equal protection of the laws.”). The one major difference between disparate treatment principles in the constitutional context and in most statutory contexts has traditionally been that the Constitution permits the government to show they had a sufficient “interest” to justify the discrimination. This Article addresses only the initial threshold inquiry into whether there was discrimination—and if so, of what kind—and does not address the ability of the government to justify the discrimination based on the government’s interests. ↑

  9. Indeed, in 2013, this Author joined a brief arguing against the but-for principle and in favor of a motivating factor standard. See Brief of Employment Law Professors as Amici Curiae in Support of Respondent at 5, app. 3, Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338 (2013) (No. 12-484). ↑
  10. See generally Sperino & Thomas, supra note 3, at 58–83 (describing in detail the judge-made doctrines that the courts use to routinely dismiss discrimination claims); Katie Eyer, That’s Not Discrimination: American Beliefs and the Limits of Anti-Discrimination Law, 96 Minn. L. Rev. 1275, 1276 (2012) (noting that dismissals on summary judgment and motions to dismiss are “extremely common in discrimination litigation, accounting for a full 86% of litigated outcomes”). ↑
  11. See, e.g., Petula Dvorak, We Scorned Addicts When They Were Black. It Is Different Now That They Are White, Wash. Post (Apr. 12, 2018), https://www.washingtonpost.com/local/we-hated-addicts-when-they-were-black-it-is-different-now-that-they-are-white/2018/04/12/cd845f20-3e5b-11e8-974f-aacd97698cef_story.html [https://perma.cc/E49E-ZSGX]. ↑
  12. See Sperino & Thomas, supra note 3, at 1–4. ↑
  13. Cf. McCleskey v. Kemp, 481 U.S. 279, 293–95 (1987) (rejecting Equal Protection claim in part on the grounds that statistical study could not identify the actors who engaged in discrimination). ↑
  14. Cf. Linda Hamilton Krieger & Susan T. Fiske, Behavioral Realism in Employment Discrimination Law: Implicit Bias and Disparate Treatment, 94 Calif. L. Rev. 997, 1029–38 (2006) (describing aspects of disparate treatment doctrine that assume the existence of a self-aware discriminatory actor). ↑
  15. See generally Sperino & Thomas, supra note 3 passim (detailing such doctrines and their impact on anti-discrimination litigants); Eyer, supra note 9, at 1276 (noting that dismissals of plaintiffs’ claims at motions to dismiss and summary judgment account for 86% of litigated outcomes in discrimination cases); Eyer, supra note 2, 969–72 (describing the ways in which technical rules attached to the McDonnell Douglas paradigm are used to dismiss anti-discrimination claims). ↑
  16. See, e.g., Hamm v. Weyauwega Milk Prods., 332 F.3d 1058, 1066–67 (7th Cir. 2003) (Posner, J., concurring). ↑
  17. See, e.g., Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1741, 1748–49 (2020). ↑
  18. See infra notes 226–29 and accompanying text. ↑
  19. See infra Section IV.B. ↑
  20. See infra Part IV. ↑
  21. See infra Part V. ↑
  22. See infra Subsection V.A.2. ↑
  23. Id. ↑
  24. Though there may be some theoretical possibility of distinguishing between “intent,” “purpose,” and “motive,” (and any number of scholars have attempted to do so) I follow the convention of the Supreme Court herein, which is to use those terms interchangeably. See Katie Eyer, Ideological Drift and the Forgotten History of Intent, 51 Harv. C.R.-C.L. L. Rev. 1, 56 n.318 (2016). ↑

  25. 42 U.S.C. § 2000e-2(k). ↑

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