Volume 107

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

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

Introduction

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

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

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

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

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

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

A. Black Hair History and its Meaning in Black Culture

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

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

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

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

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

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

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

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

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

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

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

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

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

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

B. The Case for Dropping the Immutability Requirement

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Conclusion

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

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

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

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

Reclaiming the Right to Know: The Case for Considering Derivative Benefits in FOIA’s Personal Privacy Exemptions

The Freedom of Information Act provides the public with a statutory right to access troves of government information with nine limited exemptions. Two of those exemptions—Exemption 6 and Exemption 7(C)—protect the personal privacy of people mentioned within the government’s files, allowing the government to withhold personally identifiable information if disclosure would cause an “unwarranted” invasion of privacy. Under the Supreme Court’s precedent, courts must conduct a balancing test to determine whether disclosure is unwarranted, weighing the privacy interests of the individuals mentioned in the requested documents against the public’s interest in disclosure. The Supreme Court has clarified that disclosure can only serve the public interest if disclosure will reveal something about the government’s actions, thus allowing the public to oversee the government’s performance.

The Supreme Court has acknowledged that it has left a critical aspect of the balancing test undefined, however. It has never explicitly decided whether disclosure must directly and immediately reveal something about the government’s conduct, or whether the public interest can be served derivatively by using the requested information to uncover additional information outside of the requested documents that reveals the government’s actions.

This Note argues that the Supreme Court actually has answered this question and that courts must consider derivative benefits as part of the public interest. The Supreme Court has repeatedly, though tacitly, considered indirect and derivative harms to personal privacy. After identifying the Court’s tacit pattern, this Note argues that the statute’s language and the Court’s own logic require derivative benefits to receive the same treatment as derivative harms. Finally, this Note examines how this problem has been dealt with by the federal circuits and identifies the fault lines along which the circuits are beginning to split.

Introduction

Even the most popular federal agency in the country1 1.Lydia Saad, Postal Service Still Americans’ Favorite Federal Agency, Gallup (May 13, 2019), https://news.gallup.com/poll/257510/postal-service-americans-favorite-federal-agency.aspx [https://perma.cc/UL33-X7N7].Show More is not without its controversies. When President Trump named Louis DeJoy Postmaster General, Democrats quickly raised objections about his fitness for the office, based on financial conflicts of interest and an alleged history of illegal political contributions.2 2.Alison Durkee, Postmaster General Louis DeJoy Should Resign Over ‘Obvious Financial Conflicts of Interest,’ Experts Testify, Forbes (Sept. 14, 2020), https://www.forbes.com/sites/alisondurkee/2020/09/14/postmaster-general-louis-dejoy-should-resign-over-obvious-financial-conflicts-of-interest-experts-testify/?sh=7acc7503147c [https://perma.cc/D9ZC-X7DF].Show More In a hearing before a House Oversight subcommittee, for instance, experts testified that DeJoy held investments worth tens of millions of dollars in private contractors working with the Postal Service, and other witnesses testified that as a private businessman DeJoy had pressured his employees to donate to certain political candidates and then illegally reimbursed them through company bonuses.3 3.Id.Show More

Citizens for Responsibility & Ethics in Washington (“CREW”), a nonpartisan nonprofit dedicated to government accountability, 4 4.About CREW, Citizens for Resp. & Ethics in Wash., https://www.citizensforethics.org/about/ [https://perma.cc/K4YX-W9ZH] (last visited Apr. 14, 2021).Show More decided to investigate DeJoy’s conflicts of interest.5 5.See E-mail from Meredith Lerner, Rsch. Assoc., Citizens for Resp. & Ethics in Wash., to USPS FOIA Officer, Re: Freedom of Information Act Request (Aug. 11, 2020), https://www.citizensforethics.org/wp-content/uploads/legacy/2020/08/2020.08.11-Louis-DeJoy-USPS-FOIA-final.pdf [https://perma.cc/88VT-BTNH].Show More CREW filed a request with the Postal Service under the Freedom of Information Act (“FOIA”), seeking both the agency’s records regarding financial interests from which DeJoy was obligated to divest and records of any communications between DeJoy and the USPS regarding certain stock holdings of his.6 6.Id.Show More

The Postal Service denied the request because it determined that disclosure would not be in the public interest.7 7.Nikhel Sus (@NikhelSus), Twitter (Sept. 9, 2020, 12:38 PM), https://twitter.com/NikhelSus/status/1303734508018110464 [https://perma.cc/Q2UD-2MFD]; Letter from Jessica Y. Brewster-Johnson, Senior Ethics Couns., USPS, to Meredith Lerner, Rsch. Assoc., Citizens for Resp. & Ethics in Wash., Re: FOIA Case No. 2020-FPRO-01619 (Sept. 9, 2020) (on file with author). Nikhel Sus serves as CREW’s Senior Counsel over Complaints & Litigation. Our Team, Citizens for Resp. & Ethics in Wash., https://www.citizensforethics.org/about/our-team/ [https://perma.cc/BSH8-KUCN] (last visited Apr. 4, 2021). Many thanks to Nikhel Sus for providing the complete text of the Postal Service’s denial of the FOIA request.Show More DeJoy, the agency explained, had a personal privacy interest in his financial transactions, bringing the requested records within the scope of FOIA’s Exemption 6. Furthermore, the denial said, CREW “did not provide any information about how release of this record would contribute to the public’s understanding of the operations or activities of the Postal Service.”8 8.Brewster-Johnson, supra note 7.Show More CREW has since filed suit to compel USPS to disclose the records.9 9.See CREW Sues USPS on Louis DeJoy Conflicts, Citizens for Resp. & Ethics in Wash. (Oct. 13, 2020), https://www.citizensforethics.org/legal-action/lawsuits/usps-louis-dejoy-conflicts/ [https://perma.cc/M5AT-85E3].Show More

The Postal Service’s explanation defies common sense. How can the public not have an interest in the head of a federal agency’s potential conflicts of interest? Why did CREW have to justify its request with any public interest, much less one that would “contribute to the public’s understanding of the operations” of the Postal Service? And how can CREW show such an interest in order to justify a request? Those are the questions this Note seeks to answer.

The Freedom of Information Act grants the public a judicially enforceable right to access information gathered and stored by the executive branch of the federal government, with nine limited exceptions.10 10.5 U.S.C. § 552(b)(1)–(9).Show More Two of those exceptions—Exemption 6 and Exemption 7(C)—revolve around personal privacy and permit the government to withhold personally identifiable information from certain types of records if disclosure of those records would constitute “an unwarranted invasion of personal privacy.”11 11.Id. § 552(b)(6), (b)(7)(C).Show More The Supreme Court has found that this requires courts to determine whether to disclose or withhold records based on a balancing test between the public interest in disclosure and the privacy interests of the individuals identified in the records.12 12.See U.S. Dep’t of Def. v. Fed. Lab. Rels. Auth., 510 U.S. 487, 497 (1994).Show More

However, in practice, the Supreme Court’s balancing test is weighted against disclosure. The Supreme Court has gradually expanded the scope of the privacy interests protected by the personal privacy exemptions while narrowing what weighs in favor of the public interest. Under the Supreme Court’s current interpretation, often called the “core purpose doctrine,” there is no public interest in disclosure unless disclosure would shed light on the government’s conduct and activities.13 13.U.S. Dep’t of Just. v. Reps. Comm. for Freedom of the Press, 489 U.S. 749, 773–75 (1989).Show More This narrow conception of the public interest is a fixture of the FOIA landscape, which raises the question of how best to assert a cognizable public interest.14 14.The core purpose doctrine has drawn its fair share of critics, but the Supreme Court shows no signs of revising it. See, e.g., Michael Hoefges, Martin E. Halstuk & Bill F. Chamberlin, Privacy Rights Versus FOIA Disclosure Policy: The “Uses and Effects” Double Standard in Access to Personally-Identifiable Information in Government Records, 12 Wm. & Mary Bill Rts.J. 1, 8–9 (2003); Christopher P. Beall, The Exaltation of Privacy Doctrines Over Public Information Law, 45 Duke L.J. 1249, 1251–52 (1996); Martin E. Halstuk, When Secrecy Trumps Transparency: Why the Open Government Act of 2007 Falls Short, 16 CommLaw Conspectus 427, 428–29 (2008) [hereinafter Halstuk, Secrecy Trumps Transparency].Show More

One central ambiguity remains in the balancing test under the core purpose doctrine: must disclosure of the requested information directly shed light on the government’s conduct, or may it shed light indirectly after a series of intervening causal steps? The Supreme Court has acknowledged, but not answered, the question of what it calls “derivative uses.”15 15.U.S. Dep’t of State v. Ray, 502 U.S. 164, 178 (1991).Show More The U.S. Court of Appeals for the Second Circuit has described derivative use as the idea “that the public interest can be read more broadly to include the ability to use redacted information to obtain additional as yet undiscovered information outside the government files.”16 16.Associated Press v. U.S. Dep’t of Def., 554 F.3d 274, 290 (2d Cir. 2009) (citing Ray, 502 U.S. at 178).Show More For instance, to return to the CREW example, one argument for disclosure based on derivative benefits would be that, while the requested information about DeJoy would not directly show how the USPS was performing its duties, disclosure would indirectly allow the public to better oversee the USPS by further investigating the relationship between the agency’s actions and the Postmaster General’s own financial interests. The idea of derivative benefits recognizes the reality that the personally identifiable information protected by the privacy exemptions will rarely, by itself and directly, give the public a better understanding of government decision making. Nevertheless, derivative benefits can frequently add to the public’s capacity to monitor government performance when combined with other available information or when used for further investigation to uncover new information.

This Note explores the Supreme Court’s interpretation of the personal privacy exemptions and concludes that courts must consider derivative uses when conducting the balancing test. In fact, there are two types of derivative uses, and both must be considered. The first type, derivative benefits, is when the derivative use of requested information advances the public interest. Conversely, derivative harms occur when someone uses the requested information after its disclosure in a way that further invades the privacy of the individuals identified in the records. These two types of derivative use weigh in favor of disclosure and nondisclosure, respectively.

As this Note demonstrates, the Supreme Court has repeatedly factored in derivative harms as justification for nondisclosure without ever explicitly recognizing that it has done so. At the same time, however, the Court has failed to recognize the corresponding value of derivative benefits, though the caselaw implies that there is an appropriate role for derivative benefits in limited circumstances. Because FOIA embodies a pro-disclosure policy, and because there is no principled reason to consider one type of derivative use without the other, courts must consider derivative benefits, just as they follow the Supreme Court’s lead in considering derivative harms.

This Note makes three main contributions to this field. First, while this is not the first piece to advocate for the consideration of derivative uses, it is the first to do so for a narrow conception of derivative uses that is consistent with current Supreme Court doctrine. Broader versions of derivative use, as others have championed, would unrealistically require either the Court or Congress to overrule the core purpose doctrine. Second, this Note brings existing literature up to date by analyzing the impact of the Supreme Court’s latest disclosure case under the personal privacy exemptions. No other article has touched on this topic in any depth for roughly two decades. Finally, this Note is the first to discuss in any detail the treatment of derivative uses by the lower courts. This is critical to understanding the direction the doctrine is developing and is all the more pressing because this issue has the potential to cause a circuit split.

Part I of this Note provides a brief look at the history of FOIA and explains how the Supreme Court interprets the two personal privacy exemptions. Part II examines United States Department of State v. Ray,17 17.502 U.S. 164 (1991).Show More the one case in which the Supreme Court discussed derivative uses directly, while Part III analyzes the implications of the Court’s caselaw after Ray. Part IV lays out how and why courts should consider derivative benefits, and, finally, Part V analyzes the most important derivative use cases at the circuit level and predicts where the circuits are likely to split in the future.

  1. * J.D., University of Virginia School of Law, 2022. I am grateful to Professor Sarah Stewart Ware, who patiently supervised and guided this Note, and to the members of the Virginia Law Review who so diligently edited and improved it. All errors are mine alone. ↑
  2. Lydia Saad, Postal Service Still Americans’ Favorite Federal Agency, Gallup (May 13, 2019), https://news.gallup.com/poll/257510/postal-service-americans-favorite-federal-agency.aspx [https://perma.cc/UL33-X7N7]. ↑
  3. Alison Durkee, Postmaster General Louis DeJoy Should Resign Over ‘Obvious Financial Conflicts of Interest,’ Experts Testify, Forbes (Sept. 14, 2020), https://www.forbes.com/sites/alisondurkee/2020/09/14/postmaster-general-louis-dejoy-should-resign-over-obvious-financial-conflicts-of-interest-experts-testify/?sh=7acc7503147c [https://perma.cc/D9ZC-X7DF]. ↑
  4. Id. ↑
  5. About CREW, Citizens for Resp. & Ethics in Wash., https://www.citizensforethics.org/about/ [https://perma.cc/K4YX-W9ZH] (last visited Apr. 14, 2021). ↑
  6. See E-mail from Meredith Lerner, Rsch. Assoc., Citizens for Resp. & Ethics in Wash., to USPS FOIA Officer, Re: Freedom of Information Act Request (Aug. 11, 2020), https://www.citizensforethics.org/wp-content/uploads/legacy/2020/08/2020.08.11-Louis-DeJoy-USPS-FOIA-final.pdf [https://perma.cc/88VT-BTNH]. ↑
  7. Id. ↑
  8. Nikhel Sus (@NikhelSus), Twitter (Sept. 9, 2020, 12:38 PM), https://twitter.com/NikhelSus/status/1303734508018110464 [https://perma.cc/Q2UD-2MFD]; Letter from Jessica Y. Brewster-Johnson, Senior Ethics Couns., USPS, to Meredith Lerner, Rsch. Assoc., Citizens for Resp. & Ethics in Wash., Re: FOIA Case No. 2020-FPRO-01619 (Sept. 9, 2020) (on file with author). Nikhel Sus serves as CREW’s Senior Counsel over Complaints & Litigation. Our Team, Citizens for Resp. & Ethics in Wash., https://www.citizensforethics.org/about/our-team/ [https://perma.cc/BSH8-KUCN] (last visited Apr. 4, 2021). Many thanks to Nikhel Sus for providing the complete text of the Postal Service’s denial of the FOIA request. ↑
  9. Brewster-Johnson, supra note 7. ↑
  10. See CREW Sues USPS on Louis DeJoy Conflicts, Citizens for Resp. & Ethics in Wash. (Oct. 13, 2020), https://www.citizensforethics.org/legal-action/lawsuits/usps-louis-dejoy-conflicts/ [https://perma.cc/M5AT-85E3]. ↑
  11. 5 U.S.C. § 552(b)(1)–(9). ↑
  12. Id. § 552(b)(6), (b)(7)(C). ↑
  13. See U.S. Dep’t of Def. v. Fed. Lab. Rels. Auth., 510 U.S. 487, 497 (1994). ↑
  14. U.S. Dep’t of Just. v. Reps. Comm. for Freedom of the Press, 489 U.S. 749, 773–75 (1989). ↑
  15. The core purpose doctrine has drawn its fair share of critics, but the Supreme Court shows no signs of revising it. See, e.g., Michael Hoefges, Martin E. Halstuk & Bill F. Chamberlin, Privacy Rights Versus FOIA Disclosure Policy: The “Uses and Effects” Double Standard in Access to Personally-Identifiable Information in Government Records, 12 Wm. & Mary Bill Rts. J. 1, 8–9 (2003); Christopher P. Beall, The Exaltation of Privacy Doctrines Over Public Information Law, 45 Duke L.J. 1249, 1251–52 (1996); Martin E. Halstuk, When Secrecy Trumps Transparency: Why the Open Government Act of 2007 Falls Short, 16 CommLaw Conspectus 427, 428–29 (2008) [hereinafter Halstuk, Secrecy Trumps Transparency]. ↑
  16. U.S. Dep’t of State v. Ray, 502 U.S. 164, 178 (1991). ↑
  17. Associated Press v. U.S. Dep’t of Def., 554 F.3d 274, 290 (2d Cir. 2009) (citing Ray, 502 U.S. at 178). ↑
  18. 502 U.S. 164 (1991). ↑
  19. Hoefges et al., supra note 14, at 9–11 (quoting 5 U.S.C. § 552(f)). The “right” to access information gathered and held by the government is purely statutory. The Supreme Court has rejected the idea that citizens have any legally enforceable right under the Constitution to access government information. Barry Sullivan, FOIA and the First Amendment: Representative Democracy and the People’s Elusive “Right to Know,” 72 Md. L. Rev. 1, 14 (2012). ↑
  20. See Hoefges et al., supra note 14, at 9 n.42. ↑
  21. John C. Brinkerhoff, Jr., FOIA’s Common Law, 36 Yale J. on Regul. 575, 594 (2019) (quoting 5 U.S.C. § 1002 (repealed 1966)); see also Halstuk, Secrecy Trumps Transparency, supra note 14, at 434–35. The government used the “properly and directly concerned” requirement in particular to withhold information. Id. at 434. If the requested information did not pertain to the requestor himself, the government denied disclosure. This effectively excluded all third parties such as journalists and attorneys. Id. ↑
  22. Brinkerhoff, supra note 20, at 594. One famous example, which demonstrates how toothless the disclosure requirements of the APA were, involved the government finding good cause to withhold the contents of telephone books. Id. at 594 n.141 (quoting James E. Hakes, Note, Comments on Proposed Amendments to Section 3 of the Administrative Procedure Act: The Freedom of Information Bill, 40 Notre Dame L. Rev. 417, 436 (1965)). ↑
  23. See EPA v. Mink, 410 U.S. 73, 79 (1973). ↑
  24. Dep’t of the Air Force v. Rose, 425 U.S. 352, 361 (1976) (quoting Rose v. Dep’t of the Air Force, 495 F.2d 261, 263 (2d Cir. 1974)). ↑
  25. See Martin E. Halstuk & Charles N. Davis, The Public Interest Be Damned: Lower Court Treatment of the Reporters Committee “Central Purpose” Reformulation, 54 Admin. L. Rev. 983, 991 (2002). ↑
  26. S. Rep. No. 88-1219, at 8 (1964). ↑
  27. Hoefges et al., supra note 14, at 9–10. ↑
  28. Id. Over the ensuing decades, Congress has amended FOIA a number of times in order to generate more disclosure and twice has done so expressly to overrule the Supreme Court. However, these amendments have not significantly dented the advantage that the government enjoys in court. Brinkerhoff, supra note 20, at 610 (citing Laurence Tai, Fast Fixes for FOIA, 52 Harv. J. on Legis. 455, 456–57 (2015)); see also Halstuk, Secrecy Trumps Transparency, supra note 14, at 427–28 (noting that the OPEN Governance Act of 2007, which amended FOIA, improved access to government-held information in a number of ways but still failed to “address systemic obstacles to a transparent government”). ↑
  29. 5 U.S.C. § 552(a)(3)(A)–(B); Hoefges et al., supra note 14, at 10. ↑
  30. 5 U.S.C. § 552(a)(4)(B). ↑
  31. See Brinkerhoff, supra note 20, at 594. Brinkerhoff argues persuasively that a central reason for FOIA’s failure to promote disclosure to the extent Congress intended is its connection to the APA. The judiciary has interpreted FOIA using an approach similar to administrative common law. This approach runs contrary to the statutory text and employs doctrines that empower the executive, leading to a weakening of FOIA’s presumption in favor of disclosure and giving the government a marked advantage in litigation. This Note does not touch on FOIA’s background of administrative law. Rather, it examines one way in which the Supreme Court has unduly narrowed the two personal privacy exemptions. Still, it is worth bearing in mind that there are larger nondisclosure forces at work that apply to all of FOIA and not simply the two exemptions discussed here. ↑
  32. 5 U.S.C. § 552(b)(1)–(9). ↑
  33. Id. § 552(b)(6). ↑
  34. Id. § 552(b)(7)(C). ↑
  35. See U.S. Dep’t of Def. v. Fed. Lab. Rels. Auth., 510 U.S. 487, 496–97 n.6 (1994) (noting that the differences between the two exemptions are “of little import” because they differ only in “the magnitude of the public interest that is required” to justify disclosure). ↑
  36. See U.S. Dep’t of Just. v. Reps. Comm. for Freedom of the Press, 489 U.S. 749, 756 (1989). ↑
  37. 5 U.S.C. § 552(b)(6). ↑
  38. Id. § 552(b)(7)(C). ↑
  39. Id. § 552(b)(6), (b)(7)(C). ↑
  40. See Reps. Comm., 489 U.S. at 756. Congress’ initial draft of Exemption 7(C) contained the same language and therefore offered the same level of privacy protection as Exemption 6, but President Gerald Ford insisted on more stringent protections in return for his support for the bill. Hoefges et al., supra note 14, at 13 n.67 (citing 120 Cong. Rec. 17,033 (1974); H.R. Rep. No. 93-1380, at 4 (1974) (Conf. Rep.)). ↑
  41. See Hoefges et al., supra note 14, at 11–12 (citing H.R. Rep. No. 89-1497, at 11 (1966)). ↑
  42. H.R. Rep. No. 89-1497, at 11 (1966). ↑
  43. See U.S. Dep’t of Just., Department of Justice Guide to the Freedom of Information Act: Exemption 7(C), at 1–2 (2019), https://www.justice.gov/oip/page/file/1206756/download [https://perma.cc/VE85-4NWX] [hereinafter DOJ Guide to Exemption 7(C)]; Nat’l Archives & Recs. Admin. v. Favish, 541 U.S. 157, 166 (2004). ↑
  44. S. Rep. No. 89-813, at 9 (1965). ↑
  45. Hoefges et al., supra note 14, at 12–13. ↑
  46. See U.S. Dep’t of the Air Force v. Rose, 425 U.S. 352, 361 (1976). ↑
  47. See Brinkerhoff, supra note 20, at 579–82. ↑
  48. See Rose, 425 U.S. at 380–81 (creating a balancing test which weighs public interests against personal-privacy interests); U.S. Dep’t of Just. v. Reps. Comm. for Freedom of the Press, 489 U.S. 749, 776–80 (1989) (defining the scope of public interests and privacy interests). ↑
  49. U.S. Dep’t of State v. Wash. Post Co., 456 U.S. 595, 602 (1982); U.S. Dep’t of Just., Department of Justice Guide to the Freedom of Information Act: Exemption 6, at 4 (2019), https://www.justice.gov/oip/page/file/1207336/download [https://perma.cc/L8BW-S4DL] [hereinafter DOJ Guide to Exemption 6]. ↑
  50. 5 U.S.C. § 552 (b)(6). ↑
  51. Wash. Post, 456 U.S. at 601 (noting that Exemption 6 “surely was not intended to turn upon the label of the file which contains the damaging information”); see also N.Y. Times Co. v. Nat’l Aeronautics & Space Admin., 920 F.2d 1002, 1004, 1009–10 (D.C. Cir. 1990) (en banc) (holding that an audio tape of the final moments of the astronauts aboard the Challenger space shuttle qualified as a “similar file” under Exemption 6). ↑
  52. Wash. Post, 456 U.S at 602. ↑
  53. Id. at 600–02 (rejecting the argument that “similar files” only protect intimate information). How to interpret and apply Exemption 6’s threshold requirement had been a point of contention among the lower courts for some time. A number of lower courts had held that records must contain intimate information before they could fall within the scope of “personnel and medical files and similar files.” See Hoefges et al., supra note 14, at 20. ↑
  54. 5 U.S.C. § 552 (b)(7)(C). ↑
  55. See Lauren Bemis, Note, Balancing a Citizen’s Right to Know with the Privacy of an Innocent Family: The Expansion of the Scope of Exemption 7(C) of the Freedom of Information Act Under National Archives & Records Administration v. Favish, 25 J. Nat’l Ass’n Admin. L. Judges 507, 511 (2005); Richard L. Huff & Craig E. Merutka, Freedom of Information Act Access to Personal Information Contained in Government Records: Public Property or Protected Information?, Army L., Jan. 2010, at 2, 5 (noting that the threshold can be met by more than just criminal investigations). ↑
  56. FBI v. Abramson, 456 U.S. 615, 631–32 (1982). ↑
  57. Huff & Merutka, supra note 54, at 5. ↑
  58. See DOJ Guide to Exemption 6, supra note 48, at 2. ↑
  59. 425 U.S. 352, 372 (1976). ↑
  60. See, e.g., Multi Ag Media LLC v. U.S. Dep’t of Agric., 515 F.3d 1224, 1229–30 (D.C. Cir. 2008) (establishing that any privacy interest greater than de minimis triggers the balancing test); Fed. Lab. Rels. Auth. v. U.S. Dep’t of Veterans Affs., 958 F.2d 503, 510 (2d Cir. 1992) (“Hence, once a more than de minimis privacy interest is implicated the competing interests at stake must be balanced in order to decide whether disclosure is permitted under FOIA.”); see also DOJ Guide to Exemption 6, supra note 48, at 71–72; DOJ Guide to Exemption 7(C), supra note 42, at 27. ↑
  61. U.S. Dep’t of Def. v. Fed. Lab. Rels. Auth., 510 U.S. 487, 505 (1994) (Ginsburg, J., concurring in the judgement). ↑
  62. 489 U.S. 749, 763, 769 (1989). ↑
  63. Id. at 763. ↑
  64. Id. at 775; see also id. at 774 (“FOIA’s central purpose is to ensure that the Government’s activities be opened to the sharp eye of public scrutiny, not that information about private citizens that happens to be in the warehouse of the Government be so disclosed.”). The Supreme Court’s core purpose doctrine is also often called the central purpose test. The two phrases are interchangeable. ↑
  65. See Hoefges et al., supra note 14, at 56–57. ↑
  66. For a few critiques, see Hoefges et al., supra note 14, at 25–26; Beall, supra note 14, at 1258; Halstuk, supra note 14, at 463–68. Reporters Committee was at least partially a response to the flood of FOIA requests by private individuals seeking information only for their own benefit. The core purpose doctrine prevents these kinds of requests. See infra note 170 and accompanying text. ↑
  67. U.S. Dep’t of Def. v. Fed. Lab. Rels. Auth., 510 U.S. 487, 507–08 (Ginsburg, J., concurring in the judgement). ↑
  68. Id. at 502 (withholding disclosure of home addresses); N.Y. Times Co. v. Nat’l Aeronautics & Space Admin., 782 F. Supp. 628, 633 (D.D.C. 1991) (withholding disclosure of recordings of the astronauts aboard the Challenger); World Pub’g Co. v. U.S. Dep’t of Just., 672 F.3d 825, 831–32 (10th Cir. 2012) (withholding “mug shots” of arrestees). Courts also routinely protect more mundane information such as social security numbers, telephone numbers, and medical information. See DOJ Guide to Exemption 6, supra note 48, at 73–75 for a more thorough list. ↑
  69. 502 U.S. 164 (1991). ↑
  70. Id. at 178–79. ↑
  71. Id. at 166. ↑
  72. Id. at 167–69. ↑
  73. Ray v. U.S. Dep’t of Just., 908 F.2d 1549, 1554–55 (11th Cir. 1990). ↑
  74. Id. at 1554. ↑
  75. Id. at 1555–56. ↑
  76. Ray, 502 U.S. at 176–77. ↑
  77. Id. ↑
  78. Id. ↑
  79. See id. at 180–81 (Scalia, J., concurring in part and concurring in the judgement). ↑
  80. Id. at 178–79. ↑
  81. Id. at 178. ↑
  82. Id. at 178–79. ↑
  83. Id. at 178. ↑
  84. Id. at 179. ↑
  85. Id. ↑
  86. Id. ↑
  87. Id. See the discussion of Favish, infra at Section III.C, for the Court’s most recent guidance on what evidence can overcome the presumption of legitimacy. ↑
  88. Id. at 180 (Scalia, J., concurring in part and in judgement) (“The majority does not, in my view, refute the persuasive contention that consideration of derivative uses, whether to establish a public interest or to establish an invasion of privacy, is impermissible.”). ↑
  89. Id. ↑
  90. Id. at 180–81. ↑
  91. Id. ↑
  92. Id.; see also Eric J. Sinrod, Blocking Access to Government Information Under the New Personal Privacy Rule, 24 Seton Hall L. Rev. 214, 226 (1993) (noting the Court’s double standard on the derivative use issue). ↑
  93. Ray, 502 U.S. at 182. ↑
  94. The one exception to this expansion of privacy rights came in the Court’s most recent privacy exemption case, FCC v. AT&T Inc., 562 U.S. 397 (2011). In this decision, the Court held that “personal privacy” as protected by Exemption 7(C) does not extend to corporations. Because the Court found that the exemption did not apply, that case does not impact the derivative use issue. ↑
  95. 510 U.S. 487 (1994). ↑
  96. Id. at 487, 497. ↑
  97. Id. at 490 (quoting 5 U.S.C. § 7114(b)(4)). ↑
  98. Id. at 490–91. ↑
  99. Id. at 491–92. ↑
  100. Id. at 495. ↑
  101. Id. at 497. ↑
  102. Id. ↑
  103. Id. at 502. ↑
  104. See Karl J. Sanders, Note, FOIA v. Federal Sector Labor Law: Which “Public Interest” Prevails? 62 U. Cin. L. Rev. 787, 813–15 (1993) (arguing that the facts of FLRA presented a strong opportunity for considering derivative benefits). ↑
  105. Fed. Lab. Rels. Auth., 510 U.S. at 500 (quoting U.S. Dep’t of Just. v. Reps. Comm., 489 U.S. 749, 763 (1989)). ↑
  106. Id. at 501. ↑
  107. Id. In contrast, the Fifth Circuit had found it hard to see how receiving mail could ever be an unwarranted invasion of privacy. Anyone uninterested in the mail could simply “send it to the circular file.” Fed. Lab. Rels. Auth. v. U.S. Dep’t of Def., 975 F.2d 1105, 1110 (5th Cir. 1992). ↑
  108. Justice Ginsburg, although concurring in the judgement, wrote separately to express her unease about the direction of the Court’s FOIA jurisprudence. Fed. Lab. Rels. Auth., 510 U.S. at 504–09 (Ginsburg, J., concurring in the judgement). She observed that Reporters Committee had “changed the FOIA calculus” by implementing a core purpose doctrine that had no origin in the statutory language. Id. at 505–07. Nevertheless, she concurred because she felt that Reporters Committee was controlling precedent and that the other members of the Court were committed to preserving it. Id. at 509. ↑
  109. Bibles v. Or. Nat’l Desert Ass’n, 519 U.S. 355, 355–56 (1997) (per curiam). ↑
  110. Or. Nat’l Desert Ass’n v. Bibles, 83 F.3d 1168, 1169–71 (9th Cir. 1996), rev’d, 519 U.S. 355 (1997). ↑
  111. Id. at 1171. ↑
  112. Bibles, 519 U.S. at 355–56. ↑
  113. Id. ↑
  114. Nat’l Archives & Recs. Admin. v. Favish, 541 U.S. 157, 158 (2004). ↑
  115. Id. at 172. While Favish altered the Court’s doctrine in important ways, it left the basic foundation of Reporters Committee intact despite an amicus brief arguing that a recent amendment to FOIA effectively overruled the core purpose doctrine. Brief for Reporters Committee for Freedom of the Press as Amicus Curiae at 24, Nat’l Archives & Recs. Admin. v. Favish, 541 U.S. 157 (2004) (No. 02-954). When Congress amended FOIA to clarify that it also extended to records in an electronic format, it added that the purpose of the statute was to provide a right to access non-exempt records “for any public or private purpose.” Pub. L. No. 104-231, § 2(a)(1), 110 Stat. 3048 (1996) (emphasis added). Senator Patrick Leahy, who introduced the amendment, wrote in a Senate report that this language was specifically intended to counter the Court’s erroneous core purpose doctrine, but the Court brushed past this without comment in Favish. See S. Rep. No. 104-272, at 26–27 (1996); Halstuk & Davis, Public Interest Be Damned, supra note 24, at 1015–16. ↑
  116. Favish, 541 U.S. at 174–75. ↑
  117. See U.S. Dep’t of Just. Off. of Info. & Priv., Supreme Court Decides to Hear “Survivor Privacy” Case (2003), https://www.justice.gov/archive/oip/foiapost/2003foiapost17.htm [https://perma.cc/48K3-SHTX]. ↑
  118. Favish, 541 U.S. at 161–64. ↑
  119. Id. at 165. ↑
  120. Id. at 165–69. ↑
  121. Id. at 166. ↑
  122. Id. at 166–67. ↑
  123. Id. at 173–75. ↑
  124. Id. at 174. The Department of Justice has found that most plaintiffs fail to meet this heightened evidentiary standard. DOJ Guide to Exemption 6, supra note 48, at 67. However, for one example in which this standard was found to have been met, see Union Leader Corp. v. United States Department of Homeland Security, 749 F.3d 45 (1st Cir. 2014), discussed infra at Section V.D. ↑
  125. Favish, 541 U.S. at 174, 175. The Court’s requirement places requestors in a Catch-22. To be allowed to investigate government misconduct, they must first be able to offer significant evidence of government misconduct. This requirement, while tracking with common sense by refusing to let bare allegations trump concrete privacy interests, has no roots in FOIA’s text. See Halstuk, Secrecy Trumps Transparency, supra note 14, at 468. ↑
  126. Favish, 541 U.S. at 175. ↑
  127. Id. at 172. ↑
  128. Id. ↑
  129. Id. While the Court contextualized its requirement as applying to Exemption 7(C), it is probable that it would interpret Exemption 6 in the same way because of their similarity, which the Court has repeatedly recognized. See Fed. Lab. Rels. Auth., 510 U.S. at 496 n.6 (explaining that the difference between the two exemptions is purely in the magnitude, not kind, of privacy protection provided). ↑
  130. Bemis, supra note 54, at 539–40. ↑
  131. See Fed. Lab. Rels. Auth., 510 U.S. at 507 (Ginsburg, J., concurring in the judgement) (“A FOIA requester need not show in the first instance that disclosure would serve any public purpose.” (emphasis added)). ↑
  132. 5 U.S.C. § 552(a)(4)(B). ↑
  133. U.S. Dep’t of Just., Freedom of Information Act Guide & Privacy Act Overview 432–33, 432 n.47 (Pamela Maida ed., May 2004 ed.) (citing Nat’l Ass’n of Retired Fed. Emps. v. Horner, 879 F.2d 873, 878 (D.C. Cir. 1989)). ↑
  134. See the discussion of Ray supra Part II for a full analysis of the Scalia-Kennedy concurrence. ↑
  135. See supra notes 122–25 and accompanying text. ↑
  136. U.S. Dep’t of State v. Ray, 502 U.S. 164, 178–79 (1991). ↑
  137. Nat’l Archives & Recs. Admin. v. Favish, 541 U.S. 157, 172–75 (2004). ↑
  138. Id. ↑
  139. Id. at 172–73 (“We do not in this single decision attempt to define the reasons that will suffice, or the necessary nexus between the requested information and the asserted public interest that would be advanced by disclosure.”). ↑
  140. See Hoefges et al., supra note 14, at 39. While this was noted pre-Favish, it is still true after that case. ↑
  141. Brinkerhoff, supra note 20, at 577. ↑
  142. See Wash. Post Co. v. U.S. Dep’t of Health & Hum. Servs., 690 F.2d 252, 261 (D.C. Cir. 1982). ↑
  143. See Lillian R. BeVier, Information About Individuals in the Hands of Government: Some Reflections on Mechanisms for Privacy Protection, 4 Wm. & Mary Bill Rts. J. 455, 485 (1995) (arguing that the Supreme Court had turned the privacy exemptions into shields for nondisclosure). ↑
  144. Cf. Nat’l Ass’n of Retired Fed. Emps. v. Horner, 879 F.2d 873, 878 (D.C. Cir. 1989) (“Where there is a substantial probability that disclosure will cause an interference with personal privacy, it matters not that there may be two or three links in the causal chain.”). ↑
  145. See U.S. Dep’t of State v. Ray, 502 U.S. 164, 181 (1991) (Scalia, J., concurring). ↑
  146. See supra Part III and Section IV.C for a discussion of the Court’s implicit acceptance of derivative benefits in certain circumstances. ↑
  147. Bibles v. Or. Nat’l Desert Ass’n, 519 U.S. 355, 355–56 (1997) (per curiam). ↑
  148. See Nat’l Archives & Recs. Admin. v. Favish, 541 U.S. 157, 172–74 (2004). ↑
  149. See, e.g., Hopkins v. U.S. Dep’t of Hous. & Urb. Dev., 929 F.2d 81, 88 (2d Cir. 1991) (dismissing a derivative benefits argument because “[w]ere we to compel disclosure of personal information with so attenuated a relationship to governmental activity, however, we would open the door to disclosure of virtually all personal information, thereby eviscerating the FOIA privacy exemptions”). ↑
  150. See Favish, 541 U.S. at 174. ↑
  151. Id. at 170–72. ↑
  152. See U.S. Dep’t of Def. v. Fed. Lab. Rels. Auth., 510 U.S. 487, 508–09 (1994) (Ginsburg, J., concurring in the judgement). ↑
  153. See Navigator Publ’g v. U.S. Dep’t of Transp., 146 F. Supp. 2d 68, 70–71 (D. Me. 2001) (rejecting an argument based on derivative benefits in part because the court doubted the requestor’s sincerity, believing that the requestor would use the requested information for personal profit rather than to vindicate the public interest). ↑
  154. See, e.g., Hoefges et al., supra note 14, at 60–63 (advocating for an expansive conception of public interest). ↑
  155. See John Doe Agency v. John Doe Corp., 493 U.S. 146, 161 (1989) (Scalia, J., dissenting) (remarking that courts treat the need to narrowly construe FOIA’s exemptions as “a formula to be recited rather than a principle to be followed”); Fed. Lab. Rels. Auth., 510 U.S. at 507 (Ginsburg, J., concurring in the judgement) (“The Reporters Committee ‘core purpose’ limitation is not found in FOIA’s language.”). ↑
  156. Whether this shield should have been created by Congress rather than the Supreme Court is irrelevant to the overall point that the core purpose doctrine has certain benefits as a matter of policy. Early commentators on FOIA often viewed it as a sort of Pandora’s box which had released all number of unforeseen consequences and threatened to inundate government agencies with requests. Reporters Committee was an attempt to put the lid back on the box. See Beall, supra note 14, at 1253–56. ↑
  157. See Hoefges et al., supra note 14, at 10 n.49. ↑
  158. See Nat’l Archives & Recs. Admin. v. Favish, 541 U.S. 157, 170 (2004). ↑
  159. See Manna v. U.S. Dep’t of Just., 51 F.3d 1158, 1165 (3d Cir. 1995). ↑
  160. Other scholars have suggested rebalancing the disclosure scales through an opposite approach: narrowing the relevant privacy interests rather than expanding the conception of the public interest. See Hoefges et al., supra note 14, at 63. Under this approach, the privacy exemptions cannot be triggered merely by the existence of personally identifiable information in the requested documents. Instead, the government can only invoke the privacy exemptions if the requested documents contain personal information that is intimate in nature or inherently private. Id. at 63 & n.435. While such a proposal is outside the scope of this article, there are reasons to believe that the Supreme Court has expanded the protected zone of privacy beyond the statute’s text and purpose. However, this proposal runs into the same difficulty as the calls to overturn the core purpose doctrine—it would require dismantling Reporters Committee, which is highly unlikely. See U.S. Dep’t of Just. v. Reps. Comm. for Freedom of the Press, 489 U.S. 749, 763 (1989) (indicating that FOIA’s privacy exemptions protect more than what is inherently private). ↑
  161. A number of district courts across the country have also allowed disclosure based on derivative benefits. For a substantial but far from comprehensive list, see DOJ Guide to Exemption 6, supra note 48, at 57–59. ↑
  162. In contrast to the limited caselaw on derivative benefits, consideration of derivative privacy harms is ubiquitous among the circuits, even if courts seldom acknowledge it as such. See, e.g., Prudential Locations LLC v. U.S. Dep’t of Hous. & Urb. Dev., 739 F.3d 424, 426, 431 (9th Cir. 2013) (finding that disclosing the names of those who had alleged a certain business had broken federal law would risk exposing them to retaliation, stigma, and harassment); Forest Guardians v. U.S. FEMA, 410 F.3d 1214, 1216, 1220 (10th Cir. 2005) (finding that privacy interests would be invaded by disclosure of electronic mapping files because lot numbers could be manipulated to reveal home addresses). Only the Fifth Circuit, citing the Ray concurrence approvingly, has expressed doubt over whether derivative harms should be accorded any weight. See Cooper Cameron Corp. v. U.S. Dep’t of Lab., 280 F.3d 539, 554 n.68 (5th Cir. 2002) (noting that the court’s ruling accorded with the Ray concurrence); Sherman v. U.S. Dep’t of the Army, 244 F.3d 357, 365 n.14 (5th Cir. 2001) (citing the Ray concurrence and expressly disclaiming that Court’s holding involved weighing derivative harms). However, the Fifth Circuit has not addressed the issue since the Supreme Court’s decision in Favish, and one of its district courts has more recently found that weighing derivative harms is permitted. See Inclusive Cmtys. Project, Inc. v. U.S. Dep’t of Hous. & Urb. Dev., No. 3:14-cv-3333, 2016 U.S. Dist. LEXIS 123779, at *21–22 (N.D. Tex. Sept. 13, 2016) (choosing to consider derivative privacy harms because the Supreme Court and the D.C. Circuit do so). Because derivative harms are not a serious point of contention among the circuits, the following discussion is limited to derivative benefits. ↑
  163. See, e.g., Beall, supra note 14, at 1259–60 (arguing that FLRA was the death knell for derivative benefits). ↑
  164. ACLU v. U.S. Dep’t of Just., 655 F.3d 1, 15 (D.C. Cir. 2011). ↑
  165. See Cooper Cameron Corp., 280 F.3d at 543. ↑
  166. ACLU, 655 F.3d at 3. ↑
  167. Id. at 3–4. ↑
  168. Id. at 4–5. ↑
  169. Id. at 5. ↑
  170. Id. at 6–12. ↑
  171. Id. at 11–12. But cf. Union Leader Corp. v. U.S. Dep’t of Homeland Sec., 749 F.3d 45, 53 (1st Cir. 2014) (finding that because the requestor did not intend to directly contact the subjects of the requested documents, the privacy interests at stake were diminished). ↑
  172. ACLU, 655 F.3d at 15. ↑
  173. Id. at 13–14. ↑
  174. Id. at 15. ↑
  175. Id. at 15–16. ↑
  176. See Multi AG Media LLC v. U.S. Dep’t of Agric., 515 F.3d 1224, 1226 (D.C. Cir. 2008) (allowing disclosure on a derivative benefits theory); Painting & Drywall Work Pres. Fund v. U.S. Dep’t of Hous. & Urb. Dev., 936 F.2d 1300 (D.C. Cir. 1991) (denying disclosure but finding that the ability of a journalist to use the requested information to further investigate governmental action weighed in favor of the public interest). ↑
  177. Multi AG Media LLC, 515 F.3d at 1224. ↑
  178. Id. at 1231–32. ↑
  179. Id. at 1231. But see McCutchen v. Dep’t of Health & Hum. Serv., 30 F.3d 183, 188 (D.C. Cir. 1994) (observing that the mere desire to oversee how the government is performing its duties does not create a public interest that can outweigh privacy concerns). ↑
  180. See Lepelletier v. FDIC, 164 F.3d 37, 48 (D.C. Cir. 1999); see also Halstuk & Davis, The Public Interest Be Damned, supra note 24, at 1011–13. ↑
  181. Lepelletier, 164 F.3d at 39. ↑
  182. Id. at 47. ↑
  183. Id. at 48. ↑
  184. Id. ↑
  185. Id. The D.C. Circuit also forbade the district court from releasing the depositors’ names in conjunction with the amount owed to them by the government, another sign that it believed the depositors did possess a privacy interest. Id. ↑
  186. See Long v. Off. of Pers. Mgmt., 692 F.3d 185, 198 (2d Cir. 2012); Associated Press v. U.S. Dep’t of Def., 554 F.3d 274, 293 (2d Cir. 2009); Hopkins v. U.S. Dep’t of Hous. & Dev., 929 F.2d 81, 88–89 (2d Cir. 1991). ↑
  187. Hopkins, 929 F.2d at 82. ↑
  188. Id. at 88. ↑
  189. Id. ↑
  190. Associated Press, 554 F.3d at 290 (“Although this Court has not addressed the issue of whether a derivative use theory is cognizable under FOIA as a valid way by which to assert that a public interest is furthered, we have indicated that it may not be.”). ↑
  191. Id. at 279–80. ↑
  192. Id. at 290. See also Long v. Off. of Pers. Mgmt., 692 F.3d 185, 194 (2d Cir. 2012) (“The use of personnel files to contact government employees in the hopes of uncovering malfeasance does not serve FOIA’s objectives.”). But see Kuzma v. U.S. Dep’t of Just., 692 F. App’x 30, 35 (2d Cir. 2017) (rejecting a derivative use argument that would merely “provide further avenues for research” into alleged government misconduct). While the Second Circuit’s comments here seem broad enough to go beyond skepticism just related to direct contact, the plaintiff’s derivative benefits argument was so threadbare and the court’s analysis so perfunctory that it is unlikely that this case hints at anything larger. See id. ↑
  193. See Forest Servs. Emps. v. U.S. Forest Serv., 524 F.3d 1021, 1028 (9th Cir. 2008) (rejecting a direct contact argument); Lahr v. Nat’l Transp. Safety Bd., 569 F.3d 964, 979 (9th Cir. 2009) (same). ↑
  194. See Elec. Frontier Found. v. Off. of the Dir. of Nat’l Intel., 639 F.3d 876, 888–89 (9th Cir. 2010); Rosenfield v. U.S. Dep’t of Just., 57 F.3d 803, 815 (9th Cir. 1995). ↑
  195. See Forest Servs., 524 F.3d at 1027–28. ↑
  196. Id at 1028. ↑
  197. Id. See also Lahr, 569 F.3d at 975 (finding Forest Services to be binding precedent and similarly denying disclosure where the public interest could only be advanced at the expense of privacy via direct contact); Painting Indus. of Haw. Mkt. Recovery Fund v. U.S. Dep’t of the Air Force, 26 F.3d 1479, 1485 (9th Cir. 1994) (rejecting a derivative benefits argument predicated on direct contact because the public interest and the privacy interest were “intertwined”). ↑
  198. See Elec. Frontier Found., 639 F.3d at 887–88; see also Rosenfield, 57 F.3d 803, 815 (allowing disclosure of names so that the public could ascertain whether the FBI improperly targeted the leadership of a political movement). ↑
  199. Elec. Frontier Found., 639 F.3d at 880–81. ↑
  200. Id. at 888. ↑
  201. Id. at 887–88. ↑
  202. Union Leader Corp. v. U.S. Dep’t of Homeland Sec., 749 F.3d 45, 48 (1st Cir. 2014). ↑
  203. For analysis of the evidentiary standards laid out by the Supreme Court in Favish, see the discussion supra Section III.C. ↑
  204. Union Leader, 749 F.3d at 54. ↑
  205. Id. at 55–56. ↑
  206. Id. at 56. ↑
  207. News-Press v. U.S. Dep’t of Homeland Sec., 489 F.3d 1173, 1174 (11th Cir. 2007). The Eleventh Circuit also allowed disclosure based on derivative benefits in Ray before the Supreme Court reversed. Because of that reasoning, at least one district court in the aftermath of Ray found that considering derivative benefits was still permissible until the Eleventh Circuit ruled otherwise, since the Supreme Court had declined to answer that question. See Ray v. U.S. Dep’t of Just., INS, 852 F. Supp. 1558, 1564–65 (S.D. Fla. 1994). ↑
  208. News-Press, 489 F.3d at 1177–78. ↑
  209. Id. at 1178–81. ↑
  210. Id. at 1192–93. The court reached its decision even while knowing that the newspapers would likely need to contact some recipients directly in the course of their investigation. See id. at 1203. This stands in contrast to the decisions of the Ninth Circuit, which generally do not allow disclosure where the derivative benefits entail direct contact with the identifiable subjects of the requested documents. ↑
  211. Id. at 1205. ↑
  212. News-Press v. U.S. Dep’t of Homeland Sec., 2005 U.S. Dist. LEXIS 27492, at *54 (M.D. Fla. Nov. 4, 2005). ↑

Where Nature’s Rights Go Wrong

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There is an increasing push by environmentalists, scholars, and some politicians in favor of a form of environmental rights referred to as “rights of nature” or “nature’s rights.” A milestone victory in this movement was the incorporation of rights of nature into the Ecuadorian constitution in 2008. However, there are reasons to be skeptical that these environmental rights will have the kinds of transformative effects that are anticipated by their most enthusiastic proponents. From a conceptual perspective, a number of difficulties arise when rights (or other forms of legal or moral consideration) are extended to non-human biological aggregates, such as species or ecosystems. There are two very general strategies for conceiving of the interests of such aggregates: a “bottom-up” model that grounds interest in specific aggregates (such as particular species or ecosystems), and then attempts to compare various effects on those specific aggregates; and a “top-down” model that grounds interests in the entire “biotic community.” Either approach faces serious challenges. Nature’s rights have also proven difficult to implement in practice. Courts in Ecuador, the country with the most experience litigating these rights, have had a difficult time using the construct of nature’s rights in a non-arbitrary fashion. The shortcomings of nature’s rights, however, do not mean that constitutional reform cannot be used to promote environmental goals. Recent work in comparative constitutional law indicates that organizational rights have a greater likelihood of achieving meaningful results than even quite concrete substantive rights. Protection for the role of environmental groups within civil society may, then, serve as the most effective way for constitutional reform to vindicate the interests that motivate the nature’s rights movement.

Introduction

One of the most basic questions in environmental law, policy, and ethics is whether human societies owe obligations to non-humans. For the most part, U.S. environmental law has embraced a human-centered perspective, which justifies environmental protection primarily on the basis of benefits delivered to human beings. But, from the beginnings of the modern environmental movement, there have been efforts to promote an alternative, bio-centered view. Justice Douglas’s dissent in Sierra Club v. Morton—in which he called on the Court to grant legal personhood to “valleys, alpine meadows, rivers, lakes, estuaries, beaches, ridges, groves of trees, swampland, or even air that feels the destructive pressures of modern technology and modern life”—provides a canonical expression of the path not taken.1 1.Sierra Club v. Morton, 405 U.S. 727, 742–43 (1972) (Douglas, J., dissenting). For a discussion of the Court’s reluctance to take up a biocentric view, see Jonathan Z. Cannon, Environment in the Balance: The Green Movement and the Supreme Court (2015).Show More

In recent years, this bio-centered perspective has gained renewed traction in global environmental law discourse, especially through a new generation of constitutional and statutory rights extended directly to natural entities. A particular watershed moment came in 2008 when the country of Ecuador became the first in the world to recognize rights for nature in its constitution.2 2.See infra Part I. We use the phrase “rights for nature” and “nature’s rights” interchangeably throughout this Article.Show More These new rights have come at a time of increasing frustration with the failure of legal institutions to come to terms with grave environmental threats such as climate change.3 3.See, e.g., Roger Hallam, Common Sense for the 21st Century: Only Nonviolent Rebellion Can Now Stop Climate Breakdown and Social Collapse (2019).Show More Activists, commentators, and scholars have argued that “nature’s rights” may be able to achieve the kind of sustained and transformative environmental progress that has so far proven elusive.4 4.See, e.g., David R. Boyd, The Rights of Nature: A Legal Revolution That Could Save the World (2017); infra Section IV.A.Show More

In this Article, we provide a dose of skepticism.5 5.Other scholars have raised a number of general problems with substantive environmental rights. See, e.g., James R. May & Erin Daly, Global Environmental Constitutionalism 59 (2015) (collecting sources critical of constitutionalizing environmental rights); Tim Hayward, Constitutional Environmental Rights 74–75 (2004) (noting that substantive environmental rights might have an atomizing effect as collective demands for justice become fragmented into individual litigation and claims); César Rodríguez-Garavito, A Human Right to a Healthy Environment?, in The Human Right to a Healthy Environment 155, 166 (John H. Knox & Ramin Pejan eds., 2018) (arguing that substantive environmental rights “fall[] short of . . . transformational promises, as the language of rights tends to be more definitive than the complications of implementation warrant”). In this Article, we focus on the subclass of environmental rights that grant cognizable legal rights and remedies to non-human entities, especially aggregates such as species, ecosystems, or rivers.Show More A defining feature of environmental policy is that it touches on complex, interconnected systems. As a consequence, environmental policy tends to have effects across a large number of (at least arguably) morally relevant dimensions. Outcomes that are affected by environmental policies include many features of human health and well-being, biodiversity and extinction, the protection of wilderness, and the stability of ecosystems. The natural world is not a monolithic “it,” but a “they” in the broadest possible understanding of that term.6 6.Cf. Kenneth A. Shepsle, Congress Is a “They,” Not an “It”: Legislative Intent as Oxymoron, 12 Int’l Rev. L. & Econ. 239 (1992) (examining the difficulty of attributing intentionality to collective entities in the context of statutory interpretation).Show More This basic, pragmatic reality means that the process of environmental policymaking often requires that comparisons be made across alternatives that have both positive and negative effects on human beings and the non-human world.7 7.As is discussed in more detail below, the use of the language of rights does not obviate the need for comparison. See infra Part II. If anything, the notion of legal or moral rights simply makes the notion of comparison more complicated by introducing ideas such as lexical priority. See generally Jeremy Waldron, Rights in Conflict, 99 Ethics 503 (1989) (exploring possibilities of moral reasoning in cases of rights conflict).Show More

A common example of an environmental policy choice that governments have faced many times is whether or not to grant a permit for a hydroelectric dam. Granting a permit may further economic development for some while destroying the property of others; the dam may reduce carbon dioxide emissions by displacing fossil fuel electricity generation, but its construction may also wipe out the habitat of an endangered species. If the concept of nature’s rights is not to be entirely paralyzing, it must admit of some way for these heterogeneous effects to be balanced against each other to decide whether, all things considered, it is better to grant the permit or not.

This balancing analysis requires that the various entities that are affected by a policy be defined and that the effects of the policy on these entities be compared. Each of these steps raises difficulties for a nature’s rights framework. At the definitional step, the entities in question will frequently be aggregates, such as ecosystems or species.8 8.For purposes of this Article, we focus on an understanding of nature’s rights that involves biological aggregates such as species. An alternative formulation of nature’s rights could ignore such aggregates and instead deal exclusively with individual organisms. Such a view could largely, or entirely, overlap with the animal welfare perspective promoted by figures such as Peter Singer. See Peter Singer, Animal Liberation (1975). Some efforts have been made to articulate a framework for considering animal welfare in this manner. See, e.g., Alexis Carlier & Nicolas Treich, Directly Valuing Animal Welfare in (Environmental) Economics, 14 Int’l Rev. Env’t & Res. Econ. 113 (2020); Gary E. Varner, Personhood, Ethics, and Animal Cognition: Situating Animals in Hare’s Two Level Utilitarianism (2012). But nature’s rights, at least as it has been articulated so far, generally take as rights bearers aggregates such as species, ecosystems, rivers, and even the totality of nature. This makes them very different from an expanded welfarism that accounts for the pain and pleasures of non-human organisms. See infra notes 93–101 and accompanying text.Show More There may be multiple ways of drawing lines around these aggregates, and estimates of the net consequences of a policy may be sensitive to these definitions. If there is no principled way to decide how to define the relevant entities, the decision of whether a policy is, on balance, desirable will be contingent on arbitrary line-drawing choices.

Even if the entities could be defined in a satisfactory fashion, making comparisons across entities raises additional challenges. Policy analyses limited just to effects on humans raise the classic problem of interpersonal comparisons. Solutions to this problem are generally grounded in the mutual intelligibility of people’s motivations, interests, and reasons. A shared and comprehensible intersubjectivity that allows for deliberation and bargaining undergirds notions such as the social welfare function and the social contract, which are the dominant approaches for evaluating public policy choices. An equivalent shared understanding with entities like species, ecosystems, and landscapes is missing, leaving no clear foundation for an analytic structure capable of rendering effects across these entities comparable.9 9.By contrast, for ethical systems that embrace animals as worthy of moral consideration, the shared experience of pain and pleasure is a natural starting place for a balancing analysis. See Singer, supra note 8, at 8 (“The capacity for suffering and enjoyment is a prerequisite for having interests at all . . . .”). Of course, profound differences between humans and non-human animals also raise a host of challenges in attempting to make moral judgment in the face of trans-species effects. See Douglas A. Kysar, Regulating from Nowhere: Environmental Law and the Search for Objectivity 195 (2010) (noting a “sense of awe and incomprehension regarding the other’s being”). See generally Matthew Calarco, Zoographies: The Question of the Animal from Heidegger to Derrida (2008) (illustrating difficulties in moral reasoning about animals).Show More

This problem can be restated as one arising from multi-dimensionality. In standard forms of environmental policy analysis, the heterogeneous effects associated with a government decision are reduced to a single dimension along which comparisons can be made.10 10.See generally EPA, Guidelines for Preparing Economic Analyses 7-1 (2010) (“Estimating benefits in monetary terms allows the comparison of different types of benefits in the same units, and it allows the calculation of net benefits—the sum of all monetized benefits minus the sum of all monetized costs—so that proposed policy changes can be compared to each other and to the baseline scenario.”).Show More As practiced in the United States, that dimension is often a monetary metric based on the affected parties’ willingness to pay.11 11.Id. at 7-6.Show More If non-human entities have their own intrinsic value, above and apart from the value assigned to them by people, then effects on those entities must also be measured along a common dimension to make them comparable. But none of the tools or concepts that are used to translate effects on people to a single dimension can readily be applied to all of the relevant non-human entities. This leaves policymakers with a highly multi-dimensional space where policy comparisons will often be indeterminate. Unless there is some sensible way to reduce the dimensionality used to describe outcomes, then it will often be unclear whether a policy infringes on, promotes, or is neutral with respect to the interests that undergird nature’s rights.12 12.Comparisons of effects on various interests need not be quantitative in nature, but to avoid paralysis, the interpretation of the interests implicated by environmental policy cannot imply that those interests are so strongly incommensurable that it is impossible to evaluate policies with diverse effects.Show More

Moving from the theoretical to the practical, experience with rights for nature has shown that their conceptual deficiencies have led to confusion, inefficiency, and arbitrariness—without any obvious environmental benefit. Multiple litigants pursuing conflicting goals have come to court claiming to speak on behalf of nature’s rights, forcing courts not only to balance heterogeneous effects of policy choices but also to arbitrate between alternative plausible representational claims. Where nature’s rights have been litigated, courts have struggled mightily to make sense of the inquiry before them.13 13.These early struggles do not necessarily mean that courts will never land on a well-founded and workable understanding of nature’s rights. Indeed, one way that nature’s rights provisions could be defended is that they pose the question to courts of how best to articulate the obligations of human societies to the natural world. On this account, at this stage in their development, nature’s rights provisions are not intended to have determinate substantive content. Rather, they initiate a deliberative process involving courts, as well as other social actors, focused on the appropriate relationship between humans and nature. The substantive content will emerge from this process over time. But, inasmuch as the concept of nature’s rights continues to involve intrinsic value placed on biological aggregates such as species, ecosystems, or nature itself, it will face the challenges raised in Parts II and III below.Show More

For all these reasons, rights for nature are unlikely to provide the solution that frustrated environmentalists seek.14 14.We draw a sharp distinction between nature’s rights and animal rights. See supra note 8. Under the former, biological aggregates of various sorts—including species, ecosystems, rivers, landscapes, or all of nature—are understood as having rights or interests. Under the latter, individual organisms (typically animals) are understood as having rights or interests. Our critique is focused on nature’s rights and leaves to the side the question of whether and how the rights, interests, or well-being of individual organisms could or should be considered when evaluating the desirability of environmental policy.Show More But that does not mean that constitutional rights and courts are a dead-end for environmental progress. Recent work in comparative constitutional law has focused on the characteristics of constitutional rights that are most associated with success. In general, that literature finds that provisions that protect organizations are most likely to be effective.15 15.See Kevin L. Cope, Cosette D. Creamer & Mila Versteeg, Empirical Studies of Human Rights Law, 15 Ann. Rev. L. & Soc. Sci. 155, 171 (2019) (summarizing relevant research); Georg Vanberg, Substance vs. Procedure: Constitutional Enforcement and Constitutional Choice, 80 J. Econ. Behav. & Org. 309, 317 (2011). See generally Adam S. Chilton & Mila Versteeg, Do Constitutional Rights Make a Difference?, 60 Am. J. Pol. Sci. 575 (2016) (providing an in-depth empirical examination of the effectiveness of constitutional rights).Show More There is a lesson here for efforts to use constitution-making to achieve environmental goals. Concrete rights for the people and organizations that seek to promote a healthy relationship with the environment are more likely to lead to results than guarantees to abstract non-human entities.

The remainder of this Article proceeds as follows. Part I discusses the spread of rights for nature as part of a more general trend toward the expansion of environmental rights. Many activists, commentators, and courts have enthusiastically embraced rights for nature, in part due to frustration with traditional forms of environmental governance. Starting from their origin in Ecuador, rights for nature have been adopted in a variety of jurisdictions at the international, national, and local levels. These rights are now the topic of serious discussion by international institutions and have been promoted by many academics and environmental organizations.

Part II focuses on conceptual challenges that arise when rights for nature are understood in a bottom-up manner, as arising from the rights (or interests) of biological aggregates such as species or ecosystems.16 16.As is discussed below, we borrow from Raz to treat nature’s rights as implying that entities of some kind are the bearers of interests of sufficient moral weight to justify assigning a duty to some other. See Joseph Raz, The Morality of Freedom 166 (1988). For our purposes, we set aside the additional complications associated with legal or moral reasoning about rights, and instead assume that if the underlying interests can be articulated in a meaningful way, then those additional difficulties can be addressed. See infra Part II.Show More The core issue is that environmental disagreements often involve conflicts within the domain of nature, implying that any option selected by a decision maker will create both benefits and harms for entities—such as species, ecosystems, and landscapes—that make up the natural world. When such conflicts arise between the rights (or interests) of some entities and others, decision makers must engage in some form of balancing. Drawing from work in moral philosophy and welfare economics, we examine the difficulties of deriving a coherent framework for this balancing inquiry. In particular, we raise difficulties associated with defining the relevant entities and their interests. Without a framework for balancing harms against each other when rights (or interests) conflict, decision makers are left with no criteria that can be used to arbitrate disputes in many concrete cases.

Part III examines whether some of the problems discussed in Part II can be resolved by understanding nature’s rights not as the aggregation of the rights of other entities, such as species or ecosystems, but in a top-down manner that begins with the biotic community as a whole.17 17.The distinction between a bottom-up and a top-down understanding of nature’s rights tracks the concepts of biocentrism and ecocentrism from the environmental ethics literature. See Dale Jamieson, Ethics and the Environment: An Introduction 145–53 (2008).Show More We raise some initial objections to this approach, which are grounded in the problem of separation: both the need to respect the separate interests of at least some non-human entities and the conceptual difficulty of separating human activity from nature. We then use data from the Yale Environmental Performance Index to test whether there is a single dimension that captures existing metrics for environmental performance. We find that there is not. Finally, we discuss the possibility for a relatively low-dimensional representation of environmental performance to derive a set of “frontiers” that represent a space for nature’s rights. Although this may be the most promising existing path forward, we examine some of its deficiencies.

Part IV examines the application of nature’s rights in practice. We focus on Ecuador, the country with the most practical experience in this area. What we find is not heartening. In the limited number of cases where they have been applied, rights for nature have been used by a variety of groups and individuals, all speaking on behalf of nature, to bring conflicting claims. Facing an impossible situation, courts have done their best, but the results they reach have largely been arbitrary and ungrounded in any meaningful normative criteria. We then offer some justifications for nature’s rights that are not grounded in their immediate practical effect, but rather for their symbolic, expressive, or cultural reform function. This may be the best justification for nature’s rights, although many proponents of these rights focus on more short-term practical effects. We finally conclude with a discussion of lessons that can be learned from recent work in comparative constitutional law for the design of environmental rights. In applying those lessons, we argue that, although there may be a place for nature’s rights in the toolkit as a means of communicating social values and commitments, more targeted rights that provide tangible protections for a robust civil society presence for environmental advocates may be more likely to lead to tangible results.

  1. * Mauricio Guim is an assistant professor of law at the Instituto Tecnológico Autónomo de México (ITAM); Michael A. Livermore is a professor of law at the University of Virginia. We thank participants at workshops held by the University of Texas at Austin School of Law, the University of Kentucky Law School, the American Law and Economics Association, and the Latin American Workshop in Law and Economics for valuable feedback. We also thank Matthew Adler, Jonathan Cannon, Willis Jenkins, Richard L. Revesz, and Mila Versteeg for comments and Austin Hetrick and Libby Murray for research assistance. ↑
  2. Sierra Club v. Morton, 405 U.S. 727, 742–43 (1972) (Douglas, J., dissenting). For a discussion of the Court’s reluctance to take up a biocentric view, see Jonathan Z. Cannon, Environment in the Balance: The Green Movement and the Supreme Court (2015). ↑
  3. See infra Part I. We use the phrase “rights for nature” and “nature’s rights” interchangeably throughout this Article. ↑
  4. See, e.g., Roger Hallam, Common Sense for the 21st Century: Only Nonviolent Rebellion Can Now Stop Climate Breakdown and Social Collapse (2019). ↑
  5. See, e.g., David R. Boyd, The Rights of Nature: A Legal Revolution That Could Save the World (2017); infra Section IV.A. ↑
  6. Other scholars have raised a number of general problems with substantive environmental rights. See, e.g., James R. May & Erin Daly, Global Environmental Constitutionalism 59 (2015) (collecting sources critical of constitutionalizing environmental rights); Tim Hayward, Constitutional Environmental Rights 74–75 (2004) (noting that substantive environmental rights might have an atomizing effect as collective demands for justice become fragmented into individual litigation and claims); César Rodríguez-Garavito, A Human Right to a Healthy Environment?, in The Human Right to a Healthy Environment 155, 166 (John H. Knox & Ramin Pejan eds., 2018) (arguing that substantive environmental rights “fall[] short of . . . transformational promises, as the language of rights tends to be more definitive than the complications of implementation warrant”). In this Article, we focus on the subclass of environmental rights that grant cognizable legal rights and remedies to non-human entities, especially aggregates such as species, ecosystems, or rivers. ↑
  7. Cf. Kenneth A. Shepsle, Congress Is a “They,” Not an “It”: Legislative Intent as Oxymoron, 12 Int’l Rev. L. & Econ. 239 (1992) (examining the difficulty of attributing intentionality to collective entities in the context of statutory interpretation). ↑
  8. As is discussed in more detail below, the use of the language of rights does not obviate the need for comparison. See infra Part II. If anything, the notion of legal or moral rights simply makes the notion of comparison more complicated by introducing ideas such as lexical priority. See generally Jeremy Waldron, Rights in Conflict, 99 Ethics 503 (1989) (exploring possibilities of moral reasoning in cases of rights conflict). ↑
  9. For purposes of this Article, we focus on an understanding of nature’s rights that involves biological aggregates such as species. An alternative formulation of nature’s rights could ignore such aggregates and instead deal exclusively with individual organisms. Such a view could largely, or entirely, overlap with the animal welfare perspective promoted by figures such as Peter Singer. See Peter Singer, Animal Liberation (1975). Some efforts have been made to articulate a framework for considering animal welfare in this manner. See, e.g., Alexis Carlier & Nicolas Treich, Directly Valuing Animal Welfare in (Environmental) Economics, 14 Int’l Rev. Env’t & Res. Econ. 113 (2020); Gary E. Varner, Personhood, Ethics, and Animal Cognition: Situating Animals in Hare’s Two Level Utilitarianism (2012). But nature’s rights, at least as it has been articulated so far, generally take as rights bearers aggregates such as species, ecosystems, rivers, and even the totality of nature. This makes them very different from an expanded welfarism that accounts for the pain and pleasures of non-human organisms. See infra notes 93–101 and accompanying text. ↑
  10. By contrast, for ethical systems that embrace animals as worthy of moral consideration, the shared experience of pain and pleasure is a natural starting place for a balancing analysis. See Singer, supra note 8, at 8 (“The capacity for suffering and enjoyment is a prerequisite for having interests at all . . . .”). Of course, profound differences between humans and non-human animals also raise a host of challenges in attempting to make moral judgment in the face of trans-species effects. See Douglas A. Kysar, Regulating from Nowhere: Environmental Law and the Search for Objectivity 195 (2010) (noting a “sense of awe and incomprehension regarding the other’s being”). See generally Matthew Calarco, Zoographies: The Question of the Animal from Heidegger to Derrida (2008) (illustrating difficulties in moral reasoning about animals). ↑
  11. See generally EPA, Guidelines for Preparing Economic Analyses 7-1 (2010) (“Estimating benefits in monetary terms allows the comparison of different types of benefits in the same units, and it allows the calculation of net benefits—the sum of all monetized benefits minus the sum of all monetized costs—so that proposed policy changes can be compared to each other and to the baseline scenario.”). ↑
  12. Id. at 7-6. ↑
  13. Comparisons of effects on various interests need not be quantitative in nature, but to avoid paralysis, the interpretation of the interests implicated by environmental policy cannot imply that those interests are so strongly incommensurable that it is impossible to evaluate policies with diverse effects. ↑
  14. These early struggles do not necessarily mean that courts will never land on a well-founded and workable understanding of nature’s rights. Indeed, one way that nature’s rights provisions could be defended is that they pose the question to courts of how best to articulate the obligations of human societies to the natural world. On this account, at this stage in their development, nature’s rights provisions are not intended to have determinate substantive content. Rather, they initiate a deliberative process involving courts, as well as other social actors, focused on the appropriate relationship between humans and nature. The substantive content will emerge from this process over time. But, inasmuch as the concept of nature’s rights continues to involve intrinsic value placed on biological aggregates such as species, ecosystems, or nature itself, it will face the challenges raised in Parts II and III below. ↑
  15. We draw a sharp distinction between nature’s rights and animal rights. See supra note 8. Under the former, biological aggregates of various sorts—including species, ecosystems, rivers, landscapes, or all of nature—are understood as having rights or interests. Under the latter, individual organisms (typically animals) are understood as having rights or interests. Our critique is focused on nature’s rights and leaves to the side the question of whether and how the rights, interests, or well-being of individual organisms could or should be considered when evaluating the desirability of environmental policy. ↑
  16. See Kevin L. Cope, Cosette D. Creamer & Mila Versteeg, Empirical Studies of Human Rights Law, 15 Ann. Rev. L. & Soc. Sci. 155, 171 (2019) (summarizing relevant research); Georg Vanberg, Substance vs. Procedure: Constitutional Enforcement and Constitutional Choice, 80 J. Econ. Behav. & Org. 309, 317 (2011). See generally Adam S. Chilton & Mila Versteeg, Do Constitutional Rights Make a Difference?, 60 Am. J. Pol. Sci. 575 (2016) (providing an in-depth empirical examination of the effectiveness of constitutional rights). ↑
  17. As is discussed below, we borrow from Raz to treat nature’s rights as implying that entities of some kind are the bearers of interests of sufficient moral weight to justify assigning a duty to some other. See Joseph Raz, The Morality of Freedom 166 (1988). For our purposes, we set aside the additional complications associated with legal or moral reasoning about rights, and instead assume that if the underlying interests can be articulated in a meaningful way, then those additional difficulties can be addressed. See infra Part II. ↑
  18. The distinction between a bottom-up and a top-down understanding of nature’s rights tracks the concepts of biocentrism and ecocentrism from the environmental ethics literature. See Dale Jamieson, Ethics and the Environment: An Introduction 145–53 (2008). ↑
  19. See generally May & Daly, supra note 5 (examining trends in constitutional discourse on environmental rights). ↑
  20. See generally David R. Boyd, The Environmental Rights Revolution: A Global Study of Constitutions, Human Rights, and the Environment 45–77, 117–65, 192–231 (2012) (discussing the issue of enforceability and examining the use of environmental rights in Latin America, Africa, and Europe). ↑
  21. See U.N. Secretary-General, Harmony with Nature, U.N. Doc. A/71/266 (Aug. 1, 2016); U.N. Secretary-General, Harmony with Nature, U.N. Doc. A/70/268 (Aug. 4, 2015). ↑
  22. See generally Juliana v. United States, 947 F.3d 1159 (9th Cir. 2020) (dismissing a substantive due process challenge against U.S. government inaction on climate change for lack of standing). There is also a movement in the United States toward the adoption of nature’s rights at the municipal level. See generally Marsha Jones Moutrie, The Rights of Nature Movement in the United States, 10 Env’t & Earth L.J. 5 (2020) (surveying and praising local nature’s rights campaigns). ↑
  23. See generally Boyd, supra note 4. ↑
  24. See, e.g., Chris Jeffords & Lanse Minkler, Do Constitutions Matter? The Effects of Constitutional Environmental Rights Provisions on Environmental Outcomes, 69 Kyklos 294 (2016). ↑
  25. These include citizen-suit provisions in the Clean Water Act, 33 U.S.C. § 1365 (2018), and the Clean Air Act, 42 U.S.C. § 7604; the requirements of environmental assessment in the National Environmental Policy Act, 42 U.S.C. § 4321; and provisions concerning the listing and protection of species in the Endangered Species Act, 16 U.S.C. § 1540. There are also important differences between citizen-suit provisions and environmental rights. The former are, in essence, an enforcement mechanism, whereas the latter create substantive obligations to specific entities. That is why judgments in such citizen-suit cases are rendered to the U.S. Treasury rather than as damages to the plaintiff. ↑
  26. See generally Boyd, supra note 19 at 299 (link to online appendix of constitutional provisions related to environmental rights). Boyd’s The Environmental Rights Revolution uses online appendices. The appendix above can be found at https://open.library.ubc.ca/cIRcle/‌collections/ubcpress/641/items/1.0058133 [https://perma.cc/5HJZ-VXUX]. ↑
  27. Id. ↑
  28. Constitution of the Republic of Ecuador, Oct. 20, 2008. The right to nature is one of several environmental rights that are recognized in the Ecuadorian constitution—others include a right to water, id. art. 12, and a right to a healthy environment, id. arts. 14, 66. ↑
  29. Id. art. 71. ↑
  30. Id. arts. 72, 73. ↑
  31. Id. art. 11. ↑
  32. Id. art. 71. But see Michelle P. Bassi, La Naturaleza O Pacha Mama de Ecuador: What Doctrine Should Grant Trees Standing?, 11 Or. Rev. Int’l L. 461, 464 (2009) (arguing that Ecuador’s constitution is unclear about the requirements for standing). ↑
  33. There are three provisions in the Constitution related to this statement:Article 11.5. In terms of rights and constitutional guarantees, public, administrative or judicial servants must abide by the most favorable interpretation of their effective force.

    Article 73. The State shall apply preventive and restrictive measures on activities that might lead to the extinction of species, the destruction of ecosystems and the permanent alteration of natural cycles.

    Article 396. The State shall adopt timely policies and measures to avoid adverse environmental impacts where there is certainty about the damage. In the case of doubt about the environmental impact stemming from a deed or omission, although there is no scientific evidence of the damage, the State shall adopt effective and timely measures of protection. ↑

  34. May & Daly, supra note 5, at 255, 344 (reviewing the countries that had recognized rights or duties to nature as of 2015). ↑
  35. Ley de Derechos de la Madre Tierra [Law of the Rights of Mother Earth] No. 71 (2010) (Bol.); see also Brandon Keim, Nature to Get Legal Rights in Bolivia, Wired (Apr. 18, 2011), https://www.wired.com/2011/04/legal-rights-nature-bolivia/ [https://perma.cc/HZ3G-3HL4]. ↑
  36. Ley de Derechos de la Madre Tierra [Law of the Rights of Mother Earth] No. 71, art. 3 (2010) (Bol.) (translation by the author). ↑
  37. Id. art. 7; Boyd, supra note 19, at 126; see also John Vidal, Bolivia Enshrines Natural World’s Rights with Equal Status for Mother Earth, Guardian (Apr. 10, 2011), https://www.theguardian.com/environment/2011/apr/10/bolivia-enshrines-natural-worlds-rights [https://perma.cc/7E4V-RZJM]. ↑
  38. Ley De Derechos de la Madre Tierra [Law of The Rights of Mother Earth] No. 71, art. 10 (2010) (Bol.); Maria Antonia Tigre, Implementing Constitutional Environmental Rights in the Amazon Rainforest, in Implementing Environmental Constitutionalism: Current Global Challenges 75 (Erin Daly & James R. May eds., 2018). To date, no Defensoría de la Madre Tierra office has been created. Tigre argues that the failure to fill the new office indicates that “the rights are more symbolic rather than practical.” Id. But see Boyd, supra note 19, at 140 (referring to two 2010 cases in which the Constitutional Court of Bolivia referred to the right to a healthy environment and concluded that it includes the right to potable water). ↑
  39. National Environment Act (2019), § 4 (Uganda), available at http://files.‌harmony‌withnatureun.org/uploads/upload834.pdf [https://perma.cc/B54A-CTHT]. ↑
  40. Assemblée National [National Assembly], Amendment CL786, du 22 juin 2018 (Fr.), https://www.assemblee-nationale.fr/dyn/15/amendements/0911/CION_LOIS/CL786.pdf [https://perma.cc/6R6D-7LUM] (rejected amendment). ↑
  41. U.N. Secretary-General, Harmony with Nature, ¶ 32, U.N. Doc. A/72/175 (July 19, 2017) (describing the rights of nature provisions included in Article 13 of the constitution of Mexico City and Article 2 of the constitution of the State of Guerrero). ↑
  42. Ciudad de Santa Fe, Santa Fe, Ordenanza No. 12541 (30 de agosto del 2018) (Arg.), https://www.concejosantafe.gov.ar/Legislacion/ordenanzas/ORDE_12541.pdf [https://perma.cc/D94Q-LZB2]. ↑
  43. Altera o Art. 133, de 12 de novembro de 2019, Diário Oficial Eletrônico Do Município de Florianópolis [DOF] de 20-11-2019 (Braz.). ↑
  44. Lei No. 878/2018, de 20 de dezembro de 2018, Diário Oficial Eletrônico Dos Municípios de Pernambuco [DOP], de 04-02-2019 (Braz.). ↑
  45. Altera o Art. 1 o decreto No. 001/2017, de 21 de dezembro de 2017, Diário Oficial Eletrônico Dos Municípios de Pernambuco [DOP], de 08-03-2018 (Braz.). ↑
  46. Pittsburgh, Pa., Code of Ordinances art. 1, § 104 (2011); Santa Monica, Cal., Mun. Code ch. 12 (2019); Santa Monica, Cal., Mun. Code ch. 7.18 (2018); Santa Monica, Cal., Mun. Code ch. 4.75 (2013) (repealed and reinstated as chapter 12 in 2019). ↑
  47. See Santa Monica Mun. Code ch. 12; Santa Monica Mun. Code ch. 7.18; Santa Monica Mun. Code ch. 4.75 (repealed and reinstated as chapter 12 in 2019). ↑
  48. White Earth, Minn., Ordinance to Establish Rights of Manoomin on White Earth Reservation and Throughout 1855 Ceded Territory § 1(a) (Jan. 11, 2019) (codifying the right of manoomin rice to “pure water and freshwater habitat; the right to a healthy climate system and a natural environment free from human-caused global warming impacts and emissions” and more). ↑
  49. Mountain Lake Park, Md., Ordinance No. 2011-01 (Apr. 15, 2011) (regulating the extraction of natural gas within the town of Mountain Lake Park). ↑
  50. Mora County, N.M., Ordinance 2013-01 (Apr. 29, 2013) (establishing a local bill of rights that protects the natural sources of water from damage related to the extraction of oil, natural gas, and other hydrocarbons). ↑
  51. Wales, N.Y., Local Law No. 3-2011, § 4(b) (2011) (establishing “Rights of Natural Communities” wherein “[e]cosystems and natural communities possess the right to exist and flourish within the Town”). ↑
  52. Broadview Heights, Ohio, Ordinance No. 115-12, § 1 (Sept. 4, 2012) (“Natural communities and ecosystems . . . possess inalienable and fundamental rights to exist and flourish within The City of Broadview Heights. Residents of the City shall possess legal standing to enforce those rights on behalf of those natural communities and ecosystems.”); see also Yellow Springs, Ohio, Ordinance 2012-17, ch. 878, § 878.04 (2012) (“Ecosystems and natural communities possess the right to exist and flourish within the Village.”); Toledo, Ohio, Mun. Code ch. XVII, § 254(a) (2019) (establishing the rights of Lake Erie Ecosystem “to exist, flourish, and naturally evolve”), invalidated by Drewes Farms P’ship v. City of Toledo, 441 F. Supp. 3d 551 (N.D. Ohio 2020). ↑
  53. Some local ordinances grant rights to nature. See, e.g., Licking Township, Pa., Ordinance Protecting the Right of the Community to Natural Water Sources Within Licking Township § 3.5 (2010); Packer Township, Pa., Ordinance to Protect the Health, Safety, and General Welfare of the Citizens and Environment of Packer Township § 7.2 (2008); Mahanoy Township, Pa., Ordinance 2008-2, § 7.14 (Feb. 21, 2008). Some grant legal standing to residents to enforce rights on behalf of natural communities and ecosystems. See, e.g., Pittsburgh, Pa., Code § 618.03(b) (2010); Forest Hills, Pa., Ordinance No. 1017, § 3(b) (Oct. 19, 2011); West Homestead, Pa., Ordinance No. 659, § 3(b) (May 10, 2011). Other ordinances establish that natural communities shall be considered to be “persons.” See Tamaqua Borough, Pa., Ordinance No. 612, § 7.6 (Sept. 19, 2006). ↑
  54. Halifax, Va., Code art. VII, § 30-156.7 (Feb. 7, 2008) (granting inalienable and fundamental rights to nature to exist and flourish). ↑
  55. Newfield, N.J., Town of Newfield Water Ordinance § 5.1 (Feb. 10, 2009) (proposing an ordinance to grant natural communities and ecosystems inalienable and fundamental rights to exist and flourish). ↑
  56. Nottingham, N.H., Nottingham Water Rights & Self Government Ordinance § 5.1 (Mar. 15, 2008). ↑
  57. Te Awa Tupua (Whanganui River Claims Settlement) Act 2017, §§ 14–15 (N.Z.). ↑
  58. Id. § 69. ↑
  59. See id. §§ 18–20 (explaining the function of this office is to “act and speak for and on behalf of [the Whanganui River],” to “promote and protect [its] health and well-being,” to perform “landowner functions” with respect to the “land vested in [it],” to administer the commission charged with deciding application for fishing and catchment activities, and to administer a related fund). The Te Pou Tupua is comprised by appointing one member of the Maori Tribe and one member of the government. ↑
  60. Ngā Iwi o Taranaki and the Crown: Record of Understanding for Mount Taranaki, Pouākai and the Kaitake Ranges 2017, § 5 (N.Z.). ↑
  61. Writ Petition (PIL) No. 126 of 2014 ¶ 19, Salim v. Uttarakhand (2017) (India). ↑
  62. Writ Petition (PIL) No. 140 of 2015 ¶ 2, Miglani v. Uttarakhand (2017) (India). ↑
  63. Members of India’s environmental community have reacted with skepticism towards the court’s innovation. See, e.g., Omair Ahmad, Indian Court Awards Legal Rights of a Person to Entire Ecosystem, Climate Home News (Apr. 3, 2017), http://www.climatechangenews.com/‌2017/04/03/indian-court-awards-legal-rights-person-nature/ [https://perma.cc/9QXM-5J3R]; Indian Court Grants Himalayan Glaciers Status of ‘Living Entities,’ Dawn (Apr. 1, 2017), https://www.dawn.com/news/1324199/indian-court-grants-himalayan-glaciers-status-of-living-entities [https://perma.cc/M969-CLTL]. The Supreme Court of India ultimately ruled that the Ganges and Yamuna Rivers cannot be viewed as living entities. See India’s Ganges and Yamuna Rivers Are ‘Not Living Entities,’ BBC News (July 7, 2017), https://www.bbc.com/news/world-asia-india-40537701 [https://perma.cc/88ZV-JSL5]. ↑
  64. Writ Petition (PIL) No. 43 of 2014 ¶ 98, Bhatt v. India (2018) (India). ↑
  65. Sebastian Bechtel, Legal Rights of Rivers—An International Trend?, Client Earth (Mar. 13, 2019), https://www.clientearth.org/legal-rights-of-rivers-an-international-trend/ [https://perma.cc/J4UW-9CVJ]; U.N. Secretary-General, Harmony with Nature, ¶ 23, U.N. Doc. A/74/236 (July 26, 2019). ↑
  66. Corte Constitucional [C.C.] [Constitutional Court], noviembre 10, 2016, M.P: Jorge Iván Palacio Palacio, Sentencia T-622/16 (Colom.). The judge who wrote the majority opinion in this case noted the influence of the prior decisions in India on his reasoning: “[He] said that in an event that the Court organized in October 2016, he listened attentively to the speech given by a judge from India, who explained that ‘our brothers the trees and our sisters the flowers’ should be subject to rights.” He went on to say: “Thus, when the case came to the Court, I knew what I had to do: Nature has a right not be polluted, a right not to be destroyed, and a right to be rationally used.” See Jorge Iván Palacio: El Centinela del Río Atrato, El Espectador (Dec. 3, 2017), https://www.elespectador.com/noticias/judicial/jorge-ivan-palacio-el-centinela-del-rio-atrato-articulo-726304 [https://perma.cc/EXP3-K7U2] (translation by the author). ↑
  67. Sentencia T-622/16, ¶ 5.3, 5.4, 9.22 (Colom.). ↑
  68. Ana Lucía Maya-Aguirre, Implementing Environmental Constitutionalism in Colombia: Tensions Between Public Policy and Decisions of the Constitutional Court, in Implementing Environmental Constitutionalism: Current Global Challenges 143, 157 (Erin Daly & James R. May eds., 2018). ↑
  69. Sentencia T-622/16, ¶ 9.32 (Colom.). ↑
  70. Corte Suprema de Justicia [C.S.J.] [Supreme Court], Sala. Lab. abril 5, 2018, M.P: Luis Armando Tolosa Villabona, STC4360-2018, 48 (Colom.). ↑
  71. Jurisdicción Especial Para La Paz [Special Jurisdiction for Peace], Sala. Reconocimiento. noviembre 12, 2019, M: Belkis Florentina Izquierdo Torres & Ana Manuela Ochoa Arias, Caso No. 02 de 2018, 30 (Colom.). ↑
  72. Redacción Nacional, Río Quindío, Otro Cuerpo Fluvial que Es Sujeto de Derechos [Quindío River, Another River Body that Is Subject to Rights], El Nuevo Siglo (Dec. 8, 2019), https://www.elnuevosiglo.com.co/articulos/12-2019-rio-quindio-otro-cuerpo-fluvial-que-es-sujeto-de-derechos [https://perma.cc/B9XQ-QC3Z]. ↑
  73. Juzgados Primero Penal del Circuito con Funciones de Conocimiento de Neiva-Huila [Juzg. Circ.] [First Criminal Court of the Circuit with Functions of Knowledge of Neiva-Huila], octubre 24, 2019, J: Victor Alcides Garzon Barrios, Sentencia de Tutela de Primera Instancia No. 071, 35 (Colom.). ↑
  74. Tribunal Superior de Medellín [T. Sup.], Sala. Civil. junio 17, 2019, M: Juan Carlos Soso Londoño, Sentencia No. 38, Tribunal Superior de Medllín [T.S.M.] 43 (Colom.). ↑
  75. Tribunal Administrativo del Tolima [T. Admtivos] [Administrative Superior Court], Sala. Civil. mayo 30, 2019, M.P: José Andrés Rojas Villa, Sentencia 73001-23-00-000-2011-00611-00, 149 (Colom.). ↑
  76. Juzgado Único Civil Municipal la Plata—Huila [Juz. Mun.] [Municipal Civil Court], marzo 19, 2019, J: Juan Carlos Clavijo González, 41-396-40-03-001-2019-00114-00 (Colom.). ↑
  77. Tribunal Administrativo del Boyocá [T. Admtivos] [Administrative Superior Court], Sala. de Decisión agosto 9, 2018, M.P: Clara Elisa Cifuentes Ortiz, Expediente 15238 3333 002 2018 00016 01, 67–68) (Colom.). ↑
  78. Corte Suprema de Justicia [C.S.J.] [Supreme Court], Sala. de Casación Civil julio 26, 2017, M.P: Luis Armando Tolosa Villabona, AHC4806-2017 (No. l7001-22-13-000-2017-00468-02, p. 34–35) (Colom.). ↑
  79. Medio Ambiente y Derechos Humanos [The Environment and Human Rights], Opinión Consultiva [Advisory Opinion] OC-23/17, Corte Interamericana de Derechos Humanos [Inter-Am. Ct. H.R.] (ser. A) ¶ 62, n.100 (15 de noviembre de 2017); see also Nicolás Carrillo-Santarelli, The Politics Behind the Latest Advisory Opinions of the Inter-American Court of Human Rights, Int’l J. Const. L. Blog, Feb. 24, 2018, http://www.iconnectblog.com‌/2018/02/the-politics-behind-the-latest-advisory-opinions-of-the-inter-american-court-of-human-rights/ [https://perma.cc/X9MY-A74Z] (remarking on the political aspects of several advisory opinions published by the Inter-American Court of Human Rights, including OC-23/17). ↑
  80. Medio Ambiente y Derechos Humanos [The Environment and Human Rights], Opinión Consultiva [Advisory Opinion] OC-23/17, Corte Interamericana de Derechos Humanos [Inter-Am. Ct. H.R.] (ser. A), ¶ 62 (15 de noviembre de 2017) (emphasis added) (translation by the author). ↑
  81. The Community Environmental Legal Defense Fund describes itself as “building a movement for . . . the Rights of Nature to advance democratic, economic, social, and environmental rights—building upward from the grassroots to the state, federal, and international level.” Community Environmental Legal Defense Fund, CELDF Statement on Orange County, FL ‘Rights of Nature’ Law (Nov. 4, 2020), https://celdf.org/2020/11/celdf-statement-on-orange-county-fl-rights-of-nature-law/ [https://perma.cc/423D-HJSV]. The Earth Law Center states that it “seek[s] legal rights for ecosystems and species” throughout the world. Earth Law Center, Community Toolkit for Rights of Nature 22, https://static1.squarespace.com/static/55914fd1e4b01fb0b851a814/t/5c8abd994192021c8d560fcb/1552596381584/Community+Toolkit+for+Rights+of+Nature.pdf [https://perma.cc/W7NM-L5RW]. ↑
  82. Maria Akchurin, Constructing the Rights of Nature: Constitutional Reform, Mobilization, and Environmental Protection in Ecuador, 40 Law & Soc. Inquiry 937, 952 (2015). ↑
  83. See U.N. Secretary-General, Harmony with Nature: Note by the Secretary-General, ¶ 5, U.N. Doc. A/71/266 (Aug. 1, 2016); U.N. Secretary-General, Harmony with Nature: Rep. of the Secretary-General, ¶ 4, U.N. Doc. A/70/268 (Aug. 4, 2015). ↑
  84. U.N. Secretary-General, Harmony with Nature: Rep. of the Secretary-General, ¶ 4, U.N. Doc. A/69/322 (Aug. 18, 2014). ↑
  85. U.N. Secretary-General, Harmony with Nature: Rep. of the Secretary-General, ¶ 41, U.N. Doc. A/72/175 (July 19, 2017). ↑
  86. See generally Out of the Mainstream: Water Rights, Politics and Identity (Rutgerd Boelens, David Getches & Armando Guevara-Gil eds., 2010) (explaining the impact of indigenous movements on Latin American water management). ↑
  87. Bryant Rousseau, In New Zealand, Lands and Rivers Can Be People (Legally Speaking), N.Y. Times (July 13, 2016), https://www.nytimes.com/2016/07/14/world/what-in-the-world/in-new-zealand-lands-and-rivers-can-be-people-legally-speaking.html [https://perma.cc/C28W-N7R3]. ↑
  88. John Vidal, Bolivia Enshrines Natural World’s Rights with Equal Status for Mother Earth, Guardian (Apr. 10, 2011), https://www.theguardian.com/environment/2011/apr/10/bolivia-enshrines-natural-worlds-rights [https://perma.cc/6KRA-ZG6Z]; Craig M. Kauffman & Pamela L. Martin, Constructing Rights of Nature Norms in the US, Ecuador, and New Zealand, 18 Glob. Env’t Pol. 43, 55 (2018). ↑
  89. See David R. Boyd, Recognizing the Rights of Nature: Lofty Rhetoric or Legal Revolution?, 32 Nat. Res. & Env’t 13, 17 (2018). See generally Boyd, supra note 4 (offering a defense of nature’s rights for a broader audience). ↑
  90. See, e.g., Jan G. Laitos, How Science Has Influenced, but Should Now Determine, Environmental Policy, 43 Wm. & Mary Env’t L. & Pol’y Rev. 759, 788 (2019); Oliver A. Houck, Noah’s Second Voyage: The Rights of Nature as Law, 31 Tul. Env’t L.J. 1, 41–42 (2017); Rule of Law for Nature: New Dimensions and Ideas in Environmental Law (Christina Voigt ed., 2013) (collecting essays exploring broad environmental rights). The origin of the notion of nature’s rights can be found in the legal academic literature in Professor Christopher D. Stone’s famous essay, Should Trees Have Standing?—Toward Legal Rights for Natural Objects, 45 S. Cal. L. Rev. 450, 456 (1972); Cormac Cullinan, Wild Law 157–59 (2d ed. 2011) (advocating radical restructuring of law and governance to account for natural systems). See generally Susan Emmenegger & Axel Tschentscher, Taking Nature’s Rights Seriously: The Long Way to Biocentrism in Environmental Law, 6 Geo. Int’l Env’t L. Rev. 545, 573 (1994) (“Acknowledging nature’s rights would make the respective natural entity a subject whereas it is merely an object of human considerations in the context of duties towards nature.”). ↑
  91. See, e.g., Carolina Valladares & Rutgerd Boelens, Mining for Mother Earth: Governmentalities, Sacred Waters and Nature’s Rights in Ecuador, 100 Geoforum 68, 68–69 (2019) (discussing the relationship between nature’s rights and mining); Eden Kinkaid, “Rights of Nature” in Translation: Assemblage Geographies, Boundary Objects, and Translocal Social Movements, 44 Transactions Inst. Brit. Geographers 555 (2019) (considering rights of nature as “a boundary object connecting translocal assemblages of environmental governance through acts of translation”); Florent Kohler, Timothy G. Holland, Janne Sakari Kotiaho, Maylis Desrousseaux & Matthew D. Potts, Embracing Diverse Worldviews to Share Planet Earth, 33 Conservation Biology 1014, 1014–16 (2019) (arguing for nature’s rights to preserve nature); Kelly D. Alley, River Goddesses, Personhood and Rights of Nature: Implications for Spiritual Ecology, 10 Religions 502 (2019) (examining rights for nature through a religious lens); Mariana Chilton & Sonya Jones, The Rights of Nature and the Future of Public Health, 110 Am. J. Pub. Health 459 (2020) (advocating for rights of nature to mitigate environmental impacts and discrepancies on public health); Guillaume Chapron, Yaffa Epstein & José Vicente López-Bao, A Rights Revolution for Nature, 363 Science 1392 (2019). ↑
  92. Intersecting topics include literatures on rights, rights conflicts, incommensurability, group rights, and animal welfare. ↑
  93. Cf. Richard Schragger & Micah Schwartzman, Some Realism about Corporate Rights 345, 347, in The Rise of Corporate Religious Liberty (Micah Schwartzman, Chad Flanders & Zoë Robinson eds., 2016) (arguing that there is no need to settle disputes concerning ontological status of corporations to reason about group rights). For purposes of this Article, we proceed under Schragger and Schwartzman’s view that ontological claims about entities need not be settled to engage in pragmatic reasoning about legal rights. ↑
  94. See, e.g., Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N. Doc. A/810 (Dec. 10, 1948). ↑
  95. Paul W. Taylor, Respect for Nature: A Theory of Environmental Ethics 119–29 (1986). ↑
  96. See supra Part I. ↑
  97. See Akchurin, supra note 81. ↑
  98. Stone, supra note 89, at 456. ↑
  99. Cf. Christian List & Philip Pettit, Group Agency: The Possibility, Design, and Status of Corporate Agents 182 (2011) (citations omitted) (adopting “‘normative individualism’ . . . : the view that something [including extending legal rights to groups] is good only if it is good for individual human[s] or, more generally, sentient beings”). ↑
  100. Stone, supra note 89, at 456 n.26. ↑
  101. See generally Justin Farrell, The Battle for Yellowstone: Morality and the Sacred Roots of Environmental Conflict (2015) (examining a host of different sources of conflict over the management of a complex ecosystem with a large number of interested stakeholders). ↑
  102. See generally Tom Campbell, Rights: A Critical Introduction (2006) (summarizing various theories of rights and their relation to legal rights); see also Leif Wenar, Rights, The Stan. Encyc. of Phil. (Edward N. Zalta ed., 2015), https://plato.stanford.edu/archives/‌fall2015/‌entries/rights/ [https://perma.cc/5TME-FMZQ] (describing the nature of rights, categorizing rights according to shared attributes, and exploring sub-categories of moral and legal rights). ↑
  103. See Waldron, supra note 7, at 508. Lexical priority means that certain claims must be satisfied altogether before other claims. See, e.g., John Rawls, Justice as Fairness: Political Not Metaphysical, 14 Phil. & Pub. Affs. 223, 227–28 (1985) (stating two principles of justice where “the first is given priority over the second”). ↑
  104. See Robert Nozick, Anarchy, State, and Utopia 29 (1974). ↑
  105. Ronald Dworkin, Taking Rights Seriously 6 (1977). ↑
  106. For a discussion of rights discourse in the United States, see, e.g., Richard A. Primus, The American Language of Rights (1999); Carl Wellman, The Proliferation of Rights: Moral Progress or Empty Rhetoric? (1999); Mary Ann Glendon, Rights Talk: The Impoverishment of Political Discourse (1991). For a critique of the discourse of rights at a global level, see Eric A. Posner, The Twilight of Human Rights Law (2014). ↑
  107. For general critiques of rights reasoning in the context of human rights, see Alasdair MacIntyre, After Virtue 6–21 (2d ed. 1984). ↑
  108. See generally Waldron, supra note 7 (exploring the moral difficulties that occur when rights conflict with one another). ↑
  109. See generally Same-Sex Marriage and Religious Liberty: Emerging Conflicts (Douglas Laycock, Anthony R. Picarello, Jr. & Robin Fretwell Wilson eds., 2008) (discussing conflicting liberties in the context of same-sex marriage and religious freedom). See, e.g., Bostock v. Clayton County, 140 S. Ct. 1731, 1753–54 (2020) (“[T]he employers fear that complying with Title VII’s requirement [not to engage in employment discrimination against homosexual or transgender people] . . . may require some employers to violate their religious convictions. We are also deeply concerned with preserving the promise of the free exercise of religion enshrined in our Constitution; that guarantee lies at the heart of our pluralistic society.”). ↑
  110. For additional examples of policy choices that present conflicts within the domain of nature, see Jamieson, supra note 17, at 168–80. ↑
  111. 77 Fed. Reg. 9303 (Feb. 16, 2012). ↑
  112. EPA, Regulatory Impact Analysis for the Final Mercury and Air Toxics Standards (2011). ↑
  113. Id. ↑
  114. Id. ↑
  115. Timothy P. Robinson et al., Mapping the Global Distribution of Livestock, PLOS One, May 29, 2014, at 1, https://journals.plos.org/plosone/article?id=10.1371/journal.pone.‌0096084#‌pone-0096084-g002 [https://perma.cc/EN4R-2GPX]. ↑
  116. See generally Jared Prunty & Kevin J. Apple, Painfully Aware: The Effects of Dissonance on Attitudes Toward Factory Farming, 26 Anthrozoös 265 (2013) (discussing conflicting public attitudes concerning animal welfare and commercial farming practices); Ruth Harrison, Animal Machines: The New Factory Farming Industry (1964) (providing moral arguments). ↑
  117. It has sometimes been argued that the profit motive is adequate to provide for animal welfare, because “farm animals which receive better care will be more productive.” See Jayson L. Lusk & F. Bailey Norwood, Animal Welfare Economics, 33 Applied Econ. Persps. & Pol’y 463, 464 (2011) (explaining but not adopting this view). Indeed, a purely profit-motivated firm will invest some resources into animal welfare and will not engage in gratuitously inhuman treatment. But, as long as there are increasing returns to animal welfare from further investments beyond what is profit maximizing—a highly likely situation—then profitability and protections for animal well-being will part ways. See id. ↑
  118. National Pollutant Discharge Elimination System, 79 Fed. Reg. 48,300 (Aug. 15, 2014). ↑
  119. Id. at 48,318–21. ↑
  120. EPA, Benefits Analysis for the Final Section 316(b) Existing Facilities Rule (May 2014), https://www.epa.gov/sites/production/files/2015-05/documents/cooling-water_phase-4_benefits_2014.pdf [https://perma.cc/9JK9-66H3]. ↑
  121. Joe Ryan, NRG’s Massive California Solar Plant Finally Making Enough Power, Bloomberg (Feb. 2, 2017), https://www.bloomberg.com/news/articles/2017-02-01/nrg-s-massive-california-solar-plant-finally-making-enough-power [https://perma.cc/URX3-5ABV]; Cal. Energy Comm’n, California Solar Energy Statistics and Data, https://ww2.energy.ca.gov/almanac/renewables_data/solar/index_cms.php [https://perma.cc/N7N5-HCWG]. ↑
  122. Avoided emissions calculations are tricky. The values here are a back-of-the-envelope calculation using the following information: Avoided Emissions Calculator, https://www.irena.org/climatechange/Avoided-Emissions-Calculator [https://perma.cc/23W4-MJB6]. To arrive at our estimate, we set the country entry to “United States of America,” the technology entry to “concentrated solar power,” and the year entry to “2016.” Using these inputs, IRENA reports that 3,701 GWh were generated in 2016 by concentrated solar power. According to the above estimates, Ivanpah generated about 3,500 GWh between 2014 and 2020. IRENA reports that the United States avoided an estimated 2.832 million tons of carbon dioxide when producing this much energy using concentrated solar power. In order to account for any confounding variables, we cut this figure in half and rounded down to provide a conservative, lower-bound estimate of avoided emissions. ↑
  123. See, e.g., Manish Ram et al., LUT University Energy Watch Group, Global Energy System Based on 100% Renewable Energy—Power, Heat, Transport and Desalination Sectors 16 (Mar. 2019) (offering a policy scenario in which installed solar electricity generating capacity is nearly ten times greater by 2050 than current (2015) installed capacity from all energy sources). ↑
  124. Bureau of Land Mgmt., California Desert Conservation Area Plan Amendment/Final Environmental Impact Statement for Ivanpah Solar Electric Generating System 1–23 (2010). ↑
  125. Louis Sahagun, This Mojave Desert Solar Plant Kills 6,000 Birds a Year. Here’s Why That Won’t Change Any Time Soon, L.A. Times (Sept. 2, 2016), https://www.latimes.com/local/california/la-me-solar-bird-deaths-20160831-snap-story.html [https://perma.cc/A8NA-JZLH]. ↑
  126. See Hillel Steiner, The Structure of a Set of Compossible Rights, 74 J. Phil. 767, 768 (1977). ↑
  127. Keith Dowding & Martin Van Hees, The Construction of Rights, 97 Am. Pol. Sci. Rev. 281, 292 (2003) (Steiner’s account leaves a set of rights that “are nonexistent or vanishingly small”). ↑
  128. See Alan Gewirth, Are There Any Absolute Rights?, 31 Phil. Q. 1, 3 (1981). ↑
  129. John Oberdiek, Specifying Rights Out of Necessity, 28 Oxford J.L. Stud. 127, 128 (2008) (arguing rights carry limiting specifications); Russ Shafer-Landau, Specifying Absolute Rights, 37 Ariz. L. Rev. 209 (1995) (analyzing arguments about specifications on rights). ↑
  130. See Waldron, supra note 7, at 516–19. ↑
  131. In the context of constitutional adjudication, courts (especially outside the United States) often make recourse to the notion of “proportionality” in cases of rights conflict. See Vicki C. Jackson, Constitutional Law in an Age of Proportionality, 124 Yale L.J. 3094, 3096, 3110–21 (2015). Jackson argues that the concept of “‘proportionality as such’ . . . differs from ‘balancing’ tests that tend to focus primarily on quantification of net social good” because it is part of a “structured, sequenced . . . analysis” that “as a whole, prioritizes the right.” Id. at 3099–100. This might be thought of as a mix of a pure balancing approach with one that involves some prioritization mechanism. ↑
  132. See generally Matthew D. Adler, Well-Being and Fair Distribution: Beyond Cost-Benefit Analysis 158–70 (2012) (examining “the range of accounts of well-being proposed within the philosophical literature”). ↑
  133. See generally EPA, supra note 10 (describing EPA’s approach to evaluating environmental policy using cost-benefit analysis). ↑
  134. Chapron, Epstein & López-Bao, supra note 90, at 1392. ↑
  135. Id. ↑
  136. This move is correctly controversial. For example, it may be that it is easier to make such comparisons under a consequentialist view, which evaluates choices based on their outcomes. But some may object to consequentialism, either generally or in the context of nature’s rights—for example, because it fails to take seriously the obligations of individuals to act (or not act) in particular ways, which is distinct from the obligation to bring about (or not) certain outcomes. See generally F.M. Kamm, Non-Consequentialism, the Person as an End-in-Itself, and the Significance of Status, 21 Phil. & Pub. Affs. 354, 358–59 (1992) (“I believe that options [to not maximize overall best consequences] are justified by the view that persons are not mere means to the end of the best state of affairs, but ends-in-themselves, having a point even if they do not serve the best consequences.”). We put these critiques to one side, under the stipulation that welfare economic tools (or others that are associated with consequentialism) could be applied to reasoning concerning nature’s rights if they facilitate comparison between policy options with complex effects on the world. If this assumption does not hold, then nature’s rights face a range of additional difficulties. ↑
  137. For the classic formulation of the problem, see Lionel Robbins, An Essay on the Nature and Significance of Economic Science 139–40 (2d ed. 1935) (arguing that interpersonal utility comparisons are outside the boundaries of economic science altogether). See generally Ken Binmore, Interpersonal Comparison of Utility, in Oxford Handbook of Philosophy of Economics 540, 547–50 (Don Ross & Harold Kincaid eds., 2009) (providing overview); Marc Fleurbaey & Peter J. Hammond, Interpersonally Comparable Utility, in 2 Handbook of Utility Theory 1179, 1181 (Salvador Barberà, Peter J. Hammond & Christian Seidl eds., 2004) (same); Interpersonal Comparisons of Well-Being (Jon Elster & John E. Roemer eds., 1991) (collecting essays exploring various perspectives). ↑
  138. See generally The Oxford Handbook of Well-Being and Public Policy (Matthew D. Adler & Marc Fleurbaey eds., 2016) (collecting diverse views). ↑
  139. Binmore, supra note 136, at 541. ↑
  140. See Lionel Robbins, Interpersonal Comparisons of Utility: A Comment, 48 Econ. J. 635, 637–38 (1938). ↑
  141. John Rawls, A Theory of Justice 26–27 (rev. ed. 1999). ↑
  142. Id. at 11. ↑
  143. See id. at 13. John Harsanyi argues that Rawls places too much emphasis on worst-case scenarios. See John C. Harsanyi, Can the Maximin Principle Serve as a Basis for Morality? A Critique of John Rawls’s Theory, 69 Am. Pol. Sci. Rev. 594, 595–97 (1975). ↑
  144. EPA, Guidelines for Preparing Economic Analyses A-3 (2010). ↑
  145. The classic papers setting out the Kaldor-Hicks framework are: John R. Hicks, The Foundations of Welfare Economics, 49 Econ. J. 696 (1939) and Nicholas Kaldor, Welfare Propositions of Economics and Interpersonal Comparisons of Utility, 49 Econ. J. 549 (1939). ↑
  146. See Matthew D. Adler & Eric A. Posner, New Foundations for Cost-Benefit Analysis 10–12 (2006) For an examination of the theoretical justification of using cost-benefit analysis as a policy tool, see generally id. ↑
  147. See generally Tibor Scitovsky, A Note on Welfare Propositions in Economics, in Readings in Welfare Economics 390, 400–01 (Kenneth J. Arrow & Tibor Scitovsky eds., 1969) (introducing problem of preference cycles). ↑
  148. See Adler, supra note 131, at 187–92; John C. Harsanyi, Cardinal Welfare, Individualistic Ethics, and Interpersonal Comparisons of Utility, 63 J. Pol. Econ. 309, 316–21 (1955) (offering account of how interpersonal comparisons can be made). ↑
  149. See Daniel Kahneman, Objective Happiness, in Well-Being: The Foundations of Hedonic Psychology (Daniel Kahneman, Ed Diener & Norbert Schwarz eds., 1999). Cf. Paul W. Glimcher, Foundations of Neuroeconomic Analysis (2011) (developing notion of cardinal utility based on observable neurological information). ↑
  150. Adler, supra note 131, at 185–92. ↑
  151. Matthew D. Adler, Extended Preferences, in The Oxford Handbook of Well-Being and Public Policy, supra note 137, at 476, 476. ↑
  152. See Hilary Greaves & Harvey Lederman, Extended Preferences and Interpersonal Comparisons of Well-Being, 96 Phil. & Phenomenological Res. 636, 645 (2018). ↑
  153. EPA supra note 10, at 7-7 to 7-10. ↑
  154. See generally Robert Costanza et al., The Value of the World’s Ecosystem Services and Natural Capital, 387 Nature 253 (1997) (estimating economic value of several ecosystem services, including pollination and nutrient cycling). ↑
  155. Singer, supra note 8. ↑
  156. See Taylor, supra note 94, at 122, 125, 128–29. See generally Nicholas Agar, Biocentrism and the Concept of Life, 108 Ethics 147 (1997) (developing a “continuum” of organisms from humans to “simple living things” that clarifies the degree of moral consideration that ought to be afforded). ↑
  157. Compare J. Baird Callicott, In Defense of the Land Ethic: Essays in Environmental Philosophy (1989) (defending moral consideration of aggregates), with Tom Regan, The Case for Animal Rights 362 (1983) (criticizing as “[e]nvironmental fascism” views that suggest that the interests of individuals be subordinated to those of aggregates). ↑
  158. See, e.g., Paul W. Taylor, The Ethics of Respect for Nature, 3 Env’t Ethics 197, 218 (1981) (“If we accept the biocentric outlook and accordingly adopt the attitude of respect for nature as our ultimate moral attitude, how do we resolve conflicts that arise from our respect for persons in the domain of human ethics and our respect for nature in the domain of environmental ethics? This is a question that cannot adequately be dealt with here.”). ↑
  159. For a useful introduction to the field, see Daniel M. Hausman & Michael S. McPherson, Economic Analysis, Moral Philosophy, and Public Policy (2d ed. 2006). ↑
  160. Making comparisons does not require the stronger relationship of commensurability. For a general discussion of the issue of commensuration in the context of legal decision making (including the adjudication of rights), see a useful symposium issue of the University of Pennsylvania Law Review. Symposium, Law and Incommensurability, 146 U. Pa. L. Rev. 1169 (1998). ↑
  161. The word “individual” derives from the Latin indīviduus, meaning indivisible. See Individual, Oxford English Dictionary (3d ed. 2014). We set aside concerns about personal identity, although there is a vibrant philosophical literature on these questions. See, e.g., Eric T. Olson, The Human Animal: Personal Identity Without Psychology (1999); Marya Schechtman, The Constitution of Selves (1996); Derek Parfit, Reasons and Persons (reprt. 1987); see also Eric T. Olson, Personal Identity, Stan. Encyclopedia Phil. (last updated Sept. 6, 2019), https://plato.stanford.edu/entries/identity-personal/ [https://perma.cc/AVF6-G9M9]. ↑
  162. Examples include the U.S. Endangered Species Act of 1973, 16 U.S.C. §§ 1531–44 and the Convention on International Trade in Endangered Species of Wild Fauna and Flora, Mar. 3, 1973, 27 U.S.T. 1087. ↑
  163. Susan Milius, The Fuzzy Art of Defining Species, Science News, Nov. 11, 2017, at 22–24; see also Michael Ruse, Biological Species: Natural Kinds, Individuals, or What?, 38 Brit. J. Phil. Sci. 225, 226–27 (1987) (listing four biological concepts of “species”). ↑
  164. See Frank E. Zachos, Species Concepts in Biology 77–96 (2016) (providing an annotated list of thirty-two definitions). ↑
  165. See, e.g., Nat’l Ass’n of Home Builders v. Norton, 340 F.3d 835, 842 (9th Cir. 2003). ↑
  166. For example, the Supreme Court has had an extraordinarily difficult time articulating coherent boundaries around what constitutes the “waters of the United States” for purposes of jurisdiction under the Clean Water Act. See, e.g., Rapanos v. United States, 547 U.S. 715 (2006). ↑
  167. William Miller III, The Hierarchical Structure of Ecosystems: Connections to Evolution, 1 Evolution: Educ. & Outreach 16, 16 (2007). ↑
  168. See Andreas Wilting et al., Planning Tiger Recovery: Understanding Intraspecific Variation for Effective Conservation, 1 Sci. Advances, June 26, 2015, at 1, DOI, 10.1126/sciadv.1400175. ↑
  169. U.S. Endangered Species Act of 1973, 16 U.S.C. §§ 1531–44. ↑
  170. Id. § 1536. ↑
  171. Put aside the fact that there are no wild orangutans or tigers in the United States. ↑
  172. Policy Regarding the Recognition of Distinct Vertebrate Population Segments Under the Endangered Species Act, 61 Fed. Reg. 4722, 4722 (Feb. 7, 1996) (“Any interpretation adopted should also be aimed at carrying out the purposes of the Act . . . .”). ↑
  173. Id. at 4723. ↑
  174. Id. ↑
  175. Martha C. Nussbaum, Women and Human Development: The Capabilities Approach 59–71 (2001); Amartya Sen, Commodities and Capabilities (Oxford India Paperbacks 1999) (1987). ↑
  176. Callicott argues that the distinction between individuals and collectives is an illusion because “‘individual organisms’ (including human organisms) are . . . ecological collectives.” J. Baird Callicott, How Ecological Collectives Are Morally Considerable, in The Oxford Handbook of Environmental Ethics 113, 113–14 (Stephen M. Gardiner & Allen Thompson eds., 2017). It is true that, as a biological matter, a person is made up of many trillions of human cells in addition to trillions of microorganisms—e.g., bacteria, viruses, protozoa, and fungi—representing hundreds of species. See Peter J. Turnbaugh et al., The Human Microbiome Project, 449 Nature 804, 804–06 (2007) (describing the microbiome and what is known about it). However, although human beings are collectives of a sort, we take it as uncontroversial that the interests of the sub-units can be safely ignored—it would be absurd to grant standing to a person’s gut biota to sue her small intestine over a conflict of resources. It is, perhaps, worth considering why some biological collectives (e.g., individual organisms) have this type of unity that others (e.g., species and ecosystems) lack. Consciousness and subjective experience provide one possible explanation. Indeed, one of the leading theories concerning the neurological basis of consciousness argues that its most basic function is the integration of information that is diffused across the organism. Giulio Tononi, Melanie Boly, Marcello Massimini & Christof Koch, Integrated Information Theory: From Consciousness to Its Physical Substrate, 17 Nature Revs. Neuroscience 450, 452 (2016) (“[T]he content of an experience (information) is integrated within a unitary consciousness.”). ↑
  177. For a popular account of subjective experience of an octopus, see Peter Godfrey-Smith, Other Minds: The Octopus, the Sea, and the Deep Origins of Consciousness 98–106 (1st ed. 2016). ↑
  178. Thomas Nagel, What Is It Like to Be a Bat?, 83 Phil. Rev. 435, 438–40 (1974). ↑
  179. See Jennifer A. Mather, Cephalopod Consciousness: Behavioural Evidence, 17 Consciousness & Cognition 37, 37 (2008). ↑
  180. Lusk & Norwood, supra note 116, at 479–80. ↑
  181. Cf. List & Pettit, supra note 98, at 182 (discussing moral agency in the context of deliberating between groups of people and denying that aggregates have moral interests independent of individuals). ↑
  182. See Babbitt v. Sweet Home Chapter of Cmtys. For a Great Or., 515 U.S. 687, 708 (1995) (holding that the definition of “harm” under the Endangered Species Act could include habitat loss). ↑
  183. Here, correct prices are simply those that would exist in a perfect market. ↑
  184. See, e.g., Harsanyi, supra note 147; Harsanyi, supra note 142. ↑
  185. Rawls, supra 140, at 11. ↑
  186. Id. ↑
  187. As noted by Carlier and Treich, in the original position literature:[P]eople are asked to imagine that they do not know their gender, ethnic background, economic status, class, abilities or talents; they can be slaves, physically [disabled], mentally [disabled] and so forth, but they usually cannot be animals. Many mental barriers are overcome in this thought experiment, but not that of species.

    Carlier & Treich, supra note 8, at 131. ↑

  188. For an account of fairly complex social relationships in the non-human world, see generally Frans de Waal, Chimpanzee Politics: Power and Sex Among Apes (1st U.S. ed. 1982) (studying the social organization of a chimpanzee colony). ↑
  189. Wilfrid Sellars, Empiricism and the Philosophy of Mind 76 (Harv. Univ. Press 1997) (1956) (noting that the “space of reasons” is one “of justifying and being able to justify what one says,” i.e., one that requires quite sophisticated communicative capacities). ↑
  190. Nils Chr. Stenseth, Where Have All the Species Gone? On the Nature of Extinction and the Red Queen Hypothesis, 33 Oikos 196, 196 (1979). ↑
  191. Id. at 197–99, 223. ↑
  192. Id. at 197. ↑
  193. Levi T. Morran, Olivia G. Schmidt, Ian A. Gelarden, Raymond C. Parrish II & Curtis M. Lively, Running with the Red Queen: Host-Parasite Coevolution Selects for Biparental Sex, 333 Science 216, 216 (2011). ↑
  194. We might imagine that transaction costs could create space between an evolutionarily stable equilibrium and the Pareto frontier. ↑
  195. Karen Bradshaw argues that, to a limited degree, non-human animals have been granted some property rights. Karen Bradshaw, Animal Property Rights, 89 Univ. Colo. L. Rev. 809, 823 (2018). But even under a generous interpretation, as a share of the wealth of the world, the portion granted to non-humans is vanishingly small. The question of whether non-humans deserve more is one that sounds in justice and cannot be answered based on the existing state of the law. ↑
  196. Derek Parfit, Equality and Priority, 10 Ratio (n.s.) 202, 213 (1997). ↑
  197. See Rawls, supra note 140, at 13. ↑
  198. See, e.g., Taylor, supra note 157, at 218. ↑
  199. Aldo Leopold, A Sand County Almanac 224–25 (1949). ↑
  200. It is possible that Leopold meant the “biotic community” in local rather than global terms. See id. at 129–32 (understanding ecological effects by “thinking like a mountain”). If so, Leopold’s biotic communities would be akin to other aggregates (such as ecosystems or species) that are discussed above in Part II. For purposes of the discussion that follows, we interpret the biotic community as extending to the global scale. ↑
  201. Individual, Oxford English Dictionary (3d ed. 2014); Charlton T. Lewis & Charles Short, In-dīviduus, A Latin Dictionary (1879), http://www.perseus.tufts.edu/hopper/text?‌doc=‌Per‌seus:‌text:‌1999.04.0060:‌entry=individuus [https://perma.cc/T6KU-XWLE]. ↑
  202. J.E. Lovelock, Gaia as Seen Through the Atmosphere, 6 Atmospheric Env’t 579, 579 (1972); James E. Lovelock & Lynn Margulis, Atmospheric Homeostasis by and for the Biosphere: The Gaia Hypothesis, 26 Tellus 2, 3 (1974). ↑
  203. According to Margulis, Gaia “is not an organism” but “an emergent property of interaction among organisms.” She defined Gaia as “the series of interacting ecosystems that compose a single huge ecosystem at the Earth’s surface. Period.” Lynn Margulis, Symbiotic Planet: A New Look at Evolution 119–20 (1998). ↑
  204. See David Abram, The Spell of the Sensuous: Perception and Language in a More-Than-Human World 302 n.62 (1996) (“Whatever the scientific fate of the Gaia hypothesis, . . . [it] ultimately encourages us to speak of the encompassing earth in the manner of our oral ancestors, as an animate, living presence.”). ↑
  205. See Rosaleen Howard-Malverde, “Pachamama Is a Spanish Word”: Linguistic Tension Between Aymara, Quechua, and Spanish in Northern Potosí (Bolivia), 37 Anthropological Linguistics 141, 141–43 (1995). ↑
  206. See, e.g., Dennis McKerlie, Egalitarianism and the Separateness of Persons, 18 Can. J. Phil. 205, 205, 207–08 (1988). ↑
  207. It bears noting that even if the interests of persons are not treated separately, diminishing marginal utility of consumption would justify some level of redistribution in an unequal society. ↑
  208. See, e.g., Adler, supra note 131, at 314–21. ↑
  209. Sarah F. Brosnan & Frans B.M. de Waal, Monkeys Reject Unequal Pay, 425 Nature 297, 297 (2003). ↑
  210. See generally Edward O. Wilson, Sociobiology: The New Synthesis 106–29 (1975) (exploring the biological origins of altruism). ↑
  211. See Brosnan & de Waal, supra note 208, at 297. ↑
  212. The influence of modern humans is particularly strong compared to other species, although that influence emerged gradually over time. If humans are understood as distinct from the biotic community due to this influence, it would raise the question of when, after Homo sapiens became a distinct species, its influence was sufficiently grave that it broke off from the biotic community as a whole. ↑
  213. Many environmental ethicists reject the notion that humans are separate from nature in any fundamental sense. See generally Uncommon Ground: Rethinking the Human Place in Nature (William Cronon ed., 1995) (collection of essays exploring consequences of human-nature connection for environmental law and ethics). Of course, there is a long philosophical tradition that does separate humans from the rest of nature, based on characteristics such as the capacity for reason. Immanuel Kant, Groundwork of the Metaphysics of Morals 37 (Mary Gregor ed. & trans., Cambridge Univ. Press 1998) (1785) (distinguishing between “persons”—rational beings who are ends in themselves—and “things”—non-rational beings that have worth only as means). For a recent example, see George Kateb, Human Dignity (2011) (arguing that humans have a special responsibility of stewardship that other species do not). But such accounts are very much at odds with the one-entity approach, with its holistic emphasis on interdependence and the embeddedness of humans within broader natural systems. ↑
  214. See generally Jedediah Purdy, After Nature: A Politics for the Anthropocene (2015) (exploring implications of pervasive human influence over the environment). ↑
  215. Yinon M. Bar-On, Rob Phillips & Ron Milo, The Biomass Distribution on Earth, 115 Proc. Nat’l Acad. Sci. 6506, 6507–08 (2018). ↑
  216. Elizabeth Pennisi, Plants Outweigh All Other Life on Earth, Sci. Mag. (May 21, 2018), https://www.sciencemag.org/news/2018/05/plants-outweigh-all-other-life-earth [https://perma.cc/S7VD-32J5]. ↑
  217. See Z.A. Wendling et al., 2020 Environmental Performance Index 1 (2020), https://epi.yale.edu/downloads/epi2020report20210112.pdf [https://perma.cc/Y54P-8PZX]. ↑
  218. Id. ↑
  219. Id. ↑
  220. Id. ↑
  221. The EPI data is available at EPI Downloads, EPI2020 Results, https://epi.yale.edu/downloads [https://perma.cc/9YVK-7YM3]. ↑
  222. A principal components analysis of the issue category variables indicates that, although the first component accounts for nearly half the total variance, seven components are needed to account for ninety percent. ↑
  223. Even if there were a single overarching dimension of environmental performance, that would not be the end of the inquiry—the moral basis for using the index to limit human activities would need to be defended. ↑
  224. See Dworkin, supra note 104, at xi. ↑
  225. See generally Michael A. Livermore & Richard L. Revesz, Rethinking Health-Based Environmental Standards, 89 N.Y.U. L. Rev. 1184, 1186–90 (2014) (discussing the “stopping point problem” in the context of air quality regulation). Balancing would require that an interest be defined such that it could be compared to the costs of refraining from the activity. ↑
  226. See generally Esperanza Martinez, Prólogo, in La Naturaleza Con Derechos: De la Filosofía a la Política 7, 13–20 (Alberto Acosta & Esperanza Martínez eds., 2010) (arguing for the transformational potential of nature’s rights). But see Mary Elizabeth Whittemore, The Problem of Enforcing Nature’s Rights Under Ecuador’s Constitution: Why the 2008 Environmental Amendments Have No Bite, 20 Pacific Rim L. & Pol’y J. 659, 661 (arguing that, “all things considered, successful execution of the environment provisions is unlikely in Ecuador’s legal and political environment”). ↑
  227. Fundación Pachamama, Reconocimiento de los Derechos de la Naturaleza en la Constitución Ecuatoriana 12 (2010). ↑
  228. Whittemore, supra note 225, at 661. ↑
  229. As Patricia Siemen from the Center for Earth Jurisprudence warned, without political support, environmental rights “won’t be enforced.” Brandon Keim, Nature to Get Legal Rights in Bolivia, Wired (Apr. 18, 2011), https://www.wired.com/2011/04/gulf-natural-rights/ [https://perma.cc/XK4N-FL6E]. ↑
  230. Akchurin, supra note 81, at 956. ↑
  231. Craig M. Kauffman & Pamela L. Martin, Can Rights of Nature Make Development More Sustainable? Why Some Ecuadorian Lawsuits Succeed and Others Fail, 92 World Dev. 130, 131 (2017). ↑
  232. Id. at 134; Craig M. Kauffman, Rights of Nature Lawsuits in Ecuador, Env’t Pol. & Env’t Pol’y, https://blogs.uoregon.edu/craigkauffman/rights-of-nature-lawsuits-in-ecuador/ [https://‌perma.cc/H6YC-ZDRW]. ↑
  233. Kauffman & Martin, supra note 230, at 135–36. ↑
  234. Id. at 134–35. ↑
  235. Id. at 135. ↑
  236. Id. ↑
  237. Id. at 136–37. ↑
  238. Id. at 137. ↑
  239. Id. ↑
  240. The conceptual problems outlined in Parts II and III would make it difficult, or impossible, to say whether nature’s rights have been appropriately vindicated in any given case. Nevertheless, we can evaluate judicial decisions involving nature’s rights on more general grounds. These include whether nature’s rights cases tend toward outcomes that the proponents of nature’s rights favor, whether decisions involving nature’s rights claims are predictable, and whether the reasons given by courts in nature’s rights cases are non-arbitrary and relate in a reasonable way to case outcomes. ↑
  241. Corte Constitucional del Ecuador [Consitutional Court of Ecuador], Apr. 27, 2016, Sentencia No. 034-16-SIN-CC 1. ↑
  242. Id. at 6. ↑
  243. Id. at 14. ↑
  244. Id. ↑
  245. The court began by claiming that the constitutional change represented a “rupture with the traditional paradigm of considering nature a simple object.” Under this “new paradigm . . . nature is an independent subject of constitutional rights.” The court went on to state that “the Constitution breaks with an anthropocentric worldview, according to which humans are the center and end of all things, to a biocentrism one that recognizes that nature does not need humans but humans need nature.” La Corte Constitutional del Ecuador [the Constitutional Court of Ecuador] 27 Apr., 2016, Sentencia No. 034-16-SIN-CC 13 (translation by the author). ↑
  246. Corte Constitucional del Ecuador, Sentencia No. 034-16-SIN-CC 16 (translation by the author). ↑
  247. La Corte Constitutional del Ecuador [the Constitutional Court of Ecuador], May 20, 2015, Sentencia No. 166-15-SEP-CC 14. ↑
  248. Id. at 13⁠–14. ↑
  249. Id. at 15–16 (translation by the author). ↑
  250. La Corte Constitutional del Ecuador [the Constitutional Court of Ecuador], Sept. 2, 2015, Sentencia No. 293-15-SEP-CC 2–3. ↑
  251. Id. at 13. ↑
  252. Id. ↑
  253. See generally Frederick Schauer, The Force of Law 5 (2015) (arguing for the particular role of sanctions in understanding the distinctive nature of law); Richard A. Posner, Economic Analysis of Law 183–84 (3d ed. 1986) (focusing on ex-ante incentive effects of law). ↑
  254. Rebecca Stone, Legal Design for the “Good Man,” 102 Va. L. Rev. 1767, 1806 (2016). ↑
  255. See, e.g., Richard H. McAdams, The Expressive Powers of Law: Theories and Limits 9 (2017) (offering a general theory on how law affects behavior via effects on beliefs and attitudes). ↑
  256. Robert Cooter, Expressive Law and Economics, 27 J. Legal Stud. 585, 586 (1998). ↑
  257. See, e.g., Laitos, supra note 89, at 759, 797–98 (2019) (describing what amounts to expressive theory of nature’s rights, although not referring to it as such). As discussed above, indigenous communities often provide pivotal political support for efforts to create nature’s rights. See supra Part I. The (potential) instrumental value of nature’s rights, then, could be understood not only in terms of human-nature relationships but also based on whether they have positive effects on the standing or treatment of these communities within their societies. It is certainly possible for nature’s rights campaigns to have strategic value in promoting the broader political goals of indigenous communities. Whether such campaigns are the best use of scarce resources is a pragmatic judgment based on a complex set of political, cultural, social, and behavioral factors. ↑
  258. Oliver A. Houck, Noah’s Second Voyage: The Rights of Nature as Law, 31 Tul. Env’t L.J. 1, 35 (2017). ↑
  259. Linda Sheehan, Implementing Rights of Nature Through Sustainability Bills of Rights, 13 N.Z. J. Pub. & Int’l L. 89, 98 (2015). ↑
  260. Akchurin, supra note 81, at 962. ↑
  261. Stone, supra note 89, at 500–01. ↑
  262. Matthew D. Adler, Expressive Theories of Law: A Skeptical Overview, 148 U. Pa. L. Rev. 1363, 1375 (2000). Adler ultimately rejects this type of expressive theory. Id. See also Cass R. Sunstein, On the Expressive Function of Law, 144 U. Pa. L. Rev. 2021, 2045 (1996) (distinguishing between expressive theories that focus on “norm management” from those that emphasize the “intrinsic” character of some statements). ↑
  263. See generally Elizabeth S. Anderson & Richard H. Pildes, Expressive Theories of Law: A General Restatement, 148 U. Pa. L. Rev. 1503, 1504 (2000) (“[W]hat makes an action morally right depends on whether it expresses the appropriate valuations of (that is, attitudes toward) persons.”). ↑
  264. Houck, supra note 257, at 35. ↑
  265. See Cope, Creamer & Versteeg, supra note 15, at 155. ↑
  266. See, e.g., Adam S. Chilton & Mila Versteeg, The Failure of Constitutional Torture Prohibitions, 44 J. Legal Stud. 417, 434 (2015) (finding no evidence that constitutional torture prohibitions have reduced rates of torture in a statistically significant or substantively meaningful way). ↑
  267. David S. Law & Mila Versteeg, Sham Constitutions, 101 Calif. L. Rev. 863, 865–67 (2013). ↑
  268. See generally Adam Chilton & Mila Versteeg, How Constitutional Rights Matter (2020) (examining the efficacy of constitutional rights); Chilton & Versteeg, supra note 15, at 577. ↑
  269. Cope, Creamer & Versteeg, supra note 15, at 171; see generally Chilton & Versteeg, supra note 267 (examining in detail the efficacy of these rights). ↑
  270. Cope, Creamer & Versteeg, supra note 15, at 171. ↑
  271. Id. ↑
  272. See generally Beth A. Simmons, Mobilizing for Human Rights: International Law in Domestic Politics (2009) (examining role of mobilization in the vindication of international human rights commitments); Charles R. Epp, The Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparative Perspective (1998) (documenting the role of activists, organizations, and democratized access to courts in expanding civil rights and liberties in various jurisdictions). ↑
  273. Cf. Vanberg, supra note 15, at 309 (arguing that procedural constitutional constraints have significant advantages over constitutional norms that attempt to secure broader substantive values); see also May & Daly, supra note 5, at 237 (suggesting that, collectively, such process rights can raise awareness, provide opportunities to participate, foster empowerment, strengthen local communities, facilitate government accountability, increase public acceptance of decisions, and contribute to the legitimacy of governmental action). ↑
  274. See, e.g., Zygmunt J.B. Plater, Dealing with Dumb and Dumber: The Continuing Mission of Citizen Environmentalism, 20 J. Env’t L. & Litig. 9 (2005); Cary Coglianese, Social Movements, Law, and Society: The Institutionalization of the Environmental Movement, 150 U. Pa. L. Rev. 85, 87–88 (2001). ↑
  275. See generally United Nations General Assembly, Report of the Special Rapporteur on the Situation of Human Rights Defenders A/71/281 (2016) (describing the “increasing violence, intimidation, harassment and demonization” of environmental activists). ↑
  276. United Nations Environmental Program, Environmental Rule of Law 116–34 (2019). ↑
  277. Global Witness, Enemies of the State? 7, 23, 30 (2019). ↑
  278. For example, within the United States, there is a long history of environmental organizations using procedural statutes for substantive ends. See generally William W. Buzbee, Fighting Westway: Environmental Law, Citizen Activism, and the Regulatory War That Transformed New York City 5 (2014) (documenting many ways groups used procedural challenges in the course of a year-long environmental campaign). ↑
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