Volume 109 - Virginia Law Review

Disclosing Corporate Diversity

This Article’s central claim is that disclosures can be used instrumentally to increase diversity in corporate America in terms of race, gender, sexual orientation, and disability. Until recently, scholars and policymakers have underappreciated this possibility because diversity was often omitted from the larger Environmental, Social, and Governance (“ESG”) disclosures context, even though, as this Article empirically shows, public companies make diversity disclosures in that context.

Diversity disclosures are important not only for shareholders’ interests in transparency, but also for the benefit of other stakeholders, including employees, customers, and the communities in which companies operate, who want to know whether companies are diverse to determine where to work, what brands to buy, and what companies value. The literature has yet to explore the significance of diversity disclosures for the benefit of all these stakeholders.

This Article argues that legal reform is needed to use disclosures to improve corporate diversity for the benefit of all stakeholders. Policy-makers must go beyond the confines of the securities laws to translate disclosure into societal change. This Article examines contemporary law and policy approaches that fall short of having forward-looking provisions that would have an impact on improving diversity. It proposes disclosure rules with statistical and forward-looking provisions and mechanisms that shareholder and employee activists, and others, can use to pressure companies to improve diversity incrementally.

Introduction

Since 2020, diversity has become a central concern for companies and their leaders, prompting more companies to voluntarily incorporate diversity into their Environmental, Social, and Governance (“ESG”) disclosures.¹1.ESG, which has its origins in the United Nations’ environmental movement, is about integrating environmental, social, and governance issues into business. For an excellent discussion about the origins and ambiguity around the term ESG, see Elizabeth Pollman, The Making and Meaning of ESG 20–29 (Inst. L. & Econ., Working Paper No. 659, 2022).Show More A 2021 survey showed that diversity, equity, and inclusion was the top focus—95% for public companies and 63% for private companies—in ESG reports that companies are currently disclosing or plan to disclose in the future.²2.Thompson Hine, An ESG Snapshot: Survey Confirms Companies Are Responding to Increasing Expectations 5 (2021), https://admin.thompsonhine.com/wp-content/uploads/202‌2/04/An_ESG_Snapshot.pdf [https://perma.cc/VHV7-9SE8]. Public companies are more likely to disclose ESG matters than private companies. L. Emily Hickman, Information Asymmetry in CSR Reporting: Publicly-Traded Versus Privately-Held Firms, 11 Sustainability Acct., Mgmt. & Pol’y J. 207, 219 (2020).Show More Indeed, as the empirical research in this Article shows, there has been a significant increase in diversity disclosures in companies’ ESG reports in the last five years. This Article defines corporate diversity as the representation and inclusion of employees, management, and board members in a company, by gender, race, ethnicity, LGBTQ+ status, and disability, and the provision of equal employment opportunity.

This Article makes three claims. The first is that disclosures can be used instrumentally to diversify corporate boardrooms and workplaces. The second is that while diversity disclosures are important for shareholders who want to know about diversity in the companies in which they invest, other stakeholders, including employees, suppliers, customers, community members, advocacy groups of various types, activists, reformers, and the public as a whole,³3.Survey after survey reveals that employees, customers, and the public all want companies to encourage or prioritize workplace diversity and inclusion. See, e.g., Susan Caminiti, Majority of Employees Want to Work for a Company that Values Diversity, Equity and Inclusion, Survey Shows, CNBC: Workforce Wire (Apr. 30, 2021, 3:12 PM), https://www.cnbc.com/2021/04/30/diversity-equity-and-inclusion-are-important-to-workers-survey-shows.html# [https://perma.cc/8NPJ-HZH8]; Shelby Jordan, 64% of Consumers Consider Making an Immediate Purchase After Seeing Diverse Advertisements, New Data Shows, PR Newswire (Nov. 11, 2020), https://www.prnewswire.com/news-releases/64-of-consumers-consider-making-an-immediate-purchase-after-seeing-diverse-advertisements-ne‌w-data-shows-301170981.html [https://perma.cc/5XHT-KECK]; Victoria Petrock, Consumers Expect Brands to Be Inclusive, Insider Intel. (Nov. 25, 2020), https://www.emarketer.com/content/consumers-expect-brands-inclusive [https://perma.cc/D‌M29-8H9G]; Juliana Menasce Horowitz, Americans See Advantages and Challenges in Country’s Growing Racial and Ethnic Diversity, Pew Rsch. Ctr. (May 8, 2019), https://www.pewresearch.org/social-trends/2019/05/08/americans-see-advantages-and-challe‌nges-in-countrys-growing-racial-and-ethnic-diversity/ [https://perma.cc/X568-XDGJ] (reporting that 75% of Americans say it is very or somewhat important for companies to promote racial and ethnic diversity in their workplace).Show More are also interested in diversity disclosures. The literature has yet to explore the importance of corporate diversity disclosures to these other stakeholders. The third is that legislative reform is needed for disclosures to be used as an instrument to increase corporate diversity.

The Article makes theoretical, empirical, and policy contributions in relation to these claims. Theoretically, it brings the ESG and corporate diversity literatures together for the first time. ESG is about the role of business in society, particularly whether and how companies consider the public interest in their practices and policies.⁴4.Sean O’Neill, What is the Difference Between CSR and ESG?, Corp. Governance Inst. (July 6, 2022), https://www.thecorporategovernanceinstitute.com/insights/lexicon/what-is-the-difference-between-csr-and-esg [https://perma.cc/R7QY-D8VL].Show More

Scholars have long written about Corporate Social Responsibility (“CSR”) and ESG, and corporate diversity as two separate subjects.⁵5.See infra notes 31–36 and accompanying text.Show More CSR and ESG scholarship can be traced to the 1930s debate between Columbia Law School’s Adolph Berle and Harvard Law School’s Merrick Dodd.⁶6.Ronald Chen & Jon Hanson, The Illusion of Law: The Legitimating Schemas of Modern Policy and Corporate Law, 103 Mich. L. Rev. 1, 35 (2004).Show More Berle described the protection of shareholders as the critical challenge facing corporate law.⁷7.A.A. Berle, Jr., Corporate Powers as Powers in Trust, 44 Harv. L. Rev. 1049, 1049 (1931).Show More Dodd focused on the power dynamics between corporations and society and argued that corporate managers should be attentive not just to shareholders, but to other stakeholders.⁸8.E. Merrick Dodd, Jr., For Whom Are Corporate Managers Trustees?, 45 Harv. L. Rev. 1145, 1158–61 (1932).Show More This debate crystallized in the 1970s—at a similar moment as the environmental movement sought to mitigate ecological harm caused by certain corporate practices—with Milton Friedman’s proclamation that managers should act primarily in the interest of shareholders rather than other stakeholders.⁹9.Milton Friedman, A Friedman Doctrine—The Social Responsibility of Business is to Increase Its Profits, N.Y. Times (Sept. 13, 1970), https://www.nytimes.com/‌1970/09/13/archives/a-friedman-doctrine-the-social-responsibility-of-business-is-to.html/ [https://perma.cc/6VKK-MWZV].Show More This academic debate is still very much alive today.¹⁰10.See Jill E. Fisch & Steven Davidoff Solomon, Should Corporations Have a Purpose?, 99 Tex. L. Rev. 1309, 1309 (2021); Mark J. Roe, Corporate Purpose and Corporate Competition, 99 Wash. U. L. Rev. 223, 223–25 (2021); Tom C.W. Lin, Incorporating Social Activism, 98 B.U. L. Rev. 1535, 1537–38 (2018); Margaret M. Blair & Lynn A. Stout, A Team Production Theory of Corporate Law, 85 Va. L. Rev. 247, 249–51 (1999); David Millon, Essay, New Game Plan or Business As Usual? A Critique of the Team Production Model of Corporate Law, 86 Va. L. Rev. 1001, 1001–03 (2000); Ronald M. Green, Shareholders as Stakeholders: Changing Metaphors of Corporate Governance, 50 Wash. & Lee L. Rev. 1409, 1409–14 (1993); Oliver Williamson, Corporate Governance, 93 Yale L.J. 1197, 1197–1200 (1984).Show More The Business Roundtable’s declaration in 2019 that companies have a “fundamental commitment to all . . . stakeholders”¹¹11.Business Roundtable Redefines the Purpose of a Corporation to Promote ‘An Economy that Serves All Americans’, Bus. Roundtable (Aug. 19, 2019), https://www.business‌roundtable.org/business-roundtable-redefines-the-purpose-of-a-corporation-to-promote-an-economy-that-serves-all-americans [https://perma.cc/4UTS-ABFF].Show More further complicated the debate since some scholars have argued that the declaration does not drastically shift companies’ purpose beyond shareholder wealth maximization.¹²12.See, e.g., Dorothy S. Lund, Corporate Finance for Social Good, 121 Colum. L. Rev. 1617, 1619–20 (2021). CEOs from 181 companies representing some of America’s largest companies signed the declaration. Bus. Roundtable, supra note 11.Show More

The corporate diversity literature has its roots in the passage of Title VII of the Civil Rights Act of 1964 and the Equal Employment Opportunity Act of 1972, which, among other things, address the role of corporations in gender and racial discrimination in the workplace and the economy.¹³13.Civil Rights Act of 1964, Pub. L. No. 88-352, §§ 703–704, 78 Stat. 241, 253–59; Equal Employment Opportunity Act of 1972, Pub. L. No. 92-261, 86 Stat. 103.Show More The U.S. Supreme Court’s diversity discourse has been integrated into corporate policies since the 1990s, which accelerated in 2020.¹⁴14.See, e.g., Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 313 (1978) (concluding that universities might use race as one factor among others to promote the “robust exchange of ideas” that might flow from a racially diverse academic community); see also Ellen Berrey, The Enigma of Diversity: The Language of Race and the Limits of Racial Justice 27, 196–97 (2015) (discussing the development of diversity management in the late twentieth century).Show More

Traditionally, CSR and ESG disclosures—which are typically not covered by financial metrics—were internal and external facing documents companies used to communicate their philanthropic efforts and their impact on the environment and the communities in which they operate.¹⁵15.Catherine Cote, What is a CSR Report and Why is it Important?, Harv. Bus. Sch. Online (Apr. 20, 2021), https://online.hbs.edu/blog/post/what-is-a-csr-report [https://perma.cc/6XK9‌-SL6M].Show More The CSR and ESG disclosure literature mirrored this traditional form of disclosures by mostly focusing on climate, environmental, and sustainability matters, and to some extent philanthropy, with little to no engagement with diversity.¹⁶16.See, e.g., Cynthia A. Williams, The Securities and Exchange Commission and Corporate Social Transparency, 112 Harv. L. Rev. 1197, 1199–1201 (1999); Russell B. Stevenson, Jr., The SEC and the New Disclosure, 62 Cornell L. Rev. 50, 50–59 (1976); Douglas M. Branson, Progress in the Art of Social Accounting and Other Arguments for Disclosure on Corporate Social Responsibility, 29 Vand. L. Rev. 539, 575–76, 581 (1976); Theodore Sonde & Harvey L. Pitt, Utilizing the Federal Securities Laws to “Clear the Air! Clean the Sky! Wash the Wind!”, 16 How. L.J. 831, 834–35 (1971); David Hess, Social Reporting: A Reflexive Law Approach to Corporate Social Responsiveness, 25 J. Corp. L. 41, 42–46 (1999); Janet E. Kerr, The Creative Capitalism Spectrum: Evaluating Corporate Social Responsibility Through a Legal Lens, 81 Temp. L. Rev. 831, 846 (2008); Thomas Lee Hazen, Social Issues in the Spotlight: The Increasing Need to Improve Publicly-Held Companies’ CSR and ESG Disclosures, 23 U. Pa. J. Bus. L. 740, 741–47 (2021); Daniel C. Esty & Quentin Karpilow, Harnessing Investor Interest in Sustainability: The Next Frontier in Environmental Information Regulation, 36 Yale J. on Regul. 625, 625–28 (2019).Show More Corporate diversity scholarship, on the other hand, has mostly focused on the business case for diversity, largely omitting the CSR and ESG disclosure framework.¹⁷17.See, e.g., Jeffrey Meli & James C. Spindler, The Promise of Diversity, Inclusion, and Punishment in Corporate Governance, 99 Tex. L. Rev. 1387, 1387–93 (2021); Lisa M. Fairfax, Board Diversity Revisited: New Rationale, Same Old Story?, 89 N.C. L. Rev. 855, 855–59 (2011) [hereinafter Fairfax, Revisited] (criticizing the overreliance on business justifications for diversifying corporate boards); Lisa M. Fairfax, The Bottom Line on Board Diversity: A Cost-Benefit Analysis of the Business Rationales for Diversity on Corporate Boards, 2005 Wis. L. Rev. 795, 796–99 [hereinafter Fairfax, Bottom Line]. The exception is Veronica Martinez & Gina-Gail S. Fletcher, Equality Metrics, 130 Yale L.J.F. 869, 869, 875 (2021), which addresses the role of diversity disclosures but in the context of shareholder transparency and decision making.Show More In fact, expanding the ESG literature to include corporate diversity is important for developing new theories of ESG and informing diversity policy as the field changes.

Empirically, this Article shows that, at least in the last five years, public companies have firmly integrated diversity disclosures in their ESG reports. This Article uses machine-learning techniques to analyze 3,461 ESG reports for 1,288 Russell 3000 index companies listed on the Nasdaq Stock Market LLC (“Nasdaq”) and the New York Stock Exchange (“NYSE”) for the five-year period from 2017 to 2021. For example, 95% of corporations mentioned racial or gender diversity in their 2021 ESG disclosures.

In terms of policy, this Article makes the case for using disclosures instrumentally to bring about change that would benefit all stakeholders through new legislation. This Article addresses the limitations of emerging attempts to mandate diversity disclosures, particularly by the Securities and Exchange Commission (“SEC”). Since the 1960s and 1970s, companies have grappled with whether and how to disclose their CSR and ESG policies and practices that impact shareholders, other stakeholders, and society.¹⁸18.See infra Section I.C and accompanying text.Show More Scholars and other commentators have since debated whether the SEC has the authority to require the disclosure of ESG practices.¹⁹19.See generally Williams, supra note 16, at 1205–07 (arguing that the SEC has the authority to require expanded disclosure and should use this authority to ensure “corporate social transparency”); Stevenson, supra note 16, at 58–62 (explaining and rebutting the SEC’s reluctancy to use its authority to require the disclosure of policies related to social goods); Branson, supra note 16, at 631–34 (discussing Judge Charles Richey’s perspective on the SEC’s authority to require social responsibility disclosure); Sonde & Pitt, supra note 16, at 835–36 (discussing the SEC’s opportunity to “help promote the nation’s environmental policy” through disclosure requirements related to the National Environmental Policy Act); Paul G. Mahoney & Julia D. Mahoney, The New Separation of Ownership and Control: Institutional Investors and ESG, 2021 Colum. Bus. L. Rev. 839, 843–45 (cautioning the SEC against adopting ESG disclosure mandates).Show More Even as academic debates have continued, however, corporations began to voluntarily disclose their CSR and ESG reports as early as the 1990s, largely because of shareholder pressure for transparency and information.²⁰20.See Cathy Hwang & Yaron Nili, Shareholder-Driven Stakeholderism, U. Chi. L. Rev. Online (Apr. 15, 2020), https://lawreviewblog.uchicago.edu/2020/04/15/shareholder-driven-stakeholderism-hwang-nili/ [https://perma.cc/7FTT-RYGP]; Andrew J. Hoffman, A Strategic Response to Investor Activism, 37 Sloan Mgmt. Rev. 51, 51 (1996); Michal Barzuza, Quinn Curtis & David H. Webber, Shareholder Value(s): Index Fund ESG Activism and the New Millennial Corporate Governance, 93 S. Cal. L. Rev. 1243, 1265 (2020); Stavros Gadinis & Amelia Miazad, Corporate Law and Social Risk, 73 Vand. L. Rev. 1401, 1464 (2020).Show More

In August 2021, the SEC approved Nasdaq’s rule requiring companies listed on its exchange to disclose the diversity of their boards pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 , and Rule 19b-4,²¹21.15 U.S.C. § 78s(b)(1); 17 C.F.R. § 240.19b-4 (2006).Show More making it the first-ever ESG disclosure mandate. While the rule is an important start to mandating diversity disclosures, the SEC is limited in its authority to use disclosures for social change. This limitation is evidenced by three features of the Nasdaq/SEC rule. First, the rule requires Nasdaq-listed companies to have two diverse board members—at least one director who self‑identifies as female and at least one director who self-identifies as an underrepresented minority or as LGBTQ+—or explain why they lack diversity on their boards.²²22.Underrepresented minority is defined as identifying as Black (or African American), Latinx, Asian, Native American, Alaska Native, Native Hawaiian, Pacific Islander, or a combination of multiple of these ethnicities; LGBTQ+ is defined as an individual who “self-identifies as any of the following: lesbian, gay, bisexual, transgender, or as a member of the queer community.” Order Approving Changes to Listing Rules Related to Board Diversity, 86 Fed. Reg. 44424, 44424–25, 44425 n.18 (Aug. 6, 2021). The SEC itself is looking to propose its own board diversity disclosure regulations for companies and may include disability status in its rules. See Lydia Beyoud & Andrew Ramonas, Disability Advocates Seek Inclusion in SEC Board Diversity Rules, Bloomberg L. (Sept. 30, 2021), https://news.bloomberglaw.com/‌esg/disability-advocates-seek-inclusion-in-sec-board-diversity-rules [https://perma.cc/3Z7W-H2KD].Show More The “explain” portion of this “disclose or explain” approach means that companies do not have to disclose two diverse board members if they can explain why they lack board diversity. The SEC states that, “[w]hile the proposal may have the effect of encouraging some Nasdaq-listed companies to increase diversity on their boards, the proposed rules do not mandate any particular board composition.”²³23.Order Approving Changes to Listing Rules Related to Board Diversity, 86 Fed. Reg. at 44428.Show More Therefore, the rule advances shareholder transparency but stops short of using disclosures to increase board diversity. Second, the rule applies only to boards and would not require the disclosure of employee or executive diversity, which significantly limits its reach. Third, it only applies to public companies listed on the Nasdaq stock exchange; it does not apply to companies listed on other exchanges or private companies with large valuations that are like public companies, thereby omitting a large subset of the economy.

This Article argues that Congress should step in to establish a diversity disclosure obligation that can increase diversity in both public and private companies. The United States House of Representatives recently passed the ESG Disclosure Simplification Act of 2021 (“ESG Disclosure Act”),²⁴24.The ESG Disclosure Simplification Act was passed as part of the Corporate Governance Improvement and Investor Protection Act, H.R. 1187, 117th Cong. (as passed by House, June 16, 2021). The Bill was originally introduced in the House as the ESG Disclosure Simplification Act (“EDSA”) on February 18, 2021. 167 Cong. Rec. H535 (daily ed. Feb. 18, 2021).Show More which would require companies to disclose their ESG matters, including employee and board diversity.²⁵25.H.R. 1187 § 603. The Act would also require companies to disclose their environmental and climate risk mitigation measures. Id. § 403.Show More While the proposed ESG Disclosure Act is a significant step toward mandating diversity disclosures for transparency, it lacks a forward-looking component to increase diversity over time.²⁶26.See Atinuke O. Adediran, Disclosures for Equity, 122 Colum. L. Rev. 865, 873–74 (2022) (explaining how to use disclosures to reach racial equity ends).Show More This Article proposes a comprehensive disclosure regime with statistical and forward-looking components and explains how shareholder and employee activists can use disclosures to push companies to actually increase diversity incrementally over time.

This Article proceeds in four parts. Part I discusses the scholarship on CSR and ESG, the history of movements to make CSR and ESG disclosures mandatory, and the history of voluntary ESG disclosures. Part II discusses contemporary law, policy, and private ordering around diversity disclosures, including the recent Nasdaq/SEC rule mandating diversity disclosures and Congress’s attempt to mandate diversity disclosures in the ESG Disclosure Act. Part III describes the data and methods used for analysis and empirically shows that diversity disclosures are already firmly included in ESG reports. Part IV analyzes the shortcomings of the Nasdaq/SEC and legislative approaches, arguing that because the purpose of securities laws is limited to ensuring transparency for shareholders to make investment decisions, it is imperative to have a comprehensive disclosure regime that can be used to improve board and workplace diversity rather than to merely provide transparency or serve other shareholder interests. Part IV then proposes a comprehensive disclosure legislation that includes statistical information and forward-looking provisions that aim to gradually increase corporate diversity to benefit a broader range of stakeholders. It also discusses the role of shareholder and employee activists as mechanisms to pressure companies to improve diversity under both the proposed regime and the current Nasdaq/SEC “disclose or explain” rule.

ESG, which has its origins in the United Nations’ environmental movement, is about integrating environmental, social, and governance issues into business. For an excellent discussion about the origins and ambiguity around the term ESG, see Elizabeth Pollman, The Making and Meaning of ESG 20–29 (Inst. L. & Econ., Working Paper No. 659, 2022). ↑
Thompson Hine, An ESG Snapshot: Survey Confirms Companies Are Responding to Increasing Expectations 5 (2021), https://admin.thompsonhine.com/wp-content/uploads/202‌2/04/An_ESG_Snapshot.pdf [https://perma.cc/VHV7-9SE8]. Public companies are more likely to disclose ESG matters than private companies. L. Emily Hickman, Information Asymmetry in CSR Reporting: Publicly-Traded Versus Privately-Held Firms, 11 Sustainability Acct., Mgmt. & Pol’y J. 207, 219 (2020). ↑
Survey after survey reveals that employees, customers, and the public all want companies to encourage or prioritize workplace diversity and inclusion. See, e.g., Susan Caminiti, Majority of Employees Want to Work for a Company that Values Diversity, Equity and Inclusion, Survey Shows, CNBC: Workforce Wire (Apr. 30, 2021, 3:12 PM), https://www.cnbc.com/2021/04/30/diversity-equity-and-inclusion-are-important-to-workers-survey-shows.html# [https://perma.cc/8NPJ-HZH8]; Shelby Jordan, 64% of Consumers Consider Making an Immediate Purchase After Seeing Diverse Advertisements, New Data Shows, PR Newswire (Nov. 11, 2020), https://www.prnewswire.com/news-releases/64-of-consumers-consider-making-an-immediate-purchase-after-seeing-diverse-advertisements-ne‌w-data-shows-301170981.html [https://perma.cc/5XHT-KECK]; Victoria Petrock, Consumers Expect Brands to Be Inclusive, Insider Intel. (Nov. 25, 2020), https://www.emarketer.com/content/consumers-expect-brands-inclusive [https://perma.cc/D‌M29-8H9G]; Juliana Menasce Horowitz, Americans See Advantages and Challenges in Country’s Growing Racial and Ethnic Diversity, Pew Rsch. Ctr. (May 8, 2019), https://www.pewresearch.org/social-trends/2019/05/08/americans-see-advantages-and-challe‌nges-in-countrys-growing-racial-and-ethnic-diversity/ [https://perma.cc/X568-XDGJ] (reporting that 75% of Americans say it is very or somewhat important for companies to promote racial and ethnic diversity in their workplace). ↑
Sean O’Neill, What is the Difference Between CSR and ESG?, Corp. Governance Inst. (July 6, 2022), https://www.thecorporategovernanceinstitute.com/insights/lexicon/what-is-the-difference-between-csr-and-esg [https://perma.cc/R7QY-D8VL]. ↑
See infra notes 31–36 and accompanying text. ↑
Ronald Chen & Jon Hanson, The Illusion of Law: The Legitimating Schemas of Modern Policy and Corporate Law, 103 Mich. L. Rev. 1, 35 (2004). ↑
A.A. Berle, Jr., Corporate Powers as Powers in Trust, 44 Harv. L. Rev. 1049, 1049 (1931). ↑
E. Merrick Dodd, Jr., For Whom Are Corporate Managers Trustees?, 45 Harv. L. Rev. 1145, 1158–61 (1932). ↑
Milton Friedman, A Friedman Doctrine—The Social Responsibility of Business is to Increase Its Profits, N.Y. Times (Sept. 13, 1970), https://www.nytimes.com/‌1970/09/13/archives/a-friedman-doctrine-the-social-responsibility-of-business-is-to.html/ [https://perma.cc/6VKK-MWZV]. ↑
See Jill E. Fisch & Steven Davidoff Solomon, Should Corporations Have a Purpose?, 99 Tex. L. Rev. 1309, 1309 (2021); Mark J. Roe, Corporate Purpose and Corporate Competition, 99 Wash. U. L. Rev. 223, 223–25 (2021); Tom C.W. Lin, Incorporating Social Activism, 98 B.U. L. Rev. 1535, 1537–38 (2018); Margaret M. Blair & Lynn A. Stout, A Team Production Theory of Corporate Law, 85 Va. L. Rev. 247, 249–51 (1999); David Millon, Essay, New Game Plan or Business As Usual? A Critique of the Team Production Model of Corporate Law, 86 Va. L. Rev. 1001, 1001–03 (2000); Ronald M. Green, Shareholders as Stakeholders: Changing Metaphors of Corporate Governance, 50 Wash. & Lee L. Rev. 1409, 1409–14 (1993); Oliver Williamson, Corporate Governance, 93 Yale L.J. 1197, 1197–1200 (1984). ↑
Business Roundtable Redefines the Purpose of a Corporation to Promote ‘An Economy that Serves All Americans’, Bus. Roundtable (Aug. 19, 2019), https://www.business‌roundtable.org/business-roundtable-redefines-the-purpose-of-a-corporation-to-promote-an-economy-that-serves-all-americans [https://perma.cc/4UTS-ABFF]. ↑
See, e.g., Dorothy S. Lund, Corporate Finance for Social Good, 121 Colum. L. Rev. 1617, 1619–20 (2021). CEOs from 181 companies representing some of America’s largest companies signed the declaration. Bus. Roundtable, supra note 11. ↑
Civil Rights Act of 1964, Pub. L. No. 88-352, §§ 703–704, 78 Stat. 241, 253–59; Equal Employment Opportunity Act of 1972, Pub. L. No. 92-261, 86 Stat. 103. ↑
See, e.g., Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 313 (1978) (concluding that universities might use race as one factor among others to promote the “robust exchange of ideas” that might flow from a racially diverse academic community); see also Ellen Berrey, The Enigma of Diversity: The Language of Race and the Limits of Racial Justice 27, 196–97 (2015) (discussing the development of diversity management in the late twentieth century). ↑
Catherine Cote, What is a CSR Report and Why is it Important?, Harv. Bus. Sch. Online (Apr. 20, 2021), https://online.hbs.edu/blog/post/what-is-a-csr-report [https://perma.cc/6XK9‌-SL6M]. ↑
See, e.g., Cynthia A. Williams, The Securities and Exchange Commission and Corporate Social Transparency, 112 Harv. L. Rev. 1197, 1199–1201 (1999); Russell B. Stevenson, Jr., The SEC and the New Disclosure, 62 Cornell L. Rev. 50, 50–59 (1976); Douglas M. Branson, Progress in the Art of Social Accounting and Other Arguments for Disclosure on Corporate Social Responsibility, 29 Vand. L. Rev. 539, 575–76, 581 (1976); Theodore Sonde & Harvey L. Pitt, Utilizing the Federal Securities Laws to “Clear the Air! Clean the Sky! Wash the Wind!”, 16 How. L.J. 831, 834–35 (1971); David Hess, Social Reporting: A Reflexive Law Approach to Corporate Social Responsiveness, 25 J. Corp. L. 41, 42–46 (1999); Janet E. Kerr, The Creative Capitalism Spectrum: Evaluating Corporate Social Responsibility Through a Legal Lens, 81 Temp. L. Rev. 831, 846 (2008); Thomas Lee Hazen, Social Issues in the Spotlight: The Increasing Need to Improve Publicly-Held Companies’ CSR and ESG Disclosures, 23 U. Pa. J. Bus. L. 740, 741–47 (2021); Daniel C. Esty & Quentin Karpilow, Harnessing Investor Interest in Sustainability: The Next Frontier in Environmental Information Regulation, 36 Yale J. on Regul. 625, 625–28 (2019). ↑
See, e.g., Jeffrey Meli & James C. Spindler, The Promise of Diversity, Inclusion, and Punishment in Corporate Governance, 99 Tex. L. Rev. 1387, 1387–93 (2021); Lisa M. Fairfax, Board Diversity Revisited: New Rationale, Same Old Story?, 89 N.C. L. Rev. 855, 855–59 (2011) [hereinafter Fairfax, Revisited] (criticizing the overreliance on business justifications for diversifying corporate boards); Lisa M. Fairfax, The Bottom Line on Board Diversity: A Cost-Benefit Analysis of the Business Rationales for Diversity on Corporate Boards, 2005 Wis. L. Rev. 795, 796–99 [hereinafter Fairfax, Bottom Line]. The exception is Veronica Martinez & Gina-Gail S. Fletcher, Equality Metrics, 130 Yale L.J.F. 869, 869, 875 (2021), which addresses the role of diversity disclosures but in the context of shareholder transparency and decision making. ↑
See infra Section I.C and accompanying text. ↑
See generally Williams, supra note 16, at 1205–07 (arguing that the SEC has the authority to require expanded disclosure and should use this authority to ensure “corporate social transparency”); Stevenson, supra note 16, at 58–62 (explaining and rebutting the SEC’s reluctancy to use its authority to require the disclosure of policies related to social goods); Branson, supra note 16, at 631–34 (discussing Judge Charles Richey’s perspective on the SEC’s authority to require social responsibility disclosure); Sonde & Pitt, supra note 16, at 835–36 (discussing the SEC’s opportunity to “help promote the nation’s environmental policy” through disclosure requirements related to the National Environmental Policy Act); Paul G. Mahoney & Julia D. Mahoney, The New Separation of Ownership and Control: Institutional Investors and ESG, 2021 Colum. Bus. L. Rev. 839, 843–45 (cautioning the SEC against adopting ESG disclosure mandates). ↑
See Cathy Hwang & Yaron Nili, Shareholder-Driven Stakeholderism, U. Chi. L. Rev. Online (Apr. 15, 2020), https://lawreviewblog.uchicago.edu/2020/04/15/shareholder-driven-stakeholderism-hwang-nili/ [https://perma.cc/7FTT-RYGP]; Andrew J. Hoffman, A Strategic Response to Investor Activism, 37 Sloan Mgmt. Rev. 51, 51 (1996); Michal Barzuza, Quinn Curtis & David H. Webber, Shareholder Value(s): Index Fund ESG Activism and the New Millennial Corporate Governance, 93 S. Cal. L. Rev. 1243, 1265 (2020); Stavros Gadinis & Amelia Miazad, Corporate Law and Social Risk, 73 Vand. L. Rev. 1401, 1464 (2020). ↑
15 U.S.C. § 78s(b)(1); 17 C.F.R. § 240.19b-4 (2006). ↑
Underrepresented minority is defined as identifying as Black (or African American), Latinx, Asian, Native American, Alaska Native, Native Hawaiian, Pacific Islander, or a combination of multiple of these ethnicities; LGBTQ+ is defined as an individual who “self-identifies as any of the following: lesbian, gay, bisexual, transgender, or as a member of the queer community.” Order Approving Changes to Listing Rules Related to Board Diversity, 86 Fed. Reg. 44424, 44424–25, 44425 n.18 (Aug. 6, 2021). The SEC itself is looking to propose its own board diversity disclosure regulations for companies and may include disability status in its rules. See Lydia Beyoud & Andrew Ramonas, Disability Advocates Seek Inclusion in SEC Board Diversity Rules, Bloomberg L. (Sept. 30, 2021), https://news.bloomberglaw.com/‌esg/disability-advocates-seek-inclusion-in-sec-board-diversity-rules [https://perma.cc/3Z7W-H2KD]. ↑
Order Approving Changes to Listing Rules Related to Board Diversity, 86 Fed. Reg. at 44428. ↑
The ESG Disclosure Simplification Act was passed as part of the Corporate Governance Improvement and Investor Protection Act, H.R. 1187, 117th Cong. (as passed by House, June 16, 2021). The Bill was originally introduced in the House as the ESG Disclosure Simplification Act (“EDSA”) on February 18, 2021. 167 Cong. Rec. H535 (daily ed. Feb. 18, 2021). ↑
H.R. 1187 § 603. The Act would also require companies to disclose their environmental and climate risk mitigation measures. Id. § 403. ↑
See Atinuke O. Adediran, Disclosures for Equity, 122 Colum. L. Rev. 865, 873–74 (2022) (explaining how to use disclosures to reach racial equity ends). ↑

Property against Legality: Takings after Cedar Point

In the American constitutional tradition, a zealous judicial defense of property is closely aligned with the idea of “the rule of law.” Conventional wisdom holds that the Takings Clause of the Fifth Amendment vindicates both property rights and the rule of law by foreclosing arbitrary, lawless state action. But the standard story linking property rights, legality, and a constraint on arbitrary governance is more commonly stipulated than analyzed. This Article uses an apparent sharp break in takings jurisprudence, the United States Supreme Court’s June 2021 decision in Cedar Point Nursery v. Hassid, to closely scrutinize the relationship between legality and property rights. To that end, it offers first a careful analysis of the sharp rupture that Cedar Point makes in takings jurisprudence. Not only is the Court’s result difficult to explain in terms of precedent or traditional legal methods, it also destabilizes a previously settled and reasonably predictable litigation landscape. As a result, it seeds profound uncertainty on the legal ground because it signals a dissolution of the constraining effect formerly realized by standard tools of legal reasoning. There is, further, no obvious way for the Court to restore stability and predictability to the doctrine without drawing new, arbitrary lines. In consequence, takings law will likely abide in confusion, not certainty, for the foreseeable future. Cedar Point’s vindication of property rights hence comes at the paradoxical cost of dramatically increasing the space for decisions unguided by law by one group of officials in the judiciary.

A close reading of Cedar Point invites a more general and abstract analysis of the complex, nuanced relationship between the rule of law and property rights. Drawing on the general jurisprudential theories of H.L.A. Hart and other legal positivists, I use the decision as a launching point for a larger exploration of ways in which the rule of law can be incompletely realized to paradoxical and even socially harmful effect. Placing property at the center of the rule of law, I suggest, can be consistent with, or even an incitement to, serious derogation of the rule of law. Doing so can undermine rule-of-law goals, such as constraining arbitrary rule. This suggests a need to decenter property rights in accounts of the rule of law, and to explore, in more nuanced and grounded fashion, how the practice of judicial review mediates systemic values of legality and predictability. In short, if we value the rule of law, it may in general be appropriate to take a more skeptical, and so more contingent, view of both property as a legal institution, and also the courts as a source of legality and stability.

Introduction

Property and its zealous defense are closely associated with the rule of law in the American constitutional tradition. A “total, arbitrary, and capricious power” is conceived as the enemy of both.¹1.Kenneth R. Minogue, The Concept of Property and Its Contemporary Significance, in NomosXXII: Property 3, 5 (J. Roland Pennock & John W. Chapman eds., 1980).Show More In Federalist 70, Alexander Hamilton thus termed the constitutional “protection of property against those irregular and high handed combinations, which sometimes interrupt the ordinary course of justice.”²2.The Federalist No. 70, at 471 (Alexander Hamilton) (Jacob E. Cooke ed., 1961).Show More Writing just after the Constitution’s ratification, James Madison warned that “just government” and “secure” property are imperiled by “arbitrary restrictions, exemptions, and monopolies [that] deny to part of its citizens that free use of their faculties . . . which not only constitute their property in the general sense of the word; but are the means of acquiring property strictly so called.”³3.James Madison, Property, Nat’l Gazette, Mar. 27, 1792, reprinted in 14 The Papers of James Madison 266, 267 (Robert A. Rutland et al. eds., 1983).Show More John Adams agreed. He opined that “[p]roperty must be secured, or liberty cannot exist.”⁴4.Cedar Point Nursery v. Hassid, 141 S. Ct. 2063, 2071 (2021) (quoting John Adams, Discourses on Davila, in 6 The Works of John Adams 223, 280 (Charles Francis Adams ed., 1851)).Show More In a leading constitutional treatise of the early Republic, St. George Tucker also identified the Takings Clause of the Fifth Amendment as a means “to restrain the arbitrary and oppressive mode of obtaining supplies for the army, and other public uses.”⁵5.St. George Tucker, 1 Blackstone’s Commentaries: With Notes of Reference, to the Constitution and Laws, of the Federal Government of the United States; and of the Commonwealth of Virginia, app. at 305–06 (Augustus M. Kelley 1969) (1803); see also Armstrong v. United States, 364 U.S. 40, 49 (1960) (describing the Clause’s aim as preventing the government “from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole”).Show More The U.S. Supreme Court concurs. Citing Madison, Adams, and others, the Justices have posited that enforcement of the Takings Clause “empowers persons to shape and to plan their own destiny in a world where governments are always eager to do so for them.”⁶6.Murrv.Wisconsin, 137 S. Ct. 1933, 1943 (2017); Cedar Point, 141 S. Ct. at 2071 (quoting Murr, 137 S. Ct. at 1943); see also Sveen v. Melin, 138 S. Ct. 1815, 1827 (2018) (Gorsuch, J., dissenting) (“Federalists like Madison countered that the rule of law permitted ‘property rights and liberty interests [to] be dissolved only by prospective laws of general applicability.’” (citation omitted)). The same theme is found in academic literature. See Richard A. Epstein, Design for Liberty: Private Property, Public Administration, and the Rule of Law 12 (2011) (describing a “close connection” between property’s protection and the rule of law); James W. Ely, Jr., Property Rights and Judicial Activism, 1 Geo. J.L. & Pub. Pol’y 125, 126 (2002) (“The Framers realized that robust protection of the rights of property owners undergirds liberty by diffusing power and protecting individual autonomy from governmental control.”).Show More Judicial protection of property rights serves the rule of law, on this account, by making state action predictable, by restraining arbitrary uses of state power, and by empowering citizens and others to chart their own “destinies” free of government control.

In this way, the idea of the rule of law, albeit not mentioned explicitly in the Constitution, has become “central to our political and rhetorical traditions, possibly even to our sense of national identity.”⁷7.Richard H. Fallon, Jr., “The Rule of Law” as a Concept in Constitutional Discourse, 97 Colum. L. Rev. 1, 3 (1997).Show More Scholars keenly debate what the rule of law—which is also sometimes called the principle of legality⁸8.See, e.g., Lon L. Fuller, The Morality of Law 44 (rev. ed. 1969) (using the phrase “the demands of legality” to capture the rule of law).Show More—requires.⁹9.Jeremy Waldron, Is the Rule of Law an Essentially Contested Concept (in Florida)?, 21 Law & Phil. 137, 140–44 (2002) (surveying disputes over its meaning).Show More But a kernel of common ground is apparent: the rule of law is commonly defined as the law’s clarity, stability, and predictability.¹⁰10.Fuller, supra note 8, at 39 (listing traits of the rule of law, including clarity and the capacity to be followed).Show More These qualities foster “confidence about the legal consequences of their actions.”¹¹11.Landgraf v. USI Film Prods., 511 U.S. 244, 266 (1994); see also Lawrence B. Solum, Equity and the Rule of Law, in Nomos XXXVI: The Rule of Law 120, 121 (Ian Shapiro ed., 1994) (including “generality, publicity, and regularity” among the rule of law’s features).Show More In contrast, state actions animated by “caprice, passion, bias, [or] prejudice” are all “antithetical to the rule of law.”¹²12.TXO Prod. Corp. v. Alliance Res. Corp., 509 U.S. 443, 475 (1993) (O’Connor, J., dissenting). The association of the rule of law with the constraint of official action goes back to a Victorian legal theorist who was one of the early adopters of the term “rule of law.” A.V. Dicey, Introduction to the Study of the Law of the Constitution 181–205 (10th ed. 1959).Show More As such, they cannot be ranked as properly legalistic state action. Such improper—but not, note well, ipso facto illegal—species of official action are impossible if those with official power “exercise their power within a constraining framework of public norms, rather than on the basis of their own preferences, their own ideology, or their own individual sense of right and wrong.”¹³13.Jeremy Waldron, The Concept and the Rule of Law, 43 Ga. L. Rev. 1, 6 (2008) [hereinafter Waldron, The Concept and the Rule].Show More Clear, predictable, and stable law binds officials at the same time that it guides citizens. Indeed, the two guidance functions are entwined. An official’s “arbitrary” exercise of power is not just the rule of law’s antipode.¹⁴14.Joseph Raz, The Rule of Law and its Virtue, in The Authority of Law: Essays on Law and Morality 210, 224 (1979) [hereinafter Raz, Rule of Law and its Virtue] (“The law inevitably creates a great danger of arbitrary power—the rule of law is designed to minimize the danger created by the law itself.”).Show More It is also the antithesis of individual liberty.¹⁵15.The kind of liberty protected by the rule of law is, again, contested and plural. See Brian Z. Tamanaha, On the Rule of Law: History, Politics, Theory 34–35 (2004) (distinguishing four kinds of freedom protected by the rule of law). The most relevant here are the freedom from unlicensed (and so unpredictable) legal constraint, and the preservation of a zone of personal autonomy. Id.Show More And so, in this standard narrative, there is a profound complementarity between the rule of law, property rights, and liberty.¹⁶16.Some accounts go further and suggest that it is the propertied who will have the leisure and the resources to defend rule of laws. Minogue, supra note 1, at 8.Show More

This Article interrogates this standard account of how property rights and the rule of law relate to each other in American constitutional law. Its point of departure is a 2021 Supreme Court opinion about the constitutional status of property rights. That judgment is important in its own right. It changes, potentially quite dramatically, the scope of constitutional protection for real property under the Takings Clause of the Fifth Amendment.¹⁷17.See U.S. Const. amend. V (stating that “private property [shall not] be taken for public use, without just compensation”).Show More Whatever its exact effects on the ground (literally!) may be, it certainly marks a sea change in Fifth Amendment jurisprudence.

Cedar Point Nursery v. Hassid¹⁸18.141 S. Ct. 2063 (2021).Show More held that a 1976 California “take access” regulation permitting union organizers to approach and talk to agricultural workers was a taking requiring compensation under the Fifth Amendment.¹⁹19.Cal. Code Regs. tit. 8, § 20900(e)(3) (2021); see also Cedar Point, 141 S. Ct. at 2069, 2072 (describing regulatory framework for agricultural labor under California law).Show More Part of a larger constitutional transformation sweeping over the separation of powers, the Religion Clauses, and abortion jurisprudence during the Roberts Court, Cedar Point has received less attention than other recent doctrinal convulsions. This neglect is unjustified.

A first contribution of this Article is to explore the possibility that the decision prefigures a dramatic and destabilizing shift in the nature of constitutional property. The legal uncertainty unleashed by that opinion is not likely to abate given the absence of any stable limit on the Court’s apparent reworking of the concept of constitutional property. Of larger theoretical significance, Cedar Point illustrates one way in which property rights and the rule of law can diverge, notwithstanding the standard story, to enlarge the scope for arbitrary state action. Hence, it invites the Article’s second, more theoretical contribution—a nuanced and careful theorization of property’s complex, many-stranded relation to the rule of law.

My analysis begins with the particulars of Cedar Point. The decision’s immediate effect, of course, was to change the terms for the increasingly beleaguered organized labor movement in one of the nation’s most important and fertile agricultural breadbaskets. Its longer-term, more abstract consequence was its implicit invitation for the future reworking of takings doctrine. In particular, the 2021 decision unraveled a central organizing conceit of takings jurisprudence. The latter has stabilized and channeled potential litigants’ expectations for decades. By diminishing the predictive value of precedent respecting property’s boundaries, the Court created uncertainty where property owners and officials previously had benefited from stable expectations.

Prior to Cedar Point, owners and officials got a reasonably clear sense of litigation outcomes by asking whether a state action was an “appropriation” or “regulation” as those words are used in everyday conversation. Under longstanding doctrine, legal challenges to appropriations generally prevailed under a “per se” rule. In contrast, the balancing test applicable to regulations typically, albeit far from inevitably, tilted in favor of the government. Distinguishing appropriations from regulations, moreover, was relatively straightforward when it came to real and chattel property. If the government indefinitely deprived you of the whole or part of the physical thing, you could typically expect to win a takings case.

To be sure, the doctrine elsewhere had other wrinkles. But in the vast majority of cases, these mattered only on 1L property exams and (very occasionally) in appellate litigation. The ensuing doctrine was relatively transparent, even to lay people unburdened by the intellectual pretensions of a legal education.

The Court in Cedar Point did not openly abandon the distinction between appropriations and regulations. More perplexingly, it invoked that distinction while refusing to deploy the ordinary meaning of an “appropriation.” While the verbal formulation of the law remained the same, a key doctrinal term with a clear and predictable lay meaning was replaced with an amorphous category of uncertain and unpredictable application. Legal and ordinary language hence parted company. By diminishing the clarifying force of doctrine, the Court created uncertainty where property owners and officials previously had reasonably stable expectations. This is one way in which Cedar Point revealed a tension between property rights and the clarity, stability, and predictability ambitions of the rule of law. Protecting the first can diminish the latter.

Another tension underlying the majority’s reasoning can be discerned by attending to its methodological choices: the Cedar Point Court ostentatiously relied on dictionaries, ordinary public meaning, and the binding force of precedent. But read closely, each of these argumentative threads unravel. Dictionary definitions were selectively picked; actual lay usage was ignored; and precedent was invoked only via selective quotation—distorting earlier constitutional holdings. In execution, therefore, Cedar Point’s vindication of property rights stood at odds with the application of familiar legal methods central to the rule of law.²⁰20.See Andrei Marmor, The Rule of Law and Its Limits, 23 Law & Phil. 1, 3 (2004).Show More Nor does the decision promise future clarity or stability.

Worse, Cedar Point did not ask or answer a crucial question: What distinguishes an impermissible “appropriation” from a “regulation” under the Takings Clause? The majority opinion offers hints. But none of these hold promise as a principled basis on which to draw a line between regulation and appropriation. Indeed, the ultimate, long-term effect of Cedar Point may well be to collapse the longstanding distinction between appropriations and regulations—a legal regime where most government action would be evaluated as an appropriation, even if it did not entail a physical invasion by the government. This doctrine’s end-state would dramatically expand judicial discretion, work avulsive change to the authority of state and local governments, and (ironically) foster fresh uncertainty about the resolution of inevitable and pervasive boundary disputes that arise in property law.

There is a bigger principle at stake here too. This close reading of Cedar Point further invites reappraisal of the way in which property and the rule of law have been theorized as working together in American constitutional law: Do they really intertwine as tightly as the standard story holds? A starting point for this analytic enterprise is a distinction drawn by the legal theorists H.L.A. Hart and Meir Dan-Cohen. Hart carved law up into “primary” rules applicable to the citizenry at large, and “secondary” rules that bind officials.²¹21.H.L.A. Hart, The Concept of Law 99 (Penelope A. Bulloch & Joseph Raz postscript eds., 2d ed. 1994) [hereinafter Hart, Concept of Law] (“The union of primary and secondary rules is at the centre of a legal system . . . .”).Show More Dan-Cohen, reasoning in a similar vein, distinguished “conduct rules” covering everyone, and “decision rules” directed at officials.²²22.Meir Dan-Cohen, Decision Rules and Conduct Rules: On Acoustic Separation in Criminal Law, 97 Harv. L. Rev. 625, 627 (1984).Show More The law, both Hart and Dan-Cohen thereby insisted, speaks in subtly differently accented voices to the public and to its official custodians.

Cedar Point illustrates the possibility that the rule of law can come apart along this seam. The ordinary subjects of property law remain subject to a body of (somewhat more ambiguous) rules after Cedar Point, even as the Court shrugs off the disciplining constraints imposed by legal method. The rule of law can thus be roughly maintained for primary rules of property, even as it dissipates as a constraint upon officials. As such, we can observe what I call “first-order legality” for rules applicable to private persons, without the “second-order legality” usually experienced by officials. This dichotomy, and the resulting internal fracturing, complicates canonical accounts of the rule of law by showing how it is possible for the qualities of certainty, predictability, and stability to be maintained with respect to one domain of the law, but not another. Consequently, legality can be partial. At worst, it can potentially come to be at war with itself.

With this bifurcated account of the rule of law in hand, it is possible to interrogate in a more considered way the supposedly monotonic relationships between legality, arbitrary rule, and the ambition of legality. The rule of law, at least in one of its traditions, is often distilled into an image of rigid, impenetrable property rights.²³23.See sources cited supra notes 2–5.Show More These, in turn, are hitched to the aspiration for freedom from arbitrary rule and economic growth. But even as Cedar Point offered an account of property as a cornerstone of the rule of law in precisely these terms, each element of this argument was unraveling. No longer is it clear that centering legality around property minimizes the scope for arbitrary decision making by officials. To the contrary, an account of the rule of law centered around property rights may either increase or decrease the risk of such arbitrary rule without a clear effect on economic growth or social welfare. Legality, when conceptualized in terms of property rights, thus can undermine widely shared normative goals it purports to advance. Their relation is contingent, not necessary.

This Article focuses on the relationship of takings jurisprudence to the rule of law. Existing commentary criticizes Cedar Point’s “hostility to worker power” and “antidemocracy” effects,²⁴24.Nikolas Bowie, Comment, Antidemocracy, 135 Harv. L. Rev. 160, 163 (2021). For a similar, if more equivocal, suggestion, see Cristina M. Rodríguez, Foreword: Regime Change, 135 Harv. L. Rev. 2, 32 (2021) (“[T]he Supreme Court’s burgeoning jurisprudence . . . has turned to the Bill of Rights, primarily the First Amendment, to limit social welfare and good-government regulation . . . .”); see also Linda Greenhouse, Justice on the Brink: The Death of Ruth Bader Ginsburg, the Rise of Amy Coney Barrett, and Twelve Months That Transformed the Supreme Court 224 (2021) (describing the case as a “potentially transformational development in the law of property rights . . . likely to hobble government land use regulation”). For a contrary view, see Julia D. Mahoney, Cedar Point Nursery and the End of the New Deal Settlement, 11 Brigham-Kanner Prop. Rts. J. 43, 64 (2022) (arguing that “Cedar Point represents an evolution, not a revolution, in the Court’s property rights jurisprudence” while celebrating the Court’s result and analysis). As it will become clear, I respectfully disagree with Professor Mahoney’s conclusions for reasons spelled out at length in this Article.Show More or alternatively defends its “classical liberal” pedigree.²⁵25.Sam Spiegelman & Gregory C. Sisk, Cedar Point: Lockean Property and the Search for a Lost Liberalism, 2020–21 Cato Sup. Ct. Rev. 165, 178–81 (2021) (talking of “the takings muddle”).Show More In contrast, I explore the Court’s new takings doctrine in relation to the ideal of the rule of law.²⁶26.Cf. Cedar Point Nursery v. Hassid, 141 S. Ct. 2063, 2071 (2021) (“As John Adams tersely put it, ‘[p]roperty must be secured, or liberty cannot exist.’” (citation omitted)).Show More The property/rule of law connection has been previously explored in a set of lectures by Professor Jeremy Waldron. He, however, trains on the relation of Lockean accounts of property to the rule of law though a political philosophy lens.²⁷27.Jeremy Waldron, The Rule of Law and the Measure of Property 27 (2012) [hereinafter Waldron, Measure of Property] (doubting that “Locke’s account” of property yields a specific definition of the rule of law).Show More My analysis and conclusions unfold along a different, American-constitutional-law track. Nevertheless, like Waldron, I hope to contribute to larger theoretical debates about the rule of law and its constituent parts.

Part I explores the basic architecture of takings doctrine prior to Cedar Point. Part II then offers a close reading of that decision. I carefully analyze its methodological underpinnings and doctrinal aftermath. Both in its origin and in its reasoning, I demonstrate, the opinion is in sharp tension with legality norms. Part III then broadens the analytic lens to evaluate the role that property plays in understandings of the rule of law. Using Cedar Point as an opening wedge for inquiry, it demonstrates how legality can unravel in ways that foster arbitrary rule and undermine economic growth. Of course, these are precisely the outcomes the rule of law is intended to stave off.

Kenneth R. Minogue, The Concept of Property and Its Contemporary Significance, in Nomos XXII: Property 3, 5 (J. Roland Pennock & John W. Chapman eds., 1980). ↑
The Federalist No. 70, at 471 (Alexander Hamilton) (Jacob E. Cooke ed., 1961). ↑
James Madison, Property, Nat’l Gazette, Mar. 27, 1792, reprinted in 14 The Papers of James Madison 266, 267 (Robert A. Rutland et al. eds., 1983). ↑
Cedar Point Nursery v. Hassid, 141 S. Ct. 2063, 2071 (2021) (quoting John Adams, Discourses on Davila, in 6 The Works of John Adams 223, 280 (Charles Francis Adams ed., 1851)). ↑
St. George Tucker, 1 Blackstone’s Commentaries: With Notes of Reference, to the Constitution and Laws, of the Federal Government of the United States; and of the Commonwealth of Virginia, app. at 305–06 (Augustus M. Kelley 1969) (1803); see also Armstrong v. United States, 364 U.S. 40, 49 (1960) (describing the Clause’s aim as preventing the government “from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole”). ↑
Murr v. Wisconsin, 137 S. Ct. 1933, 1943 (2017); Cedar Point, 141 S. Ct. at 2071 (quoting Murr, 137 S. Ct. at 1943); see also Sveen v. Melin, 138 S. Ct. 1815, 1827 (2018) (Gorsuch, J., dissenting) (“Federalists like Madison countered that the rule of law permitted ‘property rights and liberty interests [to] be dissolved only by prospective laws of general applicability.’” (citation omitted)). The same theme is found in academic literature. See Richard A. Epstein, Design for Liberty: Private Property, Public Administration, and the Rule of Law 12 (2011) (describing a “close connection” between property’s protection and the rule of law); James W. Ely, Jr., Property Rights and Judicial Activism, 1 Geo. J.L. & Pub. Pol’y 125, 126 (2002) (“The Framers realized that robust protection of the rights of property owners undergirds liberty by diffusing power and protecting individual autonomy from governmental control.”). ↑
Richard H. Fallon, Jr., “The Rule of Law” as a Concept in Constitutional Discourse, 97 Colum. L. Rev. 1, 3 (1997). ↑
See, e.g., Lon L. Fuller, The Morality of Law 44 (rev. ed. 1969) (using the phrase “the demands of legality” to capture the rule of law). ↑
Jeremy Waldron, Is the Rule of Law an Essentially Contested Concept (in Florida)?, 21 Law & Phil. 137, 140–44 (2002) (surveying disputes over its meaning). ↑
Fuller, supra note 8, at 39 (listing traits of the rule of law, including clarity and the capacity to be followed). ↑
Landgraf v. USI Film Prods., 511 U.S. 244, 266 (1994); see also Lawrence B. Solum, Equity and the Rule of Law, in Nomos XXXVI: The Rule of Law 120, 121 (Ian Shapiro ed., 1994) (including “generality, publicity, and regularity” among the rule of law’s features). ↑
TXO Prod. Corp. v. Alliance Res. Corp., 509 U.S. 443, 475 (1993) (O’Connor, J., dissenting). The association of the rule of law with the constraint of official action goes back to a Victorian legal theorist who was one of the early adopters of the term “rule of law.” A.V. Dicey, Introduction to the Study of the Law of the Constitution 181–205 (10th ed. 1959). ↑
Jeremy Waldron, The Concept and the Rule of Law, 43 Ga. L. Rev. 1, 6 (2008) [hereinafter Waldron, The Concept and the Rule]. ↑
Joseph Raz, The Rule of Law and its Virtue, in The Authority of Law: Essays on Law and Morality 210, 224 (1979) [hereinafter Raz, Rule of Law and its Virtue] (“The law inevitably creates a great danger of arbitrary power—the rule of law is designed to minimize the danger created by the law itself.”). ↑
The kind of liberty protected by the rule of law is, again, contested and plural. See Brian Z. Tamanaha, On the Rule of Law: History, Politics, Theory 34–35 (2004) (distinguishing four kinds of freedom protected by the rule of law). The most relevant here are the freedom from unlicensed (and so unpredictable) legal constraint, and the preservation of a zone of personal autonomy. Id. ↑
Some accounts go further and suggest that it is the propertied who will have the leisure and the resources to defend rule of laws. Minogue, supra note 1, at 8. ↑
See U.S. Const. amend. V (stating that “private property [shall not] be taken for public use, without just compensation”). ↑
141 S. Ct. 2063 (2021). ↑
Cal. Code Regs. tit. 8, § 20900(e)(3) (2021); see also Cedar Point, 141 S. Ct. at 2069, 2072 (describing regulatory framework for agricultural labor under California law). ↑
See Andrei Marmor, The Rule of Law and Its Limits, 23 Law & Phil. 1, 3 (2004). ↑
H.L.A. Hart, The Concept of Law 99 (Penelope A. Bulloch & Joseph Raz postscript eds., 2d ed. 1994) [hereinafter Hart, Concept of Law] (“The union of primary and secondary rules is at the centre of a legal system . . . .”). ↑
Meir Dan-Cohen, Decision Rules and Conduct Rules: On Acoustic Separation in Criminal Law, 97 Harv. L. Rev. 625, 627 (1984). ↑
See sources cited supra notes 2–5. ↑
Nikolas Bowie, Comment, Antidemocracy, 135 Harv. L. Rev. 160, 163 (2021). For a similar, if more equivocal, suggestion, see Cristina M. Rodríguez, Foreword: Regime Change, 135 Harv. L. Rev. 2, 32 (2021) (“[T]he Supreme Court’s burgeoning jurisprudence . . . has turned to the Bill of Rights, primarily the First Amendment, to limit social welfare and good-government regulation . . . .”); see also Linda Greenhouse, Justice on the Brink: The Death of Ruth Bader Ginsburg, the Rise of Amy Coney Barrett, and Twelve Months That Transformed the Supreme Court 224 (2021) (describing the case as a “potentially transformational development in the law of property rights . . . likely to hobble government land use regulation”). For a contrary view, see Julia D. Mahoney, Cedar Point Nursery and the End of the New Deal Settlement, 11 Brigham-Kanner Prop. Rts. J. 43, 64 (2022) (arguing that “Cedar Point represents an evolution, not a revolution, in the Court’s property rights jurisprudence” while celebrating the Court’s result and analysis). As it will become clear, I respectfully disagree with Professor Mahoney’s conclusions for reasons spelled out at length in this Article. ↑
Sam Spiegelman & Gregory C. Sisk, Cedar Point: Lockean Property and the Search for a Lost Liberalism, 2020–21 Cato Sup. Ct. Rev. 165, 178–81 (2021) (talking of “the takings muddle”). ↑
Cf. Cedar Point Nursery v. Hassid, 141 S. Ct. 2063, 2071 (2021) (“As John Adams tersely put it, ‘[p]roperty must be secured, or liberty cannot exist.’” (citation omitted)). ↑
Jeremy Waldron, The Rule of Law and the Measure of Property 27 (2012) [hereinafter Waldron, Measure of Property] (doubting that “Locke’s account” of property yields a specific definition of the rule of law). ↑

Addressing the School-to-Prison Pipeline Through Three Nontraditional Pathways

He who opens a school door, closes a prison.

– Victor Hugo

Analogous to Nathaniel Hawthorne’s critique of his leaders’ decision to use punishment as a sign of public accountability, and his adoption of the phrase “the black flower of civilized society” to describe the prison,¹1.Nathaniel Hawthorne, The Scarlet Letter 39 (Brian Harding ed., 2007).Show More our leaders in the White House, Congress, and the Supreme Court made several decisions about law and social policy between 1965 and 1973 that created a new culture of public accountability for uses (or misuses) of taxpayers’ money. By doing so, they inadvertently made it harder to invest in public education, but easier to invest in public prisons. The seeds that germinated from those decisions grew into a black flower whose bloom shaped American modernity for the next fifty years: the school-to-prison pipeline.²2.I use the term “school-to-prison” pipeline broadly to address the number of school-age children, adolescents, and teens who are justice-involved youth. How did they end up in the justice system? The pathway for some school-age youth began with a school referral to law enforcement officers based on a report of disruptive behavior—real or imagined. Another pathway for school-age youth is participation in illegal activities outside of school hours. Others arrive in the criminal justice system as children of an incarcerated mother or father, while factors such as race, gender, disability, poverty, or other issues not related directly to a school also provide a pathway. Thus, the “school-to-prison” pipeline phrase is myopic, in part, as a point of origin for this phenomenon. For this reason, I would prefer to name what we see a “child-to-prison” pipeline. Nevertheless, I will use school-to-prison pipeline because it remains the most well-known phrase to describe the topic in this Essay.Show More

The San Antonio Independent School District v. Rodriguez decision of 1973 fertilized this flower.³3.411 U.S. 1 (1973).Show More The United States Supreme Court held in Rodriguez that the U.S. Constitution did not protect education as a fundamental right; therefore, students could not challenge in federal court the funding disparities in Texas or elsewhere that privileged wealthier school districts while greatly disadvantaging poorer ones.⁴4.Id. at 35, 54–55.Show More Even while acknowledging the need for higher quality schools and more equality in educational opportunity,⁵5.Id. at 58.Show More the Court eliminated a federal constitutional remedy to achieve greater equity in school funding. This left educational opportunity to the discretion of state legislatures and courts.⁶6.See id. at 58–59; Charles J. Ogletree, Jr. & Kimberly Jenkins Robinson, Creating New Pathways to Equal Educational Opportunity, in The Enduring Legacy of Rodriguez: Creating New Pathways to Equal Educational Opportunity 263, 264 (Charles J. Ogletree, Jr. & Kimberly Jenkins Robinson eds., 2015); see also A Federal Right to Education: Fundamental Questions for Our Democracy (Kimberly Jenkins Robinson ed., 2019) (examining why the United States should recognize a federal right to education, how to recognize it, and what it should guarantee); Derek Black, Unlocking the Power of State Constitutions with Equal Protection: The First Step Toward Education as a Federally Protected Right, 51 Wm. & Mary L. Rev. 1343, 1408 (2010) (arguing that Rodriguez left open the possibility of enforcing equal protection by relying on state court definitions of a “minimally adequate education”); Susan H. Bitensky, Theoretical Foundations for a Right to Education Under the U.S. Constitution: A Beginning to the End of the National Education Crisis, 86 Nw. U. L. Rev. 550, 554 (1992) (exploring potential constitutional theories for recognizing a right to education).Show More The Court contended that federalism constraints and contested foundational questions in education policy led it to decline to intervene.⁷7.Rodriguez, 411 U.S. at 40–44.Show More

The Court’s decision to reject the claim that education is a fundamental right in Rodriguez, and take a “hands-off” approach to federal support to fund public schools, did three things. First, the decision provided political cover to elected state and local officials who were already involved in ideological debates back home about school finance and equity. Second, it started what I will call a War on Property Taxes. Third, the ruling raised one big question for governors and elected officials to answer: How will state legislatures, education departments, and local school districts operationalize the notion of equity, and eventually adequacy, in light of Rodriguez given the different visions of public schooling that are supported by a living state constitution?

So, while the Court’s ruling in Rodriguez supported a “hands-off” approach to funding public schools, it is worth noting that leaders in the White House and Congress during the same period of time were supporting a “hands-on” approach by implementing a tough-on-crime agenda that, ironically, impacted the same public school students (and their parents and communities) left behind by Rodriguez in 1973.

For example, a couple of years before Rodriguez, President Richard Nixon declared at a press meeting on June 17, 1971, that drug abuse in America was “public enemy number one[,]” and the crime that accompanied it was sweeping the nation.⁸8.Id.Show More He was not alone in this belief.

His predecessor, President Lyndon B. Johnson, shared a similar sentiment when he stated before Congress on March 8, 1965, that, “[c]rime has become a malignant enemy in America’s midst.”⁹9.See Lyndon B. Johnson, Special Message to the Congress on Law Enforcement and the Administration of Justice, in 1 Pub. Papers 263, 263 (1965).Show More A few months later, President Johnson signed Executive Order 11236 to establish the President’s Commission on Law Enforcement and Administration of Justice.¹⁰10.Exec. Order No. 11,236, 3 C.F.R. 329 (1964–1965).Show More The function of the Commission was to “[i]nquire into the causes of crime and delinquency, measures for their prevention, the adequacy of law enforcement and administration of justice, and the factors encouraging respect or disrespect for law . . . .”¹¹11.Id.Show More One major product from the Commission is the 1967 publication of The Challenge of Crime in a Free Society: A Report by the President’s Commission on Law Enforcement and Administration of Justice.¹²12.President’s Commission on Law Enforcement & Administration of Justice, The Challenge of Crime in a Free Society (1967), https://www.ojp.gov/sites/g/files/xyckuh241/‌files/archives/ncjrs/42.pdf [https://perma.cc/S36P-5W9X].Show More Chapter Three of the report addresses “Juvenile Delinquency and Youth Crime.”¹³13.Id. at 55–89.Show More One suggestion from this Chapter is for the police, schools, and courts to play a bigger role in referring youth to law enforcement.¹⁴14.Id. at 78–89. On page 89 is a chart to show the role of police in juvenile court and youth referrals compared to schools and parents.Show More In regard to the juvenile justice system in particular, the Commission recommended that “[t]o the greatest feasible extent, police departments should formulate policy guidelines for dealing with juveniles.”¹⁵15.Id. at 79.Show More

In 2023, we refer to this practice as the school-to-prison pipeline. To be clear, the Rodriguez decision of 1973 was not a case about the juvenile justice system. However, removing any federal accountability for ensuring that states provide equitable and adequate funding for students educated in lower-income school districts laid the groundwork for little to no state accountability for low-quality schools that serve as dead ends and drop out factories that feed our juvenile justice and adult prison systems.

So, how did we get here? And where do we go from here? To answer those questions, this Essay identifies how and why the school-to-prison pipeline became an acceptable norm in our public discourse about law and policy, summarizes its impact on students and society, and asks lawyers and reformers to reimagine how to address the issue by giving consideration to three novel pathways to change: (1) creative settlement of school funding litigation; (2) a prison-to-solutions pipeline; and (3) a Pell grants and civil society evaluation.

I. Brief Overview of the School-to-Prison Pipeline

The school-to-prison pipeline is real.¹⁶16.See generally Am. Bar Ass’n, ABA Task Force on Reversing the School-to-Prison Pipeline: Report, Recommendations and Preliminary Report (Jan. 2018), [https://perma.cc/‌5NBC-33Z3] (discussing the school-to-prison pipeline and ways to stop it).Show More One researcher defines it as “the intersection of the K–12 public education system and law enforcement, and the trend of referring students directly to law enforcement for committing offenses at school or creating conditions that increase the probability of students eventually becoming incarcerated, such as suspending or expelling them.”¹⁷17.Jason P. Nance, Students, Police, and the School-to-Prison Pipeline, 93 Wash. U. L. Rev. 919, 923 (2016).Show More Although research and practice verify the existence of this pipeline, one area of limited research about it is the way a school’s disciplinary actions affect students as adolescents, as well as their future arrests and incarceration as adults.

To address that issue, researchers at Boston University, the University of Colorado Boulder, and Harvard University tracked 26,246 middle school students enrolled in Charlotte-Mecklenburg public schools from the 1998–1999 through the 2010–2011 academic years.¹⁸18.Andrew Bacher-Hicks, Stephen B. Billings & David J. Deming, Proving the School-to-Prison Pipeline: Stricter Middle Schools Raise the Risk of Adult Arrests, 21 Educ. Next 52, 54 (2021).Show More The school population was 48% Black, 39% white, and 8% Hispanic.¹⁹19.Id. at 54.Show More After evaluating data, the researchers published their findings in 2021:

“[Y]oung adolescents who attend schools with high suspension rates are substantially more likely to be arrested and jailed as adults. These long-term, negative impacts in adulthood apply across a school’s population, not just to students who are suspended during their school years.”²⁰20.Id. at 52.Show More
“Students assigned to middle schools that are one standard deviation stricter—equivalent to being at the 84th percentile of strictness versus the mean—are 3.2 percentage points more likely to have ever been arrested and 2.5 percentage points more likely to have ever been incarcerated as adults. They also are 1.7 percentage points more likely to drop out of high school and 2.4 percentage points less likely to attend a 4-year college. These impacts are much larger for Black and Hispanic male students.”²¹21.Id.Show More
“In looking at what types of crimes are involved, we find that school strictness increases later involvement in crimes related to illegal drugs, fraud, arson, and burglary, but not in serious violent crimes like murder, manslaughter, rape, robbery, and aggravated assault.”²²22.Id. at 56.Show More
“Negative effects are especially pronounced among Black and Hispanic male students, who are 5.4 percentage points more likely to be arrested and 4.4 percentage points more likely to be incarcerated as adults.”²³23.Id.Show More

The authors acknowledge that while suspension and crime rates in Charlotte-Mecklenburg public schools are “well above the national averages,” the schools are fairly representative of large, urban districts in the South.²⁴24.Id. at 55.Show More

Although those findings from North Carolina are alarming, the school-to-prison pipeline in the United States is not a new phenomenon. In 1974, for instance, approximately 1.7 million students were suspended from school, but the number increased to 3.1 million during the early 1990s.²⁵25.Johanna Wald & Daniel J. Losen, Defining and Redirecting a School‐to‐Prison Pipeline, 2003 New Directions for Youth Dev. 9, 10 (2003) (citation omitted).Show More As for race, the white student suspension rate increased from 3.1% to 5.09% between 1972 and 2000, and for Black students it increased from 6.0% to 13.2% during the same period.²⁶26.Id. For more information about race, suspension, and disproportionality, see generally Johanna Wald & Daniel J. Losen, Out of Sight: The Journey Through the School-to-Prison Pipeline, in Invisible Children in the Society and Its Schools 23 (Sue Books ed., 3d ed. 2007); Edward J. Smith & Shaun R. Harper, Disproportionate Impact of K–12 School Suspension and Expulsion on Black Students in Southern States, Univ. of Penn., Ctr. for the Study of Race & Equity in Educ. (2015), https://race.usc.edu/wp-content/uploads/2020/08/Pub-14-Smith-and-Harper.pdf [https://perma.cc/S973-5WCA].Show More During the 2015–2016 academic year, more than 2.7 million public school students were suspended from school.²⁷27.U.S. Comm’n on C.R., Beyond Suspensions: Examining School Discipline Policies and Connections to the School-to-Prison Pipeline for Students of Color with Disabilities 3 (July 2019) (citation omitted), https://www.usccr.gov/reports/2019/beyond-suspensions-exam‌ining-school-discipline-policies-and-connections-school-prison [https://perma.cc/8ZMQ-JZ‌KH].Show More

School suspensions also impact students with disabilities. As early as 1972, a group of advocates successfully challenged in federal court the exclusion of Black students with disabilities from school without due process.²⁸28.Id. at 8 (citing Mills v. Bd. of Ed. of D.C., 348 F. Supp. 866, 875–76 (D.D.C. 1972).Show More Sadly, however, suspension and referrals continue into modern times. For instance, data from the U.S. Department of Education Office for Civil Rights identified the following:

“Students with disabilities are more than twice as likely to receive an out-of-school suspension (13%) than students without disabilities (6%).”²⁹29.Off. for C.R., U.S. Dep’t of Educ., Civil Rights Data Collection: Data Snapshot (School Discipline) 1 (2014), https://ocrdata.ed.gov/assets/downloads/CRDC-School-Discipline-Snapshot.pdf [https://perma.cc/9MSJ-APLQ].Show More
“Suspension rates, by race, sex, and disability status combined: With the exception of Latino and Asian-American students, more than one out of four boys of color with disabilities (served by IDEA) — and nearly one in five girls of color with disabilities — receives an out-of-school suspension.”³⁰30.Id.Show More
“While [B]lack students represent 16% of student enrollment, they represent 27% of students referred to law enforcement and 31% of students subjected to a school-related arrest. In comparison, white students represent 51% of enrollment, 41% of students referred to law enforcement, and 39% of those arrested. Students with disabilities (served by IDEA) represent a quarter of students arrested and referred to law enforcement, even though they are only 12% of the overall student population.”³¹31.Id.Show More

A 2019 report published by the U.S. Commission on Civil Rights contains updated information about the impact of the school-to-prison pipeline on students of color with disabilities,³²32.U.S. Comm’n on C.R., supra note 27, at 3–11.Show More and also provides information about the effects discipline policies have on English language learners and LGBTQ students.³³33.Id. at 5, 35.Show More

Although the findings are alarming for Black and Hispanic boys, Black girls are not untouched by school discipline policies. Of all students enrolled in public schools in the United States, Black girls have the fastest growing suspension rate, which is six times higher than white girls and higher than 67% of boys.³⁴34.Subini Ancy Annamma et al., Black Girls and School Discipline: The Complexities of Being Overrepresented and Understudied, 54 Urban Educ. 211, 214 (2019), https://journals.sagepub.com/doi/epub/10.1177/0042085916646610 [https://perma.cc/P5GV-2EER] (referencing academic and U.S. Department of Education data about civil rights in education).Show More According to one study about school suspensions in big city schools during the 2011–2012 academic year, 90% of all expulsions in New York City and 63% of expulsions in Boston were Black girls, while no expulsions were white girls.³⁵35.Kimberlé Williams Crenshaw, Priscilla Ocen & Jyoti Nanda, Black Girls Matter: Pushed Out, Overpoliced and Underprotected, Afr. Am. Pol’y F. 23 (Feb. 4, 2015), https://www.aapf.org/_files/ugd/b77e03_e92d6e80f7034f30bf843ea7068f52d6.pdf [https://perma.cc/K2ME-TLV4].Show More

What factors account for the high suspension of Black girls? According to a report published in 2020 by The Education Trust and the National Women’s Law Center, researchers concluded that Black girls who talk in class, share their beliefs, or stand up for justice are at times considered disruptive, and thus subject to exclusionary methods.³⁶36.Kayla Patrick, Adaku Onyeka-Crawford & Nancy Duchesneau, “ . . . And They Cared”: How to Create Better, Safer Learning Environments for Girls of Color, The Educ. Trust 9 (Aug. 20, 2020), https://edtrust.org/wp-content/uploads/2014/09/And-they-cared_How-to-create-better-safer-learning-environments-for-girls-of-color_Aug-2020.pdf [https://perma.cc/‌7F8W-WQFD].Show More According to a group of researchers and educators that studied disciplinary data from a large urban school district, historical narratives about Black women’s behavior (e.g., being loud, mouthy, or “ghetto”) influence school personnel’s decisions to discipline Black girls.³⁷37.Annamma et al., supra note 34, at 217. The authors identified four controlling images of Black women that influence how school personnel see Black girls:“(a) Mammy or Matriarch, a woman who is nurturing, loving, and sexless; (b) Sapphire, the emasculating, overly aggressive, unfeminine, or masculine, and loud female; (c) Jezebel, as hypersexualized woman who pursues and initiates sex; and (d) The Welfare Queen, the woman who is conniving, loud, talks back, and is vampiric, sucking off the system by having children and refusing to work.”See id. at 231 tbl.6 for a comparison of referral categories and dominant narratives about Black girls.Show More Among young school-age girls, the largest predictor of later arrest in life is being held back, suspended, or expelled during middle school.³⁸38.Wald & Losen, supra note 25, at 11, referencing the impact of disciplinary action on girls in middle school and what it means for future actions in and out of school. See Am. Bar Ass’n & Nat’l Bar Ass’n, Justice by Gender: The Lack of Appropriate Prevention, Diversion and Treatment Alternatives for Girls in the Justice System, 9 Wm. & Mary J. Women & L. 73, 82–83 (2002).Show More With this being the case, lawyers, judges, legislators, and educators should create an action plan to address the school-to-prison pipeline for Black girls—but also for girls in schools everywhere, be they in urban or rural areas.

II. Influencers of Ideas that Resulted in the School-to-Prison Pipeline

Given all of these factors, what influenced the public’s perceptions about youth culture and crime and led to the development of federal, state, and local disciplinary laws that pumped students through a school-to-prison pipeline since the San Antonio Independent School District v. Rodriguez decision of 1973?

Television news is one influence. Most homes in the United States during the 1980s and 1990s had a television, and by 2001, people spent approximately four hours a day watching it.³⁹39.Nancy A. Heitzeg, Education or Incarceration: Zero Tolerance Policies and the School to Prison Pipeline, F. Pub. Pol’y, no. 2, 2009, at 3 (citation omitted), https://files.eric.ed.gov/‌fulltext/EJ870076.pdf [https://perma.cc/Z5QQ-V83V].Show More With a steady dosage of watching street gang activities, crack “epidemics” ravage cities, and violence inside and outside of public schools, the image of the “young” criminal in America came into view. Even when the research showed youth violence was falling, youth were nevertheless overrepresented in the news.⁴⁰40.Id. (citation omitted).Show More Often, the news portrayed Black and Hispanic youth as the purveyors of crime, but underrepresented them as victims of crime.⁴¹41.Id. (citation omitted).Show More Blacks, in particular, were overrepresented as “criminals” in the news, four times more likely to be in a mug shot than whites, and more likely than whites to be shown in physical restraint.⁴²42.Id.Show More At the same time, Blacks and Hispanics were portrayed as “predators” as well.⁴³43.Id. at 4.Show More

Intellectuals and public leaders were another influence on the public’s perceptions of youth culture and crime. In 1995, the year after Congress enacted the Violent Crime Control and Law Enforcement Act of 1994,⁴⁴44.Pub. L. No. 103-322, 108 Stat. 1796 (1994).Show More which was one of the most far-reaching crime laws since the 1960s and one that had a devastating impact on communities of color,⁴⁵45.Ranya Shannon, 3 Ways the 1994 Crime Bill Continues to Hurt Communities of Color, Ctr. for Am. Progress (May 10, 2019), https://www.americanprogress.org/article/3-ways-1994-crime-bill-continues-hurt-communities-color/ [https://perma.cc/QG8F-YD73].Show More and the Gun-Free Schools Act of 1994,⁴⁶46.Pub. L. No. 103-382, 108 Stat. 3907 (1994) (codified at 20 U.S.C. § 7961).Show More which included language to expel students from school for possession of a firearm (which then spilled over into suspension of students for weapon-less infractions),⁴⁷47.Id.; see, e.g., Education on Lockdown: The Schoolhouse to Jailhouse Track, Advancement Project 11–13 (Mar. 2005), https://www.justice4all.org/wp-content/uploads/‌2016/04/Education-on-Lockdown.pdf [https://perma.cc/J6NH-WPQV] (providing examples of how federal and state laws resulted in the suspension and arrest of students for weapons as well as for non-weapon related activities in several school districts).Show More Princeton University professor John Dilulio published an essay that changed how society talked about youth and crime.⁴⁸48.John J. Dilulio, Jr., The Coming of the Super-Predators, 1 Wkly. Standard 23 (1995).Show More He popularized the term “super-predator.”⁴⁹49.See The Campaign for the Fair Sent’g of Youth, The Origins of the Superpredator: The Child Study Movement to Today (May 2021), https://cfsy.org/wp-content/uploads/‌Superpredator-Origins-CFSY.pdf [https://perma.cc/QC2S-33M8].Show More He used the phrase to describe out-of-control white and Black youth growing up in the “abject moral poverty” that “begets juvenile super-predators whose behavior is . . . present-oriented” and who “perceive no relationship between doing right (or wrong) now and being rewarded (or punished) for it later.”⁵⁰50.Dilulio, supra note 48, at 25–26.Show More

In 1996, First Lady Hillary Clinton used the phrase “super-predator” during a campaign event held at Keene State College in New Hampshire to talk about youth crime.⁵¹51.Jonathan Capehart, Hillary Clinton on “Superpredator” Remarks: “I Shouldn’t Have Used Those Words,” Wash. Post (Feb. 25, 2016, 2:59 PM), https://www.washingtonpost.com/‌blogs/post-partisan/wp/2016/02/25/hillary-clinton-responds-to-activist-who-demanded-apology-for-superpredator-remarks/ [https://perma.cc/Q7JG-RLRM].Show More She said these super-predator youth have “[n]o conscience, no empathy. We can talk about why they ended up that way, but first we have to bring them to heel.”⁵²52.Id. For an overview of how forty major U.S. news outlets promoted the “super-predator” idea between 1995 and 2000, see generally Carroll Bogert & Lynnell Hancock, Superpredator: The Media Myth that Demonized a Generation of Black Youth, The Marshall Project (Nov. 20, 2020), https://www.themarshallproject.org/2020/11/20/superpredator-the-media-myth-that-demonized-a-generation-of-black-youth [https://perma.cc/KH7D-UL2B]. A video clip of John Dilulio and Hillary Clinton is here.Show More

Some beliefs about the “super-predator”—or whatever is the phrase of the decade—continue to this day. As do debates about the role of the courts or legislative bodies in addressing the school-to-prison pipeline. Virginia is one example.

III. Policy Responses to the School-to-Prison Pipeline

According to a 2015 report published by the Center for Public Integrity, Virginia led the nation in the number of school referrals to law enforcement officers at nearly three times the national rate.⁵³53.Susan Ferriss, Virginia Tops Nation in Sending Students to Cops, Courts: Where Does Your State Rank?, Ctr. for Pub. Integrity (Apr. 10, 2015), https://publicintegrity.org/‌education/virginia-tops-nation-in-sending-students-to-cops-courts-where-does-your-state-rank/ [https://perma.cc/J9WP-87MK].Show More For instance, Virginia referred 16 for every 1,000 students to law enforcement compared to the national average of 6 for every 1,000 students.⁵⁴54.Id.Show More Virginia also led the nation in the number of disabled students referred to law enforcement officers at 33.4 for every 1,000 students and was second only to Wyoming in Black student referrals at 25.3 for every 1,000 students.⁵⁵55.Id.Show More The actions in Virginia prompted The Washington Post editorial board to write a critique of the Commonwealth’s actions.⁵⁶56.Editorial Board, Why is Va. Treating its Students—Especially its Black Students—Like Criminals?, Wash. Post (Oct. 22, 2017), https://www.washingtonpost.com/opinions/from-the-classroom-to-the-courts-in-va-too-many-students-get-treated-like-criminals/2017/10/22/‌119cda9a-b5d9-11e7-9e58-e6288544af98_story.html [https://perma.cc/35PN-HHQX].Show More

In 2019, the Legal Aid Justice Center in Charlottesville published a study that documented the negative impact Virginia’s disorderly conduct laws has on schools and students.⁵⁷57.Amy Woolard, Rachael Deane & Shannon Ellis, Decriminalizing Childhood: Ending School-Based Arrest for Disorderly Conduct, Legal Aid Just. Ctr. (Oct. 2019), https://www.justice4all.org/wp-content/uploads/2019/10/LAJC-DC-policy-brief-FINAL.pdf [https://perma.cc/GW7K-FQJ7].Show More Data points of note include the following activities:

Black students represented approximately 22% of the Virginia school population, although they averaged over 62% of the school-based disorderly conduct criminal complaints between 2016 and 2019.⁵⁸58.Id. at 3.Show More
White students represented approximately 50% of the Virginia school population, but they averaged only 29% of the school-based disorderly conduct criminal complaints between 2016 and 2019.⁵⁹59.Id. at 4.Show More

The report also identified gender differences by race:

Black girls represented approximately 11% of the Virginia school population but averaged 29% of the school-based disorderly conduct criminal complaints in 2019.⁶⁰60.Id. at 5.Show More
White girls represented approximately 24% of the Virginia school population but averaged 10% of the school-based disorderly conduct criminal complaints in 2019.⁶¹61.Id.Show More

Concerned about the issue, Senator Jennifer McClellan (D-Richmond) worked with Charlottesville and Richmond stakeholders to find a solution. In 2020, she sponsored two bills in the Virginia General Assembly.

Senate Bill 3: provides that an elementary or secondary school student is not guilty of disorderly conduct “if the disorderly conduct occurred on school property, on a school bus, or at any activity conducted or sponsored by any [elementary or secondary] school.”⁶²62.S. 3, 2020 Gen. Assemb., Reg. Sess. (Va. 2020).Show More

Senate Bill 729: eliminates the requirement that school principals report to law enforcement certain enumerated acts that may constitute a misdemeanor offense.⁶³63.S. 729, 2020 Gen. Assemb., Reg. Sess. (Va. 2020).Show More

Why did Senator McClellan introduce legislation to address the school-to-prison pipeline? “When we started sort of digging into some of the cases that they had . . . one of the biggest things kids were referred for was disorderly conduct,” McClellan said.⁶⁴64.Brendan Shillingford & Anya Sczerzenie, New Virginia Laws Seek to Close “School-to-Prison Pipeline”, AP News (Dec. 3, 2020), https://apnews.com/article/race-and-ethnicity-virginia-coronavirus-pandemic-richmond-bills-1c407c5efd8f05fa8be8e24c853c3f4e [https://perma.cc/GT6N-FFV3].Show More “It was things like a kid on a bus in Henrico County was charged for singing a rap song and a kid in Lynchburg was sent to the principal’s office and kicked this trash can on the way out of class.”⁶⁵65.Id.Show More

Both bills are now the law of the state.⁶⁶66.2020 Va. Acts 241–42, 542.Show More Lawmakers in other states may propose similar legislation. At the same time, many organizations such as the American Bar Association,⁶⁷67.Am. Bar Ass’n, School to Prison Pipeline, Resolution Adopted by the House of Delegates, August 8–9, 2016 (Sept. 24, 2018), https://www.americanbar.org/groups/public_interest/‌child_law/resources/attorneys/school-to-prison-pipeline/ [https://perma.cc/5LN5-KL9X].Show More the ACLU,⁶⁸68.See generally School-to-Prison Pipeline, Am. C.L. Union, https://www.aclu.org/‌issues/juvenile-justice/school-prison-pipeline?redirect=racial-justice/what-school-prison-pip‌eline [https://perma.cc/WKZ9-8FH3] (explaining the ACLU’s legal and policy work dedicated to challenging the “school-to-prison pipeline”); Locating the School-to-Prison Pipeline, Am. C.L. Union (2008), https://www.aclu.org/sites/default/files/images/asset‌_upload_file966_35553.pdf [https://perma.cc/9FW5-J5B9] (identifying the “stops” on the path to incarceration including failing public schools, school discipline policies, and juvenile detention, among others).Show More the NAACP,⁶⁹69.See generally NAACP Legal Def. & Educ. Fund, Dismantling the School-to-Prison Pipeline (2018), https://www.naacpldf.org/wp-content/uploads/Dismantling_the_School_‌to_Prison_Pipeline-2.pdf [https://perma.cc/PJ99-76VA] (identifying the school-to-prison pipeline as one of the most urgent challenges in education today).Show More as well as the U.S. Department of Education and U.S. Department of Health and Human Services,⁷⁰70.U.S. Dep’t of Health & Hum. Servs. & U.S. Dep’t of Educ., Policy Statement on Expulsion and Suspension Policies in Early Childhood Settings 8–11 (2014), https://oese.ed.gov/files/2020/07/policy-statement-ece-expulsions-suspensions.pdf [https://perma.cc/H4PX-SZ4K] (providing recommendations for state actions in early childhood settings).Show More are also addressing the school-to-prison pipeline. So are some researchers who suggest using trauma-informed education, behavioral models, and restorative justice to address the school-to-prison pipeline.⁷¹71.Judith A.M. Scully, Examining and Dismantling the School-to-Prison Pipeline: Strategies for a Better Future, 68 Ark. L. Rev. 959, 995–1003 & nn.247–308 (2016) (identifying examples of research and programs).Show More

IV. Three Nontraditional Approaches

At the same time that we propose policy and programmatic approaches to address the school-to-prison pipeline, here are three nontraditional approaches.

A. Creative Settlement of School Funding Litigation

Families, students, and educators have sued state governments for decades over issues of inequity or inadequacy of resources. The San Antonio Independent School District v. Rodriguez plaintiffs provide an early example. With the federal doors closed because of Rodriguez, families and their attorneys have advanced other legal theories to return to federal court. One legal approach is a right to literacy.

In Gary B. v. Whitmer, for instance, a group of students from low-performing schools in the Detroit public school system sued the state of Michigan in 2016 and alleged that they had been denied their right to a basic minimum education under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, meaning an education that “provides a chance at foundational literacy.”⁷²72.957 F.3d. 616, 620–21 (6th Cir. 2020).Show More In 2018, the U.S. Court of Appeals for the Sixth Circuit ruled in favor of the plaintiffs in a 2-1 decision, with a narrow focus in scope on education.⁷³73.Id. at 620, 659–60.Show More The court stated that:

Importantly, the right defined in this opinion is narrow in scope. It does not guarantee an education at the quality that most have come to expect in today’s America (but that many are nevertheless denied). Rather, the right only guarantees the education needed to provide access to skills that are essential for the basic exercise of other fundamental rights and liberties, most importantly participation in our political system.⁷⁴74.Id. at 659.Show More

The state filed an appeal, but before a decision was reached by the appeals court, Governor Gretchen Whitmer and the Gary B. plaintiffs reached a settlement that required the state to pay the school district nearly $3 million and the governor to propose legislation that would provide approximately $95 million in additional funds to support a host of literacy-focused programs for Detroit schools.⁷⁵75.Press Release, State of Michigan Office of the Governor, Governor Whitmer and Plaintiffs Announce Settlement in Landmark Gary B. Literacy Case (May 14, 2020), https://www.michigan.gov/whitmer/news/press-releases/2020/05/14/governor-whitmer-and-plaintiffs-announce-settlement-in-landmark-gary-b–literacy-case [https://perma.cc/XG4Q-F7UP]. The attorney for the plaintiff, Mark Rosenbaum, linked literacy to democracy. “By accepting the Court’s decision that a minimum basic education is a foundational requirement for full participation in our democracy, Governor Whitmer is acknowledging that no child should be denied his or her right to fully pursue the American Dream based on the color of their skin or their family’s income.” Id.Show More This was a historic win for plaintiffs and a show of political compromise by the state.⁷⁶76.Valerie Strauss, Michigan Settles Historic Lawsuit After Court Rules Students Have a Constitutional Right to a ‘Basic’ Education, Including Literacy, Wash. Post (May 14, 2020, 12:50 PM), https://www.washingtonpost.com/education/2020/05/14/michigan-settles-histor‌ic-lawsuit-after-court-rules-students-have-constitutional-right-basic-education-including-liter‌acy/ [https://perma.cc/RXT3-DS5M].Show More

Another right to literacy case is Ella T. v. State of California. In this case, a group of families with children who attended low-performing public schools in Los Angeles Unified School District, Stockton Unified School District, and Inglewood Unified School District filed a lawsuit in 2017 claiming that while a fundamental right to an education is supported by the California Constitution and several statutes, students were denied access to literacy.⁷⁷77.Complaint at 1–3, Ella T. v. State, No. BC685730 (Cal. Super. Ct. Dec. 5, 2017).Show More Three years later, the plaintiffs and the state reached a $50 million settlement to establish a block grant to support literacy for the seventy-five lowest performing elementary schools.⁷⁸78.Valerie Strauss, California Students Who Sued the State Because They Can’t Read Just Won $53 Million for Troubled Schools, Wash. Post (Feb. 23, 2020, 10:00 AM), https://www.washingtonpost.com/education/2020/02/23/california-students-who-sued-state-because-they-cant-read-just-won-53-million-troubled-schools/ [https://perma.cc/2PET-PW‌UH].Show More

Settlements in cases like Gary B. and Ella T. included money and academic programs targeted to risk factors that resulted in students not receiving the literacy skills which are essential to success in K–12 education, college, or the workforce. Those same risk factors—lack of quality access to financial, human, and technological resources that result from the types of funding disparities that were challenged in Rodriguez—can also play a role in leading students to drop out of school (which is an indirect pathway to the school-to-prison pipeline).

The findings from the research about dropping out of school, lack of high-quality literacy skills, or both, and adult incarceration are clear. According to a 2016 federal Department of Education report about literacy skills of 18- to 74-year-olds in the United States: (1) 30% of people in prisons did not complete high school compared to 14% of the general population; (2) 29% of people in prison scored below Level 2 on a literacy test compared to 19% of U.S. households; (3) 52% of people in prison scored below Level 2 on a numeracy test compared to 29% of U.S. households; and (4) 25% of people in prisons had come from a household where neither parent had attained a high school diploma.⁷⁹79.Bobby D. Rampey et al., Nat’l Ctr. for Educ. Stats., NCES 2016-040, Highlights from the U.S. PIAAC Survey of Incarcerated Adults: Their Skills, Work Experience, Education, and Training 5–7, 25 (2016), https://nces.ed.gov/pubs2016/2016040.pdf [https://perma.cc/4GVM-6HEE].Show More But this is not a new problem. In 1997, 41% of people in local jails and state prisons had not finished the twelfth grade.⁸⁰80.Caroline Wolf Harlow, Special Report, Education and Correctional Populations, Bureau of Just. Stats. 1 (Apr. 15, 2003), https://www.bjs.gov/index.cfm?ty=pbdetail&iid=814 [https://perma.cc/R9TY-696B].Show More

Thus, risk factors that impacted Gary B. and Ella T. students’ ability to gain literacy skills are not radically different from the risk factors that possibly led their peers into the school-to-prison pipeline. Accordingly, creative settlement of school funding litigation could be designed to expand educational opportunities that better prepare free and incarcerated students for citizenship, civic engagement, and college and career readiness. With this in mind, attorneys should craft such settlements to benefit three types of incarcerated youth: (1) youth who could have benefited directly from a settlement as either a plaintiff, or as a student at a school selected by the state for programmatic support, but cannot do so because he or she is behind bars; (2) youth who are parents so that they can gain the educational and employment opportunities that will enable them to minimize the likelihood that their children will one day follow the same pathways to incarceration; and (3) youth who want to pursue a postsecondary education or workforce training but are denied access to public benefits to pay for it either due to incarceration or post-release felon status.

B. A Prison-to-Solutions Pipeline

I began to visit prisons in several states beginning in 2015. Part of my goal was to observe diverse education practices in prison, ranging from adult basic education to postsecondary degree-granting programs.⁸¹81.For an overview of four types of correctional education programs inside prison, see Lois M. Davis et al., Evaluating the Effectiveness of Correctional Education: A Meta-Analysis of Programs That Provide Education to Incarcerated Adults, RAND Corp. 1 (2013), https://www.rand.org/pubs/research_reports/RR266.html [https://perma.cc/H6DR-PVU9].Show More On a couple of visits I observed incarcerated adults participating in an entrepreneurship certificate program.

One example is the Prison Entrepreneurship Program (“PEP”), a Texas-based program that educates incarcerated men about the principles of business to become entrepreneurs upon release.⁸²82.Prison Entrepreneurship Program, https://www.pep.org [https://perma.cc/DAP4-WJHJ] (last visited Mar. 14, 2023).Show More PEP’s course includes a three-month Leadership Academy that focuses on character development, and a six-month Business Plan Competition––a sort of “shark tank” event.⁸³83.Empowering Innovation, Prison Entrepreneurship Program, https://www.pep.org/‌empowering-nnovation/ [https://perma.cc/484J-MBLL] (last visited Mar. 22, 2023).Show More PEP hosted a business competition during my visit, so a colleague joined me to judge several rounds of concept pitches. We provided feedback to each person, and the winner of the competition had a monetary prize set aside to support his business upon release. While everyone cannot win the monetary prize, every person upon completion of the program earns a Certificate in Entrepreneurship from Baylor University’s Hankamer School of Business.⁸⁴84.Id.Show More In addition to the academic work, PEP family liaisons partner with incarcerated men to complete a family survey and then use the results to open lines of communication with family members, if none exists, or to strengthen relationships that exist.⁸⁵85.Id.Show More

Another entrepreneurial program is RISE, a Nebraska-based program with a mission “[t]o break the generational cycles of incarceration.”⁸⁶86.Who We Are: Overview, RISE, https://www.seeusrise.org/who-we-are/ [https://‌perma.cc/GTD4-X9AK] (last visited Mar. 23, 2023).Show More It is the largest non-profit in the state focused solely on programs to support people in prison and upon release.⁸⁷87.Id.Show More RISE has several programs. One is the six-month In-Prison Program that focuses on job readiness, character development, and entrepreneurship.⁸⁸88.In-Prison Program, RISE, https://www.seeusrise.org/what-we-do/programs/ [https://‌perma.cc/NB8Z-CPBL] (last visited Mar. 14, 2023).Show More Another is the RISE Business Academy, which is a twelve-week program tailored to teaching business essentials.⁸⁹89.RISE Business Academy: About the Program, RISE, https://www.seeusrise.org/what-we-do/programs/rise-academy-business-program/ [https://perma.cc/8QWZ-ZEB5] (last visited Mar. 14, 2023).Show More After completion of the program, each person participates in a business pitch competition.⁹⁰90.Id.Show More A research assistant and I participated as judges, and afterward we participated in the first RISE graduation. Upon completion of the program, every person earns a Certificate of Career Readiness from the University of Nebraska Omaha’s School of Business Administration.⁹¹91.United Way of the Midlands Awards $45,000 to RISE Grant to Fund Post-Release Programs, RISE (July 23, 2020), https://www.seeusrise.org/news/blog.html/article/2020/‌07/23/united-way-of-the-midlands-awards-45-000-to-rise-grant-to-fund-post-release-progra‌ms [https://perma.cc/L2MZ-6D5W].Show More RISE also has a ten-month Youth & Family Program to provide incarcerated men and women with courses to help them deal with family separation, conflict, and other issues.⁹²92.RISE Youth & Family Program, RISE, https://www.seeusrise.org/what-we-do/programs/rise-family-program.html [https://perma.cc/HV2X-42P2] (last visited Mar. 14, 2023).It is worth noting that the University of Virginia supports a credit-bearing certificate program for men and women living inside Virginia prisons through a partnership with Resilience Education. This Charlottesville-based nonprofit organization provides a complete, end-to-end solution and digital platform for graduate business and law students to teach and support incarcerated and formerly incarcerated individuals. To date, 700 incarcerated adults have earned certificates in entrepreneurship, business foundations, and personal finance through partnerships with Darden, Columbia, and Wharton business schools. To learn more about Resilience Education, go to https://www.resilience-education.org/ [https://perma.cc/‌2L5Q-ECMB].Show More

One takeaway for me from each prison I visited is that incarcerated adults have a desire to improve their lives through educational programs.⁹³93.See generally A Story to Tell: The Importance of Education During Incarceration as Told by 22 Men and Women Who Know Firsthand (Gerard Robinson ed., 2021), https://advancedstudiesinculture.org/wp-content/uploads/2021/03/a-story-to-tell_gerard_‌robinson4.pdf [https://perma.cc/KFM7-XEBY] (sharing firsthand accounts of the necessity of access to education during incarceration).Show More Another takeaway is that incarcerated people are often in the best position to utilize their entrepreneurial training to solve challenges they face inside and outside of prison. One challenge I heard repeatedly from incarcerated men and women in Texas and Nebraska—and in other states too—is figuring out how to make sure that their children do not end up in prison like them.

Children left behind due to parental incarceration is not uncommon. According to the Annie E. Casey Foundation, more than five million children—or one in fourteen minors under the age of eighteen—have had a parent incarcerated in prison or jail at some point in their lives.⁹⁴94.A Shared Sentence: The Devastating Toll of Parental Incarceration on Kids, Families and Communities, Annie E. Casey Found. 1 (2016), https://assets.aecf.org/m/resourcedoc/aecf-asharedsentence-2016.pdf [https://perma.cc/M93T-RQB3]; David Murphey & P. Mae Cooper, Parents Behind Bars: What Happens to Their Children?, Child Trends 3 (Oct. 2015), https://www.childtrends.org/wp-content/uploads/2015/10/2015-42ParentsBehindBars.pdf [https://perma.cc/N6L5-X6MH].Show More And of the nearly 5 million children who ever had a parent incarcerated in 2019–2020, over 2.1 million were white, 1.2 million were Black, 1 million were Hispanic, 44,018 were American Indian, and 20,771 were Asian or Pacific Islander.⁹⁵95.Children Who Had a Parent Who Was Ever Incarcerated By Race and Ethnicity in the United States, Kids Count Data Ctr., https://datacenter.kidscount.org/data/tables/9734-children-who-had-a-parent-who-was-ever-incarcerated-by-race-and-ethnicity#detailed/1/any‌/false/1769/10,11,9,12,1,13/18995,18996 [https://perma.cc/CSQ3-FAEC] (last visited Mar. 14, 2023).Show More In state prison, nearly 58% of females had minor children compared to 47% of men.⁹⁶96.Laura M. Maruschak, Jennifer Bronson & Mariel Alper, Survey of Prison Inmates, 2016: Parents in Prison and Their Minor Children, Bureau of Just. Stats. 1 (March 2021), https://bjs.ojp.gov/content/pub/pdf/pptmcspi16st.pdf [https://perma.cc/UQJ9-CNG2].Show More As for the race and gender of parents in state prison, 3 in 5 white and Hispanic (60% and 62%, respectively) women, and 1 in 2 Black (50%) women, were mothers of minors.⁹⁷97.Id. at 2.Show More

Given that children of the incarcerated are, on average, six times more likely to become incarcerated themselves,⁹⁸98.Eric Martin, Hidden Consequences: The Impact of Incarceration on Dependent Children, 2017 Nat’l Inst. of Just. J. 11, 12 (citation omitted).Show More we must broaden our list of problem solvers to include people living inside U.S. prisons. The first step toward this goal is to consider incarcerated parents as assets, not liabilities, in our battle to address the challenges associated with, in this instance, the generational child-to-prison pipeline. The second step is to take a lesson from the entrepreneurship programs I visited by sponsoring an in-prison business competition for incarcerated parents in every state. Incarcerated people without children, incarcerated parents that lost their legal rights to their children, or people who want to help create solutions are welcome to join the competition. The aim here is for people closest to the problem to pitch their solutions to the child-to-prison pipeline that include programs, a technology-driven idea that requires apps and games, or a new business. Each winner will receive a monetary gift to support the proposal for implementation upon release, along with professional coaching, and access to grants, loans, and early-stage seed funding.

C. Pell Grants and Civil Society Evaluation

The stories of the creation, demise, and resurrection of the Pell grant program are tales of three presidential administrations.⁹⁹99.For an overview of the legislative, executive, and judicial politics associated with the Pell grant program from 1965 to 2022, see generally Gerard Robinson, From “Undeserving Criminals” to “Second Chance Students”: Pell Grant Eligibility and Incarcerated Students. U. Pa. J. L. & Soc. Change Online (Apr. 1, 2022), https://www.law.upenn.edu/live/news/14647-from-undeserving-criminals-to-second-chance#_ednref22 [https://perma.cc/34MR-BNUF].Show More The first is President Lyndon Johnson. In a special message delivered on January 12, 1965 to Congress titled “Toward Full Educational Opportunity,” Johnson said, “Higher education is no longer a luxury, but a necessity.”¹⁰⁰100.Lyndon B. Johnson, Special Message to the Congress: “Toward Full Educational Opportunity” (Jan. 12, 1965), in 1 Pub. Papers 25, 30 (1965).Show More Ten months later, he signed the Higher Education Act of 1965 (“HEA”).¹⁰¹101.Pub. L. No. 89-329, 79 Stat. 1219 (1965) (codified as amended in scattered sections of Title 20).Show More During the signing ceremony, Johnson provided a national vision for higher education:

The President’s signature upon this legislation passed by this Congress will swing open a new door for the young people of America. For them, and for this entire land of ours, it is the most important door that will ever open—the door to education. And this legislation is the key which unlocks it.¹⁰²102.Lyndon B. Johnson, “Remarks at Southwest Texas State College Upon Signing the Higher Education Act of 1965” (Nov. 8, 1965), in 2 Pub. Papers 1102, 1102 (1965).Show More

People locked behind prison walls was one group of higher education students that benefited from “the door to education” that was opened and paid for by what later became known as the Pell grant.¹⁰³103.With an amendment to HEA in 1972, the federal program was named The Basic Educational Opportunity Grant (“BEOG”). In 1980, BEOG was renamed to honor the work of Senator Claiborne Pell (D-RI) in higher education. From that point forward it is known as the Pell grant program. See Education Amendments of 1972, Pub. L. No. 92-318, §§ 401, 411, 86 Stat. 235, 247–51 (1972) (current version at 20 U.S.C. § 1070a); see also John Lee, The Early Years of the Pell Grant, in Reflections on Pell: Championing Social Justice through 40 Years of Educational Opportunity, The Pell Inst. 40–43 (June 2013), http://www.pellinstitute.org/downloads/publications-Reflections_on_Pell_June_2013.pdf [https://perma.cc/8FBP-DXR3] (detailing the early history of the BEOG and federal higher education priorities); Dallas Pell, To Restore Pell Grants in Prison is to Restore my Father’s Vision of Educational Opportunities for All, in Reflections on Pell: Championing Social Justice through 40 Years of Educational Opportunity, The Pell Inst. 86–87 (June 2013), http://www.pellinstitute.org/downloads/publications-Reflections_on_Pell_June_2013.pdf [https://perma.cc/8FBP-DXR3] (providing the thoughts of Senator Pell’s daughter on advancing her dad’s vision for higher education for incarcerated people, and her support of it through a membership in Education from the Inside Out coalition).Show More With the amendment to HEA in 1972, the number of incarcerated students using a Pell grant to pay for college grew from 11,000 in the 1970s to 23,000 by the mid-1990s.¹⁰⁴104.Gerard Robinson, Observations about the Second Chance Pell Experimental Sites Initiative, Advanced Stud. in Culture Found. 5–7 (June 2021).Show More

But in 1994, President Bill Clinton locked “the door to education” for incarcerated students when he signed the Violent Crime Control and Law Enforcement Act of 1994.¹⁰⁵105.Pub. L. No. 103-322, 108 Stat. 1796 (1994) (current version at 34 U.S.C. ch. 121).Show More According to the new “tough on crime” law:

SEC. 20411. Awards of Pell Grants to Prisoners Prohibited. (a) In General—Section 401(b)(8) of the Higher Education Act of 1965 (20 U.S.C. 1070a(b)(8)) is amended to read as follows: “(8) No basic grant shall be awarded under this subpart to any individual who is incarcerated in any Federal or State penal institution.”¹⁰⁶106.Id. § 20411.Show More

President Clinton had bipartisan support for abolishment of the Pell grant for incarcerated students. During the House debates about the bill in 1994, for example, Representative Bart Gordon’s (D-TN) statement about incarcerated Pell students represented what a lot of lawmakers thought at the time: “Law-abiding students have every right to be outraged when a Pell grant for a policeman’s child is cut but a criminal that the officer sends to prison can still get a big check.”¹⁰⁷107.Nick Anderson, Advocates Push to Renew Pell Grants for Prisoners, Citing Benefits of Higher Education, Wash. Post (Dec. 3, 2013), https://www.washingtonpost.com/local/‌education/when-congress-cut-pell-grants-for-prisone‌rs/2013/12/03/fedcabb2-5b94-11e3-a4‌9b-90a0e156254b_story.html [https://perma.cc/DG39-J5RP].Show More Jack Fields (R-TX) shared a similar theme: “Every dollar in Pell Grant funds obtained by prisoners means that fewer law-abiding students are eligible for assistance.”¹⁰⁸108.Robinson, supra note 104, at 6.Show More

The ban on Pell grants for incarcerated students did not go unchallenged. An incarcerated man in a New York state prison filed a pro se challenge in Nicholas v. Riley.¹⁰⁹109.874 F. Supp. 10 (D.D.C. 1995), aff’d sub nom. Nicholas v. Reno, No. 95-5047, 1995 WL 686227 (D.C. Cir. Oct. 10, 1995).Show More However, the U.S. District Court for the District of Columbia granted the government’s motion to dismiss because the plaintiff failed to state a claim upon which relief could be granted under the Equal Protection or Due Process Clauses.¹¹⁰110.Id. at 12–15.Show More

Between 1995 and 2015, no Pell grant was awarded to incarcerated students in state and federal prisons. But this practice changed with President Barack Obama. On July 16, 2015, Obama became the first sitting president to visit a federal prison.¹¹¹111.Michael A. Memoli, Obama to Become First Sitting President to Visit a Prison, L.A. Times (July 10, 2015, 1:15 PM), https://www.latimes.com/nation/la-na-obama-prison-visit-20150710-story.html [https://perma.cc/2QFW-WGDZ].Show More That same week, Obama said we needed a comprehensive approach to giving people second chances.¹¹²112.Sarah Wheaton, I Could Have Wound Up in Prison, Obama Tells Inmates, Politico (July 17, 2015, 12:04 AM), https://www.politico.com/story/2015/07/barack-obama-prison-visit-inmates-oklahoma-120241 [https://perma.cc/243A-8KKW].Show More A few weeks later, his administration announced the launch of what would come to be known as the Second Chance Pell Experimental Sites Initiative (“SCPESI”).¹¹³113.Notice Inviting Postsecondary Educational Institutions to Participate in Experiments Under the Experimental Sites Initiative; Federal Student Financial Assistance Programs Under Title IV of the Higher Education Act of 1965, as Amended, 80 Fed. Reg. 45964 (Aug. 3, 2015), https://www.govinfo.gov/app/details/FR-2015-08-03/2015-18994 [https://perma.cc/‌TG5X-SPZW].Show More It allowed for an experimental program where prisons and postsecondary institutions would gain access to $30 million to fund Pell grants for 12,000 incarcerated students to see how SCPESI “[i]nfluences participation in education opportunities as well as academic and life outcomes.”¹¹⁴114.Id.; see also Press Release, U.S. Dep’t of Educ., U.S. Department of Education Announces It Will Expand the Second Chance Pell Experiment for the 2022–2023 Award Year (July 30, 2021), https://www.ed.gov/news/press-releases/us-department-education-announces-it-will-expand-second-chance-pell-experiment-2022-2023-award-year [https://perma.cc/SJM3-Y3W8]. An article from The Washington Post contains both figures. See Danielle Douglas-Gabriel, 12,000 Inmates to Receive Pell Grants to Take College Classes, Wash. Post (June 24, 2016, 12:02 AM) https://www.washingtonpost.com/news/grade-point/wp/2016/06/24/12000-inmates-to-receive-pell-grants-to-take-college-classes/ [https://perma.cc/7N2X-BDF2].Show More

The number of postsecondary institutions participating in SCPESI increased from 67 colleges in 28 states in 2016 to 200 colleges working in prisons in 48 states, Washington, D.C., and Puerto Rico in 2022.¹¹⁵115.Kimberly Hefling, Pell Grants for Prisoners Moves Forward, Roughly 12,000 Inmates Expected to Participate, Politico (June 24, 2016, 1:04 AM), https://www.politico.com/story/‌2016/06/pell-grants-prisoners-224756 [https://perma.cc/7GXT-Y4KP]; Kelsie Chestnut, Niloufer Taber & Jasmine Quintana, Second Chance Pell: Five Years of Expanding Higher Education Programs in Prisons, 2016–2021, Vera Inst. of Just. 1 (May 2022), https://www.vera.org/downloads/publications/second-chance-pell-five-years-of-expanding-access-to-education-in-prison-2016-2021.pdf [https://perma.cc/HR92-WHN8]; Myra Hyder, Accessing Pell Grants for College Programs in Correctional Settings, Vera Inst. of Just. 2 (Jan. 2023), https://www.vera.org/downloads/publications/accessing-pell-grants-for-college-progr‌ams-in-correctional-settings.pdf [https://perma.cc/9MFV-3BUY].Show More In terms of results for SCPESI participants, 22,117 unique––or “unduplicated”––students enrolled in the program between 2016–2020.¹¹⁶116.Kelsie Chesnut & Allan Wachendorfer, Second Chance Pell: Four Years of Expanding Access to Education in Prison, Vera Inst. of Just. 1 (Apr. 2021), https://www.vera.org/‌downloads/publications/second-chance-pell-four-years-of-expanding-access-to-education-in-prison.pdf [https://perma.cc/ST22-YEM9]. The Vera Institute of Justice provides technical support to colleges and prisons participating in SCPESI.Show More From this group more than 7,000 students have earned a certificate or diploma (3,499), associate degree (3,035), or bachelor’s degree (540).¹¹⁷117.Id. at 2.Show More

In 2020, “the door to education” was unlocked, once again, to Pell eligible students in prison when Congress passed the FAFSA Simplification Act.¹¹⁸118.FAFSA Simplification Act, Pub. L. No. 116-260, div. FF, tit. vii, 134 Stat. 3137 (2020).Show More This Act lifted the ban on Pell grants for incarcerated students. On October 28, 2022, the U.S. Department of Education published final regulations to support the implementation of Pell grants back into prisons for the first time since the 1990s.¹¹⁹119.87 Fed. Reg. 65426 (Oct. 28, 2022) (to be codified at 34 C.F.R. parts 600, 668, 690).Show More The regulations will take effect on July 1, 2023.¹²⁰120.Id.Show More

How does all of this relate to the school-to-prison pipeline?

Approximately 600,000 people leave state and federal prisons each year.¹²¹121.FACT SHEET: Biden-⁠Harris Administration Expands Second Chance Opportunities for Formerly Incarcerated Persons, The White House (Apr. 26, 2022). https://www.whitehouse.‌gov/briefing-room/statements-releases/2022/04/26/fact-sheet-biden-harris-administration-ex‌pands-second-chance-opportunities-for-formerly-incarcerated-persons/ [https://perma.cc/2S‌ZW-4TZY].Show More Many of these men and women enrolled in education courses while incarcerated. A meta-analysis of thirty-seven years of literature about correctional education showed some promising trends for participants. One trend worth noting is that incarcerated people who enrolled in a correctional education program had 28% lower odds of recidivating than incarcerated peers that did not participate in correctional education.¹²²122.Robert Bozick, Jennifer Steele, Lois Davis & Susan Turner, Does Providing Inmates with Education Improve Postrelease Outcomes? A Meta-Analysis of Correctional Education Programs in the United States, 14 J. Experimental Criminology 389, 390 (2018).Show More

With the reinstatement of Pell grants for incarcerated students beginning in 2023, I expect more students will enroll in college-in-prison programs. Once they complete a program and return to their communities, I believe many of them will be an asset, be it professionally, economically, or academically.¹²³123.See A Story to Tell, supra note 93, at 15–49.Show More Others will be a role model to school-age students and drop-outs living in some of the toughest urban and rural zip codes in the state.

With this said, I would like to see an AmeriCorps-type program available to formerly incarcerated, Pell-educated people who want to work with families and youth involved in the school-to-prison pipeline. A longitudinal study component must accompany the program. For if the goal of SCPESI was to see how it “[i]nfluences participation in education opportunities as well as academic and life outcomes,”¹²⁴124.Notice Inviting Postsecondary Educational Institutions to Participate in Experiments Under the Experimental Sites Initiative; Federal Student Financial Assistance Programs Under Title IV of the Higher Education Act of 1965, as Amended, 80 Fed. Reg. 45964 (Aug. 3, 2015), https://www.govinfo.gov/app/details/FR-2015-08-03/2015-18994 [https://perma.cc/‌2PKB-J4WE].Show More a study of Pell-educated participants’ impact on reducing the school-to-prison pipeline, reducing future arrests and/or incarceration of youth in adulthood, and participation in civic society initiatives (to name only a few) is a worthy investment.

Conclusion

As we reflect on the San Antonio Independent School District v. Rodriguez decision at fifty years, we must broaden the lens by which we assess the impact this decision had on policies and practices that affect public education in general, but also its direct or indirect role in the growth of a black flower in American society known as the school-to-prison pipeline. Doing so will require us to review our ideals about the role of education in a democratic society, to redefine the meaning of accountability and punishment, and to reconsider the successes and challenges of American modernity.

Nathaniel Hawthorne, The Scarlet Letter 39 (Brian Harding ed., 2007). ↑
I use the term “school-to-prison” pipeline broadly to address the number of school-age children, adolescents, and teens who are justice-involved youth. How did they end up in the justice system? The pathway for some school-age youth began with a school referral to law enforcement officers based on a report of disruptive behavior—real or imagined. Another pathway for school-age youth is participation in illegal activities outside of school hours. Others arrive in the criminal justice system as children of an incarcerated mother or father, while factors such as race, gender, disability, poverty, or other issues not related directly to a school also provide a pathway. Thus, the “school-to-prison” pipeline phrase is myopic, in part, as a point of origin for this phenomenon. For this reason, I would prefer to name what we see a “child-to-prison” pipeline. Nevertheless, I will use school-to-prison pipeline because it remains the most well-known phrase to describe the topic in this Essay. ↑
411 U.S. 1 (1973). ↑
Id. at 35, 54–55. ↑
Id. at 58. ↑
See id. at 58–59; Charles J. Ogletree, Jr. & Kimberly Jenkins Robinson, Creating New Pathways to Equal Educational Opportunity, in The Enduring Legacy of Rodriguez: Creating New Pathways to Equal Educational Opportunity 263, 264 (Charles J. Ogletree, Jr. & Kimberly Jenkins Robinson eds., 2015); see also A Federal Right to Education: Fundamental Questions for Our Democracy (Kimberly Jenkins Robinson ed., 2019) (examining why the United States should recognize a federal right to education, how to recognize it, and what it should guarantee); Derek Black, Unlocking the Power of State Constitutions with Equal Protection: The First Step Toward Education as a Federally Protected Right, 51 Wm. & Mary L. Rev. 1343, 1408 (2010) (arguing that Rodriguez left open the possibility of enforcing equal protection by relying on state court definitions of a “minimally adequate education”); Susan H. Bitensky, Theoretical Foundations for a Right to Education Under the U.S. Constitution: A Beginning to the End of the National Education Crisis, 86 Nw. U. L. Rev. 550, 554 (1992) (exploring potential constitutional theories for recognizing a right to education). ↑
Rodriguez, 411 U.S. at 40–44. ↑
Id. ↑
See Lyndon B. Johnson, Special Message to the Congress on Law Enforcement and the Administration of Justice, in 1 Pub. Papers 263, 263 (1965). ↑
Exec. Order No. 11,236, 3 C.F.R. 329 (1964–1965). ↑
Id. ↑
President’s Commission on Law Enforcement & Administration of Justice, The Challenge of Crime in a Free Society (1967), https://www.ojp.gov/sites/g/files/xyckuh241/‌files/archives/ncjrs/42.pdf [https://perma.cc/S36P-5W9X]. ↑
Id. at 55–89. ↑
Id. at 78–89. On page 89 is a chart to show the role of police in juvenile court and youth referrals compared to schools and parents. ↑
Id. at 79. ↑
See generally Am. Bar Ass’n, ABA Task Force on Reversing the School-to-Prison Pipeline: Report, Recommendations and Preliminary Report (Jan. 2018), [https://perma.cc/‌5NBC-33Z3] (discussing the school-to-prison pipeline and ways to stop it). ↑
Jason P. Nance, Students, Police, and the School-to-Prison Pipeline, 93 Wash. U. L. Rev. 919, 923 (2016). ↑
Andrew Bacher-Hicks, Stephen B. Billings & David J. Deming, Proving the School-to-Prison Pipeline: Stricter Middle Schools Raise the Risk of Adult Arrests, 21 Educ. Next 52, 54 (2021). ↑
Id. at 54. ↑
Id. at 52. ↑
Id. ↑
Id. at 56. ↑
Id. ↑
Id. at 55. ↑
Johanna Wald & Daniel J. Losen, Defining and Redirecting a School‐to‐Prison Pipeline, 2003 New Directions for Youth Dev. 9, 10 (2003) (citation omitted). ↑
Id. For more information about race, suspension, and disproportionality, see generally Johanna Wald & Daniel J. Losen, Out of Sight: The Journey Through the School-to-Prison Pipeline, in Invisible Children in the Society and Its Schools 23 (Sue Books ed., 3d ed. 2007); Edward J. Smith & Shaun R. Harper, Disproportionate Impact of K–12 School Suspension and Expulsion on Black Students in Southern States, Univ. of Penn., Ctr. for the Study of Race & Equity in Educ. (2015), https://race.usc.edu/wp-content/uploads/2020/08/Pub-14-Smith-and-Harper.pdf [https://perma.cc/S973-5WCA]. ↑
U.S. Comm’n on C.R., Beyond Suspensions: Examining School Discipline Policies and Connections to the School-to-Prison Pipeline for Students of Color with Disabilities 3 (July 2019) (citation omitted), https://www.usccr.gov/reports/2019/beyond-suspensions-exam‌ining-school-discipline-policies-and-connections-school-prison [https://perma.cc/8ZMQ-JZ‌KH]. ↑
Id. at 8 (citing Mills v. Bd. of Ed. of D.C., 348 F. Supp. 866, 875–76 (D.D.C. 1972). ↑
Off. for C.R., U.S. Dep’t of Educ., Civil Rights Data Collection: Data Snapshot (School Discipline) 1 (2014), https://ocrdata.ed.gov/assets/downloads/CRDC-School-Discipline-Snapshot.pdf [https://perma.cc/9MSJ-APLQ]. ↑
Id. ↑
Id. ↑
U.S. Comm’n on C.R., supra note 27, at 3–11. ↑
Id. at 5, 35. ↑
Subini Ancy Annamma et al., Black Girls and School Discipline: The Complexities of Being Overrepresented and Understudied, 54 Urban Educ. 211, 214 (2019), https://journals.sagepub.com/doi/epub/10.1177/0042085916646610 [https://perma.cc/P5GV-2EER] (referencing academic and U.S. Department of Education data about civil rights in education). ↑
Kimberlé Williams Crenshaw, Priscilla Ocen & Jyoti Nanda, Black Girls Matter: Pushed Out, Overpoliced and Underprotected, Afr. Am. Pol’y F. 23 (Feb. 4, 2015), https://www.aapf.org/_files/ugd/b77e03_e92d6e80f7034f30bf843ea7068f52d6.pdf [https://perma.cc/K2ME-TLV4]. ↑
Kayla Patrick, Adaku Onyeka-Crawford & Nancy Duchesneau, “ . . . And They Cared”: How to Create Better, Safer Learning Environments for Girls of Color, The Educ. Trust 9 (Aug. 20, 2020), https://edtrust.org/wp-content/uploads/2014/09/And-they-cared_How-to-create-better-safer-learning-environments-for-girls-of-color_Aug-2020.pdf [https://perma.cc/‌7F8W-WQFD]. ↑
Annamma et al., supra note 34, at 217. The authors identified four controlling images of Black women that influence how school personnel see Black girls:“(a) Mammy or Matriarch, a woman who is nurturing, loving, and sexless; (b) Sapphire, the emasculating, overly aggressive, unfeminine, or masculine, and loud female; (c) Jezebel, as hypersexualized woman who pursues and initiates sex; and (d) The Welfare Queen, the woman who is conniving, loud, talks back, and is vampiric, sucking off the system by having children and refusing to work.”
See id. at 231 tbl.6 for a comparison of referral categories and dominant narratives about Black girls. ↑
Wald & Losen, supra note 25, at 11, referencing the impact of disciplinary action on girls in middle school and what it means for future actions in and out of school. See Am. Bar Ass’n & Nat’l Bar Ass’n, Justice by Gender: The Lack of Appropriate Prevention, Diversion and Treatment Alternatives for Girls in the Justice System, 9 Wm. & Mary J. Women & L. 73, 82–83 (2002). ↑
Nancy A. Heitzeg, Education or Incarceration: Zero Tolerance Policies and the School to Prison Pipeline, F. Pub. Pol’y, no. 2, 2009, at 3 (citation omitted), https://files.eric.ed.gov/‌fulltext/EJ870076.pdf [https://perma.cc/Z5QQ-V83V]. ↑
Id. (citation omitted). ↑
Id. (citation omitted). ↑
Id. ↑
Id. at 4. ↑
Pub. L. No. 103-322, 108 Stat. 1796 (1994). ↑
Ranya Shannon, 3 Ways the 1994 Crime Bill Continues to Hurt Communities of Color, Ctr. for Am. Progress (May 10, 2019), https://www.americanprogress.org/article/3-ways-1994-crime-bill-continues-hurt-communities-color/ [https://perma.cc/QG8F-YD73]. ↑
Pub. L. No. 103-382, 108 Stat. 3907 (1994) (codified at 20 U.S.C. § 7961). ↑
Id.; see, e.g., Education on Lockdown: The Schoolhouse to Jailhouse Track, Advancement Project 11–13 (Mar. 2005), https://www.justice4all.org/wp-content/uploads/‌2016/04/Education-on-Lockdown.pdf [https://perma.cc/J6NH-WPQV] (providing examples of how federal and state laws resulted in the suspension and arrest of students for weapons as well as for non-weapon related activities in several school districts). ↑
John J. Dilulio, Jr., The Coming of the Super-Predators, 1 Wkly. Standard 23 (1995). ↑
See The Campaign for the Fair Sent’g of Youth, The Origins of the Superpredator: The Child Study Movement to Today (May 2021), https://cfsy.org/wp-content/uploads/‌Superpredator-Origins-CFSY.pdf [https://perma.cc/QC2S-33M8]. ↑
Dilulio, supra note 48, at 25–26. ↑
Jonathan Capehart, Hillary Clinton on “Superpredator” Remarks: “I Shouldn’t Have Used Those Words,” Wash. Post (Feb. 25, 2016, 2:59 PM), https://www.washingtonpost.com/‌blogs/post-partisan/wp/2016/02/25/hillary-clinton-responds-to-activist-who-demanded-apology-for-superpredator-remarks/ [https://perma.cc/Q7JG-RLRM]. ↑
Id. For an overview of how forty major U.S. news outlets promoted the “super-predator” idea between 1995 and 2000, see generally Carroll Bogert & Lynnell Hancock, Superpredator: The Media Myth that Demonized a Generation of Black Youth, The Marshall Project (Nov. 20, 2020), https://www.themarshallproject.org/2020/11/20/superpredator-the-media-myth-that-demonized-a-generation-of-black-youth [https://perma.cc/KH7D-UL2B]. A video clip of John Dilulio and Hillary Clinton is here. ↑
Susan Ferriss, Virginia Tops Nation in Sending Students to Cops, Courts: Where Does Your State Rank?, Ctr. for Pub. Integrity (Apr. 10, 2015), https://publicintegrity.org/‌education/virginia-tops-nation-in-sending-students-to-cops-courts-where-does-your-state-rank/ [https://perma.cc/J9WP-87MK]. ↑
Id. ↑
Id. ↑
Editorial Board, Why is Va. Treating its Students—Especially its Black Students—Like Criminals?, Wash. Post (Oct. 22, 2017), https://www.washingtonpost.com/opinions/from-the-classroom-to-the-courts-in-va-too-many-students-get-treated-like-criminals/2017/10/22/‌119cda9a-b5d9-11e7-9e58-e6288544af98_story.html [https://perma.cc/35PN-HHQX]. ↑
Amy Woolard, Rachael Deane & Shannon Ellis, Decriminalizing Childhood: Ending School-Based Arrest for Disorderly Conduct, Legal Aid Just. Ctr. (Oct. 2019), https://www.justice4all.org/wp-content/uploads/2019/10/LAJC-DC-policy-brief-FINAL.pdf [https://perma.cc/GW7K-FQJ7]. ↑
Id. at 3. ↑
Id. at 4. ↑
Id. at 5. ↑
Id. ↑
S. 3, 2020 Gen. Assemb., Reg. Sess. (Va. 2020). ↑
S. 729, 2020 Gen. Assemb., Reg. Sess. (Va. 2020). ↑
Brendan Shillingford & Anya Sczerzenie, New Virginia Laws Seek to Close “School-to-Prison Pipeline”, AP News (Dec. 3, 2020), https://apnews.com/article/race-and-ethnicity-virginia-coronavirus-pandemic-richmond-bills-1c407c5efd8f05fa8be8e24c853c3f4e [https://perma.cc/GT6N-FFV3]. ↑
Id. ↑
2020 Va. Acts 241–42, 542. ↑
Am. Bar Ass’n, School to Prison Pipeline, Resolution Adopted by the House of Delegates, August 8–9, 2016 (Sept. 24, 2018), https://www.americanbar.org/groups/public_interest/‌child_law/resources/attorneys/school-to-prison-pipeline/ [https://perma.cc/5LN5-KL9X]. ↑
See generally School-to-Prison Pipeline, Am. C.L. Union, https://www.aclu.org/‌issues/juvenile-justice/school-prison-pipeline?redirect=racial-justice/what-school-prison-pip‌eline [https://perma.cc/WKZ9-8FH3] (explaining the ACLU’s legal and policy work dedicated to challenging the “school-to-prison pipeline”); Locating the School-to-Prison Pipeline, Am. C.L. Union (2008), https://www.aclu.org/sites/default/files/images/asset‌_upload_file966_35553.pdf [https://perma.cc/9FW5-J5B9] (identifying the “stops” on the path to incarceration including failing public schools, school discipline policies, and juvenile detention, among others). ↑
See generally NAACP Legal Def. & Educ. Fund, Dismantling the School-to-Prison Pipeline (2018), https://www.naacpldf.org/wp-content/uploads/Dismantling_the_School_‌to_Prison_Pipeline-2.pdf [https://perma.cc/PJ99-76VA] (identifying the school-to-prison pipeline as one of the most urgent challenges in education today). ↑
U.S. Dep’t of Health & Hum. Servs. & U.S. Dep’t of Educ., Policy Statement on Expulsion and Suspension Policies in Early Childhood Settings 8–11 (2014), https://oese.ed.gov/files/2020/07/policy-statement-ece-expulsions-suspensions.pdf [https://perma.cc/H4PX-SZ4K] (providing recommendations for state actions in early childhood settings). ↑
Judith A.M. Scully, Examining and Dismantling the School-to-Prison Pipeline: Strategies for a Better Future, 68 Ark. L. Rev. 959, 995–1003 & nn.247–308 (2016) (identifying examples of research and programs). ↑
957 F.3d. 616, 620–21 (6th Cir. 2020). ↑
Id. at 620, 659–60. ↑
Id. at 659. ↑
Press Release, State of Michigan Office of the Governor, Governor Whitmer and Plaintiffs Announce Settlement in Landmark Gary B. Literacy Case (May 14, 2020), https://www.michigan.gov/whitmer/news/press-releases/2020/05/14/governor-whitmer-and-plaintiffs-announce-settlement-in-landmark-gary-b–literacy-case [https://perma.cc/XG4Q-F7UP]. The attorney for the plaintiff, Mark Rosenbaum, linked literacy to democracy. “By accepting the Court’s decision that a minimum basic education is a foundational requirement for full participation in our democracy, Governor Whitmer is acknowledging that no child should be denied his or her right to fully pursue the American Dream based on the color of their skin or their family’s income.” Id. ↑
Valerie Strauss, Michigan Settles Historic Lawsuit After Court Rules Students Have a Constitutional Right to a ‘Basic’ Education, Including Literacy, Wash. Post (May 14, 2020, 12:50 PM), https://www.washingtonpost.com/education/2020/05/14/michigan-settles-histor‌ic-lawsuit-after-court-rules-students-have-constitutional-right-basic-education-including-liter‌acy/ [https://perma.cc/RXT3-DS5M]. ↑
Complaint at 1–3, Ella T. v. State, No. BC685730 (Cal. Super. Ct. Dec. 5, 2017). ↑
Valerie Strauss, California Students Who Sued the State Because They Can’t Read Just Won $53 Million for Troubled Schools, Wash. Post (Feb. 23, 2020, 10:00 AM), https://www.washingtonpost.com/education/2020/02/23/california-students-who-sued-state-because-they-cant-read-just-won-53-million-troubled-schools/ [https://perma.cc/2PET-PW‌UH]. ↑
Bobby D. Rampey et al., Nat’l Ctr. for Educ. Stats., NCES 2016-040, Highlights from the U.S. PIAAC Survey of Incarcerated Adults: Their Skills, Work Experience, Education, and Training 5–7, 25 (2016), https://nces.ed.gov/pubs2016/2016040.pdf [https://perma.cc/4GVM-6HEE]. ↑
Caroline Wolf Harlow, Special Report, Education and Correctional Populations, Bureau of Just. Stats. 1 (Apr. 15, 2003), https://www.bjs.gov/index.cfm?ty=pbdetail&iid=814 [https://perma.cc/R9TY-696B]. ↑
For an overview of four types of correctional education programs inside prison, see Lois M. Davis et al., Evaluating the Effectiveness of Correctional Education: A Meta-Analysis of Programs That Provide Education to Incarcerated Adults, RAND Corp. 1 (2013), https://www.rand.org/pubs/research_reports/RR266.html [https://perma.cc/H6DR-PVU9]. ↑
Prison Entrepreneurship Program, https://www.pep.org [https://perma.cc/DAP4-WJHJ] (last visited Mar. 14, 2023). ↑
Empowering Innovation, Prison Entrepreneurship Program, https://www.pep.org/‌empowering-nnovation/ [https://perma.cc/484J-MBLL] (last visited Mar. 22, 2023). ↑
Id. ↑
Id. ↑
Who We Are: Overview, RISE, https://www.seeusrise.org/who-we-are/ [https://‌perma.cc/GTD4-X9AK] (last visited Mar. 23, 2023). ↑
Id. ↑
In-Prison Program, RISE, https://www.seeusrise.org/what-we-do/programs/ [https://‌perma.cc/NB8Z-CPBL] (last visited Mar. 14, 2023). ↑
RISE Business Academy: About the Program, RISE, https://www.seeusrise.org/what-we-do/programs/rise-academy-business-program/ [https://perma.cc/8QWZ-ZEB5] (last visited Mar. 14, 2023). ↑
Id. ↑
United Way of the Midlands Awards $45,000 to RISE Grant to Fund Post-Release Programs, RISE (July 23, 2020), https://www.seeusrise.org/news/blog.html/article/2020/‌07/23/united-way-of-the-midlands-awards-45-000-to-rise-grant-to-fund-post-release-progra‌ms [https://perma.cc/L2MZ-6D5W]. ↑
RISE Youth & Family Program, RISE, https://www.seeusrise.org/what-we-do/programs/rise-family-program.html [https://perma.cc/HV2X-42P2] (last visited Mar. 14, 2023).It is worth noting that the University of Virginia supports a credit-bearing certificate program for men and women living inside Virginia prisons through a partnership with Resilience Education. This Charlottesville-based nonprofit organization provides a complete, end-to-end solution and digital platform for graduate business and law students to teach and support incarcerated and formerly incarcerated individuals. To date, 700 incarcerated adults have earned certificates in entrepreneurship, business foundations, and personal finance through partnerships with Darden, Columbia, and Wharton business schools. To learn more about Resilience Education, go to https://www.resilience-education.org/ [https://perma.cc/‌2L5Q-ECMB]. ↑
See generally A Story to Tell: The Importance of Education During Incarceration as Told by 22 Men and Women Who Know Firsthand (Gerard Robinson ed., 2021), https://advancedstudiesinculture.org/wp-content/uploads/2021/03/a-story-to-tell_gerard_‌robinson4.pdf [https://perma.cc/KFM7-XEBY] (sharing firsthand accounts of the necessity of access to education during incarceration). ↑
A Shared Sentence: The Devastating Toll of Parental Incarceration on Kids, Families and Communities, Annie E. Casey Found. 1 (2016), https://assets.aecf.org/m/resourcedoc/aecf-asharedsentence-2016.pdf [https://perma.cc/M93T-RQB3]; David Murphey & P. Mae Cooper, Parents Behind Bars: What Happens to Their Children?, Child Trends 3 (Oct. 2015), https://www.childtrends.org/wp-content/uploads/2015/10/2015-42ParentsBehindBars.pdf [https://perma.cc/N6L5-X6MH]. ↑
Children Who Had a Parent Who Was Ever Incarcerated By Race and Ethnicity in the United States, Kids Count Data Ctr., https://datacenter.kidscount.org/data/tables/9734-children-who-had-a-parent-who-was-ever-incarcerated-by-race-and-ethnicity#detailed/1/any‌/false/1769/10,11,9,12,1,13/18995,18996 [https://perma.cc/CSQ3-FAEC] (last visited Mar. 14, 2023). ↑
Laura M. Maruschak, Jennifer Bronson & Mariel Alper, Survey of Prison Inmates, 2016: Parents in Prison and Their Minor Children, Bureau of Just. Stats. 1 (March 2021), https://bjs.ojp.gov/content/pub/pdf/pptmcspi16st.pdf [https://perma.cc/UQJ9-CNG2]. ↑
Id. at 2. ↑
Eric Martin, Hidden Consequences: The Impact of Incarceration on Dependent Children, 2017 Nat’l Inst. of Just. J. 11, 12 (citation omitted). ↑
For an overview of the legislative, executive, and judicial politics associated with the Pell grant program from 1965 to 2022, see generally Gerard Robinson, From “Undeserving Criminals” to “Second Chance Students”: Pell Grant Eligibility and Incarcerated Students. U. Pa. J. L. & Soc. Change Online (Apr. 1, 2022), https://www.law.upenn.edu/live/news/14647-from-undeserving-criminals-to-second-chance#_ednref22 [https://perma.cc/34MR-BNUF]. ↑
Lyndon B. Johnson, Special Message to the Congress: “Toward Full Educational Opportunity” (Jan. 12, 1965), in 1 Pub. Papers 25, 30 (1965). ↑
Pub. L. No. 89-329, 79 Stat. 1219 (1965) (codified as amended in scattered sections of Title 20). ↑
Lyndon B. Johnson, “Remarks at Southwest Texas State College Upon Signing the Higher Education Act of 1965” (Nov. 8, 1965), in 2 Pub. Papers 1102, 1102 (1965). ↑
With an amendment to HEA in 1972, the federal program was named The Basic Educational Opportunity Grant (“BEOG”). In 1980, BEOG was renamed to honor the work of Senator Claiborne Pell (D-RI) in higher education. From that point forward it is known as the Pell grant program. See Education Amendments of 1972, Pub. L. No. 92-318, §§ 401, 411, 86 Stat. 235, 247–51 (1972) (current version at 20 U.S.C. § 1070a); see also John Lee, The Early Years of the Pell Grant, in Reflections on Pell: Championing Social Justice through 40 Years of Educational Opportunity, The Pell Inst. 40–43 (June 2013), http://www.pellinstitute.org/downloads/publications-Reflections_on_Pell_June_2013.pdf [https://perma.cc/8FBP-DXR3] (detailing the early history of the BEOG and federal higher education priorities); Dallas Pell, To Restore Pell Grants in Prison is to Restore my Father’s Vision of Educational Opportunities for All, in Reflections on Pell: Championing Social Justice through 40 Years of Educational Opportunity, The Pell Inst. 86–87 (June 2013), http://www.pellinstitute.org/downloads/publications-Reflections_on_Pell_June_2013.pdf [https://perma.cc/8FBP-DXR3] (providing the thoughts of Senator Pell’s daughter on advancing her dad’s vision for higher education for incarcerated people, and her support of it through a membership in Education from the Inside Out coalition). ↑
Gerard Robinson, Observations about the Second Chance Pell Experimental Sites Initiative, Advanced Stud. in Culture Found. 5–7 (June 2021). ↑
Pub. L. No. 103-322, 108 Stat. 1796 (1994) (current version at 34 U.S.C. ch. 121). ↑
Id. § 20411. ↑
Nick Anderson, Advocates Push to Renew Pell Grants for Prisoners, Citing Benefits of Higher Education, Wash. Post (Dec. 3, 2013), https://www.washingtonpost.com/local/‌education/when-congress-cut-pell-grants-for-prisone‌rs/2013/12/03/fedcabb2-5b94-11e3-a4‌9b-90a0e156254b_story.html [https://perma.cc/DG39-J5RP]. ↑
Robinson, supra note 104, at 6. ↑
874 F. Supp. 10 (D.D.C. 1995), aff’d sub nom. Nicholas v. Reno, No. 95-5047, 1995 WL 686227 (D.C. Cir. Oct. 10, 1995). ↑
Id. at 12–15. ↑
Michael A. Memoli, Obama to Become First Sitting President to Visit a Prison, L.A. Times (July 10, 2015, 1:15 PM), https://www.latimes.com/nation/la-na-obama-prison-visit-20150710-story.html [https://perma.cc/2QFW-WGDZ]. ↑
Sarah Wheaton, I Could Have Wound Up in Prison, Obama Tells Inmates, Politico (July 17, 2015, 12:04 AM), https://www.politico.com/story/2015/07/barack-obama-prison-visit-inmates-oklahoma-120241 [https://perma.cc/243A-8KKW]. ↑
Notice Inviting Postsecondary Educational Institutions to Participate in Experiments Under the Experimental Sites Initiative; Federal Student Financial Assistance Programs Under Title IV of the Higher Education Act of 1965, as Amended, 80 Fed. Reg. 45964 (Aug. 3, 2015), https://www.govinfo.gov/app/details/FR-2015-08-03/2015-18994 [https://perma.cc/‌TG5X-SPZW]. ↑
Id.; see also Press Release, U.S. Dep’t of Educ., U.S. Department of Education Announces It Will Expand the Second Chance Pell Experiment for the 2022–2023 Award Year (July 30, 2021), https://www.ed.gov/news/press-releases/us-department-education-announces-it-will-expand-second-chance-pell-experiment-2022-2023-award-year [https://perma.cc/SJM3-Y3W8]. An article from The Washington Post contains both figures. See Danielle Douglas-Gabriel, 12,000 Inmates to Receive Pell Grants to Take College Classes, Wash. Post (June 24, 2016, 12:02 AM) https://www.washingtonpost.com/news/grade-point/wp/2016/06/24/12000-inmates-to-receive-pell-grants-to-take-college-classes/ [https://perma.cc/7N2X-BDF2]. ↑
Kimberly Hefling, Pell Grants for Prisoners Moves Forward, Roughly 12,000 Inmates Expected to Participate, Politico (June 24, 2016, 1:04 AM), https://www.politico.com/story/‌2016/06/pell-grants-prisoners-224756 [https://perma.cc/7GXT-Y4KP]; Kelsie Chestnut, Niloufer Taber & Jasmine Quintana, Second Chance Pell: Five Years of Expanding Higher Education Programs in Prisons, 2016–2021, Vera Inst. of Just. 1 (May 2022), https://www.vera.org/downloads/publications/second-chance-pell-five-years-of-expanding-access-to-education-in-prison-2016-2021.pdf [https://perma.cc/HR92-WHN8]; Myra Hyder, Accessing Pell Grants for College Programs in Correctional Settings, Vera Inst. of Just. 2 (Jan. 2023), https://www.vera.org/downloads/publications/accessing-pell-grants-for-college-progr‌ams-in-correctional-settings.pdf [https://perma.cc/9MFV-3BUY]. ↑
Kelsie Chesnut & Allan Wachendorfer, Second Chance Pell: Four Years of Expanding Access to Education in Prison, Vera Inst. of Just. 1 (Apr. 2021), https://www.vera.org/‌downloads/publications/second-chance-pell-four-years-of-expanding-access-to-education-in-prison.pdf [https://perma.cc/ST22-YEM9]. The Vera Institute of Justice provides technical support to colleges and prisons participating in SCPESI. ↑
Id. at 2. ↑
FAFSA Simplification Act, Pub. L. No. 116-260, div. FF, tit. vii, 134 Stat. 3137 (2020). ↑
87 Fed. Reg. 65426 (Oct. 28, 2022) (to be codified at 34 C.F.R. parts 600, 668, 690). ↑
Id. ↑
FACT SHEET: Biden-⁠Harris Administration Expands Second Chance Opportunities for Formerly Incarcerated Persons, The White House (Apr. 26, 2022). https://www.whitehouse.‌gov/briefing-room/statements-releases/2022/04/26/fact-sheet-biden-harris-administration-ex‌pands-second-chance-opportunities-for-formerly-incarcerated-persons/ [https://perma.cc/2S‌ZW-4TZY]. ↑
Robert Bozick, Jennifer Steele, Lois Davis & Susan Turner, Does Providing Inmates with Education Improve Postrelease Outcomes? A Meta-Analysis of Correctional Education Programs in the United States, 14 J. Experimental Criminology 389, 390 (2018). ↑
See A Story to Tell, supra note 93, at 15–49. ↑
Notice Inviting Postsecondary Educational Institutions to Participate in Experiments Under the Experimental Sites Initiative; Federal Student Financial Assistance Programs Under Title IV of the Higher Education Act of 1965, as Amended, 80 Fed. Reg. 45964 (Aug. 3, 2015), https://www.govinfo.gov/app/details/FR-2015-08-03/2015-18994 [https://perma.cc/‌2PKB-J4WE]. ↑

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