Civil Rights Archives – Southern California Law Review

The Embodiment of Sovereignty: Outrages, Section 1983 Litigation, and the Federalism Revival

April 2025April 2025Norman W. Spaulding*

A remarkable number of canonical Section 1983 cases and many other less well-known civil rights cases involve extraordinary violence—brutality that cannot be described either as a bureaucratically rational, dispassionate expression of state power, or as marginally disproportionate in relation to the legally authorized level of force incident to the state’s monopoly on violence. They instead involve what the drafters of Section 1983 called “outrages”—extraordinary excess, a level of violence that is not merely disproportionate, but unbridled, not merely painful, but severe, degrading, abusive, extended, grotesque, gratuitous, orgiastic, carnivalesque, barbaric, and all too often fatal for Black people. What accounts for this cruelty (and the apparent pleasure taken in inflicting it) on the part of officers of the state? Why does it persist?

Reading across a range of interdisciplinary sources on extravagant violence, I argue that it involves the interaction of a number of elements: the fantasy of finding/generating legal certainty in the imposition of bodily suffering, the enactment of social and political domination (including controlling color and gender lines), the role of terror and physical abuse in relationships structured by dependency, and ambivalence in officers’ embodiment of sovereignty (officers who are both bound by and always potentially above the law). Extraordinary violence was also well known to the drafters of Section 1983. Unfortunately, the modern Court’s limitations on the Section 1983 cause of action and remedies betray the text of the statute and its unmistakable legislative purpose to provide redress for “outrages.”

INTRODUCTION

The exception explains the general and itself. . . . It brings everything to light more clearly than the general itself. After a while, one becomes disgusted with the endless talk about the general—there are exceptions. If they cannot be explained, then neither can the general be explained.

—Søren Kierkegaard¹

The landscape of Section 1983 precedent is littered with dead, mutilated bodies. It is saturated with blood. The children strewn across this landscape who are not dead themselves (shot in the back, even the face)² have been beaten, forcibly sterilized,³ and abused in other ways.⁴ Private homes have been ransacked,⁵ burst asunder.⁶ The houses of detention that dominate the landscape⁷ reek of fecal matter, the stench of burning flesh, pestilence, and countless other indignities.⁸ Time itself is seized and obliterated for the wrongfully convicted who linger for decades in prison.⁹

I refer here not to cases involving ordinary displays of the state’s monopoly on violence—the monopoly which political scientists and sociologists tell us must be held by the state and its law enforcement officers.¹⁰ Nor do I refer to the fact, insisted upon by Robert Cover, that while the exercise of judicial review may check the state’s monopoly on violence, it also rationalizes that violence.¹¹ “Legal interpretation,” Cover trenchantly observes, “takes place in a field of pain and death.”¹² Courts are implicated, inexorably, he insists, in the state’s monopoly on violence.¹³

These are not the cases to which I refer. However painful and even fatal the ordinary operation of law can be, the cases to which I refer do not involve bureaucratically rational, efficient, dispassionate expressions of state power.¹⁴ Nor are they cases in which brutality is marginally disproportionate in relation to the legally authorized level of force incident to the state’s monopoly on violence—cases, that is, in which rational, efficient, dispassionate expressions of state power happen to exceed the legal threshold of “excessive force” or “cruel and unusual punishment” or “discriminatory purpose.”¹⁵ These cases, tragic as they are, are instances of ordinary legal error, lying at the “sometimes ‘hazy border between excessive and acceptable force.’ ”¹⁶

The class of cases to which I refer involve what the drafters of Section 1983 called “outrages”—extraordinary excess. Violence that is not merely disproportionate, but unbridled, not merely painful, but severe, degrading, abusive, extended, grotesque, gratuitous, orgiastic, carnivalesque, barbaric, and all too often fatal.¹⁷ Less commonly observed is the fact that this form of violence is also very often deeply intimate, even erotic in the sense in which George Battaille understood erotic excess (a “transgression of borders [that] sets us in intimacy with the other”), though unlike the loving transgressions he describes, the “sovereignty” exercised in these cases is not in the service of “friendship, truth, compassion, and the welcoming of differences.”¹⁸ Difference is instead annihilated, and suffering is inflicted proximately, often by hand, far from conventional bureaucratic forms of action at a distance. Extraordinary excess is not merely intimate, but in some cases sadistic—perpetrated, that is, by officers who appear to take pleasure in the suffering they inflict.¹⁹ And while this violence can be brazenly public, a spectacle,²⁰ it is very often privately inflicted, sometimes withheld from public scrutiny by conspiracies of silence and deceit.²¹

What explains this form of state violence in Section 1983 cases, many of which are landmarks in the development of the law and procedure of civil rights enforcement? If James Monroe must be arrested on false suspicion of murder, why must his wife be made to stand naked in the living room during the arrest, his six children beaten?²² If Adolph Lyons has not perfectly complied with an officer’s request to raise his hands during a traffic stop, if he complains after his hands are slammed back to his head, why must he be placed in a chokehold until he passes out, “spitting up blood and dirt,” having “urinated and defecated” on himself when he regains consciousness?²³ If Larry Hope must be disciplined for falling asleep and arriving late to forced labor on a chain gang in a prison, why must he be handcuffed to a hitching post shirtless in the sun for seven hours?²⁴ Why must he be deprived of bathroom breaks? And why would a corrections officer carry water out to the hitching post only to taunt Mr. Hope by giving it to a prison dog and then spilling it on the ground before Mr. Hope in the sweltering heat? If Keith Hudson legally deserved punishment for getting into an altercation with prison guards, why, after he’d been restrained in handcuffs and shackles, was he repeatedly punched in the mouth, eyes, chest, and stomach while a guard held him down?²⁵ Why did the supervisor on duty not only watch the beating, but tell the officers involved with acidic irony “not to have too much fun”?²⁶ If Javid Iqbal must be detained on immigration charges in a maximum security facility on completely false suspicion of connections to the September 11th attacks, why did the officers kick him “ ‘in the stomach, punch[] him in the face, and drag[] him across’ his cell without justification”?²⁷ Why must he be subjected to “serial strip and body-cavity searches when he posed no safety risk to himself or others”?²⁸ Why must he be denied the right to pray and subjected to religious slurs?

Why are there so many replications of these cases?²⁹ And why are these outrages so often color-coded?³⁰

In some of the canonical cases, the Supreme Court has upheld a right to relief for the underlying constitutional violations. The experience of Mr. Monroe and his family underlies the Court’s landmark 1961 decision reviving Section 1983 as a federal cause of action from its Jim Crow dormancy. The Court upheld the use of Section 1983 for constitutional violations by state actors even when the plaintiff would presumably have a cause of action under state common law for at least some of the relevant harm.³¹ Larry Hope’s suffering underlies the Court’s determination that, for purposes of overcoming the affirmative defense of qualified immunity, some conduct is so obviously unlawful that there need not be a near-exact precedent on the books alerting the officer to this fact.³² Any reasonable officer would know the conduct was unlawful.

In other cases, however, the Court has denied relief and denied even the right to seek federal judicial review. These are the circumstances in Lyons, the 1983 case requiring that standing be separately established for injunctive relief (even when the plaintiff has standing for money damages) and requiring that the plaintiff show substantial risk of recurrence of harm.³³ The holding is part of the reason why deadly police chokeholds, used in the absence of proportionate physical threat to officers, remain so prevalent.³⁴ In the absence of standing to seek an injunction to ensure that police-use-of-force policies comply with the Fourth Amendment, use-of-force policies are difficult to challenge.³⁵ In Iqbal, the Court dismissed the complaint as implausible under Rule 12(b)(6).³⁶ Even after Inspector General reports confirmed Iqbal’s assertions that high level government officials were well aware of the conditions in the prison and did nothing about it, the Court dismissed suits by similarly mistreated detainees on the ground that there is no Bivens cause of action (the federal officer analogue to Section 1983) for such harm, and that there was no cognizable cause of action for a Section 1985 conspiracy.³⁷

But put to one side, for the moment, whether legal redress is or ought to be available for such conduct. And put to one side as well the simmering debate on the affirmative defense of qualified immunity when money damages are sought in civil rights cases,³⁸ the near universal indemnification of officers who are ultimately held liable,³⁹ and the uncertain fate of the Bivens cause of action for constitutional torts committed by federal officers.⁴⁰ Put aside what it means to act “under color” of law for the purposes of Section 1983 liability⁴¹ and what must be shown to obtain an injunction to reform police departments and prisons.⁴² Suspend all of these vitally important, hotly contested doctrinal questions. Pause to take stock of the extraordinary, dehumanizing level of violence inflicted at the hand of the sovereign, the repetition compulsion, the fetishization of excess. Consider how and why Trent Taylor was forced to spend four days in a cell

covered, nearly floor to ceiling, “ ‘in massive amounts’ of feces”: all over the floor, the ceiling, the window, the walls, and even “packed inside the water faucet.” Fearing that his food and water would be contaminated, Taylor did not eat or drink for nearly four days. Correctional officers then moved Taylor to a second, frigidly cold cell, which was equipped with only a clogged drain in the floor to dispose of bodily wastes. . . . Because the cell lacked a bunk, and because Taylor was confined without clothing, he was left to sleep naked in sewage.⁴³

What explains this level of mistreatment? Not just the wretched, “shockingly unsanitary” conditions (conditions, note, in which the corrections officers themselves must work as they move and supervise prisoners), but the taunting by the officer who, upon placing Taylor in the first cell, informed him that he was “going to have a long weekend,” and another officer who, upon placing Taylor in the second cell, said he “hoped Taylor would f***ing freeze.”⁴⁴

What accounts for this humiliation and cruelty (and the apparent pleasure taken in inflicting it) on the part of officers of the state?

No meaningful conversation about jurisdiction, appropriate forms of action, or remedies can begin without grappling with the nature and sources of these constitutional violations and the mutual dehumanization they cause. Even if there are necessary tragedies attendant to the state’s monopoly on violence, what explains this level of violent excess, depravity, and depredation?

The very first thing to say is that the harm cannot be understood if it is not accurately described, if the depth of the violence involved is diminished, obscured, or antiseptically elided.⁴⁵ The majority opinion in Lyons is an exercise in elision, rendering Mr. Lyons’ request for injunctive relief to prevent another such incident irrational, even paranoid, rather than a reasonable response to policies and practices regarding use of force that disproportionately affect Black drivers in Los Angeles.⁴⁶ The chokehold, the majority concedes, “caus[ed] damage to his larynx” and “render[ed] him unconscious,” and the majority mentions the evidence of more than a dozen deaths resulting from the use of chokeholds.⁴⁷ But it does so only in passing in a paragraph concerning whether the case was mooted by alterations in the city’s policies.⁴⁸

It is instead in Justice Marshall’s dissent that one learns that when Lyons “regained consciousness, he was lying face down on the ground, choking, gasping for air, and spitting up blood and dirt,” and that he had “urinated and defecated” on himself as a result of the chokehold.⁴⁹ We learn from Justice Marshall that Lyons was not charged with any crime (let alone a crime such as resisting arrest that might suggest the chokehold was a proportionate response). He was simply “issued a traffic citation [for a burnt out taillight] and released.”⁵⁰ And it is the dissent which cites record evidence that Black people made up seventy-five percent of deaths from chokeholds in a city in which they were just nine percent of the population.⁵¹ The majority simply ignored the racial elements of the case, as well as the statistical evidence showing that three-fourths of all police/citizen “altercations” involved use of a chokehold—data suggestive of a policy or practice of resorting to deadly force when officers are met with simple dissent.⁵² This colorblindness obscures record evidence of racially discriminatory policing.

Similarly, in Monroe, it is only from Justice Frankfurter’s dissent that we learn that Mr. Monroe had six children, all of whom were rousted along with his wife, that Mr. Monroe was struck several times by Detective Pape “with his flashlight, calling him [n-word] and ‘black boy,’ [and] . . . that other officers hit and kicked several of the children and pushed them to the floor.”⁵³ Here too, the element of race and its conjunction with unprovoked violence would be all but invisible absent the dissent’s more faithful recitation of the allegations of the complaint. So too the fact and nature of the violence visited upon Mr. Monroe’s children.

Nor can the nature or source of the harm be understood if excesses are dismissed as the unfortunate result of individual rogue officers. To be sure, not every constitutional violation springs from the orders of supervisors or from official policy, practice, or custom, and comparatively few in number involve extraordinary excess. Neither is it the case, however, that every violation springs from circumstantial contingencies, isolated error, or the pathological deviance of individual officers.⁵⁴ Whether or not one believes that supervisors and government agencies should be held legally accountable for the conduct of their officers (either on a respondeat superior theory or some more exacting standard such as the one developed from Monell v. Dep’t of Social Services and its progeny⁵⁵), bad apples cannot explain all cases.⁵⁶ Indeed, the theory is contradicted by cases such as Taylor and Iqbal in which supervisors are plainly involved, as well as a vast body of research in social psychology and organizational behavior concerning institutional failure and crimes of wrongful obedience.⁵⁷ Ordinary people of good will, the research shows, are capable of inflicting pain and suffering on others, including extraordinary levels of pain and suffering, when working in settings where harmful conduct is expected, rationalized, or ignored.⁵⁸

In the following pages I examine “outrages” in civil rights cases and the nature of such extraordinary excess. The first level of work is mainly negative, identifying in Part I what this excess is unlike—how distinctive it is even according to social and political theories that are explicitly concerned with the ways in which people performing seemingly ordinary bureaucratic tasks contribute to monstrous deeds and systems of subordination. Part II turns to theories that focus on direct participation in extraordinary, dehumanizing excess and subordination to explore what kind of legal officer is capable of inflicting such severe suffering, under what circumstances, what purposes and forms of power might be served, and what kind of legal subject is produced by inflicting suffering in this way. I concentrate on Franz Kafka’s short story The Penal Colony, which imagines an extravagantly painful form of capital punishment, Patricia Williams’s essay on the irrational fears that animate racial prejudice and police brutality, and studies on the nature of “intimate partner” violence.

Reading across these interdisciplinary sources on extravagant violence I suggest that outrages involve the interaction of a number of elements: the fantasy of finding/generating legal certainty in the imposition of bodily suffering, the enactment of social and political domination (including controlling color and gender lines), the role of terror and physical abuse in relationships defined by dependency, and ambivalence in officers’ embodiment of sovereignty (libidinally charged oscillation between self-restraint and extravagant excess on the part of officers of the state who are themselves both bound by and always potentially above the law).⁵⁹ In the final section, Part III, I turn from these theories of extraordinary violence to civil rights enforcement doctrine. I argue that extraordinary, racialized violence resulting from corruption of office was well known to the drafters of Section 1983, that the statute was specifically designed to remedy what the Reconstruction-era drafters called “outrages,” and that the modern Court’s use of federalism principles to limit the Section 1983 cause of action and remedies directly contradicts the text of the statute and this unmistakable legislative purpose.

The literature on the drafting of Section 1983 is extensive, but it concentrates mainly on whether the language “under color” of law was designed to restrict the cause of action to circumstances in which the federal right-holder would not have a parallel claim under state law. This approach is understandable in light of Justice Frankfurter’s emphasis on this reading of the statute in his dissenting opinion in Monroe v. Pape and the debate his opinion fueled.⁶⁰ What has not received adequate attention beyond conventional references to the role of Klan violence in the legislation of Section 1983 is the specific connection between the persistence of “outrages,” government officer complicity in such violence, and the failure of state courts and law enforcement to address the corruption of state legal systems arising from resistance to Reconstruction.⁶¹

Both Section 1983 scholarship and empirical analyses of officer brutality also tend to lump modern cases involving extraordinary violence together with all cases on excessive force and forms of prison violence that lack a legitimate penological purpose.⁶² The effect is to assimilate outrages to a broader category of state violence. However instructive this is regarding the overall problem of modern police/carceral violence, it tends to obscure the distinctive phenomenon of outrages, the unique harm they cause, and their role in prompting Congress to establish Section 1983 in the first place.

I. FALSE STARTS IN THEORIZING EXTRAORDINARY VIOLENCE

Modern social and political thought has been preoccupied with the irrational and dehumanizing effects of institutionalized violence. But it is notable that among the most authoritative accounts—Arendt’s theory of the banality of evil, Foucault’s theory of disciplinary power, and Kafka’s theory of perishing “before the law”—outrages are largely irrelevant.

A. The “Banality of Evil”

Section 1983 cases involving extraordinary violence do not seem to result from what Arendt famously described as the “banality of evil,” a theory that has been used as a framework for understanding how relatively ordinary people become instruments in the perpetration of monstrous deeds. Observing the trial of Adolph Eichmann for his role in organizing the transportation of Jewish people and others to Nazi death camps, Arendt was struck by the extent to which Eichmann was neither “perverted” nor “sadistic” but rather terrifyingly “normal.”⁶³ He apparently acted mainly to advance his bureaucratic position.

The deeds were monstrous, but the doer—at least the very effective one now on trial—was quite ordinary, commonplace, and neither demonic nor monstrous. . . . Despite all the efforts of the prosecution, everyone could see that this man was not a ‘monster,’ but it was difficult indeed not to suspect that he was a clown.⁶⁴

Arendt uses the term “clown” because Eichmann was unable to avoid self-contradiction, lying, and cliché in matters of morality. His “inability to speak,” Arendt emphasizes, “was closely connected with an inability to think; that is, to think from the standpoint of somebody else.”⁶⁵ Eichmann knew (“of course”) that “he had played a role in the extermination of the Jews,” that without performing this bureaucratic function Jewish people “would not have been delivered to the butcher.”⁶⁶ But he scoffed at the idea that this established his personal culpability (“What is there to admit?” he asked when pressed on the matter⁶⁷).

Chillingly, he “remembered the turning points in his own career” more accurately than “the turning points in the story of Jewish extermination, or, as a matter of fact, [] the turning points in history.”⁶⁸ The ideological machinery of fascism, Arendt contends, efficiently mobilized the petty self-serving idealism of bureaucrats like Eichmann, drawing them into the enthusiastic erection and maintenance of the machinery of death. Inability “to think” and dislocation of moral responsibility in the very seat of identity combined to produce a monstrous and yet banal form of evil.⁶⁹

Eichmann’s role in the machinery of death of the Holocaust was, however abhorrent, principally administrative in nature—distant from the scenes of murder. He orchestrated a process of stripping Jews of their property and rights to prepare them for expulsion from their communities to death camps. Arendt’s analysis reminds us that acts of violence have bureaucratic predicates in which many people are complicit, but the distinction between the acts and their bureaucratic predicates matters to a full understanding of extraordinary violence. Many people who are capable of performing roles at a distance from violence are utterly incapable of the violence itself. Eichmann, for example, testified that if he was shown “a gaping wound, I can’t possibly look at it. I am that type of person.”⁷⁰ Indeed, this is one of the most important insights of Arendt’s theory of the banality of evil—that people who recoil from direct acts of violence are instrumental to the administrative architecture which ultimately produces and sustains it. In the Section 1983 cases involving extraordinary violence, by contrast, the named officers are not acting at a distance—their hands are saturated with blood. Even when high level officers are also named, as in Iqbal and Abassi, the core allegation is that the policies and practices immediately responsible for the harm (not intermediate bureaucratic steps) flow from the ink of their pens and associated decisions.

B. “Disciplinary Power” and the “Spectacle of the Scaffold”

The exceptional violence in Section 1983 cases does not flow from “disciplinary power” either. In Discipline and Punish, Michel Foucault describes ways in which surveillance, ranking, and the arrangement of space in modern carceral institutions produces efficient compliance, or “docility”:

[T]he systems of punishment are . . . situated in a certain “political economy” of the body: even if they do not make use of violent or bloody punishment, even when they use “lenient” methods involving confinement or correction, it is always the body that is at issue—the body and its forces, their utility and their docility, their distribution and their submission.⁷¹

A panopticon, the famous prison design of Jeremy Bentham from which Foucault theorizes, produces docility among inmates mainly by creating uncertainty about whether and when one is being surveilled. Indeed, uncertainty about surveillance prompts inmates to monitor themselves, obviating the need for actual force to be deployed by prison guards. This was its supposedly modern genius as compared to the use of dungeons, torture, and spectacles of death on the scaffold. It achieves this by “induc[ing] in the inmate a state of conscious and permanent visibility that assures the automatic functioning of power,” such that

the surveillance is permanent in its effects, even if it is discontinuous in its action; that the perfection of power should tend to render its actual exercise unnecessary; that this architectural apparatus should be a machine for creating and sustaining a power relation independent of the person who exercises it; in short, that the inmates should be caught up in a power situation of which they are themselves the bearers.⁷²

Foucault connects the panopticon and other systems oriented toward the production of docility (in schools, factories, hospitals, military barracks) to “progressive forms of training,” measurement, ranking, and other “techniques for assuring the ordering of human multiplicities” in a “disciplinary society.”⁷³ Disciplinary power thus develops alongside mass society and the industrial revolution to ensure social order and efficient labor.⁷⁴ In “every society, the body was in the grip of very strict powers, which imposed on it constraints, prohibitions[,] or obligations.”⁷⁵

In all of these accounts, what makes disciplinary power distinctive is precisely the absence or minimal role of violence, its “subtle coercion” through the “efficiency of movements[,] . . . an uninterrupted, constant coercion, supervising the processes of activity,” which the subject eventually internalizes.⁷⁶ The extraordinary violence in Section 1983 cases is quite different. It involves direct, physical, unmediated infliction of pain. It is therefore closer to what Foucault calls “sovereign power.”⁷⁷ Throughout Discipline and Punish and in other works Foucault is careful to distinguish disciplinary and sovereign power. Sovereign power is what we conventionally associate with the state’s monopoly on violence—state action in the standard sense of armed officers acting in an official capacity. It is comparatively inefficient and discontinuous, requiring “sumptuous expenditure[s],” relative to the operation of disciplinary power.⁷⁸

Precisely because it is so inefficient, Foucault argues that sovereign power historically relied on spectacles of excess to produce compliance. These spectacles were designed to display the “unlimited power of the sovereign,”⁷⁹ “an emphatic affirmation of . . . its intrinsic superiority . . . not simply that of right, but . . . the physical strength of the sovereign bearing down upon” deviant subjects to “revenge[] its authority.”⁸⁰ As David Owens has shown, recorded and publicly disseminated images of anti-Black police violence fit the “spectacle of the scaffold” which Foucault associates with early modern European expressions of sovereign power.⁸¹ There is, however, no public scaffold when extraordinary violence is inflicted behind prison walls and in unrecorded or unpublished encounters with police officers, a problem to which I return in Part II.

C. Being “Before the Law”

In Franz Kafka’s famous parable, Before the Law,⁸² the protagonist is denied access to law by a low-ranking but “mighty” gatekeeper who says that he is but one of many gatekeepers, “each one mightier than the one before.”⁸³ The gatekeeper shares that “[e]ven the sight of the third is more than I can bear,” so terrible are his powers.⁸⁴ The gatekeeper is thus an example of sovereign power, a power apparently so awesome in its capacity for violence that no one dares resist it. Significantly, for our purposes, however, the gatekeeper’s capacity for violence is so overwhelming that it need not be exercised upon the body. The gatekeeper also informs the protagonist that the gate is for him alone, not others, suggesting that the gate is not public. The protagonist decides to wait for permission and the gatekeeper “gives him a stool and allows him to sit down beside the door.”⁸⁵ But the wait is unending, and ultimately fatal. The gatekeeper stands impassively as the protagonist gradually withers “before the law” and dies. In the meantime, the gatekeeper takes all the protagonist’s money, “so that you don’t think there’s something you’ve omitted to do.”⁸⁶

There are many readings of the parable as a critique of the terrible, dehumanizing force of law,⁸⁷ but the protagonist’s suffering, albeit unto death, is not caused by any act of violence on the part of the gatekeeper. His suffering is shaped instead by the possibility of violence, implied in the gatekeeper’s admonition about his awesome power and the even greater powers of other gatekeepers beyond the portal before which he stands. The moral outrage the story evokes lies in the gatekeeper’s startling indifference. It is suggestive of the thoughtless, cold, bureaucratic unseating of empathy with which Arendt is concerned, but not the extravagant infliction of physical suffering we see in Section 1983 cases.

II. THE BODY AND BEING ABOVE THE LAW

If targets of extraordinary violence are not “before the law,” subjected to disciplinary power, or victims of the “banality of evil” and its action at a distance, what explains their victimization?

A. In the Penal Colony

Another famous story by Franz Kafka takes us closer to understanding the phenomenon. In the Penal Colony describes an “apparatus” created by a former colonial commandant to suppress disorder in the colony.⁸⁸ The apparatus is a machine that “carr[ies] out . . . the sentence” by inscribing its text on the body of the condemned person with needles.⁸⁹ The condemned person is strapped to a “bed” above which hangs a “harrow”—a metal frame holding many needles.⁹⁰ The machine, called the “engraver,” moves the bed and the harrow, “vibrat[ing] both sideways and up and down, in tiny, very rapid movements” each of which is “very carefully calibrated,” inscribing the sentence in thrusts and cuts of gradually increasing depth.⁹¹ During the process, which takes twelve hours, the condemned person slowly experiences the sentence “on his body” as the thrusts and cuts deepen until he bleeds to death.⁹² The sentence is “put to him physically.”⁹³

Extraordinary excess is a defining feature of every phase of this punishment. The legal “process” that leads to punishment is itself excessively deferential to officer discretion. A condemned person receives no trial, no defense, and is not informed of the sentence before it is inscribed on their body. Guilt is decided by those who control the apparatus, and because there is no opportunity to present a defense, guilt “is always beyond doubt.”⁹⁴ A foreign observer is informed that in the process of inscription there are elaborate embellishments by the needles upon the body of the condemned: “many[,] many ornaments surround[ing] the script proper.”⁹⁵ The apparatus not only writes the punishment with increasingly deep incisions in the body of the condemned, it uses “the rest of the body” to surround the “actual text” with extravagant “decoration.”⁹⁶ The pain is equally extravagant. About halfway through the execution of the sentence, the traveler is told, the pain is so excruciating that the condemned person eventually stops screaming and falls silent as he “begins to decipher the script . . . with his wounds.”⁹⁷ The officer who operates the apparatus views this as the climactic moment when justice is realized, describing it as a “transfiguration” in which even “[t]he very dimmest of them begins to understand.”⁹⁸ Their faces take on a look “that might seduce one to take their place” in the apparatus, so transcendent is the truth they experience.⁹⁹

In many ways, In the Penal Colony represents the apotheosis of the spectacle of the scaffold. The officer, overcome with nostalgia, reports that during the reign of the former commandant, executions were public events with massive public attendance (“the whole valley was packed . . . everyone came to spectate . . . they all knew: justice is being enacted”) and the apparatus not only inscribed the sentence, its needles dripped with a painful, corrosive acid:

It was impossible to find room for all those who wanted to view the proceedings from close . . . . How we watched the transfiguration in the tormented faces [of the condemned], how we held our cheeks in the glow of this arduously achieved and already passing justice! I tell you, comrade, those were times!”¹⁰⁰

This is a genuine public spectacle, designed to demonstrate the awesome power of sovereignty, to secure compliance with law by making the administration of justice not only summary (no trial, no defense, no notice of the sentence) but immediate (operating directly upon the body of the condemned, enacting the sentence upon the body using the exquisitely painful machinery of the apparatus), absolute (every sentence is a death sentence), and yet also temporally and substantively extended (extending beyond the “actual text” of the sentence to lavish “decorative” embellishments, and beyond mere execution to excruciatingly slow torture ending in death), all resting on the sadistic, metaphysically sublime premise that the true nature of justice appears and is “understood” in and through the body during the inscription.¹⁰¹

Kafka implies that the apparatus is not, in fact, essential to maintain order in the colony even though the officer claims that under the former commandant who built it, administration of the entire colony was “seamlessly efficient.”¹⁰² We learn early in the story that the new commandant, much to the chagrin of the officer, regards the apparatus as barbaric and unnecessary, resists expenditure for its upkeep, has the support of the people, and has invited the traveler to observe the execution in order to use the traveler’s views to ban its use permanently. Indeed, much of the dramatic tension in the story rests not just on the design and use of the apparatus for what becomes its final execution, but on whether and how the traveler will announce his moral opposition to it to the new commandant (the traveler is, we gradually learn, steadfastly “opposed” to the entire process: “[t]he injustice of the procedure and the inhumanity of the execution were incontestable”¹⁰³). When the officer fails to persuade the traveler of the value of the apparatus, the officer spares the condemned man and instead inserts himself into the apparatus. The apparatus impales him almost immediately because it has not been possible to properly maintain it and he dies within minutes, leaving “no trace” that he has experienced the “promised transfiguration.”¹⁰⁴

The violence of the apparatus is of course in important ways quite different from extraordinary violence in Section 1983 cases. It is, to begin with, imaginary, and also a relic of public executions, whereas the violence in Section 1983 cases is all too real, and there is often no audience. The apparatus also mediates the relationship between the body of the condemned and the officer. The officer, at one point, has to probe deep into the apparatus to attempt a repair, but it is neither a cyborg nor simply an instrument of torture wielded by the officer. Once the instructions of the “sentence” are inserted into the apparatus and the condemned person is strapped onto the bed, the machine makes the inscription automatically. Finally, many Section 1983 cases involve deaths at the hands of officers of the state, but the cases generally do not involve executions following judgments imposing capital punishment as a sentence.¹⁰⁵ Instead, when deadly force is used, officers are usually in the process of mundane traffic stops, executing warrants and making arrests, or engaged in prison administration away from death row. And of course, many Section 1983 cases involving extraordinary violence and suffering do not result in death.

The point of connection between the story and Section 1983 cases lies instead in its account of the officer’s attachment to the apparatus as an instrument of excess (even to private scenes of excess after public attendance has been banned), and to the seductive power of the summary administration of justice. The officer who maintains the apparatus doesn’t just appreciate it; he is obsessively attached to it. By the time the traveler comes to see it, the officer is “its sole defender.”¹⁰⁶ While he barely notices the condemned man, the officer is distraught that the new commandant has withheld funds for maintenance of the apparatus, he laments that there are no longer proper replacement parts, and he is particularly distressed that a more humane execution procedure is being developed.¹⁰⁷ He refers to the diagrams that typeset the apparatus as “the most precious things I have.”¹⁰⁸ He also desperately seeks to draw the traveler into a conspiracy to undermine the new commandant and his plan to decommission the apparatus. The completeness of his obsession with the machine is revealed by his fatal devotion to it—once he realizes that it will no longer be used and that his efforts to persuade the traveler of its value are in vain, the officer makes his own execution the machine’s last, a process that results in the machine falling apart. His devotion is, one might say, not merely complete but fatally excessive.

Underneath devotion to the apparatus is attachment to the power to inflict bodily pain in the administration of justice—an attachment grounded in the idea that infliction of bodily pain serves as a lexical index of justice, that pain is an instrument of justice, the way to see justice done. This idea animates the officer’s sadism and the erotic charge traveling with the physical imposition of legal judgment—literally, the inscription of sovereign power upon the body of the subject. Similar attachments appear to motivate the officers in Section 1983 cases who take pleasure in the suffering they inflict (e.g., the officer who hoped Taylor would “f***ing freeze” in the “frigidly cold cell . . . equipped with only a clogged drain in the floor to dispose of bodily wastes”¹⁰⁹), as well as chokehold cases like Lyons in which the body of the officer is (must be) personally, immediately, and intimately engaged with the exercise of sovereign power, inscribing it upon the body of the supposedly resistant subject.

Attachment is not just to embodying the instrument of sovereign power, but to legal certainty—inscribing the law on the subject’s body. A legal order that seeks perfect compliance (along with the erotic charge of potentially ‘complete’ repression) is a form of excess in relation to human fallibility. In Kafka’s story, there is a cathartic element in the dyadic economy of a suffering/redeemed/dead “perpetrator” and suffering/relieved victims and bystanders. Indeterminacy, the terror of it, is executed, purged from the community, along with the condemned. Thus, even as other more restrained forms of policing and punishment emerge in the penal colony, the imagined moral clarity and instrumental utility of the apparatus, and the attendant desire to preserve it and all the accoutrement of its scaffolding, to speak its language of certainty, to inscribe it automatically upon the bodies of deviant subjects, remains. And this remainder—the longing it prompts for revival of such a system—haunts new, ostensibly more humane and fallible regimes. This remainder is also latent in the “thin blue line” discourse of law and order insofar as it rationalizes police and carceral violence—what “law and order” promises (the absence it mobilizes politically and in the psyche) is the certainty of determinate exercises of sovereign power and the compliance such certainty ostensibly guarantees.¹¹⁰ Embellished, gratuitous, and grotesque bodily infliction of pain reflects this longing for compliance and legal certainty. Bodies must be fixed, transfixed, in compliant recognition of sovereign power.

The officer in the story is so committed to this work that he appears to have lost all sense of connection to the dignity and humanity of the subjects of the colony he participates in governing, not least of which the condemned man. His almost exclusive concern is with maintaining and caring for the apparatus. Indeed, he exhibits paranoia about the new commandant’s plans and is unable to cope with a future in which those plans will unfold.¹¹¹ Even at lower levels of intensity, sociologies of policing suggest that perspective and judgment are warped when officers succumb to an embattled, binary, “blue line” mindset in which the people one serves become a foreign, abstract out-group.¹¹² Ordinary emotional responses become grotesquely inverted—instead of revulsion, pleasure is taken in inflicting pain; instead of empathy and a sense of duty toward subjects, there is antipathy or brutally cold indifference; instead of care, there is the belief that suffering is not just deserved but in the best interests of the subject’s legal “transfiguration.”¹¹³

The officer’s obsession in Kafka’s story is not just nostalgically motivated, it is an expression of “imperialist nostalgia”—seething resentment at the new regime and its lenience is expressed in inverted form as intimate attachment to the apparatus believed to be central to the authority of the ancien regime over the colony.¹¹⁴ John Zilcosky admonishes that it is a mistake to separate the erotic element of the apparatus’s sadistic excess from its value as an instrument of colonial oppression. “The problem with [some] postcolonial readings” of In the Penal Colony, he insists, “is that they fail to address the promise of sado-masochistic pleasure that is so central to the story’s effect. Just as the earlier psychoanalytical interpretations repressed politics, these political readings repress desire.”¹¹⁵ The officer’s obsessive attachment (being willing indeed, not just to die for the apparatus, but with it, in it) fuses the erotic and politically instrumental in the form of a death wish executed by fatal penetration (as the apparatus malfunctions, one of the needles plunges through the officer’s skull). Obsessive attachment is in this way represented as an erotically charged and (at least until the officer’s death) a politically useful byproduct of a system that scaffolded spectacles of sadistic excess and permitted officers to impose summary justice.

In any system in which extravagant sovereign power has been replaced with a new regime of limits, especially externally imposed limits, resentment can run deep. In the American context, one might, for instance, read resistance to Reconstruction enforcement in the nineteenth century and resistance to the Warren Court’s revival of Section 1983 along these lines—new, decidedly unwelcome federal (and federal judicial) interventions into matters of traditional state and local executive branch concern in the administration of criminal justice.¹¹⁶

B. “Spirit-Murder”

Kafka leaves the role of racial subordination in spectacular violence implied in In the Penal Colony. Early on in the story the traveler remarks that the officer’s uniform is “much too heavy for the tropics.”¹¹⁷ The officer replies that they wear them nonetheless because they “signify home, and we don’t want to lose touch with home.”¹¹⁸ In this sentence, in another about the fact that both the traveler and officer speak French while the condemned man and attending soldier do not,¹¹⁹ and in the officer’s reference to the traveler’s moralistic “European perspective” on capital punishment,¹²⁰ a geography of colonial and racial exploitation is made clear.

In one of her most famous essays on law and policing in America, Patricia Williams is explicit, directly addressing the role of extraordinary violence in racial subordination.¹²¹ She examines the failed criminal prosecution of a white police officer who shot and killed a sixty-seven-year-old, arthritic, Black woman in her Bronx apartment.¹²² The officers were there to evict Eleanor Bumpurs and she resisted.¹²³ The writ of possession authorizing the eviction was issued via a default judgment, which means that Mrs. Bumpurs never received a hearing in court before the officers showed up to evict her. Indeed, it appears that she was not properly notified of the case and there were “serious doubt[s]” about the validity of the landlord’s grounds for eviction.¹²⁴ This summary process without notice may have played a role in her confusion and resistance.

According to the Police Commissioner, six officers were in the apartment, all armed, two wielding large plastic shields, another a “restraining hook.”¹²⁵ Mrs. Bumpurs, wielding a knife “bent” in the confrontation by one of the plastic shields, escaped from the hook and was shot by the officer farthest from her with a shotgun.¹²⁶ The blast “removed half of her hand, so that, according to the Bronx District Attorney’s Office, ‘it was anatomically impossible for her to hold the knife.’ ” The officer nevertheless “pumped his gun and shot again,” this time killing her.¹²⁷

She asks what “animus . . . inspired such fear, and such impatient contempt in a police officer that the presence of six other heavily armed men could not allay”:

Why was the sight of a knife-wielding woman so fearfully offensive to a shotgun-wielding policeman that he felt that blowing her to pieces was the only recourse, the only way to preserve his physical integrity? What offensive spirit of his past experience raised her presence to the level of a physical menace beyond real dimensions? What spirit of prejudgment and of prejudice provided him with such a powerful hallucinogen?¹²⁸

The essay goes on to explore the ways in which racism authorizes not just violence, but extraordinarily excessive anti-Black violence. She considers examples in which both white police officers and white citizens were exonerated in the press and in court for such violence. Echoing Arendt’s critique of Eichmann’s inability to think and the penal colony officer’s perverse certainty that torture produces transfiguration, Williams ultimately concludes that white supremacy creates distorted mental states (“formalized distortions of thought” that “produce[] social structures centered around fear and hate”) in which “in the minds of whites[,] . . . blacks become large, threatening, powerful, ubiquitous, and supernatural.”¹²⁹ The Black body must not only be subdued, its far larger spectral presence which operates “beyond real dimensions” must be annihilated.

The connection between extravagant violence and “embellished fear” in this process of annihilation comes into sharpest relief when Williams recites “a news story from [her] fragmentary grammar school recollections of the 1960’s,” according to which

a white man acting out of racial motives killed a black man who was working for some civil rights organization or cause. The man was stabbed thirty-nine times, a number which prompted a radio commentator to observe that the point was not just the murder, but something beyond. What indeed was the point, if not murder? I wondered what it was that would not die, which could not be killed by the fourth, fifth, or even tenth knife blow; what sort of thing that would not die with the body but lived on in the mind of the murderer.¹³⁰

Williams’s answer is that white supremacy demands the death of the “spirit”—that part of our being which lies within and yet extends beyond the body, the part of ourselves which “is beyond the control of pure physical will and resides in the sanctuary of those around us.”¹³¹ “Spirit-murder” must be exceptionally excessive to meet the seemingly bottomless fear and rage that animate prejudice. It requires a level of violence capable of producing degradation, of destroying the specter of Black power which lurks (however counter-factually) as a “predatory” threat in the aggressor’s mind.¹³²

Williams situates spirit-murder in the long, painful legacies of spectacular violence visited upon Black people. She interweaves examples of modern racism in New York, including her own experiences as a Black woman, with the civil rights era. And like Kafka, who opens the story of the penal colony after the old commandant who designed the apparatus has been replaced, Williams represents contemporary spectacles of racial violence as haunting remainders of an “unwanted past,” an ancien regime that will not end:

Failure to resolve the dilemma of racial violence merely displaces its power. The legacy of killing finds its way into cultural expectations, archetypes, and ‘isms.’ The echoes of both dead and deadly others acquire a hallucinatory quality; their voices speak of an unwanted past, but also reflect for us images of the future. Today’s world condemns those voices as superstitious and paranoid. Neglected, they speak from the shadows of such inattention, in garbles and growls, in the tongues of the damned and the insane.¹³³

The historian Allen Trelease formally locates this “unwanted past” in slavery and resistance to emancipation. He richly details the excessive, “pathological fear . . . not at all justified by the actual danger” felt by whites who defended the institution.¹³⁴ Both before and after emancipation “whites were apt to react with disproportionate severity” to Black people.¹³⁵ But emancipation and the “advent” of Reconstruction produced “enhanced anxiety[,] . . . intolerance[,] and violence as never before.”¹³⁶ Violent repression, Trelease emphasizes, was directed less toward ensuring that Black labor remained a “docile” labor force (“in fact [racial terror] did much more to drive off labor and disrupt economic life”), than toward “keeping blacks within their proper social bounds,” especially preventing voting, officeholding, and crossing social color lines.¹³⁷

If Negroes had been feared even when they were subjected to the control of masters and prewar slave codes, they were infinitely more dangerous now that these controls were lifted. . . . A former Mississippi Klansman justified violence as the only way of protecting white families against what he conceived to be “the threatened and rising arrogance of the negroes.” Cruelty, seemingly beyond the gravity of the provocation, he said, was “justified by the fact that every little insolence, if left unnoticed, would be bragged about by its perpetrator and fellow observers . . . . The news would spread with great rapidity, and there was no telling where it would end. . . .” By this reasoning white men could and did commit the most brutal forms of aggression, convinced all the while that they were acting defensively.¹³⁸

As early as 1865, the year the Civil War ended,

Carl Schurz reported . . . [that] “the maiming and killing of colored men seems to be looked upon by many as one of those venial offenses which must be forgiven to the outraged feelings of a wronged and robbed people.” . . . Certainly whipping and corporal punishment were regarded as the white man’s right and duty, emancipation or no emancipation; organized regulators or vigilantes took up this task . . . and the Klan further institutionalized the practice,” adding other forms of torture and death to the list of “atrocities.”¹³⁹

Page after page of the 1871 U.S. Senate Report and Testimony on the Alleged Outrages in the Southern States, which supported the passage of Section 1983, confirms the extraordinary level of violence that followed. Even a cursory review of the reported outrages in Alamance County, North Carolina between 1868 and 1870, indicates the distinctive role of extraordinary violence.

[A] negro man by the name of Outlaw . . . was taken from his house . . . about one o’clock at night, by a band of from eighty to a hundred men, and hung upon an elm tree, not very far from the court-house door. . . . The newspapers have said that he was guilty of having shot at a band of Ku-Klux that passed through the town some time previous; but that was not true.

Caswell Holt, (colored,) taken from his house in the night, was whipped until blood was streaming from his back; he was then made to bend down, while one of the parties tortured him by rubbing a rough stick up and down his back.

Joseph Harvey, (colored,) taken by fifteen or twenty in disguise, carried about three quarters of a mile from his house, dragged over fences, rocks, through briars, and about one hundred and fifty lashes laid upon his bare back.

Nathan Trollinger, (colored,) taken from his house by men in disguise, severely whipped, and afterwards made to mutilate his own private parts with his pocket knife.

Sally Hall and her two daughters thrown out of their house and whipped, and one of them made to exhibit her person, while the fiends proceeded to inflict blows upon her private parts.

John Bass, (colored,) “potterized.”¹⁴⁰

The Klan also targeted whites who supported Black people and Reconstruction:

Alonzo B. Corliss, a northern man, who was teaching [in] a colored school . . . was dragged from his bed by twelve or fifteen disguised men, amid the shrieks and cries of his distressed wife, carried a little distance into the woods and severely whipped, the hair and whiskers shaven from one side of his head and face, his head and face cut and disfigured in a most cruel manner, after which he was painted black and left in this condition.¹⁴¹

The “ultimate purpose” was to “overthrow the reconstruction acts down South.”¹⁴² In some places “a majority of men” in the Klan had served in the Confederate Army.¹⁴³ Having lost the war, they were now refighting with the tools of racial terror.

Not only did white supremacist “aggression [take] every conceivable form,” it was seldom punished; “it simply was not a punishable offense in the eyes of many whites to attack or even kill a Negro.”¹⁴⁴ In many regions of the South, “civil authorities, like the general white public, were either in sympathy . . . or intimidated.”¹⁴⁵ Lynchings were regularly conducted in front of courthouses to reinforce the message that the Klan controlled and was above the law.¹⁴⁶ It was also common for law enforcement officers, courts, the press, and the public to blame Reconstruction “radicalism and negroism, which in the south are one and the same thing,” rather than the white perpetrators of violence.¹⁴⁷ This was true even when law officers and judges became targets of Klan violence for their support of Reconstruction or their efforts to restrain the Klan.¹⁴⁸ Local Klan members perjured themselves as witnesses and violated their oaths as jurors in order to protect each other from prosecution.¹⁴⁹ Others who gave testimony were attacked.¹⁵⁰ In Gullford County, North Carolina, a lawyer who was asked whether the laws were administered “properly and thoroughly” answered that

where parties, for instance, are concerned in outrages committed by the order of which we have been speaking, my observation is that there are no convictions. I know that people have been whipped and scourged, and some have been killed; but the guilty have never been brought to punishment. Of course, the courts are the proper tribunals to award the punishment, but they have never been able to do it in any of those cases. . . . An alibi is proved in nearly every case . . . without any difficulty.¹⁵¹

Lawyers who did agree to become involved in the prosecution of Klan members were notified in writing that “they would be visited with punishment” unless they “ceased.”¹⁵² Some prosecutors not only abandoned their cases but felt “compelled” to move to other states.¹⁵³ Other officers collaborated with the Klan. The mayor of a town in Alamanee County, North Carolina testified that the “sheriff was connected with [the Klan], and every deputy . . . . [T]hey always hang around the courts to get on the jury . . . . [Y]ou cannot convict them.”¹⁵⁴ Impunity in the infliction of extraordinary violence went hand in hand with the complicity of state law enforcement and judicial officers, and functional immunity from liability in the rare cases brought against officers due to judicial bias, witness intimidation, and jury tampering.¹⁵⁵

When Southern resistance prevailed and the retreat from Reconstruction became national policy later in the 1870s, anti-Black violence continued. Lynchings morphed from nighttime affairs into full blown spectacles—mass events in broad daylight, publicized in newsprint and on the radio.¹⁵⁶ Experts on the history of lynching emphasize that even though “Black men and women were much more likely to become victims of personal assault, murder, or rape than lynching, and . . . withstood all sorts of injuries and insults on a daily basis[,] . . . lynching held a singular psychological force.”¹⁵⁷ It “came to stand as the primary representation of racial injustice and oppression as a whole,” assuming “this tremendous symbolic power precisely because it was extraordinary and, by its very nature, public and visually sensational.”¹⁵⁸

I have elsewhere written about the complicity of law enforcement and other legal professionals in lynching, including spectacle lynchings.¹⁵⁹ Others have documented in vivid detail how crime statistics and policing became instruments of Jim Crow segregation as unreconstructed whites seized control of the levers of sovereign power within and well beyond the South.¹⁶⁰ Inscription of the color line on Black bodies was charged not only with racial anxieties but also the erotic, most obviously in the exceptionally violent retaliation against Black men for real and perceived interactions with white women, in the frequency with which anti-Black violence was both actually and symbolically castrating, and in both the sexualization and sexual assault of Black women. The erotic is also present in the proximity, intimacy and raw physical effort required to administer whippings and other common forms of white supremacist torture, as well as in the gruesome acquisition of body parts and photographs of naked, mutilated black bodies as “souvenirs” of spectacle lynchings.¹⁶¹ A gendered expression of sovereign power is present in the invasion of Mrs. Bumpurs’s apartment as well—the officers’ penetration without notice or consent of Mrs. Bumpurs’s home, and her bent-edged, arthritic resistance met by their wildly disproportionate, ejaculatory, fatal, violence.

C. Disappointed Dominion

“[A]ny account of violence that cannot explain the strike, the blow, the act of sexual violence (including rape), or that fails to understand the way violence can work in the intimate dyad or the face-to-face encounter, fails descriptively, and analytically, to clarify what violence is.”¹⁶² A responsible theory of violence, including extravagant violence, must therefore grapple with rape and other forms of intimate partner violence.¹⁶³ While this kind of violence may initially seem quite far afield from cases involving extraordinary violence in policing and prison administration, feminist and queer theory have long identified connections between patriarchal power, the “cage of sex . . . in which all other [cages] are enclosed,”¹⁶⁴ “the family as a male-dominant institution[,] and male-dominant sexuality as the deus ex machina of male power across society.”¹⁶⁵ Gendered and sexual violence share with the extraordinary violence of policing and prison administration not only elements of excess, but also the erotic charge of intimately inflicted physical harm (patriarchal power in society and politics is, on this view, “eroticized power”¹⁶⁶) and, significantly, the targeting of the body as a principal object and site of subjection, control, and domination.¹⁶⁷

With respect to excess, women and gender non-conforming people are more likely to suffer extreme violence. They are more likely to be murdered and more likely to suffer physical injury that requires medical treatment from intimate partner sexual and physical assaults than heterosexual men.¹⁶⁸ Although near fatal and fatal injuries are relatively rare as compared to scratches, bruises, and welts in intimate partner abuse, serious injuries include lacerations from knives, broken bones, dislocated joints, head and spinal cord injuries, burns, broken teeth, and brain injuries from being knocked unconscious.¹⁶⁹ Intimate partner violence is pervasive in the United States and other western countries, an “epidemic” affecting millions annually despite hard won reforms since the 1970s that have replaced a permissive legal and cultural regime (in which the “corrective” battery of domestic dependents was lawful and considered a private “family matter”) with criminal prohibitions, networks of women’s shelters, and other support.¹⁷⁰

Qualitative research emphasizes that intimate partner violence is usually repeated, that “almost all” people targeted “suffer[] some physical violence as a part of the abuse, and while this was often described as ‘not the worst part’ of the abuse in comparison to less visible aspects, it invoke[s] a great deal of fear.”¹⁷¹ Even though it is common for abuse to become “routine” in intimate partner violence, “incidents of physical violence remain a shock, often experienced as coming ‘out of the blue.’ Interviewees describe both physical shock[]and a feeling of betrayal of the expectation[s] of trust and care in intimate relationships . . . as the hardest to come to terms with.”¹⁷² This kind of abuse is not “something you ‘get used to,’ ” despite the adoption of “skills of precaution and management to try and maintain personal security for themselves and their children.”¹⁷³ As one interviewee in a qualitative study reported, her partner “would just blow . . . . [Y]ou stand there and you can’t believe, you cannot believe that this is happening.”¹⁷⁴

Extraordinary excess lies not just in the gendered nature of such violence—the fact that greater, more harmful, and sexualized violence is visited upon women and gender non-conforming persons by men—but in the underlying breach of trust. Intimate relationships in which violence should be absent, governed by care, devotion, affection, and affirmation of personal autonomy, are perverted into degrading, abusive sites of domination—haunted by foundational acts of physical violence and the ever-looming threat of escalation. Intimate knowledge of a partner’s desires, fears, and vulnerabilities is itself abused—physically, sexually, emotionally, and psychologically. Children are often made hostages and objects of violent escalation to amplify fear and power.

There are competing theoretical accounts of how and on precisely what terms masculine “dominance, potentiated and centrally entitled and expressed sexually” in intimate partner violence translates to social and political domination.¹⁷⁵ But no one doubts the singular terror and harm this violence creates in intimate relationships. There is also broad consensus that intimate partner violence is “fundamentally a product of gender inequality[,] . . . a powerful tool in enforcing and reinforcing gender hierarchies and gender inequalities.”¹⁷⁶ Revealingly, what often sets such violence in motion is “the perception (by men) that women are trying to act ‘equal,’ that they have lost sight of their ‘proper place.’ ”¹⁷⁷ In this respect, the parallels to racialized violence are unmistakable:

[J]ust as Ku Klux Klan violence arose during the Reconstruction period in the South to enforce racial boundaries threatened by the emancipation of millions . . . to remind African Americans of “their place”—so, too, gendered violence can be understood as a tactic for reminding women of their place.¹⁷⁸

It occurs in intimate relations precisely because “the need to enforce between-group boundaries is greatest when there is a high degree of intimacy between group members.”¹⁷⁹

The body is so often the target because it represents, synecdochally, all the capacities of subordinate subjects to move, press, and rise beyond “their place.” Once we see the body—its movement, capacity, and crucially, its placement—as a site of control in social hierarchy, deeper connections between gender, race, sexuality, and class unfold. Abuse committed in intimate relations might be read as a distorted private, compensatory expression of both real and (mis)perceived public affronts to the “masculinity” of aggressors (for example, discrimination, economic exploitation, political disenfranchisement). Abuse against people believed to be lower status provides for the assertion of dominion in forms that are unavailable, lost, or threatened in society, work, and politics.¹⁸⁰ Rather than patriarchy radiating outward from the sexual politics of the family, on this account dominion both retreats and amplifies inward, displacing public slights, disappointments, and defeats (which, again, may be real or merely perceived) onto the comparatively safer targets of vulnerable domestic dependents and intimate relations in the private sphere.

There are vast differences between the domestic scene, on the one hand, and police and prison encounters, on the other. But what they share, at least when victims are unarmed or restrained, is the relation of dependence, intimate bodily proximity, status hierarchy, and overweening power. This may help explain why even restrained or otherwise non-threatening, unarmed arrestees and prisoners—people whose lives are literally in the hands of officers—nevertheless become objects of extraordinary violence.¹⁸¹ The problem is not, or at least not always, “embellished fear” or paranoia on the part of the officer, but rather acute awareness of the target’s relative helplessness and vulnerability,¹⁸² the target’s assumed culpability (social and moral, if not legal),¹⁸³ the reception of the target’s assertion of their own humanity, interests, or rights as audacious defiance of the officer’s status and authority,¹⁸⁴ and the opportunity this presents to exercise dominion believed to have been diminished or lost in other ways (through the officer’s subordination to the hierarchy of command, dealing respectfully with other citizens, suspects, and prisoners who have been openly defiant of the officer’s authority, or other social encounters).¹⁸⁵ Put differently, extraordinary excess can arise from displaced aggression, just as it can arise from exaggerated, misplaced fear.¹⁸⁶ And both can be personally and politically useful in keeping others in their place.

As importantly, aggression can be more than a form of compensatory displacement, more than a proportionate reaction to the perceived disappointment of dominion in other relations. It can also be an erotically charged, transgressive embodiment of sovereign power itself—raw, unchecked desire for dominion. To be sovereign is both to be the source of the law and, at least in democratic societies, to be bound by law—bound not just by training, and the law itself, but by oath. Every officer, and certainly those armed with the implements of sovereign power, inhabits and must mediate this contradiction. Having invested energy upholding compliance with law, oneself and for others, sometimes at great personal peril, extraordinary violence holds the seductive appeal of being, however transiently, above the law, of experiencing this singularly ecstatic form of sovereignty (the rapture of “sole and despotic dominion”) in and through the body of another, seizing and inscribing upon it the dictates of one’s will. The perverse pleasure expressed by some officers in the infliction of suffering and the violent fury with which all but total submission is greeted may derive from this source, the desire to embody unbound sovereign power.

III. THE BODY POLITIC

The foregoing analysis draws into relief why Section 1983 liability for extraordinary violence matters. Cases involving licentiousness among those who hold the state’s monopoly on violence are among the most important for the exercise of judicial review in a free society. Little is more destructive of constitutional faith in a republican form of government, where sovereignty ultimately rests with the people, than unconstitutional violence committed “under color” of law by those who wield and embody powers delegated by the people.¹⁸⁷ Self-restraint regarding lawfully delegated authority legitimates possession of the implements of sovereign power. Cases involving extraordinary violence represent the antithesis of self-restraint—not mere errant, or debatable uses of force, but flagrant disregard for the constraints of the Constitution on state action.

The Reconstruction Congress knew this. Whatever else may be said about ambiguities in the text and legislative history of Section 1983, regarding, for example, the availability and scope of municipal liability, or the power to reach private actors, one thing is beyond doubt: The statute operates in derogation of state sovereignty to enforce powers conferred by Section 1 of the Fourteenth Amendment in order to rectify and prevent “outrages” by state officers.¹⁸⁸ Although legislative debates on the Ku Klux Klan Act of 1871 are relatively sparse and opaque on some interpretive issues, “the debates contain extended discussion of conditions in the South, the breakdown of law and order, the acquiescence of Southern authorities, Klan terrorism against Blacks and republicans, and the consequent need for federal action.”¹⁸⁹ The civil cause of action created by the statute addresses the role of state actors in these “outrages.” The operative language (“deprivation of any [federal] rights, privileges, or immunities” by persons acting “under color of” state law, “custom, or usage”¹⁹⁰) sweeps beyond outrages, but officer-involved outrages were foundational, animating wrongs for which the statute provides civil liability. Suits seeking relief for the infliction of such exceptional harm thus warrant particular judicial solicitude.

The text of Section 1983 as enacted by Congress is unequivocal that the new federal cause of action operates in derogation of state sovereignty.

[A]ny person who, under color of any law, statute, ordinance, regulation, custom, or usage of any State, shall subject, or cause to be subjected, any person within the jurisdiction of the United States to the deprivation of any rights, privileges, or immunities secured by the Constitution of the United States, shall, any such law, statute, ordinance, regulation, custom, or usage of the State to the contrary notwithstanding, be liable to the party injured in any action at law, suit in equity, or other proper proceeding for redress . . . .¹⁹¹

In view of the text, legislative purpose, and historical context, the modern Court’s reliance on federalism as a ground norm to cabin Section 1983 claims (in cases involving standing to prevent recurrence of harm,¹⁹² officer immunity in damages suits,¹⁹³ municipal liability,¹⁹⁴ abstention,¹⁹⁵ class actions,¹⁹⁶ summary judgment,¹⁹⁷ the standard for equitable relief,¹⁹⁸ the interaction of habeas and 1983 damages claims,¹⁹⁹ and the substantive Fourth Amendment doctrine of reasonable force²⁰⁰) is the jurisprudential equivalent of lost cause ideology. It relies on the very interpretive tools used to end Reconstruction, return to “home rule,” and place the anti-Black violence of Jim Crow segregation beyond the reach of federal courts.²⁰¹

Two attributes of lost cause historical consciousness are particularly relevant. The first is the idea that the Civil War and Reconstruction did not alter antebellum understandings of state sovereignty—that the exertions of federal power necessary to save the Union did not diminish the sovereignty of the states. On this view, return to “home rule,” which the Court actively supported in the 1870s and 1880s by, among other things, striking down other sections of the Ku Klux Klan Act,²⁰² confirmed that antebellum federalism principles survived the Civil War. The fact that return to home rule was instrumental to Jim Crow segregation is frequently elided by the modern Court when it invokes federalism principles. Justice Frankfurter’s dissent in Monroe is emblematic, insisting that

[t]he jurisdiction which Article III of the Constitution conferred on the national judiciary reflected the assumption that the state courts, not the federal courts, would remain the primary guardians of that fundamental security of person and property which the long evolution of the common law had secured to one individual as against other individuals. The Fourteenth Amendment did not alter this basic aspect of our federalism.²⁰³

The effect is to limit the powers conferred by the Reconstruction Amendments to remedy civil rights violations by relying on structural constitutional principles that betray the letter and spirit of these amendments, principles affirmed in precedents that blinked at and emboldened extralegal, violent resistance to Reconstruction. The Civil War and Reconstruction did alter basic aspects of “our federalism,” expanding federal court jurisdiction and with it access to the expertise, “experience, solicitude, and hope of uniformity that a federal forum offers on federal issues.”²⁰⁴ But instead of solicitude, civil rights litigants all too often find federal courthouses inhospitable.

The second attribute of lost cause ideology is the view that the Reconstruction Congress overreached by legislating rights and remedies on the premise that states could not be trusted to redress federal constitutional violations.²⁰⁵ Section 1983 is itself excessive on this view, a remainder of Reconstruction and the exceptionally violent resistance that defined it. The Reconstruction Congress legislated no sunset clause in Section 1983. But that has not stopped the modern Court from treating the cause of action like an anachronism, an unwelcome remainder of a state of exception—one of the few statutory enforcement tools that was not struck down by the Court in its retreat from Reconstruction. Within this interpretive horizon, embellished fears about excessive liability and excessive interference with officer discretion and local control become predominant concerns, rather than state sanctioned violence and defiance of federal law. The modern Court has in this way developed a jurisprudence of excess in Section 1983 cases, just not one concerned with the state officer outrages against which the Reconstruction Congress legislated.

This is most evident in qualified immunity doctrine, where concern with excessive liability and judicial interference with executive officer discretion dwarfs concern with whether officers have complied with the Constitution and other laws.²⁰⁶ But it can be seen in other doctrines,²⁰⁷ and it resonates with Justice Frankfurter’s view in Monroe that the statute was intended to provide a cause of action only when state law or custom authorizes unconstitutional acts—that is, in the presumptively rare situation in which a state openly defies federal law and state common law provides no redress.

The modern Court has functionally endorsed Frankfurter’s dissent not by revisiting the interpretation of “under color” of law and overturning Monroe, but rather by expanding the affirmative defense of qualified immunity in officer suits, elevating the causation threshold for municipal liability, and limiting access to injunctive relief that could prevent recurring violations. Justice Frankfurter may have lost the battle of statutory interpretation in Monroe, but the modern Court has ensured that he won the war on the use of federalism to limit Section 1983. The result is expansive discretion in officer decisions about the use of force and inconsistency even in cases involving extraordinary violence. Tellingly, the Court has applied the Hope v. Pelzer exception to qualified immunity in only one case since 2002 when Hope was decided, it has emphasized that Hope’s exception for obvious unconstitutionality applies only in “rare” cases, and Hope has featured most prominently in opinions dissenting from the grant of qualified immunity.²⁰⁸ Thus, the Court has been relatively passive with a doctrine well-suited to address extraordinary violence. In the context of prison violence, the Eighth Amendment standard of liability for the use of force is explicitly tied to “malicious” and “sadistic” violence,²⁰⁹ but the test requires evidence of the officer’s subjective state of mind, and it allows officers to avoid liability for extraordinary violence skirting the line of malicious and sadistic harm. Even when the line is crossed, prisoners face far greater procedural obstacles than victims of police violence raising Fourth Amendment claims.

These obstacles exist because the only area in which Congress has expressly endorsed the Court’s subordination of Section 1983’s remedial purposes to federalism is in state prison conditions cases.²¹⁰ Passed during the most expansive period of mass incarceration²¹¹ when prison litigation reached one-fifth of the total number of civil cases filed in federal courts,²¹² the Prison Litigation Reform Act of 1995 (“PLRA”) includes an administrative exhaustion doctrine requiring strict compliance with state grievance procedures, an unwaivable filing fee even for prisoners who meet the in forma pauperis standard, a physical injury rule for money damage claims, and a right-remedy nexus requirement that sharply circumscribes federal equity power.²¹³ The effects on prison litigation have been palpable.²¹⁴ Immediately after the statute passed, decades-old continuing decrees in prison cases were vacated.²¹⁵

In Brown v. Plata,²¹⁶ decided fifteen years after the statute took effect, the persistence of breathtakingly cruel, unremedied unconstitutional conditions in California state prisons prompted the Court to uphold federal equity power notwithstanding the strict limits of the PLRA. The case is a parable of the Court’s jurisprudence of excess. Prison conditions in Plata shock the conscience, rivaling those which existed in state prisons under the so-called “hands-off” doctrine prior to Cooper v. Pate when federal courts simply refused to entertain prison conditions claims on federalism grounds.²¹⁷ As a result of their woefully inadequate mental health care system, California’s prisons had a suicide rate “80% higher than . . . for prison populations” nationally.²¹⁸ Data showed that “72.1% of suicides [in California prisons] involved ‘some measure of inadequate assessment, treatment, or intervention.’ ”²¹⁹ Shocking, systemic deficiencies in physical health care (inadequate facilities, doctors, nurses, and delays of months for acute conditions and “extreme departures from the standard of care”) caused “a preventable or possibly preventable death . . . once every five to six days.”²²⁰ Beyond preventable deaths, prisoners “suffering from severe but not life-threatening conditions[] experienced prolonged illness and unnecessary pain.”²²¹ The record is an intricately detailed catalogue of outrageous, arbitrary suffering.

However, to justify upholding the release of tens of thousands of prisoners notwithstanding the PLRA’s strict right-remedy nexus,²²² the majority could not just rely on the extensive record of suffering. The decree ordered release of healthy prisoners as well as unwell prisoners whose mistreatment did not violate the Eighth Amendment’s guarantee of minimally adequate medical care under Estelle v. Gamble.²²³ To uphold such sweeping relief, the majority adopted a prophylactic theory of the substantive right. The majority reasoned that the health care system was so dysfunctional that there was a “substantial risk” of prisoners suffering a violation of their rights under Estelle.²²⁴ Releasing prisoners (and moving some to local jails) would increase the state’s capacity to adequately address the health needs of those who remained.

Justice Scalia’s dissent sharply criticized this end run around the statute and its federalism principles. He insisted that Estelle claims exist only when individuals who already have serious medical conditions do not receive treatment because of the state’s deliberate indifference.²²⁵ Thus, no injunction to release prisoners merely at risk of an Estelle violation could be described as “narrowly drawn, . . . extend[ing] no further than necessary to correct the violation” or the “least intrusive means.”²²⁶ Moreover, Rule 23 provides no right to aggregate resolution of such claims given the particularity of each prisoner’s medical condition and their inadequate treatment.²²⁷ Decisions about how to rectify the health care problems in the prison system must remain with state prison officials. The lower court’s prison release order displacing local administrative discretion was “perhaps the most radical injunction issued by a court in our Nation’s history,” a “structural injunction” that deems an “entire” state-run prison “system . . . unconstitutional because it may produce constitutional violations.”²²⁸

Two years earlier, in Haywood v. Drown, the Court overturned parallel state legislative efforts in New York to eliminate Section 1983 money damage claims against corrections officers filed in state court.²²⁹ On a legislative record asserting that such claims were predominantly frivolous, the state stripped its courts of jurisdiction for both Section 1983 and state civil rights claims seeking money damages.²³⁰ Prisoners could still sue for damages, but only against the state itself, not the officer responsible for the harm, only in a separate court, not the state’s courts of general jurisdiction, and only subject to a range of procedural and remedial limitations that do not apply to the Section 1983 cause of action.²³¹ The Supreme Court struck down the law on the ground that it violated the Supremacy Clause by denying federal right holders access to a congressionally legislated cause of action, forum, and relief to enforce constitutional rights.²³² Like Plata, the case suggests a commitment on the part of the Roberts Court to preserve jurisdiction and remedial power notwithstanding the limitations Congress imposed on prison condition litigation in the PLRA. However, both Plata and Haywood were decided by bare 5–4 majorities, and as in Plata, the dissent in Haywood rested on federalism principles—specifically, the autonomy of states to control state court dockets by refusing jurisdiction of unwelcome federal claims.

The crucial swing vote in both cases was provided by Justice Kennedy. That fragile majority is sure to be tested in a reconfigured Roberts Court more committed to the dissents’ federalism principles. Notice the effects on prison conditions litigation if Plata and Haywood were to be reversed: Federal courts would be virtually closed to claims for injunctive relief under the PLRA and modern standing doctrine; strict officer immunity and municipal liability doctrines already render both state and federal courts inhospitable to Section 1983 money damage claims; and the dissent’s view in Haywood would permit state courts to simply refuse jurisdiction of Section 1983 prisoner claims. Prisoners would be left to state law claims in state court.

This outcome would be consistent with a central premise, arguably the central premise of federalism-based limitations on Section 1983 claims: that leaving federal constitutional right holders to state positive or common law is adequate to protect their federal constitutional rights. This was the structural constitutional core of Frankfurter’s dissent in Monroe. The conventional form of the argument is that when a state officer defends a state law claim (for example, a state common law claim for negligence rather than a federal claim for excessive use of force), the federal constitutional right will arise if the officer asserts that the action was sanctioned by state law.²³³ The defense can be rebutted by showing that what the officer did was, in view of the plaintiff’s federal constitutional rights, ultra vires. Federal law is then adjudicated, just not via a cause of action bottomed on the federal right. In theory, all that is lost is the federal right holder’s option to file in federal court.²³⁴

The cost of losing access to federal district court as the court of first instance matters if state courts are less hospitable to the claims of federal right holders. This was all too familiar during Reconstruction and Jim Crow segregation. More recently, state courts have faced extraordinary budget crises, forcing some local courts into a form of fiscal parasitism upon the very communities they are supposed to serve.²³⁵ And as Haywood and the cases on which it relies show, state legislative efforts to restrict Section 1983 litigation in state courts are not uncommon.

Notably, however, Section 1983 does not create exclusive federal jurisdiction—it does not rest on the assumption that state courts are categorically untrustworthy. Concurrent state court jurisdiction decentralizes judgments about which forum is appropriate, allowing the federal right holder to choose. The plaintiff, on advice of counsel, has the right to assess the specific circumstantial risks of hostility in state court, the costs and benefits of filing in federal court, and any other doctrinal and strategic considerations that may inform choice of forum.²³⁶ Using a broad structural constitutional principle such as federalism to displace congressionally endorsed, decentralized decision-making by the federal right holder with the Court’s arm chair conclusions about the fidelity and solicitude of state courts is precisely the kind of “Mr. Fix-It-Mentality” Justice Scalia rightly criticized as imperious judicial policymaking in a civil liberties case.²³⁷ It also flatly contradicts the Court’s near complete deference to Congress’s remedy-creating power in other settings. Most prominently, the Court has deferred to any evidence that Congress has established an alternative remedial scheme when the question is whether the Court should recognize an implied right of action to enforce constitutional rights violated by federal officers,²³⁸ an implied right of action to enforce statutory rights,²³⁹ or a right of action grounded in equity under Ex parte Young.²⁴⁰ If judicial restraint demands deference to the decision of Congress to create remedies in these settings, deference is owed to the forum-selection authority Congress granted federal right holders seeking relief under Section 1983. Conspicuously, the Court’s Section 1983 jurisprudence runs headlong in the opposite direction.

Also lost in enforcing federal civil rights through state law claims is the nexus between the federal right, the cause of action, and the remedy Section 1983 creates. The nexus between injury, right, cause of action, and remedy might seem like an abstraction. After all, what should it matter if a plaintiff receives $100,000 in damages on a state tort claim or $100,000 on a federal Fourth Amendment claim under Section 1983; so too a state injunction reaching the same conduct as a federal injunction? The difficulty is that state law and constitutional harms are not necessarily equivalent. There may be no state cause of action that overlaps with certain constitutional injuries. Even when there is, the elements of a state law cause of action, state procedure, and state remedies doctrine may defeat or limit recovery for certain violations of federal law. Ultimately, state law is not designed to implement federal interests and enforce federal rights.²⁴¹

State law may even be hostile to federal rights.²⁴² Causes of action designed to address harm inflicted by private persons do not reflect the anti-democratic harm arising from the violation of federal rights by an officer of the state acting “under color of law” with the badges, implements, and armory of the state’s monopoly on violence.²⁴³ Section 1983 claims, by contrast, name the abuse of sovereign authority directly and force the officer or municipal government to answer for it. If the essence of corrective justice is that “liability rectifies the injustice inflicted by one person on another . . . simultaneously taking away the defendant’s excess and making good the plaintiff’s deficiency[,]”²⁴⁴ then the right, cause of action, and remedy should correlatively address the injury and injustice of abuse of sovereign power.

The point is not that corrective justice requires perfect mirroring between the cause of action and the injury, but rather that the Court owes deference to the congressional judgment to make injury, right, and remedy mutually correlative rather than contingent on state common law where constitutional rights are concerned. Whatever wisdom and policy justified the common law approach to enforcing federal law in officer suits during the antebellum period,²⁴⁵ Reconstruction revealed the deadly consequences of its potential for abuse (in the form of “outrages”) and the Reconstruction Amendments empowered Congress to provide a less circuitous remedial path. The presumption in favor of state common law causes of action is precisely what Section 1983 rejects by bottoming a cause of action on the federal right itself. Lastly, it is no answer to say that the Supreme Court can exercise appellate jurisdiction to correct underenforcement of federal civil rights when it decides so few appeals from state courts.

These arguments have little resonance within the interpretive horizon of the modern Court’s federalism revival. Suit in state court under state law is presumptively superior as measured against the potential “excesses” of federal judicial intervention. Structural constitutional attachments have in this way come to dominate substantive constitutional rights, legislative text, and federal court remedial power. Unlike Kafka’s penal colony, however, where the apparatus responsible for the extraordinary excesses of the ancien regime was being dismantled and the officer’s perverse attachment to it was reassuringly anachronistic, here, now it is the second Reconstruction that is being dismantled, our body politic still transfigured by the inscriptions of sovereign power’s outrageous excess.

98 S. Cal. L. Rev. 367

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Norman W. Spaulding*

* Sweitzer Professor of Law, Stanford Law School. I am grateful for excellent assistance with research provided by Owen Foulkes, Anna Kuritzkes, Joelle Miller, and Molly Shapiro.

Public Protest and Governmental Immunities

October 2024October 2024Timothy Zick*

This Article presents the findings of a quantitative and qualitative study of the application of qualified immunity and other governmental immunities in the context of public protest. Relying on three unique datasets of federal court decisions examining First Amendment and Fourth Amendment claims, the Article concludes that public protester plaintiffs face an array of obstacles when suing state, local, and federal officials for constitutional injuries. Quantitative findings show that protesters’ claims are frequently dismissed under qualified immunity doctrines and that plaintiffs also face strict limits on municipal liability, new restrictions on First Amendment retaliation claims, and the possible extinction of monetary actions against federal officials. Qualitatively, the study shows protesters’ rights are underdeveloped in several respects, including recognition of the right to record law enforcement and limits on law enforcement’s use of force. The study lends additional support and new urgency to calls for qualified immunity reform or repeal, as well as reconsideration of other governmental immunities. It also concludes that much more than money damages for injured plaintiffs is at stake. Lack of adequate civil remedies may significantly chill future public protest organizing and participation.

INTRODUCTION

Between January 2020 and June 2021, there were more than thirty thousand public demonstrations in the United States.¹ In what were perhaps the largest public protests in American history, an estimated fifteen to twenty-six million protesters gathered in the nation’s public streets after George Floyd’s murder.² Although the demonstrations were predominantly peaceful, state and local law enforcement used aggressive policing methods to restrict and suppress them.³ Officers beat protesters with batons, rammed them with bicycles, used dangerous crowd containment strategies, arrested protesters without probable cause, used tear gas and other “less-lethal” force against peaceful assemblies, and unlawfully arrested legal observers including members of the press.⁴ In several cities, including Portland and the District of Columbia, federal law enforcement and other agency personnel also engaged in aggressive and violent protest policing.⁵ Former President Donald Trump told state governors to “dominate” the protesters and send them to jail.⁶

Many of these law enforcement actions violated protesters’ First Amendment and Fourth Amendment rights. Protesters can sometimes obtain judicial injunctions preventing law enforcement from using such tactics in future protests.⁷ Police departments sometimes, though far too infrequently, discipline officers for violating constitutional rights and other misconduct.⁸ However, injunctive relief and departmental discipline do not compensate for the physical and emotional injuries protesters experience at the hands of aggressive and sometimes violent law enforcement officers. As Joanna Schwartz has observed, “for many people, filing a lawsuit [for damages] is the best available way to punish police when they violate the law and give police reason not to violate the law again.”⁹

Both 42 U.S.C. § 1983 (“section 1983”)¹⁰—a statute originally passed to assist the government in combating Ku Klux Klan violence in the South after the Civil War—and the Supreme Court’s decision in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics¹¹ allow individuals to sue government officials for money damages for constitutional torts (personal injuries stemming from violations of constitutional rights). Section 1983 applies to state and local officials, while Bivens applies to federal officials. However, protesters face a daunting array of obstacles to recovering civil damages under these laws.¹² The constitutional standards that govern protesters’ underlying First Amendment and Fourth Amendment claims may offer less-than-robust substantive protection for protesters’ activities. But even with respect to some egregious violations of protesters’ constitutional rights, governments and government officials possess broad legal immunities that often prevent recovery of civil damages.

Under section 1983, unless officers violate what the Supreme Court has described as “clearly established law,” they cannot sue officials for money damages.¹³ The doctrine of “qualified immunity” shields “all but the plainly incompetent” law enforcement and other officials from liability.¹⁴ In general, plaintiffs cannot recover unless they can show that “controlling authority in their jurisdiction” or a “consensus of cases of persuasive authority” have recognized the underlying misconduct as a constitutional violation.¹⁵ Municipal employers, who have much deeper financial pockets than individual officers, cannot be held accountable unless plaintiffs can prove they adopted and enforced a “policy or custom” of violating protesters’ constitutional rights.¹⁶ Although this evidence is hard to come by, plaintiffs are required to present it as early as the pleadings stage of a lawsuit.¹⁷

In recent years, the Supreme Court has further narrowed the circumstances in which local and federal officials can be sued for civil rights violations under section 1983 and Bivens. For example, in Nieves v. Bartlett, a 2019 decision, the Court held that so long as officers have probable cause to arrest protesters for some criminal offense, however minor, they cannot pursue a First Amendment claim that the officer retaliated against them for exercising expressive rights—unless they can prove law enforcement singled them out and treated them unequally.¹⁸ With regard to Bivens suits against federal officials, the Court has assumed such claims can go forward, but has also strongly suggested they are unwarranted extensions of Bivens.¹⁹ If these claims are rejected, protesters will be barred from suing National Park Service officials, U.S. Capitol police officers, U.S. Secret Service agents, and other federal defendants for money damages in connection with protest policing.

Protesters whose constitutional rights are violated by law enforcement and other officials deserve to be compensated for their injuries. Further, as the 2020–2021 mass protests demonstrated, officials who violate First Amendment, Fourth Amendment, and other constitutional rights need to be deterred from doing so and held accountable.²⁰ To the extent protesters believe officials cannot or will not be held fully accountable for even egregious and abusive constitutional violations, they may be chilled from exercising protest-related rights.

Despite the importance of these remedial and other concerns, there has been no systematic effort to measure the effects governmental immunities have on protesters’ ability to obtain compensation for their constitutional injuries.²¹ To obtain a measure of these effects, this Article presents the findings of a unique quantitative and qualitative study. Unlike prior studies, which focused on qualified immunity across cases and contexts, this study focuses on the fate of First Amendment and Fourth Amendment claims brought by plaintiffs against state, local, and federal officials in public protest cases.²² The study is based on three datasets consisting of more than three hundred federal court decisions and four hundred claims. In addition to qualified immunity in section 1983 cases, the study examines governmental immunities in First Amendment retaliation cases and actions against federal officials. Decisions in each unique dataset were coded to assess defendants’ success in invoking immunities to defeat protesters’ damages claims. Finally, the study provides a qualitative analysis of protesters’ First Amendment and Fourth Amendment rights. This part of the study identifies the types of constitutional claims plaintiffs typically pursued in public protest cases and the substantive “law” as the Supreme Court and lower federal courts have developed it.

The study shows that individual officers had considerable success, particularly at the summary judgment stage, defeating protesters’ section 1983 claims, and municipal defendants had even greater success. Defendants also enjoyed substantial success defeating First Amendment “retaliation” claims under the standard adopted in Nieves, often based on arrests for minor offenses. Owing to the Supreme Court’s recent skeptical pronouncements regarding Bivens claims, the study concludes that defendants are likely to defeat future First Amendment and Fourth Amendment damages claims against federal defendants. While some of the study’s quantitative findings differ from those in prior studies, in general, the results support criticisms of qualified immunity and other immunity doctrines.²³ As applied in public protest cases, qualified immunity does not serve the policy goals the Supreme Court has ascribed to the doctrine, including providing a means of redress for constitutional injuries, deterrence of unlawful conduct, and shielding officers from the burdens of discovery.²⁴ Further, the qualitative portions of the study demonstrates the relatively weak rights protester plaintiffs possess and supports the criticism that qualified immunity doctrine has resulted in a lack of development of substantive rights.²⁵ Based on these findings, the study concludes that without repeal or reform of governmental immunities, public protest itself may be significantly imperiled.

From here, the Article proceeds in four parts. Part I describes the First Amendment and Fourth Amendment rights at stake in the public protest context and the governmental immunities that affect recovery of monetary damages for rights violations. Part II describes the study design and elaborates further on the content of the three unique datasets. Part III presents the study’s quantitative and qualitative findings regarding qualified immunity, municipal liability, First Amendment retaliation claims, and lawsuits against federal officials under Bivens. Part IV proposes several reforms and actions to strengthen protesters’ rights and remedies.

I. PROTESTER INJURIES AND GOVERNMENTAL IMMUNITIES

Protesters who are injured during a public demonstration or other event can bring various legal claims against those responsible for their injuries. The focus in this study is on alleged violations of First Amendment and Fourth Amendment rights by government officials and entities, which are the most common claims pursued by injured protesters. A variety of officials and governmental entities participate in policing public protests. Possible defendants in civil rights lawsuits include state and local law enforcement, U.S. Secret Service, National Park Service, and other federal agency officials, and state or local governments. Each type of defendant can rely on robust governmental immunities. Separately and in combination, these immunities are obstacles for protesters seeking compensation for constitutional injuries.

A. Protesters’ Rights and Remedies

Protesters can experience a variety of constitutional injuries when they participate in demonstrations and other public events. Although other rights may come into play, the two principal federal constitutional protections available to protesters are the First Amendment, which protects speech and peaceable assembly, and the Fourth Amendment, which generally prohibits unreasonable searches and seizures.²⁶

Protesters may be injured owing to a wide array of First Amendment violations.²⁷ For example, officials may unlawfully deny protesters access to “public forums,” including public parks, streets, and sidewalks, where they have recognized rights to speak and assemble.²⁸ Governments may rely on invalid content-based speech regulations or enforce unlawful speech zones and other regulations that unduly restrict speech and assembly.²⁹ Law enforcement officers may also unlawfully retaliate against protesters for exercising their First Amendment rights, confiscate their signs and displays, prohibit the recording of police officers at public demonstrations, and engage in abusive protest policing methods.³⁰

Protesters may also suffer physical and other injuries stemming from Fourth Amendment violations.³¹ They may be subject to arrest without probable cause or unlawfully detained.³² Protesters may also be injured when police officers use excessive force, including physical force used during an arrest, handcuffing and other types of restraints, and use of less-lethal munitions including tear gas, pepper spray, and projectiles.³³ These violations may cause physical and psychological injuries.

There are two general types of remedies protesters can pursue when they are the victims of these or other constitutional torts. They can seek injunctive relief against government actions and policies they allege violate the U.S. Constitution (or state constitutional provisions). For example, peaceful protesters expelled from a public park can seek a court order mandating they and others be allowed to protest there in the future. Or protesters could sue for an injunction preventing police from firing tear gas into crowds of peaceful protesters.³⁴

Enjoining current or future First Amendment or Fourth Amendment violations is an important remedy. However, injunctive relief is forward-looking and declaratory. It does not compensate protesters for physical and other injuries sustained during a demonstration or other protest event because of constitutionally tortious conduct.

The other kind of relief protesters can seek in the event of constitutional violations is an award for monetary damages against individual officials and their government employers. Both section 1983 and the Supreme Court’s decision in Bivens allow individuals to sue government officials for money damages for constitutional torts (personal injuries stemming from violations of constitutional rights).³⁵ Section 1983 applies to state and local officials, while Bivens applies to federal officials. Both section 1983 and Bivens protect against deprivations of rights secured by the U.S. Constitution. Section 1983 explicitly authorizes such claims, while Bivens implies such claims from constitutional rights provisions.

Civil rights suits for money damages are a critically important means of vindicating constitutional rights. Owing to the infrequency of prosecutions brought against law enforcement for civil rights violations and the reluctance of police departments to investigate and punish their own, a lawsuit for damages may be the only way for a protester who has been injured to obtain some measure of justice.³⁶ Monetary relief compensates injured protesters for physical, economic, and other kinds of tangible harm. It can also have deterrent effects in terms of individual officer actions and municipal policies. As in other legal contexts, damages awarded for constitutional violations are intended to make injured parties whole. The damages include not only monetary and out-of-pocket expenditures, but also recovery for pain, suffering, and emotional distress. When plaintiffs prevail in federal civil rights lawsuits, they are also entitled to recover attorneys’ fees.³⁷

Although my study focuses on federal constitutional claims, protesters can sue under state civil rights laws and precedents, which generally adopt similar qualified immunity restrictions in cases involving violation of state constitutional rights. They can also bring state common law personal injury claims including assault, battery, false arrest, damages to property, and infliction of emotional distress.

Protesters’ remedial menu sounds expansive. However, as this study confirms, protesters’ claims for monetary damages against government officials and municipal entities are substantially constrained by an offsetting menu of liability-limiting immunities and related doctrines. As a result, protesters injured while engaged in lawful and peaceful expressive activities often find it difficult or impossible to hold government officials accountable for their actions.

B. Section 1983 and “Qualified Immunity”

Government officials may be entitled to “qualified immunity” in section 1983 and Bivens lawsuits. Qualified immunity is a judicially created doctrine that shields government officials from being held personally liable for constitutional violations.³⁸ When government officials are sued, qualified immunity functions as an affirmative defense they can raise, barring damages even if they committed unlawful acts. (Qualified immunity is not, however, a defense to claims for injunctive relief.) As a general matter, officials enjoy broad legal immunity from civil rights claims under this doctrine. As the Supreme Court has observed, qualified immunity “provides ample protection to all but the plainly incompetent or those who knowingly violate the law.”³⁹

Historically, under Supreme Court precedents, whether a defendant was entitled to qualified immunity turned on the subjective “good faith” of the official who committed the alleged violation.⁴⁰ In 1982, however, the Supreme Court replaced that subjective standard with a new test framed in “objective terms.”⁴¹ Under the new test, officials are personally immune from monetary liability “even if they act in bad faith, so long as there is no prior court decision with nearly identical facts.”⁴² As the Court has explained, as long as their conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known,” police officers and other officials are not liable for money damages under section 1983.⁴³

The Court has made clear its new standard is intended to be more protective of government officials than the “good faith” test. At the same time, it has also stated that the standard provides “no license to lawless conduct.”⁴⁴ According to the Court, “[i]f the law was clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct.”⁴⁵

However, as Joanna Schwartz has observed after close examination of section 1983 qualified immunity cases, “the Court’s decisions over the next forty years have created a standard that seems virtually impossible to meet.”⁴⁶ Since the Court adopted its objective test, it has applied the doctrine in several ways that have made it far more favorable to defendants.

First, the Supreme Court adopted a heightened pleading standard for complaints in civil cases. The new standard requires that to avoid having claims dismissed, plaintiffs must state facts supporting a “plausible” claim for relief.⁴⁷ Schwartz has observed that this standard “may be particularly difficult for plaintiffs in civil rights cases to overcome.”⁴⁸ In some kinds of cases, including those that focus on the intent of government actors or the existence of local government policies or practices, “[a] plaintiff will not likely have any evidence . . . until they get to discovery.”⁴⁹

Second, to show the law was “clearly established,” the Supreme Court has generally required plaintiffs to point to an already existing authoritative judicial decision (or perhaps multiple decisions), with substantially similar facts. The decisional landscape is narrow. Protester plaintiffs must identify “controlling authority in their jurisdiction” or a “consensus of cases of persuasive authority.”⁵⁰ Unpublished decisions do not count, and courts are reluctant to consider district court decisions.⁵¹ The clearly established standard expands the scope of the qualified immunity defense by requiring that plaintiffs identify Supreme Court or published federal appeals court decisions that are identical, or nearly identical, to the one being litigated.⁵² For example, plaintiffs’ allegation that officers’ use of a particular protest policing method violated their constitutional rights would have to point to published appeals court precedents establishing that use of this method was a clearly established violation of the First Amendment or Fourth Amendment.

Third, the Court has instructed that in assessing clearly established law, courts should not define the inquiry “at a high level of generality.”⁵³ As a result, “[c]ourts have granted officers qualified immunity even when they have engaged in egregious behavior—not because what the officers did was acceptable, but because there wasn’t a prior case in which that precise conduct had been held unconstitutional.”⁵⁴

Fourth, in 2009, the Court altered the way in which courts apply qualified immunity doctrine in a manner that created another significant obstacle for civil rights plaintiffs.⁵⁵ In an earlier decision, the Court held that when assessing a qualified immunity defense, courts must first determine whether there was a violation of a constitutional right and then address whether the law was clearly established as to that right.⁵⁶ However, the Court’s current approach allows courts to grant qualified immunity based solely on whether the law in question was clearly established—that is, without determining whether there was a constitutional violation.⁵⁷ This creates a catch-22 for civil rights plaintiffs. If courts resolve cases based on the lack of clearly established authority, there will be fewer precedents defining constitutional violations.⁵⁸ That situation, in turn, results in decisions concluding that officials are not liable because of a lack of clearly established law.⁵⁹ According to critics, it also has the effect of rendering constitutional protections “hollow.”⁶⁰ By allowing courts to rely on a lack of clearly established law without ruling on the underlying constitutional claim, the Court “perpetuates uncertainty about the contours of the Constitution and sends the message to officers that they may be shielded from damages liability even when they act in bad faith.”⁶¹

Fifth and finally, the Court’s construct of a “reasonable officer” has shifted over time to grant government officials broader deference. In a 1986 decision, the Court famously wrote that qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law.”⁶² Since then, the Supreme Court has stated that a defendant’s conduct is to be judged on the basis of “any reasonable officer”⁶³ or “every reasonable official.”⁶⁴ As one scholar observed, this shift implies “that in order for a plaintiff to overcome qualified immunity, the right violated must be so clear that its violation in the plaintiff’s case would have been obvious not just to the average ‘reasonable officer’ but to the least informed, least reasonable ‘reasonable officer.’ ”⁶⁵

As Joanna Schwartz has observed, the Court has “[created one additional qualified] immunity hurdle for plaintiffs: defendants’ right to immediately appeal any qualified immunity denial.”⁶⁶ Under normal procedural rules, a litigant would have to wait until the court enters a final judgment in the case to file an appeal. The special appeals process in qualified immunity cases can add “months or years to the case and dramatically increas[e] the costs of litigation” for plaintiffs.⁶⁷

The Supreme Court has offered some general justifications for its qualified immunity standards. It has asserted that qualified immunity achieves a “balance” between allowing victims to hold officials accountable and minimizing “social costs” to “society as a whole.”⁶⁸ Noting that “claims frequently run against the innocent as well as the guilty,” the Court has identified four “social costs.”⁶⁹

First, the Court has explained that the doctrine aims to avoid “the expenses of litigation” by allowing district courts to dismiss suits against officers at early stages in the litigation—and without making fact-intensive inquiries into a particular officer’s motivations.⁷⁰ Second, and relatedly, the Court expressed concern that requiring officials to respond to such litigation can “diver[t] . . . official energy from pressing public issues.”⁷¹ Third, the Court worried that the threat of litigation would “deter[] . . . able citizens from acceptance of public office.”⁷² Finally, the Court noted that the threat of lawsuits could chill lawful law enforcement conduct. It posited “there is the danger that fear of being sued will ‘dampen the ardor of all but the most resolute, or the most irresponsible [public officials], in the unflinching discharge of their duties.’ ”⁷³ Along similar lines, the Court explained that the doctrine of “[q]ualified immunity gives government officials breathing room to make reasonable but mistaken judgments about open legal questions.”⁷⁴

The Court has also defended qualified immunity’s focus on clearly established law on the basis that it would be unfair to hold government officials to constitutional rules they were not aware of at the time of the violation. It first articulated this idea in an early decision, stating that “[a] policeman’s lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause, and being mulcted in damages if he does.”⁷⁵ Later, the Court explained: “If the law at that time was not clearly established, an official could not reasonably be expected to anticipate subsequent legal developments, nor could he fairly be said to ‘know’ that the law forbade conduct not previously identified as unlawful.”⁷⁶ As the Court has observed, “the focus” of qualified immunity is “whether the officer had fair notice that her conduct was unlawful.”⁷⁷

Critics have offered strong challenges to these justifications and to qualified immunity generally.⁷⁸ Some have attacked qualified immunity as both bad law and bad policy.⁷⁹ However, at least for the time being, the Supreme Court appears committed to retaining the doctrine.

C. Municipal Liability

Qualified immunity doctrine applies to claims against individual government officials. However, protesters can also sue municipalities, counties, and other government bodies under section 1983.

Holding governmental entities liable for constitutional violations is important for several reasons. First, these entities have much deeper pockets than individual law enforcement officers.⁸⁰ Second, holding employers liable for constitutional violations caused by their actions or policies puts pressure on those employers to change their unconstitutional behavior.⁸¹ Third, assuming the unconstitutional harm emanated from the employer, it is just to hold it, as opposed to individual officers following the employer’s commands, directly responsible for the violations.⁸²

In Monell v. Department of Social Services, the Supreme Court held that a municipal government can be held liable under section 1983 for constitutionally tortious actions.⁸³ However, under Monell and subsequent precedents, the Court has significantly narrowed the path to recovery.⁸⁴

Local governments can be held liable under section 1983 for enacting unconstitutional policies.⁸⁵ They can also be held liable if an official with “final policymaking authority” violates the Constitution.⁸⁶ However, these theories are “uncommonly relied upon” because they require plaintiffs demonstrate constitutional wrongdoing “at the highest levels of government.”⁸⁷ “Final policy makers” such as local police chiefs are rarely directly involved in applying unconstitutional policies.⁸⁸ Moreover, as Schwartz has observed, “local governments do not usually adopt policies that are unconstitutional on their face—a policy requiring officers to use excessive force, for example, or requiring officers to arrest people who exercise their First Amendment free speech rights.”⁸⁹

Most commonly, to establish Monell liability, plaintiffs must demonstrate a deprivation of a federal right occurred because of a “policy or custom” of the local government’s legislative body or of those local officials whose acts may fairly be said to be those of the municipality.⁹⁰ The informal policy or custom alleged to have caused the constitutional injury must be “so persistent and widespread as to practically have the force of law.”⁹¹ Under the policy or custom theory of section 1983 liability, local governments cannot be held liable for the actions of their employees solely because of their employment status.⁹² Rather, an employee must be acting pursuant to a municipal policy or custom, and the employer can only be held liable if one of their employees has committed an underlying constitutional violation pursuant to the policy or custom.⁹³

One theory or basis of policy or custom municipal liability that is particularly germane to public protest cases is the charge that local governments failed to train and supervise law enforcement and other officers.⁹⁴ As with other theories, however, it is very difficult to prevail on this claim. Courts have essentially treated the way a police force chooses to train its officers as a matter of policy not generally subject to judicial second-guessing in civil rights lawsuits. As the Supreme Court has noted, “the inadequacy of police training may serve as the basis for § 1983 liability,” but “only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact.”⁹⁵

At each stage of litigation, protester plaintiffs face severe challenges in terms of alleging and proving a policy or custom sufficient to hold local governments accountable. At the complaint-drafting stage, plaintiffs often lack access to the facts necessary to allege an informal policy or custom.⁹⁶ Thus, they may not be able to survive a local government’s motion to dismiss for failure to meet basic pleading requirements. Even at later stages of litigation, plaintiffs are likely to struggle to adduce evidence not just that their constitutional rights were violated, but that any violations were caused by an informal policy or custom. Among other issues, the Supreme Court “has not clarified what can serve as evidence of prior constitutional violations sufficient to put police chiefs on notice that their officers need better training or supervision.”⁹⁷

The municipal liability standards have resulted in a complex, stringent, and “nonsensical” standard of municipal liability.⁹⁸ As one commentator observed, “[the] doctrine of municipal liability is convoluted and can require difficult inquiries into which city officials are ‘policymakers’ under state law on local government, into whether a[n] official was acting in a ‘local’ or ‘state’ capacity, into the extent of departmental ‘custom’ authorizing constitutional violations, into individual cities’ training and hiring processes, and into demanding questions about causation and fault.”⁹⁹

D. First Amendment “Retaliation” Claims

In addition to the many challenges posed by general qualified immunity doctrines under section 1983, the Supreme Court has recently adopted new liability limits on a specific type of claim based on retaliation for the exercise of First Amendment rights. The Court has recognized a general defense to such claims based on a finding of probable cause to arrest the speaker for any violation of law.

The First Amendment prohibits government officials from subjecting individuals to retaliatory actions because they engaged in protected speech.¹⁰⁰ To succeed on a First Amendment retaliation claim, plaintiffs must prove they engaged in a constitutionally protected activity, the defendant’s actions would “chill a person of ordinary firmness” from continuing to engage in the protected activity, and the protected activity was a substantial motivating factor in the defendant’s conduct—i.e., that there was a nexus between the defendant’s actions and the intent to chill speech.¹⁰¹

These claims have always been difficult to win. Proving retaliatory motive is difficult, but in any event not sufficient. The speaker must show that the adverse action would not have been taken absent the official’s retaliatory motive.¹⁰² For example, suppose participants arrested at a public protest claimed law enforcement restricted or suppressed their speech in retaliation for the message they conveyed. To prevail, plaintiffs must show the officer would not have arrested them or interfered with their protected speech “but for” the retaliatory reason. If the officer can show the protesters were obstructing traffic or there was any other non-retaliatory reason for the arrest, the First Amendment claim would fail.

One long-unsettled question in such cases was whether the existence of probable cause to arrest a speaker precluded a First Amendment retaliation claim brought under section 1983. In Nieves v. Bartlett, the Supreme Court answered this question in the affirmative.¹⁰³

In Nieves, the Court upheld the dismissal of a First Amendment retaliation claim brought by an individual arrested at a festival after he exchanged heated words with officers assigned to police the event. The Court held that when speakers allege officers arrested them in retaliation for the exercise of First Amendment activities, probable cause for the arrest is usually a complete defense.¹⁰⁴ Echoing its justifications for adopting the general qualified immunity standards, which were discussed earlier, the Court indicated it was concerned that officers who must often make “split-second” decisions when deciding whether to arrest will sometimes rely on the suspect’s protected speech in doing so.¹⁰⁵ The Court also reasoned that determining whether the arrest was in retaliation for the speech in such cases would often be difficult.¹⁰⁶ Thus, it concluded plaintiffs should be required in retaliation cases to plead and prove the arrest was objectively unreasonable before inquiring into the official’s subjective mental state.¹⁰⁷

The Nieves standard applies in a broad variety of contexts. However, the Court justified it using a protest-related example. The Court was concerned, it said, that “policing certain events like an unruly protest would pose overwhelming litigation risks” for officers who arrest participants.¹⁰⁸ “Any inartful turn of phrase or perceived slight during a legitimate arrest,” the Court worried, “could land an officer in years of litigation.”¹⁰⁹ The Court was concerned officers would be deterred from discharging their duties or “would simply minimize their communication during arrests to avoid having their words scrutinized for hints of improper motive—a result that would leave everyone worse off.”¹¹⁰

The Nieves rule is subject to an exception. The Court concluded “the no-probable-cause rule should not apply when a plaintiff presents objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.”¹¹¹ If a plaintiff produces this comparative evidence, the burden shifts to the official to show some non-retaliatory basis for the arrest.¹¹²

The Nieves rule makes it more difficult for protesters, reporters, and others attending or participating in a public protest to demonstrate they were arrested in retaliation for their communications or other First Amendment–protected activities.¹¹³ As the data from this study confirm, in most cases it will mean that probable cause to arrest a speaker for any offense, however minor, will negate a First Amendment retaliation claim.¹¹⁴

E. Damages Claims Against Federal Officials

In Bivens, the Court implied a cause of action for damages against federal officials who violate individuals’ rights under the Constitution.¹¹⁵ The claim in Bivens was based on a violation of the Fourth Amendment’s prohibition on unreasonable searches and seizures.¹¹⁶ The Court has also recognized Bivens actions for Fifth Amendment and Eighth Amendment violations.¹¹⁷ However, during the past four decades, the Court has not recognized any additional Bivens claims. It has become increasingly skeptical of Bivens lawsuits in general, and specifically in the context of First Amendment and Fourth Amendment claims.¹¹⁸ At this juncture, it is not clear protesters have any right to sue federal officials for damages relating to First Amendment or Fourth Amendment violations.

According to the Court, Bivens and its progeny “were the products of an era when the Court routinely inferred ‘causes of action’ that were ‘not explicit’ in the text of the provision that was allegedly violated.”¹¹⁹ The Court has criticized this “ancien regime,” noting that “[i]n later years, [it] came to appreciate more fully the tension between this practice and the Constitution’s separation of legislative and judicial power.”¹²⁰ Accordingly, the Court noted, “for almost 40 years,” it has “consistently rebuffed requests to add to the claims allowed under Bivens.”¹²¹

In 2017, the Court outlined a two-step framework intended to limit the expansion of Bivens remedies.¹²² Under this framework, a court must first consider whether a case “arises in a ‘new context’ or involves a ‘new category of defendants.’ ”¹²³ The Court’s “understanding of a new context is broad.”¹²⁴ The standard is whether “the case is different in a meaningful way from previous Bivens cases” decided by the Court.¹²⁵ If so, the court must “ask whether there are any ‘special factors that counsel hesitation’ about granting the extension.”¹²⁶

According to the Court, “special factors” are rooted in concerns about the separation of powers among the branches of federal government.¹²⁷ They include, but are not limited to, the existence of alternative remedies and respect for coordinate branches of government. Thus, a court must “consider the risk of interfering with the authority of the other branches, . . . ask whether ‘there are sound reasons to think Congress might doubt the efficacy or necessity of a damages remedy’ . . . and ‘whether the Judiciary is well suited, absent congressional action or instruction, to consider and weigh the costs and benefits of allowing a damages action to proceed.’ ”¹²⁸ If any factor causes a court to hesitate, the court should “reject the request” to recognize the Bivens claim.¹²⁹ In general, the Court has described the expansion of Bivens as “a disfavored judicial activity.”¹³⁰

Although the Court has assumed First Amendment claims may be brought under Bivens, it has never expressly held as much and has sometimes expressed skepticism regarding such claims.¹³¹ In Egbert v. Boule (2022), the Court ruled that plaintiffs could not sue federal officials for money damages based on First Amendment retaliation and Fourth Amendment excessive force claims.¹³² The Court rejected both claims on the grounds that implied actions under Bivens do not extend to “new” contexts and Congress was in a better position to determine whether to recognize any such actions.¹³³ Although Egbert did not arise in the context of a public protest, the Court’s holding that First Amendment retaliation claims and Fourth Amendment excessive force claims are not viable under Bivens bodes ill for similar claims in other contexts.

II. STUDY DESIGN AND DATASETS

The purpose of this study is to assess how the foregoing governmental immunities have affected plaintiffs’ First Amendment and Fourth Amendment claims against government officials under section 1983 and Bivens for injuries sustained at public demonstrations and other events. The study tracks the disposition of more than 400 constitutional claims in over 300 federal civil rights cases.

Unlike other qualified immunity studies, which examined broad categories of decisions or dockets, my study focuses on a discrete set of activities—“public protest”—that gave rise to section 1983 and Bivens claims.¹³⁴ The decision to focus on public protest cases and claims required that the study define and identify “public protest.” For purposes of all three datasets, “public protest” was generally defined as a set of facts in which one or more individuals participated in a public march, rally, demonstration, parade, or other similar activity. Claims involving conduct related to public protest, including leafletting, public displays, and certain kinds of expressive conduct such as flag burning, were also included in the datasets. By contrast, the datasets excluded First Amendment and Fourth Amendment claims in areas including prisoner litigation, employment-related actions, conflicts involving K-12 student speech, and actions filed in connection with ordinary traffic stops or domestic disturbance calls. This definition obviously could be narrower or broader, and the public protest limit necessitated some judgment calls. Not all decisions involved large or mass demonstrations, but many did, and all included claims involving the kind of “out of doors” protest, hand-billing, and related activities typically engaged in during traditional public protest activity.¹³⁵

To conduct the study, I compiled three unique datasets. Each dataset consists of federal district court and appeals courts (including Supreme Court) decisions, which I read and coded. The first dataset, Qualified Immunity, includes 253 district and appellate court decisions, both published and unpublished, in which qualified immunity was raised as a defense to First Amendment or Fourth Amendment claims in the context of public protests.¹³⁶ In combination, these decisions addressed a total of 468 First Amendment and Fourth Amendment claims. The study examined cases from 1982, when the Supreme Court adopted its modern “two-step” qualified immunity approach, to December 2022.¹³⁷

Each of the 253 decisions in the Qualified Immunity dataset was coded for: (1) court; (2) date of decision; (3) whether the decision was published or unpublished; (4) type of constitutional claim (First Amendment or Fourth Amendment); (5) procedural posture in which a qualified immunity defense was raised (Summary Judgment, Motion to Dismiss, or Trial); (6) disposition of the motion to dismiss on qualified immunity grounds (granted or denied); (7) whether denials of summary judgment addressed the merits or were based on the existence of genuine issues of material fact; (8) whether a motion to dismiss or for summary judgment was granted based on Step One, Step Two, or Both steps of the qualified immunity analysis; (9) in appeals, whether the appellate court affirmed or reversed the district court’s qualified immunity disposition; (10) description of the First Amendment or Fourth Amendment claim; and (11) basis for the court’s conclusion on the qualified immunity motion. All decisions in the Qualified Immunity database were also coded for (12) whether plaintiffs pursued a claim for municipal liability under Monell; (13) whether a defense motion to dismiss or for summary judgment on the Monell claim was granted or denied; and (14) general grounds for the court’s disposition of the municipal liability claim.

The other two datasets are more limited in scope. The Nieves Retaliation Claims dataset includes forty-one published and unpublished federal court decisions from 2019 through December 2022.¹³⁸ Each decision was coded for (1) procedural posture; (2) disposition of a defense motion to dismiss or for summary judgment based on Nieves; (3) criminal offense(s) charged; (4) whether the decision addressed the Nieves unequal treatment exception and, if so, the court’s disposition of that part of the claim; (5) whether plaintiffs pursued a claim for retaliation against the municipality; and (6) disposition of the retaliation claim.

The Bivens Claims dataset includes twenty-six published and unpublished decisions between 1971 and the end of December 2022 in which courts addressed First Amendment or Fourth Amendment Bivens claims in the context of public protests.¹³⁹ Each decision was coded for (1) type of constitutional claim (First Amendment, Fourth Amendment, or both); (2) whether the court recognized a Bivens First Amendment or Fourth Amendment cause of action; and (3) in the event the court did not recognize the Bivens action, its reasoning (for example, claim arises in a “new context,” the presence of “special factors,” and so forth).

All three datasets have statistical and other limitations that narrow the study’s scope and findings. Most empirical qualified immunity studies have relied on decisions available on Westlaw.¹⁴⁰ However, as Joanna Schwartz has observed, because Westlaw omits many unpublished opinions as well as lawsuits resolved without any opinion, such studies can “say little about the frequency with which qualified immunity is raised, the manner in which all motions raising qualified immunity are decided, and the impact of qualified immunity on case dispositions.”¹⁴¹ However, as Schwartz acknowledges, such studies can “offer insights about the ways . . . courts assess qualified immunity . . . in a written opinion.”¹⁴² The study examines opinions accessible to courts when they analyzed qualified immunity and other defenses in protest cases.

There are some quantitative limitations. Since my study is limited to claims brought in “public protest” cases, it is not based on a random or complete sample of all qualified immunity decisions. Thus, quite intentionally, it does not purport to make claims about the dispositions of all qualified immunity motions. Moreover, because my study considers both district court and appeals courts decisions, and primarily claims addressed at both the motion to dismiss and summary judgment stages, it cannot account for all final dispositions of qualified immunity motions in the study.¹⁴³ For example, a qualified immunity motion denied at the motion to dismiss stage could be granted or denied later at summary judgment. Or the case may settle. The Retaliation Claims and Bivens Claims datasets, which are smaller samples, have similar quantitative limitations. In addition, the sample sizes in these two datasets are relatively small. The three datasets provide snapshots of how courts have disposed of qualified immunity and other motions in public protest cases during the relevant time periods.

Even with the foregoing limitations, the study offers a rare glimpse into how courts address qualified immunity in public protests cases. The data also provide information about the most common types of claims protesters pursued and how these different claims fared under qualified immunity, whether defense motions to dismiss or for summary judgment were successful, how courts applied the two-step qualified immunity analysis, whether Monell claims were pursued and sustained, the effect of Nieves on First Amendment retaliation claims, and whether protesters have been able to pursue Bivens actions. In addition, the study’s qualitative analysis helps reveal the extent to which First Amendment and Fourth Amendment law has developed—or failed to develop—in the public protest context and the extent to which courts have left important questions unanswered. In sum, the study offers an in-depth analysis of how qualified immunity has affected constitutional claims brought by protester plaintiffs.

III. DATA AND FINDINGS

This Part presents the study’s data and principal findings. It begins with a quantitative and qualitative examination of the largest dataset, Qualified Immunity. The Part then turns to the effect of governmental immunities and defenses on municipal liability, First Amendment retaliation claims, and protesters’ Bivens actions.

A. Section 1983 and Qualified Immunity

This Section presents findings from the Qualified Immunity dataset. It begins with a general overview of the dataset, and then discusses more detailed quantitative findings concerning First Amendment and Fourth Amendment claims. In connection with the discussion of these claims, the Section also presents qualitative assessments of the state of clearly established First Amendment and Fourth Amendment law in public protest cases.

1. Qualified Immunity Dataset: Overview

Table 1 contains general information about the overall number of cases, whether decisions were published or unpublished, and the distribution of federal district court and courts of appeals decisions in the Qualified Immunity dataset. As indicated, this dataset includes federal district and appellate court public protest decisions from 1982 through the end of 2022 in which defendants sought dismissal or summary judgment based on qualified immunity. It does not include state-level constitutional claims or qualified immunity decisions.

The Qualified Immunity dataset consists of 253 (published and unpublished) federal district court and appellate court decisions. As noted earlier, for purposes of establishing whether there is clearly established law regarding a constitutional right, courts look primarily to published courts of appeal decisions (although some will also look to published district court decisions). There are more than twice as many published (170) as unpublished (83) decisions in the database. In terms of precedents most likely to be considered controlling, there are eighty-six published appeals court decisions—including two decisions from the Supreme Court.¹⁴⁴

Table 1. General Case Data
Cases in the Dataset	253
Published Cases	170
Unpublished Cases	83
Appellate Cases (Including Supreme Court)	114
District Court Cases	139
Published Appellate Cases	86

The study of the Qualified Immunity dataset focused primarily on the disposition of First Amendment and Fourth Amendment claims subject to defense motions for dismissal or summary judgment based on qualified immunity. As indicated in Table 2, the dataset includes 468 distinct First Amendment and Fourth Amendment claims as to which defendants filed such motions. A claim was counted just once, even if brought against multiple defendants—unless the court disposed of the claim differently for certain defendants, in which case the claim was counted more than once. In general, courts tended to analyze qualified immunity motions by multiple defendants together.

There were slightly more First Amendment (253) than Fourth Amendment (215) claims in the dataset. More qualified immunity motions concerning these claims were decided by federal district courts (287) than by federal appellate courts (181). In many cases, no appeal appears to have been filed after the district court disposition of defense qualified immunity motions. Although it is possible appeals were filed but not noted on Westlaw, many cases appear to have terminated at the district court level without any interlocutory or other appeals.

The study examines constitutional claims subject to defense qualified immunity motions, again in cases that resulted in a published or unpublished opinion available on Westlaw. If, at the time the study period closed, an appellate decision was not available in Westlaw, then the district court decision was included in the dataset. In all other cases, the highest available appellate decision (Supreme Court or federal court of appeal) was coded instead of the district court opinion.

Table 2. General Claims Data
Claims in the Dataset	468
First Amendment Claims	253
Fourth Amendment Claims	215
Claims Considered in District Courts	287
Claims Considered in Appellate Courts (Including Supreme Court)	181

Like other studies, mine tracks the disposition and analysis of constitutional claims brought by protester plaintiffs.¹⁴⁵ A docket study focusing on public protest cases, as defined for purposes of the study, was not feasible. Even if all public protest cases could be identified through a review of court dockets, to get a substantial sample one would need to review complaints filed in a multitude of districts.¹⁴⁶ Focusing on defendants would provide some information about how many individual officers were sued and how many achieved dismissals, but it would not provide information about why they were sued or how courts analyzed constitutional claims in qualified immunity cases.¹⁴⁷ Focusing on case-level data, for example, how many cases resulted in dismissal on qualified immunity grounds, would likewise not tell us what kinds of claims protesters typically bring, the dispositions or success rates of defense motions to dismiss or for summary judgment regarding specific claims, and information about substantive First Amendment and Fourth Amendment law. My study focuses primarily on claim-level findings to learn how courts have analyzed motions to dismiss claims based on qualified immunity in the specific context of public protest.

Success rates overall and by claim for defense motions to dismiss or for summary judgment based on qualified immunity are reported in Figure 1. The Qualified Immunity dataset includes only cases in which defendants raised a qualified immunity defense as to one or more constitutional claims and courts explicitly addressed the defense. A defense qualified immunity motion was deemed “successful” if it was granted or dismissal of the claim was upheld on qualified immunity grounds. Motion success was not defined as disposing of all claims in the case, including Monell, state law, and other actions.¹⁴⁸ Rather, my study focused on the qualified immunity determination with respect to each claim of constitutional wrong.

Figure 1. Defense Q.I. Motion Success Rates

Although approximately a third of qualified immunity motions succeeded at the pleadings stage (53/152 for all claims), as in other studies defendants were far more likely to prevail at summary judgment.¹⁴⁹ Examination of qualified immunity decisions in protest-related cases thus adds some support for the claim that the defense does not generally serve the goal of weeding out cases at the earliest stages of litigation and sparing defendants the expenses of discovery.¹⁵⁰ Defense success rates at the motion to dismiss stage in my study are somewhat higher than those reported in some others, but generally consistent with dismissal findings across studies.¹⁵¹ In sum, in most protest cases plaintiffs were able to proceed to discovery on their claims.

As noted, courts were more likely to grant summary judgment on qualified immunity grounds than to dismiss at the pleadings stage. Across all claims, defendants prevailed on 58% (183/313) of their motions. That success rate was consistent across claims, with courts granting 60% (101/168) of defense qualified immunity motions in First Amendment cases and 57% (82/145) of summary judgment motions in Fourth Amendment cases. Again, these numbers are generally consistent with those reported in other studies.¹⁵²

Courts denied summary judgment as to 130 claims. In 53% of those cases (69/130), the defense motion was denied because there were genuine issues of material fact at issue. In the other 47% (61/130) of summary judgment motions, courts denied the motions on the merits (that is, held that plaintiffs had met their burden of showing a violation of clearly established law).

As shown in Figure 2, appellate courts were more likely than district courts to rule in defendants’ favor on qualified immunity. In published and unpublished decisions available on Westlaw, district courts granted 45% (128/287) of defense motions. Appellate courts ruled in defendants’ favor on 60% (109/181) of plaintiffs’ constitutional claims. These numbers are likely owing in part to defendants’ low rate of success at the pleadings stage, which in many instances were the last results coded. District courts, which faced more defense motions at the pleadings stage, were inclined to allow for some factual development before dismissing plaintiffs’ claims.

Figure 2. Q.I. Motion Success Rates by Court

Figure 3 shows that appellate court success rates were similar if one considers only the eighty-six published decisions. Courts granted or upheld defense qualified immunity defenses with respect to 57% (77/135) of all constitutional claims. In published appellate decisions, the rate of success for defendants was still lower (48% or 15/31) at the motion to dismiss stage than when the case had reached the summary judgment stage (60% or 62/103). However, in published decisions appellate courts ruled in defendants’ favor at the pleadings stage at a somewhat higher rate than did all courts at that stage.¹⁵³ Appellate courts may have been responding to the Supreme Court’s directive that non-meritorious cases should be dismissed at an earlier stage, or they may simply have been convinced that plaintiffs had not adequately pleaded a clearly established violation under applicable pleading rules.

Figure 3. Q.I. Motion Success Rates in Published Appellate Decisions

As discussed earlier, under qualified immunity doctrine, courts can dismiss or grant summary judgment for defendants if the plaintiff has not demonstrated a constitutional violation occurred (“Step One”) or if, despite the occurrence of a constitutional violation, the law was not “clearly established” at the time the violation occurred (“Step Two”).¹⁵⁴ Prior to 2009, the Supreme Court instructed lower courts to address these two steps in order.¹⁵⁵ In 2009, the Court held the sequence was not mandatory; thus, courts could skip Step One and base decisions solely on analysis at Step Two.¹⁵⁶

Grants of defense qualified immunity motions were coded for sequencing. If a claim was dismissed or defendants prevailed on summary judgment, the disposition was coded “Step One” when the basis for granting or upholding qualified immunity was the absence of a constitutional violation, “Step Two” if the sole basis for granting or upholding qualified immunity was the court’s conclusion that the law was not “clearly established,” and “Both” if the court granted or upheld qualified immunity on the basis that there was a constitutional violation but the law was not “clearly established” at the time. The few instances in which the court’s decision was unclear regarding which Step it was relying on were also coded as “Both.”

Figure 4. Sequencing and Success Rate

As indicated in Figure 4, when courts ruled in defendants’ favor in public protest cases, they did so at Step One 57% of the time (133/235). For Fourth Amendment claims, courts granted qualified immunity at Step One 63% (67/107) of the time. That percentage dropped to 52% (66/128) for First Amendment claims. The higher rate for Fourth Amendment claims may be attributable to the lenient probable cause and excessive force standards applied in Fourth Amendment cases, which make it more likely courts will conclude there was no constitutional violation. Of course, the higher success rates for defense motions may also be attributable to the relative weakness of the plaintiffs’ Fourth Amendment claims. Although not included in Figure 4, the number of overall Step One dispositions was somewhat higher (65% or 50/77) if one looks only at the eighty-six published appellate court decisions in the dataset.

Scholars have raised the concern that if courts proceed directly to Step Two there will be fewer opportunities to develop “clearly established” law, thus making it more difficult for plaintiffs to prevail in qualified immunity cases.¹⁵⁷ There is also a related concern that constitutional law will stagnate or fail to develop if courts do not rule on the constitutional question at Step One.¹⁵⁸

My data do not indicate courts are engaged in widespread avoidance of constitutional issues in public protest cases. But again, the findings may be driven in part by the constitutional standards courts are called upon to apply to First Amendment and Fourth Amendment claims. Those standards call for, among other things, consideration of context and assessment of the “reasonableness” of governmental actions. The constitutional doctrine may make it easier for courts to dispose of claims by concluding no violation has occurred, that plaintiffs have not satisfied their burden of providing evidence of a constitutional violation, or that the law is not sufficiently clear.

The data show that in a significant percentage of instances, 35% overall (82/235), courts relied on the Step Two conclusion that the law was not “clearly established.”¹⁵⁹ In these instances, courts did not address the substance of the constitutional claims. As discussed later, judicial reliance on a lack of clearly established law in public protest cases has probably limited development of substantive constitutional law regarding First Amendment and Fourth Amendment rights.¹⁶⁰ Consider that in 42% (54/128) of rulings in defendants’ favor on First Amendment claims, courts relied on the absence of clearly established law regarding issues ranging from the constitutionality of exclusions of protesters from public properties to the right to record law enforcement. Those rulings make it more difficult for plaintiffs in future cases to prove a violation or show the law is clearly established.¹⁶¹ Courts also avoided the constitutional question in motions addressing a quarter of Fourth Amendment claims.

Some commentators have suggested that qualified immunity doctrine allows for development of substantive law because it permits courts to find a constitutional violation at Step One but still hold the law was not clearly established at Step Two.¹⁶² My data show little evidence of such innovative judicial practice. Only 6% (8/129) of First Amendment claims were disposed of in this way, with a slightly higher percentage of Fourth Amendment claims (11% or 12/108). Again, these percentages track other studies’ findings.¹⁶³

Finally, my data show that appellate reversal or affirmance rates in protest-related qualified immunity cases were very low. Overall, appeals courts reversed lower court decisions on qualified immunity only 33% (59/181) of the time. For First Amendment claims, the reversal rate was 33% (36/108) and for Fourth Amendment claims it was 32% (23/73). These reversal rates are generally consistent with those reported in other qualified immunity studies.¹⁶⁴ A closer look at these data demonstrates that appellate courts reversed district courts 40% of the time (25/62) when they denied a qualified immunity motion, but only 26% of the time (30/114) when they granted a qualified immunity motion. This finding is consistent with the data in Figure 2, which show appellate courts were more likely to rule in favor of qualified immunity across a range of claims.

2. First Amendment Claims

In addition to the general claims data discussed above, the Qualified Immunity dataset includes more specific information about First Amendment claims. The data include the types of claims protesters pursued, the success rates for qualified immunity motions respecting different types of claims, and the substantive law as it pertains to the First Amendment rights of public protesters.

i. Types of Claims

There are 253 First Amendment claims in the Qualified Immunity dataset. Figure 5 shows the distribution and frequency of the six most common types of First Amendment claims.

Figure 5. Types of First Amendment Claims

Retaliation claims were the most frequently litigated type of First Amendment claim. Law enforcement or other government officials violate the First Amendment when they arrest, use force against, or otherwise restrict expressive activity in retaliation for the exercise of First Amendment rights.¹⁶⁵ To prevail on a retaliation claim, “the plaintiffs must show that they engaged in protected activity, that the defendants’ actions caused an injury to the plaintiffs that would chill a person of ordinary firmness from continuing to engage in the activity, and that a causal connection exists between the retaliatory animus and the injury.”¹⁶⁶

As discussed earlier, in Nieves v. Bartlett (2019), the Supreme Court modified the law with respect to retaliation claims.¹⁶⁷ The Qualified Immunity dataset includes decisions addressing seventy-eight retaliation claims subject to the standards that applied prior to Nieves.¹⁶⁸

Nearly half (124/253 or 49%) of the First Amendment claims pertained to protesters’ rights to access public properties and the doctrines that apply to speech and assembly in those places. Individuals and groups have a First Amendment right to speak and assemble in certain public properties, including public streets, parks, and sidewalks.¹⁶⁹ While governments can impose content-neutral time, place, and manner restrictions on speech and assembly in these “quintessential” public fora, they generally cannot restrict expression based on its content or prohibit access altogether.¹⁷⁰ Under the First Amendment, regulations of speech based on subject matter or viewpoint receive strict judicial scrutiny and must be narrowly tailored to further compelling governmental interests.¹⁷¹ Thirty-seven First Amendment claims asserted that government regulated speech based on its content. Time, place, or manner regulations are subject to a lower degree of judicial scrutiny. They must be content-neutral, supported by important governmental interests, narrowly tailored to burden no more speech than necessary, and must leave available alternative channels of communication.¹⁷² Fifty-three First Amendment claims involved application of this standard.

Under the First Amendment, protesters and other speakers also have a right to access other public forums, primarily depending on the extent to which governments intend to allow expressive activities in these places and the extent to which such activities would affect their ordinary functioning.¹⁷³ In places generally open to the public for expressive purposes, or so-called designated public fora, governments can impose content-neutral time, place, and manner regulations.¹⁷⁴ In “non-public” or “limited” public forums, regulations need only be viewpoint-neutral and reasonable.¹⁷⁵ Thirty-four First Amendment claims concerned government restrictions on access to various public properties.

Rounding out the First Amendment claims, protesters brought thirty-two claims challenging a variety of policing methods—for example, use of tear gas, herding or “kettling” of protesters, and surveillance of protest groups. Protesters claimed these actions chilled or prohibited expression. Plaintiffs also pursued a dozen claims relating to arrests or other adverse actions taken against protesters who were recording law enforcement at public demonstrations. As discussed below, whether there is a First Amendment right to record police is an issue on which courts remain somewhat divided.¹⁷⁶

ii. Claims Disposition Data

Figure 6 shows the success rates for qualified immunity motions respecting the five most common types of First Amendment claims.¹⁷⁷ Significant findings relate to the procedural posture of qualified immunity dispositions and the disparate success rates for qualified immunity motions challenging certain claims.

Figure 6. Q.I. Motion Success Rates by First Amendment Claim

Although some of the sample sizes are small, the data generally show that plaintiffs were able to keep claims alive at the pleadings stage. The success rate percentages for retaliation, content-based speech regulations, and access to forum claims were in line with the overall pleadings stage dismissal percentages reported earlier.¹⁷⁸

Two claims produced unanticipated results. In qualified immunity motions respecting challenges to time, place, and manner regulations, defendants prevailed 63% (10/16) of the time. The judicial balancing that applies to time, place, and manner regulations generally requires consideration of factual context not typically available at the pleadings stage. The high success rate may reflect the deferential standard applicable to content-neutral time, place, and manner regulations, the uncertain state of the law as it pertains to application of the standard, the relative strength or weakness of the claims in the dataset, or some combination of these factors.

The other unexpected finding is that only 7% (1/14) of motions to dismiss First Amendment challenges to protest policing methods were successful. However, several of these claims relied on allegations that police had used aggressive policing methods against compliant and peaceful protesters or dispersed assemblies without cause or warning.¹⁷⁹ Taking those allegations as true, courts concluded they stated a clear violation of the First Amendment.

At summary judgment, defendants substantially prevailed on their qualified immunity motions, winning 72% (26/36) of time, place, and manner claims, 62% (33/53) of retaliation claims, and 55% (11/18) of claims challenging protest policing methods. Again, there were a couple of exceptions. Defendants were granted qualified immunity as to only 44% (11/25) of claims involving content-based speech regulations and won only 50% (10/20) of motions relating to claims involving access to public property. This may reflect the fact that the law in both areas is longstanding and relatively clear. As discussed, under the First Amendment, laws or regulations based on content face a heavy presumption of invalidity. Similarly, protesters have a presumptive right to access certain public properties including public parks, streets, and sidewalks.

iii. First Amendment Law and Protesters’ Rights

The numbers paint an important, if only partial, picture when it comes to application of qualified immunity doctrine in First Amendment cases. The study was also designed to identify and critically analyze the substantive law that has developed—or failed to develop—during application of qualified immunity doctrine. The law that matters most is controlling authority in a specific jurisdiction. However, using a qualitative assessment, we can get a more general sense of the development of substantive standards concerning protesters’ First Amendment rights. The assessment that follows relies primarily on published appellate court decisions but, when useful in terms of filling some gaps, also considers published district court decisions.

Although retaliation claims were the most common in the Qualified Immunity dataset, the core First Amendment rights of protesters relate to access to public properties and the application of content neutrality standards there. Protesters rely on access to public forums such as public streets, parks, and sidewalks, as well as other public properties, to organize and participate in public demonstrations, rallies, and other events.

In public forum qualified immunity cases, several courts treated arbitrary, broad, and effective denials of access to public fora as First Amendment violations.¹⁸⁰ They also held that precedents clearly established protesters’ rights to distribute pamphlets and have access to an audience in a public forum,¹⁸¹ engage in peaceful residential picketing,¹⁸² protest on private property with the owner’s consent,¹⁸³ be present on State House grounds after 6:00 p.m.,¹⁸⁴ and engage in non-disruptive activity on a public sidewalk adjacent to a public school.¹⁸⁵

However, appellate courts upheld several bans on protest in government properties other than public streets, parks, and sidewalks.¹⁸⁶ In addition, they concluded the following actions did not violate clearly established First Amendment rights to access public properties:

Enforcing an invalid permit ordinance that violated the First Amendment, on the ground that the officer was entitled to rely on the ordinance;¹⁸⁷
Excluding a protester from state courthouse grounds and lands, because the “right of access to judicial proceedings” was not clearly established at the time;¹⁸⁸
Arresting a protester for refusing to move a rally from the sidewalk adjacent to Liberty Bell Center in Independence National Historic Park, because it was not clearly established at the time that the sidewalk was a public forum;¹⁸⁹
Promulgating and enforcing a curfew, since protestors did not have a clearly established right under the First Amendment to continuously occupy a plaza on state capitol grounds for an indefinite time;¹⁹⁰ and
Denying a state university student’s request to set up a table in the patio area outside the student union, since the right to access such space was not clearly established.¹⁹¹

As one might expect based on qualified immunity doctrine, the forum access precedents allow protesters to hold officials liable for egregious restrictions, including flat bans on access to traditional or quintessential public fora. However, they also permit officials to enforce otherwise unconstitutional permit requirements and exclude protesters from important venues on the ground that there is insufficient controlling authority addressing access to those places or no reasonable official would know this violated the First Amendment.

According to the decisions, it is difficult for protesters to prove a clearly established right to access a property unless that same property has been previously declared a public forum for First Amendment purposes. But when courts rely on the absence of controlling authority with respect to a public place, they fail to develop forum law. This is part of qualified immunity’s “vicious cycle.”¹⁹²

Protesters also rely on courts to enforce content neutrality rules in public places. The data suggest they have done so unevenly and inconsistently. The Supreme Court has admonished lower courts not to define constitutional issues at a high level of generality but to rely only on controlling precedent.¹⁹³ Nevertheless, in some contexts, courts applied general doctrinal rules to deny qualified immunity. In these instances, failure to follow the Court’s instructions benefitted protester plaintiffs.

For example, courts relied on the general principle that content-based regulations of expression violate the First Amendment. Based on that principle, they held that forcing abortion protesters to vacate a public sidewalk based on the content of their signs or arresting someone for, without more, burning an American flag violated clearly established First Amendment rights.¹⁹⁴ They also concluded, again based on general standards forbidding content-based speech regulations, that public university officials cannot prohibit student protests because of the content of their message and law enforcement officers violated the First Amendment when they made no serious effort to quell hecklers before shutting down a public protest.¹⁹⁵ Similarly, appellate courts held that it is clearly established that protesters cannot be arrested for communicating protected profanity.¹⁹⁶ Finally, one appeals court held that protesters cannot be arrested for engaging in an unusual form of dissent, on the ground that the First Amendment “protects bizarre behavior.”¹⁹⁷

By contrast, when courts followed qualified immunity law to the letter, they frequently upheld government actions that violated content neutrality rules. In several cases courts concluded defendants were entitled to qualified immunity even though they adopted or enforced content-based regulations. For example, courts held that the following actions and regulations did not violate clearly established First Amendment law:

Ordering anti-abortion activists displaying fetuses near a middle school to disperse under a law prohibiting disruptive presence at schools;¹⁹⁸
Arresting protesters for demonstrating publicly in thong underwear;¹⁹⁹
Arresting the driver of a truck who painted words on the side of his truck indicating he was “a fucking suicide bomber communist terrorist!” with “W.O.M.D. on Board”;²⁰⁰
Excluding a protester from a welcoming ceremony authorized by U.S. Senate resolution for carrying a sign objecting to the intended disposition of Olympic dormitories for correctional purposes;²⁰¹
Preventing a journalist from engaging with a counter-protester, under threat of arrest, at a public library children’s book reading event called “Drag Queen Story Hour”;²⁰² and
Excluding protesters from an official speech on private property because of the viewpoint of a message displayed on a bumper sticker on their car.²⁰³

In these instances, courts did not apply general content neutrality principles. Instead, they required that protesters identify controlling authority with facts similar or identical to those in the case under review—a case (or two) involving protesters in thong underwear or messages on bumper stickers, for example. With respect to novel claims, or at least claims courts viewed as such, they were quite strict about application of qualified immunity standards. To be fair to lower courts, even the Supreme Court has sometimes equivocated on the content neutrality point in the context of protests. The Court held in one case that it was not clearly established that Secret Service agents bore a responsibility to ensure that protest groups with different viewpoints had access to comparable locations during a presidential visit.²⁰⁴ Even so, looking for precedential twins and dead ringers in highly context-specific protest cases led courts to uphold qualified immunity.

Protesters’ speech and assembly rights are substantially affected by the enforcement of time, place, and manner regulations. Here, too, the data show very mixed success for protester plaintiffs. In several cases challenging time, place, and manner restrictions, courts concluded protesters had either not alleged or adduced evidence of a First Amendment violation.²⁰⁵ In others, courts concluded that the applicable law concerning time, place, and manner was not clearly established:

The Fourth Circuit held that a reasonable officer could have believed, in 2005, that prohibiting an abortion protester from displaying large, graphic signs depicting aborted fetuses at a major intersection was lawful because case law from the Fourth Circuit and Supreme Court was ambiguous on that issue.²⁰⁶
The Ninth Circuit concluded that denial of protestors’ application for a march permit without a promise on protestors’ part not to engage in civil disobedience was unlawful, but the condition did not violate clearly established First Amendment rights under controlling circuit and Supreme Court precedent.²⁰⁷
The D.C. Circuit held that a reasonable police officer could have believed that, given its proximity to the Capitol, a protest on the East Front sidewalk of the U.S. Capitol was subject to different First Amendment standards than apply in similar public properties.²⁰⁸ The court also agreed with the government’s assertion that because narrow tailoring is “ ‘not an exact science,’ a reasonable officer should not be expected to perform that analysis prior to arresting an individual for violating a time, place, and manner restriction governing expressive activity in a public forum.”²⁰⁹

As critics of qualified immunity doctrine have complained, in determining whether the law of time, place, and manner was clearly established, some courts engaged in factual parsing and line-drawing. For example, the Ninth Circuit concluded that relegation of a public prayer event to a “First Amendment area” burdened the plaintiffs’ speech to a substantially greater degree than necessary to achieve the government’s purposes.²¹⁰ However, the court held officials were entitled to qualified immunity because the relevant case law indicated that time, place, and manner doctrine, in particular the narrow tailoring requirement, distinguished between claims that an audience is essential to the message being conveyed and claims that location was essential for that purpose.²¹¹ Since plaintiffs were challenging the regulation based on locational as opposed to audience proximity, the court reasoned, a reasonable official would not have had sufficiently clear legal guidance to avoid violating the plaintiffs’ First Amendment rights.²¹² The Ninth Circuit’s “narrow tailoring” analysis highlights a central challenge plaintiffs face in terms of identifying clearly established law.

Protesters also brought First Amendment challenges to various protest policing methods, including issuance of unlawful dispersal orders, use of less-lethal weapons during protest events, and surveillance of protest groups. The Eleventh Circuit held that using cordons or barriers that prevent protesters from being seen or heard by anyone violates the First Amendment.²¹³ Several courts held that arbitrary dispersals of otherwise lawful public protests violate clearly established First Amendment law.²¹⁴ Courts also concluded that deploying tear gas and other less-lethal munitions against protesters who are not engaging in any illegal activity is unconstitutional.²¹⁵ Finally, the Ninth Circuit held that government officials violated clearly established First Amendment law when they conducted an eight-month investigation into a vocal, but entirely peaceful group.²¹⁶

However, results changed dramatically if courts discerned even an inkling of disruption or potential for violence at a public protest. In that event, they were far more likely to give law enforcement the benefit of the doubt in terms of protest-policing methods. For example, courts held that confiscating signs at demonstrations, using tear gas against protesters blocking egress from an industrial plant, arresting protesters who refused law enforcement directives to use a “free speech zone,” and making preemptive arrests did not violate the First Amendment or did not violate clearly established law.²¹⁷ In sum, while peaceful and compliant protesters were successful in pursuing challenges to protest policing methods, evidence or even allegations of disruption or potential for violence made success far less likely.

As noted earlier, the most frequently pursued First Amendment claim was that officials unlawfully retaliated against protesters for engaging in protected speech and assembly.²¹⁸ Lower federal court decisions in the Qualified Immunity dataset did not produce much law concerning First Amendment retaliation claims. Retaliation claims often turn on the motive of the defendant, thus making them poor vehicles for establishing bright line rules.²¹⁹ They are also fact-dependent in other ways.

In a typical case, the Eighth Circuit held that when protesters moved toward officers “in a threatening manner” and blocked traffic, “[a] reasonable officer could conclude that this conduct violated Minnesota law and was not protected speech.”²²⁰ Further, the court concluded that since there was no evidence the protesters had been singled out while other similarly situated speakers had not been arrested, “[t]he only reasonable inference supported by the record is that the group’s unlawful conduct, not the protected speech, motivated the officers’ actions.”²²¹

Nevertheless, a few retaliation decisions produced intriguing results. In one case, a district court held that retaliating against protesters for their speech by surveilling them and pointing a red laser from a sniper rifle at a group member during a speech violated the First Amendment.²²² In an unpublished decision, the Ninth Circuit concluded that a reasonable official would know that directing a train into the path of demonstrators, one of whom lost his legs as a result, to stop a protest violated the First Amendment.²²³ In these decisions, at least, the courts did not point to any prior precedent with similar facts. Perhaps when the facts are so egregious, courts are willing to bend the clearly established standard.

Finally, courts addressed claims that officers violated the First Amendment when they interfered with or prevented the recording of officers as they engaged in protest policing. As Joanna Schwartz has observed, “[c]oncerns that the Court’s qualified immunity jurisprudence renders the Constitution hollow are even more acute for constitutional claims involving new technologies and techniques.”²²⁴ Several courts have held that there is a First Amendment right to record police at a public protest and that right is clearly established.²²⁵ However, other courts have held that at the time of the alleged violation, the right to record was not clearly established or not apparent to all reasonable officers.²²⁶ Courts have also observed that the right is not unlimited, and that arresting protesters for recording officers in ways that interfere with their duties does not violate clearly established law.²²⁷

In sum, First Amendment decisions in the Qualified Immunity dataset demonstrate many of the pathologies of qualified immunity doctrine. While courts have held that egregious forms of governmental abuse can be the basis for a claim under section 1983, they have also upheld qualified immunity in cases involving denial of access to public fora, content discrimination, and questionable time, place, and manner regulations. Courts have applied the doctrine inconsistently, sometimes relying on general principles and in other instances demanding precise controlling authority.

We also learned that although wholly peaceful and compliant protesters can pursue claims for damages, at the first sign of disruption or potential violence, courts deferred to officers’ choice to use aggressive protest policing methods. In terms of retaliation, government actors probably cannot mow down demonstrators with a train—although the only opinion on this matter is unpublished and is not controlling authority concerning other types of conveyances. Again, in instances in which the facts are truly egregious, courts may apply the qualified immunity standard more flexibly. Finally, the cases indicate that not all appellate courts have concluded that there is a clearly established First Amendment right to record police at demonstrations.

3. Fourth Amendment Claims

The Qualified Immunity dataset includes court decisions in which 215 Fourth Amendment claims were the subject of defense qualified immunity motions. Although the data support some clear limitations on governmental actions under the Fourth Amendment in the protest context, they also demonstrate an overall lack of substantive development.

i. Types of Claims

Figure 7 shows the most common Fourth Amendment claims plaintiffs pursued in the cases in the Qualified Immunity dataset. The general standards governing these 215 Fourth Amendment claims are well-established.

Figure 7. Types of Fourth Amendment Claims

The Fourth Amendment protects the “right of the people to be secure in their persons . . . against unreasonable searches and seizures.”²²⁸ To prevail on a claim for false arrest, a plaintiff must demonstrate that officers lacked probable cause to make the arrest. Probable cause to arrest exists when the officers have knowledge or reasonably trustworthy information of facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that the person to be arrested has committed or is committing a crime.²²⁹ The existence of probable cause to arrest, even for a very minor offense, is a complete defense to a Fourth Amendment false arrest claim.²³⁰

In an excessive force claim, a plaintiff must show that the use of force was excessive under the facts and circumstances presented.²³¹ In making this determination, the Supreme Court has instructed lower courts to pay “careful attention” to factors such as “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.”²³² As the Court has emphasized, “[t]he ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”²³³

Finally, a seizure of the person occurs “when there is a governmental termination of freedom of movement through means intentionally applied.”²³⁴ To be valid under the Fourth Amendment, a seizure or detention must be reasonable under the circumstances. Under the Fourth Amendment, an officer may seize an individual’s property from a public area “only if Fourth Amendment standards are satisfied—for example, if the items are evidence of a crime or contraband.”²³⁵ Officers may also conduct searches incident to arrest when they have reasonable suspicion contraband is present.²³⁶

ii. Claims Disposition Data

The success rates for defense motions to dismiss or for summary judgment based on qualified immunity are shown in Figure 8. The same caveats that applied to determining successful disposition of defense motions respecting First Amendment claims apply to Fourth Amendment claims. The findings count granted motions to dismiss and for summary judgment, and appellate court rulings upholding those grants as successful whether or not plaintiffs amended their complaints or their claims were considered on remand after appeal. The success rates are, as indicated, snapshots of dispositions in reported decisions available on Westlaw.

Figure 8 shows that, like the First Amendment claims in the dataset, two-thirds or more of Fourth Amendment claims survived defense motions to dismiss. By contrast, at summary judgment, courts were much more inclined to grant or uphold qualified immunity for defendants for false arrest (61% or 48/79 claims) and unlawful search or seizure (71% or 15/21 claims).

Figure 8. Q.I. Motion Success Rates by Fourth Amendment Claim

As discussed earlier in the general data findings, when addressing qualified immunity respecting Fourth Amendment claims, courts were more likely to grant immunity at Step One. In those instances, courts held that no violation had occurred, instead of concluding that there was a lack of clearly established law at Step Two.²³⁷ As we have seen, courts were overall likely to grant defense motions for summary judgment. But the high rate of summary judgment for false arrest and unlawful search and seizure claims likely also reflects the deferential probable cause and reasonableness standards that apply to such claims.

The exception was defense motions for summary judgment on excessive force claims, which succeeded only 42% (19/45) of the time. As discussed below, several courts held that law enforcement uses of force against peaceful assemblies or compliant protesters constituted clear Fourth Amendment violations.²³⁸ In other cases, courts concluded that the degree or amount of force used against protesters violated clearly established Fourth Amendment standards.²³⁹ These decisions account for the lower defense success rates regarding excessive force claims at summary judgment.

iii. Fourth Amendment Law and Protesters’ Rights

Substantive Fourth Amendment law in the context of public protest has developed slowly in lower courts. Like the discussion of First Amendment law, the following analysis focuses primarily on published federal courts of appeals decisions to assess what substantive Fourth Amendment law has been established. However, it also considers district court decisions that apply circuit precedents in Fourth Amendment qualified immunity determinations.

Appellate courts consistently held that arresting protesters without actual or arguable probable cause violated clearly established Fourth Amendment law.²⁴⁰ They also concluded that it is a clear violation of the Fourth Amendment to arrest protesters without first issuing a dispersal order (although one district court held that officers are under no obligation to determine whether the order is lawful prior to enforcing it).²⁴¹ Notwithstanding these limits, courts applied a flexible probable cause standard and upheld arrests for various offenses, some very minor—using noise amplification near an abortion clinic,²⁴² falling asleep in a zipped tent in a public park,²⁴³ openly carrying firearms on a public fishing pier,²⁴⁴ burning the Mexican flag in public without a permit,²⁴⁵ and unfurling a banner outside a designated “speech zone.”²⁴⁶

Fourth Amendment law is unsettled when it comes to the validity of protesters’ arrests for engaging in protected expression. The Eighth Circuit held that arresting protesters solely for engaging in protected speech violates clearly established Fourth Amendment rights.²⁴⁷ Similarly, the Sixth Circuit held that the law was clearly established that a county fair patron could not be arrested for disorderly conduct based on his spewing profanities at police and a fairgrounds executive director when he was being escorted off the fairgrounds (apparently for wearing a shirt stating “Fuck the Police”).²⁴⁸

However, a federal district court applying circuit law concluded that officers who arrested a protester for anonymous comments made by others on his livestream after he posted the Chief of Police’s address did not violate clearly established Fourth Amendment law.²⁴⁹ Another district court held that officers did not act recklessly, negligently, or unreasonably in relying on a fellow officer’s determination that probable cause existed to arrest a protester for walking along the public sidewalks displaying “a gigantic Styrofoam middle finger emblazoned with the letters ‘Fuck cops.’ ”²⁵⁰ A district court also held that officers did not violate clearly established Fourth Amendment law when they arrested a protester for “interference” when he refused to relinquish a camera—something he otherwise had a right to possess under the circumstances—when ordered to do so.²⁵¹

As these decisions demonstrate, probable cause reasonableness standards make it difficult for courts to develop clearly established law concerning false arrest. As in other areas, egregious mass arrests and other actions not supported by any probable cause have been condemned as violating clearly established Fourth Amendment law. However, precedents show that even arrests closely related to, if not directly based on protected expression, have been the basis for qualified immunity for Fourth Amendment claims. The absence of precedents addressing similar or nearly identical circumstances has prevented courts from recognizing some clear constitutional violations.

In terms of excessive force claims, courts have consistently held that using less-lethal force, such as pepper spray and tear gas, against compliant and peaceful protesters violates clearly established Fourth Amendment law.²⁵² The same goes for using other types of force when arresting or subduing a compliant protester.²⁵³ Driving a train into a crowd of peaceful demonstrators may constitute excessive force, although the only decision reaching that conclusion is unpublished.²⁵⁴

However, as was true of some First Amendment claims, excessive force results sometimes hinged on whether the protest was wholly peaceful and non-disruptive. Courts held that the use of less-lethal munitions to disperse violent or unruly protests, tasing protesters in the context of “hostile” protest environments, and even kicking or choking protesters who refused to comply with officers’ commands did not constitute excessive force under the Fourth Amendment.²⁵⁵

Several district courts also rejected excessive force claims concerning the use of handcuffs or zip ties so tight they caused physical injuries to protesters. In some cases, courts reasoned that under circuit precedent, only force sufficient to break a person’s wrist violated clearly established Fourth Amendment law.²⁵⁶ The handcuffing/zip tie decisions demonstrate how the requirement that plaintiffs identify controlling precedent with the same facts undermines constitutional rights and prevents plaintiffs from being compensated for injuries. Absent a particular circuit court or Supreme Court decision (or perhaps more than one) holding that inflicting pain through bindings short of breaking the person’s wrist violates the Fourth Amendment, a protester plaintiff cannot recover even for serious injuries.

Several decisions in the Qualified Immunity dataset addressed the law as it relates to seizures under the Fourth Amendment. Some courts have held that warrantless seizures of protesters’ signs and other possessions violated the Fourth Amendment.²⁵⁷ By contrast, when officers had probable cause to believe the item was unlawful, or reasonable suspicion it could be dangerous, courts have upheld seizures of items including shofars and firearms.²⁵⁸ The fact that a shofar could “reasonably” be considered dangerous highlights the deference officers enjoy under Fourth Amendment cause and suspicion standards.

District courts applying circuit precedents disagreed concerning whether law enforcement uses of less-lethal weapons such as tear gas, pepper spray, and projectiles constituted “seizures” under the Fourth Amendment.²⁵⁹ Some decisions suggested that the answer turns on whether the protester’s movement was otherwise constrained, which implies that the use of less-lethal munitions by itself does not constitute a “seizure.”²⁶⁰ Other courts expressly held that the use of tear gas and other munitions can constitute a “seizure.”²⁶¹ At present, there is a lack of consensus or appellate authority on this important issue.²⁶²

Courts have also upheld brief detentions and searches incident to detention during public protests.²⁶³ They considered such actions justified as means of maintaining public safety and order. In some decisions, courts again relied on narrow factual distinctions relating to the detentions in determining whether they violated clearly established law. For example, although prior precedents in a circuit had established that a two-hour detention in which the plaintiff was handcuffed and detained in the back of a police cruiser was an unlawful seizure, a district court observed that in the case before it, protesters were not handcuffed, were not placed in the back of police vehicles, and were released after approximately one hour.²⁶⁴ Thus, the district court held, circuit precedents did not make clear to “every reasonable official” that detaining witnesses to a crime, without handcuffs and without moving them to a police vehicle, violated the Fourth Amendment.²⁶⁵

Fourth Amendment qualified immunity decisions exhibited some of the same pathologies as First Amendment decisions. While courts condemned some egregious law enforcement practices, they declined to recognize others as violations of clearly established law. Courts relied on narrow factual distinctions and the absence of controlling authority. Together the decisions have resulted in a largely under-developed law of public protest in the Fourth Amendment area.

B. Municipal Liability – Monell Claims

The Qualified Immunity dataset also collected information about plaintiffs’ claims against municipal defendants. Recall that to successfully hold a municipal defendant liable under section 1983, plaintiffs must demonstrate that the municipality directly violated their constitutional rights by, among other things, adopting and enforcing an unconstitutional “policy or custom.”²⁶⁶ In order to sue the municipality, plaintiffs must demonstrate that an official has violated their constitutional rights because of the municipal policy or custom.²⁶⁷

As shown in Figure 9, defendants were not successful at the motion to dismiss stage, as courts granted or upheld only eighteen of seventy-five (24%) dismissal motions. However, once cases reached the summary judgment stage, defendants were remarkably successful: 78% (113 out of 145) of municipal defendants’ motions for summary judgment were granted or upheld on appeal. Thus, although courts were inclined to allow plaintiffs to pursue discovery on Monell claims, they were overwhelmingly rejected at summary judgment.

Figure 9. Defense Motion Success Rates for Monell Claims

The data show that in most instances, municipal liability was rejected, owing to a lack of evidence of a “policy or custom.” Courts also frequently relied on a lack of underlying constitutional violation and plaintiffs’ failure to identify a policymaking official who acted in a manner that violated their constitutional rights.

Although municipalities represent deep financial pockets and are responsible for making law enforcement and other policies, the data confirm that Monell claims are among the most difficult for plaintiffs to pursue. Defendants’ efforts to defeat these claims were largely successful.

C. First Amendment Retaliation Claims

As discussed earlier, in Nieves, the Supreme Court adopted a probable cause standard for determining whether plaintiffs could bring a First Amendment retaliation claim.²⁶⁸ It also recognized a narrow exception for plaintiffs who could demonstrate they had been subject to unequal treatment. Concurring and dissenting Justices sounded various alarms about the Court’s reliance on probable cause. In general, the Retaliation Claim dataset, which includes all public protest retaliation claims subject to the Nieves standard, supports the dissenters’ objections and concerns.

A significant concern is that law enforcement officers possess broad discretion to charge protesters with even minor public disorder offenses. Under Nieves, an officer who can show a protester’s arrest for disorderly conduct, breach of peace, or other minor crimes is likely to have a complete defense to a First Amendment retaliatory arrest claim. As Justice Gorsuch observed in his partial dissent:

History shows that governments sometimes seek to regulate our lives finely, acutely, thoroughly, and exhaustively. In our own time and place, criminal laws have grown so exuberantly and come to cover so much previously innocent conduct that almost anyone can be arrested for something. If the state could use these laws not for their intended purposes but to silence those who voice unpopular ideas, little would be left of our First Amendment liberties, and little would separate us from the tyrannies of the past or the malignant fiefdoms of our own age. The freedom to speak without risking arrest is ‘one of the principal characteristics by which we distinguish a free nation.’²⁶⁹

Justice Gorsuch noted an additional shortcoming of the majority’s approach. When it folded the free speech claim into the unreasonable arrest inquiry, he asserted, the Court made a category error. As Justice Gorsuch explained, “the First Amendment operates independently of the Fourth and provides different protections. It seeks not to ensure lawful authority to arrest but to protect the freedom of speech.”²⁷⁰ By hanging so much on probable cause to arrest protesters and other speakers, the Court elided important free speech claims and interests.

In her dissent, Justice Sotomayor took aim at the exception to the Nieves rule, which requires protesters to produce “objective evidence that [they were] arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.”²⁷¹ She characterized the exception as unclear and irrational and argued it will lead to perverse results. Which protesters, she asked, are “otherwise similarly situated” to the plaintiff, and who is engaged in the “same sort of protected speech”?²⁷² Further, under the Court’s approach, protesters who have more direct evidence of retaliatory motive, including officers’ own statements, cannot rely on that evidence, but must instead produce hard-to-come-by comparison-based evidence.²⁷³

Justice Sotomayor surmised that plaintiffs who can satisfy the Nieves exception “predominantly will be arrestees singled out at protests or other large public gatherings, where a robust pool of potential comparators happens to be within earshot, eyeshot, or camera-shot.”²⁷⁴ However, she failed to consider that even those plaintiffs would be hard-pressed to gather such evidence in chaotic mass protest environments. Among other complications, during mass protests, ideological and other affiliations can be difficult to discern. Moreover, the exception incentivizes protest policing activities that data show to be already prevalent, including “herding” or “kettling” all participants regardless of specific offense, using tear gas and other force indiscriminately, and engaging in mass arrests. No officer can be accused of singling anyone out if everyone is subject to the same dragnets and other abuses. For a few reasons, there will, as Justice Sotomayor warned, be “little daylight between the comparison-based standard the Court adopts and the absolute bar it ostensibly rejects.”²⁷⁵

Finally, Justice Sotomayor worried that the majority’s approach would “breed opportunities for the rare ill-intentioned officer to violate the First Amendment without consequence—and, in some cases, openly and unabashedly.”²⁷⁶ For example, “a particularly brazen officer could arrest on transparently speech-based grounds and check the statute books later for a potential justification.”²⁷⁷ She and the other dissenters might also have raised the possibility that racial disparities in protester arrests might affect First Amendment retaliation claims.²⁷⁸

The Retaliation Claim dataset confirms many of the dissenters’ objections and concerns. Counting Nieves itself, there have been forty-one federal court decisions that applied the probable cause defense in protest-related cases. In twenty-seven of those decisions, or more than 65%, courts granted defendants’ motions to dismiss or for summary judgment with respect to First Amendment retaliation claims. An “absolute bar” may not have materialized. However, thus far, post-Nieves retaliation claims have not fared well at all in reported decisions. Courts granted or upheld dismissal at the pleading stage 56% of the time (10/18) and granted summary judgment to defendants 74% (17/23) of the time.

Table 3. Defense Motions in Post-Nieves Retaliation Cases
Posture	Motion Granted	Motion Denied	Total
MTD	10 (56%)	8 (44%)	18
SJ	17 (74%)	6 (26%)	23

The nature of the charges underlying dismissal or summary judgment substantiates Justice Gorsuch’s concern that “criminal laws have grown so exuberantly and come to cover so much previously innocent conduct that almost anyone can be arrested for something.”²⁷⁹ The criminal charges that ultimately defeated First Amendment retaliation claims included disorderly conduct (6), trespass (5), failure to disperse (4), disturbing the peace (3), violation of a curfew order (2), obstructing vehicular or pedestrian traffic (3), obstructing government functions (1), and jaywalking (1). As Justice Gorsuch predicted, probable cause to arrest protesters for even very minor or trivial offenses was enough to defeat the retaliation claims.

What about the exception based on evidence of unequal treatment? Courts addressed the exception on the merits in only 24% (10/41) of cases. In six of those decisions (60%), courts concluded there was insufficient evidence of unequal treatment or that the plaintiff was not “similarly situated” to the comparator class. In three decisions, courts concluded there were sufficient allegations or evidence of disparate treatment to defeat defendants’ motions to dismiss or for summary judgment. In one decision, the court concluded that the plaintiff had produced evidence that “similarly situated” speakers had not been arrested under the narrow exception Nieves recognized.²⁸⁰ In that case, plaintiffs demonstrated that no one had ever been arrested for the offense (chalking public property).²⁸¹

The post-Nieves results suggest courts are engaging in a wooden application of the probable cause standard, rather than a “commonsensical[]” analysis.²⁸² They have generally been willing to accept officers’ claims that arrests for minor offenses were reasonable under the circumstances, a conclusion that in most cases defeated protesters’ First Amendment retaliation claims.

Review of post-Nieves decisions also supports other criticisms. Justice Gorsuch criticized the majority opinion in Nieves for failing to recognize the First Amendment and Fourth Amendment as independent sources of rights.²⁸³ As he predicted, Nieves has encouraged lower courts to focus on the legitimacy of the arrest to the exclusion of free speech, press, and assembly concerns.²⁸⁴ While courts have been hyper-focused on probable cause to arrest, they have had little to say about the effects of the arrests on collecting petition signatures, public preaching and singing, videorecording protest arrests, and participation in protests involving LGBTQ rights, Occupy Wall Street, the Dakota Access Pipeline, Black Lives Matter, Juneteenth, and the removal of Confederate monuments.

The data do not provide a basis for assessing Justice Sotomayor’s concern about rogue officers suppressing speech. However, post-Nieves decisions have dismissed retaliation claims in which protesters were arrested while singing anti-LGBT songs, confronting public officials at public events, and videotaping protest policing. In these and other cases, there is at least the possibility that officers have targeted or suppressed speech based on its content.

Finally, commentators have warned that Nieves may have negative effects on newsgatherers.²⁸⁵ Even if reporters have a First Amendment right to record government officials at public demonstrations, the decisions show that probable cause to arrest reporters for some minor offense may effectively negate press rights by allowing officials to target newsgatherers.

Prior to Nieves, the Supreme Court recognized another possible exception to the probable cause requirement. If a municipality adopts an official policy of retaliation against a speaker or group, the Court held, it may be held liable even if there is probable cause to arrest the speaker.²⁸⁶ Assuming this exception survives Nieves, it applies only in exceptional situations when a governmental body adopts a policy of retaliating against an individual or group for protected expressive activities.²⁸⁷

The Retaliation Claims dataset suggests plaintiffs are not likely to pursue this type of claim. Only five of the forty-one decisions (12%) addressed such a claim. Three claims were dismissed for failure to allege or provide sufficient evidence of a policy or custom of retaliation or failure to establish an underlying constitutional violation.²⁸⁸ One district court concluded that the plaintiff had alleged sufficient facts in the complaint to demonstrate a policy or custom of retaliation or harassment.²⁸⁹ Another district court concluded genuine issues of material fact concerning whether a defendant had final policymaking authority precluded summary judgment on the municipal retaliation claim.²⁹⁰

Lower courts have not had much time to adjust to and apply the Nieves standard. However, evidence indicates that concerns about how the probable cause and other aspects of the decision will be applied have already surfaced in early cases.

D. Claims Against Federal Officials

As discussed, the Supreme Court has never formally recognized a First Amendment claim under Bivens for monetary damages against federal officials.²⁹¹ Recent decisions have expressed general skepticism concerning Bivens claims and rejected certain types of claims under the First Amendment and the Fourth Amendment.²⁹² The twenty-six decisions included in the Bivens Claims dataset suggest that while lower courts have long recognized protest-related claims against federal officials, the Supreme Court’s recent decisions have placed such claims in jeopardy.

The data show that lower courts have long recognized protesters’ ability to pursue First Amendment and Fourth Amendment Bivens claims. Courts recognized a cause of action for First Amendment or Fourth Amendment violations against federal defendants under Bivens in 81% (21/26) of protest-related decisions.

However, twelve, or nearly half, of these decisions are from the D.C. Circuit and D.C. district courts. The D.C. Circuit first recognized a First Amendment protest-related Bivens claim in Dellums v. Powell, which was decided in 1977.²⁹³ The District of Columbia is the site of iconic protest venues, including the grounds near the U.S. Capitol and Lafayette Park near the White House. National Park Service, U.S. Marshals officials, U.S. Capitol Police, Secret Service, and other federal officials are involved in policing and managing mass and other protest events in the District.

In addition to the D.C. Circuit, the Third, Fourth, Eighth, Ninth, and Tenth Circuits have also recognized First Amendment and Fourth Amendment Bivens claims in protest-related cases.²⁹⁴ Constitutional claims in these cases have run the gamut from violation of protesters’ right to speak and assemble in a public forum under the First Amendment to allegations of excessive force, false arrest, and unreasonable seizure under the Fourth Amendment. One might assume decisions recognizing these Bivens claims long predated the Court’s recent turn against expanding Bivens. However, ten out of fifteen lower court decisions (67%) recognizing such claims or assuming they are viable were decided during the last decade, when the Court was expressing increasing skepticism about them.

There is some evidence that the Court’s Bivens negativity is starting to affect lower court decisions in protest cases. In the four most recent decisions, including one by the D.C. Circuit regarding the clearing of Lafayette Park during the 2020 Black Lives Matter protests, courts expressly rejected protesters’ First Amendment and Fourth Amendment Bivens claims.²⁹⁵ The courts emphasized the Supreme Court’s admonition not to expand Bivens into “new” contexts and to apply a “special factors” analysis to prevent expansion of Bivens claims. Applying those standards, only one recent federal district court decision has upheld a protest-related Fourth Amendment claim and none have recognized a First Amendment claim.²⁹⁶

The loss of a Bivens remedy would leave protesters without full recourse against federal officials who violate their First Amendment or Fourth Amendment rights. Officials with the National Park Service, Secret Service, and other federal agencies would be immunized from damages claims. As the 2020 racial justice protests demonstrated, holding federal officials liable for protest policing that violates individuals’ constitutional rights remains critically important.

IV. STRENGTHENING PROTESTER RIGHTS AND REMEDIES

This study confirms that protesters face steep obstacles in terms of holding government officials accountable for constitutional injuries. If protesters cannot be made whole in the event of serious injuries, they may be deterred from organizing and participating in public demonstrations. Thus, what is at stake is not just the important compensation owed to injured protesters but also broader injuries to our culture of public dissent. This final Part offers five proposals to strengthen protesters’ rights and remedies.²⁹⁷

First, as other scholars have advocated, qualified immunity should be abandoned or reformed.²⁹⁸ This study confirms that courts are disposing of a significant percentage (approximately 60% at summary judgment) of protesters’ First Amendment and Fourth Amendment claims based on qualified immunity. The data also show that qualified immunity shields officials from liability in all but the most egregious cases (and even in some egregious cases), is based on an impossibly narrow standard of controlling authority and reduces opportunities for courts to innovate and develop substantive law. The Court or Congress should abolish qualified immunity or reform it by, for example, changing the liability standard or doing away with the “clearly established law” requirement.²⁹⁹ Protesters and others would then be better able to recover for patently unconstitutional content-based regulations, abusive uses of force, invalid arrests, and other unconstitutional behavior.

Second, also in the realm of qualified immunity reform, the Supreme Court or Congress should revisit Nieves v. Bartlett. This study shows that First Amendment retaliation claims are frequently pursued in protest cases. Early lower court applications of Nieves’s probable cause rule confirm the objections raised by Justices Gorsuch and Sotomayor. The Supreme Court should at least clarify that probable cause is not an absolute bar to retaliation claims. Some commentators have also urged Congress to overturn Nieves.³⁰⁰ If neither institution is willing to act, civil rights lawyers will need to focus on collecting the necessary evidence of disparate treatment to defeat the probable cause bar. As Justice Sotomayor has urged, lower courts can also adopt a “commonsensical[]” interpretation of the standard.³⁰¹

Third, as this study confirms, courts need to strengthen constitutional protections under the First Amendment and Fourth Amendment. The lack of strong First Amendment and Fourth Amendment rights reduces and undermines protesters’ constitutional protections. Applications of qualified immunity doctrine show that First Amendment doctrines allow officials to exclude protesters from public properties, enforce restrictive speech zones, and significantly displace demonstrations. Joanna Schwartz has criticized substantive Fourth Amendment law, specifically the “reasonableness” standard that allows officers to “stop, arrest, beat, shoot, or kill people who have done nothing wrong without violating their constitutional rights.”³⁰² Similarly, she argues, the Court’s “excessive force” doctrine has “left officers with few limits on their power.”³⁰³ The First Amendment and Fourth Amendment doctrines addressed in this study are longstanding. However, the Supreme Court should more clearly establish the limits they place on government officials when they regulate protest activity and lower courts should apply these limits in ways that better protect the rights of protesters.

Fourth, and relatedly, courts must publish more decisions elaborating on applications of First Amendment and Fourth Amendment rights. Figure 10 shows the number of published qualified immunity protest-related decisions over time available on Westlaw. The Qualified Immunity dataset covers four decades but includes only eighty-six published federal appellate court decisions. To be sure, there are likely more such decisions; but if they are not accessible, they cannot be used to analyze qualified immunity. If published appellate decisions are to be the primary sources of clearly established law, it is obvious that litigants and courts need significantly more guidance. The uptick in published decisions during the last five years is encouraging, even if it may partially be related to the 2020–2021 mass street protests. More published decisions should produce more clearly established limits on protest policing and other activities. The Supreme Court could also take steps such as loosening the requirement of controlling circuit precedent and allowing courts to consult other decisions or to rely on general principles, rather than requiring plaintiffs to identify in-circuit cases involving the same or similar factual circumstances.

Figure 10. Published Qualified Immunity Protest Decisions over Time

Fifth, and finally, governmental immunity doctrines must allow injured plaintiffs to hold all parties that cause injuries accountable. This means reducing or repealing municipal immunities and allowing injured protesters to sue federal officials under Bivens for First Amendment and Fourth Amendment violations. In my study, although plaintiffs frequently sued municipalities, nearly 80% of their Monell claims failed at summary judgment.³⁰⁴ As Joanna Schwartz has argued, “[o]ne way to make sure that people are paid what they are owed is to do away with Monell standards and hold cities legally responsible for the constitutional violations of their officers—just as private companies are held vicariously liable for the acts of their employees.”³⁰⁵ Protester plaintiffs must also have the opportunity to hold Secret Service, National Park Service, and employees of other federal agencies accountable. Lower courts have traditionally perceived no impediment to recognizing and adjudicating such claims.³⁰⁶ As some recent decisions demonstrate, the Supreme Court’s negativity regarding Bivens threatens to undermine the fundamental right to express political dissent.³⁰⁷ Although the Supreme Court has not expressly rejected protest-related First Amendment claims against federal officials, it has crept ever closer to doing so. As the Court itself has urged, Congress should codify Bivens by creating civil damages claims against federal officials who violate First Amendment, Fourth Amendment, and other constitutional rights.

CONCLUSION

Governmental immunities have had a profoundly negative effect on public protesters’ ability to obtain compensation for constitutional harms. This study’s quantitative analysis shows defendants’ significant success using qualified immunity to defeat a variety of First Amendment and Fourth Amendment claims. Its qualitative analysis illustrates how application of qualified immunity and other doctrines have defeated protesters’ claims, even when defendants have engaged in egregious constitutional violations.

The study lends additional support to general criticisms of qualified immunity and related doctrines. More broadly, it shows that failure to reform or abolish governmental immunities will affect the right to protest peacefully, safely, and with high confidence that officials who regulate and police protests will respect constitutional rights.

This Article offers several proposals for strengthening protesters’ remedies or at least limiting obstacles to monetary recovery. These include judicial or legislative repeal of qualified immunity, developing stronger substantive First Amendment and Fourth Amendment protections, abandoning municipal liability restrictions, and retaining civil liability for federal officials. Without serious reform, in most cases protesters will continue to be un- or under-compensated, public officials will continue to escape liability, and traditionally valued public protest activity will be encumbered and chilled.

97 S. Cal. L. Rev. 1583

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Timothy Zick*

* John Marshall Professor of Government and Citizenship, William & Mary Law School. I would like to thank Paul Hellyer for his outstanding assistance with the study design and the research supporting this Article. Special thanks also to Rebecca Roberts for her help updating the study databases. Any errors are, of course, my own.

“Bob Jones University” in the 21st Century: An Examination of Charitable Tax-Exempt Status and Religious Exemption from Title IX for Religious Colleges That Discriminate Against LGBTQ+ Students

July 2024July 2024Sydney Smith*

INTRODUCTION

On March 30, 2021, the Religious Exemption Accountability Project (“REAP”) filed a historic class action lawsuit with the goal of challenging the abusive conditions that many private religious colleges and universities have created for LGBTQ+ students. These unsafe conditions have been permitted for decades by the U.S. Department of Education’s policies surrounding religious freedom.¹ In the complaint, plaintiffs criticize the privileges—tax-exempt status and government funding—that are bestowed upon these institutions despite their discriminatory practices, denouncing the special treatment they receive simply for shrouding their behavior in religious justifications for protection. The complaint went on to criticize the religious exemption to Title IX, alleging that it “permits the Department to breach its duty as to the more than 100,000 sexual and gender minority students attending religious colleges and universities where discrimination on the basis of sexual orientation and gender identity is codified in campus policies and openly practiced.”²

There are many documented cases in which private religious institutions have engaged in discrimination against LGBTQ+ students without legal repercussions—often involving the enforcement of an “honor code” that prohibits certain types of gender and sexuality expression. For example, one student was expelled from Southwestern Christian University—a semester shy of graduation—when school officials discovered that she was married to a same-sex partner; the school pointed to a “lifestyle covenant” that prohibited “Lesbian, Gay, Bi-sexual and Transgender (LGBT) behavior or acts” to justify its decision.³ Another student, who is transgender, was expelled from California Baptist University after the school alleged that she committed fraud on her school application by listing her gender as “female.”⁴ Another student, after it was revealed that she was in a same-sex relationship, was barred from enrolling in her final semester at Grace University; she was told that she could re-enroll only “if she went through a restoration program involving mandatory church attendance, meetings with counselors and mentors, and regular communication with a school dean.” She was eventually expelled for continuing to date women, and the school demanded that she return thousands of dollars in federal financial aid money.⁵ The complaint filed by REAP alleged dozens of additional acts of discrimination against LGBTQ+ students. The named plaintiff on the lawsuit, Elizabeth Hunter, was subject to discipline from Bob Jones University after posting online about LGBTQ+ issues, including “her posts about reading a book with a lesbian main character, and about writing a book including a lesbian relationship.”⁶ Another plaintiff, Victoria Joy Bacon, alleged that school officials at Lipscomb University directed homophobic and transphobic statements against them, including slurs, and that resident advisors witnessed them being called slurs and refused to intervene.⁷ Nathan Brittsan only attended Fuller Theological Seminary for a few days before being expelled for being homosexual and married to a same-sex partner.⁸ Scott McSwain was told by Union University that he was “going to hell” and that he would be expelled if he did not attend sexual conversion therapy.⁹ These examples represent only a fraction of the reported discrimination that LGBTQ+ students have been subjected to by private religious institutions.

In the REAP lawsuit, plaintiffs argued that it is constitutionally impermissible for government funding to be distributed to private educational institutions that engage in discrimination against students, either through official policies and honor codes or unofficially through other channels. However, I argue that a bright line rule consistent with this position would be difficult to implement in any practical sense—not only because it is virtually impossible for schools to operate without any government funding at all, but also because taking any legislative action to restrict funding to these schools would be extremely unpopular in the current political environment. Under current IRS tax policies, it is unlikely that private religious institutions could have their tax-exempt status revoked for engaging in discrimination on the basis of gender identity or sexual orientation. The most promising route for holding schools responsible for such behavior by revoking tax-exempt status is the IRS promulgating a new regulation forbidding organizations that discriminate on the basis of gender identity or sexual orientation from being categorized as “charitable” for the purpose of tax exemption. The Court should then uphold this new policy by extending the holding of Bob Jones University v. United States beyond just racial discrimination. This order of operations is crucial, as it seems unlikely that a potential extension of Bob Jones University would be effective if not preceded by a new IRS policy. Congress, as the ultimate source of authority for the IRS, has the power to modify those policies which it considers improper. However, it seems likely that independent agency action coupled with judicial review would be more successful than getting the legislative branch to make the politically-unpopular decision to threaten the tax-exempt status of a large number of private religious colleges and universities. Even when Bob Jones University was engaging in blatant racial discrimination to such an extent that the majority of the public did not approve, it was the IRS and Supreme Court that took action, not Congress.

All of the schools mentioned above claim to be exempt from Title IX for religious reasons, and none has ever been subjected to substantive investigations or discipline from the federal government for civil rights violations against LGBTQ+ students. In the REAP lawsuit, plaintiffs argue that the religious exemption to Title IX, to the extent that it allows institutions to discriminate against students on the basis of gender identity and sexual orientation, is a violation of the Equal Protection Clause of the Fourteenth Amendment. However, I am highly skeptical that the Court would issue a holding consistent with this position any time in the foreseeable future. Thus, some practical stop-gap solutions are necessary. First, there needs to be a dramatic reconfiguration of the religious exemption to Title IX. At the very least, the current process of automatically granting religious exemption to any religious educational institution leaves a lot of ambiguity about what protections exist for students and what remedies are available; moreover, it gives implicit permission to such institutions to engage in more and more discriminatory behavior because they were given no conditions on which their exemption would be granted and they have no fear of losing the exemption. Beyond this, the enforcement mechanisms behind Title IX need to be bolstered so that schools operate with a more legitimate fear of negative consequences if they break the law. Currently, the Office for Civil Rights’ (“OCR’s”) only real enforcement mechanism is the threat of cutting off federal funding, but since this has never been done, it is a hollow threat.

There is an infinite number of questions that could be explored in relation to private religious colleges and universities and their religious free exercise rights. In this Note, I seek to limit my focus to just the issue of discrimination against members of the LGBTQ+ community—those who are gender-identity or sexuality minorities. For example, although Title IX governs the way that school administrations respond to sexual assault and sexual harassment allegations made by members of the campus community, this Note does not seek to address this facet of the Act’s effects other than to the extent that such actions (or lack of action) constitute sex-based discrimination (for example, failure to respond to sexual assault allegations made by LGBTQ+ students). I am aware of recent high-profile scandals at certain private religious institutions involving sexual assault and failure to follow proper reporting and investigation procedures laid out by Title IX; although important, addressing these systematic failures would distract from the religious exemption to Title IX and the disparate treatment that LGBTQ+ minority students are subjected to. Furthermore, this Note does not directly address discrimination perpetrated by primary or secondary schools; rather, the focus is placed on post-secondary educational institutions. Despite this narrow focus, the information and analysis provided in this Note will hopefully prove useful to other scholars who seek to apply my argument to a broader array of educational settings.

Scholarly literature has already examined the tax-exempt status question to a certain extent regarding the history and potential application of the Bob Jones University case. Some articles, like The Story of Bob Jones University v. United States: Race, Religion, and Congress’ Extraordinary Acquiescence, take the position that the case only came out the way it did because race is treated much differently than other protected categories.¹⁰ This is somewhat contrary to the argument of this Note: the holding in Bob Jones University should be extended to protect students against discrimination beyond that which is solely on the basis of race. Other articles criticize the Court’s holding in Bob Jones University as overly broad and failing to take into consideration the school’s viable religious liberty claims. One such article, Bob Jones University v. United States: A Political Analysis, highlights what it refers to as the “hazards” of the Supreme Court getting involved in such questions, holding out free exercise of religion as an important principle. Despite this article’s fundamental disagreement with my proposal that the holding in Bob Jones University be extended, the article contributes a great amount of political analysis of the history of tax-exempt status for religious institutions and the cases that have developed the Court’s jurisprudence on the issue.¹¹ This information allowed me to more fully understand how policy and jurisprudence might most effectively evolve in the future. Some articles, such as The Sexual Integrity of Religious Schools and Tax Exemption, touch on the Obergefell v. Hodges decision and how the recognition of same-sex couples’ fundamental right to marry may impact the civil rights owed to them in educational contexts. The aforementioned article notably takes the position that the Court’s decision in Obergefell is explicitly inconsistent with “applying Bob Jones to the disadvantage of religious schools that maintain sexual conduct policies”—which is at odds with the central position of this Note.¹² Other articles, such as Discrimination in the Name of the Lord and Discriminatory Religious Schools and Tax-Exempt Status, offer relevant analysis of the interaction between free exercise by religious universities and the civil rights protections afforded to students; however, their decades-old perspectives require updating in light of relevant legal and political developments.

Scholarly literature has also explored the issue of religious exemption from Title IX. One article, Should Religious Groups Be Exempt from Civil Rights Laws?, delves deeply into the issue, examining civil rights protections for race, sex, and sexual orientation.¹³ However, there is a gap in this article, written in 2007, which does not account for new developments in the law surrounding the definition of discrimination “on the basis of sex,” especially in the context of civil rights laws like Title IX and Title VII. This has important implications for what is thus categorized as discrimination on the basis of sex. In the U.S. Supreme Court’s October 2019 term, the Court released an opinion in Bostock v. Clayton County that held, “[a]n employer who fires an individual merely for being gay or transgender violates Title VII.”¹⁴ This opinion relies on a new (to the Supreme Court’s jurisprudence) definition of discrimination on the basis of sex. If this definition is applied to Title IX as well, there may be implications for how colleges and universities must act in order to remain in compliance with Title IX.

One work of scholarship stands out in particular for its similarity to this Note’s contribution to the debate. In 2022, the Brigham Young University Prelaw Review published an article entitled The Constitutionality of the Title IX Religious Exemption. This article responds to the Hunter v. Department of Education lawsuit, but its author, Madelyn Jacobsen, makes the opposite argument from mine by arguing that the religious exemption to Title IX is “crucial for maintaining [religious] diversity in higher education” and that restricting or eliminating the religious exemption to Title IX would necessarily constitute a restriction on free exercise of religion.¹⁵ Jacobsen mimics the language often used in legal disputes surrounding free exercise of religious “closely held beliefs.” This Note contributes a much-needed alternative perspective on the debate where the Jacobsen article left a clear gap. Another work of scholarship stands out in particular for the similarities that the author brings in personal background that contribute to the article’s perspective. The author of Loving the Sinner: Evangelical Colleges and Their LGB Students notes that she attended Wheaton College, a private Christian college that is one of the many targets of the Hunter v. Department of Education lawsuit, and reflects on this experience as being “encased in a protective coating of ignorance and denial” about her homosexuality.¹⁶ Because of this background, the author homes in on the personal experiences of LGBTQ+ students at private religious colleges and carefully considers the stakes of all major actors: the religious institution’s interest in maintaining the pure religious character of its student body and minority students’ interest in expressing themselves fully while still attending the college in question. The author conducts analysis through a framework of “institutional religious freedom,” focusing mainly on sexual codes of conduct, voluntary association, and third-party burdens. This Note adopts a similar perspective, due to my similar personal upbringing, but shifts the analytical angle from the religious freedom owed to institutional actors to the civil rights owed to minority students.

I. BACKGROUND

A. Government Funding and Tax-Exempt Status for Private Religious Colleges

Public institutions have historically provided the setting for legal challenges to laws that involve education; colleges like the University of Michigan and University of Texas have famously been involved in litigation over segregation and affirmative action because of their receipt of significant funds from state and federal sources. There is a bit more uncertainty surrounding the applicability of such laws to private institutions. Although private religious colleges may not be fully state sponsored like public institutions, almost none of them operate entirely independently from the government. Federal funds are given to private religious colleges through a variety of means, including loans and grants for construction and renovation of campus facilities;¹⁷ noncategorical state “capitation grants”¹⁸; Medicare reimbursements for campus medical centers; National Institute of Health (“NIH”) grants for science departments; and Health Resources and Services Administration grants to medical, dental, or nursing programs.¹⁹ Federal student loans, tuition tax credits, and federal Pell Grants allow colleges to be able to raise tuition rates without lowering enrollment.²⁰ Beyond direct grants and loans, private religious colleges also receive a tremendous amount of assistance from the savings received through tax-exempt status.²¹ Furthermore, gifts to religious colleges are treated as charitable deductions for income-tax purposes, which incentivizes giving.²² Thus, the perception that private educational institutions are independent from the public sphere is a myth.

An oft-repeated argument about the private sector (including privately-owned businesses and private colleges and universities) is that it should be subject to fewer government restrictions and regulations because of its independence from the public sector. However, since the vast majority of private religious colleges accept millions of dollars of public funds each year, plaintiffs in the Hunter lawsuit argued that there are constitutional restrictions on how those funds may be used. Plaintiffs acknowledge that the receipt of public funds is permissible; “[h]owever, when the government provides public funds to private actors . . . the Constitution restrains the government from allowing such private actors to use those funds to harm disadvantaged people.”²³ In light of this, it would be inconsistent to allow institutions that receive public funds or that benefit from tax-exempt status to discriminate against sexual and gender minority students.

This stance represents a logical extension of the U.S. Supreme Court’s 1983 opinion in Bob Jones University v. United States, in which the Court held that Bob Jones University (“BJU”), a private religious college, did not qualify as a tax-exempt organization under §501(c)(3) of the Internal Revenue Code because of its racially discriminatory policies.²⁴ In 1980, the IRS had issued a ruling providing that a private school with a racially discriminatory policy does not qualify as “charitable” within the common law concepts reflected in the Internal Revenue Code. The Court held that “an institution seeking tax-exempt status must serve a public purpose and not be contrary to established public policy.”²⁵ BJU continued to enforce its policy of denying admission to applicants who engaged in interracial marriage or applicants who were known to advocate for interracial marriage. In light of this discriminatory policy, the IRS revoked BJU’s tax-exempt status. The university was asked to pay a portion of federal unemployment taxes for a year, and then filed a refund action in federal District Court; the IRS filed a countersuit claiming millions of dollars in unpaid taxes.²⁶

The Court analyzed Internal Revenue Code (“IRC”) §501(c)(3)—the portion of the Internal Revenue Code that sets forth regulations that apply to charitable organizations—against the backdrop of the congressional purpose, which was to give preferential treatment to charities in exchange for the benefit that they provide to society, and their relationship with the public interest.²⁷ The Court invoked the history of charitable tax-exempt status; the status was originally conceived as similar to charitable trusts, which could not “be illegal or violate established public policy.”²⁸ In light of this purpose, the majority held that in order to qualify for tax-exempt status, an institution must “demonstrably serve and be in harmony with the public interest,” and that “[t]he institution’s purpose must not be so at odds with the common community conscience as to undermine any public benefit that might otherwise be conferred.”²⁹ Indeed, any institution that engaged in racial discrimination was excluded from the category of those that confer a public benefit and could thus be excluded from the charitable category and stripped of the accompanying tax-exempt status. Therefore, the IRS’s action stripping BJU of its charitable tax-exempt status was a valid exercise of its congressionally-granted authority.

One portion of the Bob Jones University decision that is potentially relevant to the question before us is which level of scrutiny the court should apply. It is worth noting that this analysis should not be interpreted to mean which level of scrutiny should be applied when sex is involved—a question that would involve its own analysis of what is included in the definition of “sex discrimination.” Indeed, the Court did not craft its ruling in Bob Jones University based on whether race is a suspect classification that triggers the application of strict scrutiny. Rather, the question is how closely the Court should scrutinize government policies that implicate religious freedom. In Bob Jones University, the Court applied strict scrutiny to the potential burden that the IRS rule placed on religious freedom for the university. Thus, this means that the relevant balancing test that the Court would have to consider in judicial review of a new IRS rule would be whether there is an overriding interest in protecting the LGBTQ+ community from discrimination that outweighs the religious freedom of private religious universities. In engaging in this examination, the Court should come to the same conclusion as the similar question, from Bob Jones University, regarding racial discrimination.³⁰

The First Amendment provides a baseline level of protection for religious freedom, providing that the government “shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”³¹ The Court’s jurisprudence regarding the Free Exercise Clause has evolved over time, beginning with a compelling interest test and eventually departing from it in Employment Division v. Smith.³² In Smith, the majority delivered a scathing criticism of the compelling interest test, claiming that its application would produce a “constitutional anomaly” and “a private right to ignore generally applicable laws.”³³ Smith explicitly rejected the compelling interest test’s expansion of the First Amendment’s protection of religious liberty and asserted that the Free Exercise Clause

does not relieve an individual of the obligation to comply with a law that incidentally forbids (or requires) the performance of an act that his religious belief requires (or forbids) if the law is not specifically directed to religious practice and is otherwise constitutional as applied to those who engage in the specified act for nonreligious reasons.³⁴

It may surprise a modern audience to learn that Justice Antonin Scalia wrote the majority opinion in Smith, which places limits on religious freedom when it clashes with a compelling governmental interest.³⁵

Congress reacted explosively to this inflammatory Supreme Court decision, fearful that it may lead to infringement on the free exercise of the religious beliefs of Christians. Shortly after Smith was decided, Congress passed the Religious Freedom Restoration Act (“RFRA”), which expanded the religious freedom protection granted by the First Amendment by legislatively establishing a compelling interest test (a test that had been explicitly rejected by the judicial branch). Under this new law, whenever the government imposes a burden on religious liberty, the courts are required to apply strict scrutiny in their analysis of the government’s justification.³⁶ RFRA prohibits the government from substantially burdening the free exercise of religion, “even if the burden results from a rule of general applicability,” unless the government is able to demonstrate that application of the burden (1) furthers a compelling governmental interest; and (2) does so by the least restrictive means.³⁷ Because of RFRA’s new permissive standard, the Court would be required to analyze any potential burden on the free exercise of religion by private religious institutions under strict scrutiny, using a compelling interest test. This law makes it more difficult to hold religious institutions responsible for engaging in discrimination against LGBTQ+ individuals because it provides such strong protections for religious groups against government intervention.

Government funding and tax-exempt status are one important piece of the puzzle when it comes to protecting LGBTQ+ individuals from experiencing discrimination at the hands of their private religious institutions. The other piece is Title IX, a historic legislative act drafted in the Civil Rights era to prevent discrimination in the realm of education, which applies certain standards to all educational institutions that are the recipients of government funding, including private religious schools. However, the efficacy of the Act is undermined by the blanket exemptions granted to religious organizations. The process for granting religious exemptions to Title IX should either be vastly reworked, or the exemptions should be done away with entirely. I will analyze these options and consider the legality and practicality of each option.

B. Title IX and the Religious Exemption

Title IX provides that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”³⁸ In Cohen v. Brown University, the Court recognized Congress’s dual objectives in passing Title IX: (1) “to avoid the use of federal resources to support discriminatory practices;” and (2) “to provide individual citizens effective protection against those practices.”³⁹ Specifically, Title IX, also known as the Education Amendments of 1972, was intended to update Title VII of the Civil Rights Act, which had been passed in 1964. Title VII prohibits employment discrimination based on race, color, religion, sex, and national origin, but Title IX was intended to expand that prohibition against discrimination to the education system as well.⁴⁰ Without Title IX, the only aspect of the education system in which discrimination on the basis of sex would be prohibited is discrimination against employees of the school; Title VII left students largely unprotected.

Regulations that govern the implementation of Title IX are set forth in the Code of Federal Regulations (“CFR”), and the Office for Civil Rights (“OCR”)—a department within the U.S. Department of Education—has the legal authority to enforce Title IX.⁴¹ The OCR performs invaluable work: investigating complaints, ensuring that institutions are complying with necessary regulations, and even providing technical assistance.⁴² One of the most important tools that the OCR wields is the right to conduct compliance reviews. This provides a significant incentive for schools to comply with its legal obligations because if it is found to violate Title IX, there can be harsh consequences—at least on paper. First, an institution is given the option to voluntarily remedy the violation. If it refuses to do so, OCR may: (1) initiate a termination of the institution’s federal funding, or (2) refer the case to the U.S. Department of Justice to pursue a case in court.⁴³ However, these threats have proven hollow, as no university has yet had its federal funding revoked—a bold move that would send shockwaves through the higher education community in the United States. Separately from federal agency enforcement of Title IX through administrative channels, individuals have the authority to initiate proceedings against allegedly discriminatory institutions. An individual has the right to file a lawsuit in court alleging Title IX violations and to file a complaint with the OCR, but the former is not required to have standing for the latter.⁴⁴ Courts may order specific remedies or may award monetary damages to victims of sex discrimination who file lawsuits. Given that the OCR’s threat of revocation of federal funding is a largely hollow threat, the “implied private right of action” of Title IX has “given Title IX its teeth” and serves as a crucial enforcement mechanism.⁴⁵

Title VII contains a religious exemption section which restricts the protections afforded by the new piece of legislation. Section 2000e-1 states, “[t]his subchapter shall not apply to an employer with respect to the employment of aliens outside any State, or to a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such . . . .”⁴⁶ Thus, when Congress recognized that the protections of Title VII were exclusively restricted to the employment sector and set out to expand it to the education sector, Congress inserted a similar section exempting religious organizations from Title IX as well. Despite Title IX’s illusion of broad protection against discrimination, § 106.12 goes on to exempt educational institutions that are controlled by religious organizations, declaring that the act “does not apply to an educational institution which is controlled by a religious organization to the extent application of this part would not be consistent with the religious tenets of such organization.”⁴⁷ In the cases of both Title VII and Title IX, the religious exemption sections were crafted as a part of a political compromise with the religious right to pass the legislation.⁴⁸

For most of the history of Title IX, very few institutions sought religious-based exemptions. However, in 2013, there was a sudden increase in the number of official claims of religious exemption. In fact, between 2013–2021, more than 120 religious institutions claimed exemption from Title IX.⁴⁹ This development can largely be traced back to evangelical fears about the Obama administration—anticipation of a crackdown on religious freedom. Though it was not to the extent that the American evangelical community expected, the Obama administration did seek to expand the protections of Title IX. On October 26, 2010, the executive branch issued guidance to schools to include LGBTQ+ individuals under Title IX protections. The letter defined gender-based harassment under Title IX in a new way, labeling it sex discrimination “if students are harassed . . . for failing to conform to stereotypical notions of masculinity and femininity.”⁵⁰ The letter goes on to explicitly state that “Title IX does protect all students, including lesbian, gay, bisexual, and transgender (LGBT) students, from sex discrimination.”⁵¹

The Code of Federal Regulations lays out a very basic framework for how exemptions are to be granted. C.F.R. § 106.12, governing Educational Institutions Controlled by Religious Organization, suggests that no formal process must be followed in order to secure a religious exemption to Title IX..”⁵² The further relevant procedures provided by the Code do not serve to confer exemption on the institutions, but only to reassure the institutions that they are eligible for those exemptions. Indeed, even without such advance assurance of religious exemption, if the Department of Education notifies an institution that it is under investigation for non-compliance with Title IX, the institution may choose to raise its exemption at that time. To do so, the institution shall submit a letter to the Department of Education’s Assistant Secretary, “identifying the provisions of this part which conflict with a specific tenet of the religious organization”—regardless of whether or not the institution already sought assurance before the fact.⁵³ An institution may write to the Department of Education’s Assistant Secretary to seek assurance of their religious exemption. However, “[a]n institution is not required to seek assurance from the Assistant Secretary in order to assert such an exemption.”⁵⁴ Consistent with this interpretation of the automatic triggering of this exemption, in 1976, President Oaks of Brigham Young University wrote a letter to the Department of Education that he clarified was notifying the Department of BYU’s exemption from Title IX (rather than requesting exemption). President Oaks specifically noted that BYU “did not concede that the Department of Health, Education and Welfare has the power to review our claim of exemption on the ground of religion.”⁵⁵ Thus, there is a long history—stretching back almost as far as the origin of the exemption itself—of the automatic triggering mechanism of the religious exemption to Title IX.

Once exemptions started being requested, the Department of Education started approving requests—seemingly indiscriminately: “In the nearly 50 years since the enactment of Title IX, the Office for Civil Rights has never denied a claim to religious exemption. As a result, religious educational institutions decide for themselves whether and to what degree they are exempt from Title IX.”⁵⁶ In 2014, the Department of Education—under the Obama administration—issued guidelines making it clear that transgender students are also protected under Title IX. This guidance, paired with the growing contemporary evangelical panic surrounding transgender people, seems to have drastically increased the number of schools seeking exemptions from Title IX. In response to this avalanche of requested (or declared) exemptions, a number of Democratic Senators asked the Department of Education to publish a list, for the first time, of the colleges that specifically request waivers. In the letter, the Senators cited taxpayers’ “right to know when institutions of higher education—as recipients of tax dollars—seek and receive exemptions under Title IX.”⁵⁷ The Department of Education released the requested list, revealing that at the time 248 schools had been granted exemption to Title IX. Under the Trump administration, new regulations reversed the policy of transparency. However, under the Biden administration, the policy was again reversed; today, an official list is once again maintained by the Department of Education’s Officer for Civil Rights, along with a copy of the office’s response to each request.⁵⁸

Title IX’s private enforcement mechanism was put to use on March 9, 2020, when an individual filed a complaint with the OCR, alleging that Brigham Young University (“BYU”) discriminates against students on the basis of sex. BYU is a private university with enrollment of almost 35,000 students, and is affiliated with the Church of Jesus Christ of Latter-day Saints.⁵⁹ The university is known for its strict honor code, which until recently included a section explicitly titled “Homosexual Behavior” that banned students from “all forms of physical intimacy” with a member of the same sex.⁶⁰ That section was removed in early 2020, inspiring a number of members of the campus community to publicly come out as LGBTQ-identifying. However, the elation sparked by this move was short-lived; shortly after, the Church of Jesus Christ of Latter-day Saints clarified that same-sex romantic behavior remains incompatible with official school rules. In a public letter, Church Educational System Commissioner Elder Paul V. Johnson clarified that “[t]he moral standards of the Church did not change with the recent release of the General Handbook or the updated Honor Code. . . . Same-sex romantic behavior cannot lead to eternal marriage and is therefore not compatible with the principles included in the Honor Code.”⁶¹ This announcement was met with protest, as many students felt like they were experiencing whiplash with regard to the Honor Code—and even felt trapped if they came out while believing themselves to be in a newly-safe environment.⁶² It was in the wake of this policy reversal that an unnamed individual filed a complaint with the OCR, alleging that BYU was engaging in discriminatory behavior.

In response to the complaint, the OCR launched a rare investigation into the private religious university. The complaint specifically alleged that BYU “engages in the different treatment of students who are involved in same-sex romantic relationships by stating that such relationships are not compatible with the principles of the University’s Honor Code.”⁶³ In a letter dated October 21, 2021, the OCR notified BYU that it was opening an investigation into the individual’s complaint. BYU responded on November 19, 2021 by requesting assurance from the U.S. Department of Education that the university is exempt from Title IX and its accompanying implementing regulations.⁶⁴ On January 3, 2022, the Department responded by assuring BYU of its exemption from a number of specific regulations under Title IX “to the extent that application of those provisions would conflict with the religious tenets of the University’s controlling religious organization”—including regulations involving admission, recruitment, housing, counseling, financial assistance, athletics, and comparable facilities.⁶⁵ Thus, in a letter dated February 8, 2022, the OCR concluded that it lacked jurisdiction to address the individual complainant’s allegations. Although it was rare for the OCR to go through the motions of initiating a Title IX investigation into any private religious college for alleged discrimination against LGBTQ+ students, the investigation was ultimately halted prematurely because the religious exemption to Title IX blocked the OCR from exercising jurisdiction over the complaint. If the complaint had been filed against any other educational institution—a public university, or even a private one without a religious affiliation—the OCR would have initiated a fact-finding mission and published the results. This exposes the university to significant liability and serves as a deterrent to the implementation of discriminatory policies that violate Title IX.

Again, the text of the religious exemption to Title IX reads as follows: “[Title IX] does not apply to an educational institution which is controlled by a religious organization to the extent application of this part would not be consistent with the religious tenets of such organization.”⁶⁶ Thus, there are two parts to the religious exemption to Title IX that should be examined separately: (1) Title IX does not apply to an institution “controlled by a religious organization” (with “control” defined very broadly), and (2) institutions are exempt only to the degree that their “religious tenets” conflict with Title IX. Below, I will elaborate on both elements.

1. “Controlled by a Religious Organization”

Title IX does not apply to an educational institution “controlled by a religious organization.” There are six different ways that an educational institution may establish that it is controlled by a religious institution: (1) it is a school or department of divinity; (2) it requires faculty, students, or employees to be members of or espouse personal belief in the religion of the controlling organization; (3) it contains an explicit statement that it is controlled be a religious organization in its charter, the members of its governing body are appointed by the controlling organization, and it receives a significant amount of financial support from the controlling organization; (4) it has a doctrinal statement along with a statement that members of the institutional community must engage in the religious practices of or espouse a personal belief in the statement; (5) it has a published institutional mission that is approved by the governing body of the controlling organization and is predicated on religious tenets; or (6) other sufficient evidence as laid out in 20 U.S.C. § 1681(a)(3).⁶⁷ This inclusive qualifying language is problematic; with “control” defined so broadly, potentially up to 1,000 colleges are encompassed by the words “controlled by a religious organization.”

2. Conflict Between “Religious Tenets” and Title IX

There is an age-old debate in American legal jurisprudence about how to determine whether an action—or inaction—is actually motivated by “religious belief.” This question is especially difficult in the context of an organization, not just an individual. If construed too broadly, there is a risk that a religious organization might simply do anything or discriminate against anyone on any basis and then fall back on a loose claim that the action was based on religious belief. Therefore, it is important to know where the line is drawn. The A.S. Singleton memo, written by the Assistant Secretary for Civil Rights at the U.S. Department of Education in 1985, instructs that religious exemption claims be consistent with the requirements of the First Amendment and the Religious Freedom Restoration Act.⁶⁸ The Office for Civil Rights purports to follow a special procedure to determine whether a provision of Title IX conflicts with religious tenets, requiring that schools submit a statement reflecting either their religious tenets or religious practices.⁶⁹ “A school claiming an exemption may refer to scripture, doctrinal statements, catalogs, statements of faith, or other documents.”⁷⁰

When administration officials from educational institutions write to the Department of Education to formally request a religious exemption from Title IX, the Civil Rights Office writes—and publicly publishes—a response letter. In each letter, they note that the requested exemptions must be based on actual religious tenets, and if the “governing organization” does not agree that those are actual religious tenets, the exemptions may not be valid.⁷¹ This creates the impression that religious exemptions to Title IX must be claimed on the basis of legitimate religious beliefs; however, the reality is that the Court is unwilling to scrutinize such organizational claims. Generally, the Court has thus far shied away from articulating a bright line test for what constitutes a religious belief, seemingly out of fear of being under-inclusive and resulting in the legal condemnation of “religiously-motivated” activities that the Court wishes to protect. This hesitation has had an unfortunate impact on the amount of scrutiny applied to explanations for why religious educational institutions seek to be exempt from Title IX.

II. ARGUMENT AND ANALYSIS

In the following section, I will consider two main aspects of the issue of the constitutionality of discrimination by private religious institutions against LGBTQ+ students: the question of the tax-exempt status of those institutions and the question of those institutions’ religious exemptions to Title IX.

Race permeated the Bob Jones University case so thoroughly that scholars have struggled to extract any universal principles from it that are separate from race.⁷² For one thing, the details of the circumstances surrounding the case involve overt racial discrimination: BJU maintained a policy forbidding interracial dating, a regulation that succeeded an outright ban on African-American students enrolling in the university as a seeming-concession to changing cultural attitudes toward racism.⁷³ The language of the majority opinion makes it hard to ignore the racial elements that motivated the Court’s decision—especially with an eye to the historical effects of the systematic exclusion of African Americans from the educational system in the United States. However, I propose that the Court’s holding in this case is consistent with an extension to include other protected groups of people (specifically, members of the LGBTQ+ community). The most effective way to implement such an extension of legal protection is through the Court granting certiorari for a new case that presents a ripe opportunity and then issuing a holding that clarifies the extent of the application of Bob Jones University. An appropriate case should follow an IRS action, much like the IRS action taken against BJU; absent those circumstances, a lawsuit like the one REAP filed in 2021 is unlikely to be effective. In Bob Jones University, the Court held that as an official extension of Congress’s authority, “the IRS has the responsibility, in the first instance, to determine whether a particular entity is ‘charitable’ for purposes of § 170 and § 501(c)(3). This in turn may necessitate later determinations of whether given activities so violate public policy that the entities involved cannot be deemed to provide a public benefit worthy of ‘charitable’ status.”⁷⁴ It is the duty of the IRS in this instance to recognize the injustice of discriminatory anti-LGBTQ+ policies at educational institutions. The Court noted that these determinations should be made “only where there is no doubt that the organization’s activities violate fundamental public policy.”⁷⁵ Here, this is obviously the case, exemplified by Executive Orders and legislation forbidding discrimination against LGBTQ+ individuals and U.S. Supreme Court decisions like Obergefell and Bostock.⁷⁶

Even assuming that such protections are put into place, might these institutions be allowed to side-step any attempted regulation by opting out of receiving federal funds entirely and agreeing to pay federal taxes? A small number of private Christian colleges in the United States have attempted to opt out of federal funds entirely. Hillsdale College, a private Christian college in Michigan, refuses to accept any federal funds, remaining independent on principle.⁷⁷ Would Hillsdale College or another similar institution thus be allowed to discriminate against their LGBTQ+ students? One of the main arguments of this Note has been that acceptance of federal funding and tax-exempt status creates a legal responsibility for educational institutions to abide by generally-applicable laws, including civil rights laws. But is the inverse true? Does independence from taxpayer dollars immunize an institution from punishment for refusing to follow federal rules? This question forces us to turn to the second major issue of this Note: Title IX.

The complaint filed by REAP in Hunter v. Department of Education suggests that religious exemptions to Title IX are blanketly unconstitutional. However, this stance is unlikely to be adopted in the current political climate, in which religious freedom is highly prized and anti-LGBTQ+ discrimination is not at the forefront of most Americans’ minds. I predict that the Court will be unwilling to find that religious exemptions to Title IX are blanketly unconstitutional and the next step is to challenge the legality of the process by which such exemptions are granted. Automatic exemptions should be presumptively suspect. A better process would be for colleges to be required to request exemptions and have them formally approved. This would place the right to consider the reasoning behind the exemption requests and their validity in the hands of the executive branch—the Department of Justice. Though it is important to consider the applicability of Title IX to institutions that opt out of the public sphere, we must keep in mind the likelihood of many colleges adopting this approach. Even though a small handful of institutions have been able to stay afloat without federal funds—albeit for a short period of time—federal funds still constitute the lifeblood of most educational institutions in the United States. I find it unlikely that this “independence” movement will catch on past the small ranks that it claims today.

As I briefly mentioned above, before any legal action may be taken to protect the vulnerable LGBTQ+ population at educational institutions that are abusing the tax-exempt status they enjoy as charitable organizations, the source that holds the authority to take action must be identified. The Court considered this question in Bob Jones University. Given that Congress is the source of IRS authority, it has the discretion to modify IRS rulings. However, in the “first instance,” the IRS is responsible for construing the IRC, which courts then exercise review over. “Since Congress cannot be expected to anticipate every conceivable problem that can arise or to carry out day-to-day oversight, it relies on the administrators and on the courts to implement the legislative will.”⁷⁸ This proper order of operations is demonstrated in the successful alteration of rules that govern tax-exempt status in the Bob Jones University case. It was the IRS that first acted, modifying the IRC to exclude organizations that discriminate on the basis of race from the definition of “charitable.” This is why I argue that it would be most practical and effective for legal action to start with the IRS and proceed from there with an inevitable challenge before the judicial branch.

The current iteration of the U.S. Supreme Court, the Roberts Court, has skewed dramatically toward religious organizations and the free exercise of religious beliefs. According to a 2022 New York Times article, the Roberts Court “has ruled in favor of religious organizations in orally argued cases 83 percent of the time”—which is far more than any other recent Court.⁷⁹ This trend is especially pronounced when the religious organization in question is Christian, as there is a substantial Christian majority currently sitting on the Court, both Catholic and Protestant. Beyond the Court’s favoring of religion, the U.S. Congress is also very reluctant to take any steps to limit religious freedom or take away power from religious organizations (like powerful private religious educational institutions). Thus, even if the Court were willing to uphold a law seeking to hold private religious educational institutions accountable for discrimination, such a law would likely not even make it through both chambers of Congress in the first place. With regard to religious exemptions to Title IX, the same political forces are likely relevant here, creating another practical roadblock. One potential way that this roadblock may be overcome is a change in the social and political climate in the United States. This was crucial to how the Bob Jones University case ended up with the outcome that it did—the Court was motivated by the confidence that a majority of the American public despised racial discrimination and would support eradicating it from the educational system to whatever extent possible. Though BJU maintained its racially discriminatory policies, it was very much in the minority among its peer institutions. The legality of anti-miscegenation laws was put to the test in 1967, when the Court struck down a Virginia state law that banned interracial marriage.⁸⁰ BJU maintained policies forbidding interracial marriage almost two decades later. The public opinion had reached a tipping point such that religious freedom was not accepted as an excuse for overt racial discrimination and a ban on interracial marriage was much less widely accepted by that time. However, I believe that today, the United States has yet to reach this tipping point regarding religious freedom and LGBTQ+ discrimination.

This unwillingness to protect vulnerable LGBTQ+ individuals from religiously-motivated discrimination is exemplified by some of the Court’s decisions over the past five years. In 2017, the U.S. Supreme Court heard a case called Masterpiece Cakeshop v. Colorado Civil Rights Commission, in which the owner of a cake shop refused to make a wedding cake for a same-sex couple. The Court invalidated a ruling by the Colorado Civil Rights Commission that the cake shop had violated the civil rights of the same-sex couple; here, the Court clearly stood on the side of religious liberty and free exercise over the protection of civil rights.⁸¹ In 2021, the Court heard a case called Kennedy v. Bremerton School District, holding that a public school football coach was not prevented by the First Amendment from praying on the field with his players in what the court called “a personal religious observance.”⁸² Here, the Court continued to plow forward in carving out new rights to the free exercise of religious belief, which it had previously not recognized. In 2022, the Court heard 303 Creative v. Elenis, in which an individual Christian business owner challenged a Colorado law that banned businesses from discriminating against LGBTQ+ customers. During oral arguments, Justice Alito drew a distinction between discrimination on the basis of race and on the basis of sexual orientation, which would be consistent with a position that seeks to distinguish the Bob Jones University precedent from the Hunter v. Department of Education case.⁸³ These recent cases are among a series of examples of the Court demonstrating a strong preference for religion over other concerns—civil rights laws, anti-discrimination laws, etc.⁸⁴

One of the reasons that I advocate for either the revocation of tax-exempt status from private religious institutions that discriminate against LGBTQ+ students or the enforcement of Title IX (over claimed “religious exemptions” by those institutions) is that tax-exempt status and government funding should be considered a privilege, not an automatic and irrevocable guarantee. Clearly, charitable tax-exempt status was originally intended to protect the money collected by charities from being reduced through government taxation, thereby increasing the amount of good that a not-for-profit organization may do with it. However, in the modern era, tax-exempt 501(c)(3) status organizations have grown to incredible sizes, with private religious institutions reporting endowments topping $1 billion.⁸⁵ These institutions are able to avoid enormous tax bills through the privilege of tax-exempt status, which is now practically automatic—especially when you combine the status as an educational institution with the almost-untouchable status as a religious institution. Free exercise absolutists in the United States have begun to argue that religious organizations should be completely free from any scrutiny by the government, lest the government be considered to be interfering in religious affairs that it ought not be involving itself in. However, there is a difference between restricting free exercise (through banning a practice or criminally punishing those who engage in a practice) and simply withholding a privilege from those who have proven themselves unworthy of receiving American citizens’ hard-earned tax dollars. The Court made this clear in its holding in the Bob Jones University case, in which a religious institution was stripped of the privilege of tax-exempt status because of its refusal to obey universally applicable civil rights anti-discrimination laws. The Court did not force BJU to integrate or to change its policies on interracial marriage, actions which would be more constitutionally suspect as infringing on the university’s religious freedom. Indeed, the Court did not approve the use of a “stick” as a punishment; rather the Court approved the use of a “carrot” as an incentive. The solution advocated for in this Note is of the same fundamental nature, and thus should pass constitutional muster for the same reasons. Any view that would characterize the Court’s holding as infringing on BJU’s freedom to exercise its religious beliefs is unnecessarily absolutist in nature and sets a far different trajectory for First Amendment jurisprudence than I believe was intended or is practical. The First Amendment to the Constitution is deservedly revered for its guarantee that the free exercise of religion may be protected from government interference, harassment, or persecution; however, it should be correctly interpreted as conferring a negative right (the right to be free from persecution) rather than a positive right (the right to guaranteed access to tax dollars and exemption from taxation).

I have mentioned more than once the practical difficulties of enforcing Title IX over claimed religious exemptions, even of conducting any investigation at all into allegations of misconduct. There are also practical difficulties involved in the revocation of the tax-exempt status of private religious universities that are often wealthy, powerful, and politically well-connected.⁸⁶ Thus, I will briefly address a few solutions beyond what I have proposed as the ideal. For one thing, the recent decision in Bostock may have implications on how sex discrimination is interpreted by both the executive and judicial branches. If the executive branch adopts a definition of sex discrimination that is consistent with the Court’s definition in Bostock—especially if this is paired with public opinion that tilts the scales in favor of civil rights protections for LGBTQ+ people over absolute unchecked rights for religious organizations—this may pave the way for expanded protections. In March 2021, the Civil Rights Division of the U.S. Department of Justice issued a memo explaining the application of the decision in Bostock v. Clayton County to Title IX.⁸⁷ The memo references an executive order issued by the Biden administration—Executive Order 13988—that pairs well with the holding in Bostock, holding that “[a]ll persons should receive equal treatment under the law, no matter their gender identity or sexual orientation.”⁸⁸ The memo indicates that the Civil Rights Division has determined that “the best reading of Title IX’s prohibition on discrimination ‘on the basis of sex’ is that it includes discrimination on the basis of gender identity and sexual orientation.”⁸⁹ On its face, this seems to be a significant civil rights victory for the LGBTQ+ community, ensuring that Title IX includes robust protections for individuals in that community. However, one blatant roadblock stands in the way from this having made much of a measurable impact yet: the religious exemption to Title IX. This is a welcome policy interpretation overall—protecting students at a great number of colleges throughout the United States that are not religiously affiliated; however, given that the religious exemption is so robust and the process so lacking in oversight, even the aforementioned change in how Title IX is interpreted does not protect minority students at private religious institutions, where students are most likely to encounter discriminatory treatment.

Another potential respite for LGBTQ+ students at private religious institutions may be the Equality Act, which “prohibits discrimination based on sex, sexual orientation, and gender identity in areas including public accommodations and facilities [and] education.”⁹⁰ It does so by expanding the definition of “public accommodations,” authorizing the Department of Justice to intervene in equal protection matters in federal court that relate to sexual orientation or gender identity, and amending the Civil Rights Act to include “sex, sexual orientation, and gender identity” in the prohibited categories of discrimination.⁹¹ Notably, the Act explicitly states that it trumps the Religious Freedom Restoration Act (“RFRA”), meaning that an individual or institution sued for discrimination under the Equality Act would be unable to rely on RFRA as a defense. As the bill currently stands, it may provide a cause of action for students; the Religious Education Accountability Project endorses it, stating that it “ensures strong protections for LGBTQ students attending religious colleges—ensuring that no institution is permitted to claim religious exemptions in order to discriminate against its LGBTQ students while still receiving taxpayer money.”⁹² The measure passed in the House of Representatives in February 2021, but has yet to be taken up in the Senate. It faces strong opposition from absolutist proponents of religious liberty, who have even proposed language be inserted into the Act that would explicitly carve out another religious exemption for religious colleges and universities.

Another possibility is private enforcement by large associations or organizations that these private religious institutions are members of and rely on. For example, the National Collegiate Athletic Association (“NCAA”) wields extensive power among colleges that want to participate in competitive athletics—as do the individual conferences that the schools belong to. The Pac-10, a major athletic conference that includes several universities on the west coast, has overlooked Brigham Young University, a private university affiliated with the Church of Jesus Christ of Latter-day Saints, in a number of league expansions over the past few decades. Reportedly, this is because BYU is seen as “not a good cultural fit” for the conference.⁹³ Effective in 2023, BYU will be admitted to the Big 12 conference, a move that attracted harsh criticism from groups like Athlete Ally, which released a statement saying that “acceptance to an athletic conference is an honor and privilege, and . . . there should be standards of equality and inclusion that schools must meet to be included.”⁹⁴ Pressure from the NCAA or athletic conferences to adopt non-discriminatory policies may be an attractive option, given that there would be much less possibility of a religious freedom claim when the action is taken by a private association rather than the government. The First Amendment provides protection from government intervention, not absolute protection for religious groups against any hardship.

Finally, I would like to consider the likelihood of success for the aforementioned potential avenues of protection for LGBTQ+ students at private religious institutions. It has been a somewhat encouraging development that the Department of Justice has demonstrated a recent willingness to initiate investigations into claims of civil rights violations against LGBTQ+ students. As I mentioned above, in 2021, the DOJ announced a somewhat unprecedented investigation into BYU. However, this enforcement mechanism may not have any teeth after all because the investigation was subsequently dropped when BYU asserted its religious exemption based on relevant religious tenets consistent with its affiliation with the Church of Jesus Christ of Latter-day Saints.⁹⁵ It would surely be notable if the DOJ thoroughly investigated colleges for allegedly “over-extending” their exemptions, actually engaging in sufficient fact-finding and being willing to flex their enforcement muscles. It would be quite a development if these investigations were able to turn up anything substantial—and even more so if the Biden administration’s justice department categorically revoked the exemptions.

CONCLUSION

In this Note, I have considered the practicality and effectiveness of the argument that it is constitutionally impermissible to grant tax-exempt status and distribute any government funding to private educational institutions that engage in discrimination against LGBTQ+ students. I have concluded that the approach taken by the plaintiffs in Hunter v. Department of Education is unlikely to be successful. It is important to remain practical: a bright line rule consistent with this position would likely be impossible to implement, especially in the current political environment. The Hunter v. Department of Education lawsuit is still in the early stages of litigation; though it represents the best opportunity thus far presented in federal court, it is not a guaranteed win. Recently, a very unwelcome development spells trouble for the plaintiffs and the LGBTQ+ students they represent: the court ordered that the Department of Justice, over its objections and assurances that it would be able to effectively defend the suit itself, will be joined by intervening parties in the defense of the religious exemption to Title IX. Three Christian universities—Western Baptist University, William Jessup University, and Phoenix Seminary—along with the Council for Christian Colleges & Universities (“CCCU”) sought to intervene in the lawsuit. In the filing, CCCU adopts sweeping and broad language that the DOJ may be unlikely to adopt itself—that “the Title IX exemption is constitutionally required.”⁹⁶ On October 8, 2021, the court issued an order allowing this intervention and therefore opening up the suit to the much more hard-lined and sweeping rhetoric of the intervenors. There is some chance of victory—albeit small—for the plaintiffs at the lower court level. However, the chances of victory would wane even more if the case were to be elevated to the Supreme Court; I do not see a path to victory for the plaintiffs in front of the current conservative-supermajority Court.

It is noteworthy that the first time the scope of the religious exemption to Title IX was adjudicated, the court ruled against the civil rights of LGBTQ+ students—in favor of the free exercise rights of religious institutions. In Maxon v. Fuller Theological Seminary, plaintiffs brought a Title IX case against Fuller Theological Seminary because they were expelled for violating “school policies against same-sex marriage and extramarital sexual activity.”⁹⁷ In November 2019, a motion to dismiss was granted in federal district court, as the court held that the religious exemption to Title IX was valid and applied in the case. Although this is a discouraging step, this was only a district court, and the Supreme Court has yet to issue a final authoritative word on the issue.

97 S. Cal. L. Rev. 737

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Sydney Smith*

* J.D., University of Southern California Gould School of Law, 2024. B.A., Bowdoin College, 2019.

Dimensional Disparate Treatment

December 2022December 2022Benjamin Eidelson*

The Supreme Court’s decision in Bostock v. Clayton County was an important victory for gay and transgender workers—but the Court’s textual analysis has failed to persuade a number of thoughtful commentators, and it threatens to leave anti-discrimination law in disarray. The root of the problem is that Bostock trumpeted a “simple test” of but-for causation that could not alone explain the correctness of the results that the Court reached. This explanatory gap not only has left Bostock’s holding vulnerable to attack, but also has engendered uncertainty about the many disparate-treatment issues for which Bostock now provides the governing precedent. Indeed, because Bostock took it upon itself to interpret Title VII from textualist first principles, its analysis will orient—and perhaps disorient—judicial approaches to all manner of disparate-treatment claims for many years to come.

What disparate-treatment law needs, but the Court has thus far failed to provide, is a coherent, general, and textually grounded account of what it means for a decision to be made “because of” a protected characteristic—one that accords with Bostock’s motivating intuitions, but that transcends its overly simplistic account of its own reasoning. Drawing on a venerable body of work in analytic philosophy concerning “determinable” properties and their corresponding “determinates,” this Article develops an account that meets that need. In brief, this “dimensional” account of disparate treatment recognizes a decision as being made “because of [an] individual’s X” whenever the decision is motivated by a property that characterizes the individual in the dimension of X—regardless of whether a different decision would have been made if the individual had belonged to any other determinate class that is defined along that dimension. After introducing and defending this analysis, the Article traces its implications for a wide range of current controversies—involving bisexuality, pregnancy, race and gender stereotypes, and more. Finally, the Article defends the dimensional account and its implicit application in Bostock on textualist terms. It argues that the account best captures the meaning that an “ordinary reader” would ascribe to Congress’s enactment of Title VII—so long as the reader construes the statute in light of characteristic features of legislative communication, as sophisticated accounts of modern textualism would demand.

Introduction

Bostock v. Clayton County delivered a landmark victory to advocates of social equality and workplace fairness.[1] Discrimination against gay and transgender employees, the Supreme Court pronounced, violates the Civil Rights Act of 1964.[2] Two years later, however, even many who celebrated Bostock’s upshot have confessed doubts about the Court’s asserted justification for bringing it about: the now-famous claim that firing someone because they are gay or transgender logically entails firing them “because of their sex” as well.[3] The first wave of objections to that analysis came from avowed conservatives who, perhaps predictably, condemned it as an abuse of their favored textualist methodology.[4] But more striking is the second and more recent wave of criticism, in which some of the most thoughtful progressive scholars have now denounced that same analysis as either fallacious or, what is not much better, a façade for value-laden choices that the majority obscured from view.[5]

Although these criticisms are ultimately misplaced (or so I will argue), they underscore the need for something that the Court has indeed failed to provide: a coherent, general account of what it means for an action to be taken “because of” an attribute in the sense relevant to claims of disparate treatment. To be sure, Bostock purported to answer just that question by appealing to the familiar idea of “but-for” causation.[6] And in so doing, it arguably built on other recent decisions construing anti-discrimination requirements in similar terms.[7] But the critics are right to say that this “simple test”[8] is not nearly as simple as advertised. As the Bostock dissenters were quick to point out, if Gerald Bostock had been a woman rather than a man—but had still been attracted to people of the same sex—he (now she) would still have been fired.[9] “But for” Bostock’s sex, then, his fate might have been just the same: everything depends on which other traits one chooses to hold constant in the counterfactual comparison. Without principled criteria for making such judgments, Bostock’s test is not simple so much as it is vacuous.

But the problem is not just that one Supreme Court opinion—even a salient and consequential one—may be analytically unsatisfying. The more fundamental problem is that Bostock at once enshrined a formalistic approach to disparate-treatment law and set up anyone who seeks to implement that approach in a coherent way for failure.[10] Courts and scholars are already seeking to “reorient[]” this area of law around the “but-for principle” trumpeted in Bostock.[11] But if that account of “because of” is garbled—or, at the very least, seriously incomplete—it will only sow more confusion and suspicion as it is extended to the host of other issues for which Bostock now provides the leading precedent. If the ascendant, textualist vision of disparate-treatment law is instead to guide courts to principled results (and if Bostock’s own results are to be satisfactorily defended as such), that vision needs to include more than a pat equation of “because of” with but-for causation. It needs to incorporate a careful and convincing account of the formal relations on which a formalistic doctrine inevitably relies.

This Article undertakes to supply that missing analysis. It develops the account of “because of” that the Court’s approach to disparate-treatment law requires, but that the Court has failed to clearly articulate. And, importantly, it does so within the textualist parameters embraced by a majority of the sitting Justices (and by all of the Bostock opinions).[12] The most immediate payoff is to vindicate Bostock’s result—and what I will contend is its implicit logic—against the critics who claim that the ruling cannot be defended on its own textualist terms.[13] If I am right, conscientious textualists ought to accept Bostock as rightly decided, and everyone who feels trapped between nagging doubts about the majority’s textual argument and anxiety about the consequences of rejecting it can breathe a sigh of relief.[14] At the same time, the account that I develop here clarifies a wide variety of current controversies about the boundaries of anti-discrimination protections and puts a common frame on these diverse disputes, thereby outlining “the contours of a post-Bostock Title VII.”[15]

Consider a sampling of the questions that are newly arising, or will now be recast, in Bostock’s wake. If discrimination against gays and lesbians inherently involves sex discrimination under the “but-for” theory, does discrimination based on pregnancy as well?[16] What about discrimination against people who are bisexual or pansexual (and whose aggregate set of sexual attractions or practices would thus offend an employer irrespective of the employee’s own sex)?[17] Does Bostock’s protection for transgender individuals—whom the Court understood to be “persons with one sex identified at birth and another today”[18]—extend to nonbinary people, who identify neither as men nor as women today?[19] What does Bostock’s “but-for” analysis mean for the “sex stereotyping” theory articulated in Price Waterhouse v. Hopkins,[20] which was emphasized by advocates and lower courts but nearly ignored in the Court’s opinion?[21] And what does Bostock’s analysis mean for protected characteristics unrelated to sex, gender, and sexuality? For example, does discrimination based on cultural practices that have a racial valence constitute discrimination “because of [an] individual’s race”?[22] Does discrimination based on a person’s status within the Indian caste system constitute “national origin” discrimination?[23] And how should a Bostock-style textualist evaluate the panoply of discrimination claims based on intersectional identities or the conjunction of a protected trait with an unprotected one (as in so-called “sex-plus” cases)?[24]

The beginning of wisdom on all of these issues, I will suggest, is conceptual clarification. As is characteristic of anti-discrimination laws, Title VII prohibits certain actions with a certain connection to certain properties of a person; in particular, it prohibits certain adverse employment actions to be taken “because of [an] individual’s race, color, religion, sex, or national origin.”[25] Both the Court and commentators have generally read that phrase as if each property were merely a shorthand for its range of “standard” values—so that “because of such individual’s race,” for example, means “because of such individual’s being white, being Black, being Asian,” and so forth. On reflection, however, that is not the only or even the most natural interpretation of these words. Drawing on a rich but untapped body of philosophical work that examines “determinable” properties and their corresponding “determinates,” I will argue that the statute is better read to prohibit making decisions based on any facts about what a person is like in the named dimensions. I term this the “dimensional account” of disparate treatment.

On this understanding, the fact of a person’s being Black is a prohibited ground of decision-making, but so, too, is the fact of their being of a different race than their spouse, or the fact of their being of the same race as most existing employees. A decision made on any of these grounds is made on account of the person’s race in the requisite sense: it is made based on a fact about what they are like “race-wise,” or in respect of race. And that, in essence, is why Bostock was rightly decided: not because Gerald Bostock would have been treated better if his sex had been female, as the Court insisted, but because he would have been treated better if his sex had been different than the sex of his desired romantic partners—full stop. In short, disparate-treatment prohibitions make it unlawful to disfavor people because of properties—including relational properties—that they possess partly in virtue of how they stand in the dimensions enumerated in the statute. This account makes sense not only of Bostock, but also of the various other controversies noted above. And it puts causal counterfactuals in their place: an evocative tool for describing the role of a given attribute in a decision, but not the fundamental determinant of whether the attribute played a role or did not.

Of course, it is one thing to articulate a theory and another to ground it in positive law. I close that gap in two ways—one less ambitious, and one more so. First, I will contend that the account developed here captures what Bostock itself must be taken to have held in order for its own reasoning to make sense. In fact, despite repeatedly touting its “simple test,” the Court retreated at key moments to the intuitions that the dimensional account grounds, formalizes, and develops. So long as Bostock is good law, then, that account should be taken as a sympathetic reconstruction of the existing law as well. Second, I will contend that the dimensional account also captures the “ordinary meaning” of Title VII in the legally relevant sense—notwithstanding the oddity of describing anti-gay practices as “sex discrimination” in everyday speech—and thus that the account would deserve textualists’ allegiance even if it could claim no authority in Bostock (and, equivalently, that Bostock itself was rightly decided insofar as it should be read to incorporate this account).

With this last argument, I intervene not only in the debate over disparate-treatment law but in the cross-cutting debate over textualism as well. Bostock has quickly become ground zero for analysis of the textualist approach to statutory interpretation; it has spawned theoretical defenses, critiques, and even a literature that aims to ascertain the relevant facts about “ordinary meaning” by empirical means.[26] And it has already become a principal lens through which students encounter questions of interpretive method.[27] I will use the dimensional account to highlight a critical aspect of the methodological debate that, with due respect, all sides have given short shrift. As I will explain, the theoretical premises of modern textualism commit textualists to seeking not the meaning of a free-floating phrase, but rather the meaning of a legislative utterance containing that phrase. That difference matters because the hypothetical “ordinary reader” who undertook the latter inquiry would necessarily account for the characteristic modularity and generality of legislative communication. With respect to Title VII, that means they would seek a general analysis of “because of such individual’s X,” rather than consulting their own linguistic intuitions about one or another particular case considered in isolation. The dimensional account supplies just such a general analysis; few of Bostock’s textualist critics even try to do so. The dimensional account thus not only has a strong claim to be accepted on textualist grounds, but also exemplifies how reading a statute like a law may prove essential to faithfully implementing textualists’ methodological commitments.

Although my argument proceeds under textualist premises, I do not mean to imply either that I favor textualism as an original matter or that my analysis should be of interest only to those who do. The question of “[w]hether our system is textualist, intentionalist, purposivist, or something else” is distinct from the question of what it would be best for it to be.[28] And within our extant legal system, what a statute means in a textualist’s sense is undoubtedly at least one of the important determinants of its legal effect (whether that represents a salutary feature of our system or not).[29] Moreover, several of the current Justices purport to give this particular consideration special priority.[30] So there are powerful reasons for concerning oneself with how a textualist ought to resolve important questions, and even for taking the fruits of that inquiry to bear on the legal soundness of different possible answers, regardless of one’s own affinity for textualism and its purported justifications.

The Article unfolds over four parts. In Part I, I briefly explain why analyzing disparate treatment solely in terms of but-for causation, as Bostock purported to do, is untenable. In Parts II and III, I develop the interpretation of “because of such individual’s X” introduced above and unspool its implications for a range of familiar and novel issues in disparate-treatment law. Finally, in Part IV, I return to Bostock and sexual-orientation discrimination in particular in order to develop and rebut the concern that the dimensional account fails to accord with the “ordinary meaning” of the statutory text with respect to that specific form of discrimination.

[1]. Bostock v. Clayton Cnty., 140 S. Ct. 1731 (2020).

[2]. Id. at 1754.

[3]. Id. at 1735, 1737, 1754; see 42 U.S.C. § 2000e-2(a)(1). For reasons of clarity and accuracy, I use the singular “they” in this Article. Cf. Bryan A. Garner, Garner’s Modern English Usage 196 (2016) (noting that “resistance to the singular they is fast receding” and that it is “the most convenient solution” to a difficult problem).

[4]. For criticisms in that vein, see, for example, Josh Blackman & Randy Barnett, Justice Gorsuch’s Halfway Textualism Surprises and Disappoints in the Title VII Cases, Nat’l Rev. (June 26, 2020, 6:30 AM), https://www.nationalreview.com/2020/06/justice-gorsuch-title-vii-cases-half-way-
textualism-surprises-disappoints [https://web.archive.org/web/20220412183111/https://www.national
review.com/2020/06/justice-gorsuch-title-vii-cases-half-way-textualism-surprises-disappoints]; Nelson Lund, Unleashed and Unbound: Living Textualism in Bostock v. Clayton County, 21 Federalist Soc’y Rev. 158, 160–62 (2020); and Ed Whelan, A ‘Pirate Ship’ Sailing Under a ‘Textualist Flag,’ Nat’l Rev. (June 15, 2020, 1:01 PM), https://www.nationalreview.com/bench-memos/a-pirate-ship-sailing-under-a-
textualist-flag [https://web.archive.org/web/20220318235256/https://www.nationalreview.com/bench-
memos/a-pirate-ship-sailing-under-a-textualist-flag].

[5]. See, e.g., Mitchell N. Berman & Guha Krishnamurthi, Bostock Was Bogus: Textualism, Pluralism, and Title VII, 97 Notre Dame L. Rev. 67, 79–120 (2021); Cary Franklin, Living Textualism, 2020 Sup. Ct. Rev. 119, 129–70; David A. Strauss, Sexual Orientation and the Dynamics of Discrimination, 2020 Sup. Ct. Rev. 203, 203–11; Cass R. Sunstein, Textualism and the Duck-Rabbit Illusion, 11 Calif. L. Rev. Online 463, 474–75 (2020).

[6]. See Bostock, 140 S. Ct. at 1739.

[7]. See Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176 (2009); Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 350 (2013); see also Katie Eyer, The But-For Theory of Anti-Discrimination Law, 107 Va. L. Rev. 1621, 1623–25, 1641–44 (2021) (arguing that these cases, together with Bostock, stand for a “but-for principle” that is now central to anti-discrimination law). Although Bostock certainly pointed to Gross and Nassar as authority for its “but-for” test, see Bostock, 140 S. Ct. at 1739, their common holding—that, in a mixed-motive case, the statutorily prohibited reason must be decisive—does not actually say much of anything about Bostock, where the question was whether a particular reason is prohibited at all. See infra note 292.

[8]. Bostock, 140 S. Ct. at 1743, 1747–49.

[9]. See id. at 1762–63 (Alito, J., dissenting).

[10]. For an account of Bostock emphasizing and defending its formalistic mode of analysis, see Tara Leigh Grove, Which Textualism?, 134 Harv. L. Rev. 265, 279–82, 290–307 (2020).

[11]. See, e.g., Eyer, supra note 7, at 1621–22.

[12]. See Franklin, supra note 5, at 120 (noting “that all of the opinions in Bostock—the majority and the two dissents—embrace textualism” and situating that fact in the larger context of textualism’s ascendancy).

[13]. See, e.g., Berman & Krishnamurthi, supra note 5; Blackman & Barnett, supra note 4; Whelan, supra note 4.

[14]. The academic literature on the question addressed in Bostock is, of course, extensive. I identify the prior suggestions with the most affinity to mine and contrast those approaches below. See infra note 67 and Section III.A. For now, suffice it to say that the commentary favoring Bostock’s result on textualist grounds mostly defends and develops (or, for that matter, pioneered) the form of counterfactual argument employed by the Bostock majority. See, e.g., William N. Eskridge Jr., Title VII’s Statutory History and the Sex Discrimination Argument for LGBT Workplace Protections, 127 Yale L.J. 322, 343–46 (2017); Katie R. Eyer, Statutory Originalism and LGBT Rights, 54 Wake Forest L. Rev. 63, 73–80 (2019); Grove, supra note 10, at 281–82; Andrew Koppelman, Why Discrimination Against Lesbians and Gay Men Is Sex Discrimination, 69 N.Y.U. L. Rev. 197, 208–11 (1994) [hereinafter Koppelman, Sex Discrimination]; Andrew Koppelman, Bostock, LGBT Discrimination, and the Subtractive Moves, 105 Minn. L. Rev. Headnotes 1, 8–9 (2020) [hereinafter Koppelman, Subtractive Moves]. On the other side of the debate, commentators have criticized Bostock (and the commentary preceding it) for either botching the counterfactual analysis or failing to capture the ordinary meaning of the text (or both). See sources cited supra note 5. And meanwhile, others have defended the result that Bostock reached but do not claim (or, in fact, outright deny) that their arguments show Bostock to be sound on textualist premises. See, e.g., Guha Krishnamurthi & Peter Salib, Bostock and Conceptual Causation, Yale J. on Regul. Notice & Comment (July 22, 2020), https://www.yalejreg.com/nc/bostock-and-conceptual-causation-by-guha-krishnamurthi-peter-salib [https://perma.cc/R6RP-PP7P]; Robin Dembroff, Issa Kohler-Hausmann & Elise Sugarman, What Taylor Swift and Beyoncé Teach Us About Sex and Causes, 169 U. Pa. L. Rev. Online 1 (2020). To my knowledge, no prior commentary develops the analysis of Title VII’s “because of” criterion that I advocate here, applies it to Bostock, or defends it as an account of the “ordinary meaning” relevant to textualism.

[15]. Guha Krishnamurthi & Charanya Krishnaswami, Title VII and Caste Discrimination, 134 Harv. L. Rev. F. 456, 471 n.87 (2021) (“[E]ven under textualist reasoning, it is sufficiently early in the life of Bostock that we do not yet know the contours of a post-Bostock Title VII.”).

[16]. See infra Section III.C.

[17]. See infra Section III.B. Although some use “bisexual” and “pansexual” interchangeably, others take “pansexual” alone to encompass attraction to individuals who do not identify as either male or female. See generally Christopher K. Belous & Melissa L. Bauman, What’s in a Name? Exploring Pansexuality Online, 17 J. Bisexuality 58 (2017).

[18]. Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1746 (2020).

[19]. See infra Section III.B.

[20]. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).

[21]. See infra Section III.D.

[22]. See infra Section III.E.

[23]. See infra Section III.C.

[24]. See infra Section III.C.

[25]. 42 U.S.C. § 2000e-2(a)(1).

[26]. See, e.g., Berman & Krishnamurthi, supra note 5, at 125 (arguing that those who think “that Bostock reached the legally correct result . . . have strong grounds to reject textualism”); Sunstein, supra note 5 (using Bostock to illustrate the alleged indeterminacy of textualist arguments); Franklin, supra note 5 (similar); Grove, supra note 10 (using Bostock to illustrate different flavors of textualism, and defending the majority’s “formalistic” variant); see also infra notes 86, 233, 262–65 and accompanying text (discussing survey research).

[27]. See, e.g., John F. Manning & Matthew C. Stephenson, Legislation and Regulation 115–39, 146–50, 219–22 (4th ed. 2021); William N. Eskridge Jr., James J. Brudney & Joshua A. Chafetz, Cases and Materials on Legislation and Regulation 35–56 (6th ed. Supp. 2021).

[28]. William Baude & Stephen E. Sachs, The Law of Interpretation, 130 Harv. L. Rev. 1079, 1116 (2017); cf. id. (making the further claim that this question is itself a legal one).

[29]. Cf. Richard H. Fallon Jr., The Meaning of Legal “Meaning” and Its Implications for Theories of Legal Interpretation, 82 U. Chi. L. Rev. 1235, 1307 (2015) (concluding that there are “multiple linguistically and legally plausible senses of, and thus referents for, claims of legal meaning”); Franklin, supra note 5, at 120 (noting how Bostock has been taken as “confirmation of Justice Elena Kagan’s endlessly quoted observation that ‘[w]e’re all textualists now’ ”).

[30]. See, e.g., Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1737 (2020) (“When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest.”); id. at 1836 (Kavanaugh, J., dissenting) (“The best way for judges to demonstrate that we are deciding cases based on the ordinary meaning of the law is to walk the walk, even in the hard cases when we might prefer a different policy outcome.”).

* Assistant Professor of Law, Harvard Law School. For helpful comments and discussion, I thank Larry Alexander, Erin Beeghly, Mitchell Berman, Jessica Clarke, Richard Fallon, Sherif Girgis, John Goldberg, Deborah Hellman, Adam Hosein, Max Kistler, Michael Klarman, Issa Kohler-Hausmann, Andrew Koppelman, Guha Krishnamurthi, Jed Lewinsohn, Kasper Lippert-Rasmussen, Anna Lvovsky, James Macleod, John Manning, Andrei Marmor, Todd Rakoff, Daphna Renan, Zalman Rothschild, Benjamin Sachs, Matthew Stephenson, Cass Sunstein, and Daniel Wodak; participants in the Harvard Law School Faculty Workshop and the Penn Law & Philosophy Workshop; and Isaac Green, Nathan Raab, and Catherine Willett, who also provided valuable research assistance. This project was supported by the Harvard Law School Summer Research Fund.

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Civil vs. Criminal Legal Aid

March 2022May 2022Shaun Ossei-Owusu*

The past few decades have highlighted the insidious effects of poverty, particularly for poor people who lack access to legal representation. Accordingly, there have been longstanding calls for “Civil Gideon,” which refers to a right to counsel in civil cases that would address issues tied to housing, public benefits, family issues, and various areas of law that poor people are often disadvantaged by due to their lack of attorneys. This civil right to counsel would complement the analogous criminal right that has been constitutionalized. Notwithstanding the persuasive arguments made for and against Civil Gideon, it is less clear why there is such a sharp distinction between civil and criminal legal aid. This Article re-examines longstanding assumptions about the civil-criminal legal aid divide and highlights some underexamined explanations: the legal profession’s historical implication in this division; courts’ unwillingness to use their inherent powers to appoint counsel; and courts’ enduringly narrow understandings of when poor people should be provided with lawyers. These insights prompt alternative reflections on how to best deliver legal services to poor people.

* Presidential Assistant Professor of Law, University of Pennsylvania Law School. J.D., University of California, Berkeley, School of Law; Ph.D., University of California, Berkeley; M.L.A., University of Pennsylvania; B.S. Northwestern University. This Article benefitted from feedback and conversations with Guy-Uriel Charles, Scott Cummings, Anne Fleming, Trevor Gardner, Myriam Gilles, Helen Hershkoff, Olati Johnson, Steve Koh, Seth Kreimer, Serena Mayeri, K-Sue Park, Clare Pastore, Portia Pedro, Dave Pozen, Dan Richman, Louis Rulli, Kathryn Sabbeth, Matt Shapiro, Emily Stolzenberg, and Catherine Struve. Special thanks to Megan Russo and Madeline Verniero for editorial support and Alexa Nakamura, Amy Lutfi, and the Southern California Law Review staff for their overall assistance with the Article. All errors are mine.

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The Expressive Fourth Amendment

March 2022March 2022Karen J. Pita Loor*

After the eight-minute and forty-six second video of George Floyd’s murder went viral, cities across the United States erupted in mass protests with people outraged by the death of yet another Black person at the hands of police. The streets were flooded for months with activists and community members of all racesmarching, screaming, and demonstrating against police brutality and for racial justice.Police—like warriors against enemy forces—confronted overwhelmingly peaceful protesters with militarized violence and force. Ultimately, racial justice protesters and members of the media brought lawsuits under section 1983 of the Civil Rights Act in the district courts of Minneapolis, Dallas, Oakland, Seattle, Portland, Denver, Chicago, Los Angeles, and Indianapolis, claiming extreme violence and unlawful and abusive use of less lethal weapons by police during protests. The first Part of this Article provides a recent history of this police brutality against racial justice activists in the George Floyd protests. The second Part of this Article reviews circuit court opinions in protest cases from the last three decades and district court injunctions from the George Floyd protest litigation to analyze how courts currently evaluate, in section 1983 Actions, the Fourth Amendment reasonableness of police force pursuant to Graham v. Connor. This Part demonstrates that in their Fourth Amendment reasonableness calculus, courts discount plaintiffs’ involvement in valuable politically expressive conduct. The third Part of this Article argues that the Fourth Amendment mandates courts evaluate the reasonableness of protest policing in light of freedom of expression which means they must positively weigh plaintiffs’ expressive protest activity. This reframing of reasonableness is supported by historical evidence of the Framers’ intent and Supreme Court jurisprudence on searches of books, papers, and other expressive materials when such items arguably deserve First Amendment protection. The fourth Part of this Article discusses the difference an expression-specific Fourth Amendment—the expressive Fourth Amendment—reasonableness test would have made in one of the circuit protest cases.

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How the First Amendment’s Commitment to Religious Freedom Could Ironically Save Roe v. Wade . . . If We Let It by Abigail Sellers

September 2021March 2022Southern California Law Review Admin

Article | Consitutional Law
How the First Amendment’s Commitment to Religious Freedom Could Ironically Save Roe v. Wade . . . If We Let It
by Abigail Sellers*

From Vol. 94, No. 3
94 S. Cal. L. Rev. 691 (2021)

Keywords: First Amendment, Reproductive Health, Abortion, Roe v. Wade

On May 15, 2019, Alabama Governor Kay Ivey signed the Alabama Human Life Protection Act into law.1 The Act imposes serious punishments on doctors who perform an abortion unless it “is necessary in order to prevent a serious health risk to the unborn child’s mother,” there is an ectopic pregnancy, or the fetus has a “lethal anomaly.”2 Notably, the Act does not provide an exception for pregnancies resulting from rape or incest.3 Of particular interest to this Note are statements made by Alabama lawmakers indicating this law was passed to comport with their and Alabama citizens’ religious belief that “every life is a sacred gift from God.”4 Furthermore, Alabama lawmakers are keenly aware the law is in violation of a woman’s right to terminate a pregnancy as protected under the Fourteenth Amendment Due Process right to privacy.5 In fact, the Act was designed to challenge the cases establishing and upholding this right—Roe v. Wade and Planned Parenthood v. Casey—in the hopes that the Supreme Court will overrule these precedents.6

Even more disconcerting to reproductive health advocates, Alabama was only one of seven states that passed laws in 2019 severely restricting access to abortions.7 The six other states—Georgia, Kentucky, Louisiana, Missouri, Mississippi, and Ohio—criminalized abortion after six to eight weeks of pregnancy when a fetal heartbeat can be detected.8 These are aptly referred to as “heartbeat laws.” The passage of these laws was marked by religious statements from state lawmakers, and some of these laws have been expressly designed to challenge Roe.9

With a challenge to each of these laws making its way through various federal courts,10 it is possible that the Supreme Court will hear a case involving one or more of these laws and will once again get a chance to reconsider its holdings from Roe and Casey.11 This Note will argue that the Court should never reach the privacy issue at the heart of Roe and Casey. Instead, exercising judicial restraint, the Court should decide only as much as is necessary to resolve the case in front of it12 and should deem the Alabama Human Life Protection Act and the six heartbeat laws unconstitutional under the First Amendment’s Establishment Clause. Under current Supreme Court precedent, when a law lacks a sincere secular purpose, it violates the Establishment Clause,13 and as the previously mentioned religious statements by lawmakers indicate, the purpose behind these laws is not secular. Thus, the Court should never reach the privacy issue.

This Note will (1) examine the history of the debate surrounding abortion in American politics to show how Roe and Casey are once again ripe to be challenged, (2) explain the need for a new approach to challenge the abortion laws in question based on the current composition of the Supreme Court, (3) argue that the laws violate the Establishment Clause, and (4) explain why an Establishment Clause claim is worth pursuing.

*. Editor-in-Chief, Southern California Law Review, Volume 94; J.D. Candidate 2021, University of Southern California Gould School of Law; B.S. Biochemistry & B.A. Spanish, 2018, Arizona State University. I would like to thank Melissa Sellers, Dave Sellers, Perry Vargas, and the rest of my Sellers & Vargas family members for their support throughout my time in law school. I would also like to thank Professor Rebecca Brown for her feedback. Finally, many thanks to all the Southern California Law Review for their invaluable work on my piece.

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A Dose of Dignity: Equitable Vaccination Policies for Incarcerated People and Correctional Staff During the COVID-19 Pandemic

September 2021February 2024Itay Ravid, Jordan M. Hyatt, and Steven L. Chanenson

Postscript | Government
A Dose of Dignity: Equitable Vaccination Policies for Incarcerated People and Correctional Staff During the Covid-19 Pandemic
by Itay Ravid*, Jordan M. Hyatt†, and Steven L. Chanenson‡

Vol. 95, Postscript (September 2021)
95 S. Cal. L. Rev. Postscript 1 (2021)

Keywords: Criminal Law, Public Health, Government

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Since its emergence in early 2020, the COVID-19 pandemic has altered the lives of millions of Americans. As it so often is during times of crisis, our most vulnerable communities have disproportionately suffered and were overlooked. Among these myriad communities, incarcerated people became a particularly potent symbol of our failure to handle the spread of the virus. In December 2020, a beacon of hope emerged with the introduction of new cutting-edge vaccines which promised to bring the world back to where it was just a year-and-a-half ago. Here again, however, policy and politics have led states to adopt different distribution plans that, broadly speaking, deprioritized incarcerated populations and in some cases correctional staff as well. While vaccinations are now much more widespread, things were dramatically different not too long ago. The first goal of this Essay is to ensure we memorialize how society, once again, failed to protect our incarcerated communities when they needed it the most. To illustrate this, we offer a data-driven analysis of the early state-level policies regarding vaccinations of people who live and work in prisons. Our findings show that vaccination policies tended to systematically ignore or disadvantage incarcerated individuals. We argue that by adopting such policies, states have neglected to comply with their legal obligations, grounded in existing and emerging Eighth Amendment jurisprudence and long-standing ethical responsibilities to proactively vaccinate this population. This is particularly true given that prisons are among the high-risk “congregate settings” that are widely recognized by health experts, and often by the states themselves, as deserving of immediate distribution of vaccines. Based on these obligations, and given recent new virus outbreaks and the realization that some form of COVID-19 is here to stay (and other pandemics may be around the corner), this Essay concludes with recommendations for the future.

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*. Assistant Professor of Law, Villanova University Charles Widger School of Law.
†. Associate Professor of Criminology and Justice Studies, Director, Center for Public Policy,

Drexel University.
‡. Professor of Law, Villanova University Charles Widger School of Law. The authors would

like to thank Kristi Arty and Michael Slights for their terrific research assistance, and the SCLR editorial team for their careful and diligent work. Research for this Article was conducted with support provided to Dr. Hyatt (Drexel University) by Arnold Ventures. The views expressed in this Article are those of the authors and do not necessarily reflect those of the funder or any of the authors’ respective academic institutions.