Lenity and the Meaning of Statutes

Ordinary canons of statutory interpretation try to encode linguistic rules into jurisprudence. Their purpose is to figure out the meaning of a text, and their outcome is to determine the meaning of the text. Both the purpose and the outcome are linguistic.

The rule of lenity is not an ordinary canon of statutory interpretation. The rule of lenity’s outcome is to determine the meaning of a text, giving ambiguous criminal statutes a narrow interpretation, but its purpose is public policy, protecting defendants when ambiguous statutes failed to give fair notice that their actions would be punished. Unlike the ordinary canons of statutory interpretation, lenity encodes into jurisprudence not a linguistic rule, but a policy rule. Thus, a discrepancy arises: lenity’s outcome is linguistic, but its purpose is non-linguistic.

This Article makes the following three contributions. First, it analyzes the nature of the discrepancy between lenity’s purpose and outcome. Second, it demonstrates that this discrepancy leads to doctrinal issues in how the rule of lenity is applied. Sometimes the rule of lenity is over-inclusive: it is applied even when there is no violation of fair notice. Sometimes the rule of lenity is under-inclusive: the rule of lenity fails to protect certain defendants that were misled by ambiguous criminal statutes. Third, this Article argues that we can align lenity’s purpose and outcome by reforming lenity into an excuse in criminal law, and this theoretical reformation will resolve the aforementioned doctrinal issues.


Short-barreled rifles are often used for criminal purposes because their shorter length allows them to be more easily concealed. For that reason, § 5821 of the Internal Revenue Code levies an excise tax on the manufacture of short-barreled rifles, while no such tax is levied on the manufacture of long-barreled rifles.

Thompson/Center Arms, a firearms manufacturer, packaged as one unit the following separate parts that were to be put together by the customer: a shoulder stock, a pistol, and a barrel extension. For convenience, I will call this unit of three parts the “Thompson/Center kit.” Putting the three pieces together—attaching the shoulder stock to the handle of the pistol and the extension to the barrel of the pistol—the customer would end up with a long-barreled rifle. If the customer only attached the shoulder stock to the pistol handle without using the barrel extension, then they would end up with a short-barreled rifle.

Thus, the following legal issue arose in United States v. Thompson/Center Arms Co. Is Thompson/Center Arms liable for the § 5821 excise tax? Does the manufacture of the Thompson/Center kit count as an instance of manufacturing a short-barreled rifle?

The Supreme Court stated that § 5821 is ambiguous about what counts as the manufacture of a short-barreled rifle and that the Thompson/Center kits sat squarely in the penumbra. On one hand, Thompson/Center Arms intended for the kits to be put together into a long-barreled rifle, but on the other hand, the kit made it tremendously easy for consumers to put together a short-barreled rifle regardless of Thompson/Center Arms’s intention. Were the Court to construe § 5821’s language broadly, Thompson/Center Arms would be liable for the excise tax on short-barreled rifles, but were the Court to construe the statute’s language narrowly, Thompson/Center Arms would not be liable.

To resolve whether § 5821 should be given a broad or narrow reading, the Court applied the rule of lenity, which gives all ambiguous criminal statutes a narrow meaning, thus absolving Thompson/Center Arms of liability on the excise tax. This is a surprising application of the rule. The rule of lenity is a rule of statutory interpretation meant to apply only to criminal statutes to protect criminal defendants, yet it was applied in Thompson/Center to determine the meaning of a civil tax statute in favor of a civil plaintiff. Because the company had already paid the tax and was suing for a refund, no criminal penalties were at stake for Thompson/Center Arms.

Thompson/Center’s holding presents a major problem for the administration of tax law. The standard rule in civil law grants deference to an administrative agency’s interpretation of the relevant laws. The rule of lenity runs in the opposite direction, interpreting statutes in favor of the taxpayer over the agency, the Internal Revenue Service (“IRS”). This poses a special danger to the IRS’s enforcement efforts against abusive tax shelters that prey on indeterminacies in the tax law.

Despite this problem, the Court’s hands were bound by a technicality. According to the rule of lenity, criminal statutes should be interpreted narrowly such that uncertainty about the meaning of the statute is resolved in a way lenient to the defendant. Section 5821 is, like tax law generally, a civil statute, but it is also a criminal statute because its meaning has implications for criminal liability. Under § 5871, criminal penalties would be imposed for non-compliance with § 5821. Section 5821 plays a dual role, determining how much tax one is required to pay and, thereby, defining the actus reus for criminal liability. Thus, although Thompson/Center Arms was litigating the civil matter of how much tax it owed, because the outcome of this case might have criminal implications down the road, § 5821 would need to be read narrowly, following the rule of lenity.

Thompson/Center thus establishes that the rule of lenity applies to statutes that serve both a criminal and civil purpose, even if the issue at bar is a purely civil one, because the interpretation of dual-purpose statutes in the civil context necessarily carries over to define criminal liability. Tax laws generally play this dual role since they determine civil tax liability, and criminal penalties are imposed for non-compliance with tax law. Using lenity to narrowly interpret the meaning of a tax statute will both limit the reach of criminal sanctions for tax evasion and also limit the assignment of civil tax liability.

The purpose of the rule of lenity, however, is to protect fair notice for criminal defendants. When statutes are ambiguous, citizens can be misled into thinking that their actions were permitted rather than prohibited. The law fails to communicate the expected standard of behavior. Given the severity of criminal punishment and the moral condemnation that attaches, we ought to be especially concerned about criminal defendants who did not receive fair notice of the law. Thus, when a defendant’s act is a borderline case of an ambiguous criminal statute, the law absolves them of criminal liability as a recognition of its own failure to provide fair notice that such an act would be punished.

Since the rule of lenity was supposed to provide fair notice in punishment, its application to civil tax law, where no punishment is at stake, grossly oversteps its purpose. Even if a taxpayer loses a case determining their civil tax liability, so long as they continue to pay said tax liabilities, they would avoid criminal penalties. I call this overstep of lenity’s purpose the “too much lenity” problem.

On my analysis, the central theoretical issue with the rule of lenity is the discrepancy between the rule’s purpose and outcome. The rule of lenity’s purpose is to ensure fair notice about which actions are punished under the law. The rule’s outcome, as a canon of statutory interpretation, is to determine the meaning of a statute. The rule of lenity has a linguistic outcome, but a non-linguistic purpose. Thus, lenity’s purpose and outcome are not consistent with one another.

This application of lenity as a canon of statutory interpretation, which I call the “semantic rule of lenity,” is incongruous with its normative purpose of fair notice in criminal law, resulting in its encroachment into civil matters where no punishment is at stake. Unlike other canons of statutory interpretation, which aim to figure out the meaning of a statute, substantive canons, like the rule of lenity, aim to implement normative principles, like fair notice. Therein lies the disconnect. The purpose of the rule of lenity does not have anything to do with the ascertainment of meaning, yet the rule ends up determining the meaning of the statute. The resulting problem of too much lenity demonstrates that this disconnect leads to real consequences.

But notice that this is a contingent feature of the rule of lenity. Lenity need not be applied as a canon of statutory interpretation. Its purpose merely requires us to let go those criminal defendants who never received fair notice of punishment. Other legal doctrines that require us to absolve certain defendants of guilt—for example, excuses such as insanity or duress—do not involve determining the meanings of statutes. So why should the rule of lenity perform this odd, dangerous, vestigial function of determining the meaning of statutes? If the proximate aim is to absolve defendants of liability when their actions were not unambiguously criminalized by Congress, we can and ought to do so without invoking the semantics of statutes.

Challenging the standard semantic application of lenity, I will instead argue for the unorthodox position that lenity should be reworked from a canon of statutory interpretation to an excusing condition specific to criminal law. In that way, lenity would be applied in the same manner as the doctrines of duress or insanity, as an affirmative defense to prosecution rather than a canon of statutory interpretation. Without any of the semantic baggage that currently burdens the rule of lenity, excuses can apply in criminal law without extending into civil law and thus avoid the too much lenity problem. For instance, when a taxpayer is just litigating the issue of how much taxes they will have to pay for such-and-such economic transaction because they disagree with the IRS about the meaning of a statute, the courts should use ordinary interpretative principles that would best allow the tax law to serve its function of justly and efficiently collecting revenue. But if that same taxpayer was being tried for tax evasion because the statute at issue was ambiguous—as § 5821 was with regard to Thompson/Center kits—then lenity should be applied as an excuse, an affirmative defense, in order to protect fair notice of punishment.

Viewed top-down, this Article can be understood to present the following argument for my conclusion that lenity should be applied as an excusing condition in criminal law rather than as a canon of statutory interpretation: First, I demonstrate that lenity’s purpose of fair notice of punishment does not match its outcome of determining the meaning of statutes. Second, I analyze three distinct doctrinal problems that stem from this mismatch between purpose and outcome. Third, I solve these problems by showing how the legal system can unite lenity’s purpose and outcome by instituting lenity as an excuse rather than a rule of statutory interpretation. Because of this conceptual harmony, the three aforementioned problems are solved if we apply lenity as an excusing condition in criminal law. Each step presents novel contributions to the literature.

Part I explicates the rule of lenity and justifies the doctrine as upholding the structural rule of law value of fair notice. Fair notice is best understood as a structural consideration about the legal system. The laws must be structured so as to provide a path safe from punishment along which ordinary citizens can walk. In our society, this path is marked by published statutes delineating which acts are permissible and which are impermissible. Fair notice is thus essential to providing a genuine choice to avoid punishment.

Part II shows that lenity’s purpose and outcome are at odds with one another. Whereas ordinary rules of statutory interpretation have the purpose of trying to figure out the meaning of a statute and the outcome of determining the meaning of a statute, the rule of lenity has the purpose of protecting criminal defendants and the outcome of determining the meaning of a statute. Thus, while ordinary rules of statutory interpretation have a semantic purpose and semantic outcome, the rule of lenity has a semantic outcome and a non-semantic purpose.

Part III demonstrates three doctrinal problems that arise from the mismatch between the rule of lenity’s purpose and outcome.

Section III.A presents the linguistic ambiguity problem. To use a stylized example, suppose a statute ambiguously imposes criminal penalties for starting a fire next to a “bank.” Defendant A started a fire next to a financial bank. Defendant B started a fire next to a river bank. Because of the ambiguity, neither Defendant A nor B had fair notice that their actions were prohibited. However, because neither interpretation of the word “bank” lets both defendants go free, the rule of lenity cannot resolve the fair notice problem here. This is the problem of linguistic ambiguity.

Section III.B presents the too much lenity problem, introduced above. In this Section, I consider the impact of a lenity-driven tax regime both in terms of the areas of tax law where lenity is most likely to be applied and its contrast to the deference regime it replaces.

Section III.C demonstrates the problem of higher-order vagueness. Applying the semantic rule of lenity to a vague statute that prohibits a certain category of actions changes the meaning of the statute to prohibit only clear cases of that category of actions. For instance, a statute may say “do not drive dangerously,” but after the court applies the rule of lenity, the statute means “do not drive clearly dangerously.” The problem is that the new meaning that the rule of lenity has assigned will itself be vague. Just as vague predicates have borderline cases of which items qualify as members of the category, there is also vagueness one level up about which items qualify as borderline cases. If the vagueness of “do not drive dangerously” violates fair notice, then construing the statute to mean “do not drive clearly dangerously” will not satisfy fair notice because what counts as “clearly dangerous” is itself a vague matter as some driving is clearly clearly dangerous and some driving only borderline clearly dangerous. The semantic rule of lenity is thereby under-inclusive, creating vagueness at a higher-order but failing to take that second-order vagueness into account for purposes of fair notice.

Part IV connects the legal theory set out in Parts I and II with the doctrinal analyses of Part III to support my ultimate proposal that lenity be provided solely as an excuse in criminal law instead of its current application as a canon of statutory interpretation. In criminal law theory, excuses are most often understood in comparison to justifications, another category of affirmative defense. Whereas justifications typically serve to make an act permissible—for instance, killing another is not morally wrong if done in self-defense—excuses absolve an actor of criminal liability for their wrongful conduct when the actor lacked a genuine choice to follow the law. For instance, a browbeater may have threatened to bust the defendant’s kneecaps unless the defendant commits a criminal act for the browbeater’s benefit. In such a situation, because the browbeater’s coercive threat left the defendant no choice in the matter, the law affords the defendant an excuse of duress.

The semantic rule of lenity functions more closely to justification; by assigning a narrow meaning to a statute, it shrinks what counts as impermissible. The semantic rule of lenity, when it applies, concludes that the defendant’s actions were not prohibited by law. However, I argue that the purpose of lenity instead aligns most closely with that of an excuse. Though lenity may seem an unlikely bedfellow to doctrines such as duress or insanity, I demonstrate that all of these doctrines aim to protect citizens who lacked a genuine choice to follow the law. In cases such as duress, one lacks the choice because of some coercive threat. In cases of lenity, one lacks the choice because one was not given fair notice about which acts would be punished. Although, in contrast to justification, the defendants may have done some prohibited act in these cases, punishing them would nevertheless go against the rule of law principle of preserving a path safe from punishment.

By shedding lenity of its semantic cloak, jurisprudence can avoid the three aforementioned doctrinal problems. Providing lenity as an excuse rather than fixing the meaning of a statute would allow the law to absolve both Defendant A and Defendant B (from the “bank” example above) of criminal liability since both defendants lacked fair notice that their actions would be punished. By restricting lenity to criminal law, taking the form of an excuse stops lenity from creeping into civil law, thereby solving the too much lenity problem. Because the excuse would not determine the meaning of the statute, issues of higher-order vagueness do not require additional iterations of lenity, thereby solving the higher-order vagueness problem.

Part V considers two counterarguments to the excuse of lenity. The first counterargument states that the excuse is unnecessary because strict construction of the civil tax code is good jurisprudence. In response, I analyze the ways that the teleology of tax law is distinct from the teleology of criminal law. Tax law helps citizens figure out how much to contribute to the public fisc as a matter of distributive justice. Unlike criminal law, tax law is not meant to sanction prohibited behaviors—a tax on income, for instance, is not meant to morally condemn those who earn income. Since tax law is not meant to serve as a system of incentives, ex-ante notice is far less important. Furthermore, choosing strict construction over the best interpretation will undo the effort to justly allocate social burdens, to the detriment of the very people who relied on the tax law to serve this function. The second counterargument against the excuse of lenity states that a legislature could satisfy the requirement of fair notice by letting citizens know by statute that the rule of lenity will not be applied to the criminal code. I argue that such a move is tantamount to notifying the public that there will be no fair notice given.


At its core, the rule of lenity is a rule of statutory construction that resolves any “uncertainty concerning the ambit of criminal statutes” in favor of the defendant. Often, such uncertainty can arise due to linguistic indeterminacy, the most common type of which is vagueness. In these cases, the meaning of the vague statute is narrowly interpreted to include only clear, prototypical cases of the criminal statute. Such narrow construction is justified by the rule of law value of fair notice. Fair notice allows citizens who wish to avoid punishment to seek safety in reading the statute and choosing to avoid those actions that carry criminal penalties.

A. Lenity’s Outcome: Statutory Construction

Indeterminacy of meaning (linguistic indeterminacy) is a universal feature across natural languages. Statutes, since they are written in natural language, sometimes have indeterminate meanings. Such instances can give rise to what we may call hard cases or legally ambiguous cases, where the statute gives no direction one way or another to those cases that straddle the indeterminacy.

Of course, even when the statute gives no direction, a case at bar cannot go unresolved. One way to resolve a case in which there is no resolution provided by the statute itself is to have what legal theorists call a “closure rule.” A closure rule simply determines which way a judge should rule when the law is unclear one way or another, acting as a tie breaker of sorts. The rule of lenity is often held by jurisprudents to be a paradigm closure rule. When a criminal statute fails to resolve a case because its meaning is indeterminate with respect to the facts at bar, then the judge must assign the statute a narrow meaning that favors the criminal defendant.

In law, by far the most common sort of linguistic indeterminacy arises from vagueness. Consider, for instance, the well-trodden “no vehicles in the park” statute:

NO VEHICLES IN THE PARK ACT: Any person who brings or drives a vehicle into a federal park shall be guilty of a misdemeanor, which may be punished by a fine.

From the language of the statute, no one can deny that driving an automobile into a federal park is prohibited. In contrast, we may be quite uncertain about whether someone who pushed a wheelbarrow into a federal park is criminally liable under the statute since it is uncertain whether a wheelbarrow is or is not a vehicle in this context. The term “vehicle” is vague since it admits of borderline cases where the application of the term “vehicle” is indeterminate.

An instance of a vague predicate is prototypical or core if and only if it is clearly a member of the predicate’s category. A borderline or penumbral case of a vague predicate is an object that is neither clearly a member nor clearly not a member. Thus, a sedan is a prototypical vehicle while wheelbarrows are borderline cases that do not clearly fall into nor outside of the vehicle category.

When it comes to vague statutes, the rule of lenity is best cashed out using this distinction between clear and borderline cases. Under the rule, a vague criminal statute will be assigned a narrow meaning that includes only the clear cases of the vague categories. For instance, the narrow interpretation of “vehicle” includes automobiles but not wheelbarrows. The rule of lenity, like statutory interpretation more generally, is semantic in that it operates to determine the meaning of the statute.

Courts are supposed to employ the rule of lenity in the realm of criminal law. Under such a rule, the destruction of a fish was not found to be a violation of a statute prohibiting the destruction of “tangible objects” in a federal investigation, and transporting a stolen airplane did not count as transporting a stolen “vehicle.” These were, in the eyes of the court, not prototypical cases of the statutes’ language.

B. Lenity’s Purpose: Fair Notice

Courts have typically appealed to fair notice, sometimes referred to as “due-process notice,” as the principal justification for the rule of lenity. Punishment of criminal activity is serious both in the severity of its costs on the punished and in the moral condemnation that attaches to it. For the exercise of the sword of government in doling out punishments to individuals, rule of law is of principal order. A central criterion of rule of law is that those who are subject to the threat of such force be given fair warning that they are under such threat. In our society, such notice is primarily given by the publication of criminal statutes. But publication is only the first step. Statutory notice is fair only when the content of the prohibitions can be readily ascertained from the published statute. Thus, when Emperor Caligula posted new statutes high on the top of Roman columns to prevent the citizenry from reading them, he failed to give fair notice to his citizens.

Posting laws where no one can read them is not the only way to violate fair notice. Notice can be unfair due to a statute’s linguistic indeterminacy. Similar to how linguistic indeterminacy can fail to give guidance to judges on how to rule on hard cases, linguistic indeterminacy fails to provide guidance to citizens on what sort of behavior is prohibited by law. Consider the following illustration of this aspect of fair notice employing hypothetical expectations about a vague statute.

When one reads a vague criminal statute, so one version of the fair notice story goes, one thinks not of the borderline cases, but instead the prototypical cases. For instance, it is most likely that bringing a wheelbarrow into the park never crosses an individual’s mind as they read the words, “Any person who brings or drives a vehicle into a federal park shall be guilty of a misdemeanor.” The mental representation of the concepts conveyed by a statute typically does not include borderline cases. As a result, punishing someone for a borderline violation of a criminal statute would go against the natural reading of the statute. They would not have been given fair notice that their conduct would be subject to punishment but rather misled into thinking that they were following the law by the vagueness of the statute. In order to preserve the important rule of law value of fair notice, the rule of lenity requires a narrow construction of such statutes.

Leading cases on the rule of lenity often explicitly endorse a similar story regarding the expectations that readers of a vague statute are likely to have. For instance, in McBoyle v. United States, the Supreme Court applied the rule of lenity to rule that airplanes were outside the scope of the phrase “motor vehicle” as it was used in a federal criminal statute. The opinion justifies excluding airplanes from the motor vehicle category by stating that the “motor vehicle” phrase “evoke[s] in the common mind only the picture of the vehicles moving on land.” Courts are worried about the lay citizen reading a statute and naturally having only the prototypical instances come to mind.

Importantly, the analysis just described is meant to be focused on the statute itself rather than the defendant. That is, for any given statute, the test is not to see if the defendant in the instant case actually read the statute. Many, perhaps most, defendants have not. Instead, the analysis looks at the statute itself and how the text comes across to the ordinary reader. If the indeterminacy of a statute risks misleading readers, the rule of lenity attempts to limit punishment in such instances by requiring a narrow construction of the statute. The rule of lenity aims to correct a deficiency in the law itself.

H.L.A. Hart’s rule of law account of excusing conditions to criminal liability can provide additional theoretical grounding to the concept and value of fair notice. On Hart’s account, people should be able to avoid law’s sanctions if they so choose. There is an important security provided by knowing that we will be safe from punishment so long as we choose to follow the laws set out for us. However, if we read a statute and naturally think only of the prototypical cases, then we will think that we are following the law when we commit borderline violations of that statute. Punishments for non-prototypical violations of a criminal law statute subvert the safety of choice to follow the law. The park-goer does not think that they violate the “no vehicles in the park” statute when pushing a wheelbarrow across the park gates. If it were not for the rule of lenity, their having read the law and intention to follow it would provide no assurance that they are safe from punishment; the court could arrive at an interpretation that they had never expected by considering a wheelbarrow a vehicle.

Hart’s position here can be understood as a safe path argument. It is a minimal requirement of a legal system that it provide at least one path safe from punishment along which ordinary citizens can walk. The clearest violation of a safe path is the criminalization of both an action and its absence. For instance, suppose that criminal law both required citizens to wear a face mask and forbid citizens from wearing a mask. It may even be the case that both laws, understood separately, are reasonable—perhaps the legislature passed the first law to minimize transmissions of an infectious disease and the legislature passed the second law because the purchase of face masks by laypeople caused a shortage for healthcare workers. However, having both laws at once clearly violates the safe path requirement. There would be no way for a citizen to avoid punishment in a system that punishes both an action and its absence. In this situation, we would say that there is no safe path at all.

The absence of fair notice likewise violates the safe path principle. This is because the presumed safe path for ordinary citizens is the option to read the law and avoid the prohibited acts. When fair notice is violated, for instance by the punishment of non-prototypical violations of law, this safe path is upturned. These citizens’ reading of a vague statute would mislead them into thinking that they are outside the reach of punishment only to have the rug pulled out from under their feet. The state cannot be said to have provided its citizens a genuine choice to avoid punishment because the citizens were misled about which actions would lead to punishment. Vague statutes thus compromise the availability of a path safe from punishment along which ordinary citizens can walk. Lenity aims to protect for citizens a genuine choice to avoid punishment.

In sum, it is a rule of law principle that the government may not punish an individual without having first given fair notice that such actions would be punished. Such a principle protects the ability of citizens to find out which acts are punished and avoid committing such acts. The statutory notice that government gives to citizens is fair only insofar as citizens can naturally discern which of their acts are prohibited from reading the statute. Without lenity, citizens can be misled by a vague statute into thinking that they are safe from punishment. The significance of this rule of law value has been thought by some to endow on the rule of lenity a “quasi-constitutional status” due to its role in protecting fair notice.


Part I, in the process of explicating the rule of lenity, has presented two propositions that deserve further consideration:(1) the rule of lenity determines the meaning of criminal statutes, and (2) the rule of lenity is best justified by the normative principle of fair notice. The second proposition has to do with the rule of lenity’s purpose. The first proposition has to do with lenity’s mechanism; in order to carry out its purpose of fair notice, the rule of lenity stipulates a narrow meaning to a linguistically indeterminate statute. Though each proposition is well-accepted—one would not have trouble finding Supreme Court opinions or law school casebooks that repeat these truths—it nevertheless seems to me that the two propositions are at odds with one another. Lenity’s purpose is normative, but its outcome is semantic.

By definition, to interpret a text is to ascertain its meaning. The rule of lenity is not an attempt to ascertain the meaning of a statute; it instead stipulates a narrow meaning to a statute in order to protect fair notice. Thus, it is odd that the rule of lenity, which does not even purport to ascertain the meaning of a statute, is nevertheless a canon of statutory “interpretation.” If the purpose of the rule of lenity is something other than figuring out the meaning of a statute, then why does it end up determining the meaning of the statute?

This oddity of the rule of lenity may be best understood in contrast to more ordinary canons of statutory interpretation. For example, many canons rely on “maxims of word meaning” or rules of grammar to help piece together the meaning of a text. For these canons, their purpose and outcome are aligned. These rules rely on linguistic premises to ascertain the meaning of a text, so it makes sense that the outcome of applying these rules is to determine the meaning of statutes.

Canons of statutory interpretation can be analytically divided into three categories. While textual canons “[find] meaning from the words of the statute” and reference canons determine “what other materials might be consulted to figure out what the statute means,” substantive canons like the rule of lenity instead implement normative principles external to the task of interpretation like fair notice. Substantive canons, in contrast to the other two types of canons, are not concerned with “finding” or “figuring out” what the statute means. Substantive canons are grounded in normative policy principles rather than interpretative principles.

Putting these distinctions to work, one can only conclude that the rule of lenity is a canon of statutory “interpretation” in name only. The purpose of the rule of lenity is to protect criminal defendants who failed to receive fair notice that their conduct would be punished. Rather than interpreting a text, the rule assigns the words of a statute narrow meaning in order to implement normative principles concerning rule of law values. The canon is not a rule of interpretation properbecause it never seeks to interpret, that is, ascertain the meaning of, a statute. The rule of lenity has a semantic outcome—determining the meaning of a statute—which is flatly inconsistent with its non-semantic purpose.

Notice also that the problem I have outlined here does not depend on any particular theory of statutory interpretation. The discrepancy between the rule of lenity’s purpose and outcome relies only on the distinction between figuring out a meaning and stipulating a meaning. The rule of lenity stipulates the meaning of a statute instead of trying to figure out what the statute means. On no theory of statutory interpretation is providing fair notice for criminal defendants a way of figuring out the meaning of a statute. Providing fair notice is, on its face, neither a way of getting at the plain or ordinary meaning of a text nor uncovering the purpose of a statute, so it cannot be understood as either a textualist or purposive doctrine of interpretation. The discrepancy between the rule of lenity’s purpose and outcome should worry legal scholars of all stripes.


The theoretical disconnect between lenity’s purpose and outcome just outlined in Part II entails thorny doctrinal consequences. This Part explores three such doctrinal consequences: the rule of lenity cannot handle linguistic ambiguity, the rule oversteps its boundaries and enters civil law, and the rule fails to resolve issues of fair notice that result from higher-order vagueness.

A. Linguistic Ambiguity

Consider the following hypothetical. The word “bank” may refer to either the financial institution (“financial bank”) or the land next to a river (“river bank”). Suppose the Bank Safety Act criminalizes starting a fire within one hundred feet of a bank, and it is indeterminate which of the two meanings should be applied to the term “bank.” As argued in Section I.B, such indeterminacy of meaning violates the principle of fair notice. Suppose further that two defendants are on trial, Defendant A for having set fire next to a financial bank, and Defendant B for having set fire next to a river bank.

The rule of lenity states that an indeterminate text must be interpreted in favor of the defendant. But which one? Giving the statute either meaning will absolve one of the defendants but still condemn the other. The rule of lenity is like the Buridan’s ass unable to choose between two identical stacks of hay. If the court rules that “bank” refers to financial banks, then Defendant A will be held criminally liable, and if the court rules that “bank” refers to river banks, then Defendant B will be held criminally liable. This is because the statute’s indeterminacy arises from linguistic ambiguity rather than vagueness.

Linguistic ambiguity should be understood as distinct from another kind of ambiguity discussed earlier, what one might call legal ambiguity. What judges and practicing lawyers most often mean when they use the term ambiguity is a general kind of uncertainty about the application of a statute. Legal ambiguity can arise for a variety reasons. One such reason for legal ambiguity, discussed in the previous part of this Article, is the vagueness of language. Another reason for legal ambiguity is the kind of linguistic indeterminacy we saw with the two meanings of bank, what I refer to here as linguistic ambiguity.

Vagueness in language concerns how far out to draw the boundaries of certain terms, for instance how broadly we draw the category of manufacturing a short-barreled firearm. When linguists use the term ambiguity, they are instead referring to terms that can have disparate meanings altogether, such as the two possible meanings of the term bank. Put succinctly, vagueness concerns interpretations that differ in degree while ambiguity concerns interpretations that differ in kind. Whereas in cases of vagueness, the court can choose between broad and narrow readings because the narrow reading is a proper subset of the broad reading, in cases of ambiguity, there is no narrow interpretation because neither the river bank meaning nor the financial bank meaning is a proper subset of the other. Either reading of bank holds one defendant culpable while letting the other go free.

Plainly, this result of the rule of lenity is inconsistent with the demands of the rule’s fair notice purpose. Neither Defendant A nor Defendant B had fair notice that their action was punishable because the statute was ambiguous between their two readings. One could read the Bank Safety Act and come away thinking that it permits starting fires next to financial banks or come away thinking that it permits starting fires next to river banks. Given the indeterminacy of meaning, both are natural readings of the statute. The law does not clearly mark the path safe from punishment. Since neither defendant received fair notice, it would be unfair to punish either defendant.

Thus, the rule of lenity’s outcome is under-inclusive with respect to its purpose. Though the rule of lenity’s purpose of protecting fair notice would dictate absolving both defendants of criminal liability, its semantic outcome is unable to provide such a result.

At this point, the astute reader might raise the following objection. Thus far, by focusing on the fact that bank has just two possible meanings, I have obscured a third option that would work best. When it comes to linguistically ambiguous statutes, the objection states, the rule of lenity should say that the statute has no meaning at all. That is, the Bank Safety Act should be construed not to criminalize any behavior because its use of the term bank has no meaning. Following this rule, both Defendants A and B would go free, and the result would thus comport with the demands of fair notice.

In response to this objection, suppose that there is a third defendant, Defendant C. Defendant C started a fire next to a financial bank that happened to be located on a river bank. On either meaning of bank, Defendant C is guilty and, thus, had fair notice their actions were prohibited by law. Defendant C cannot possibly claim that the ambiguity in the statute would mislead someone into thinking that their actions were permissible. If the court construes the Bank Safety Act to have no meaning at all, then it would let Defendant C go, despite the fact that they had fair notice of punishment. The rule would still fail to serve its purpose.

The hypothetical Bank Safety Act demonstrates one way the disconnect between the rule of lenity’s purpose and outcome could lead to its being under- or over-inclusive, but a critic may nevertheless contend that such ambiguities appear rarely in the actual law. When will a reader actually be faced with the term “bank” in a statute and be unable to figure out whether it refers to river banks or financial institutions? Usually, the context and purpose of a statute will make one meaning the clearly right interpretation for a linguistic ambiguity, thereby eliminating any indeterminacy.

In part, I agree with the critic and, in part, I disagree. I concede I have no quantitative measurement of how often courts are faced with linguistic ambiguity, so these cases may indeed be rare. Scholars have noted real examples where the courts have had to interpret linguistically ambiguous statutes, but it is not obvious how often such ambiguities appear. Where I disagree with the critic is that I fail to see how this is a criticism. There is, at minimum, a conceptual problem at issue—the rules and principles of our legal system fail to conceptually form a coherent whole. The hypothetical example I used here lays bare a real incoherence in our legal system. Uncovering this previously unnoticed incoherence deepens our understanding of the rule of lenity. Moreover, even if linguistically ambiguous statutes are rare, the incoherence of the rule of lenity will still have other critical real-world consequences as the next Section of this Article will show.

B. Tax Law’s Rule of Lenity

Incongruous with its purpose to provide fair notice of punishment, the rule of lenity leads to narrow constructions of texts even outside of the criminal context. For instance, in United States v. Thompson/Center Arms Co., the Supreme Court, relying on the rule of lenity, assigned a narrow meaning to the phrase “making of a firearm” with regard to an excise tax levied on the manufacture of firearms under I.R.C. § 5821. The statute’s definition for “firearm” included short-barreled rifles, but excluded pistols and long-barreled rifles. The taxpayer packaged as one unit three parts that could be connected together: a shoulder stock, a pistol, and a barrel extension. As before, let us call this unit of three parts a “Thompson/Center kit.” Putting the three parts together would create a long-barreled rifle, on which no excise tax is laid. Putting just the shoulder stock and pistol together would create a short-barreled rifle on which excise tax is laid.

The Court stated that the manufacture of a Thompson/Center kit was not clearly an instance of making a firearm, but was also not clearly not an instance of making a firearm. Its next move, surprisingly, was to apply the rule of lenity. The Court assigned a narrow meaning such that only clearly making a firearm would count under § 5821. Since making the Thompson/Center kit is not clearly an instance of making a firearm, § 5821 does not here apply. Therefore, under the rule of lenity, the taxpayer need not pay any excise tax on the manufacture of a Thompson/Center kit.

The imposition of tax is a civil matter, not a criminal one. Thompson/Center Arms had paid the excise tax and was merely bringing suit to get a refund of those payments. Recall that the rule of lenity was justified under the context of punishment and the special kind of notice that the harshness of punishment demands. It seems no more appropriate to apply the rule of lenity in a civil matter than it would to apply a beyond a reasonable doubt standard of evidence to civil trials. So why was the rule of lenity being used within the context of tax law? The Court’s winding reasoning proceeds as follows. To begin, § 5871 imposes criminal penalties for nonpayment of the § 5821 excise tax on firearms. I.R.C. § 5821 is, by that fact, both a criminal statute and a tax statute (or “dual-purpose statute”). Therefore, the rule of lenity should apply to § 5821 within the context of criminal law to assign a narrow meaning to the phrase “making of a firearm.” The meaning of a single statute cannot fluctuate depending on what the statute is being used for. This principle of consistency in statutory interpretation is well grounded. (Using technical language of utterances, types, and tokens, it is easier to state this proposition more precisely: though a single utterance type may have multiplicity of meaning depending on context, a single utterance token cannot.) Therefore, if the rule of lenity requires assigning a narrow meaning to “making of a firearm” in the criminal law context, the narrow meaning assigned to “making of a firearm” applies to cases of civil tax law as well.

Thompson/Center stands for the principle that the rule of lenity properly applies to dual-purpose statutes. This abstract principle has left unresolved the concrete questions of exactly how lenity will change the interpretation and administration of civil law. Does lenity apply to all tax statutes? Where lenity does apply, what is its effect, counterfactually speaking? Though there is a lot of uncertainty in this area of jurisprudence, the following Sections analyze these two questions in order.

It should be noted that there are also dual-purpose statutes outside of the tax realm in areas ranging from securities law to environmental law, where violations of civil law can carry criminal penalties. Thus, I intend for my analysis of lenity in tax law to be valuable in itself as well as serving as an illuminating case study for the problem more generally across the variety of dual-purpose statutes in the law.

1The “Willfulness” Requirement

The dual-purpose nature of tax law will serve as the starting point of the inquiry. I.R.C. § 5821 is not the only statute that carries criminal penalties for non-compliance. I.R.C. §§ 7201 and 7203 assign criminal penalties to nonpayment and evasion of any tax imposed under the tax code, Title 26. Similar provisions assign criminal penalties for various procedural violations. So, one might reasonably conclude that the rule of lenity ought to apply to the interpretation of tax laws generally.

However, the Court in Thompson/Center implies that the rule of lenity need not be applied to all tax laws because § 7201 and related statutes can only be violated if the taxpayer acts “willfully.” The willfulness requirement of § 7201 already builds in notice as a pre-condition of punishment since the willfulness requirement is a requirement that the taxpayer know of and understand the law that they are breaking. Though the opinion is not explicit about either the rule or the underlying principle, the Court appears to be taking the position that the willfulness requirement satisfies the requirement of fair notice, so no application of the rule of lenity to the general tax law is required.

The Thompson/Center opinion’s use of the willfulness requirement as a dam against applying the rule of lenity is colorable, but not without cracks. The first crack in the dam is that not all tax statutes require willfulness. Thompson/Center presented just such a case, as § 5871 had no willfulness language. In those instances, it is clear that the rule of lenity should apply. The second crack in the dam is that it is not some necessity of tax law that its violations be punished only if such violations are willful. The willfulness requirement of tax law, as this Section argues, is contestable and contingent.

Generally, ignorance of the law is not an excuse. One is not released from criminal liability for not having known about the existence of a law criminalizing that particular conduct. Justice Oliver Wendell Holmes gave an oft-cited defense of the doctrine, “to admit the excuse at all would be to encourage ignorance where the law-maker has determined to make men know and obey.” Such a deterrence rationale satisfies the utilitarians. Retributivists, in contrast, have tended to consider the mistake of law doctrine a thornier problem. In particular, retributivists have found the lack of an excuse for mistake of law unfair when applied to mala prohibitaoffenses and in cases where the defendant was not culpable for his ignorance of the law.

Tax law presents an exception to the rule that mistake of law does not excuse. I.R.C. § 7201 provides that “[a]ny person who willfully attempts in any manner to evade or defeat any tax imposed by this title or the payment thereof shall, in addition to other penalties provided by law, be guilty of a felony.” The “willfulness” requirement of § 7201, as interpreted in Cheek v. United States, is a legislative exception to the rule that ignorance of law does not excuse.

As the court stated in Cheek, the central idea behind this exception is that “[t]he proliferation of statutes and regulations has sometimes made it difficult for the average citizen to know and comprehend the extent of the duties and obligations imposed by the tax laws.” Knowledge of a body of law as complicated as tax law requires either ability and effort devoted to understanding the requirements of tax law or the resources to hire an able person who has devoted time to studying the tax law. When the barrier to knowledge of tax law is so high, it would be unfair to punish individuals who have violated the tax law due to ignorantia legis. The Court’s reasoning thus echoes the aforementioned retributivists’ fairness concerns regarding cases in which defendants are not culpable for their ignorance of the law. For this reason, knowledge of law has been understood to be required for criminal liability across cases interpreting several criminal tax statutes.

Whether ignorance of tax law should be an excuse is a matter of balancing costs and benefits of such a rule. As the law becomes more complex, the unfairness of punishing a mistake of law increases. However, exempting mistake of law cases adds costs to the litigation process and lowers deterrence effects when people who know the law can credibly claim in court that they did not. Whereas legislatures have typically found that the balance tips against allowing ignorance of law as an excuse to criminal liability generally, Congress has found the balance tips in favor of allowing ignorance as an excuse when it comes to issues of tax law.

Reasonable minds, of course, can disagree with Congress about the outcome of the cost-benefit analysis. The cost-benefit balancing is contingent on not only the complexity of law and our valuation of the competing normative principles, but also the positive facts. For instance, suppose that the Treasury Department could provide a pre-populated tax return for low- and middle-income individuals. State-level implementation in California has been successful in providing pre-populated returns for those with simple tax situations, and pre-populated tax returns could plausibly be implemented at the federal level as well, the proposal even having been a part of then-Senator Barack Obama’s presidential campaign platform. Furthermore, most developed nations have return-free filing for low- and middle-income taxpayers, and such a system is not outside the realm of possibility in the United States. If we were to resolve the compliance difficulties currently in our system for low- and middle-income taxpayers, then the case for removing willfulness becomes much stronger, perhaps overwhelming the reasons for keeping the willfulness requirement. If the Treasury were to do all of the legwork for the taxpayer, then complying with the tax law would require no greater intellectual sophistication than following criminal law generally.

Regardless of how one would, from one’s preferred moral and political valuations, balance the costs and benefits, I take it that we all agree that if the balance of reasons weighed against the willfulness requirement, Congress should be able to revise the language of I.R.C. § 7201 (and corresponding criminal tax statutes) to delete the word “willfully.” An amendment by the legislature that ignorance of the law does not absolve one of criminal liability in tax law, which is a matter of retributive justice, should not have enormous implications for the distribution of tax liabilities, a matter of distributive justice. Yet this is precisely the consequence of the too much lenity problem.

2. From Deference to Strict Construction

Following the question of to which statutes the rule of lenity will apply, the second question is what effect such an application will have when the rule does apply to a dual-purpose statute. Recall that the rule of lenity requires finding in favor of the defendant when the law is unclear. This interpretative stance is striking as an approach to tax law. Indeterminacy is a persistent problem for statutes, and the tax code is no exception. Moving from an approach of uncovering the best interpretation of tax statutes to a taxpayer-wins approach in hard cases is a harsh blow to the tax law’s aims. An application of the rule of lenity is particularly harmful to the IRS’s enforcement efforts, as it is in the gaps of legal ambiguity where tax shelters thrive.

This issue becomes the clearest when comparing the rule of lenity to the general doctrines granting deference to the Treasury, and by extension the IRS, in interpreting the tax law. This comparison serves to analyze the counterfactual, the interpretative approach that would govern were lenity not to apply. An examination of the counterfactual brings to light just how starkly lenity contrasts in terms of both its purpose and effect.

Generally, when statutes are ambiguous, administrative agencies are granted deference (often called “Chevron deference”) by the courts in the agencies’ interpretation of the statutes they administer. The deference given to the IRS helps it to fill in the gaps of statutes in a way that comports with the aims of the tax code, collecting revenue in a just and efficient manner.

In contrast, the Department of Justice, which prosecutes federal criminal offenses, receives no such deference in its interpretation of criminal statutes. Instead, it is well established that to afford it deference would be to run completely opposite the rule of lenity. Whereas the rule of lenity is a pro-defendant approach to interpretation, affording deference to the Justice Department would be pro-prosecution. As Justice Scalia has put it, to afford deference to the Justice Department would “turn the normal construction of criminal statutes upside-down” into “a doctrine of severity.”

The doctrines of deference and lenity clearly juxtapose two distinct considerations about the right approach to take with regard to gaps in the law. On the lenity account, legal indeterminacy represents a rule of law failure and, in order to protect a path safe from punishment, citizens who fall under that penumbra cannot be punished. This account makes sense given the role of criminal law in carrying out retributive justice aims of punishment and moral condemnation. On the deference account, the gaps in the law ought to be filled by the expert, policy-driven approach of administrative agencies. This account makes sense given the role of tax law in coordinating distributive justice and revenue-raising functions. By cabining lenity to criminal law and deference to civil law, these opposing doctrines would have been kept aligned to their respective purposes, but under the Thompson/Center holding, lenity would apply to dual-purpose statutes that are being interpreted in the civil context. Even in cases that solely determine civil tax liability, instead of the interpretive regime that would best carry out the purposes of the tax law, the courts must employ a rule built to protect criminal defendants. The rule of lenity is incongruous with its purpose.

Without the kind of policy-driven approach permitted by Chevron, it is hard to imagine that there can be effective policing of tax shelters. In order to distinguish between abusive tax shelters and permissible tax planning, the agencies must look to the general purpose of the tax laws. This is because tax shelters follow the letter of the tax law while going against the fundamental spirit of the tax code. Whereas deference allows the IRS to interpret statutes in line with the spirit of the law, lenity swings much closer to the textualist “letter of the law” interpretation. Foreign jurisdictions applying ordinary meaning textualist approaches to interpretation have struggled to strike down tax shelters, and Thompson/Center threatens the same for the US system.

As with the willfulness dam limiting the statutes to which lenity applies, the Court has partly walled off the deference due to some agency interpretations from Thompson/Center’s assault. Though the tension is not yet fully resolved, the Supreme Court has laid out a middle way between the two competing doctrines for some dual-purpose statutes in Babbitt v. Sweet Home Chapter of Communities for a Greater Oregon, such that not all administrative interpretations will be stripped of deference. According to the middle way, agency interpretations of dual-purpose statutes will still be granted deference if they satisfy fair notice principles. In Sweet Home, the Court noted that the agency interpretations satisfied fair notice because they came in the form of regulations that had been published for twenty years.

But the Sweet Home middle way is limited. Not all administrative interpretations come by longstanding published regulations. Thompson/Center, for instance, presented a case in which no regulations were present. In the spaces where the IRS has not passed longstanding, formal, law-like regulations or has passed regulations with language itself subject to competing interpretations, it appears that fair notice will not have been provided. These gaps are significant. Practitioners (or indeed anyone familiar with the tax system) would vouch for the importance of informal, nonbinding IRS guidance on tax matters. Abusive transactions exploiting legal ambiguities in the tax code are often noticed by the IRS only after a taxpayer has engaged in such transactions. For these cases, Thompson/Center would severely hinder the Service’s efforts in effectuating the purpose of the tax laws by shifting from a deference regime to lenity.

Furthermore, the Sweet Home approach to deference has also drawn academic criticism for failing to coincide with the non-delegation principle, which would confine the morally laden task of drafting criminal law statutes to elected officials in the legislature. Chevron is essentially a delegation doctrine, recognizing the delegation of interstitial lawmaking authority from the legislature to the administrative agencies. Since dual-purpose statutes serve criminal functions, allowing agency interpretations deference essentially puts the agencies in the role of filling in the criminal law and thereby violates the non-delegation principle. Agency deference ought to be limited to civil law just as the rule of lenity ought to be limited to the criminal law.

3. Legislative Solutions to the Too Much Lenity Problem

As I hope to demonstrate in this Article, I think that there are solutions to the too much lenity problem. Before getting to my preferred solution in Part IV, I discuss in this Section a possible legislative response and the difficulty it faces.

One possible response to the problem of too much lenity is for Congress to draft a separate criminal tax code and civil tax code. The problem of too much lenity arises when a criminal tax law refers to the language of a civil tax law. For instance, § 5871 states, “Any person who violates or fails to comply with any provision of this chapter shall, upon conviction, be fined not more than $10,000, or be imprisoned not more than ten years, or both.” The phrase “this chapter” refers to chapter 53 of the Internal Revenue Code, which governs the taxation of machine guns, destructive devices, and certain other firearms. It thereby requires substantive tax laws within chapter 53 to now perform double duty, assigning civil tax liability and serving as part of the criminal actus reus for § 5871.

Separating the two contexts through drafting may seem a reasonable solution at first, but thinking through how such a solution could be carried out leads to a primary difficulty. How could the legislature be able to draft language regarding the violation of tax law without referring to such laws? The content of the crime set out in § 5871 is that someone violated the tax law. And if this violation of the tax law is what we hold to be criminal, then it is hard to see how the criminal statute could be drafted without reference to the civil tax law.

The act/omission distinction partly explains the issue at hand. The distinction is ordinary and, so, should be familiar to most. To water a plant involves carrying out some willed bodily movement, an action. Omissions can best be understood negatively as the absence of a certain act. If you have agreed to water your friend’s plants while they are on vacation, then your failing to do so is an omission—an absence of the act of watering. The law typically criminalizes acts; a major exception is in tax law, where omissions are criminalized.

Consider the language of 18 U.S.C. § 1584, which punishes “[holding another person] to involuntary servitude.” Holding another person to involuntary servitude is an act. The statute reflects the prohibition against involuntary servitude laid out in the Thirteenth Amendment but, importantly, does not directly reference the Thirteenth Amendment. Since § 1584 assigns punishment to an act, it need not refer to any other provision. It can merely replicate the language of the Thirteenth Amendment and punish holding others to “involuntary servitude.” And although this is an instance of replication between the Constitution and a statute, it is not hard to see how the same could be accomplished with replication between criminal law and civil law. The civil code can set out civil penalties for the conduct of such-and-such act and the criminal code can set out criminal penalties for the conduct of such-and-such act without either needing to directly reference the other.

In contrast, I.R.C. § 5871, and tax crimes more generally, punish non-compliance with respect to some legally required conduct, an omission. Since the omission is defined by the required conduct that one is omitting to do, one cannot spell out the omission without reference to the law that sets out the required conduct in the first place; insofar as that required conduct is a matter of civil tax law, that means that the criminal tax law must refer to the civil tax law. I.R.C. § 5871 must refer to § 5821 since § 5821 sets out the required conduct, the omission of which is punishable.

C. Higher-Order Vagueness

To make it easier to talk about the rule of lenity, let us stipulate another law and some facts about language. Suppose that there is a law prohibiting driving dangerously. The safe driving statute reads:

Whoever operates a motor vehicle or motorcycle on the public roads or highways at a dangerous speed, having regard for width, traffic, use, and the general and usual rules of such road or highway shall be fined not more than twenty-five dollars.

The half-fictive statute is based on former Oregon General Code Section 12603, which was upheld as a valid statute in State v. Schaeffer.

Table 1.  Table of Stipulations (Stated Again Infra)

Statute’s Meaning

Analysis of Statute’s Meaning (Includes Borderline Instances)

Citizen’s Mental Representation of Statute’s Meaning (Only Prototypical Instances)

Dangerous Driving

60 mph or faster

70 mph or faster

Clearly Dangerous Driving

70 mph or faster

80 mph or faster

Clearly Clearly Dangerous Driving

80 mph or faster

90 mph or faster

Note: I encourage the reader to refer to this table while working through the following paragraphs. In order to state the problem, some unusual and technical locution must be used, so the graphical component of this table will aid in comprehension.

All reasonable people will admit that what counts as dangerous driving admits of borderline cases and is, thus, a vague predicate. Suppose by stipulation that 60 miles per hour (“mph”) is the cutoff for driving dangerously on Birch Avenue at 10 a.m. on Wednesday—one is dangerous if and only if one is driving at 60 mph or faster. Of course, driving at 60 mph is not prototypically dangerous, it is instead a borderline case. In fact, it is the border! Let us then stipulate that driving on Birch Avenue is clearly dangerous if and only if the car is going 70 mph or faster.

When a person reads the safe driving statute, their mental representation includes only these prototypical, clear instances of dangerous driving, or so the story of fair notice goes. Driving at 60 mph, borderline dangerous driving, never crosses the mind of Average Joe as dangerous as he drives down Birch Avenue at 60 mph. Thus, when Joe goes on trial, the judges apply a rule of lenity. They construe the statute to mean that Average Joe can only be found guilty for dangerous driving if he has driven clearly dangerously, not just borderline dangerously. To do otherwise would be unfair to his natural reading of the statute and violate fair notice as a rule of law value. So a rule of lenity, which caters to expectations, now requires judges to only find a defendant guilty of dangerous driving if the car was moving at 70 mph or faster, for it is these speeds that are clearly dangerous. Joe has not violated the safe driving statute, the court rules.

From here, the story unravels. The key observation is that someone who knows about the rule of lenity will now actually have a narrower realm of expectation. Recall that the rule of lenity, as a canon of statutory interpretation, assigns meaning to the statute. After Joe’s trial, the meaning of the statute changed from prohibiting dangerous driving to prohibiting clearly dangerous driving. So suppose Steve knows that courts have applied the rule of lenity with respect to the safe driving statute because he read the opinion from Joe’s verdict. Whereas Joe read the statute to mean that “dangerous” driving is prohibited, Steve rightly reads the statute to mean “clearly dangerous” driving is prohibited. The ultimate authorities on the meaning of statutes are the courts, and the courts have stated that the safe driving statute means do not drive clearly dangerously. Steve knows from reading the opinion from Joe’s case that if he drives dangerously but only barely so such that he is still a borderline rather than prototypical case of dangerous driving, he will then be outside the ambit of the statute. The rule Joe follows is do not drive dangerously. The rule Steve follows is do not drive clearly dangerously. Since Joe and Steve have different propositional contents for the rules that they are following, they will also have different mental representations. If Steve expects that he will only be in violation of the statute for clearly dangerous driving, he will conjure the mental image of a prototypical clearly dangerous speed, not a borderline clearly dangerous speed. In other words, if mental representations of concepts are just those of prototypical instances, as discussed in Section I.B., then the mental representation that Joe has is of clearly dangerous driving while the mental representation that Steve has is of clearly clearly dangerous driving. The crux of the issue is that “clearly dangerous” is itself a vague predicate—what counts as clearly dangerous driving admits of both clear and borderline cases. This is the recursive phenomenon of higher-order vagueness, vagueness about the borderline cases.

Driving at 70 mph is a borderline case of clearly dangerous driving. Driving at 70 mph, however, is not clearly clearly dangerous driving. It is merely clearly dangerous. The mental representation of dangerous driving that Steve has upon reading the statute with the rule of lenity in mind—the propositional content of which is do not drive clearly dangerously—is driving at 80 mph or greater. Thus, Steve does not expect to be found guilty of dangerous driving when he drives at 70 mph. Applying exactly the same sort of reasoning that justified having the rule of lenity in the earlier case, a court system ought now to adopt a double rule of lenity to deal with the issues caused by second-order vagueness; otherwise, they will violate Steve’s expectations and the rule of law value of fair notice. Steve can be found guilty of dangerous driving only if he drove clearly clearly dangerously—at 80 mph or greater.

Such reasoning can continue ad-infinitum, adding the clearly adverb with each iteration of higher-order vagueness. In order to protect fair notice, there must be the triple rule of lenity, the quadruple rule, the quintuple . . . . But surely this is absurd. Since we plainly ought not adopt an infinite rule of lenity—lest we let many dangerous drivers go free—and fair notice does seem to be an important rule of law value in criminal law, something has gone quite wrong. Citizens who read a statute after the rule of lenity has been applied are failing to receive fair notice of punishment. Call this the “higher-order vagueness problem.”

Many readers, when presented with my argument above, have responded that the court ought to draw clear boundaries in order to avoid the higher-order vagueness problem. On their account, instead of changing the meaning from dangerous to clearly dangerous, the court should instead state something akin to “we hereby stipulate that any speeds at 70 mph or greater will count as dangerous driving for the purpose of the safe driving statute.” Whereas “clearly dangerous” is vague, “70 mph or greater” is a bright line rule. No problem of higher-order vagueness is presented for “70 mph or greater.” Steve, when reading this opinion, should have a clear mental representation that 70 mph driving is prohibited by law.

The problem with such a response is that it fails to notice that this discussion has thus far been using elliptical construction to hide the context dependence of the statute. The safe driving statute states that the notion of dangerous speed must be understood in the context of “width, traffic, use, and the general and usual rules of such road or highway.” Even if the court draws clear boundaries in one context, it leaves the other contexts open. 70 mph is a clearly dangerous speed for driving on Birch Avenue at 10 a.m. on Wednesday. But what counts as a dangerous speed on Grove Street at 8 p.m. on Saturday or MLK Boulevard at 4 p.m. on Tuesday? Surely, the court cannot delineate what counts as dangerous for every width, traffic, use, and the general and usual rules of every road and highway. And what of vague predicates that reject quantification altogether, such as the No Vehicles in the Park statute? How would a court draw up a bright line rule for the meaning of “vehicle”? The courts are severely limited in their ability to draw bright line rules. In most cases, they must simply apply the rule of lenity to restrict the meaning of a vague statute to only its prototypical instances, thus leading to the higher-order vagueness problem.

1. Technical Bookkeeping

For most legal scholars, the above Section should be convincing on its own. For these scholars, I recommend skipping this addendum on the more technical workings of the intuitive story set out above. Those more inclined to debate the theoretical foundations of law may disagree with how I have presented the issues above. Here, I respond to such disagreements.

In the above example of Steve and Joe, some theoretical premises were implicit in how I laid out the example. Premise one, legal realism is false. Premise two, judges assign meaning when applying the rule of lenity. Premise three, there is a fact of the matter about the borders of vague predicates, but such facts are unknowable (in other words, epistemicism). The higher-order vagueness problem is not dependent on these premises. Even if all three premises were false, I would need to revise only the manner in which the problem is laid out, not the substance.

The first two premises get to at what point Steve can rightly have the expectation that the law only punishes clearly dangerous driving. For instance, suppose the first premise is false and legal realism is true. According to legal realism (or, more precisely, legal realism as characterized by H.L.A. Hart), the law is whatever a judge will say it is. If that is the case, then Steve need not wait for the court to actually apply any rule of lenity for he knows they will. Legal realism states that the fact the court will apply the rule of lenity makes it currently the case that the statute has a narrow meaning. And if the future fact that judges will apply the rule of lenity is current law, then Steve should think, even before Joe’s case is heard, that the law prohibits clearly dangerous driving. The only difference here is a matter of timing. Was the meaning of the statute made narrow by the rule of lenity or was it always narrow since the rule of lenity will be applied when the meaning of the statute is litigated? Either way, the problem of higher-order vagueness stands.

Regarding the second premise, recall the earlier argument in Part II that the rule of lenity stipulates rather than figures out what the statute means. Though canons of statutory interpretation typically seek to figure out the existing meaning of a statute, substantive canons like the rule of lenity instead assign meaning to a statute based on normative considerations. The rule of lenity is not a rule of interpretation in substance since it is not concerned with figuring out what the words mean. When the courts are applying the rule of lenity, it is often within the space of indeterminacy, where meaning has run out. That courts change, rather than interpret, the meaning of a statute when they apply the rule of lenity (premise two above) was a key part of how I originally framed the higher-order vagueness problem.

Suppose, arguendo, the second premise is false and that the rule of lenity is a way of uncovering the existing meaning of the statute. That is, the safe driving statute already has a narrow meaning before it is ever litigated, and in litigation, judges are merely uncovering the existing meaning rather than changing the meaning to implement normative principles. This would make the rule of lenity a rule of statutory interpretation in substance. Even so, the higher-order vagueness problem remains. Again, the only thing that changes is that Steve, if he understands the already existing meaning of the statute, should think that only clearly dangerous driving is prohibited without needing to know about Joe’s case. As with the legal realism premise, the only change here is a matter of timing.

Finally, I have been speaking as if there is a definite fact of the matter about the category membership of borderline instances of a predicate and that we do not know such facts. I find the supposition of epistemicism an easy way to talk about vagueness, but its falsity does not solve the higher-order vagueness problem. The higher-order vagueness problem arises from the general features of vagueness that all theories of vagueness must accommodate:(1) vague predicates have borderline cases that cannot be clearly categorized either as or as not members of such predicates; (2) when reading a vague statute, the reader’s mind tends to conjure up only the clear cases and not the borderline cases; and (3) the question of which items are clear or borderline cases of vague predicates is itself infected with vagueness, thus necessitating distinctions between, for example, clearly clearly dangerous driving and borderline clearly dangerous driving. Features (1) and (2) necessitate a rule of lenity to provide fair notice, and feature (3) kicks the problem one level up each time that the rule of lenity is applied such that features (1) and (2) now apply to the higher level. All three features are theory-independent phenomena.


I have thus far noted the discrepancy between the rule of lenity’s purpose and outcome as well as three doctrinal problems that arise from the discrepancy. The rule of lenity cannot resolve cases of linguistic ambiguity. The rule of lenity extends into civil law. The rule creates higher-order issues of fair notice. Further, I have argued that such problems are foundational to the rule of lenity as it is currently applied. If my arguments are sound, then we must revise the jurisprudential approach to indeterminate criminal law at the foundation. But what should such revisions look like? This Part examines the fundamental nature of the courts’ current lenity jurisprudence and how it ought to be rectified in a way that maintains rule of law values.

On my diagnosis, the issue is that the courts have understood the rule of lenity to be a canon of statutory construction. As a canon of statutory construction, it determines the meaning of the statute to which it applies. Call such a doctrine the semantic rule of lenity. The meaning of statutes is not the right instrument by which to implement the demands of notice in punishment. As I have thus far argued in this Article, statutory interpretation is too blunt a tool for the fine purpose of protecting fair notice.

In some sense, it should not be surprising that the semantic rule of lenity runs into technical problems. The originators of the rule of lenity likely did not foresee the three doctrinal problems I have listed here. The rule of lenity, which traces back to sixteenth century England, predates both the advent of the Internal Revenue Code and contemporary linguistics. Ideally, we should like to reconceptualize the rule of lenity such that we avoid the three doctrinal problems while maintaining its function carrying out rule of law values.

The semantic rule of lenity should be replaced by what I will call the lenity excuse. There ought to be an affirmative defense available to defendants in those instances in which the defendants’ actions were within the penumbra of an indeterminate criminal statute without changing the meaning of that statute. Because the new rule would operate as an excusing condition, the mere fact that the law did not unambiguously criminalize a defendant’s conduct would be sufficient to negate any liability for criminal defendants in the same way that duress or insanity would negate liability. In this way, lenity would function like other excuses (such as duress or insanity) that absolve defendants of criminal liability when it would be unfair to punish them.

In the remainder of this Part, I will argue that my proposed revision to lenity would not only be pragmatic, solving the three doctrinal problems that plagued the semantic rule of lenity, but also conceptually fruitful, helpfully tying together the purpose of lenity with that of other excuses.

A. The Categorical Unity of Lenity and Excuse

In order to understand the categorical unity between lenity and excuse, one must first understand two foundational concepts and their relation to one another: affirmative defense and excusing condition. In criminal law, the establishment of an affirmative defense will absolve the defendant of criminal liability even if the prosecution has established case that all elements of the offense are present. A paradigmatic example is the excuse of duress. Suppose, for instance, that a defendant has stolen cash from his friend’s wallet because a thug made a credible threat to kill the defendant unless the defendant stole from his friend and gave it to the thug. Even if the prosecution can establish that all elements of the larceny offense are present, the defendant may appeal to the defense of duress, which absolves a defendant of criminal liability if the defendant was threatened with “unlawful force . . . , which a person of reasonable firmness . . . would have been unable to resist.”

For the second concept, that of excusing conditions, this Article will follow the analysis by H.L.A. Hart. Rather than defining the term, Hart provides a non-exhaustive list of its members: “Mistake, Accident, Provocation, Duress, and Insanity.” Unlike other analyses of excuses, which tend to center their focus around the defendant’s moral responsibility, Hart’s analysis of excusing conditions focuses on their role in protecting liberty. Hart finds excuses to be valuable because they provide for citizens the valuable ability to predict in what instances one will be punished and to avoid such instances through one’s own will.

Return to the duress example above. If the defendant stole from the defendant’s friend because a gunman threatened to kill the defendant otherwise, the duress excuse would absolve the defendant of criminal liability. If there was no such excuse available, then it would be very difficult for a citizen to ensure they avoid punishment. In such a system, the citizen cannot guarantee that they will avoid punishment as a result of two factors working in conjunction. Firstly, to the extent one has no control over what a violent gunman will do, one cannot guarantee that one will not be threatened by a gunman. Second, to the extent that it is near impossible to resist the orders of a gunman, one cannot guarantee that one will not commit the crime the gunman demands. Thus, without a duress excuse, whether or not one will go to jail would depend on the unpredictable whims of a gunman. In such a case, it cannot be said that the individual had a genuine choice to avoid the law’s criminal sanctions. The duress excuse eliminates this worry by ensuring that, in this unpredictable circumstance, one will be saved from punishment.

As argued in Section I.B, fair notice of the criminal laws is also an essential part of citizens’ having a genuine choice to avoid punishment. Fair notice is essential because it gives citizens an opportunity to figure out which actions are subject to punishment under the law. For instance, if the government chose not to publish the criminal laws but instead keep them private, an ordinary person would not have the ability to figure out which actions will be met with punishment. Although Hart himself did not explicitly consider the question of whether or not fair notice doctrines should be understood as excuses, his theory and its implications are clear. In order to protect the choice to avoid punishment, Hart plainly states that citizens must be given the ability to “find out, in general terms at least, the costs they have to pay if they act in certain ways.”

Thus, lenity’s purpose of protecting the choice to avoid punishment aligns the doctrine more closely with the domain of excuse than the domain of statutory interpretation. Given the theoretical unity between lenity and excuse, it may be instructive to look to how other excuses are applied in the criminal law and consider whether lenity should be given the same treatment.

Many excusing conditions, such as duress and insanity, are employed as affirmative defenses under the law. In these instances, we take it as obvious that if what we want to do is free the defendant, then we should do that directly by permitting a defense, rather than indirectly through changing what a statute means. I propose here that the same treatment be given to lenity, allowing for defendants to simply avoid punishment in instances where the statute was indeterminate with respect to the defendant’s behavior without constraining the meaning of that term as the current semantic rule of lenity does.

Excuses are often understood in contrast to another category of affirmative defense: justifications. In the legal context, both serve as affirmative defenses requiring acquittal even where the prosecution has established the case that all elements of the offense are present. However, as a moral matter getting at the theoretical grounding of the doctrines, the two categories of defense diverge on the question of why acquittal is required. Justifications defeat what would otherwise be a prohibition against acting in a particular way. It turns what would ordinarily be prohibited into a permissible act. A standard example is self-defense. Killing another is ordinarily impermissible, but not so if done in self-defense. Someone who kills another in self-defense has done nothing wrong. This contrasts sharply with the nature of excuse, which presupposes the wrongfulness of the act done. To use the duress example, we would say that the defendant did something wrong by stealing, but only did so because the coercive threat left them no choice otherwise. Both excuse and justification absolve the actor of criminal liability, but justifications do so by negating the impermissibility of the actions whereas excuses affirm that the actions were impermissible but absolve the actor for a reason standing outside the wrongfulness of the act itself.

By leveraging the distinction between a justification and an excuse, one can see why the lenity excuse better accords with our intuitions regarding notice as a rule of law value as opposed to the semantic rule of lenity. Like justification, the semantic rule of lenity redraws the lines of what is permissible and what is impermissible behavior. By giving the statute a narrow construction, the semantic rule shrinks what counts as impermissible behavior. But in many cases in which the rule of lenity is applied, we see that the defendants really did do some harmful act, such as disposing of an object that could serve as evidence and transporting a stolen airplane across state lines. Therefore, the semantic rule of lenity fails to accord with the reason why we acquit defendants who conduct non-prototypical criminal activities. The reason we acquit them is that it would be unfair, from a rule of law perspective, to punish an act without clear notification that such an act would be punished, not that the defendants have clean hands.

Under the lenity excuse, a criminal defendant would be absolved of liability for their actions if their actions were not clearly within the meaning of the criminal statute without needing to change the meaning of said statute. The underlying conduct rule, for example, the rule prohibiting dangerous driving, does not change. The law can stand both for the proposition that a citizen acted wrongfully and the proposition that punishing the individual, despite their wrongful acts, would violate our rule of law principles. Refashioning lenity from a canon of statutory interpretation to an excusing condition essentially allows us to have our cake and eat it too. The lenity excuse protects the safe path principle while still maintaining the best interpretation of the statute.

B. Solving the Three Doctrinal Problems

Recall the earlier discussion of the hypothetical Bank Safety Act, which criminalizes starting a fire within one hundred feet of a bank. We stipulated there that “bank” was ambiguous between a river bank and a financial bank and that Defendant A had set fire next to a financial bank and Defendant B had set fire next to a river bank. The semantic rule of lenity does not resolve such a situation since either reading of “bank” would absolve only one of the two defendants of guilt. However, since neither defendant received fair notice that their act would be criminalized due to the linguistic ambiguity of the Bank Safety Act, the fair notice purpose would require absolving both of guilt.

Under a lenity excuse regime, the situation is neatly resolved. The court, for all defendants, need only ask the question whether either one of their actions were unambiguously criminalized by the law. Ex hypothesi, due to the linguistic ambiguity inherent in the statute, neither defendants’ actions were unambiguously criminalized, so both defendants would be absolved of culpability. The same would go for any case of linguistic ambiguity in criminal statutes, mutatis mutandis. Thus, the outcome of the lenity excuse is consistent with what fair notice demands.

The semantic rule of lenity problematically extended past its purpose of fair notice in punishment by applying in purely civil contexts. With the lenity excuse, a statute used in both criminal and tax law contexts can be given the best interpretation rather than the narrowest construction, so tax law’s civil purposes are protected. Nevertheless, the lenity excuse can still apply in criminal contexts, which is the context in which fair notice is required due to the special status of punishment. Although the meaning of an inscription must, for linguistic reasons, stay constant across contexts, no such principle of consistency applies to affirmative defenses at law. The law can, and does, permit defenses in criminal law that are not available in civil law. Insofar as we have a principled reason, namely the special status of punishment, a company like Thompson/Center Arms Co. could leverage the excuse of lenity to avoid punishment for the manufacture of Thompson/Center kits, but it should not have such an excuse when courts are determining its civil tax liability, such as whether the firearms excise tax applies to the production of Thompson/Center kits. This solves the too much lenity problem.

The semantic rule of lenity, by assigning meaning to a statute, led to fair notice problems caused by higher-order vagueness. With the excuse of lenity, there is no need to assign any particular narrow construction to the statute itself. Without any new assignment of meaning, studious potential criminals have no reason to have different expectations of what violates the criminal law after reading an opinion employing the lenity excuse. The court instead affirms, for instance, that borderline dangerous driving of 60 mph is still dangerous, though it absolves the defendant who drove at 60 mph of criminal liability since that would not have been the defendant’s expectation from reading the statute. The sovereign command remains don’t drive dangerously rather than changing to do not drive clearly dangerously, and no double rule of lenity is required. Joe, who drove at 60 mph will be able to benefit from the lenity excuse because his actions were not clearly prohibited by the vague safe driving statute; Steve, who drove at 70 mph will not be able to benefit from the excuse. Steve’s driving was clearly dangerous and, since the conduct rule remains do not drive dangerously as opposed to do not drive clearly dangerously, Steve has received fair notice that his actions would be punished. The excuse of lenity thereby solves the higher-order vagueness problem.

The reader may here object that a problem parallel to the higher-order vagueness problem nevertheless remains. Can Steve not say that he thought himself to be following the law given that there is an excuse of lenity that absolves borderline dangerous driving of culpability? To put the force of the counterargument another way, what is the difference between saying, as the semantic rule of lenity does, that clearly dangerous driving is prohibited and saying, as the excuse of lenity does, that dangerous driving is prohibited but borderline dangerous driving is excused?

The key distinction is that although the semantic rule of lenity is directly construing the statutory conduct rule, an excuse is not meant to guide conduct. It would be quite odd to think that the presence of excuses in the criminal law is tantamount to the law’s saying, “If you are planning to commit homicide, please make sure you are insane or under duress.” Excuses are instead best understood as addressing the government on how to adjudicate questions of criminal culpability. The criminal law permits excuses sotto voce.

This sotto voce feature of excuses may be analogized to the same in statutes of limitations. A five-year statute of limitations on assault, for example, is not to let citizens know that they are permitted to assault others so long as they can lay low for the next five years. If the government were to amend the statute of limitations to seven years, an assaulter cannot complain of unfairness. It would be on its face ridiculous for the criminal to complain, “I assaulted someone yesterday thinking I would only have to hide for five years, not seven. You are treating me unfairly!” Likewise, because excuses are not conduct rules, the rule of law principle that citizens be given fair notice of which conduct is prohibited does not apply to excuses. Therefore, the excuse of lenity does not require a “second-order” excuse of lenity, thereby resolving the higher-order vagueness problem.

C. Other Justifications for the Semantic Rule of Lenity

I have argued in the previous Section that an excuse of lenity best aligns the doctrine with its rule of law purpose of fair notice while the semantic rule of lenity does not. Though the value of fair notice is the most often cited justification for the rule of lenity, it is certainly not the only justification for such a long-standing and august doctrine of criminal law. Ideally, the excuse of lenity would be consistent with these other justifications as well—it would be a shame to throw out any babies with the bathwater. In this Section, I consider the other justifications for the rule of lenity and demonstrate how the excuse of lenity is consistent with such aims.

The first set of reasons significantly different from fair notice for having the rule of lenity includes those that are still closely connected to restricting the scope of criminalization. The rule of lenity “constrains the discretion of law enforcement officials”; it is a speed bump against over-criminalization in the United States; and it protects the (relatively) politically powerless citizens who would have a hard time organizing to change the criminal code. Since the excuse of lenity likewise works to restrict the scope of criminalization by offering a functional near-equivalent of the rule of lenity in the criminal context, all of these purposes are also carried out by the excuse of lenity.

Another category of reasons in favor of the rule of lenity involves the notion that criminal law is solely the province of the legislature, the non-delegation principle. Again, the functional near-equivalence between the semantic rule of lenity and the excuse of lenity within the criminal context will explain why the excuse of lenity can do much of the work that the semantic rule of lenity currently does. Whenever the excuse of lenity applies, because the excuse will be dispositive of the case, the courts need not resolve the indeterminacy of the criminal statute at hand. Courts will need to resolve penumbral issues in dual-purpose statutes, but this will not make a difference for criminal liability since the excuse of lenity will be available when defendants fall into the penumbra. Since defendants can leverage the excuse against vague statutes in court, it will, like the semantic rule of lenity, put the impetus on Congress to draft clearer statutes.

There is one reason in favor of the semantic rule of lenity that does not apply to the excuse of lenity: the semantic rule of lenity has a long history. The rule of lenity originated in sixteenth-century England and has survived in application to the present day. This is indeed a value lost if we were to do away with the semantic rule of lenity, but its importance ought to be put in proper perspective. Though the semantic rule of lenity’s history is long, canons of statutory interpretation are not law and do not have precedential effect.


In this Part, I consider some arguments specifically against the existence of the too much lenity problem, the higher-order vagueness problem, and the excuse of lenity. The central counterarguments are (1) the tax law is best construed narrowly in civil contexts, so the “too much lenity problem” is actually a feature, not a bug, of the semantic rule of lenity, and (2) if the legislature were to announce that there is no rule of lenity, then the higher-order vagueness problem dissipates due to the fact that individuals are now on notice that statutes will be construed according to the intent of the legislature. Both arguments are important because they go to the theoretical foundations of this Article.

A. Tax Law Would Be Better Off If the Rule of Lenity Applied

The first counterargument puts forth that the problem of too much lenity is no problem at all since the tax code ought to be subject to strict construction, resolving any indeterminacy in favor of the taxpayer. On this view, it is unfair to tax a citizen without clear say-so by statute. The application of the rule of lenity to the tax law is to be celebrated, not decried. Some European nations, for instance, have strict-construction tax systems favoring taxpayers. Such a response, I contend, fails to comport with the differential attitude citizens should have with regard to the administration of distributive justice and retributive justice.

First, tax law is the government’s most important lever in carrying out principles of distributive justice. Distributive justice concerns how institutions should be designed to fairly distribute the benefits and burdens of societal cooperation. Our progressive income tax system carries out a democratically determined vision of distributive justice under which tax obligations directly correspond to one’s income earned in the marketplace. The statutes provide the skeletal structure for this vision, the corpus of which is fleshed out by the judicial and administrative authority. To undo the interstitial authority is to partly undo the very aims of the tax code.

On this picture of tax justice, to deviate from the best interpretation of a statute in favor of a narrow interpretation of a statute not only undoes what distributive justice would require, but thereby also partly undoes the provision of a valuable moral service by the government. The tax system provides valuable coordination between citizens to hire an expert to tally up what justice requires of them and hold each other to that tally. Since taxpayers have moral reason to pay what justice requires, following the best interpretation of the tax law helps their aims rather than impeding them.

Second, though related to the first point, the purpose of tax law is distinct from the purpose of criminal law in that the imposition of tax does not typically aim to serve a deterrence function. After all, a tax on income is not meant to discourage the earning of income. There is no implicit public moral rebuke attached to civil tax liability as there is for criminal liability. Although there are exceptions, the principal purpose of the tax law is to collect (and sometimes distribute) revenue in a just and efficient manner. Notice is most critical when the statutes are intended to guide citizens’ behavior since ambiguously drafted statutes cannot properly serve this guiding function. After all, a citizen cannot use a statute to guide their behavior if they cannot figure out what the statute means.

To bring out this point, we can think of the perspective of a hypothetical idealized taxpayer with regard to the tax law. The taxpayer understands that they have a moral obligation to contribute a certain amount to the common pool of resources by which we fund the various functions of government. However, it is quite unlikely that the taxpayer could even estimate how much they should contribute if they were to reason purely from philosophical first principles or that they would know much about the content of such first principles. Even if the taxpayer resolves the coarse-grained question regarding their obligation to pay taxes, it is unlikely that they will even be able to approximate an answer to the fine-grained question of how much taxes they are morally obligated to contribute as a matter of justice.

One way for the taxpayer to resolve the fine-grained question is to defer the calculations to appointed experts in the legislature and the Treasury. On this account, the taxpayer can carry out their ordinary business without worrying about what constitutes their fair share contribution and, at the end of the year, rely on the tax law and the aid of administrative officials to figure out what that fair share is given the activities they engaged in and their results. Instead of having to think through how the tenets of John Locke and Jean-Jacques Rousseau apply to him as a citizen, the taxpayer can just fill out an IRS Form 1040-EZ. This sort of division of labor is critical due to the difficulty of answering the fine-grained questions of political morality and the limited resources that citizens have to put towards such inquiry.

For these taxpayers, notice is only relevant insofar as they need the information to pay what they owe. Since the taxpayer is not treating tax liability as a cost or benefit of such-and-such action, clarity in laws is actually more important for the administration of such laws rather than being governed by them. This is also why the tax law can bear such enormous complexity. Whereas conduct rules primarily meant to dictate citizens’ behavior must be drafted simply so that citizens can understand the conduct rules, tax laws can be drafted with greater complexity because they are primarily addressed to administrators and judges who have expertise in tax law. Though idealized for purposes of exposition, this sort of narrative is consistent with both the theoretical work in political philosophy and the empirical research that often, though notably not always, finds that tax rates have no effects or very small effects on taxpayer behavior.

None of this is to deny the proposition that there would be something good provided by having a tax law system where taxpayers can more easily figure out their tax liability. For instance, if a taxpayer does not know how much taxes they will have to pay at the end of the year because the tax laws are too vague, it may lead to the taxpayer over- or under-saving for the forthcoming tax liability. Instead, my argument is merely that the civil tax law lacks many of the features that make fair notice far more important in criminal law. Given these differences—for civil tax law, there is no moral condemnation, no punishment, and no intended deterrence effect—we have good reason to think that tax law ought not follow the stringent fair notice requirements of criminal law.

B. Statutory Notice That Fair Notice Laws Have Been Repealed

The second counterargument contends that if courts were to get rid of the rule of lenity altogether in conjunction with notice of such at the legislative level, then the problem of higher-order vagueness would not arise. Here, the central idea is that the legislation stating that the rule of lenity does not apply to the criminal code would itself stop citizens from forming any expectations about the rule of lenity.

Such an approach has a fundamental problem. A notice that there would be no lenity provided would amount to notice that there is no fair notice. This becomes plain if we recall the fictive story underlying the fair notice doctrine. The reason a citizen needs fair notice is that they may think they are following the law when they are not. To put the point another way, citizens would simply be on notice that they cannot find comfort in their natural understanding of a criminal statute. That fair notice has been abrogated still stands.

The critic might then respond that the legislature ought to impose a statutory single rule of lenity. Given my argument for the higher-order vagueness problem, having just one rule of lenity would be arbitrary—what reason do we have to stop at one rather than two?—but such violations are forgivable. The law is in the business of line drawing and, since the hair-width difference between what is inside the line and outside the line can hardly be a difference-maker, line drawing is often an arbitrary matter.

The bigger issue is that having one rule of lenity does not resolve the fair notice problem so long as the rule of lenity remains semantic in nature. The same conclusion about having no rule of lenity applies to the single rule of lenity. So long as individuals understand that the meaning of a statute has changed from an application of the rule of lenity, then to announce by statute that there will be no more higher-order rules of lenity will only violate individuals’ expectations that their actions are within the bounds of legally permissible behavior. The selection of any n-tuple rule of lenity cutoff is arbitrary and will disrupt fair notice for the n+1th order reader of the statute.


This Article has argued that the semantic nature of the rule of lenity leads to three problems in which the rule breaks away from its purpose of providing fair notice in criminal law. The rule of lenity cannot deal with linguistic ambiguity. Some criminal statutes also play civil functions, thereby transferring the strict construction of the rule of lenity from criminal contexts to the civil context. Once the courts construe the meaning of a statute to include just the clear cases, it then creates a fair notice burden regarding the question of what counts as the clear cases, which is itself a vague matter.

To resolve these issues, we ought to replace the semantic rule of lenity with an excuse of lenity. Excuses and fair notice share the common denominator of providing ordinary citizens the safety of choosing to avoid punishment, so having lenity provided as an excuse would more closely align the rule with its purpose. An excuse of lenity would provide the same benefits as the semantic rule of lenity, restricting the scope of criminalization and maintaining criminal law within the province of the legislature, without the drawbacks of having a semantic rule.


96 S. Cal. L. Rev. 397


Assistant Professor of Law and Philosophy, University of Southern California. Thank you to Scott Altman, Jody David Armour, Jordan Barry, Thomas Bennett, Jonathan Choi, Robin Craig, Noël Cunningham, William Eskridge, Felipe Jiménez, Mitchell Kane, Gregory Keating, Adam Kern, Daniel Klerman, Yao Lin, Erin Miller, Michael Moore, Clare Pastore, Marcela Prieto, Robert Rasmussen, Emily Ryo, Daniel Sokol, Kevin Tobia, Gideon Yaffe, Yuan Yuan, Jack Whiteley, participants of the New York University School of Law–Lawyering Scholarship Colloquium, participants of the University of Pittsburgh–Law and Language Group, and participants of the University of Southern California Gould School of Law–Faculty Workshop for their invaluable help. Any errors are mine and mine alone.

Seeing and Serving Students with Substance Use Disorders Through Disability Law

The opioid epidemic has brought the immense harms of substance abuse to the fore of national attention. Despite a growing bipartisan consensus that substance use disorders are best addressed through treatment and community support, rather than punitive deterrence measures, policymakers have yet to allocate the necessary resources for a comprehensive and evidence-based national drug policy. Until that occurs, advocates for individuals with substance use disorders must search for reform opportunities within existing law and policy.

To that end, this Article explores whether, and to what degree, the federal disability statutes that are applicable to public schools—the Individuals with Disabilities Education Act, Section 504 of the Rehabilitation Act of 1973, and the Americans with Disabilities Act—can “see” and serve adolescents with substance use disorders within the public school system. It argues that substance use disorders can be education-impacting disabilities, that the general failure to recognize and address substance use disorders in school settings is due to widespread misperception of substance-involved students, and that a novel-but-reasonable interpretation of existing law could provide a meaningful degree of support for certain students with substance use disorders.

This Article has three objectives: (1) to instigate a debate in an uncharted area of education law and policy; (2) to provide a comprehensive survey of current medical research and special education case law for advocates of students with substance use disorders; and (3) to direct further attention to the broader inadequacies of special education law and policy for students with mental health challenges. The implications of this debate, upon the lives of the estimated 1.6 million adolescents with substance use disorders and upon education policy generally, are profound.


Tom Murphy attended the 2015 Prescription Drug Abuse and Heroin Summit in his professional capacity as a Senior Special Agent in the Virginia State Police. But the topic of the summit was of great personal interest to him: his teenage son Jason was struggling with a substance use disorder. Jason’s substance abuse, and its attendant consequences, deepened in the months following the conference.

In 2017, Jason died from an overdose of fentanyl and heroin.

Addressing the Prescription Drug Abuse and Heroin Summit in 2019, Special Agent Murphy implored those touched by substance use disorders to share their experiences with others in order to fight stigma. He concluded his remarks by placing his family’s tragedy within the grim national context: “There are 70,000 different stories that happened in 2017. You heard my son’s.” He paused, choking back tears. “His name was Matthew Jason Murphy.”

It is difficult to fathom the harms caused by substance abuse. For the past several years, the rate of fatal overdoses has exceeded the highest-ever annual death tolls from car accidents, the AIDS epidemic, and gun violence. There were 70,237 overdose deaths in the United States in 2017, 67,367 overdose deaths in 2018, 70,630 overdose deaths in 2019, 91,799 overdose deaths in 2020, and a stunning 107,573 overdose deaths in 2021. The substantial increase in overdose deaths between 2019 and 2021 was likely fueled in part by the COVID-19 pandemic, which caused widespread misery and inhibited access to treatment.

For a frame of reference, Special Agent Murphy’s tribute to his son lasted four minutes; if a family member of every person who died from a drug overdose in 2017 shared their story for four minutes, back to back, it would last over 195 days. If family members of those who lost loved ones to overdoses in 2021 did the same thing, it would last over 298 days.

At the same conference, politicians and policymakers touted their efforts to combat the opioid epidemic, including the designation of a national public health emergency the previous year; the issuing of billions of dollars in state grants “[t]o expand access to treatment, recovery, and other crucial activities and services”; and the signing of the Substance Use-Disorder Prevention that Promotes Opioid Recovery and Treatment (“SUPPORT”) for Patients and Communities Act, which reduced regulatory hurdles concerning “opioid use disorder prevention, recovery, and treatment” the previous October. These and similar policy responses have received widespread praise.

Unfortunately, such policy responses—while generally welcomed by experts in the field of addiction studies—have not come close to creating the “Cascade of Care” required to serve the roughly forty million Americans with substance use disorders. Until the political will exists for such comprehensive policy initiatives, advocates for individuals with substance use disorders must contemplate ways in which existing law and policy can be marshaled to serve that population.

This Article offers such a solution: using the federal disability-discrimination laws applicable to public schools as a new way to “see” and serve individuals who—like Jason Murphy—develop debilitating substance use disorders as adolescents. This Article proposes that students with substance use disorders who meet the eligibility criteria of federal disability laws should be recognized as individuals with disabilities (and receive appropriate accommodations) from their schools, just as adults with substance use disorders who meet such diagnostic criteria have received appropriate accommodations from their employers since the 1970s.

The argument that substance use disorders should be recognized and addressed as legal disabilities under special education law is a novel one. While several scholars have powerfully addressed the need to recognize mental health conditions under special education law, no court opinion or piece of scholarship has yet engaged with the matter of applying such laws to students with substance use disorders specifically. It is not that the matter has been studied and rejected, but rather that this particular conversation has not yet begun.

This Article offers a possible explanation for this silence: that students with substance use disorders are rarely perceived within their schools to be afflicted with “medical” conditions, which is the necessary predicate for recognition of “legal” disabilities. To that end, this Article provides a survey of current medical research regarding substance use disorders and how such disorders affect adolescents’ academic development. It also discusses the power of social perception in this space; the manner in which adolescents face unique barriers to the identification of, and appropriate responses to, substance use disorders; and how students with substance use disorders are therefore largely invisible within schools’ current drug and alcohol policies.

Jason Murphy began “self-medicating” with marijuana while he was in high school and moved out of his parents’ home the day he turned eighteen. If his school had recognized substance use disorders not as a propensity towards deviant behavior, but rather an addressable education-impacting disability, perhaps his story would not have been one of the 70,237—every one of whom, to some degree, representing a failure of policy—told in 2017. Radical as it may initially appear, the possibility that an avenue exists by which students like Jason can be seen and served in their schools is worth exploring.


Part I of this Article presents the case for the recognition of substance use disorders in federal special education law: Section I.A examines substance use disorders as “medical” conditions and “legal” disabilities; and Section I.B explores why schools are resistant to interpreting drug abuse by adolescents through these medical and legal constructs.

A. Substance Use Disorders in Medicine and Law

The term “substance use disorder” will be used frequently throughout this Article. This is in part because (as discussed below) the term “substance use disorder” is preferable to terms such as “addiction” and “alcoholism.” But more importantly, using such “medical” terminology when discussing drug abuse by adolescents reinforces a central argument of this Article: that seeing substance-involved adolescents as having medical conditions (as opposed to merely engaging in criminal behaviors) opens the door to recognition of and support for those adolescents under federal disability laws. Accordingly, a brief framing of “substance use disorders” within medicine and law is in order.

1. Substance Use Disorders as Medical Conditions

According to the fifth edition of the Diagnostic and Statistical Manual of Mental Disorders (“DSM-5”), the “essential feature” of substance use disorders—regardless of the particular substance being abused—is a “cluster of cognitive, behavioral, and physiological symptoms indicating that the individual continues using the substance despite significant substance-related problems.” In other words, individuals with substance use disorders continue to abuse substances despite the consequences stemming from that abuse, even when such individuals no longer desire to use drugs or obtain much pleasure from doing so.

Ten separate classes of drugs are discussed in the DSM-5: “alcohol; caffeine; cannabis; hallucinogens (with separate categories for phencyclidine [or similarly acting arylcyclohexylamines] and other hallucinogens); inhalants; opioids; sedatives, hypnotics, and anxiolytics; stimulants (amphetamine-type substances, cocaine, and other stimulants); tobacco; and other (or unknown) substances.” Misuse of any of these drugs, with the exception of caffeine, can result in an individual meeting the diagnostic criteria of a substance use disorder.

The absence of symptoms (with the exception of cravings) for one year or longer indicates that the substance use disorder is in “sustained remission.” Establishing and prolonging remission from an active substance use disorder, which is achieved by preventing relapses of the previously abused substance or the transitioning to another drug, is a primary goal of substance use disorder treatment.

Although relapse is a common part of the recovery process, a variety of therapeutic approaches can be employed to promote relapse prevention and increase the likelihood of long-term remission from substance use disorders. Critically, all approaches require a degree of intentionality and effort on the part of the individual with the substance use disorder and, ideally, their family or other support network. Establishing sustained remission from a substance use disorder is a long-term process that, for some, involves a personal commitment to lifelong abstinence from all mind-altering substances.

In 2020, the most recent year for which data is available, approximately 40.3 million people aged twelve and older met the diagnostic criteria for a substance use disorder. A significant gap exists between the number of individuals who need treatment for substance use disorders and the number of individuals who receive such treatment. Many individuals with substance use disorders have co-occurring mental health issues.

2. Substance Use Disorders as Legal Disabilities

As reflected by policymakers’ remarks to the 2019 Prescription Drug Abuse and Heroin Summit, there has been a notable, if incomplete, movement toward recognizing substance use disorders as “medical” conditions most efficaciously addressed through treatment and community support. Even now, however, the idea that substance use disorders can be recognized within, and addressed by, federal disability laws may strike some as odd—if not wrongheaded.

Indeed, when presented with the argument that adolescents with substance use disorders should be seen and served by federal disability laws, many will likely find it more difficult to accept the premise that such laws should recognize substance use disorders in the first place than to accept the premise that such recognition should be extended to adolescents. But the first premise above has been in effect since the mid-1970s.

The first major piece of federal disability-rights legislation was the Rehabilitation Act of 1973. The following language, contained in Section 504 of the Rehabilitation Act (“Section 504”) represents “the first explicit Congressional statement recognizing ‘discrimination’ against people with disabilities.”

No otherwise qualified individual with a disability in the United States, as defined in section 705(20) of this title, shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.

The Americans with Disabilities Act (“ADA”), which was passed in 1990, extends the Rehabilitation Act’s discrimination prohibitions to private companies, local and state governments, and public accommodations.

During the initial drafting and subsequent revisions of the Rehabilitation Act and the ADA, lawmakers directly confronted the possibility of adults with substance use disorders seeking workplace accommodations. Regulations under both statutes acknowledge addiction and alcoholism as disabilities deserving of certain protections and clarify the obligations of employers of individuals with substance use disorders. A body of case law and legal scholarship further articulates those boundaries.

The Rehabilitation Act and ADA’s statutory language, regulatory guidance, and case law uniformly discharge any obligation on the part of employers to accommodate active drug use (or alcohol abuse that interferes with work obligations) by individuals with substance use disorders. Employees who are “currently engaging in the illegal use of drugs” are not considered “qualified individual[s] with a disability” under the ADA and are therefore not entitled to workplace accommodations, reasonable or otherwise. However, employees with substance use disorders who have maintained sobriety beyond a minimum period of abstinence—the necessary length of which is determined on a case-by-case basis—are entitled to reasonable accommodations for their continued recovery-support needs.

The fact that these regulations cannot be neatly transferred to the school environment—which, obviously, has significant implications for the project of extending coverage under the Rehabilitation Act and ADA to students with substance use disorders—will be discussed in Section II.B.

B. Substance Use Disorders Among Adolescents

Substance use disorders are diagnosable, treatable, “medical” conditions that can, under certain conditions, be recognized as “legal” disabilities. But if an individual’s drug abuse is interpreted not as evidence of such a “medical” condition, and is instead interpreted only as maladaptive, dangerous, and unlawful behavior, then there is no possibility of such drug abuse being recognized and addressed as a “legal” disability. As discussed below, adolescents are especially vulnerable to such incomplete interpretations of their substance abuse, which perhaps is why a discussion regarding the inclusion of substance use disorders within special education laws has not yet occurred. Section B.1 discusses the prevalence of substance use disorders among adolescents and the education-related consequences of such disorders; Section B.2 discusses certain perceptual errors that prevent widespread recognition of substance use disorders among adolescents; and Section B.3 discusses the harms caused by schools’ resistance to recognizing substance use disorders among adolescents.

1. The Educational Impact of Substance Use Disorders

Substance use disorders among adolescents are considered to be a major public health challenge that presents certain difficulties distinct from the challenges presented by substance use disorders among adults. According to the most recent Substance Abuse and Mental Health Services Administration (“SAMHSA”) National Survey on Drug Use and Health, an estimated 6.3% of adolescents—1.6 million individuals—met the diagnostic criteria for substance use disorder. Given that the average class size in secondary schools is approximately twenty-seven students, one could visualize this prevalence by imagining that every middle and high school class in the country has one or two students with a substance use disorder.

The same “treatment gap” that exists for individuals with substance use disorders generally also exists for adolescents with substance use disorders. Only 0.7% of adolescents—169,000 individuals—received any substance abuse treatment in 2020, which is slightly over 10% of the total number of adolescents who needed such treatment.

While more research is needed to further understand the nature and mechanisms of substance use disorders among adolescents, and debates over certain aspects of the condition are ongoing within the medical community, the notion that adolescents can and do have substance use disorders is uncontroversial among medical professionals.

And naturally, because adolescents spend a significant percentage of their waking hours in school, many of the harms posed by substance use disorders among adolescents manifest within the school environment. While the concept that substance use disorders are likely to negatively impact school performance is intuitive, the specific manners in which they can do so—and how the effects of substance use disorders may resemble other, recognized disabilities—are deserving of review, if only to clarify the manners in which schools can serve affected students.

The purpose and objectives of schooling extend beyond the academic learning process; schools play a critical role in students’ social development and the fostering of time- and task-management skills critical to future achievement. This holds for students receiving special education services as well: the concept of “education” as encompassing more than academic instruction is reinforced by the stated purpose of the Individuals with Disabilities Education Act (“IDEA”), guidance from the U.S. Department of Education’s Office of Special Education Programs, and judicial interpretation of special education law. For the purposes of this analysis, the objectives of school can be roughly bifurcated into those that are academic—both classroom learning itself and the process of learning how to learn and retain information—and those connected with the socialization process. The emergence of a substance use disorder in adolescence can significantly impede progress in both spheres.

Substance abuse by adolescents has been shown to impair verbal memory, memory retrieval, executive function, and learning performance. Frequent substance use can cause “measurable and long-lasting cognitive impairments.” While the most acute cognitive effects of substance abuse are present during periods of frequent use, the scaffolded nature of secondary education can extend the consequences of failing to learn critical foundational information well into the future. The academic impact of substance abuse is also reflected in the lower grades consistently found among students with substance use disorders.

Substance use disorders also hinder adolescents’ social development. The illegality of substance use can result in criminal charges and involvement with the juvenile justice system; a significant percentage of adolescents in juvenile detention meet the criteria for substance use disorders. Adolescents who abuse substances are also at a higher risk of dropping out of school, which in turn can produce a myriad of social and economic harms.

Given the prevalence of substance use disorders among adolescents, and the fact that substance use disorders are highly likely to negatively impact the education of adolescents, it is striking that the argument that substance use disorders should be recognized under special education law remains a novel one. A reason for this, as argued below, is that substance abuse by adolescents is too infrequently assessed through a clinical, “medicalized” lens and is instead too frequently assessed through a punitive, “disciplinary” lens.

2. Perceptual Barriers for Adolescents with Substance Use Disorders

Sociologists have long examined the role played by social constructs and labeling in assigning meaning to human behavior. These methods of categorization are not “constant, but [instead] change according to the dominant modes of thinking.” These processes have had a significant impact upon drug policy insofar as they heavily influence the manners in which individuals with substance use disorders are perceived by society.

Indeed, over a century of policy responses to drug and alcohol abuse have been significantly influenced by the dominant social constructions of substance-abusing individuals. For example, an “alcoholic-as-sinner” construct undergirded the temperance movement; an “addict-as-criminal” construct inspired the “War on Drugs.”

The heavy influence of social constructs in this space is apparent when considering one’s own responses to various labels associated with substance-involved individuals. Terms such as “addict” and “alcoholic” are not used in the DSM-V to describe individuals with substance use disorders, nor is the term “addiction.” While some individuals, such as those participating in Twelve Step recovery fellowships, choose to use such language—or more-graphic terms such as “junkie” and “dope fiend”—to describe themselves, the use of such terms to describe individuals with substance use disorders is discouraged due to their negative connotations.

Such terminology has the secondary effect of erasing substance-involved adolescents altogether. To give an example, while a twelve-year-old child can meet the diagnostic criteria for an alcohol use disorder—the adolescents with alcohol use disorders in the aforementioned SAMHSA study included twelve-year-old respondents—describing a twelve-year-old child as an “alcoholic” reflexively appears to be misguided, if not outright impossible. Such dissonance surely stems from the notion that “alcoholism” requires years of problematic drinking to develop. But, as discussed in Section I.A. above, the diagnostic criteria for substance use disorders does not require a minimum age of onset or duration of symptoms. The notion that it requires years of drinking “alcoholically” before an individual can meet the criteria of an alcohol use disorder is simply wrong.

The logical extension of that incorrect belief is that problematic, harm-causing substance abuse by an adolescent is attributable not to a substance use disorder but rather to less-sympathetic causes such as youthful experimentation or simple defiance. Such a belief can prevent adolescents with substance use disorders from obtaining needed medical intervention and likely provides a tacit justification for punitive disciplinary policies.

Describing adolescents as “addicts” is perhaps easier to accept, insofar as a certain percentage of adolescents abuse drugs such as opiates that create an obvious physical dependence and precipitate rapid physical withdrawal symptoms. In other words, the abuse of certain drugs can cause symptoms that do align with our conceptions of “addiction” regardless of the age of the drug abuser.

But other drugs, such as marijuana, can cause physical withdrawal symptoms that last for weeks and are often mistaken for general irritability or depression. So despite the fact that marijuana use disorder is the most prevalent of all substance use disorders among adolescents, marijuana abuse does not align as neatly within the social construct of “addiction,” which requires physical tolerance to and withdrawal from a drug. When drug and alcohol abuse by adolescents often does not align with our constructs of “addiction” or “alcoholism,” such behavior is vastly more likely to be addressed within a punitive, “disciplinary” framework. Nowhere is this more evident than in schools.

3. Schools’ Outdated and Ineffective Responses to Substance-Involved Students

While a particular construct can achieve a measure of dominance on a societal level, various entities within society operate under their own dominant modes of thinking. Imagine, for example, a father who finds illicitly obtained opiate painkillers in his teenage daughter’s room and decides to take bold action in response. The nature of the response will depend significantly, if not entirely, upon the entity he contacts; the local police would likely address the situation differently from a substance abuse treatment center or a priest. If the painkillers were discovered in the girl’s school locker, however, the available responses would be limited by district-level or statewide disciplinary policies.

In a 2012 study of the drug- and alcohol-related policies of the one hundred largest school districts in the country, disciplinary responses to incidents of drug possession, use, sales, and distribution (including referral to law enforcement) were far more prevalent than interventions intended to detect and address possible substance use disorders. Though only 15% of districts’ policies referenced obtaining written assessments for potential substance dependence and 55% allowed for referrals to substance abuse counseling, intervention, and treatment programs following possession or use offenses, 98% referenced the imposition of principal-determined suspensions, 90% recommended expulsion hearings, 86% allowed for reporting to law enforcement, and 80% referenced placement in alternative schools or programs. Only 26% of districts referenced prevention education in their drug or alcohol policies, and only 44% referenced school-based interventions or remediations.

So-called “zero tolerance” policies towards drug- and alcohol-related infractions have been criticized for being ineffective, punitive, and overbroad. There is also a degree to which such policies are too narrow, insofar as their focus—and therefore utility—extends only to the boundaries of active drug possession and use. Put another way, current methods of addressing adolescent drug abuse in schools focus more on the drugs being used than on the adolescents using them. When drugs are removed from a situation, through successful policy initiatives or carceral force, the particular “drug problem” ceases to exist: no laws are broken, and the threat to school safety disappears.

This framing of the problem of student drug use fails to recognize the fundamental nature of substance use disorders insofar as it presumes that the unwanted behavior of student drug use can be deterred through consequences, when continued use in spite of consequences is one of the indicators of substance use disorders. Furthermore, achievement of such policies’ primary objective—the cessation of drug possession and use—would not fully address students’ substance use disorders, as achieving long-term recovery is an active endeavor that persists far beyond the cessation of substance use.

Recognizing substance use disorders as diagnosable and treatable medical conditions, as well as education-impacting disabilities, provides a clearer lens through which to view adolescent substance abuse, albeit one with profoundly complicated implications. What were once considered merely to be willful acts of defiance could instead be interpreted to be ineffective and destructive attempts of self-medication. The value of deterrence mechanisms, absent attempts to address the underlying motivations for substance abuse, diminishes if not vanishes. In short, when substance use disorders are cognizable conditions in schools, the problematic activity of adolescent drug abuse necessitates a far greater degree of interpretative complexity.

The challenge this presents, its implications on the allocation of limited resources such as time and funding, and a reasonable desire to avoid controversial decision-making all serve as likely resistance points to the recognition of substance use disorders under special education law. That is why this Article seeks to instigate a new conversation among educators, policymakers, and scholars regarding how to best see and serve substance-involved students. To that end, Part II below will place substance use disorders within the two spheres of special education laws under which public schools operate, which will highlight current impediments to the recognition of substance-involved students and the areas of the law where recognition and accommodations could plausibly be obtained.


Two of the three major disability-rights statutes under which public schools operate—Section 504 and Title II of the ADA—currently offer sufficient tools to procure recognition of, and a degree of support for, certain students with substance use disorders. As discussed below, however, such students can neither be seen nor served under the other statute—the IDEA.

A. The Individuals with Disabilities Education Act

      The first federal law to mandate that states receiving federal education funding provide “all handicapped children [with] a free appropriate public education” was the Education for All Handicapped Children Act of 1975 (“EAHCA”). The EAHCA was the product of many years of congressional lobbying from parents and advocates for children with disabilities. It was also influenced by two federal cases that upheld procedural due process and equal protection claims in favor of students with disabilities who had been excluded or otherwise denied services from their public schools. The EAHCA was reauthorized in 1990, at which time its name was changed to the Individuals with Disabilities Education Act.

The IDEA seeks to ensure that all students with qualifying disabilities and corresponding educational needs receive a “free appropriate public education.” The manners in which schools provide a free appropriate public education to IDEA-qualified students are articulated in students’ Individualized Education Programs (“IEPs”). Each student’s IEP must articulate which “special education and related services” the child is entitled to receive in order to meet their specific educational goals. Furthermore, the free appropriate public education offered to each child, codified by their IEP, must be provided in the least restrictive environment in which they can attain their individualized educational objectives. These entitlements are provided to children who meet the IDEA’s disability criteria and whose disability also “adversely affects [the] child’s educational performance” in a manner that creates the need for “special education and related services.” Each of these eligibility prongs will be analyzed in more detail below.

In addition to the substantive right to a free appropriate public education, the IDEA provides certain procedural rights in disputes between parents or otherwise interested third parties and schools. Parents or public agencies may file a “due process complaint” on any matter relating to the “identification, evaluation or educational placement” of a child with a disability. Parties to disputes are afforded access to a timely mediation process conducted by a “qualified and impartial mediator.” The mediator’s decision in due process disputes can subsequently be challenged in a civil court action; in certain cases, such an action can be filed prior to full exhaustion of the administrative process.

The IDEA, and the EAHCA before it, have made a positive impact on public education and the lives of millions of children with disabilities. That said, many scholars have noted that the IDEA’s overly restrictive eligibility criteria appear to conflict with its stated objective of “ensur[ing] that all children with disabilities have available to them a free appropriate public education.” Indeed, students with substance use disorders are functionally invisible under the IDEA.

1. Eligibility Barriers for Students with Substance Use Disorders

a. “Child with a Disability”

In order to receive services under the IDEA, a student must first qualify as a “child with a disability.” The following disabilities—and only the following disabilities—are recognized under the IDEA: “intellectual disabilities, hearing impairments (including deafness), speech or language impairments, visual impairments (including blindness), serious emotional disturbance, . . . orthopedic impairments, autism, traumatic brain injury, other health impairments, or specific learning disabilities.” The IDEA’s regulatory guidance provides further clarification regarding the requisite components of each disability. Failure to meet the criteria for a “child with a disability” precludes a student from receiving services under the IDEA. While two of the IDEA’s qualifying disabilities—emotional disturbance and other health impairments—may initially appear to encompass students with substance use disorders, the conditions for the disabilities that are articulated in the IDEA’s regulations would make such recognition difficult to obtain.

i. Emotional Disturbance

In order to obtain recognition under the IDEA as a child with an emotional disturbance, a student must, “over a long period of time and to a marked degree that adversely affects [the student’s] educational performance,” exhibit one or more of the following characteristics:

(A) An inability to learn that cannot be explained by intellectual, sensory, or health factors.

(B) An inability to build or maintain satisfactory interpersonal relationships with peers and teachers.

(C) Inappropriate types of behavior or feelings under normal circumstances.

(D) A general pervasive mood of unhappiness or depression.

(E) A tendency to develop physical symptoms or fears associated with personal or school problems.

The regulations further state that emotional disturbance “includes schizophrenia” but does not apply to children who are “socially maladjusted” unless they exhibit one of the criteria provided above.

The general deficiencies in this regulatory language have been catalogued at length. Insofar as students with substance use disorders are concerned, it should be noted that the criteria for emotional disturbances do not align with the DSM-V’s criteria for substance use disorders; some students would exhibit sufficient criteria under both conditions to obtain classification as a student with a substance use disorder and an emotional disturbance, but other students with substance use disorders would fail to meet the emotional disturbance criteria entirely. Nor does the requirement that qualifying behavior be exhibited “over a long period of time” reflect the DSM-V’s relative lack of emphasis upon the amount of time symptoms of substance use disorders must be present prior to a diagnosis. Furthermore, the clause referencing “socially maladjusted” students—a term used to describe juvenile delinquency at the time the IDEA’s precursor was drafted—appears to serve little purpose other than to bias decisionmakers against classifying certain types of maladaptive behavior as evidence of emotional disturbance.

Evidence of student drug use in the records of IDEA-based civil actions appears to dissuade reviewing judges from attributing student behavior to an underlying emotional disturbance in IDEA-based appeals. In denying a student eligibility under the emotionally disturbed category, Judge Richard Posner attributed the child’s drug use and criminal record to “a lack of proper socialization” and noted that while the child’s substance abuse “interferes with his schooling . . . it interferes with much else besides, such as [his] ability to conform to the law and avoid jail.” A district court opinion, also denying eligibility, noted that “[t]eenagers . . . can be a wild and unruly bunch. Adolescence is, almost by definition, a time of social maladjustment for many people.” Some courts consider substance abuse to be a de facto indicator of social maladjustment. Given the barriers to receiving an emotional disturbance disability classification faced by all students with maladaptive school behaviors, and the particular barrier of the social maladjustment clause for students with a history of substance abuse, widespread acknowledgement of student substance use disorders via the emotionally disturbed category of IDEA-eligible disabilities is unlikely.

ii. Other Health Impairment

To qualify for IDEA services under the “other health impairment” category, a student must have “limited strength, vitality, or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment” due to a “chronic or acute health problem[] such as asthma, attention deficit disorder or attention deficit hyperactivity disorder, diabetes, epilepsy, a heart condition, hemophilia, lead poisoning, leukemia, nephritis, rheumatic fever, sickle cell anemia, and Tourette syndrome [that] adversely affects a child’s educational performance.” The requirement that the health condition create a “limited alertness with respect to the educational environment” is far easier to demonstrate than the emotional disturbance criteria; it also more closely aligns with the typical manifestations of substance use disorders. Other obstacles exist, however, for individuals seeking recognition of substance use disorders as an “other health impairment.”

While the category’s list of “chronic or acute health problems” that are considered “other health impairments” is non-exhaustive, the absence of substance use disorders leaves the decision of whether to acknowledge a particular student’s disorder to the special education team at the student’s school, subject to review of a mediator and, if appealed, a state or federal judge. Though such a finding would not be outside the realm of possibility, two factors diminish its likelihood. One, the lack of precedent for a substance use disorder being classified as an “other health impairment” compromises advocates’ ability to effectively argue for such a classification and would likely give reviewing authorities pause before making such a determination. Furthermore, the fact that other conditions (such as attention-deficit/hyperactivity disorder and Tourette syndrome) have been added to the original list of “other health impairments” in formal amendments to the IDEA’s regulations might dissuade school personnel or reviewing authorities from recognizing a condition absent from the regulations that has not been subjected to a similar degree of review and approval.

Another significant barrier impeding the classification of substance use disorders as an “other health impairment” is the secondary requirement—which also applies to findings of emotional disturbance and all other qualifying disabilities under the IDEA—that the impairment “adversely affects a child’s educational performance.” Indeed, most disputes over whether a student should receive IDEA services under the “other health impairment” classification focus not upon the existence of a disability but rather the degree to which that disability adversely affects the child’s educational performance.

b. “Adversely Affects Educational Performance”

Neither the IDEA statutory text nor its regulations clearly articulate the type and extent of adverse effect a disability must have upon a student’s educational performance in order for the child to qualify for IDEA services. This element of the IDEA’s eligibility criteria has been a longstanding focus of scholarly critique. While students with substance use disorders who receive recognition of their disability as an “other health impairment” would face much of the same difficulty as other students with disabilities in demonstrating the adverse effect of their disability (and corresponding need for special education and related services), the unique nature of substance use disorders poses particular challenges in this space.

These challenges can be distinguished between those that would likely be faced by students who are actively using substances at the time of an eligibility determination or IEP meeting and those likely to be faced by students in remission from a substance use disorder. While students in remission would likely face fewer barriers in this space than substance-involved students, demonstrating sufficient adverse effects upon their educational performance that can be attributable to their substance use disorder might nevertheless be difficult. For one, the educators and reviewing entities making the eligibility determination may not fully understand the unique profile of substance use disorders and the manner in which they can continue to symptomatically manifest—and, possibly, adversely affect the student’s educational performance—even when a student is in remission from active drug use. Additionally, the existence of alternative vehicles of support for students with disabilities that do not feature as-stringent eligibility criteria—Section 504 and the ADA—might diminish the perceived significance of recognizing a substance use disorder in remission under the IDEA. Finally, the delicate balance of being in remission from a substance use disorder, and that disorder concurrently being recognized as adversely affecting the student’s educational performance to a degree that warrants special education and related services, is ever-vulnerable to disruption by the common occurrence of relapses.

Students who do not use or possess drugs at school but instead manifest the adverse effects of substance use disorders primarily at home can also “fall[] without” the “outer boundaries of IDEA eligibility.” According to the Department of Education’s Office of Special Education Programs, because the IDEA’s provisions “relate to the educational environment . . . for eligibility purposes, the student must meet the [adverse effect requirement] within the educational environment.” Unfortunately, such policies fail to acknowledge the degrees to which the consequences of substance use disorders extend beyond periods of active drug use.

The remaining category of students, those with substance use disorders who commit drug-related offenses at school, would likely have the most-obvious claim that their disability is adversely affecting their educational performance. The significance of this finding, however, would be diminished by the disciplinary (and possibly legal) consequences the students would face following the infraction. Furthermore, the discovery of active substance abuse either at home or at school can result in parents seeking a degree of support for their students that schools are typically unwilling to fund. While these particular elements are distinct from the inquiry concerning IDEA eligibility for students with substance use disorders, they would factor significantly into the manner in which such students would be served under the IDEA were they to meet the initial eligibility criteria.

c. “Needs Special Education”

One eligibility prong remains: students who meet the aforementioned criteria must also “need[] special education and related services.” The IDEA defines special education as “specially designed instruction, at no cost to parents, to meet the unique needs of a child with a disability.” The term “specially designed instruction” is defined as “adapting, as appropriate to the needs of an eligible child . . . the content, methodology, or delivery of instruction.” The IDEA provides a list of “related services” that “may be required to assist a child with a disability to benefit from special education,” including “psychological services, . . . social work services, . . . counseling services, including rehabilitation counseling . . . and medical services . . . for diagnostic or evaluation purposes.” Whether a student needs “special education,” as opposed to accommodations such as preferential seating or mobility assistance, is often a determining factor in whether a student meets IDEA eligibility or the more-expansive Section 504 eligibility criteria.

While the eligibility requirement that a student must “need[] special education” is logically “intertwined” with the requirement that a student’s IDEA-recognized disability “adversely affects” their educational performance, they are distinct inquires. Complicating this analysis is the fact that the statutory and regulatory language of the IDEA does not clarify (beyond the aforementioned definitions) which modifications constitute “special education” and which are simply best practices that address individual student needs.

The eligibility barriers discussed above are likely sufficient to preclude recognition of students with substance use disorders under the IDEA, rendering the discussion of whether such students need “special education” primarily theoretical at present. Nevertheless, advocates seeking IDEA reform must clearly establish that—if the statute were amended to recognize substance use disorders as education-impacting disabilities—there are available special education practices that could serve such students. Two foundations for this argument exist. One can first analogize the manner in which the students with substance use disorders could be served under the IDEA to the manner in which students with attention-deficit hyperactivity disorder (“ADHD”) are currently being served under the IDEA. One can then glean examples of “specially designed instruction” from school-based programs that currently serve students with substance use disorders, such as recovery schools.

ADHD and substance use disorders are “inextricably intertwined.” Children with ADHD are at a significantly higher risk of developing substance dependence than children without ADHD, and rates of ADHD among adolescents receiving treatment for substance use disorders are significantly higher than among the general population of their peers. Like substance use disorders, ADHD is correlated with poor academic performance, higher risk of dropout, and an increased risk of involvement with the juvenile justice system.

ADHD was not included in the examples of “other health impairments” in the IDEA’s original regulations; the condition was added following the IDEA Amendments of 1997. In seeking similar recognition of substance use disorders, advocates need not entirely conflate such disorders with ADHD to nevertheless draw valid analogies between the two conditions. Both concern a medically grounded reassessment of maladaptive school behavior that, if left unaddressed, leaves students vulnerable to a higher risk of failure. Furthermore, to whatever degree the common symptoms of ADHD mirror the school performance of students with substance use disorders, similar special education and related services can be provided to the latter population.

Advocates can also look to programs that currently serve students with substance use disorders for examples of academic modifications and supportive services that allow such students to fully access their educational opportunities. Recovery schools, which provide integrated therapeutic support for students in remission from substance use disorders, are a valuable source of such knowledge and experience. Recovery schools’ academic programming is typically more flexible than traditional schools, both to provide students the opportunity to learn foundational material that was not obtained prior to entering treatment and to allow time for supportive services throughout the day. Recovery schools also have small class sizes, which allow for a greater amount of individual student attention. Incorporating the principles and practices of recovery schools into public school systems would substantially alleviate the most pressing challenges of recovery schools—maintaining sustainability and offering a diverse suite of academic and elective courses—by leveraging economies of scale.

Despite the valuable insight recovery schools can provide, the manners in which “the content, methodology, or delivery of instruction” can most-efficaciously be adapted for students with substance use disorders remains a significant opportunity for further study and innovation. Much more is known regarding the “related services” schools can provide—and in some cases are already providing—to support this population. Approaches such as resilience theory, peer network counseling, motivational interviewing, and cognitive-behavioral therapy have all been demonstrated to improve outcomes for adolescents with substance use disorders. School-based interventions can strengthen “social resistance skills,” provide “normative education” regarding the dangers of substance abuse, and focus on “competence-enhancement” that addresses other social needs.

It should also be noted that the provision of “special education and related services” to students with substance use disorders aligns with the value of inclusion underlying the policy that students are to be educated in the “least restrictive environment” in which their needs can be met. This is especially the case if such interventions can be performed at the outset of the disorder’s manifestation. Providing early, effective, and evidence-based interventions can allow students to remain integrated in their schools and home environments and forestall, or ideally preempt altogether, a need for residential placement or the threat of juvenile justice involvement.

In summary, the IDEA’s eligibility criteria currently present barriers to the recognition of students with substance use disorders that would likely require statutory or regulatory amendments to overcome. In addition to amending the IDEA’s eligibility criteria, there are two important policy considerations that are deserving of attention, debate, and a similarly tailored response: (1) the balance between schools’ non-negotiable need to maintain safe and drug-free campuses and students’ protections against disciplinary actions that are “manifestations” of their disabilities; and (2) schools’ obligations to provide tuition reimbursement for residential treatment programs.

2. Further Policy Considerations: Manifestation Determinations and Residential Placements

a. Manifestation Determinations

If a student’s IEP team determines that a particular incident of school misbehavior is a manifestation of the child’s disability, the school, rather than levying punitive discipline, will conduct a “functional behavioral assessment, . . . implement a behavioral intervention plan[, and] . . . return the child to the placement from which the child was removed.” However, drug-related offenses trigger an exception to the IDEA’s standard protocol of determining whether a student’s misbehavior can be considered a “manifestation” of the student’s disability. Students who are caught using or possessing drugs at school are thus subject to disciplinary action, referral to law enforcement, and removal to an alternative educational setting for up to forty-five days “without regard to whether the behavior is determined to be a manifestation of the child’s disability.” Under the IDEA, schools still have the discretion to hold manifestation determination hearings following drug-related infractions by students with disabilities, but they are not required to do so as they are with other infractions.

The fact that substance use disorders are functionally invisible within special education law has resulted in inconsistent outcomes of manifestation determinations involving drug-related offenses for students with IDEA-recognized disabilities. If a student with a substance disorder who is deemed to have met the aforementioned IDEA eligibility criteria—by, again, meeting the criteria for emotional disturbance or being recognized as having an “other health impairment,” either of which must adversely affect the student’s educational performance to a degree that requires special education—committed a drug-related offense at school, it would almost certainly be considered a manifestation of their disability. Nevertheless, absent an amendment to the current guidelines, the aforementioned exception would apply, and the student’s school district would still have the ability to discipline the student, refer the student to law enforcement, and remove the student to an alternative placement for up to forty-five days.

Any legislative response that adheres to the value of school safety would ensure that schools maintain the flexibility to adequately respond to all drug-related offenses, including, if necessary, the temporary removal of students from campus. Such responses, however, should initiate, rather than foreclose, a dialogue regarding the “special education and related services” students are to be provided in their new placement. Without such support, the value of safety—both for the individual student and the school community—would be compromised upon the student’s return.

b. Residential Placements

The school’s response could be rendered moot, however, if the student is first withdrawn from the district by their parents and placed in a residential drug-treatment program. Under the IDEA’s regulations, parents of children who have previously received special education services and are dissatisfied by a school’s current provision of services can enroll their child in a private school program and file a due process action seeking reimbursement. Such reimbursement is justified only if “the public placement violated IDEA and the private [here, residential] school placement was proper under the Act.”

Federal circuits employ different tests for determining whether a particular student’s residential placement is proper (and therefore reimbursable). Under the oldest, most lenient, and most widely employed standard, courts assess “whether full-time placement may be considered necessary for educational purposes, or whether the residential placement is a response to medical, social or emotional problems that are segregable from the learning process.” The Seventh Circuit modified the above test to focus more directly upon the primary purpose of the chosen residential facility; reimbursement is not provided for placements that are “oriented more toward enabling the child to engage in noneducational activities.” The Fifth Circuit adopted elements of the aforementioned tests to create a two-part standard for proper residential placements: such placements “must be 1) essential in order for the disabled child to receive a meaningful educational benefit, and 2) primarily oriented toward enabling the child to obtain an education.” The second prong of this test is a “fact-intensive inquiry” that involves “weed[ing] out inappropriate treatments from the appropriate (and therefore reimbursable) ones.”

In practice, courts are reluctant to order reimbursement for programs designed to address substance use disorders for students with disabilities currently recognized under the IDEA. A valid concern exists, however, that broadening the IDEA’s eligibility standards to encompass more students with mental health disorders would place a significant burden upon school districts to underwrite treatment costs.

In conclusion, students with substance use disorders will likely remain invisible under the IDEA. Fortunately, another mechanism exists by which this population can be seen and served in their schools: the prohibitions against disability-based discrimination by public entities contained in Section 504 and further contextualized by the ADA.

B. Section 504 and the Americans with Disabilities Act

Compared to the IDEA, Section 504 and the ADA appear to impose altogether different obligations upon schools: the IDEA imposes an affirmative duty to provide students that meet its exclusive eligibility criteria with a free appropriate public education while Section 504 and the ADA contain strong prohibitions against disability-based discrimination. Functionally, however, Section 504 and the ADA stand alongside the IDEA as powerful mechanisms by which students with disabilities can be seen and served in their schools.

1. Section 504 and the ADA’s Eligibility Requirements and Protections

Unlike the IDEA, Section 504 and the ADA’s current eligibility standards provide sufficient opportunity to recognize and serve certain students with substance use disorders. While the IDEA only recognizes particular enumerated disabilities, Section 504 and the ADA prohibit discrimination against—and provide needed protections for—all students for whom “a physical or mental impairment . . . substantially limits one or more major life activities.”

According to Section 504’s school-specific regulations, schools must provide each “qualified handicapped person” with a “free appropriate public education.” To be considered “handicapped” under Section 504 and the ADA, students must have “any physiological disorder or condition . . . affecting one or more” of a broad list of bodily systems, or “any mental or psychological impairment,” that substantially limits one or more “major life activities,” including learning, reading, and concentrating. Subsequent ADA regulatory language—particularly its requirement that “the definition of disability . . . shall be construed in favor of broad coverage of individuals”—informs the manner in which Section 504 eligibility is to be determined by educators.

Because Section 504 and the ADA’s disability-based eligibility criteria are far less restrictive than the IDEA’s, virtually all students with IDEA-recognized disabilities receive concurrent recognition and protections under Section 504 and the ADA, while some students who are eligible for “Section 504 Plans” are ineligible for accommodations under the IDEA. Nevertheless, the IDEA and Section 504 both require the provision of a “free appropriate public education” to students who meet their separate eligibility criteria.

Providing a “free appropriate public education” under Section 504 requires the “provision of regular or special education and related aids and services that . . . are designed to meet individual educational needs of handicapped persons as adequately as the needs of nonhandicapped persons are met.” While it is “noncontroversial” that Section 504 and the ADA prohibit certain actions such as “unnecessary segregation, unjustified disparate-impact discrimination, refusal to furnish comparable academic and nonacademic facilities and settings, and failure to provide reasonable accommodation,” the nature of services schools must provide in order to meet the needs of students with disabilities “as adequately” as their nonhandicapped peers (and thus provide an “appropriate” education) is a matter of debate. If a disagreement occurs as to whether students with disabilities are receiving a free appropriate public education, Section 504 regulations provide for “a system of procedural safeguards that includes notice, an opportunity . . . to examine relevant records, an impartial hearing with opportunity for participation by the person’s parents or guardian and representation by counsel, and a review procedure.”

With the growing recognition of substance use disorders as complex, “biopsychosocial” conditions that often begin in adolescence, advocates for substance-involved students are better positioned than ever to seek Section 504 accommodations for students with substance use disorders. While this project would break new ground in the education context, a separate area of disability-nondiscrimination doctrine under Section 504 and the ADA can provide an initial (though incomplete) framework for such advocacy—the manners in which qualifying adults with substance use disorders have, for decades, been accommodated in their workplaces.

2. The Challenge of Substance-Involved Students

As discussed in Section 1.A.2, substance use disorders have long been considered “impairment[s] [that] substantially limit[] one or more major life activities” under Section 504 and the ADA. Advocates for students with substance use disorders can thus stand upon decades of scholarship and case law addressing the recognition and protection of employees with substance use disorders in their workplaces. But the school context presents a challenging issue that is not present in the workplace context: what, if any, obligations are owed to substance-involved students.

The standards for qualifying for Section 504 and ADA protections differ in key ways within the employment and education contexts. In the employment context, “qualified” individuals are only those who, “with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” Those who are “currently engaging in the illegal use of drugs” are not considered “qualified individual[s] with a disability.” In the school context, however, students can only lose their status as a “qualified individual” for Section 504 accommodations in schools by no longer being “of an age during which nonhandicapped persons are provided” public education.

Furthermore, while Section 504’s procedural protections do not preclude schools from issuing “legitimate, non-discriminatory” consequences for school misbehavior, and some students can therefore face expulsion following drug-related offenses, the student’s relationship with the public school system—through an alternative school within their local school district, or perhaps a school program within a treatment or carceral setting—typically continues after such disciplinary measures have been taken. Put another way, while adults with substance use disorders are not entitled to any particular job (or to employment generally), students with substance use disorders are entitled, and indeed obligated, to attend school in some capacity.

These distinctions expose a critical gap in special education law. Students with substance use disorders can meet the eligibility criteria of Section 504 and the ADA, and, unlike adult employees, students (1) cannot lose their status as a “qualified individual” deserving of Section 504 accommodations on the basis of active substance abuse, and (2) typically remain in an ongoing relationship with the public school system following the discovery of active substance abuse. What, then, are schools’ “free appropriate public education” duties under Section 504 to these students? Specifically, what manner and extent of academic and behavioral supports are legally necessary to provide an appropriate education for students in all stages of substance use disorders?

For now, these queries must be addressed on an individual basis and subjected to review by individuals who may be unaware of, or actively resistant to, the needs of adolescents with substance use disorders. Until the public school system’s obligations to students with substance use disorders are determined and articulated to schools, obtaining services or accommodations for substance-involved students will be challenging. But even if formal Section 504 accommodations are not obtained, there may nevertheless be value in recognizing a substance-involved student as a child with a disability. The simple act of incorporating the vocabulary of a medicalized construct of substance use disorders into schools could have a significant effect on parents, educators, and the students themselves. A meeting convened to discuss a student’s “relapse,” for example, would likely have a different tone, and possibly outcome, than one discussing a student’s continued rule- and law-violations. And ideally all parties would recognize that any mandatory punitive responses on the part of the school will, absent concurrent therapeutic support, almost certainly fail to incentivize the student to cease drug use.

Furthermore, if such district-level drug policies prove to be consistently illogical and counterproductive over time, perhaps district-level policymakers would then be motivated to reform their policies in a manner that acknowledges the complexity of substance use disorders. Section 504’s affirmative obligation for schools to identify disabled students might also impact district-level behavior through increased screening for substance use disorders and timely communication with parents regarding warning signs and symptoms. In fulfilling their evaluative obligations under Section 504, schools can play an invaluable role in the education of families and implementation of proactive responses to budding substance use disorders. Meeting this requirement might also entail increasing training opportunities for teachers and counselors to identify and initially address evidence of substance abuse.

3. Existing Space to Serve Students with Substance Use Disorders

There is, however, a class of individuals who could immediately obtain formal recognition and accommodations under Section 504: non-using students in recovery from substance use disorders. This population stands to benefit from decades of precedent on the matter without triggering the complex questions raised by substance-involved students.

Though the effort-intensive nature of maintaining remission from substance use disorders arguably justifies a robust provision of “regular or special education and related aids and services” for students in recovery, there are also several practical—and relatively easy to provide—accommodations that advocates can and should seek for that population. Examples of such accommodations include the coordination of communication between school personnel, parents, and, upon consent, outside treatment providers to ensure that aberrations in students’ academic performance or behavior are addressed quickly and strategically; giving students the opportunity to call their sponsors or therapists during school hours without judgment or consequence; and excusing absences to attend outpatient treatment programs. Schools can also be more sensitive to the scheduling needs of students in recovery and, where possible, provide opportunities to transfer out of classes containing students from whom they should maintain distance.

Such interventions, if proven effective for a particular student, should remain available as long as the student attends school. This argument finds support in the ADA Amendments Act of 2008, which proscribes factoring the “ameliorative effects of mitigating measures” when assessing an individual’s impairment. In other words, the impact of a student’s disability must be assessed insofar as how it would manifest absent any mitigating measures (such as school-based recovery supports). Students in recovery are entitled to support under Section 504 and the ADA regardless of the length of their sobriety.

In any event, advocates for students with substance use disorders can and should initiate this conversation by seeking support and protections for this population under Section 504 and the ADA. Reasonable applications of the statutes as they currently stand can make a significant impact upon the lives of students in various stages of substance use disorders, as well as upon the school systems that serve them.

Nevertheless, the primary impact of broadly acknowledging and addressing substance use disorders in schools may lay outside the strict bounds of statutory obligations. Important as specific accommodations are, the greatest value in extending Section 504 protections to students in recovery may be simple recognition: for them to be seen, celebrated, and supported in their schools.


Substance use disorders are incredibly challenging to address. Initial instincts, on a personal and policy level, are often to mistake substance use disorders for problems that are seemingly easier to solve, if not to ignore them altogether. It is no surprise, then, that the primary policy framework for serving students with disabilities—the IDEA—fails to acknowledge and address students with substance use disorders. That said, certain students (particularly students in recovery) are entitled to recognition and accommodations under Section 504 and the ADA. Seeing and serving students with substance use disorders would be a complex and controversial project, but such students—like all other students with disabilities—are deserving of support.


96 S. Cal. L. Rev. 355


* Judicial Law Clerk, Southern District of Texas. All views expressed are my own. I could not have written this Article without the education, encouragement, and feedback I received from Tara Ford, Bill Koski, Ticien Sassoubre, Rabia Belt, Jasmine Miller, Thomas Butterfoss, and Max Etchemendy. I am also grateful beyond words to my family, my friends, and the recovery school community for their support over the years. Finally, I am indebted to the kind and thoughtful editors of the Southern California Law Review who worked on this article: Daniel Willey, Celine Ang, Jessica Block, and Christopher LoCascio.

Analyzing the Circuit Split Over CDA Section 230(E)(2): Whether State Protections for the Right of Publicity Should be Barred


In 2018, coworkers notified Karen Hepp, a newscaster and co-anchor for the local Fox affiliate’s morning news program Good Day Philadelphia, that a screenshot of her smiling at a hidden security camera taken about fifteen years ago was being used in various online advertisements for erectile dysfunction and dating apps. Hepp was not previously aware that her photo had been taken or that her photo was posted and shared online on platforms such as Facebook, Reddit and Imgur. Hepp’s photo was used to solicit Facebook users to “meet and chat with single women.” The photo was also featured on Imgur under the heading “milf,” a derogatory and degrading term that refers to a sexually attractive woman with young children, and a Reddit user under the handle “pepsi_next” posted Hepp’s photo to a Reddit subgroup “r/obsf,” which is a repository for risqué photos of older women. Though Hepp did not allege that Facebook, Imgur, or Reddit had any role in creating or directly publishing this content, she argued that the platforms’ actions have caused “serious, permanent and irreparable harm” to her reputation brand, and image. Hepp filed claims against Facebook, Imgur, and Reddit for violations of a Pennsylvania state statute that codifies a right of publicity through causes of action for an unauthorized use of one’s name or likeness and the Pennsylvania common law right of publicity.

Because there is no federal law protecting a right of publicity, states that have adopted the right of publicity have done so by statute, judicial decision, or both. The right of publicity is the right to control the commercial use and value of one’s persona, but the right significantly varies from state to state. Generally, a claim “requires three elements to be actionable: (1) the use of an individual’s persona; (2) for commercial purposes; and (3) without plaintiff’s consent.” The Pennsylvania statute creates a cause of action for “any natural person whose name or likeness has commercial value and is used for any commercial or advertising purpose without the written consent of such natural person.” In Hepp v. Facebook, Facebook, Reddit, and Imgur filed a motion to dismiss the suit under Federal Rule of Civil Procedure 12(b)(6), and the District Court for the Eastern District of Pennsylvania granted the motion, holding that Hepp’s statutory and common law right of publicity claims were barred by the section 230(c) of the Communications Decency Act (“CDA”).

Section 230 of the CDA states, “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider,” and it expressly preempts any state law to the contrary. Essentially, this means interactive service providers are generally immune from liability related to content posted or shared by third parties. Therefore, section 230 “creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service.” However, there are some exceptions to this immunity, including causes of action under “any law pertaining to intellectual property.”

In granting the motion to dismiss, the district court in Hepp followed the Ninth Circuit’s interpretation of section 230(e)(2) in holding that only federal intellectual property claims are excluded from the scope of CDA section 230 immunity, so state rights of publicity claims are barred by section 230(c). Hepp argued that the District Court for the Eastern District of Pennsylvania should instead follow other district courts in New Hampshire and New York in holding that section 230(e)(2) includes state intellectual property claims, such as a state right of publicity claim. Hepp subsequently appealed her case to the Third Circuit, which held that it would “adhere to the most natural reading of section 230(e)(2)’s text” so that “a state law can be a ‘law pertaining to intellectual property,’ too.” This created a circuit split between the Ninth and Third Circuits with regard to subsection (e)(2).

The argument to limit interpretation of the intellectual property exemption in section 230(e)(2) to federal law is most strongly supported by the broader congressional intent to create a broad liability shield for interactive computer service users and providers in enacting section 230. Federal laws are well-established with clear scopes of application, but state laws protecting intellectual property are far from uniform, so state laws are much less predictable and could lead to significantly different outcomes between jurisdictions. State laws may cover different causes of action rooted in different legal theories, have varying purposes and policy goals, and provide for different remedies, all assuming that a state legislature has decided to enact a law at all. Consequently, if varying state laws are exempt from section 230 immunity, the integrity of section 230 would be severely compromised. Policy-wise, the Ninth Circuit’s interpretation to exclude state intellectual property laws could very likely prevent individuals harmed by infringing content from having any redress as third-party users who typically post such content are generally very difficult to identify. On the other hand, we must also defer to Congress’s express statutory language and assume that the literal language of the statute accurately reflects Congress’s intent. Therefore, because subsection (e)(2) states that “any law pertaining to intellectual property” is not included within section 230 immunity, and Congress explicitly named federal and state law multiple times within subsection (e), we must conclude that Congress did not actually intend to limit the intellectual property exemption, which should apply its most literal meaning.

There is also a potential argument that the right of publicity is not even an intellectual property right at all, in which case the exception to immunity for claims related to intellectual property laws would not even apply. Furthermore, there has been intense controversy over section 230 coming from both sides of the political aisle, so the statute may be amended or even repealed entirely in the relatively near future. Also, the entire landscape of the internet and the public’s relationship with the internet have been shaped by section 230, so changes to the law or differing applications of the law could compromise our understanding of the right and the internet. However, the current proposed changes to section 230 do not directly address the issue over how subsection (e)(2) should be interpreted with regard to state intellectual property laws, so the circuit split described in this Note will likely still be relevant.

In the absence of federal protection, whether claims regarding the right of publicity are actionable is increasingly important with the growth and expansion of the internet, particularly social media. The rise of “influencers,” individuals who essentially monetize and make a career out of their personas and relationships with branded or commercial content, and the rise of “deep fakes,” which utilize technology to synthesize fake pictures or videos that convincingly appear to depict specific individuals or celebrities, are deeply linked to the interest in one’s self, which is protected by the right of publicity. Though lawsuits over right of publicity have historically been brought almost exclusively by celebrities, the age of social media has created many more opportunities for members of the general public to have a commercial interest in their name, image, likeness, or persona. Social media has proven to be extremely lucrative, and content can generate significant value from a business standpoint. Companies and internet platforms will presumably adapt their own policies regarding allegedly infringing content depending on the prevailing interpretation of section 230(e)(2) in order to avoid as much liability as possible, which would create consequences for the millions of users that access those sites and platforms every day.

Part I of this Note will provide background and context to the right of publicity and how it developed in common law to provide a remedy
for individuals, typically celebrities, whose likenesses have been misappropriated without their consent. I will analyze the right of publicity as codified in individual state statutes with an emphasis on how these often significantly different statutes create unpredictability in enforcement and litigation. I will also distinguish the right of publicity from causes of action regarding copyright and compare the Digital Millennium Copyright Act (“DMCA”) to section 230 of the CDA. Part II will provide an overview of section 230 and discuss legislative history and intent. Within Part II, I will also examine both sides of the circuit split from the Ninth and Third Circuits’ contrary interpretations of CDA section 230(e)(2) and each side’s underlying tradeoffs involving the lack of uniformity in state intellectual property laws and the potential effects of precluding claims from such laws as compared to potentially refraining from expanding beyond the congressional purpose of CDA section 230. Finally, I will address the arguments over whether section 230 should still exist in its current form and proposed reforms.


Hepp sued Facebook, Reddit, and Imgur for allegedly violating her right of publicity as granted by Pennsylvania state statute and common law. The right of publicity is defined as “the inherent right of every human being to control the commercial use of his or her identity.” The right of publicity is generally regarded as an intellectual property right, though interactive service providers such as the defendants in Hepp have argued to the contrary. The right of publicity allows all individuals, celebrity or not, to recover for unpermitted uses of their likeness or persona for commercial gain. The right is valuable in that it provides individuals the opportunity to protect the commercial use of their identities as many people, especially celebrities, generate significant income by authorizing others to use their identities in exchange for payment.

 A. Origins and Development

The right of publicity originally developed as the other side of the coin of the laws and theories surrounding the right of privacy. Samuel D. Warren and Louis Brandeis first recognized the right of privacy as a right potentially rooted in common law in a law review article in 1890. The right of privacy was designed to protect people from uninvited public attention and create a cause of action for people who suffered emotional harm from unwanted publicity. However, because the right to privacy is generally a right “to be let alone,” there was difficulty in enforcing and applying this right to cases involving individuals who were already in the public spotlight. Some courts held that individuals who sought out publicity through their career choices must waive any right of privacy, while others concluded that while celebrities may be the subject of news stories, they maintain a right of privacy that allows them a shield from unwanted, non-newsworthy publicity. Therefore, the term “right of publicity” was first coined by Judge Jerome Frank in Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc. in order to address “the economic potential of a celebrity’s identity.”

In Haelan, a chewing-gum manufacturer made a contract with a baseball player for the exclusive right to use the player’s photograph in connection with sales of its gum. However, a rival chewing gum manufacturer knew of the contract and deliberately induced the player to authorize the rival manufacturer to use the player’s photograph in connection with the sales of the rival’s gum. The Second Circuit held that an individual has a right in the publicity value of their photograph—that is, the right to grant the exclusive privilege of publishing their picture—and that this right, which is particularly relevant for prominent figures in the public eye, “might be called a ‘right of publicity.’ ” Haelan distinguished itself from prior case law due to the opinion’s emphasis on the economic interest at stake as the plaintiffs, rather than not wanting their photographs to be withheld from public viewing entirely, simply did not want their photographs to be sold for profit by third parties. The right of publicity is significantly distinct from the right of privacy because the right of privacy is not assignable, and as such, the two rights are independent from each other.

Though the right of publicity has clear roots in privacy rights, Professor Melville Nimmer associated the right of publicity with unfair competition and property law. Nimmer stated an individual is entitled to “the fruit of his labors unless there are important countervailing public policy considerations . . . [and] persons who have long and laboriously nurtured the fruit of publicity values may be deprived of them, unless judicial recognition is given to what is here referred to as the right of publicity.” Thus, Nimmer linked the right of publicity to the commercial aspects of a public figure’s “personality.” In contrast, in 1960, William Prosser advocated for the recognition of the tort of privacy appropriation and suggested that an individual could have the right to control the use of their identity from the appropriation of others. Unlike Nimmer’s analysis of the right of publicity, the tort of misappropriation is not a property right. This analysis lends support to the minority view that the right of publicity should not be considered an intellectual property right.

B. Federal Influences

In 1977, the U.S. Supreme Court recognized the right of publicity in Zacchini v. Scripps-Howard Broadcasting Co., the first and only Supreme Court case to address the right of publicity. In Zacchini, an entertainer performed a fifteen-second human cannonball act and sued a local television station after the station taped and broadcast the entire act on the news without the entertainer’s permission. The Court considered whether the station was immunized from damages by the First and Fourteenth Amendments of the Constitution and ultimately held that Ohio could grant a state law remedy against the station or give immunity to the press but was not required to do so either by the First and Fourteenth Amendments. The rationale behind protecting the right of publicity, according to the Court, was simple: to prevent unjust enrichment by the theft of good will as broadcasting an entertainer’s entire act “poses a substantial threat to the economic value of that performance.” The Court clearly emphasized the proprietary interest of the individual and compared the purpose of the right of publicity to the economic philosophy behind granting patent and copyright ownership, which is to encourage individuals to produce inventions and creative works in order to foster innovation and benefit the public.

Zacchini, as the only Supreme Court case on the subject, provided some federal influence on the right of publicity, and another source of federal influence is section 43(a)(1) of the Lanham Act, the federal unfair competition act. Rights of publicity cases also regularly implicate the Lanham Act because unauthorized appropriations of celebrities’ identities often involve issues of confusion over sponsorship. Congress amended the Lanham Act in 1988 to codify judicial decisions that had interpreted the Act to allow for false endorsement claims, and the amendment provides celebrities with a clearer statutory foundation for alleging the applicability of the Lanham Act in right of publicity actions. The Lanham Act is also important as a federal law because the CDA has a preemption clause that preserves federal claims of false endorsement, so hypothetical plaintiffs could potentially still have an avenue for redress under this federal law even if causes of action under the state right of publicity are barred. Thus, in order to attempt to avoid being barred, some types of cases are now more likely to also be rooted in the Lanham Act for the nationwide coverage, clear remedy, and wide scope of damages.

C. Incongruence Among States

Currently, twenty-five states have passed statutory protections for the right of publicity, and many other states have held that their respective common law would protect the right. Of the courts that have directly addressed the issue, some states have recognized a distinct right of publicity and distinguished it from a right from misappropriation while others treat the right of publicity as synonymous with the tort of appropriation as expressed in the Restatement (Second) of Torts. As previously stated, Prosser wrote about the right to privacy in 1960 and argued it is composed of four subparts, one of which being the right to protection against misappropriation of one’s likeness. Later, the American Law Institute adopted these four subcategories in the Restatement (Second) of Torts. The tort of misappropriation protects the “interest of the individual in the exclusive use of his own identity, in so far as it is represented by his name or likeness, and in so far as the use may be of benefit to him or to others.” Though this right is in the nature of a property right, misappropriation is rooted in the common form of invasion of privacy.

The scope of the right of publicity varies from state to state, so the extent that a right of publicity might be protected greatly depends on the state in which a person is attempting to assert that right, as well as the state in which that person is domiciled. For example, individuals in most states, such as California, can assert their right of publicity during their lifetimes, while individuals in Texas cannot, as their statutory right is protected only post-mortem. Further, there is a wide range of duration periods within state statutes that provide for the right of publicity to survive after an individual’s death. Moreover, some state statutes only protect the right of publicity for certain types of people, such as soldiers or “public figures.” Perhaps most notably, what exactly is protected under the right of publicity varies greatly among states. For example, in Virginia, the statutory right of publicity is limited to a person’s name, portrait, or picture, whereas in New York, the right protects a person’s “name, portrait, picture or voice” but does not extend to that person’s likeness. In contrast, the California statute is much broader and protects against unauthorized use of an individual’s “name, voice, signature, photograph, or likeness, in any manner.” Even further, Indiana’s statute grants a property interest in an individual’s name, voice, signature, photograph, image, likeness, distinctive appearance, gestures, or mannerisms.

Significantly, there is currently no federal statute to protect the right of publicity or otherwise provide a uniform approach to the right. Due to the reach of social media and other technological advancements, and the fact that those most likely to assert their right of publicity are celebrities and public figures whose identities could be recognized across the entire country, litigation is unpredictable. Generally speaking, a right of publicity claim involves (1) the use of an individual’s “persona,” (2) for commercial purposes, and (3) without the individual’s consent. For the purposes of this Note and to determine whether a state’s right of publicity statute might fit into the carve-out of CDA section 230 immunity, I will largely limit the discussion to statutory protections and judicial applications of such protections.

D. Application

Each state’s statutory differences in turn lead to very different judicial outcomes in application that do not necessarily strictly adhere to the statutory language. In Midler v. Ford Motor Co., for example, actress and singer Bette Midler sued for an alleged violation of her right of publicity when Ford and its advertising agency used a sound-alike of Midler, but neither her name nor her picture, in a television commercial. Though the advertising agency had properly licensed Midler’s song from the copyright holder, the sound-alike was directed to “sound as much as possible like the Bette Midler record” after Midler herself refused the gig. Thus, the only issue in the case was whether Midler’s voice was protected. The lower court granted summary judgment in favor of the agency due to the fact that although California’s statute would have protected Midler’s voice if it were used without her consent, the audio in the commercial was not actually Midler’s voice. Ultimately, the Ninth Circuit reversed and held that “to impersonate her voice is to pirate her identity,” so the defendants committed a tort of misappropriation by intentionally seeking an attribute of Midler’s identity, valued at what the market would have paid for Midler to have actually sung the commercial. However, there was no statutory violation of Midler’s right of publicity as the term “likeness” refers to a visual image rather than a vocal imitation.

Similarly, in White v. Samsung Electronics, plaintiff Vanna White, the co-host of Wheel of Fortune—“one of the most popular game shows in television history” to which an estimated forty million people tune in daily— sued after Samsung ran an advertisement without consent from or payment to White. Samsung referred to the advertisement as the “Vanna White” advertisement, which depicted a robot outfitted to specifically resemble White in her famed stance next to the “instantly recognizable” Wheel of Fortune game show set. White argued that the advertisement used her “likeness” in violation of section 3344 of the California Civil Code, but because the advertisement featured a robot with mechanical features and not White’s “precise features,” the Ninth Circuit held that the robot did not constitute White’s “likeness” within the statutory meaning and affirmed the dismissal of White’s claim. However, the common law right of publicity has a broader umbrella of protection as it “does not require that appropriations of identity be accomplished through particular means to be actionable,” and in this case, the aspects of the advertisement leave “little doubt about the celebrity the ad is meant to depict,” so the district court erred in rejecting White’s common law right of publicity claim on summary judgment.

Furthermore, White also brought a claim under the Lanham Act, for which she was required to show that the defendants created a likelihood of confusion as to whether White was endorsing the products in the advertisement. The Ninth Circuit applied an eight-factor test from the trademark case AMF Inc. v. Sleekcraft Boats. The eight factors are as follows: “(1) strength of the plaintiff’s mark; (2) relatedness of the goods; (3) similarity of the marks; (4) evidence of actual confusion; (5) marketing channels used; (6) likely degree of purchaser care; (7) defendant’s intent in selecting the mark; [and] (8) likelihood of expansion of the product lines.” Based on the evidence White provided, the first, second, fifth, sixth, and seventh factors supported finding that there was a likelihood of confusion. The Ninth Circuit found that a jury could reasonably conclude that there was an underlying intent to persuade consumers that White was endorsing the products, so White properly raised a genuine issue of material fact and the lower court erred in rejecting her claim at the summary judgment stage. Thus, even if state right of publicity claims are barred by section 230, a potential plaintiff may be able to assert a similar but distinct claim.

E. Distinguishing the Right of Publicity from Causes of Action for Copyright Infringement

Copyright law and the right of publicity, though seemingly similar, are very different rights that are rooted in different textual and theoretical foundations, especially regarding copyright law’s constitutional basis. The federal Copyright Act grants authors of original works the exclusive rights to reproduce, distribute, display, and perform their work. Copyright law also gives rights to the public, such as the right to use ideas and the right to resell lawfully purchased works. In contrast, as previously stated in this section, the right of publicity is protected by state statutes and common law and allows an individual to recover for unauthorized use of a person’s name or likeness for a commercial purpose. The right of publicity is most often asserted by celebrities, but most state statutes grant all individuals this right. There is also “a critical distinction between a commercial transaction for a photograph, itself, and a commercial transaction where a photograph is used to promote or sell another product or service.”

Jennifer Rothman, a leading scholar on the right of publicity, has argued that though copyright and the right of publicity both strive to protect creative artists and to incentivize them to create works, the two rights seriously conflict. Rothman argued that the right of publicity “conflicts not only with explicit provisions of the Copyright Act, but also with the implicit grant of affirmative rights to copyright holders and the public,” particularly because the right of publicity has grown to cover “persona,” so the scope of the right has expanded beyond just an individual’s name or likeness. One’s “persona” could be implicated in a use where a viewing audience is simply reminded of the person even when neither the person’s name nor likeness is used.

Section 301 of the Copyright Act sets out a test to determine whether copyright law preempts a state law claim, such as a right of publicity claim: the content of the protected right must fall within the subject matter of copyright as specified by sections 102 and 103 of the Copyright Act, and the right asserted under state law must be “equivalent to any of the exclusive rights within the general scope of copyright” as specified by section 106 of the Copyright Act. Therefore, while causes of action under a state’s right of publicity can be brought concurrently with a cause of action for copyright infringement, copyright law does not necessarily preempt right of publicity claims. Though an argument that the state-based right of publicity is preempted by federal copyright law exists, most judicial decisions have rejected it. The Sixth and Ninth Circuits, as well as some district courts, have concluded that section 301, the Copyright Act’s explicit preemption clause, never preempts the right of publicity because the right of publicity is generally not equivalent to the rights protected by the Copyright Act. While there is no categorical preemption of right of publicity claims, there have been individual cases in which the right was preempted; for example, in Fleet v. CBS, Inc., an actor in a movie attempted to use his right of publicity to thwart a copyright owner from exploiting its property. In Fleet, because the individuals only sought to block CBS from reproducing and distributing their performances in a film, their claims were preempted by federal copyright law since the film came within the subject matter of copyright protection and their claim was equivalent to an exclusive right within the general scope of copyright.

Many rights of publicity cases also involve causes of action for copyright infringement under the DMCA, which is analogous to the CDA in that the DMCA immunizes providers from some lawsuits involving third-party content. In passing the DMCA, Congress “sought to provide a safe harbor against copyright liability for the normal operations of online service providers.” The DMCA established certain safe harbors to “provide protection from liability for: (1) transitory digital network communications; (2) system caching; (3) information residing on systems or networks at the direction of users; and (4) information location tools.” The DMCA provides “safe harbors” to covered providers who remove content after being notified that the content may violate federal copyright law. To be protected from lawsuits premised on hosting potentially infringing content, the DMCA requires the person notifying a service provider of copyright infringement to submit a statement “under penalty of perjury identifying the allegedly infringing material and providing a good-faith assertion that the use of the material is unlawful.” Then, the provider hosting the allegedly infringing content must decide whether to accept the notice and remove the material or ignore the notice and risk liability. The DMCA both incentivizes the provider to take down the material by granting immunity to providers that do so, which creates a risk that providers will take down lawful material in order to avoid liability, as well as provides a process for the user who posted the allegedly infringing content to challenge the initial notice, in which case the provider may be able to replace the initial post and retain immunity if there is sufficient “counter notification.”

The most significant difference between the CDA and the DMCA is the DMCA’s requirement that the provider lack knowledge of the infringing material to be protected. Section 230 of the CDA immunizes providers for hosting both lawful and unlawful third-party content regardless of whether the provider has notice of allegedly unlawful user-generated content. For example, Perfect 10, Inc. v. CCBill LLC, in which the owner of a subscription website for adult entertainment alleged interactive service providers violated copyright and right of publicity laws among others by providing services to websites that posted stolen images, involved both the safe harbors from DMCA and the question of whether a claim under the right of publicity was barred by section 230 of the CDA. Because the DMCA sets a significantly higher threshold for providers to qualify for immunity, the Ninth Circuit first analyzed whether the providers met the threshold conditions set out in section 512(i) and then determined whether the providers could qualify for any of the safe harbors established in subsections (a) through (d). Ultimately, the provider was not eligible for immunity because it was not enforcing its DMCA policy. The district court stated that “the DMCA’s protection of an innocent service provider disappears at the moment the service provider loses its innocence, i.e., at the moment it becomes aware that a third party is using its system to infringe.”

In contrast to the complex and thorough examination of the requirements set forth by the DMCA to be shielded from liability, the question of whether the right of publicity claim was barred by section 230 of the CDA was quickly and succinctly handled on its face as the Ninth Circuit held the claim did not fit within the intellectual property carve-out. Perfect 10 clearly illustrates some of the significant differences in the liability shields granted through the DMCA and the CDA. Though the statutes are entirely distinct from one another, scholars have advocated for CDA reform, in part because as it is, section 230 allows interactive service providers to avoid liability even if they are aware of and profit from illegal content, so long as the provider itself is not the author of the material.


A. Legislative History and Intent

Before Congress enacted section 230 of the Communications Decency Act, it enacted a subsection of the Telecommunications Act of 1996 in order to protect internet platforms from liability for third-party content. Common law had created a much different legal standard. In Stratton Oakmont v. Prodigy Services, a defamation case involving the “Wolf of Wall Street,” Jordan Belfort, in which an anonymous user wrote on Prodigy’s online message board that Belfort’s brokerage had engaged in criminal and fraudulent acts, the New York Supreme Court held that the message board was a “publisher” and moderating some posts and establishing guidelines for impermissible content meant that the message board was liable. Thus, an internet platform would bear no liability for illegal context created by its users, but this protection did not extend to a platform that moderated user-created content. This created a policy-poor incentive in that platforms could adopt an “anything goes” model for user-created content to avoid open-ended liability. In response, then-Representatives Ron Wyden, a Democrat from Oregon, and Christopher Cox, a Republican from California, were concerned that this precedent would disincentivize websites to block obscene content.

Representatives Wyden and Cox were also concerned about another extreme: then-Senator James Exon (Democrat from Nebraska) proposed a bill in the summer of 1996 to ban “anything unsuitable for minors from the internet.” Senator Exon’s bill, which passed in the Senate with eighty-four votes in favor and sixteen votes opposed, cast an extremely wide net as “anyone who posted any ‘indecent’ communication, including any ‘comment, request, suggestion, proposal [or] image’ that was viewable by ‘any person under 18 years of age,’ would become criminally liable, facing both jail and fines.” Moreover, the bill went so far as to criminalize the mere transmission of such content. Representatives Wyden and Cox responded and proposed their own bill that was intended to protect speech and privacy on the internet from government regulation and “incentivize blocking and filtering technologies that individuals could use to become their own censors in their own households.” Representative Wyden emphasized that “parents and families are better suited to guard the portals of cyberspace and protect our children than our Government bureaucrats,” and argued against federal censorship of the internet. This way, content creators would be liable for compliance with all civil and criminal laws relating to their content, but this responsibility would not shift to internet platforms, “for whom the burden of screening billions of digital messages, documents, images, and sounds would be unreasonable—not to mention a potential invasion of privacy.” Instead, platforms are permitted to review and moderate some content in the course of enforcing rules against obscene content while still maintaining a broad liability shield. This measure received 420 yeas and four nays in the House of Representatives, and Congress ultimately passed its version of the Telecommunications Act—with both the contradicting Cox-Wyden amendment and Exon amendment. However, within a year of the statute’s enactment, the Exon amendment was struck down by the Supreme Court, which unanimously held that the Exon amendment created an unacceptable burden on adult speech because “[i]n order to deny minors access to potentially harmful speech, the CDA effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another.” Ironically, because Exon’s legislation and Cox-Wyden’s legislation were merged into the same legislative title, after Exon was declared unconstitutional, the Cox-Wyden amendment became section 230 of the Communications Decency Act, the exact name of the legislation that it was designed to rebuke. When section 230 was enacted in 1996, less than half of Senators and only a quarter of House Representatives even had email addresses. Though people likely generally understood the burgeoning significance of the internet, it was probably hard to foresee exactly how important user-generated content would become to everyday lives and activities or even the sheer volume of internet traffic.

Overall, section 230 serves three core purposes. First, it “maintain[s] the robust nature of internet communication and, accordingly . . . keep[s] government interference in the medium to a minimum.” Second, the immunity provided by section 230 “protects against the ‘heckler’s veto’ that would chill free speech,” as without section 230, individuals could threaten litigation against interactive computer service providers, which would be forced to choose to either remove the content or face litigation costs and potential liability. Third, section 230 encourages interactive computer service providers to self-regulate “offensive” material as a response to the holding in Stratton Oakmont, in which the provider of an electronic message-board service was “potentially liable for its user’s defamatory message because it had engaged in voluntary self-policing of the third-party content.” However, the broad immunity shield granted to providers has arguably led to disincentivize providers from self-regulating.

Judicial interpretation of section 230 is crucial to determine whether platforms such as Facebook, Reddit, Imgur, and others could be liable for the infringing actions of third-party users. Section 230 unambiguously provides immunity to providers and users of interactive computer services from liability for subject matter generated by third parties as (c)(1) states, “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Though “immunity” or a synonym is not explicitly included in section 230(c)(1), reviewing courts have recognized the provision to protect interactive service providers for the display of content created by someone else. The main purpose of section 230 is to bar “lawsuits seeking to hold a service provider liable for its exercise of a publisher’s traditional editorial functions—such as deciding whether to publish, withdraw, postpone, or alter content.” In Zeran v. AOL, which was decided shortly after the CDA was enacted, the Fourth Circuit heard a defamation claim against America Online (“AOL”) alleging “that AOL unreasonably delayed in removing defamatory messages posted by an unidentified third party, refused to post retractions of those messages, and failed to screen for similar postings thereafter,” but held that the CDA squarely barred the claim.

 Section 230 defines an “interactive computer service” as “any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet.” This broad definition covers many entities operating online, including broadband internet access providers (such as Verizon FIOS and Comcast Xfinity), internet hosting companies (such as DreamHost and GoDaddy), search engines (such as Google and Yahoo!), online messaging boards, and many varieties of online platforms. An “information content provider” is “any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.” Thus, section 230 distinguishes those who create content from those who provide access to that content, providing a broad liability shield to the latter group.

It is undisputed that section 230(c)(1) of the CDA is limited by section 230(e)(2), which requires courts to “construe Section 230(c)(1) in a manner that would neither ‘limit or expand any law pertaining to intellectual property.’ ” However, there are conflicting interpretations of section 230(e)(2) of the CDA. This discrepancy is the focus in many rights of publicity cases and other cases rooted in state causes of action, such as Hepp v. Facebook. In determining whether section 230(e)(2) applies, courts have sometimes looked not only to whether the plaintiff is suing under a law that generally involves intellectual property issues, but more specifically, whether the plaintiff’s claim actually involves an intellectual property right. It is significant to note that protection of intellectual property rights on internet platforms is limited by federal protections, such as the safe harbor provisions of section 512 of the DMCA. These safe harbors give providers a broad liability shield from indirect liability for copyright infringement by third-party users, which is relevant here as these safe harbors could potentially be interpreted to indicate congressional intent to protect platforms against liability for intellectual property infringement by third-parties. Because both statutes were enacted in the late 1990s, there has been debate over whether they should still exist in their current form, as the internet is nearly unrecognizable as compared to the late 1990s.

B. Arguments that Subsection (E)(2) Should Be Interpreted to Be Limited to Federal Intellectual Property Laws

In three relatively short paragraphs, the Ninth Circuit directly addressed in 2009 whether the intellectual property carve-out in section 230(e)(2) should open up interactive computer service providers to liability for claims under state right of publicity statutes in Perfect 10, Inc. v. CCBill LLC and ultimately held that it should not. The Ninth Circuit revisited the issue in 2019 in Enigma Software Group USA, LLC v. Malwarebytes, Inc., and affirmed its prior conclusion.

Section 230 states that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider,” and expressly preempts any state law to the contrary, so the majority of federal circuits have interpreted section 230 to establish “broad ‘federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service.’ ” There is no express definition of “intellectual property” in the CDA, and there are many types of laws that could arguably be characterized as intellectual property claims. The Ninth Circuit reasoned that while the scope of federal intellectual property laws is “relatively well-established,” state laws governing intellectual property claims significantly differ and do not provide analogous uniformity. Therefore, construing “any law pertaining to intellectual property” in subsection (e)(2) to literally mean any intellectual property law, including state laws, would open up interactive computer service providers to a massive amount of liability with extremely unpredictable litigation. To avoid this, the Ninth Circuit held that the term “intellectual property” should instead mean “federal intellectual property” in order to protect Congress’s “expressed goal of insulating the development of the Internet from the various state-law regimes.” Furthermore, regarding the right of publicity specifically, there is an argument that the publicity rights do not constitute intellectual property rights for the purposes of the liability carve-out, in which case subsection (e)(2) would be irrelevant and right of publicity suits would be barred by section 230(c)(1).

This concern is certainly valid with respect to right of publicity claims; as noted above, of the twenty-five states that have actually granted statutory protection to an individual’s right of publicity, there are vast discrepancies between state statutes, including the scope of the right, who may assert a claim, and the duration of the right. However, websites and their respective contents are accessible in all fifty states at any given time. Thus, if section 230 does not immunize interactive computer service providers from causes of action stemming from right of publicity statutes, each state with relevant legislation could potentially have a different outcome. For example, if potentially infringing content used only an individual’s voice for a commercial purpose without the individual’s consent, it would be actionable only in Alabama, California, Hawaii, Indiana, Illinois, Nevada, New York, Ohio, Oklahoma, South Dakota, Texas, and Washington, but likely not in Florida, Kentucky, Massachusetts, Nebraska, Pennsylvania, Rhode Island, Tennessee, Utah, Virginia, or Wisconsin. Even states that would allow this claim to proceed have different required elements regarding who may bring the claim and the duration of the right, among others, and even if an individual were able to successfully assert their right and win their case, these statutes grant different remedies. Overall, allowing section 230(e)(2) to include the state right of publicity laws within the intellectual property exception could open up interactive computer service providers to a massive amount of unpredictable liability. Again, because the internet is accessible throughout the country, these providers would be required to comply with the most restrictive state’s standards to avoid liability.

Additionally, states also have different choices of law and jurisdictional reaches that could lead to forum-shopping. For instance, the broad choice of law and jurisdictional reach of the Indiana statute, collectively with the statute’s “expansive scope of protection and purported applicability to non-domiciliaries and deceased individuals, opens up Indiana courts for suits brought by many individuals who might not have a cause of action in their home states.” Though forum-shopping would likely not pose a significant risk if the relevant statute requires that an individual seeking to assert a claim be domiciled in that state as an individual can only be domiciled in one state, it is still a possibility, particularly if the statute does not limit who may assert a claim in the state or if the allegedly infringing content in question involves multiple individuals. For example, because the Indiana right of publicity statute specifies that it “applies to an act or event that occurs within Indiana, regardless of a personality’s domicile, residence, or citizenship,” an individual who may not meet the required elements of another state’s statute could be incentivized to assert their right in Indiana instead. This possibility could force entities that utilize others’ personality rights to comply with Indiana’s statute over others.

Alternatively, individuals who split their time between different states may raise a question of domicile. For example, in a series of cases involving who could control the commercial use of the iconic photograph of Marilyn Monroe standing over a subway grate with her white skirt blowing up around her from the film The Seven Year Itch, because Monroe split her time, work, and property ownership between New York and California, the significant differences in the state law made the question of domicile critical. Eventually, the Monroe estate lost its rights in Monroe’s identity because the court determined that Monroe’s domicile resulted in the application of New York law.

In Perfect 10, the Ninth Circuit most likely implicitly categorized the right of publicity as intellectual property because it considered whether the California statute protecting the right of publicity should be included in the Section(e)(2) exception and concluded it should not. The Ninth Circuit stated that “[s]tates have any number of laws that could be characterized as intellectual property laws: trademark, unfair competition, dilution, right of publicity and trade defamation.” Due to the nature of the inconsistency of state laws, “no litigant will know if he is entitled to immunity for a state claim until a court decides the legal issue.”

The California right of publicity statute is distinct from the right of privacy and stresses the economic value of an individual’s persona as property, which aligns with the general consensus that the right of publicity is a property right rather than a personal one. However, this is not true for all states. Because the right of publicity originally stemmed from a privacy theory, some states have retained this classification. In New York, for instance, the current statute is titled the “Right of Privacy,” and as such, is concerned with protecting an individual’s identity rather than unfair competition. Despite the fact that Haelan was the first to recognize that a right of publicity existed separately from the right of privacy under New York law in 1953, the current New York statute is relatively limited compared to other states. If the right of publicity is not rooted in a theory of property, “then the right clearly may be made the subject of license or waiver, but cannot have independent, exclusive, alienable, or divisible characteristics.” However, if the right of publicity is defined as a property right, then the right may be “assignable, survivable, descendible, and even taxable.” This difference was another significant issue in the series of Marilyn Monroe cases described above; because New York law applied, issues of assignability resulted in the Monroe estate losing its rights in Monroe’s identity. Somewhat similarly, a New Hampshire trial court held that three right-of-privacy torts, including “intrusion upon seclusion, publication of private facts, and casting in a false light,” involved rights that could not be considered property rights. Thus, the claims did not fit within the intellectual property carve-out and section 230 barred the claims.

Theoretically, if the right of publicity is not actually classified as intellectual property, section 230(e)(2) would not apply and right of publicity claims brought in those states would unquestionably be barred. Despite considering the intellectual property carve-out of section 230, the Ninth Circuit declined to explicitly define what constitutes “intellectual property” or reference a definition of the term in Perfect 10 and instead construed the term narrowly to advance the CDA’s express policy of providing broad immunity. Conversely, the Third Circuit applied multiple definitions of intellectual property, including one from Black’s Law Dictionary that defines the term as a “category of intangible rights protecting commercially valuable products of the human intellect. The category comprises primarily trademark, copyright, and patent rights, but also includes . . . publicity rights.” The intellectual property system aims to strike a good balance between the interests of innovators and the wider public in order to “foster an environment in which creativity and innovation can flourish.”

Interestingly, this is very similar to Congress’s stated purpose behind section 230 of the CDA. Even in 1996, the internet was already a valuable tool for society that offered significant opportunities for people to both create and express content, as well as learn from the massive amount of information available, so Representatives Cox and Wyden wanted to strike an analogous balance to the intellectual property system. By shielding interactive computer service users and providers from liability and allowing them to moderate user-generated content so long as they do not participate in the generation of allegedly infringing content in any way, section 230 was designed to balance innovation and public interest of free speech online. The precarious balance of these significant competing interests could be greatly threatened if section 230(e)(2) were interpreted to include state right of publicity laws because internet platforms would be subject to liability in an ever-evolving and incredibly inconsistent doctrine of law.

Right of publicity actions involve both confusion-based and association-based relationships. Confusion-based relationships include situations “where a person’s name or likeness is used in commercial advertising, creating a likelihood that consumers will believe the person endorses or approves of the advertised product.” Association-based relationships, on the other hand, are “mere references that conjure associations with a person [but] do not automatically create a likelihood that consumers will be confused as to whether the person endorses or approves of the product.” Because confusion-based relationships are already protected by the broad scope of trademark and unfair competition law, these types of claims do not necessarily need to be brought under state right of publicity law in order to fit within the subsection (e)(2) intellectual property exemption. For example, celebrities and public figures can register their names as a trademark or service mark under federal trademark law. As described above in White, Vanna White brought a likelihood of confusion claim under the Lanham Act and the Ninth Circuit found that the provided evidence was sufficient to present a genuine issue of material fact. Similarly, unfair competition acts can be brought under federal trademark law even without a registered trademark. Thus, analogous cases involving confusion-based relationships can be brought under the Lanham Act as it provides nationwide coverage, a clear remedy, and a wide scope of damages. Such claims would not be barred by section 230 because under either interpretation of subsection (e)(2), the Lanham Act would clearly fit within the statutory exemption for intellectual property. Therefore, plaintiffs such as White may have some recourse available to them even if the circuit split on the interpretation of subsection (e)(2) is resolved to bar state right of publicity laws. However, this case was decided in 1992, so the CDA had not yet been enacted. The next relevant question would be to determine whether interactive service providers might still be entitled to immunity for violations of specific provisions of the Lanham Act. In a more recent case, the Ninth Circuit held that despite the fact that the Lanham Act generally deals with intellectual property—for example, trademarks—the intellectual property carve-out in section 230(e)(2) “does not apply to false advertising claims brought under [section] 1125(a) of the Lanham Act, unless the claim itself involves intellectual property.”

Overall, the Ninth Circuit declined to include rights of publicity protected by state law within the “intellectual property” exemption because doing so would “fatally undermine the broad grant of immunity provided by the CDA.” Despite the isolated language in section 230(e)(2), reading section 230 holistically leads to the conclusion that courts should defer to the legislative intent and purpose of creating a “vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by . . . State regulation.” Thus, to interpret section 230(e)(2) to include diverse state intellectual property laws, particularly those regarding the right of publicity, would mean that entities otherwise entitled to CDA immunity would be forced to endure litigation costs for extremely unpredictable state laws, defeating the purpose and policy goals of section 230.

C. Arguments that Subsection (E)(2) Should Be Interpreted to Include State Intellectual Property Laws

In contrast, the Third Circuit recently addressed whether state right of publicity laws should be included in the intellectual property exemption in Karen Hepp’s appeal and concluded that “a state law can be a law pertaining to intellectual property, too.” Despite the Ninth Circuit’s holding in Perfect 10, the Third Circuit reasoned that the plain language of section 230(e)(2) is clear. If Congress had actually intended for the intellectual property exemption to be limited to federal law, “it knew how to make that clear, but chose not to.”

The Third Circuit’s holding builds off Universal Communication Systems, Inc. v. Lycos, Inc., the first case to address whether section 230 precludes intellectual property laws. First Circuit case was decided shortly before Perfect 10 in which there were alleged violations of federal law as well as trade name dilution in violation of Florida law. In Universal Communication, the First Circuit held “[c]laims based on intellectual property laws are not subject to section 230 immunity,” so it addressed the dilution claim separately.

The Third Circuit also considered district court cases that interpreted section 230(e)(2), including Atlantic Recording Corp. v. Project Playlist, Inc. In Atlantic Recording, record companies asserted copyright claims under both state and federal law, and the court reasoned that because Congress specified whether local, state, or federal law applied four times in subsection (e), Congress did not intend to limit the intellectual property exemption to only federal law. Therefore, in Hepp, the Third Circuit found that because Congress knew how to cabin the interpretation about state law and did so explicitly, “the structure does not change the natural meaning.” Atlantic Recording did not involve any DMCA safe harbors, but other such cases that involve allegedly infringing third-party user content could consider the interaction between the CDA intellectual property exception and the DMCA safe harbors to determine whether interactive service providers might still be immune from liability.

While it is true that section 230 generally created a pro-free-market policy, the statute’s policy goals do not necessarily swallow state intellectual property rights because state property rights can also facilitate market exchange. The Third Circuit noted that because the natural reading of section 230(e)(2) would include state law, “policy considerations cannot displace the text.” Even so, the Third Circuit stated that policy could cut the other way even outside section 230’s text: “if likeness interests are disregarded on the internet, the incentives to build an excellent commercial reputation for endorsements may diminish.”

The Third Circuit also considered whether Hepp’s claims actually arose from a law pertaining to intellectual property, and concluded that they do. Black’s Law Dictionary defines “intellectual property” to include publicity rights, and both legal and lay dictionaries treat “intellectual property” as a compound term. The court also applied a test from another legal dictionary, Bouvier’s, which the Pennsylvania right of publicity statute satisfies. Overall, there is substantial evidence to support the conclusion that at least Pennsylvania’s statutory right of publicity falls within the definition of intellectual property. Moreover, the Third Circuit considered the only Supreme Court case to address the right of publicity, Zacchini v. Scripps-Howard Broadcasting Co., which analogized the right of publicity to patent and copyright law because the right of publicity focuses “on the right of the individual to reap the reward of his endeavors and [has] little to do with protecting feelings or reputation.” As analyzed above, the right of publicity and trademarks are relatively analogous for confusion-based relationships. The Florida Supreme Court articulated the harm caused by a right of publicity violation by “associat[ing] the individual’s name or . . . personality with something else.” Thus, the legal definition including trademark also supports the conclusion that the right of publicity is intellectual property.

However, Judge Cowen dissented in Hepp and stated that he “believe[s] that the ‘intellectual property’ exception or exclusion to immunity under § 230(e)(2) . . . is limited to federal intellectual property laws (i.e., federal patent, copyright, and trademark laws) and—at most—state laws only where they are co-extensive with such federal laws.” Judge Cowen argued that despite the fact that the majority implied there was an existing circuit split between the First and Ninth Circuits due to Universal Communication and Perfect 10, Hepp actually created the circuit split because in Universal Communication neither party actually raised the issue of whether state law counts as intellectual property under section 230 and the First Circuit seemingly assumed it did. Ultimately, Judge Cowen supported the Ninth Circuit’s approach for the reasons analyzed in Section II.B and stated that “the more expansive interpretation would gut the immunity system established by Congress and undermine the policies and findings that Congress chose to codify in the statute itself.” Furthermore, on October 21, 2021, Facebook requested that the Third Circuit re-hear the Hepp appeal en banc, arguing that the “ ‘majority’s decision misread the intellectual property exception to the immunity established by section 230 of the Communications Decency Act (CDA) creating a conflict with’ the Ninth Circuit, and ‘ignores a key textual feature and downplays the contextual and structural features of the statute.’ ”

D. Arguments for Section 230 Reform and Proposed Changes

The above arguments and analyses of section 230 of the CDA are applicable in its current state, but section 230 as a whole has recently come under fire from both sides of the political aisle. There have been calls to amend or even repeal the statute. Many on the left have criticized section 230 because they believe it has “enabled tech platforms to host harmful content with impunity,” while many on the right argue that it has allowed tech platforms to disproportionately suppress conservative speech and perspectives. The law arguably allows bad actors to hide behind the law’s liability shield and prevents harmed users, such as Karen Hepp, from holding internet platforms accountable. In the 116th congressional session, twenty-six bills were introduced that would have amended the scope of section 230 immunity, and the bills had an extremely wide range of proposed changes, such as reducing the scope of immunity in certain types of cases, placing conditions on immunity, or repealing the statute entirely. Currently, there are fourteen bills that have been introduced for the 117th congressional session related to section 230, but none of the proposals are related to the judicial interpretation or scope of the intellectual property exception to immunity within subsection (e)(2).

There is also a question of executive authority in whether the Federal Communications Commission (“FCC”) has regulatory authority to implement section 230. Congress passed the CDA as part of the Telecommunications Act of 1996, which in turn amended the Communications Act of 1934, a statute administered by the FCC. The National Telecommunications and Information Administration (“NTIA”) filed a petition in 2020 that provides the FCC with an opportunity to consider its rulemaking authority. To clarify the FCC’s role in administering section 230, Congress could grant an express delegation or disavowal of authority. A delegation would give the FCC a statutory basis for promulgating regulations while a disavowal would prohibit the FCC from attempting to regulate under section 230.

Legislative action on section 230 in any shape or form could have significant and unintended consequences. Since section 230 was passed in 1996, it has been considered to be the “cornerstone of online expression” and has been referred to as the “[twenty-six] words that created the internet” and the internet’s “Magna Carta.” The internet has grown exponentially and has influenced daily public life considerably since the statute was enacted in 1996, so a fundamental change to section 230 could change the internet as we know it, and even a small change to section 230 could have a substantial ripple effect. For example, social media operators could potentially adjust their content moderation practices to comply with reforms, ranging from aggressively screening content to not moderating any content, including content that may be considered objectionable or obscene to most users. On the other hand, if section 230 were to remove immunity for certain types of content, it does not necessarily mean that providers or users will actually be liable for such content; it simply means that section 230 would not bar liability. Thus, providers could continue to host potentially obscene or objectionable content if they believe the benefits of hosting such content would outweigh potential litigation costs, particularly if lawsuits are unlikely or providers believe they have a strong likelihood of prevailing in a suit. This could be a move to bring the reality of section 230 closer to its original congressional intention of creating a free-market system.

Overall, despite the heated debate over section 230, there have not been any proposed changes that have been close to being implemented. The extremely wide range of proposed changes also means that their implications on section 230 generally, as well as the right of publicity specifically, are ironically very unpredictable. Therefore, the circuit split on the interpretation of subsection (e)(2) and whether state right of publicity claims should be barred will continue to be a noteworthy issue until Congress acts, whether through amendments, repealing the statute entirely, or more directly providing guidance on the relatively narrow subject of the right of publicity.


The explicit statutory language of section 230 of the CDA supports the Third Circuit’s interpretation of subsection (e)(2), the intellectual property exception to immunity. Within subsection (e), Congress specified whether federal, state, or local law applied in four instances, so we must defer to the express language and assume that Congress chose not to limit subsection (e)(2) to only federal intellectual property laws. The general consensus among the legal community is that the right of publicity falls under the umbrella of intellectual property, so the literal interpretation of section 230 should not bar right of publicity claims brought under state statutes. Unless or until Congress clarifies what should be included within this exception to the broad liability shield protecting interactive service providers or takes some other action, the Third Circuit’s interpretation will likely be upheld.

Overall, however, it would make the most sense to interpret section 230(e)(2) in the way that aligns most closely with the legislative intent and history of the statute as a whole to avoid fundamentally crippling the statute by exposing interactive service providers to liability from extremely varied state statutes relating to the right of publicity. The Third Circuit’s interpretation could very likely create an exception that swallows the whole statute. Assuming the right of publicity constitutes intellectual property, under the Ninth Circuit’s interpretation to protect the integrity of section 230, right of publicity claims should be barred so long as providers do not participate in the creation of the allegedly infringing content. This would maintain uniformity and predictability throughout the court system. The Ninth Circuit’s interpretation is thus most beneficial to interactive service providers such as Facebook and most frustrating to individuals who feel they have been harmed by allegedly infringing content on internet platforms, such as Karen Hepp. Such individuals could potentially attempt to redress this harm through other types of claims, such as copyright or trademark. These two examples would undoubtedly constitute intellectual property laws, and claims under federal law would be doubly effective against section 230’s broad shield, but alleged infringements of the right of publicity do not always meet the required elements for such claims. Furthermore, providers could be immune from liability through other statutes, such as the safe harbors from the DMCA, so individuals may be left without a remedy. There is no clear balance or solution to these concerns in the current form of section 230 of the CDA.

The severe implications of the Third Circuit’s seemingly “correct” interpretation could strongly incentivize Congress to clarify either the scope of subsection (e)(2) or separately protect the right of publicity in order to avoid the purpose and intent behind section 230 of the CDA. Many scholars have advocated for a federal statute or a uniform act to protect the right of publicity. Federal codification of the right of publicity would create uniform and equal protections to individuals across the entire country, as opposed to the current state statutes that have created extremely varied interests in the right. A federal statute or uniform act would also drastically reduce the economic costs created by uncertainty in litigation. Finally, unauthorized uses of individuals’ “personas,” including name and likeness, are becoming increasingly more common due to improvements in technology and the expansion of social media. This type of action would balance the interests of wanting to protect both the public’s right of publicity and interactive service providers from liability for user-generated content. Ultimately, due to the complex and time-intensive nature of Congressional processes, any proposed change, if any, to section 230 may not be established for some time, so there is likely going to be substantial consequences and potentially a wave of lawsuits for alleged violations of the right of publicity in the wake of the Third Circuit’s holding in Hepp.


96 S. Cal. L. Rev. 449


J.D., University of Southern California Gould School of Law, 2023. B.A., University of California, Los Angeles, 2020.

Affirmative Acting: The Role of Law in Casting More Actors With Disabilities (A Note in Five Acts)



“Always find your light.” This is a common piece of advice given to theater artists, encouraging them to make sure they can be seen on stage. But who gets the chance to grace the stage in the first place? Our society has recently begun to actively ask new questions about equity and visibility. In the context of theater, we have largely focused not on who is on the stage, but on how theater productions can be enjoyed equitably. To answer these questions, we have turned to effectuating and enforcing the standards set forth in the Americans with Disabilities Act (“ADA”).

Over the thirty years since the ADA was passed, and even more concertedly following the Act’s 2008 amendments, theaters have begun to reserve sections of the house for patrons with wheelchairs and to renovate facilities to create ADA-compliant restrooms for audience members. However, while the ADA has prompted great strides in improving theatergoers’ ability to access productions, figuring out how to apply the ADA to the people on the stage is another question altogether.

While audience accessibility is a tremendous step forward in ensuring that enjoyment of theater productions does not exclude people who cannot easily access and navigate unwelcoming spaces, the time has come to turn the spotlight back towards the stage. We need to turn our attention to creating and nurturing structures allowing for equal access for theater performers—specifically, for the purposes of this Note, those with disabilities. Pushes in the theater world to pinpoint and remedy gender and racial inequities have become much more prevalent in recent years, and rightfully so, but we must not leave those with disabilities out of the discussion. As it is, “disability is too often an afterthought, if it is thought of at all.”

Indeed, Actors’ Equity Association (“AEA”), the union for actors and other theater makers, even reported that barely 1% of contracts they issued from 2016 to 2019 went to artists who self-reported living with a disability. AEA also estimated that about a quarter of Americans live with at least one disability. If you compare these statistics (about 25% of Americans have disabilities, but only about 1% of theater jobs offered over the course of three years went to artists who reported living with disabilities), the problem should begin to crystallize: Why are we not seeing representation of people with disabilities on stage at the same rates as in society?

While data on disability representation on stage is scarce, we can look to data collected in theater’s more closely studied sister entertainment industries of television and film to get a sense of what levels of representation in the theater might look like. For instance, in the sphere of network television in 2018, only 22% of characters with disabilities were actually portrayed by an actor with the same disability; for streaming services, this number decreased to 20%. The unfortunate result gleaned from this study and studies like it is that the overwhelming majority of characters with disabilities—at least in the context of film and television—continue to be portrayed by actors without disabilities. The first time an Emmy was awarded to a show starring people with disabilities was not until 2016, and the number of actors with disabilities who have ever won an Oscar can be counted on one hand. These statistics truly pull back the curtain on an entertainment industry that does not tend to value actors with disabilities.

There is reason to believe the statistics are just as grim in the theater. For instance, it was not until 2019 that an actor in a wheelchair (Ali Stroker) first won a Tony award (for her tremendous performance in a revival of the classic Broadway hit Oklahoma!). This lack of representation begs the question of why, as society finally begins to converse more openly about equity, “disability” is still so often excluded from the discussion.

This Note will attempt to answer that question—and explore what role law could play in arriving at a solution—through a variety of lenses, including the ADA and employment discrimination law. It will set the proverbial stage by laying out the history of disability discrimination in theater and entertainment, after which it will discuss relevant federal and state sources of disability and employment law. The Note will then make the case—by looking at potential legal remedies—that in the subjective world of theater, the way to increase representation of actors with disabilities on stage is not a simple legal fix; instead, it will likely take a combination of changes—attitudinal, legal, and otherwise—working in tandem in the theater industry to get more actors with disabilities on stage. And while making these moves in the direction of inclusion and equity on stages across the country would certainly advantage actors with disabilities, it would also benefit society at large: theater that reflects our tapestried reality “is simply better, richer, [and] more rewarding when it is by, for, and about all of us.”


All too often, actors with disabilities are excluded from the audition room; much—if not most—of the time, actors with disabilities do not get invited to audition at all, regardless of the disability status of the role in question. And if the actor has made it into the audition room? That is only the first part of the journey. Next comes the actual casting of the role, where no matter how many talented actors have made it into the room to audition for a single part, only one person leaves with the job. Even once actors with disabilities make it through the door to get seen by the director, the odds are against them in terms of actually landing a role.

Recent Broadway shows that have main characters who have disabilities provide a good look into the regularity with which actors with disabilities get passed over for roles, while actors without disabilities gain more access to those roles. Broadway productions of relatively well-known shows that fit this description are not hard to find. The Curious Incident of the Dog in the Night-Time tells the story of a young man on the autism spectrum, and yet the 2015 Broadway production nonetheless cast an actor “without autism or any other disabilities” for the role. Wicked, over its yearslong and wildly popular Broadway run, never once filled the role of Nessarose, who uses a wheelchair, with an actress with physical disabilities. Likewise, all of the lead roles in recent productions of The Miracle Worker and Richard III, both of which focus on main characters with physical disabilities, were portrayed by actors without physical disabilities.

This practice of casting actors without disabilities in the roles of characters with disabilities has come to be known, in some circles, as “disability drag.” In fact, a whole microcosm of scholarship has developed around this idea of disability drag, which also takes to task the various tropes that seem to be intertwined in the writing of most, if not all, characters with disabilities currently on stage and screen. This area of academic investigation and rumination asks us to reframe the way we think about characters and people with disabilities: “What if their disability weren’t the thing to overcome but merely one element of one’s identity?” Nonetheless, on the whole, society appears to turn away from asking itself such introspective questions, especially when the alternative involves making money by casting big-name actors.

None of this means that the world of creating theater is not making some strides on its own. For instance, Deaf West Theatre’s 2015 Broadway production of the musical Spring Awakening was produced and performed in both English and American Sign Language, with a cast comprised of “25 deaf, hard of hearing and hearing actors and musicians.” The show was met with great success and earned multiple Tony Award nominations, including one for the highly regarded Best Revival of a Musical, even though it was a production of a type that Broadway had never seen before.

There are also smaller theater companies popping up that have been created with the explicit goal of promoting the work of artists with disabilities. For instance, the mission of the Phamaly Theatre Company in Denver, Colorado, is “to be a creative home for theatre artists with disabilities” as well as to “model a disability-affirmative theatrical process.” Alie B. Gorrie, an actress with low vision, describes her reaction to attending a production “filled with disabled artists, singing, dancing, and actively defying disability tropes” at the Phamaly Theatre Company as the first instance where she felt like she truly belonged in the theater. The experience, however, left Gorrie with a lingering question: Why had it taken two decades of working in the theater industry for her to feel this sense of belonging? Which begs the broader question: How many people who dream of working in the theater industry have already been discouraged and turned away by the lack of access and opportunities?

Despite these steps forwards, it is apparent that sidelining actors who have disabilities deprives society of a wealth of talent. We have seen how powerful performances by actors with disabilities can be and how rewarding it can be to see them in the spotlight, as evidenced in a number of recent television shows. Consider RJ Mitte, an actor with cerebral palsy playing a character with the same disability on the hit AMC show Breaking Bad. More recently, think of Lily D. Moore, an actress born with Down syndrome playing a fan-favorite character with the same diagnosis in Mindy Kaling’s Netflix series Never Have I Ever. Therefore, the question we must now be asking is what legal solutions can be utilized to ensure that Mitte and Moore are not the “token” actors with disabilities, but instead just actors. And are those legal solutions alone enough?


Scene 1:  The Americans with Disabilities Act

One lens through which to approach the problem returns our attention to the ADA. Signed into law in 1990, and amended in 2008 to provide broader protections for people with disabilities, the ADA provides for protection of individuals with “a physical or mental impairment that substantially limits one or more major life activities.” The ADA has seen much success over the years: it has empowered people with disabilities to become their own best advocates and has modernized our built environment to promote physical accessibility. Specifically relevant here, though, is Title I of the ADA, which concerns employment discrimination.

Title I of the ADA prohibits employers (including theaters) from “discriminat[ing] against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” Thus, discrimination against people with disabilities in the workplace is already prohibited by law in many circumstances, according to the ADA. There are, however, two distinct points that illustrate how far we have left to go and how far short the ADA has fallen in getting us there.

First, although the ADA requires an employer to make “reasonable accommodations” for employees with disabilities, Congress did not give a clear-cut definition of what exactly counts as a “reasonable accommodation.” Instead, Congress provided examples of accommodations that could be implemented to enable “qualified individual[s]” with disabilities to perform the “essential functions” of their jobs. There are no statutory limitations—financial, quantitative, or otherwise—on what constitutes a “reasonable accommodation,” other than that an accommodation that would cause an employer’s business “undue hardship” is not “reasonable.” Similarly, Congress did not provide further instruction on how to determine what constitutes “undue hardship.”

This lack of guidance from Congress means that implementing the ADA can easily “become a checklist of what is or isn’t provided.” In other words, it can become the “absolute minimum you can do to avoid looking like a jerk” or exposing yourself to liability. Sure, you may have a wheelchair ramp in place, but does that really work to make the actors in need of the accommodation feel welcome and unburdened in their artistic journey?

This Note argues that a wheelchair ramp here and there is not enough. Instead, for actors to truly feel welcomed into the space and able to practice their craft uninhibited, the theater must ask itself questions such as, “Are we putting an extra burden on our artists with disabilities by requiring them to perform while simultaneously navigating a world that is not built for them?” and “How are we ensuring that we are hiring actors with disabilities in the first place?”

Second, while enforcing the ADA may help to ease the strain disproportionately placed on the small group of actors with disabilities who have already made their way into the rehearsal hall, what about those who have yet to be cast? Able-bodied actors are routinely cast in roles portraying people with disabilities, which diminishes the number of roles available for actors with those disabilities. Further, it often “simply never occur[s]” to casting directors “to cast, or even consider, actors with disabilities in roles that don’t specify whether a character is disabled or not.”

Even though we are taking steps towards creating a more inclusive culture, it does appear as though we are nonetheless collectively excluding people with disabilities from that equity-driven vision of our society—even with the assistance of the ADA. So, if the ADA as it currently operates does not seem fit to truly improve diversity onstage, are there other potential legal routes?

Scene 2:  Title VII of the Civil Rights Act of 1964

When it comes to the world of preventing discrimination in employment, Title VII of the Civil Rights Act of 1964 is undoubtedly the star of the show. Since the ADA may not, on its own, provide a way to ensure that more actors with disabilities get onstage, it is worth exploring another relevant legal avenue: employment discrimination law governed by Title VII. Congress formulated this broad new civil rights bill in 1963 and took final steps towards securing the bill’s passage in 1964. Title VII notably included language banning employment discrimination because of a person’s “race, color, religion, sex, or national origin.” While Title VII does not apply to disability discrimination, it provides some guidance as to how the ADA might be amended to address the issues discussed here.

The basic structure of a case alleging individual disparate treatment (also known as intentional discrimination) in one of the above categories has been crafted over time through case law by the Supreme Court. The so-called “burden-shifting” structure that has been created is set forth in the pivotal case of McDonnell Douglas Corp. v. Green. First, a plaintiff who alleges disparate treatment under section 703(a)(1) of Title VII “because of such individual’s race, color, religion, sex, or national origin” must prove their prima facie case that (1) they do indeed fall into one of those categories, (2) they applied for a job and were qualified, and (3) they were rejected by the employer. Next, the employer has the chance to bring to light any “legitimate, nondiscriminatory reason” for having rejected the employee. If the employer can do so, the burden shifts back to the plaintiff, who has an opportunity to prove that the “legitimate, nondiscriminatory reason” given by the employer was “pretext” for what in truth amounts to discriminatory animus.

Integral to this Note, however, is the language highlighted in section 703(e) of Title VII that an employer may protect itself from liability by presenting a particular affirmative defense. The essence of this defense is that the employer asserts that it rightfully, and therefore legally, discriminated against this job applicant. The employer can do this by showing that it discriminated because of “religion, sex, or national origin” if it can also show that “religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business.”

This exception to the general rule, which is known as a “bona fide occupational qualification” (typically referred to as a “BFOQ”), can sometimes be used by employers to legally justify certain discrimination in hiring practices if that discrimination is based on religion, sex, or national origin. For example, in Dothard v. Rawlinson, an all-male prison asserted that it would be unsafe for women to become guards in their prisons. Female job applicants hoping to become guards then sued the prison, claiming that they were not hired because of their sex. The Supreme Court took the side of the prison, holding that while the applicants’ sex was the reason they were not hired, this discrimination was legal due to the BFOQ exception. In other words, the prison was allowed to reject female applicants because of their sex due to the fact that having male guards was “reasonably necessary to the normal operation of that particular business.”

Conversely, in UAW v. Johnson Controls, Inc., the Supreme Court refused to grant an employer the use of a BFOQ. Johnson Controls stated that it would not allow women to work in certain jobs at its manufacturing plant that involved lead exposure, citing an interest in preserving the women’s fertility. In essence, Johnson Controls was asserting that being a man was a BFOQ that was required in order to get the job. Here, the Supreme Court interpreted the BFOQ exception narrowly by ruling that the amorphous danger of harm to female employees’ fertility is not an appropriate use of the exception and that female employees who were qualified for the job could not be turned away simply on the basis of their sex.

As seen in Johnson Controls above, the BFOQ is not a free pass to discriminate against job applicants however an employer sees fit; Congress created the BFOQ exception to be used narrowly and “the courts have construed it as such.” It is not unreasonable, however, to imagine a scenario in which this affirmative defense could actually be used to benefit a particular group of job applicants. Consider a scenario in which an employer wants to have only Senegalese chefs work at a Senegalese restaurant, with the stated goal of “authenticity.” Here, the employer could use a national origin BFOQ to justify this hiring practice, with the end result being that a minority group (Senegalese chefs) gains greater access to job opportunities they otherwise may not have had. While perhaps counterintuitive, this Note will propose the use of a BFOQ not simply as a way to shield an employer from liability, but also as a way to encourage diversity in the hiring process.

Scene 3:  Threshold Question—Employee or Independent Contractor?

It must be noted going forward that applying the ADA and Title VII to workers hinges on the workers’ classification as “employees,” as opposed to “independent contractors,” because the ADA and Title VII do not cover independent contractors. So what is the difference? The ADA and Title VII both provide the following definition of “employee”: “[A]n individual employed by an employer.” Since that definition is not particularly elucidating, courts have often looked to the common law of agency for a less circular definition. Among other factors, the Restatement (Second) of Agency defines an employee as the “servant” of an employer (the “master”). This relationship is said to be formed when the master gains control over the servant’s performance of a service, and, in particular, when the master gains the right to control the “physical conduct” of the servant. Conversely, then, an independent contractor is a worker whose physical conduct and general performance are not under the complete control of the master.

Many theaters officially classify the actors they hire as independent contractors, often primarily in order to take advantage of related tax benefits and to circumvent paying minimum wages, overtime, and workers’ compensation. The argument theaters provide for this practice is that actors are temporary workers, typically only hired to perform in one show at a time, and that therefore being an actor is more akin to being a part of the “gig economy” than being a part of a typical workplace. Theaters in this camp tend to paint a picture of their actors not as their so-called “servants” whose physical conduct they control, but instead as transient workers whose job is simply to put on a performance.

In reality, however, there is so much more to an actor’s responsibilities and interactions with a director. While actors may have moments of free decision-making throughout the process of preparing (“blocking”) a play, almost everything comes down to what the artistic director envisions. This is really an employee-employer relationship where the employer has full control over not only when and where rehearsals are held, but ultimately full control concerning when, where, and how an actor portrays their part.

Though employee classification is crucial for actors—as well as employees writ large—to achieve better legal protections, a deeper exploration of the distinction between employees and independent contractors and the implications of this divide for employment equity, particularly in the context of theater, is beyond the scope of this Note. Thus, the remainder of this Note will assume for the sake of argument that actors are classified as employees, not as independent contractors. This classification allows for their protection by the ADA and Title VII.


Scene 1:  Creating a Race or Color BFOQ

Notably missing from the list of categories that can be used to assert a BFOQ defense are race, color, and disability. Over the past few decades, the bulk of relevant scholarship has focused on reasons Congress specifically did not include race or color as possible BFOQs. Relatedly, scholars have started to ask whether Congress erred in this omission, and some even go so far as to champion adding a race or color BFOQ.

More specifically, this question about a race or color BFOQ has recently been explored in the context of entertainment. Do historically marginalized actors lack opportunities as a “result of illegal discrimination by the theater industry,” or is it instead a product of artistic freedom and sound business decisions? Should the issue be relegated to the realm of First Amendment jurisprudence?

Legal scholars have often approached this question by looking at language used by the Equal Employment Opportunity Commission (“EEOC”). The EEOC’s regulations mention that a gender BFOQ could theoretically exist for hiring actors if deemed necessary for a play’s authenticity: “Where it is necessary for the purpose of authenticity or genuineness, the Commission will consider sex to be a bona fide occupational qualification, e.g., an actor or actress.” The EEOC has thus explicitly “recognized that the entertainment industry is one place where discrimination might be necessary.”

The fact that use of a BFOQ has been considered by the EEOC as potentially useful (and lawful) in an entertainment context gives credence to the idea that it is permissible to legally discriminate, through the use of a BFOQ, in order to preserve a play’s primary functions of storytelling and authenticity. Therefore, “it seems reasonable to assume that where the characters are race-specific, race is a job requirement, and hence, should be a BFOQ exception.”

Scene 2:  Creating a Disability BFOQ

So, could a disability BFOQ similarly be added to the ADA? The idea is not without precedent, at least in the realm of some states’ local laws. For instance, the Administrative Rules of Montana state that an employer may use a BFOQ “where the reasonable demands of a position require a distinction based on . . . physical or mental disability.”

But the question remains: Is the addition of a disability BFOQ really enough to make a difference? Or would it just perpetuate the status quo of allowing employers/artistic directors to keep employees/actors with disabilities off the stage? According to the University of Southern California Annenberg Inclusion Initiative, only 2.7% of characters with speaking roles in a survey of 900 popular movies from 2007 to 2016 were characters portrayed with a disability. Assuming the trend holds true across the sister industries of stage and screen, these statistics show that a disability BFOQ probably could not effectuate all that much change. If only around 2–3% of characters are written to have disabilities, even if a majority of directors cast those roles with actors who have disabilities, we would have at most a 3% increase in the number of actors with disabilities getting cast. And there is no guarantee that any directors would even opt to utilize the disability BFOQ. Thus, the most progress a disability BFOQ could make would likely be marginal at best.

Furthermore, creating a disability BFOQ opens the door to possible misuse and abuse by employers. Indeed, use of a BFOQ, though it can be
co-opted for the benefit of a group of employees, is usually seen as an employer-friendly tactic. For example, an employer who does not want to hire actors with disabilities could use the BFOQ as a shield, asserting that such an actor with a disability could not serve “essential functions” (such as deft movement across the stage) required of the job.

Scholarship at the forefront of this conversation seems to overwhelmingly come to the same conclusion: “[T]he fear that employers could misuse a generally applicable . . . BFOQ to shield invidious . . . discrimination is too great to warrant the enactment of such a provision.” Given these potential setbacks, it becomes necessary to look at what other remedial legal options remain.


Scene 1:  Background

The concept of affirmative action, created during the civil rights movement in the United States, derives from a “paradox,” namely that “[o]nce we amended the Constitution and passed laws to protect people of color from being treated differently in ways that were harmful to them, the government had trouble enacting programs that treat people of color differently in ways that might be beneficial.” We face a similar problem with regard to disabilities, in that in employment discrimination law’s noble effort to level the playing field, we must fight to create ways to treat people with disabilities that “might be beneficial” as well.

From a statistical standpoint, affirmative action for race actually resulted in some of its intended effect; the years between 1974 and 1980 saw a 20% increase in the rate of minority employment in businesses relying on affirmative action (as compared to an increase of only 12% in companies without affirmative action plans in place). Furthermore, there is still room for the affirmative action model to change over time, as “[t]here is no Brown v. Board of Education . . . for affirmative action, no well-established precedent.” Thus, the door is left ajar for a new movement in which we use affirmative action tactics to make sure that more actors with disabilities are not only getting into the audition room, but also getting cast.

While decades of proof show that affirmative action has led to success, specifically in the context of school desegregation, the concept also comes with quite a bit of baggage. Scholars and laypeople alike have been arguing for years over whether “affirmative action for racial minorities disadvantages white people by virtue of their race.” It is likely that this same argument would surface regarding whether affirmative action in the context of casting actors with disabilities disadvantages able-bodied actors. To this point, however, although there may be winners and losers in affirmative action, it has been determined that the practice is occasionally justified nevertheless.

In United Steelworkers v. Weber, the Supreme Court created precedent that some affirmative action regimes are, in fact, justified, and it laid out a test dictating when these regimes are constitutional. While the Court’s opinion is perhaps not particularly clear in terms of where to draw that line, it does provide us with a set of loose guidelines. In order for a plan to fall on the permissible side of that line, it must (1) be “designed to break down old patterns of . . . segregation and hierarchy,” (2) “not unnecessarily trammel the interests of” other employees or applicants, and (3) be a “temporary measure.”

These guidelines, specifically designed to apply to affirmative action in regard to racial segregation and discrimination, could easily be adapted to apply to disability as well. One could imagine guidelines for theater companies that (1) break down existing patterns of hierarchy in terms of casting actors without disabilities; (2) do not “unnecessarily trammel” the interests of actors without disabilities, who would retain plenty of chances to be cast; and (3) only last until such time that theaters understand and realize not only that diverse casting is a noble goal, but also that it makes sound economic sense. While this raises a different question as to how these guidelines would be implemented, as discussed below, there may actually be no need to adapt these guidelines because of the differences in statutory language between Title VII and the ADA.

Scene 2:  Statutory Interpretation

Challenges to affirmative action in the context of ending racial segregation sometimes stem from a disgruntled white student who feels that a school’s admission policies are a zero-sum game (and thus, feels that their rights are being “unnecessarily trammel[ed]”). For instance, in Fisher v. University of Texas, a white woman who was denied admission to the University of Texas sued on the grounds that the school’s admissions system was unconstitutional because it took race into account. Ultimately, Justice Anthony Kennedy authored the close opinion in favor of the University of Texas, deciding that the university’s policy of considering race as one of a number of factors in admissions “met the standard of strict scrutiny” and was thus appropriate. While the final outcome of this case comes down on the side of the affirmative action plan being implemented by the university, it also demonstrates the very live and contentious idea that there are people who tend to feel they are being injured by affirmative action schemes at large.

The Court has maintained its belief that at least some affirmative action regimes could be unconstitutional because they “unnecessarily trammel” other employees’ rights, and their authority on this matter comes from citing the text of Title VII itself: it is unlawful to “discriminate . . . because of . . . race” when hiring employees. White students have long used this argument to say that they themselves were discriminated against because of their race (as a white person) when a Black student is admitted and there is an affirmative action regime in place at that university; the claim is one of “reverse racism.” Similar arguments have long been made by many white plaintiffs in the employment context: there have “recently [been] a number of headlines regarding ‘anti-white racism’ and there have been a variety of civil rights lawsuits filed by white employees . . . claiming race discrimination.”

The language of the ADA, on the other hand, dictates only that a covered entity may not “discriminate against a qualified individual on the basis of disability.” The ADA itself provides limited guidance on whether an employer may or may not, for instance, discriminate in favor of a qualified individual on the basis of disability. In light of this difference in statutory language, it is possible that an affirmative action plan in the context of disability under the ADA may not even need to pass muster under the three-part Weber test described above. Further analysis of this distinction in language, although beyond the scope of this Note, is required to determine if theater companies would be within their rights to implement affirmative action regimes regarding hiring actors with disabilities.

Scene 3:  Application

Given the analysis above, this Note proposes that theaters could help remedy the imbalance in casting practices by beginning to use an affirmative action model to bring more inclusivity into the casting room and onto the stage. If future analysis supports the above interpretation of the statutory text, this model does not have to live up to the Weber standards. Each theater company is unique, with its own set of structures and hierarchies already in place, so the most effective way for each individual theater company to utilize an affirmative action model would likely be best judged by the company itself. The 2020s appear to have ushered in a hunger for an increase in overall diversity, and it is possible that some theaters would jump at the chance to create a scheme through which they could improve the diversity on their stages—if only because it would reflect well on the theater.

Perhaps one answer is a required training for theater companies throughout the country (likely in an online format) through which they could gain a better understanding of the necessities and risks associated with creating and implementing an affirmative action plan. Then, each theater company could come up with a plan that best fits its specific needs and goals. Implementation of these plans would likely require the creation of an organization to oversee these plans and establish accountability, as well as conduct periodic check-ins with each theater company to assess follow-through and commitment going forward. While this suggestion would involve significant resources (time, money, and otherwise), this Note has demonstrated how crucial it is to take affirmative steps in this arena to enact true change. Investing these resources would be a necessary first step.

However, clearly the nebulous idea of “using affirmative action in casting actors with disabilities” leaves a lot of details to be desired. Who would ensure that theaters truly implemented affirmative action measures? How would relevant statistics be tracked, given that each theater and, more granularly, each show has a completely different set of needs? What kind of penalties would be imposed if theaters chose not to follow their affirmative action plans? All of this is not to say that legal remedies would not move theater in the right direction, but given these difficult questions with no immediate answers, it seems clear that this proposed legal remedy is not enough on its own either. So, what options remain?


Scene 1:  Societal Shifts—Effects of the COVID-19 Pandemic

One force that has the potential to shift the way we as a society see entertainment and theater, and therefore theater creators, is the COVID-19 pandemic. Our society’s transition to the use of Zoom and other online platforms has greatly increased theater’s accessibility in a number of ways, perhaps most notably in terms of the internet’s ability to transcend physical barriers and allow people from all around the world to watch a performance.

Additionally, many virtual productions are simply more affordable—both for audiences who no longer need to worry about issues such as transportation to and from the theater, costly parking, and the allure of overpriced theater snacks and drinks, and for theater companies that suddenly find themselves without the need for large, elaborate sets, accessible theaters, or a whole team of spotlight operators.

This shift has the possibility to push access for actors with disabilities in the right direction and could provide the movement with enough momentum to continue to embrace inclusivity and accessibility once we (presumably) reenter a less digital world. However, Deaf theater artist Elbert Joseph has his doubts: “[O]nce we go back to being in person, are people going to be willing to continue [making theater accessible]? Because there is no more excuse.” And he is right: we have now seen a digital landscape in which disability has proven to be much less of a barrier in the bid for access.

Writer and performer Katie Hae Leo, while acknowledging the importance of the ADA as it stands, believes that the COVID-19 pandemic has reminded society of the vulnerabilities associated with being a person with disabilities. She adds that, although the pandemic may have established a precedent of creating more access for artists with disabilities, it will all be for naught unless we “codify some of those changes, and make sure that they become part of, at the very least[,] best practices and at the best, law.”

Now that we have seen, by way of the pandemic, that many accessibility measures are in reality quite easy to implement, the above legal proposals of adding a disability BFOQ to the ADA and implementing an affirmative action regime for casting actors with disabilities could come into play. When utilized in tandem with the lessons we have learned from being thrust into the virtual world during the pandemic, these legal solutions could help to create a theater landscape that is both welcoming and encouraging to theater artists with disabilities.

Additionally, while creating diversity onstage is a noble goal in and of itself, theater companies do have pure economic reasons to invest in increased representation. Looking back at theater’s sister industries, film and television, that exact understanding seems to be unfolding as the early 2020s progress. While statistics, as discussed above, show dismal rates of casting actors with disabilities over the years, both film and television have begun to make great strides in their bid for inclusivity on screen. Take, for instance, the critically acclaimed 2021 film CODA, which centers on a family with deaf adults and their hearing child. The deaf characters are all played by deaf actors, and the story puts deafness at the heart of the viewer’s experience. The film even led to the first acting Oscar nomination (and win) ever for a deaf man, Troy Kotsur. Kotsur told the New York Times via a sign language interpreter that the success of this film marks a wider understanding that we should no longer “think of deaf actors from a perspective of limitations.” As film and television make these moves forward, and as theaters begin to grapple with the fact that more diverse casts could lead to more money and acclaim, hopefully theaters will begin to follow in the footsteps of their sister industries.

Scene 2:  Building Upon Ongoing Diversity, Equity, and Inclusion Work

Since it appears that no one solution, legal or otherwise, is sufficient to meaningfully increase opportunities for actors with disabilities on stage, it is worth looking to other work that is already being done in the arena for inspiration. The initiatives currently taking shape, in theater and beyond, are known as Diversity, Equity, and Inclusion (“DEI”) initiatives. DEI work, according to the International Labour Organization, can be responsible for an increase in innovation of up to 59% and an increase in understanding and assessment of consumer demand of up to 37%.

This wave of DEI work in workplaces around the country and beyond focuses on the tenets of “diversity” (the ways in which people differ from one another), “equity” (fair treatment and opportunity regardless of identity), and “inclusion” (providing a variety of people with power and decision-making authority). However progressive a DEI mindset in a workplace might be, though, underrepresentation “remains a very real problem.” A 2020 review of workplace diversity, for example, found that around 85% of top executives in the United States are white, with similar statistics showing that the majority of top executives do not report having a disability.

Even so, companies, including theaters, are now actively considering DEI initiatives; these initiatives tend to center on anti-racism and racial equity. Many theater websites boast initiatives to combat racism within their internal structures. In addition to actively increasing representation of people of color in the workplace, these initiatives are shining a spotlight on the destructive effects of racism on the workplace. Imagine if this push for equity in terms of race could be harnessed and used through the lens of disability as well. This would bring awareness to the trials and tribulations of actors with disabilities, as this Note has detailed, and could help to create a society in which anti-ableism becomes central to the workplace.

Scene 3:  Exploring Nontraditional Casting

Another potential route to getting more actors with disabilities on stage would be to follow the dictates of “nontraditional casting.” Under the regime of nontraditional casting, in order to expand opportunities for
oft-overlooked actors, artists are cast in roles in which certain categories (such as gender, ethnicity, disability, and race) are not “germane to the character’s or the play’s development.” The attempts at kickstarting nontraditional casting have been widespread; multiple major theater organizations banded together in the late 1980s to create a not-for-profit organization called the Non-Traditional Casting Project (“NTCP”).

The NTCP, as a part of its advocacy work, identified a few distinct types of nontraditional casting meant to act as “jumping-off points for the imagination,” such as “societal casting,” “cross-cultural casting,” and “conceptual casting.” These various categories are meant to serve as tools for creating opportunities for actors who may otherwise be passed over.

One further category to be addressed is “blind casting,” in which “actors are cast on the basis of their talent without regard to their physical attributes [and abilities or disabilities].” While the idea of blind casting may appear innocuous on the surface, and perhaps even look like a good solution, academic scholarship points us to the conclusion that even casting that is nondiscriminatory on its face leads to the same disparities on stage after all is said and done. Furthermore, in the past, directors have gone so far as to use the idea of blind casting to do things such as cast white actors as characters of color, using the explanation that the white actors just happened to be best for the role.

Because of the potential harms of blind casting, scholars urge directors to consider “conscious casting” instead, where attributes and abilities/disabilities are taken into account to the extent that they interact with the plot lines and characters and affect the meaning of a play or movie. Utilizing conscious casting from the nontraditional casting canon may prove another useful tool in the casting toolbox. However, the distinction between casting “blindly” and “consciously” is not always straightforward and still allows for a well-meaning director to make a blunder by casting actors in a way that sets forth an unintentional message.

Even so, conscious casting can and should be used in the context of casting actors with disabilities. Conscious casting could even be combined with the affirmative action plan discussed above; this could open the door to actors with disabilities not only playing characters with disabilities, but
able-bodied characters as well. Not only would this provide more job opportunities to actors with disabilities, but it would also allow directors to make purposeful statements through their casting about how our society views, and should or should not view, people with disabilities.

Making conscious casting an industry standard would signal to artistic and casting directors alike that diversity on stage could be a meaningful enhancement to their repertoire and the messages conveyed, and, as such, should be taken into account. It is true that some baggage might come along with this approach: it could require extra auditions to be held, extra outreach into various underrepresented communities, and extra thought put into how casting each actor affects how the play comes across to the audience. Given the dramatic loss of talent caused by excluding actors with disabilities, however, this Note argues that the potential for positive outcomes far outweighs the baggage.


At the end of the day, representation on stage can (and should) inspire new generations of both activists and actors, but it appears as though there is no single legal solution that will be able to ensure or enforce that representation. Instead, if we hope that “[o]ne day, every American theatre will be a safe, equitable, and inclusive workplace filled with arts practitioners who represent and reflect the wonderful diversity of the human tapestry,” we will need to source solutions from within the legal field as well as beyond.

This Note does not, by any means, cover the breadth of issues and possibilities left to be discovered and discussed in terms of getting better representation on theater stages. For instance, studies that have thus far been done about disability in film and television should be replicated for the stage in order to give us a more accurate picture of the issue as it applies to stage actors. Also, further research beyond the scope of this Note may yield other creative and effective legal and nonlegal tactics that can be used to not only increase diversity onstage, but also to maintain it.

It is hopefully clear by now that there is a problem in the theater world that needs to be addressed. Not enough actors with disabilities are getting employed—or even getting the chance to prove that they should be employed. This issue has negative effects all around. Of course, it impacts actors with disabilities by lessening their opportunities to practice their craft. But it also affects society at large in a number of ways; representation of disabilities on stage can lead to a feeling of “belonging” for many people who have so often felt sidelined, and the art that gets created becomes more inclusive and authentic overall.

It should also be clear by now that there is not yet a simple solution to the above problem, in the law or in society. This cannot dissuade us, however, from fighting to ensure that actors with disabilities have the opportunity to perform on stage. It appears as though it will take a conglomeration of methods: the creation of a disability BFOQ; affirmative action based on disability; monetary and business incentives; ongoing DEI work; and conscious casting could all be pieces of the as yet unsolved puzzle. And while we are still missing puzzle pieces, we should begin by working with the methods we already have.

This Note has presented potential legal avenues for addressing the lack of opportunities for actors with disabilities in the theater industry and has concluded that using the law as a vehicle for improving the odds for these actors is probably not enough. Either way, casting more actors with disabilities is an issue that clearly requires immediate attention. After all, when it comes to the heart of the reason that all of this research and discussion is necessary in the first place, actress Ali Stroker put it best in her Tony Award acceptance speech: “This award is for every kid watching tonight who has a disability, who has a limitation or a challenge, who has been waiting to see themselves represented in this arena,” she said. “You are.”

96 S. Cal. L. Rev. 483


* Senior Editor, Southern California Law Review, Volume 96; J.D. Candidate 2023, University of Southern California Gould School of Law; B.A. Drama and Psychology 2015, Tufts University. Thank you to my supportive, loving, wonderful friends and family for having my back throughout law school. Special thanks to my advisor, Dr. Orly Rachmilovitz, for her guidance during the note-writing process, and a final thank you to my mentors (also known as my parents), Barbara and Patrick Patterson, for inspiring me every day. This Note is dedicated to the memory of colleague and friend Jenny Lin.

Race and Politics: The Problem of Entanglement in Gerrymandering Cases

Gerrymandering—the manipulation of political districting processes and boundaries for partisan political advantage—has proven a troubling and difficult area of constitutional concern. This is partly due to the exceptionally divergent standards of judicial review applicable depending upon the basis for the gerrymander claim. The Supreme Court has consistently held that racial gerrymanders are subject to strict scrutiny review and presumptively violate the Equal Protection Clause of the Fourteenth Amendment. The Court has recently declared that partisan gerrymanders, on the other hand, are a political question and non-justiciable. 

This Article argues that current guidance from the Supreme Court on standards for evaluating gerrymandering claims is inadequate to guard against constitutional violations because of the problem of entanglement: the race and partisan preferences of voters are so deeply intertwined in many contexts that it is practically impossible to discern whether race or partisanship was the basis for political districting decisions. The entanglement of race and politics in political districting processes means that there is a dangerous risk that unconstitutional racial gerrymanders will escape judicial review under the cover of partisanship. 

This Article explicates the problem of entanglement in gerrymandering cases and evaluates several possible solutions. Presenting original research drawn from the 2020 decennial census and voter data from the 2020 presidential election, this Article establishes an empirical basis for the problem of entanglement. Although prior legal scholarship has emphasized the problem of “conjoined polarization”—the overlap in partisan and racial preferences—as an enabling factor in partisan redistricting processes, this Article claims that racial residential segregation plays a more central and dynamic role than has generally been acknowledged in undergirding the entanglement of race and politics in political redistricting processes.


The manipulation of political districting processes for political advantage—popularly known as gerrymandering—has long bedeviled the United States, but concerns about the abuse of this practice have intensified in recent decades due to a confluence of factors: intensifying partisan political polarization, widening racial political polarization, the use of detailed voter files to predict voting behavior, the emergence of sophisticated computer technology to generate ever-more precise political maps, and a sharp divergence in the Supreme Court’s jurisprudence governing different forms of this practice. 

In reviewing suits brought to challenge gerrymandering practices, the Supreme Court has held that state legislative efforts to draw political districts based on race violate the Equal Protection Clause, a natural extension of the Court’s general prohibition on the use of racial classifications in policymaking. On the other hand, the Supreme Court has held that legislative efforts to draw political districts based upon partisanship or for partisan political advantage are “political questions” and non-justiciable. 

In this regard, these two forms of gerrymandering are treated in the utmost extreme: racial gerrymandering is subject to the highest level of judicial scrutiny while partisan political gerrymandering is treated as non-justiciable, meaning not that it is subject to the lowest level of judicial review, rational basis review, but that the practice is deemed unsuitable for judicial review at all. Racial gerrymanders are subject to strict scrutiny judicial review whereas partisan political gerrymanders are not subject to judicial review whatsoever. 

The Supreme Court’s broader equal protection clause jurisprudence supplies a basis for treating these two types of claims differently. Prevailing equal protection jurisprudence treats race as a “suspect” class in government policymaking subject to strict scrutiny review, while most other classifications are reviewed under a rational basis test. But strict adherence to this approach would compel a very different result than the determination that partisan gerrymanders are non-justiciable. Lower courts would still be able to entertain such cases, just under a much lower level of review, rational basis.

If there were no relationship between race and partisanship in voting patterns, then political gerrymanders and racial gerrymanders could be regarded as separate and distinct categories and there would be no logical inconsistency in a jurisprudence that regulated one but not the other. Partisan gerrymanders would have no observable racial effect, or vice versa. In practice, however, race has long been highly correlated with partisan political affiliation. Although racial political polarization waxes and wanes over time, it is strong enough that a jurisprudence of gerrymandering cannot neatly divide the two types. 

The Court’s racial gerrymandering jurisprudence makes clear that sorting voters into separate political districts on the basis of race is unconstitutional, just as it is presumptively unconstitutional to sort pupils into different schools on the basis of race. In racially diverse states with racially polarized voting patterns and merely modest levels of racial residential segregation, however, it is likely that partisan gerrymandering will effectively sort people into different districts on a racial basis. In much of the country, race and partisanship are entangled, such that redistricting efforts on one basis are largely indistinguishable from the other. As a consequence, unregulated partisan gerrymanders have a dangerous potential to subvert the constitutional rule against racial gerrymandering.

Although political scientists have long recognized the correlation of race and partisan affiliation (what political scientists term “conjoined polarization”), prior analysis of gerrymandering jurisprudence has underexamined the specific role of racial residential segregation in facilitating the entanglement of race and politics in redistricting processes. In recent legal scholarship analyzing this problem, segregation is either completely absent from the discussion, mentioned in passing, or is treated as an assumed operative background condition. The role of segregation in relation to gerrymandering processes is both more central and more dynamic than is generally appreciated.

This Article argues that it is the interaction of racial residential segregation and racial political polarization that creates the entanglement problem in redistricting processes, not merely “conjoined polarization” by itself. Where the level of racial residential segregation is higher, the entanglement of race and politics in districting processes is likely to be greater, not only because of the geographic concentrations of people that facilitate political district line-drawing, but also because regions with higher levels of racial residential segregation have both greater racial political polarization and partisan political polarization. 

This Article presents original analysis of the 2020 presidential election results and 2020 census data to demonstrate that racial segregation and partisan segregation are strongly correlated. Moreover, regions with higher levels of racial residential segregation appear to have higher levels of partisan polarization. As a result, partisan gerrymanders in those regions are likely to result in the segregation of voters into different political districts on the basis of race and vice versa. 

Part I provides a brief history of gerrymandering, including the types and forms of political districts that were historically practiced. Political districts were far more varied in the early years of the republic than is generally appreciated or understood today. More importantly, Part II notes that although gerrymandering practice can be traced to the early decades of the republic, efforts to curb it also extend back into the nineteenth century. Standards and norms for democratic practice have improved and evolved since the framing of the Constitution, laying the groundwork for particularized claims brought to challenge this practice. 

Part II compares racial gerrymandering and partisan political gerrymandering cases, rulings, and reasoning. It analyzes points of divergence and convergence between the two lines of cases. The partisan and racial gerrymandering cases germinate from the same seed and the same soil but have produced extremely divergent results in the body of the Supreme Court’s precedent governing these cases. This creates a problem in cases brought that challenge redistricting where race and partisan affiliation are largely co-extensive. In such cases, racial gerrymandering could escape judicial scrutiny under the cover of partisanship. 

Part III explicates the entanglement problem, that purely partisan redistricting maps are in many cases objectively indistinguishable from redistricting maps that explicitly use race. The key components of this problem are racial political polarization and racial residential segregation. When these factors coincide, partisan gerrymandering is likely to sort people into different districts on a racial basis. Part III also shows that racial residential segregation plays a larger role than is generally appreciated in both racial and partisan gerrymandering processes. It presents original and other recent empirical research suggesting that regions with higher levels of racial residential segregation have both more racial political polarization and political segregation.

Part IV reviews three possible ways to address the entanglement problem in terms of current constitutional law and text, weighing the merits of each. First, any hybrid gerrymandering case in which race appears to play a significant role but is co-extensive with partisanship could be categorically exempted from judicial review if the state raises such a defense. This approach is not a functional solution because it would formalize a loophole for subverting the Constitution as long as racial gerrymanders are clothed in the guise of partisanship. 

Second, any case where race and partisanship are co-extensive could instead be drawn within the racial gerrymandering line and held to strict scrutiny review, even though race cannot be said to “predominate.” This approach would better align with the Court’s broader anti-classification jurisprudence but would require adjustments to the standards applicable to racial gerrymandering cases.

Finally, the Court could reverse its judgment that partisan gerrymanders are non-justiciable. The Court only recently gathered a majority of Justices in support of that view. It could reverse course and direct lower courts to review such claims under a lower standard of review within the equal protection jurisprudence or some other constitutional provision or basis altogether. In this regard, Part IV makes the case for revisiting the Court’s Guarantee Clause jurisprudence based upon principles and concerns articulated by the framers of the Constitution. 


Although the United States was still a young nation at the time of the ratification of the Constitution in 1787, the framers already enjoyed decades of cumulative experience with democratic political processes, including political districting, based upon the collective experiments already underway in the various states since the Revolution. The Federalist Papers, for example, note political districts of varying size and composition both within and between states as a matter of fact. 

In Federalist No. 57, James Madison observes that different sized political districts contribute to both the federal and state legislatures: “The city of Philadelphia is supposed to contain between fifty and sixty thousand souls. It will therefore form nearly two districts for the choice of federal representatives. It forms, however, but one county, in which every elector votes for each of its representatives in the State legislature.” Thus, Pennsylvania’s county-districting system for electing state legislators necessarily resulted in large population disparities between political districts in that state at the time of the adoption of the Constitution. But in Federalist No. 61, Alexander Hamilton notes that although the New York State Assembly is drawn from counties, the New York State Senate is drawn from districts composed of two to six counties apiece.

While acknowledging the existence of population disparities between political districts (and implicitly, the existence of inequities in political representation), both Madison and Hamilton unequivocally maintain throughout The Federalist Papers that the principle of majoritarianism—that the majority should prevail—is the fundamental basis of free government and republican government. In Federalist No. 58, for instance, Madison asserts that “the fundamental principle of free government” is that the “majority would rule.” In that context, he was writing against the suggestion made by critics of the proposed Constitution that supermajorities should be required for either a quorum or a decision (such as passing a law) in the House of Representatives. As he explains: “In all cases where justice or the general good might require new laws to be passed, or active measures to be pursued, the fundamental principle of free government would be reversed. It would be no longer the majority that would rule: the power would be transferred to the minority.” 

Indeed, this is one of the chief objections the framers had with the Articles of Confederation, which gave equal suffrage to each state in the federal legislature (unlike the Constitution, which does so only in one legislative chamber, the Senate). Prior to the constitutional convention in Philadelphia in the summer of 1787 where the Constitution was hammered out, Madison privately wrote to Thomas Jefferson expressing his hopes for systemic changes to the federal government. Chief among these concerns was converting from a system in which each state receives equal voting power in Congress to a system of representation based upon population. 

Hamilton firmly agreed. In Federalist No. 22, Hamilton maintains that “the fundamental maxim of republican government . . . requires that the sense of the majority should prevail.” Therefore, in his view, Every idea of proportion and every rule of fair representation conspire to condemn a principle, which gives to Rhode Island an equal weight in the scale of power with Massachusetts, or Connecticut, or New York; and to Deleware [sic] an equal voice in the national deliberations with Pennsylvania or Virginia, or North Carolina. 

In a powerful and eloquent denunciation of the principle of equal suffrage between states, Hamilton goes on to develop the argument on the “impropriety of an equal vote between States of the most unequal dimensions and populousness” in various ways. 

This argument, however, and all of the reasoning developed in support of it, would appear to have equal force against political districts within states of “most unequal dimensions and populousness.” Indeed, in Federalist No. 46, Madison asserts that “[e]very one knows that a great proportion of the errors committed by the State legislatures proceeds from the disposition of the members to sacrifice the comprehensive and permanent interest of the state, to the particular and separate views of the counties or districts in which they reside.”

How can the principles, reasoning, and keen insights developed by Hamilton in pushing for more proportional representation between states in the federal government be reconciled with the apparent lack of concern with unevenly populated political districts within states or the absence of an explicit mechanism regulating it? The answer is not clear. It may have been an oversight. There were many weighty matters that preoccupied the Constitutional Convention, and the issue of unequal political districts within states may not have been a topline concern. Or, if it were a serious concern, perhaps any concerned framers were either outnumbered by those who were not or sensed efforts to regulate it were either impracticable or not a winnable issue. Despite their reputation, especially Madison’s, as “author” of the Constitution, historians have noted that most of the proposals Madison or Hamilton introduced or supported at the convention were defeated. 

Or perhaps they assumed that unequal populations across political districts within states, to the extent that they were found, would exist within tolerable limits, or would not result in the vast and strikingly unequal representation of political interests to the same extent found when small states enjoyed the same voting power as the larger states. After all, the proponents of the Constitution were largely concentrating their reform efforts on addressing defects in the experience of government under the Articles of Confederation and the paralysis that resulted from allowing small states to block legislation necessary to advancing the interests of the nation.

Yet another possibility is that they believed that a separate and sufficient mechanism existed for addressing the districting problem. As an example of the latter, perhaps they believed that Article I, Section 4, allowing Congress to alter state electoral rules in federal elections, would suffice to remedy any particularly egregious or extreme case that might arise within a state. This possibility is purely speculative given that none of the three lengthy Federalist Papers (59–61) dedicated to defending the inclusion of this provision mention the composition, size, or population of political districts. In any case, this provision quickly fell into disuse, because it would be decades before Congress passed a law under this authority.

Regardless of the framers’ concern—or lack thereof—for the issue of inequities between political districts within states, state legislatures took full advantage of the maneuvering room granted them by the Constitution’s silence on this matter. In one of the most notorious instances of abuse of this power, the Massachusetts legislature passed a redistricting law in 1812 designed to minimize the political power of the Federalist Party in the next election by concentrating Federalist voters into a small number of districts while spreading Republican voters into a wider range of districts. The plan worked because the Republican party won twenty-nine seats compared to eleven for the Federalist Party, despite winning only 49% of the vote. The map, however, so conspicuously divided up the Boston region in an unnatural manner that critics likened the shape to a salamander. Governor Elbridge Gerry, a leading proponent of the plan, lent his name to political history when a political cartoonist dubbed the plan a “Gerry-mander: A new species of Monster.”  

The type and form of political district found in the early republic was more diverse and less uniform than those that exist today. Not only were political districts of unequal population and dimension regularly employed, and the manipulation of those districts common to the extent of political tolerance, but the form and type of district were not nearly as uniform as is the case today. All districts organized for electing members to the House of Representatives today are what political scientists call “single-member plurality” districts. This means that each district elects a single member, and that member is elected by a plurality of the vote (winning more votes than any other candidate—also called “first past the post”). This was not, however, the case in the early years of the republic. A variety of district types co-existed, from multi-member to at-large districts. Many of these district types were designed to maximize or entrench partisan political power.

The Constitution neither prescribes nor prohibits particular types of districts or methods of electing representatives, aside from the requirement that voting qualifications be the same as those employed for the most “numerous branch of the state legislature.” It only requires a certain number of representatives for each state based upon relative population. Consequently, most of the original thirteen states used multi-member districts in the first congressional elections. 

Between 20% and 44% of House members were elected from multi-member districts until the Twenty-Eighth Congress. This means that each district elected more than one representative. They did not use proportional representation systems, as is common to most modern parliamentary democracies, as such systems had not yet been developed. Instead, they gave some districts greater political representation relative to others. Later, some states used “at-large” voting, meaning that House members were elected in some states by a vote of the entire state, as United States senators are elected today. 

As is true of many aspects of our political system and institutions, there was a gradual trend toward greater uniformity. In 1842, Congress passed the first of a series of laws, generally known as “Apportionment Acts,” which outlawed at-large, statewide House districts under its Article I, Section 4 authority. Although ostensibly aimed at giving political minorities within states more opportunity to elect members to Congress, it also had the effect of outlawing multi-member districts, not just at-large systems. There were serious doubts about the constitutionality of such laws, and at least a few states continued to use at-large systems in violation of the law.

It was not until an apportionment act in 1872 that Congress added that districts should not only be geographically contiguous and single-member, but also that they should contain “as nearly as practicable an equal number of inhabitants.” This requirement was reiterated in similar subsequent enactments, although it was not yet a constitutional principle. 

In 1967, Congress passed another law prohibiting multi-member and at-large districts (in states with more than one representative) based on concerns that southern states might resort to at-large, statewide systems in response to the Voting Rights Act of 1965. Both multi-member and at-large districts could be used to dilute Black voting strength in southern states. 

The key developments, however, were in the courts of the 1960s. In 1962, the Supreme Court ruled that political districting processes were “justiciable” and could be reviewed by courts in the case of Baker v. Carr. Two years later, the Supreme Court ruled that political districts should approximate equal population and announced the principle of “one person, one vote.” Unequal political districts undermined this principle. If districts could be devised of unequal size, then some people enjoy greater electoral influence, and their votes might count more than others. This legal principle has been serially re-affirmed and strengthened such that the Court has struck down districting laws drawing districts with deviations of less than 1% in population between them. Permitting suits challenging inequities and disparities in the design of political districts opened the door for the challenges to partisan political and racial gerrymandering processes.


This Part of the Article will briefly review the major challenges to racial gerrymandering and partisan political gerrymandering reviewed by the Supreme Court and conclude with some comparative observations and analysis. 


The first notable racial gerrymandering case actually precedes Baker v. Carr. In Gomillion v. Lightfoot, the Supreme Court considered a challenge to a redistricting plan in Alabama that would have rendered the city of Tuskegee a twenty-eight-sided political district for no perceptible reason other than to disenfranchise the town’s Black population, which lived virtually exclusively in the districts outside the newly drawn city boundaries. The Court held that complaints alleging racial gerrymandering of municipal boundaries were cognizable under the Equal Protection Clause of the Fourteenth Amendment. 

A decade later, in White v. Regester, the Supreme Court affirmed a lower court ruling that a redistricting plan adopted in Texas had elements designed to exclude Mexican-Americans from electing representatives in the state legislature through the employment of multi-member districts. The Court, however, rejected a similar claim involving multi-member districts in Indiana that had a disparate effect on Black voters in racially segregated urban neighborhoods. These cases, however, did not involve the drawing of districts so much as the type of district. 

Racial gerrymandering claims received a significant boost in a series of cases considered by the Supreme Court after the 1990 census, beginning with the landmark case of Shaw v. Reno, in which the Court first recognized this claim as such in the drawing of district lines. After the 1990 census, North Carolina was awarded an additional congressional seat. The state legislature’s initial apportionment plan was rejected by the Department of Justice under the preclearance provision of the Voting Rights Act (“VRA”). A revised VRA-compliant plan created a second majority-Black district. Five white North Carolina residents sued, arguing that the redistricting plan violated the Equal Protection Clause of the Fourteenth Amendment. Specifically, the residents claimed that the state engaged in an “unconstitutional racial gerrymander.”

In an opinion authored by Justice Sandra Day O’Connor, the Court articulated several principles that helped lay the foundation for a clear rule against racial gerrymanders. First, the Court situated the case firmly within its racial classification jurisprudence, affirming that “laws that explicitly distinguish between individuals on racial grounds fall within the core of [the Equal Protection Clause’s] prohibition,” and that “[e]xpress racial classifications are immediately suspect.” Furthermore, the Court asserted that the harms of racial classification are as present in the electoral context as they are in other contexts that the Court had reviewed: 

Racial classifications of any sort pose the risk of lasting harm to our society. They reinforce the belief, held by too many for too much of our history, that individuals should be judged by the color of their skin. Racial classifications with respect to voting carry particular dangers. Racial gerrymandering, even for remedial purposes, may balkanize us into competing racial factions; it threatens to carry us further from the goal of a political system in which race no longer matters—a goal that the Fourteenth and Fifteenth Amendments embody, and to which the Nation continues to aspire.

The Court acknowledged, however, that all redistricting is necessarily race-conscious, drawn with an awareness of racial demographics, just as the legislature is aware of many other demographics features when drawing legislative districts. Therefore, the Court held that not all race-conscious redistricting is unconstitutional. The Court did not, however, identify the line between permissible race-conscious political redistricting and impermissible racial gerrymandering. It concluded that the plan in question was so “bizarre on its face that it was ‘unexplainable on grounds other than race.’ ” Therefore, the Court held that the appellants stated a claim strong enough to survive a motion to dismiss and remanded the case for further determinations. 

A similar set of facts led to another suit that the Supreme Court considered involving Georgia in the case of Miller v. Johnson. In announcing its decision in an opinion authored by Justice Anthony Kennedy, however, the Court both affirmed critical parts of Shaw and helped indicate where to draw the line between race-conscious political districting and impermissible racial gerrymandering. 

The Court first specifically rejected the state of Georgia’s claim that “evidence of a legislature’s deliberate classification of voters on the basis of race cannot alone suffice to state a claim under Shaw.” Kennedy also observed that “the essence of the equal protection claim recognized in Shaw is that the state has used race as a basis for separating voters into districts.” Critically, however, the Court promulgated a “predominant factor” test to guide it’s application of the facts to the law in this context. 

To establish a racial gerrymandering claim, a plaintiff must prove that “race was the predominant factor motivating the legislature’s decision to place a significant number of voters within or without a particular district.” To make this showing, a plaintiff must establish that the legislature subordinated traditional race-neutral districting principles, including but not limited to compactness, contiguity, respect for political subdivisions or communities defined by actual shared interests, to racial considerations. Where these or other race-neutral considerations are the basis for redistricting legislation, and are not subordinated to race, a state can “defeat a claim that a district has been gerrymandered on racial lines.” 

In several subsequent cases involving similar fact patterns and southern states, the Court further clarified that to bring racial gerrymandering claims, individuals must reside in the district that they claim is gerrymandered and that such claims should be brought on a district-by-district basis, not against an entire plan. This is consistent with the view that these cases are concerned with the dangers of racial classification. An individual residing outside of a district that it claims has been gerrymandered has not, in some sense, been “classified” on the basis of race by government as the Court has construed this concept. It should be noted that most of the contemporaneous cases heard by the Court at this time involved drawing districts to increase or preserve minority representation in Congress under the VRA.

There remain a number of ambiguities in how to apply the predominance test, some of which the Supreme Court has grappled with, but has not necessarily fully resolved. In particular, the Court has tried to clarify how the consideration of race is to be viewed in relation to other considerations before triggering strict scrutiny. In a case heard in the 2015 term, the Court rejected a lower court’s ruling that race did not “predominate” as a consideration in the redistricting plan because of “non-racial factors,” including the goal of creating districts of equal population. The Court clarified that the equal population factor is not a factor to be considered in the ordinary course of redistricting, but a constitutional mandate. While that may seem like an easy case, the Court considered a harder question in the 2016 term. 

The state of Virginia defended a Republican-led redistricting plan against a racial gerrymandering claim on the grounds that the “predominance test” should only be applied if the use of race is in conflict with “traditional districting principles,” as it had presumed in cases such as Shaw. The Court rejected this position in a seven-to-one decision presented in an opinion by Justice Kennedy. He concluded that racial gerrymanders can exist or arise even under plans that otherwise conform to traditional factors such as compactness and contiguity. As he explained, “The Equal Protection Clause does not prohibit misshapen districts. It prohibits unjustified racial classifications.”

Critically, the Court emphasized that an unconstitutional racial gerrymander can arise or exist even if an identical plan could have been adopted without consideration or use of race. Justice Kennedy explained that “[t]he racial predominance inquiry concerns the actual considerations that provided the essential basis for the lines drawn, not post hoc justifications the legislature in theory could have used but in reality did not.” Thus the predominance test is a factual inquiry into considerations used as part of the actual districting process. Holding otherwise would provide a state with constitutional cover for unconstitutional behavior. As the Court observed, “By deploying [non-racial] factors in various combinations and permutations, a State could construct a plethora of potential maps that look consistent with traditional, race-neutral principles. But if race for its own sake is the overriding reason for choosing one map over others, race still may predominate.” 


Since the early 1960s, the Supreme Court has become more solicitous of racial gerrymandering claims even has it has become more hostile to partisan political gerrymandering claims. This Section will now review the latter line of cases. 

The Supreme Court squarely confronted a partisan gerrymandering claim in the 1986 term in the case of Davis v. Bandemer. In that case, the Court reviewed a redistricting plan proposed by the Republican-controlled Indiana state legislature. This plan yielded an immediate partisan advantage in which 43 out of the 100 seats in the state House of Representatives were filled by Democratic candidates even though 51.9% of the statewide votes went to Democratic candidates. Upon review, a deeply divided Court produced a fragmented set of opinions in which most justices agreed on the result—a holding that the plan was not unconstitutional—but disagreed on the rationale and basis for that judgment. 

Six of the Justices, and therefore the Court, endorsed the legal principle that partisan or political gerrymanders are justiciable, while three Justices, Justice O’Connor, Justice Burger, and Chief Justice Rehnquist, preferred to rule that such claims are not. Even among the Justices in the majority and plurality, however, there was a lack of consensus on the grounds for doing so and on the standards that should be adopted to evaluate such claims. The debate between the Justices prefigures most of the issues that have been subsequently debated in this context. 

The plurality of Justices White, Marshall, Brennan and Blackmun begin with the principle that in order to establish a partisan gerrymandering claim, plaintiffs must “prove both intentional discrimination against an identifiable political group and an actual discriminatory effect on that group.” They caution, however, that the mere fact that “a particular apportionment scheme makes it more difficult for a particular group in a particular district to elect the representatives of its choice does not render that scheme constitutionally infirm.” In addition, they reject the notion that mere disproportionality in representation is a sufficiently adverse effect to establish a constitutional violation. The plurality advises that reviewing courts examine both the district individually as well as the state’s overall districting plan holistically. The plurality also asserts that a constitutionally infirm redistricting plan can occur either when a minority manipulates boundaries to consistently thwart the will of the majority, or when a majority uses its power to shut a minority out of the political process or a meaningful chance to influence it.

Ultimately, the plurality held that “unconstitutional discrimination occurs only when the electoral system is arranged in a manner that will consistently degrade a voter’s or a group of voters’ influence on the political process as a whole.” In applying this standard, the plurality emphasized that claimants would need to examine more than a single election to conclude that an impermissible partisan gerrymander exists, and that they should be able to distinguish between a meaningful structural disadvantage established by districting compared to mere lack of success in persuading voters. The plurality felt that the district court’s conclusions were less persuasive than the state’s defense on this point and voted to reverse the lower court. 

Justice Powell and Justice Stevens found the plurality’s approach too restrictive and would have affirmed the lower court. In particular, Justice Powell wrote in favor of a multi-factor analysis: 

The most important [factor to consider is] the shapes of voting districts and adherence to established political subdivision boundaries. Other relevant considerations include the nature of the legislative procedures by which the apportionment law was adopted and legislative history reflecting contemporaneous legislative goals. To make out a case of unconstitutional partisan gerrymandering, the plaintiff should be required to offer proof concerning these factors, which bear directly on the fairness of a redistricting plan, as well as evidence concerning population disparities and statistics tending to show vote dilution. No one factor should be dispositive.

Justice O’Connor and Justice Burger argued strenuously that the majority’s holding would prove unworkable in practice, as illustrated by the inability of the six Justices in favor of holding partisan gerrymanders as justiciable to get behind a single standard and therefore was a “political question” as set out in the framework for evaluating such questions in Baker v. Carr. In addition to the lack of a clearly defined and easily applicable standard for adjudicating such claims, they had prudential concerns. Justice O’Connor argued that without a clear standard, opening federal courts to claims of partisan gerrymandering would lead to “pervasive and unwarranted judicial superintendence of the legislative task of apportionment.” She wondered if there was any logical stopping point short of “roughly proportional representation for every cohesive political group.”

Despite its inviting holding, Bandemer established a heavier burden for plaintiffs to overcome so as to make out a discriminatory political gerrymandering claim than its authors probably imagined. Over the next eighteen years, no federal courts, at any level, ruled that a redistricting plan was an unconstitutional political gerrymander. This was the situation when the Court heard the case of Vieth v. Jubelirer in 2004.

In Vieth, the Court considered a suit brought by members of the Democratic Party, claiming that the state of Pennsylvania’s partisan redistricting plan violated the Constitution. Five Justices agreed that the plan did not violate the Constitution, but four of those Justices took the position of Justice O’Connor, Justice Burger, and Chief Justice Rehnquist in Bandemer, arguing that political gerrymanders should be non-justiciable and voting to overturn Bandemer. The fifth Justice, Justice Kennedy, however, agreed that current standards were unworkable, but he preferred to leave the door open to discovering one. The four dissenting Justices agreed with Bandemer’s holding but disagreed on the specifics of how to operationalize that principle. 

The Court subsequently heard a case that had been held over until Vieth was decided, League of United Latin American Citizens v. Perry. In Perry, the petitioners challenged the 2003 redistricting plan enacted by the Republican-controlled Texas legislature. Drawn merely a year after the 2002 midterm elections, the 2003 plan led to an election result where twenty-one Republicans and eleven Democrats were elected in congressional elections the following year, a far more lopsided result than the aggregate vote count would suggest. The petitioners argued that the mid-decennial nature of the redistricting plan revealed the legislature’s sole motivation to gain partisan advantage, which should be sufficient to trigger heightened scrutiny. In the majority opinion, Justice Kennedy entertained the petitioners’ proposed “sole-intent” test, but ultimately found it “not convincing” because some contested district lines were drawn based on more local interests and a number of line-drawing requests by Democratic legislators were honored.

Interestingly, Justice Stevens and Justice Breyer, in their dissent, proposed a different test wherein a plaintiff must prove partisan aims by showing that: (1) the legislature “subordinated neutral districting principles to political considerations” and (2) their predominant motive was to “maximize one party’s power,” along with a showing of discriminatory intent by establishing that (1) the plaintiff’s candidate of choice won election under the old plan; (2) the plaintiff’s residence is now in a district that is a safe seat for the opposite party; and (3) the plaintiff’s new district is less compact than the old district. However, this complex alternative test was clearly not entertained by the majority. 

The next major partisan gerrymandering case was heralded when the Court agreed to review a redistricting plan arising from Wisconsin in Gill v. Whitford, based on the fact that a new technical standard had been developed and proposed: the efficiency gap. This was a formula devised by social scientists to provide metrics that could gauge the specific disadvantage created by certain redistricting schemes. The authors of this formula claimed it provided clear and workable standards for operationalizing them. The result was a letdown when the Court dismissed the case for lack of standing. The Court also breezily dismissed another case the same year in a per curiam opinion regarding Maryland’s Democratic-favored political gerrymandering. This case was reconsidered, and then dismissed, in the 2019 term.

Justice Kennedy’s departure from the Court led to a more decisive result in this line of cases. In Rucho v. Common Cause, a majority of the Court held for the first time that partisan gerrymanders are a political question and non-justiciable largely for the reasons developed in the dissent in Bandemer and the concurrences in Vieth. This would seem to be, thus far, the end of the line for claims of partisan gerrymandering. 


The juxtaposition of the racial gerrymandering and partisan political gerrymandering cases is itself revealing. The partisan and racial gerrymandering cases germinate from the same seed and the same soil. They both arise out of a political context in which democratic representation is being distorted or manipulated for specific advantage, and in a legal context in which the Constitution provides scant direct guidance (despite the provision of a political mechanism by which Congress, via Article 1, Section 4, can alter state electoral rules in federal elections). The germ for both claims is the Court’s greater solicitude toward challenges to various electoral schemes in the early 1960s. And yet the Court has evolved vastly different frameworks and conclusions for regulating these forms of political districting activity for reasons that are not entirely convincing or coherent. 

In theory, the different levels of scrutiny and accord given to race versus other classifications under the Equal Protection Clause could explain the differences in treatment, but the proponents of treating political gerrymanders as non-justiciable decline to ground their reasoning on this basis. After all, if this were the critical explanatory factor, then partisan gerrymandering claims would be justiciable, just at a much lower level of judicial review. 

Instead, the main contention of the non-justiciable position emphasizes the lack of workable standards and the constitutional structure and history of gerrymandering as a political practice. Recall, for example, that Justice White and the plurality in Bandemer emphasized whether a districting scheme created a severe structural disadvantage in access to the political process, whereas Justice Powell (joined by Justice Stevens) would have applied a multi-factor, holistic approach. Justice O’Connor and the Justices who joined her opinion argued that the Baker factors for evaluating whether an issue is a political question squarely fit, and that there was no logical stopping point short of proportional representation once such claims were entertained.

The most obvious rejoinder to the claim that political gerrymandering suits cannot be grounded onto a workable standard is the fact that workable standards have already been developed and adopted in the racial gerrymandering context. Logically, if the standard is workable in one context, it should be workable in another, absent some factor that would render it otherwise. Indeed, this is a prominent theme of the Justices who support judicial review of extreme partisan gerrymanders. 

In Bandemer, all six Justices in the majority signed onto a sharp critique of Justice O’Connor’s opinion (joined by Burger and Rehnquist) arguing that she failed to “point out how the standards that we set forth here for adjudicating this political gerrymandering claim are less manageable than the standards that have been developed for racial gerrymandering claims.” This was also a central point of contention in Vieth. The plaintiffs in that case modeled their claim on the standard adopted in Miller, that the partisan objective was a “predominant factor” in the redistricting process. As the plurality in Vieth forthrightly noted, “Appellants contend that their intent test must be discernible and manageable because it has been borrowed from our racial gerrymandering cases.” Yet, it disagreed, for reasons that Justice Stevens upbraided in his dissent: 

Especially perplexing is the plurality’s ipse dixit distinction of our racial gerrymandering cases. Notably, the plurality does not argue that the judicially manageable standards that have been used to adjudicate racial gerrymandering claims would not be equally manageable in political gerrymandering cases. Instead, its distinction of those cases rests on its view that race as a districting criterion is “much more rarely encountered” than partisanship, and that determining whether race—“a rare and constitutionally suspect motive”—dominated a districting decision “is quite different from determining whether [such a decision] is so substantially affected by the excess of an ordinary and lawful motive as to [be] invali[d].” But those considerations are wholly irrelevant to the issue of justiciability.

Moreover, the stronger the argument advanced by the plurality in Vieth and the majority in Rucho against porting the standards used in the racial gerrymandering cases to the political gerrymandering context, the more they reveal the weaknesses of the doctrine they have developed in the racial gerrymandering context. In Vieth, for instance, Justice Scalia writes on behalf of the plurality that the “predominant motivation” test is “vague . . . when used to evaluate single districts, [but] it all but evaporates when applied statewide.” Any vagueness, however, is built into the notion that courts can discern the predominance of any particular factor in a complex legislative process. Qualitative considerations in legislative processes are not like mechanical inputs into the production of widgets. They inherently resist the quantification necessary to determine “predominance.” 

The argument Justice Scalia develops in the guise of a rhetorical question is especially revealing: 

And how is the statewide “outweighing” to be determined? If three-fifths of the map’s districts forgo the pursuit of partisan ends in favor of strictly observing political-subdivision lines, and only two-fifths ignore those lines to disadvantage the plaintiffs, is the observance of political subdivisions the “predominant” goal between those two? We are sure appellants do not think so. 

The exact same argument could be developed at the scale of a single political district in the racial gerrymandering context, using neighborhoods, census tracts, or other census designated geographies as the smaller scale analogue subdivision. The “predominant factor” test seeks to quantify the inherently qualitative. Any deficiency in the predominant factor test in the partisan gerrymandering context is likely equally applicable to the racial gerrymandering context. 

Finally, Justice Scalia tries to draw another distinction to justify this difference in treatment: 

Determining whether the shape of a particular district is so substantially affected by the presence of a rare and constitutionally suspect motive as to invalidate it is quite different from determining whether it is so substantially affected by the excess of an ordinary and lawful motive as to invalidate it. 

But this argument utterly ignores the fact that Shaw and its progeny never characterized the pursuit of partisan political advantage as an ordinary (“traditional”) districting principle and also readily acknowledged that virtually all political districting is race-conscious, drawn with the awareness of racial demographics. To that extent, it is impossible to declare that consideration of race is any less “ordinary” than consideration of partisan advantage in the redistricting process. Moreover, in both cases, the argument is that it is only the predominance of this consideration that renders it illegal, not its mere presence. To that extent, Justice Scalia’s comment assumes what it concludes when it declares one legal and the other unlawful. 

Chief Justice Roberts makes a similar leap in logic in Rucho: “A permissible intent—securing partisan advantage—does not become constitutionally impermissible, like racial discrimination, when that permissible intent predominates.” If true, it is only because he and his colleagues make it so. If they decided that securing partisan advantage was unconstitutional when it predominates the redistricting process, then it would be so. Both Justice Scalia and Chief Justice Roberts assume that pursuit of partisan advantage is permissible to justify their conclusion that the case lines are different. Further, if the main reason that partisan gerrymandering is non-justiciable is the lack of workable standards, then the constitutionality of such processes is based upon their judgment in that regard rather than an evaluation of valiant, but ineffective, efforts. 

As unconvincing as these arguments are for why the predominance test cannot be reasonably applied to the partisan context, there is an even stronger argument for why partisan and racial gerrymanders cannot be treated in such categorically distinct ways, and it is a point that the dissenters have not developed: the entanglement of partisanship and race in redistricting processes. 

Against a backdrop of even moderate racial residential segregation, racial political polarization in voting patterns combined with the race-conscious districting processes mean that partisan gerrymandering cannot be clearly distinguished from racial gerrymandering. Even if mapmakers completely ignore racial demographics in generating districting options, a redistricting process motivated by the pursuit of partisan advantage is likely to produce maps strikingly similar to those that might occur if the state had “used race as a basis for separating voters into districts.” The next Part of this Article confronts and unpacks this problem.


The entanglement of race and partisanship in political districting processes is rooted in a few critical phenomena. To understand the entanglement problem, we must first examine the concept of polarization, especially as it is applied to politics. 

Polarization is itself an elusive notion, and it is not always clear what it means. Sometimes polarization is invoked to describe the salience of political conflict. This simple characterization is misleading. Although there may be an underlying relationship, partisanship and political polarization are not coterminous. 

The existence of closely contested elections versus landslide elections cannot tell you whether the electorate is polarized or not. Landslides might occur in deeply polarized contexts but in which one group dominates another, as in the Jim Crow South, or low-polarization contexts in which a broadly popular, mainstream candidate triumphs. Similarly, closely contested elections can occur when both candidates are popular or both are deeply unpopular. Aggregate returns are not indicative. 

More often, polarization is used to refer to intensity of disagreement or political conflict. This conceptualization, however, also fails to capture the essence of polarization. Extreme (corrosive or toxic) partisanship can exist in a state of either high or low political polarization. It is the distance or scope of disagreement, not necessarily the intensity of feeling or contestation, that is key to understanding polarization. This is perhaps easier to understand in an economic context. 

Suppose that most people in a certain society are middle-income, with far fewer extremely rich and extremely poor individuals. Such an income distribution would be depicted graphically in the form of what statisticians call a “normal distribution” (or a “Gaussian” distribution) with a bulge in the middle and smaller downward sloping tails toward the edges of the income distribution. In contrast, suppose that most people in another society are either extremely poor or very wealthy, with fewer people as middle-income. This is what statisticians call a bimodal distribution, with bulges towards the ends of the distribution. The mean or median results could be identical in both situations. See Figure 1.


FIGURE 1.  A Normal vs. a Bimodal Distribution

Polarization refers to a process by which a distribution resembling a normal distribution evolves into something more closely resembling a bimodal distribution. Thus, if the income distribution hollows out this way, economists may describe this as “economic polarization.” The same is true of politics. 

As political scientists and surveyors have demonstrated, American political attitudes have indeed become more polarized in recent decades. The Pew Research Center, which conducts regular surveys on political attitudes, found that in both 1994 and 2004, more Americans expressed mixed or centrist political opinions than either conservative or liberal views. By 2014, however, this had reversed, a trend that has continued to the present. 

One particularly important dynamic contributing to political polarization is that Republicans have become more conservative and Democrats have become more liberal. In 1994, only 64% of Republicans were more conservative than the median Democrat, and only 70% of Democrats were more liberal than the median Republican. By 2014, those figures had risen to 92 and 94%, respectively. 

Another form of polarization is racial political polarization. This tends to refer to distinctive partisan preferences between racial groups. Table 1 below indicates the significant racial gaps in support for partisan candidates in presidential elections since 2000. 

TABLE 1.  Republican Support by race in Presidential Elections, 2000–2020

Although there is non-trivial variation between electoral cycles, this table shows consistently high political polarization between racial groups in the popular vote for President (and by implication for political party) over two decades. In presidential elections since 2000, Black support for the Republican candidate narrowly ranges from 4% to 12%. White support ranges from 55% to 59%. Latino support ranges from 26% to 44% (in 2004). And Asian support ranges from 27% to 43%. The white-Black voting gap ranges from 46 to 53 points. Although political polarization by race seems to reach a peak in 2012, the figures as of 2020 are just as large, if not larger, as they were in 2000. In short, racial political polarization has worsened over time, but it has been consistently high throughout the twenty-first century. 

Similar tables could be generated for congressional races, midterm elections, governor’s races, and the like. Political scientists have observed that racial political polarization in the United States has been pronounced at least since 1965. This connection between race and partisan affiliation is described as the “conjoined polarization.” Although this phenomenon might be troubling in its own right, it is not automatically a problem in the context of political redistricting processes. 

If racial groups were evenly distributed across space, then political polarization by race would not factor into political redistricting processes. Gender political polarization offers a contrasting illustration. Gender political polarization has increased significantly in recent years too, and a table similar to Table 1 could be presented illustrating it. But the absence of gender political segregation means that gender is not a meaningful basis upon which to conduct political redistricting processes.

Residential segregation is the critical element that enables gerrymandering. This is true generally, but in the context of racial gerrymandering, racial residential segregation is the critical factor. 

When racial groups are highly concentrated into certain neighborhoods or communities, and there is a moderate to high degree of racial political polarization, then racial gerrymandering is relatively easy. On the other hand, even if the political community is racially polarized, if racial groups are highly integrated across space, then racial gerrymandering would prove extremely difficult to impossible. If either condition is absent, it is not possible to either use race to draw political districts for partisan advantage nor to draw districts for partisan advantage that segregate people into different political districts on the basis of race. Only when both conditions hold does the entanglement problem arise. Table 2, below, indicates the relationship. 

TABLE 2.  Conditions for Entanglement

The entanglement of race and politics in political redistricting processes, then, is not simply a function of the conjoined polarization of racial political polarization and partisan political polarization. It depends on the existence of racial residential segregation as well. 

Unfortunately, racial residential segregation is persistently moderate to high across much of the United States. Using traditional measures of segregation such as the dissimilarity index, national Black-white dissimilarity in 2020 was 55.2, meaning that 55% of Black Americans would have to move into a predominantly white neighborhood to have no racial residential segregation between Black and white Americans. This is in a range social scientists regard as “moderately high.” Asian-white dissimilarity scores are 40.0, and Hispanic-white dissimilarity scores are 45.3, in the moderate range. Even though most of these numbers have improved in recent decades, they demonstrate the persistence of racial residential segregation. In many cities, these figures are much higher.

Other popular measures of segregation are the Isolation/Exposure Indices, which describe neighborhood composition of the typical (median) or average person by race. The “typical” Black and white Americans reside in vastly different neighborhood milieus. As of 2020, the average white resident of a metropolitan area resides in a neighborhood that is 69% white, 9% Black, 12% Hispanic, and 6% Asian. In contrast, a typical Black resident lives in a neighborhood that is 41% Black, 34% white, 17% Hispanic, and 6% Asian. Not only are these demographically different worlds, these figures mean that Black “exposure” to white people is 34, roughly the same level it was in 1940. 

Using a different measure of segregation, the Divergence Index, which can account for multiple racial groups simultaneously and provide a single holistic score for every city or metropolitan region, racial residential segregation appears stubbornly persistent. The Divergence Index compares demographic proportions of smaller geographies to larger geographies and then sums those population-weighted differences to yield a holistic score. Over 50% of cities and metro areas have a higher (more segregated) Divergence score as of 2020 than in 1990. 

Given the central role of residential segregation in facilitating or impeding the manipulation of district boundaries for political advantage, it is strange that prior legal scholarship has under-emphasized or ignored this factor in analyzing gerrymandering cases. Perhaps that is because it is assumed that segregation is a neutral or binary background factor that either exists or does not, and does not actually affect the level of partisan political polarization in a region. If so, there are several findings that challenge this assumption.  

A study conducted by the political scientist Jessica Trounstine identified a direct relationship between racial residential segregation and partisan political polarization. She finds that the relationship between segregation and racial political polarization is statistically powerful: a city in the 10th percentile of segregation has a 35% point divide in racial support for a political candidate, compared to a 63% point divide at the 90th percentile. In other words, the more racial residential segregation, the more racial political polarization. 

Could this difference be explained by the fact that white people vote more conservatively in certain states or regions than others? She tests for this and finds that the relationship between segregation and polarization is unaffected by the conservatism of the local white population. In fact, she found that “cities with more conservative white populations have smaller racial divides.” 

In short, racial residential segregation is not a background condition that exists in a binary state, either existing or not, to undergird the entanglement problem. Rather, it is a condition that interacts dynamically with racial political polarization. A higher level of racial residential segregation seems to coincide with higher racial political polarization. Similarly, racial residential segregation interacts dynamically with partisan political segregation and (by inference) partisan political polarization, as will be shown below. 

To appreciate the full relationship between race and politics, it is important first to emphasize that the critical role of residential segregation in relationship to gerrymandering is general, not specific to racial segregation and racial gerrymandering. Partisan political polarization, by itself, is neither a necessary nor a sufficient condition to enable partisan gerrymandering. Political segregation, however, is necessary. If people of different political preferences or partisan affiliation are evenly distributed across space, regardless of how polarized they may be, it is extremely difficult to draw political districts for partisan advantage. On the other hand, high levels of partisan residential segregation (say, Republicans living in one community and Democrats in another) make it much easier to draw districts for partisan political advantage. For simplicity of illustration, compare hypothetical voting precincts of equal size with voting totals depicted in Tables 3 and 4 below. 


TABLE 3.  Hypothetical #1 Voting Precinct Electoral Results

Although the vote total in Table 3 is relatively close (only a two-point margin between the winner and loser), the precincts are extremely divergent from the aggregate vote total, suggesting a high degree of political segregation between precincts. In contrast, consider this a different election with the same aggregate result in Table 4 below.


TABLE 4.  Hypothetical #2 Voting Precinct Electoral Results

In this case, the winner’s vote margin is the same as in the first case, but the precincts only marginally diverge from the aggregate result. The largest gap for support for Candidate A and the aggregate result is just 4 points, in Precinct 1, compared to a 37–40-point gap between each precinct and the ultimate results in the first case. The first case suggests a high level of political segregation across precincts. If these results were stable over time, and not specific to a particular candidate but consistent across candidates and issues, then we could reasonably describe that region as having a high degree of political segregation. It should be much easier for mapmakers to draw political districts for partisan advantage in cases like the first rather than the second (although a larger number of precincts or sub-precinct level voting data would be needed). 

Unfortunately, the United States has widespread political segregation as well, which maps vividly illustrate. Democrats and Republicans are not just more divergent in their views, they are increasingly residing in different communities. Using this type of data or other geographically disaggregated vote tabulations, it is possible to calculate the degree of political segregation that exists in different regions. Using the formula for the Divergence Index (described above), I have calculated the relative degree of political segregation for different major metropolitan regions of the United States.

Using 2020 presidential election precinct tabulation results, out of the 314 largest metropolitan areas in the United States (those with a population of 200,000 or more), Table 5 below lists the top 20 most politically segregated regions of the United States along with their divergence score. 


TABLE 5.  The 20 Most Politically Segregated Metropolitan Areas in the United States (2020 Presidential Election)

The dynamic of political segregation can also be depicted visually, providing a more intuitive and easily comprehensible approach. Compare maps of Jackson, Mississippi (the most politically segregated metro), with Carson City, Nevada (ranked 273 out of 314), which has one of the lower political divergence scores), in Figure 2, below. The contrast is vivid. 


FIGURE 2.  Political Segregation in Jackson, Mississippi, and Carson City, Nevada


As the maps displayed in Figure 2 illustrate, the metropolitan area of Jackson ranks first in political divergence, indicating the presence of ideological extremes where precincts overwhelmingly voted in favor of one party while neighboring precincts voted in favor of the other party. In contrast, all of the precincts in Carson City approximate the regional average, suggesting a much lower level of political segregation. The high level of political segregation in Jackson makes it especially vulnerable to partisan gerrymandering. This is partly what makes districting such a dilemma in the United States: the high degree of political geographic or residential segregation. 

One of the striking features of the list presented in Table 5, above, is that the vast majority of the most politically segregated regions are in the South (17 of the top 20). Given that region’s racial history, it raises the question of whether there is a relationship between political residential segregation and racial residential segregation in the United States. Figure 3, below, confirms the relationship between the two, as shown in a scatterplot. 


FIGURE 3.  Racial Segregation and Political Segregation in the United States, 2020 (314 Metros)

Figure 3 depicts the 314 largest metropolitan areas in the United States. The horizontal axis indicates the divergence index score (calculated as described above) for political segregation and the vertical axis indicates the relative percentile rank for racial residential segregation using the same formula but with data from the 2020 decennial census. The scatterplot indicates a clear positive relationship, with a 0.50 correlation between the two variables. 

Not only does this analysis suggest a relationship between the two phenomena, but it also means that where racial segregation is higher, partisan gerrymandering should be easier. Conversely, where partisan segregation is higher, racial gerrymandering should be easier. In short, they go hand in hand, but in a dynamic relation. The problem lies in their coincidence. This is the crux of the entanglement problem, not the simple fact of conjoined polarization between race and politics. 

Whether the context is partisan gerrymandering or racial gerrymandering, the active ingredient is segregation, not polarization. Partisan gerrymandering only requires some degree of political segregation. Racial gerrymandering, however, requires both racial political polarization and racial residential segregation. Prior legal scholarship treats segregation as the backdrop condition and conjoined polarization as the central or proximate problem when the truth is the opposite. 

In practical terms, the persistence of racial political polarization means that the strong correlation between political segregation and racial residential segregation easily facilitates both racial and partisan gerrymandering in ways that are essentially indistinguishable. State officials can draw maps at a hyper-granular level that may relocate a small number of people from one district to another, with full awareness of their race and the fact of conjoined racial identity with partisan preference, and nonetheless claim that the decision was based on partisan motivations. In other words, racial residential segregation enables partisan gerrymandering that will result in the political segregation of people between districts on the basis of race. Even if the map-makers were to scrub all data regarding race from their software, a map drawn on partisan or other non-racial characteristics could appear objectively indistinguishable from maps drawn in cases like Shaw. 

This problem is not speculative or theoretical. The Supreme Court has already heard cases touching on this problem. In oral argument in Wittman v. Personhuballah, Chief Justice Roberts asked “if race and partisanship are co-extensive, which one predominates?” In that case, several Republican members of Congress appealed a lower court’s decision to strike down a redistricting plan it found to be based on race. This question led to a brief dialogue among the Justices and the lawyer for the original plaintiffs regarding this issue, but the case was ultimately dismissed for lack of standing among the members of Congress to bring their appeal.

In another case decided that same term, Cooper v. Harris, the Court acknowledged that many of the Shaw considerations (compactness, for example) used to assess whether race predominated become less probative when the state raises the defense of partisanship. As it explained, “political and racial reasons are capable of yielding similar oddities in a district’s boundaries. That is because, of course, ‘racial identification is highly correlated with political affiliation.’ ” In that case, the Court rejected the claim that partisan goals are a complete defense to racial gerrymandering claims. As it explained, the predominance “inquiry is satisfied when legislators have ‘place[d] a significant number of voters within or without’ a district predominantly because of their race, regardless of their ultimate objective in taking that step.” 

But this guidance merely sidesteps the more difficult question of how to determine whether a legislature’s districting decisions were “because of race” in such cases, and assumes that racial motives can be disentangled from partisan ones (either as a means or an end). Indeed, the entire concept of “predominance” assumes that the factors considered by entities charged with redistricting, and which are being reviewed by courts, are separate and independent elements. Because of the difficulties introduced by entanglement, lower courts may be hesitant to rule that race “predominates” when race and partisanship are highly entangled or when the state supplies reasons to believe that any apparent use of race was merely partisanship. 

Again, this is not a speculative concern. The NAACP Legal Defense Fund and the Lawyers Committee for Civil Rights brought a suit against Georgia in 2017 alleging that a mid-decade redrawing of political districts was both a racial and political gerrymander. The district court acknowledged that ascertaining the existence of a racial gerrymander was “particularly hard to do when the State offers a defense rooted in partisan gerrymandering, as it did here. We did not move these voters because they are black, the State tells us. We moved them because they were Democrats.” The court ultimately sided with the state for that reason. 

Experience demonstrates that this epistemological problem created by the entanglement of racial and partisan gerrymanders already exists and may be intensifying. The provision of block level census data following the 1990 census meant that state legislatures could draw more fine grain political districts based on race than was ever possible before using computer programs. Indeed, the Court confronted this fact in Bush v. Vera, in which the Court noted that the computer program “REDAPPL enabled districters to make more intricate refinements on the basis of race than on the basis of other demographic information.”

This technology has only improved in the intervening decades. It is now possible to generate thousands of potential maps at a keystroke with computer processing and programs that draw from large voter or census files. Large data files can be cross-referenced not only to generate demographic profiles, but also psychographic information, such as predicting propensity to vote, donate money, or even respond to certain campaign communications.

Upon the death of a North Carolina Republican strategist involved in redistricting efforts, his daughter made public his personal computer files against the wishes of the party and company he worked for. The trove contained thousands of documents detailing the various ways that he sought to generate political advantages for his clients, describing gerrymandering as legal vote stealing.

In Vera, however, Justice O’Connor stated that “[i]f district lines merely correlate with race because they are drawn on the basis of political affiliation, which correlates with race, there is no racial classification to justify.” Although likely dicta, this approach nonetheless does not resolve the issue because, if there is a perfect identity or correspondence of race and partisanship, how is a court supposed to judge whether the lines were drawn “because of political affiliation” or “because of race”? If a state legislature is trying to conceal its racial intentions, it would simply develop a record of partisan purposes and other traditional districting considerations. The entanglement of race and partisanship would then allow state legislatures to subvert the Constitution. The vastly divergent standards for both forms of gerrymandering makes it even more difficult to regulate this problem. There are, however, solutions. 


This Article argues that the wildly divergent standards established by the Supreme Court governing partisan political gerrymandering and racial gerrymandering claims are untenable. Justices across the ideological spectrum agree that the use of race in drawing political districts may run afoul of the Constitution, but the Court’s extremely divergent rules regulating gerrymandering cases make it extremely difficult, if not impossible, to know whether race has been used or not. In too many contexts, partisan political gerrymanders will entail conduct that violates the principles and standards established by the foundational racial gerrymandering cases, or run so closely up to them that any attempt to fully disentangle partisan ends from racial ones is likely to be hopelessly futile or end up subverting the Court’s racial gerrymandering jurisprudence by allowing racial gerrymanders to escape under the cover of partisanship. 

Beyond the categorical differences grounded in the Court’s precedent regulating the use of race at a higher level of judicial review than most other classifications, the Court has tried to manage the entanglement problem in two steps: first, by recognizing that all political districting processes are inherently race-conscious, as they are conscious of other demographic and community characteristics. Thus, the Court has distinguished between awareness of race and actions or policy decisions that use race in the sorting of people into different districts. The Court has held that it is the latter that violates the Constitution, not the former. 

Second, by requiring that racial considerations actually “predominate” other factors, the Court has drawn a line between impermissible consideration of race and other ordinary or “traditional” considerations such as compactness, contiguity, community boundaries, and so forth. It is notable that in the listing of such ordinary considerations that partisan political advantage is never mentioned or listed. And this is presumably not simply because a bare-faced partisan consideration is unseemly, but because it was not considered by the Court (at least in those decisions) as a regular or ordinary consideration in the districting processes. Nonetheless, the Court’s jurisprudence prompts an objective, factual inquiry into whether race was in fact used or not. 

Unfortunately, several demographic factors are converging in a way that makes it much more difficult—if not impossible—to delineate between race and partisanship as a consideration. First, political polarization appears to have increased in recent years. Second, political segregation is highly visible and becoming more pronounced as well. Third, racial political polarization has increased markedly in recent decades. The interaction of these three factors, on top of a fourth—the persistence of racial residential segregation—means that partisanship and race are highly correlated in a way that makes partisan districting largely and increasingly coterminous with racial districting. In simplified terms, “conjoined polarization” and racial residential segregation interact to create the conditions that entangle race and partisanship in political redistricting processes. 

That this is a practical problem is evidenced by the fact that many cases heard by the Supreme Court in recent years feature both claims, whereas that would have been anomalous even a few decades ago. With the Court shutting the door on partisan gerrymandering claims, it seems increasingly likely that suits designed to curb the excesses of partisan gerrymandering will be brought under the color of racial gerrymandering. Thus, the Court will eventually need to squarely confront and address this problem. 

One possible solution is to carve out an exemption for racial gerrymanders that appear to be largely or entirely based on partisan motives, as Justice O’Connor intimated in Vera, but to extend the exemption to cases in which the objective use of race clearly “predominates.” Under this approach, mapmakers would be permitted to use race in districting processes as long as their purpose was purely partisan. Under this approach, partisanship would be a complete defense to racial gerrymandering claims. 

This approach would solve the smaller problem of the difficulties lower courts confront disentangling race and partisan motivates, but it would leave intact the larger problem of allowing racial gerrymanders to persist under the cover of partisanship. To that extent, this is only a partial solution or non-solution, because it would potentially obliterate the racial gerrymandering claim and undermine the constitutional prohibition against the use of race in policymaking in many ordinary cases. Under a rule such as this, any egregiously racially segregated political district could be justified on the basis of mere partisanship. The obvious exception would be cases in which state legislatures are seeking to create “majority-minority” districts under the VRA, because those could not plausibly be defended on partisan-only grounds. This approach would clearly violate the Court’s prevailing anti-classification jurisprudence and the principles and spirit of Shaw and its progeny’s rules against permitting state legislatures to sort people into one district or another on the basis of race. 

A second possible solution would be to create an exemption in the opposite direction: a supplement could be drawn to the rule that partisan gerrymanders are non-justiciable if partisan purposes overlay or are essentially indistinguishable from racial considerations. In such a case, partisan gerrymanders could be swept into the racial gerrymandering line, even though it would be difficult or implausible to assert that race “predominates.” This is essentially the tack the Court appeared to take in Cooper v. Harris in its 2016 term, prior to the Court’s more recent decision that partisan gerrymanders are non-justiciable in Rucho.

The NAACP Legal Defense Fund’s president and director-counsel, Janai Nelson, has suggested an approach along these lines. The approach would shield against rearguard incursions into racial gerrymandering from the partisan direction. This option is most consistent with the Court’s anti-classification jurisprudence: any sorting or segregation of people into different political districts based on race violates the Constitution, even if it cannot be said that race “predominates.” This approach drives the presumptive rule against the use of racial classifications to its logical endpoint. 

Although requiring a tweak to the Court’s racially gerrymandering jurisprudence, the Court can easily justify the use of a threshold test less than “predominance” when two factors are so tightly entangled that “predominance” becomes nonsensical. In such cases it is either impossible for race to “predominate” because partisan considerations are co-extensive with race or, even if they are greater, it is because their correspondence renders the possibility of calculating predominance by disaggregating and weighing the relative influence of each factor or consideration impossible. 

A third possible solution to the entanglement problem is to reverse course on partisan gerrymanders and declare that they are justiciable. Aside from the unlikely chance that the Court will revisit, let alone reverse, it’s recent decision in Rucho, even if it were to do so, there remains the challenge of defining the standard upon which they can or should be reviewed. 

The most obvious and straightforward option is the predominance test—to inquire whether partisan considerations “predominate” over other ordinary districting considerations. In cases where race and partisanship are entangled, this could help solve the larger problem of allowing racial gerrymanders to escape under the cover of partisanship, but it does not actually solve the epistemological problem of how courts may distinguish between entangled factors or inputs. Thus, it would have the inverse effect of the first possibility, which is to help address the larger problem, but leave the smaller one intact. 

Moreover, this possibility remains only a partial solution to the larger problem. Even if the Supreme Court were to allow courts to review partisan gerrymandering claims, it is unlikely that such partisan gerrymanders would be reviewed at the exactingly high level of scrutiny as racial classifications are. Thus, there is still some risk present that racial gerrymanders will escape regulation in the guise of partisanship due to the gap in the standards of review.

This third option, however, although requiring a reversal of recent precedent, is at least more logically consistent with the idea that these are categorically distinct claims arising from different case law and constitutional concerns. It renders the entanglement problem less urgently in need of resolution since the more extreme partisan gerrymandering cases would be regulated through a parallel structure under (presumably) rational basis review. 

This approach has several other meritorious considerations in its favor, especially its potential grounding in various aspects of constitutional jurisprudence. Some versions of this approach, for example, naturally conform to the paradigm famously known as “Carolene Products footnote four.” This famous footnote in Constitutional Law maps neatly to the entanglement problem at issue in this Article. That is because at the heart of this footnote are issues of political process and racial equality and their interrelation, the same issues here. As the Court said in that famous footnote: 

It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation. . . . Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious, or national, or racial minorities; whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.

Carolene Products footnote four has been called a “paradigm” within equal protection jurisprudence on account of the fact that it provides a coherent and comprehensive roadmap for judicial review. It is not just that the footnote addresses one possible way of dealing with laws that affect access to the political process, like political redistricting does, but it also specifically deals with the intersection of race and political access: suggesting that laws which impede racial minorities access to the political process should be reviewed more closely. 

The Equal Protection Clause arguably provides a sufficient basis by itself for establishing a rule against partisan gerrymanders: they violate fundamental democratic principles such as those that motivated the Court to rule, in the early 1960s, that political districts should be of equal size. They violate majority rule—what Madison called the “fundamental principle of free government” in Federalist No. 58 and Hamilton called the “the fundamental maxim of republican government” in Federalist No. 22. Whether permitting a minority to entrench itself through the manipulation of district boundaries or by manipulating the number of voters in each district, the result can be the same and does violence to the principle of “one person, one vote” either way. 

A claim rooted in equal protection could narrowly assert that permitting extreme partisan gerrymanders would violate a person’s right to be treated equally by law or more broadly assert that it would also hinder access to both the political process and the ability to use that process to remedy unfair or unjust legislation. But even if the Equal Protection Clause itself, or some broader more synthetic reading of it, Carolene Products, or even related associational claims grounded in the First Amendment are part of the foundation for rendering partisan gerrymandering claims justiciable, there is another constitutional provision which has lain dormant but could be potentially enlisted to this cause: the Guarantee Clause. 

The Guarantee Clause requires the United States guarantee to the states a republican form of government. Although rarely invoked, the prevailing consensus is that this Clause requires majority rule and that representatives serving in state governments be selected by elections. In other words, it is a guarantee to the citizens of those states (and of the nation) that each state government must be republican in form. This clause might be the basis for challenges to features of various state governments that are anti- or un-democratic. In addition to a formal recognition of the problem of entanglement in the gerrymandering cases, a revival of the Guarantee Clause could provide an easily understandable basis for reversing or excepting Rucho.

The problem here is that Supreme Court precedent does not allowed federal courts to entertain claims brought under the Guarantee Clause, thus far. In 1849, and again in 1946, the Supreme Court ruled that claims under this clause are non-justiciable. Prominent and notable jurists, however, would have held otherwise. In his courageous and lonely dissent in Plessy v. Ferguson, the first Justice Harlan would not only have held that the segregative railway statute adopted by the state of Louisiana and reviewed in that case violated the Thirteenth and Fourteenth Amendments to the Constitution, but also the Guarantee Clause. As he explained: 

Such a system is inconsistent with the guaranty given by the constitution to each state of a republican form of government, and may be stricken down by congressional action, or by the courts in the discharge of their solemn duty to maintain the supreme law of the land, anything in the constitution or laws of any state to the contrary notwithstanding.

The aforementioned Supreme Court decisions, moreover, occurred prior to the Court’s ruling that districting cases are justiciable in Baker v. Carr. And in any event, these decisions cannot be based on the meaning of that clause as understood by its framers. 

Federalist No. 9 explains that the “principles” of republican governance are “now well understood,” and in addition to the fundamental majoritarian principle, they include: (1) “[t]he regular distribution of power into distinct departments”; (2) “the introduction of legislative balances and checks”; (3) “the institution of courts composed of judges holding their offices during good behavior”; and (4) “the representation of the people in the legislature by deputies of their own election.” 

Moreover, Federalist No. 39 dealt specifically with the meaning of republican government. As Madison explained there, “we may define a republic to be . . . a government which derives all of its powers directly or indirectly from the great body of the people; and is administered by persons holding their offices during pleasure for a limited period, or during good behaviour.” In other words, it is a government, in the words of Lincoln, “of, by, and for the people.” Madison goes onto explain that 

[i]t is essential to such a government, that it be derived from the great body of the society, not from an inconsiderable proportion, or a favored class of it; otherwise a handful of tyrannical nobles, exercising their oppressions by a delegation of their powers, might aspire to the rank of republicans, and claim for their government the honorable title of republic. 

Critics might note that, despite Madison and Hamilton’s declarations on the centrality of the principle of “majority rules,” they and their colleagues seemed unconcerned with the use of districting for partisan advantage in terms of either unequal size of districts or manipulation of lines, or else they would have argued against it (as they did against equal suffrage for states) or proposed or included provisions in the Constitution or in their respective roles in the federal government against it. In Part II, a number of possibilities were presented as to why Madison and Hamilton may not have introduced measures relating to this potential problem. A few more may now be considered.

First, any interpretative methodology assessing the Guarantee Clause would have to account for the fact that many categorical exclusions for voting existed at the time of the framing of the Constitution that are now prohibited, including those on the basis of sex, race, and class (through the Fifteenth, Nineteenth and Twenty-Fourth Amendments, respectively). Thus, there are textual reasons to “update” any originalist understanding of the Guarantee Clause based upon the text of the Constitution itself, as amended. After all, it has already been observed that the modern Supreme Court has repeatedly struck down districting plans with population disparities in percentage terms far less than those observed by Madison and Hamilton in The Federalist Papers. 

Second, the framers failed to anticipate the extent to which partisanship would manifest in the federal councils and the harmful effects thereof. There is no reason to believe that they should devise measures to address problems they lacked the foresight to see. And, by their own accounts, the precautions and safeguards that the framers believed would curtail the harmful effects of partisanship were based on assumptions and premises that proved fallacious or were quickly refuted by experience as political parties organized themselves in the federal councils. 

To be clear, the framers were well-aware of the problem of partisanship. Having observed it within the states and other republics, Alexander Hamilton referred to this problem as “the diseases of faction” and the “demon of faction,” and James Madison called it “mischiefs of faction” and the “rage of party.” What they underestimated was the degree to which political parties would become the primary organizing forces to frame political discourse and focus policy debate in the federal government. 

As Madison and Hamilton explained throughout The Federalist Papers, the framers believed that the size and diversity of peoples and interests represented in the national government would ameliorate the effects of faction as observed in the state governments. As Madison concluded in Federalist No. 10, the “variety of sects dispersed over the entire face of [the confederacy of states] must secure the national councils against any danger from that source.” Hamilton arrived at similar conclusions in Federalist Nos. 60 and 61, where he wrote that “a diversity of local circumstances, prejudices, and interests” would make it unlikely that a “predominant faction” would prefer a particular class of electors over another. Not only that, Hamilton felt that the diverse manner in which the various federal branches would be populated would safeguard against this problem, such that he concluded there is “little probability of a common interest to cement these different branches in a predilection for any particular class of electors.”

If at any moment the quantity of highly competitive national political parties had been greater and more numerous or if political parties had not acquired so much significance in organizing political interests at a national level, then this conclusion might have proven correct. But by the end of the first decade of the government’s operation under the Constitution, the problems of partisanship were already manifest to such an extent that it was one of the principal subjects of concern in George Washington’s 1796 Farewell Address. Far from leaving office assured with his good works and sanguine on the young nation’s prospects, he sounded an alarm. 

In this regard, any originalist argument would be incomplete without considering George Washington’s remarks in his Farewell Address, which were drafted with input from Hamilton and Madison, his top advisors. The degree to which they underestimated the corrosive effects of toxic partisanship—what they called the “baneful effects of the spirit of party”—is clear from the substance of the address.

Having observed the emergent dynamics of partisanship firsthand as the nation’s first chief executive, Washington expressed a deep-seated fear that political parties presented a danger to the stability of the young republic, and potentially an existential threat. The Senate Historical Office characterizes his remarks concerning the “dangers of parties in state” as reflecting the view that political parties “carried the seeds of the nation’s destruction through petty factionalism.” The remarks specify, in serial form, the harmful effects that flow from extreme partisanship. Among them:

• “It serves always to distract the public councils and enfeeble the public administration.”

• “It agitates the community with ill founded jealousies and false alarms,”

• “kindles the animosity of one part against another,”

• “foments occasionally riot and insurrection.”

• “It opens the door to foreign influence and corruption, which find a facilitated access to the government itself through the channels of party passions. Thus the policy and the will of one country are subjected to the policy and will of another.” 

If anything, the experience of the last few years amply illustrates these dangers, especially in the administration of President Donald Trump, which experienced arguably each of these effects, most obviously in the Ukraine scandal that led to the first impeachment, the interactions with Russian officials that led to the Mueller investigation, and the riot and insurrection at the Capitol on January 6, 2021. 

Extreme partisanship has fostered a visceral antipathy against the other party (what political scientists call “negative partisanship”) often for no other reason than the “animosity of one part against another,” such that even bipartisanship on broadly popular legislation (such as when Republicans in Congress voted for the 2021 infrastructure bill) is viewed within the faction as a violation of partisan solidarity. 

And, in the most extreme case, above all the previously listed concerns, Washington asserted that partisanship could lead to the “destruction of public liberty” in this way: 

The alternate domination of one faction over another, sharpened by the spirit of revenge natural to party dissension, which in different ages and countries has perpetrated the most horrid enormities, is itself a frightful despotism. But this leads at length to a more formal and permanent despotism. The disorders and miseries which result gradually incline the minds of men to seek security and repose in the absolute power of an individual; and sooner or later the chief of some prevailing faction, more able or more fortunate than his competitors, turns this disposition to the purposes of his own elevation on the ruins of public liberty.

Some political prognosticators and military leaders have warned that some version of this frightful vision might be realized in the aftermath of the 2024 election. 

Critically, however, Washington also characterized the dangers of extreme partisanship in geographic terms, which he called “the danger of parties in the state, with particular reference to the founding of them on geographical discriminations.” Although he may well have been referring to the sectional divide between the North and the South, the specific formulation is a perfect fit for the excesses of gerrymandering. It accurately characterizes the manifestation of partisanship through gerrymandering, which is a process of making geographic discriminations.

Whether a consequence of the framers’ underestimation of the ultimate role of political parties, the extent to which partisanship would infect the federal government, or some other reason, the Constitution itself is silent in regards to the problems posed by extreme forms of political districting. But that does not mean that the framers left the political community helpless, even in the absence of an explicit constitutional provision adopted to solve this problem. Provisions like the Guarantee Clause are open-textured specifically to empower that political community to address problems such as this, empowering both Congress and the courts to regulate such practices as partisan districting as circumstances may necessitate. 


Unlike the canonical and venerated document that it is regarded as today, the United States Constitution was recognized by its framers as a political experiment of uncertain prospects. To give the political community governed by it the flexibility to make it work in practice and tailor it to exigencies without violating its text or spirit, the framers provided an amendment process to correct for unforeseen flaws or circumstances and used terse, open-textured language amenable to varying shades of interpretations in enumerating certain powers, rights, or prohibitions. 

Nonetheless, the Constitution was chiefly designed to overcome the deficiencies of the Articles of Confederation and other problems that had plagued the young republic. Consequently, it is silent on many issues that subsequently bedeviled the nation governed by it in intervening centuries. Two notable examples that frustrated subsequent generations in the first half of the nineteenth century were the definition of national citizenship and its relationship to state citizenship, and in the latter half of the twentieth century and early twenty-first century, the issue of abortion. 

Because the original Constitution did not explicitly indicate how federal citizenship was defined or acquired, the Supreme Court ultimately decided the question of whether persons of African descent were or could become United States citizens, which it did in the most notorious case of Dred Scott v. Sandford. The Court’s decision was reversed by opening line of the Fourteenth Amendment. Similarly, the issue of abortion has proven to be highly divisive and one of the most deeply contested legal matters of the last fifty years. Advocates and jurists often look beyond the explicit text to the structure of the Constitution and the history and traditions of the republic at certain points in time to try to resolve these matters.

Unfortunately, extreme manipulation of political districting processes is another issue upon which the Constitution remains explicitly silent. This does not mean federal officials are powerless to address it. Constitutional text provides indirect solutions, such as the affirmative powers afforded Congress under the Elections Clause to “make or alter” the laws for elections to the federal legislature and implicit protections made by inferences drawn from other provisions, such as the Equal Protection Clause. Nonetheless, as a result of the lack of constitutional specificity regarding this issue, certain problems generated by this underlying phenomenon are treated differently, depending on the circumstances, the class of persons most affected, or the form of the districting problem. 

This Article focuses on the problem of the entanglement of race and partisanship in the judicial review of gerrymandering claims. It conducts a brief history of gerrymandering, examines the divergent lines of cases, reveals the factors that contribute to the growing problem of gerrymandering, including the relationship between political segregation and racial residential segregation, and closes with a survey of possible solutions grounded in the constitutional text and structure. 

Although Congress could potentially pass laws curbing gerrymandering in the states, and would have the authority to do so under Article I, Section 4, the core of the problem of gerrymandering is that it violates what Madison called the “fundamental principle of free government”—that of majority rule, and therefore should be within the cognizance of the Constitution, not ordinary legislation, to resolve. This is true even though the Constitution is silent on it, an omission that is adequately compensated for by the applicability of indirect provisions that the framers included such as the Guarantee Clause and subsequent Amendments, most notably the Fourteenth, requiring equal protection of the law. 

Blame for underestimating the rise of political parties and the harmful effects of extreme partisanship cannot be entirely placed on insufficient foresight of the framers. A number of developments have contributed to the intensity of political partisanship in the federal government, including the enlargement of the sphere of national politics, the evolution of the information and media environment, and technological developments. 

There is no way that the framers could have fully anticipated the extremities toward which political districting processes designed for partisan purposes might distort many of the principles of representative government that they sought to institutionalize. In particular, they could not have anticipated the development of modern technological tools such as computer databases and programs such as Geographic Information System (“GIS”) technology that would easily permit state legislators to essentially select their voters rather than the other way around. But the framers’ insufficient foresight does not leave us helpless.

Whether the remedy lies in an act of Congress or the courts applying a synthetic reading of the Constitution as a whole, Carolene Products footnote four, the Guarantee Clause, or a novel reading of the Equal Protection Clause, partisan gerrymandering is a problem for our health of democracy that requires resolution. It is a problem in its own right because it undermines the values and foundation of the republic, and because it causes and results in the racial segregation of voters in clear violation of the Constitution without necessarily running afoul of the standards established by the Supreme Court to secure those protections. 



96 S. Cal. L. Rev. 301


* Stephen Menendian is the Assistant Director at the Othering and Belonging Institute at University of California, Berkeley. The author would like to thank john powell and Dan Tokaji for their insights on this critical issue, Chris Elmendorf and Joshua Clark for their invaluable expert feedback on drafts of this Article, Samir Gambhir and Peter Mattingly for their contributions to the underlying research regarding segregation and assistance in developing the maps and scatterplots, Wenqi (Michael) Xu, Sara Osman, and Yemaj Sheik for their general research and citation assistance.