Individual lawyers and firms alike vow increased pro bono resources to support people with women's health challenges.
Responses to Friday’s overturning of Roe v. Wade from lawyers at top law firms continue to gather momentum, yet much of the reaction is coming from individual lawyers rather than law firms themselves.
In particular, hundreds of women attorneys have collected together to show their indignation over the ruling and their resolve to keep women’s productive rights alive in the United States.
Jennifer Kennedy Park, a partner at Cleary Gottlieb Steen & Hamilton in New York, was among a group of women who put together a statement by women law partners on Dobbs v. Jackson Women’s Health Organization, condemning the decision.
“Each of the undersigned has the great honor and privilege of being members of the bar. We swore oaths to support and defend the Constitution. We take that oath seriously. We know that our ability to serve in the legal profession and swear that oath was hard fought and rests fundamentally on the premise and promise that we, as women and people who have or had the potential to become pregnant, are free and equal citizens under the law,” the women wrote. “And our presence and leadership within the bar is without question a byproduct of the freedom each of us has had to make reproductive decisions for ourselves.”
Park said Monday afternoon that the number of signatories is over 800. She noted those signatures were collected by “word of mouth” in less than 24 hours.
“We cannot let that failure stand,” the women wrote of the decision. “As lawyers, and officers of the courts, we know we have unique abilities and responsibilities in the wake of this decision. To honor that responsibility and our oath to support the Constitution, we each commit ourselves to offering our pro bono legal services to organizations that defend and support women’s rights to autonomy, equality and safe access to reproductive care, including abortion.”
“Each of us, as women partners at major law firms, have that privilege because we have each had reproductive freedom,” Park said in an interview. “So, how could we not have spoken out and committed ourselves to action? I hope that the community sees that we’re ready—despite what is an incredibly egregious decision—to fight. We have called for others to join the fight with us, and they have responded in turn.”
Claudia Hammerman, a partner at Paul, Weiss, Rifkind, Wharton & Garrison, was also one of the organizers of the letter.
“I had an abortion as a young woman, and have never regretted it,” said Hammerman, adding that she knows “for a certainty” that her abortion allowed her to chart her own life, and to eventually become a partner at a premier law firm. “It also allowed me to become a parent at a time when I knew I would have the resources—economic and emotional—to be the best parent that I could be.”
Hammerman said there is ”simply no question”—from the conversations that she has had with other women lawyers—that the ranks of women equity partners would be “severely depleted” had women not had access to safe and legal abortion in the event of an unintended pregnancy.
Another organizer of the statement, Debevoise & Plimpton partner Shannon Rose Selden, said women who signed the open letter are taking a risk by voicing their views.
“We all realize that it is not riskless to come out and take a stand on this issue—especially in the world of social media—but we think that it is important,” said Selden, adding that while there has been a “universal call” for greater diversity within the legal profession, the legal community has not always recognized how crucial reproductive freedom is to the inclusion of women in law, or any other profession.
Jamie Levitt, a managing partner of Morrison & Foerster’s New York office who also helped organize the statement, said it was a privilege to join forces with other law firm partners to make a public statement of commitment to fight for reproductive justice, and to call others to join.
“The research is clear and overwhelming that the ability to decide if and when to have or expand a family is fundamental to women’s success and equal status in society as well as their personal autonomy,” said Levitt, the daughter of a physician who practiced before Roe v. Wade and saw “first-hand” how the criminalization of abortion harms women. “Women will not stop having abortions, they will just lose access to safe abortions. I have fought for reproductive rights in my pro bono work for decades, including as counsel on the Texas SB8 litigation, and served as a member of the Board of the Center for Reproductive Rights. And after Dobbs, I will redouble my efforts.”
In an earlier copy of the statement seen by The American Lawyer, dozens of lawyers from leading firms attached their name and endorsement, including at least 15 lawyers from Cleary; 35 from Paul, Weiss, Rifkind, Wharton & Garrison; 22 from White & Case, one from Baker & McKenzie; 24 from Sullivan & Cromwell; 22 from White & Case; 26 from Debevoise & Plimpton; seven from Clifford Chance US; three from Cravath, Swaine & Moore; eight from Frankfurt Kurnit Klein; six from Gibson, Dunn & Crutcher; two from Hogan Lovells; two from Holland & Knight; 44 from Jenner & Block; 15 from K&L Gates; two from Kirkland & Ellis; one from Latham & Watkins; one from Manatt, Phelps & Phillips; two from Mayer Brown; 36 from McDermott Will & Emery; 40 from Morrison & Foerster; two from Orrick Herrington & Sutcliffe; three from Seyfarth Shaw; 20 from Shearman & Sterling; two from Sidley Austin; 28 from Simpson Thacher & Bartlett; 31 from Skadden, Arps, Slate, Meagher & Flom; 11 from Wachtell, Lipton, Rosen & Katz; and 44 from Wilmer Cutler Pickering Hale and Dorr.
Beyond the statement from the 800+ lawyers, other lawyers have also voiced their intent to provide pro bono services for people facing women’s health challenges.
A spokesperson for Ropes & Gray told The American Lawyer that on Friday, the firm had more than 265 people sign up for pro bono opportunities, and he expected more to do so over the weekend.
Ropes chair Julie Jones was one of several female firm leaders who were quick to make internal statements to their colleagues about the decision in emails and memos sent firmwide. Jones expressed feelings of vulnerability as a woman and fear for the country as a whole. Kim Koopersmith, chair of Akin Gump Strauss Hauer & Feld, offered her “understanding to those of you who are feeling profound distress in the loss of a right that has been recognized as fundamental for a half-century.” Morgan Lewis & Bockius chair Jami McKeon acknowledged there will likely be “polarized” views of the Dobbs decision, as well as “more nuanced views of the role of elected officials and the courts in restricting access to abortion.” Steptoe & Johnson chair Gwen Renigar gave the firm’s lawyers and business professionals the day off Friday, to reflect.
Few Firms Make Public Statements
While many individual lawyers have spoken up, few firms or firm leaders have made public statements on Dobbs.
There is a variety of reasons firms might not be issuing public statements. Many Big Law firms have offices in jurisdictions where their collective views might be unpopular, such as Texas, said the practice head of one Am Law 100 firm. The firms may also be wary of alienating clients that are pro life.
The practice head noted that while firms might not be making specific public statements, the 23 firms who have joined the San Francisco alliance have ostensibly made their feelings known on the public stage.
One Big Law chair who has made a statement on behalf of his firm was Larren Nashelsky of Morrison & Foerster.
“The Supreme Court’s opinion in Dobbs v. Jackson Women’s Health Organization today struck down 50 years of precedent that we, on behalf of our clients, have fought to defend,” said Nashelsky in a statement, adding that Morrison & Foerster has worked “tirelessly” to protect women’s health care rights, including a woman’s fundamental right to choose when, and whether, to have children.
Last month, after a draft opinion in Dobbs leaked, Nashelsky promised that Morrison & Foerster would “redouble” its efforts to protect abortion and other reproductive rights.
“We honor that promise today,” wrote Nashelsky, adding that over the last few weeks, the firm had joined new initiatives to protect reproductive freedom, and to defend health care providers and others who are targeted for helping women obtain reproductive services. “We will continue to marshal the time, talent, and resources zealously to advocate for our clients and their cause.”
“I know so many of us are angry, upset, despondent, deeply troubled and, frankly, scared of what this means for women choosing to obtain reproductive services and all others affected by today’s decision,” wrote Nashelsky. “There are no easy answers today—just the need to keep fighting to protect the liberty and autonomy of women. Morrison & Foerster proudly remains on the front lines.”
Morrison & Foerster was one of 23 original signatories to an initiative aimed at providing free legal services to those who will be affected if Roe v. Wade were to be struck down by the U.S. Supreme Court. The alliance is led by San Francisco city attorney David Chiu and supported by the San Francisco Bar Association. Other founding firms include Arnold & Porter Kaye Scholer; Crowell & Moring; Orrick Herrington & Sutcliffe; Paul, Weiss, Rifkind, Wharton & Garrison; and Willkie Farr & Gallagher.
Monday the board of directors of Cooley, publicly expressed their “shared commitment” to gender equality and principles of diversity, equity and inclusion, and to fighting for reproductive rights.
“The issues addressed in reproductive rights cases are indivisible from our values as a firm, as demonstrated by the spectrum of our pro bono work, which seeks to protect the rule of law, facilitate access to justice, and prevent disparate impacts on underrepresented communities,” wrote the Cooley board. “We respect that there are a range of personal beliefs around these issues. Yet we must acknowledge this rollback of rights and protections that have existed for decades and that affect so many of our colleagues. Concerns that impact any of us affect all of us. We have the utmost faith in our ability to support one another, through all our differences, with compassion, understanding and care.”
Local Alliances Pledge National Support
As news of the Dobbs decision spread around the legal community, San Francisco Bar Association president Mary McNamara members were “prepared to fight.”
“We are ready to defend access to reproductive healthcare and protect those in need of legal assistance. Dobbs not only reverses nearly 50 years of precedent, it empowers the cruelest, most barbarous treatment of women imaginable. Women will be imprisoned, their health will suffer, their families will be impoverished. Some will die. This is a nationwide crisis,” said McNamara.
Arnold & Porter partner Teresa Johnson, who is heavily involved in the alliance, said the alliance will work closely with organizations such as Planned Parenthood, the Center for Reproductive Rights and national advocates for pregnant women, who will likely be the first call for people needing help.
“We’re all keenly aware that the people who are going to be most adversely affected by this ruling are members of underrepresented communities, of minorities, and people with limited means—magnifying the tragedy of all of this,” she said.
On Friday, a Fenwick & West spokesperson said it too had joined the alliance, as well as one in New York.
The Fenwick spokesperson said “we have received a big response from Fenwickians about the opinion and many partners and firm leadership have sent messages expressing support and concern for our firm community reeling from the decision and its potential impact.”
The firm’s diversity, equity and inclusion team Friday facilitated small virtual gatherings to create a “safe space to discuss and share their thoughts and feelings” about the ruling.
“We are encouraging people to reach out to our Women’s Caucus to share ideas and to find support and community,” said the spokesperson.
Fenwick is also working with the Center for Reproductive Rights to accept cases brought against women’s health clinicians or clinics under the Texas Heartbeat Act (Texas SB 8), which outlaws abortion after six weeks of pregnancy and is enforced by civil lawsuits brought by private citizens.
A spokesperson for another founding member of the San Francisco-based alliance, Farella Braun + Martel, said the firm “stands in solidarity” with those who support a woman’s right to choose.
“As lawyers, we will do our part to fight in the courts to see that this ruling is reversed,” said the spokesperson.
Keker, Van Nest & Peters managing partner Steve Taylor said his firm has not only joined the San Francisco alliance, but had also filed an amicus brief in the Dobbs case, representing more than 150 economists and researchers to show the Court how causal-inference tools have been used to isolate and measure the impacts of abortion legalization in the U.S., and to model what would happen if Roe were overturned or limited.
“As a firm, we will continue to fight for safe, accessible reproductive healthcare,” said Taylor.
A group of students at George Washington University wants U.S. Supreme Court Justice Clarence Thomas banned from teaching at the law school following Friday’s ruling overturning Roe v. Wade.
As of Tuesday afternoon, more than 6,000 had signed the petition within the first two days of it being posted on Change.org.
The petition states: “With the recent Supreme Court decision that has stripped the right to bodily autonomy of people with wombs, and with his explicit intention to further strip the rights of queer people and remove the ability for people to practice safe sex without fear of pregnancy, it is evident that the employment of Clarence Thomas at George Washington University is completely unacceptable.”
“While also factoring in his wife’s part in the attempted coup in January of 2021, Judge Thomas is actively making life unsafe for thousands of students on our campus (not to mention thousands of campuses across the country),” the petition, started by Jon Kay, a rising junior majoring in international affairs and philosophy at GWU, states.
Thomas, who is a professorial lecturer in law at GW Law and has taught at the school since 2011, joined the conservative 5-4 majority opinion in Friday’s ruling in Dobbs v. Jackson Women’s Health Organization.
An email to the GW community from Christopher Alan Bracey, provost and executive vice president for academic affairs and professor of law, and Dayna Bowen Matthew, dean and and Harold H. Greene professor of law, was provided to Law.com late Tuesday afternoon.
It addresses requests “from some members of the university and external communities that the university terminate its employment of Adjunct Professor and Supreme Court Justice Clarence Thomas and cancel the Constitutional Law Seminar that he teaches at the Law School.”
“Justice Thomas has been a consistent critic of the Court’s legal philosophy on substantive due process for many years,” the email states. “Because we steadfastly support the robust exchange of ideas and deliberation, and because debate is an essential part of our university’s academic and educational mission to train future leaders who are prepared to address the world’s most urgent problems, the university will neither terminate Justice Thomas’ employment nor cancel his class in response to his legal opinions.”
While Thomas’ views do not represent the views of GW University nor its law school, “like all faculty members at our university, Justice Thomas has academic freedom and freedom of expression and inquiry,” the email states, adding that “we affirm the right of all members of our community to voice their opinions and contribute to the critical discussions that are foundational to our academic mission.”
On Tuesday, Kay posted an update to the petition about “next steps,” urging people to sign the petition and to send an email to GWU Dean Dayna Bowen Matthew, with a template provided, urging her to “terminate Professorial Lecturer and Supreme Court Justice Clarence Thomas from GW Law School” because he is “enemy of the human rights and freedoms we have as Americans.”
The email template closes by saying that Thomas grossly misrepresents GWU’s values.
Matthew said in an email to the GW Law community that the law school would be hosting discussions in the coming weeks regarding the reversal of Roe, as well as rulings in two other cases that involved gun rights and religious freedom, according to an article in The GW Hatchet posted Monday evening.
“This is a time when GW Law may distinguish ourselves among all other law school communities by the way that we approach having difficult conversations and act constructively to preserve the rule of law and our democracy,” Matthew said in the email, according to the article.
Several of those who signed the petition listed reasons for doing so.
“Because this isn’t right. We are not moving backwards!” read one comment.
“Justice Thomas can’t be trusted to be an unbiased and objective professor if he believes his female and queer students should have fewer rights than his straight, male students,” said another.
But the petition has also attracted its share of on-campus critics.
A press release sent on behalf of John F. Banzhaf III, professor emeritus of public interest law at GW Law, said the petition represents the “ultimate cancel culture demand.”
“These sound like the same students who signed a petition asking their GW university to ban the stick figure used on lighted crosswalk signs on campus because they feel ‘oppressed’ because the figure appears to be that of a white man telling them what to do,” the release said.
Banzhaf’s release also quoted the GW College Republicans as stating: “One of the principal assets of our school is learning from figures across the ideological spectrum. [T]he free exchange of ideas and opinions should be valued—not discouraged—at an institution of higher learning like ours.”
According to Banzhaf’s release, “while there have been many other situations in which students have demanded that a professor be relieved of all his teaching duties because some disagreed with his views, this may well be the first time that students want to stop a Supreme Court justice from agreeing to teach at a law school.”
Similarly, Jonathan Turley, Shapiro Chair for Public Interest Law at GW Law, wrote on Twitter that the petition is “a continuation of the enforced orthodoxy now all too common on our campuses where Thomas has long been a source of personal and offensive attacks.”
The D.C. Circuit on Friday delivered two wins to the U.S. Drug Enforcement Administration, tossing a pair of related appeals brought by a hemp industry group challenging the agency's authority to regulate aspects of the federally legal crop.
In the first decision, U.S. Circuit Judge Laurence Silberman accused petitioners Hemp Industries Association and its member RE Botanicals Inc. of having brought "a rather weak case" against the DEA's interim final rule governing hemp by failing to demonstrate how the policy had injured them.
Judge Silberman wrote that the petitioners had not shown that the 2020 interim final rule at issue was more severe than the 2018 statute legalizing hemp nationwide, which the rule was written to implement.
"Although Petitioners' opening brief suggests that the language of the implementing regulation is different from the language of the statute, they never explain the significance in their view of the textual difference nor why the textual difference causes them injury," he wrote for the court. "There is simply the claim that the regulation increases DEA authority over what the statute contemplates."
In the 2020 interim final rule at issue in the appeals, the DEA said any hemp derivative would still be considered a Schedule I substance if it went over the legal limit of psychoactive THC.
The problem for the hemp industry, the petitioners and other stakeholders have argued, is that the process by which hemp is turned into CBD for consumer products creates waste and intermediate-stage material that exceed the 0.3% Delta-9-THC limit, becoming so-called "hot" hemp product that could put industry players in the crosshairs of DEA enforcement.
Judge Silberman noted that counsel for the government said at oral arguments that the DEA's rule was not intended to be more onerous than the statute legalizing hemp, and the petitioners therefore could not show an injury.
"Petitioners' primary argument is simply pushing on an open door because there is no dispute with the government," he wrote. "In other words, jurisdiction is absent — over the major issue — not just because Petitioners lack injury, but also because we do not even have before us a case or controversy."
In a second decision dismissing a parallel appeal focusing on the hemp-extraction prongs of the DEA rule, U.S. Circuit Judge Karen Henderson wrote that the petitioners had also failed to show that they were directly injured by the DEA's policy toward waste and intermediate-stage material.
"Neither the Plaintiffs nor the DEA asserts that the agency is currently undertaking or has undertaken an enforcement action against the Plaintiffs' possession or manufacture of hemp byproducts," Judge Henderson wrote for the court. "Meaning that the Plaintiffs' challenge is therefore grounded in the alleged threat of enforcement."
Shawn Hauser, an attorney for the hemp parties, told Law360, "We disagree with the opinions, which highlight the confusing nature of these laws. We are evaluating next steps."
A spokesperson for the DEA did not immediately respond to requests for comment Friday.
The appeals were argued before U.S. Circuit Judges Karen Henderson, Judith Rogers and Laurence Silberman for the D.C. Circuit.
Hemp Industries Association and RE Botanicals are represented by Matthew Zorn of Yetter Coleman LLP and Shane Pennington, Shawn Hauser and David Kramer of Vicente Sederberg LLP.
The DEA is represented by Mark B. Stern and Sarah Carroll of the U.S. Department of Justice's Civil Division.
The cases are Hemp Industries Association, et al. v. U.S. Drug Enforcement Administration, et al., case no. 20-1376, and Hemp Industries Association, et al. v. U.S. Drug Enforcement Administration, et al., case no. 21-5111, in the U.S. Court of Appeals for the District of Columbia Circuit.
A 1982 Maine law excluding religious schools from a rural-area, public school tuition payment program is unconstitutional, a divided U.S. Supreme Court ruled on Tuesday.
In an opinion by Chief Justice John Roberts Jr., the court’s conservative majority continued its expansive view of the demands of the First Amendment’s free exercise clause on government funding programs. Five of the six conservative justices attended religious schools.
“Maine’s ‘nonsectarian’ requirement for its otherwise generally available tuition assistance payments violates the Free Exercise Clause of the First Amendment,” Roberts wrote. “Regardless of how the benefit and restriction are described, the program operates to identify and exclude otherwise eligible schools on the basis of their religious exercise.”
Justice Stephen Breyer, joined by Justices Sonia Sotomayor and Elena Kagan, in a dissent wrote: “Maine wishes to provide children within the state with a secular, public education. This wish embodies, in significant part, the constitutional need to avoid spending public money to support what is essentially the teaching and practice of religion. That need is reinforced by the fact that we are today a nation of more than 330 million people who ascribe to over 100 different religions. In that context, state neutrality with respect to religion is particularly important.”
Because of its rural nature, some areas of Maine are unable to provide K-12 public schools. In order to fill the gaps, the state offers two options to local school administrative units: Contract with another public or approved private school for some or all of its students or pay tuition for their students at another public school or “the approved private school of the parent’s choice at which the student is accepted.”
The tuition payment program only includes nonsectarian schools—schools that do not inculcate students with a particular religious faith and that will provide a roughly equivalent secular public education.
The Institute for Justice challenged the Maine law on behalf of two families who wanted to send their children to religious schools. Their challenge followed the justices’ 2017 decision in Trinity Lutheran v. Comer in which the court held that the free exercise clause was violated by Missouri’s refusal to allow a church school to participate in its grant program for resurfacing playgrounds.
In the Maine lawsuit, a panel of the U.S. Court of Appeals for the First Circuit, which included retired Justice David Souter, upheld the state law because of the justices’ distinction in Trinity Lutheran between religious status and religious use. In Trinity Lutheran, exclusion of the church was discrimination based on religious status. The First Circuit said, and Maine had argued, that religious schools could participate in the tuition program as long as they provided a non-sectarian, public school education. They said that was exclusion based on religious use, not status.
In a 2019 decision, Espinoza v. Montana Dept. of Revenue, the court again found a First Amendment violation based on religious status discrimination. Justice Neil Gorsuch, in a concurring decision, said he found it difficult to make a distinction between religious status and religious use.
In two-hour arguments on Dec. 8 in Carson v. Makin, the two families, represented by Michael Bindas of the Institute for Justice, argued that Maine’s program discriminated against religion in violation of the First Amendment establishment and free exercise clauses, as well as the 14th Amendment.
Bindas argued that religious schools were allowed to participate for more than a century until 1980 when Maine reversed course based on an erroneous reading of the establishment clause. “Here you are forced to make a choice: You can get the benefit (tuition payments) or you can exercise your free exercise right. You can’t do both,” he said.
Maine Chief Deputy Attorney General Christopher Taub argued that a free public education was the benefit at issue. “The reason that schools that promote a particular faith are not eligible to participate is simple,” he said. “Maine has determined that, as a matter of public policy, public education should be religiously neutral. This is entirely consistent with this court’s holdings that public schools must not inculcate religion and should instead promote tolerance of divergent religious views.”
Supporting Maine, Deputy U.S. Solicitor General Malcolm Stewart argued that the government has far greater latitude when it simply declines to fund particular speech than when it imposes barriers to that speech or exercise.
Friday's decision overturning Roe. v. Wade raised concerns that decisions allowing privacy, birth control and same-sex marriage could be next.
While the future for many women seeking abortions in a post-Roe nation looks grim, it is the future of other constitutional rights sharing a foundation similar to the now-revoked abortion right that provoked sharp disagreements among the justices in Friday’s abortion ruling.
What about cases like Griswold v. Connecticut (right of married persons to obtain contraceptives), Lawrence v. Texas ( right to engage in private, consensual sexual acts) and Obergefell v. Hodges (right to same-sex marriage)?
Justice Samuel Alito Jr., writing for the 6-3 majority, answered that abortion is unique and nothing in the opinion should cast doubt on precedents that don’t concern abortion. “Scout’s Honor,” replied the incredulous dissenter from Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan.
During arguments in Dobbs v. Jackson Women’s Health Center in November, U.S. Solicitor General Elizabeth Prelogar warned that overruling Roe v. Wade would threaten the protection of other rights under the due process clause of the Fourteenth Amendment.
Countering that warning, Alito explained, “rights regarding contraception and same-sex relationships are inherently different from the right to abortion because the latter (as we have stressed) uniquely involves what Roe and Casey termed ‘potential life.’”
Because of that difference, he added, “a right to abortion cannot be justified by a purported analogy to the rights recognized in those other cases or by ‘appeals to a broader right to autonomy.’ It is hard to see how we could be clearer.”
But the majority opinion contends there is no Fourteenth Amendment liberty interest in abortion because “and only because” the law offered no protection to the woman’s choice in the 19th century, the dissenters begin their rebuttal of Alito’s reassurance.
“But here is the rub,” the dissenters continued. “The law also did not then (and would not for ages) protect a wealth of other things. It did not protect the rights recognized in Lawrence and Obergefell to same-sex intimacy and marriage. It did not protect the right recognized in Loving to marry across racial lines. It did not protect the right recognized in Griswold to contraceptive use. For that matter, it did not protect the right recognized in Skinner v. Oklahoma ex rel. Williamson. not to be sterilized without consent. So if the majority is right in its legal analysis, all those decisions were wrong, and all those matters properly belong to the states, too—whatever the particular state interests involved. And if that is true, it is impossible to understand (as a matter of logic and principle) how the majority can say that its opinion today does not threaten—does not even ‘undermine’—any number of other constitutional rights.”
And it also doesn’t help, they added, to take the majority at its word “Scout’s honor.” Still, the future significance of today’s opinion will be decided in the future. And law often has a way of evolving without regard to original intentions—a way of actually following where logic leads, rather than tolerating hard-to-explain lines.
The only justice willing to state clearly what he would do if faced with challenges to those “other rights” was Justice Clarence Thomas in his concurring opinion.
Thomas has long railed against the court’s recognition of a substantive due process component of the Fourteenth Amendment—the basis for Roe, Griswold, Lawrence and Obergefell.
Substantive due process, Thomas has written, is an “oxymoron” without any basis in the Constitution. The due process clause guarantees “at most” process. “It does not, as the court’s substantive due process cases suppose,” forbid government from infringing to certain ‘fundamental’ liberty interests at all, no matter what process is provided.”
Resolving the Dobbs abortion case, Thomas said, was straightforward “because the Due Process Clause does not secure any substantive rights, it does not secure a right to abortion.”
However, Thomas added, abortion cases are “unique,” and no party in Dobbs had asked the court to reconsider its entire substantive due process jurisprudence.
“For that reason, in future cases, we should reconsider all of this court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” Thomas wrote. “ Because any substantive due process decision is ‘demonstrably erroneous,” we have a duty to ‘correct the error’ established in those precedents. After overruling these demonstrably erroneous decisions, the question would remain whether other constitutional provisions guarantee the myriad rights that our substantive due process cases have generated.”
Like the court, some scholars disagree on what the abortion decision portends for those other rights.
The opinion provides the foundation for taking away other fundamental rights the court has long protected, said Elizabeth Wydra, president of the Constitutional Accountability Center. “Abortion rights might be the unenumerated rights that fall in this particular opinion, but other essential rights—including the right to marry or to access birth control—hang by a thread as well. As the joint dissent by Justices Breyer, Kagan and Sotomayor says, ‘no one should be confident that this majority is done with its work. The right Roe and Casey recognized does not stand alone.’”
But Alan White of the American Enterprise Institute called “false” the assertion that abandoning Roe would require abandoning other precedents. “Roe was an extraordinarily weak Supreme Court opinion, and it should never have been the benchmark for ‘stare decisis’ itself,” he said.
Illinois’ top education official asks schools to stop working with police to ticket students for misbehavior
At Bloom Trail High School in Chicago’s south suburbs, the student body is diverse: About 60% of the 1,100 students are Black or multiracial. Another 27% are Latino. And 12% are white.
But when you look at the group of students who get ticketed for misbehavior at school, the diversity vanishes.
Police, in cooperation with school officials, have written 178 tickets at the school in Steger since the start of the 2018-19 school year. School district records show that six went to Latino students. Five went to white students. And 167 went to Black or multiracial students — 94% of the total.
Such racial disparities in ticketing are part of a pattern at schools across the state, an investigation by ProPublica and the Chicago Tribune has found. In the schools and districts examined, an analysis indicated that Black students were twice as likely to be ticketed as their white peers.
Reporters set out to analyze police ticketing in nearly 200 districts throughout Illinois, which together enroll most of the state’s high school students. Most local officials either did not specify race on tickets or refused to provide the information, but the news organizations obtained documentation of the race of students for about 4,000 tickets issued at schools in 68 districts.
After excluding places where ticketing was rare, schools in 42 districts remained, representing more than one-fifth of the state’s high school students. The analysis found that about 9% of those students are Black but nearly 20% of tickets went to Black students.
Analyzing tickets received by members of other racial or ethnic groups is more difficult, in part because the Tribune and ProPublica identified anomalies in the way school districts and police recorded information about white and Latino students. But students in those groups don’t appear to have been ticketed at high rates compared to their share of school enrollment.
Student ticketing in Illinois, or any other state, has never been examined on this scale. In fact, while Illinois officials have focused on whether schools are suspending or expelling Black students in unequal ways, they have not monitored police ticketing at schools. Neither has the division of the U.S. Department of Education that oversees civil rights issues.
The first installment of the Tribune-ProPublica investigation “The Price Kids Pay” detailed how student ticketing flouts a state law meant to prevent schools from using fines to discipline students. The investigation, which was based on school and municipal records from across the state, documented at least 11,800 tickets during the past three school years. It found that schools often involve police in minor incidents, resulting in harsh fines, debt for students and families and records that can follow children into adulthood.
In response, Illinois’ top education official told school leaders to “immediately stop and consider both the cost and the consequences of these fines,” and Gov. J.B. Pritzker said conversations already were underway with legislators “to make sure that this doesn’t happen anywhere in the state of Illinois.”
Illinois lawmakers tried in the past to pass legislation that would require school districts to collect and share student race and ethnicity data compiled by police when they intervene at schools for all types of disciplinary reasons, including such minor offenses as tobacco possession, tardiness or insubordination. But those efforts have stalled.
House Speaker Emanuel “Chris” Welch, a Democrat, said the legislature should take action if school ticketing is harming students.
“If these tickets are being issued disproportionately to people of color, we need to address that. That can create larger problems for students of color, problems that we’ve become accustomed to for far too long,” Welch said in an interview.
The U.S. Department of Education collects data nationally in alternate years about the race of students referred to and arrested by police. But it didn’t do so during the 2019-20 school year, when in-person learning was interrupted by the pandemic. In 2017-18, the most recent year data was collected, Illinois stood out for the gap between the percentage of students who are Black and the percentage of students referred to the police who are Black. No other state had a bigger disparity.
In response to similar data on expulsions and suspensions, the state last fall put a group of districts including Bloom Township High School District 206 on notice to reform how they handle discipline.
In an emailed response to reporters’ questions, district officials said they were concerned about the racial disparities in ticketing identified at Bloom Trail. The district’s response asserted that Black students and white students receive the same consequences for the same offenses and that the school has been affected by “a rise in violent crime and gang activity” in the communities the school serves.
Officials at Bloom Trail, which employs security guards to work inside the school, call Steger police when there is a fight that school officials think warrants a citation. Police bring the students’ tickets to the school, and officials give them to the students or their parents.
Greg Horak, Bloom Township’s director of climate, described the citations as a supplement to school discipline. “Dealing with the police, we hope this shows parents that this is a very serious situation,” Horak said in an interview.
Rodney and Elizabeth Posley, whose sons Josiah and Jeremiah attend Bloom Trail, didn’t realize students could get ticketed by police until it happened to their children in the fall. They said the boys were treated too harshly after they were part of a school fight that got out of hand.
The brothers were suspended and ticketed for disorderly conduct, and one was threatened with expulsion — extreme measures, Elizabeth Posley said, for teenage mistakes. The Posleys enlisted the help of a lawyer, their church and school employees to advocate for their sons, noting that neither boy had been in trouble at school before and the younger of the two receives special education services.
“They’re young Black men. They stereotyped them,” said Elizabeth Posley, who works as a pretrial officer at the Cook County Circuit Court. “They’re not into gangs, where they’re tough and they’re bad. We pray as a family.”
Last fall, during his freshman year at Bradley-Bourbonnais Community High School, southwest of Chicago, a 14-year-old Black student named Isaiah felt like school employees were closely watching him. Then an administrator reported him to Bradley village police after catching a glimpse of another student handing Isaiah a vaping device in a bathroom.
At the high school, which is patrolled by 10 security guards and a police officer, 10% of students are Black. But Black students received 21% of the 137 tickets written there from the start of the 2018-19 school year through the end of October. White students, who make up more than 68% of enrollment, got 60% of the tickets.
In Bradley, as in many other Illinois communities, students ticketed in schools are funneled into quasi-judicial hearings designed for adults and overseen by the local municipality. At the hearing for Isaiah’s ticket at Bradley’s village hall in November, the hearing officer asked Isaiah to “admit” or “deny” that he had a vaping device at school. Isaiah’s mom encouraged him to say “deny” so the hearing officer would allow him to describe what led to the ticket.
Isaiah explained that he had immediately handed the vaping device back to his friend. He said he had been searched by administrators — including being made to remove his socks and shoes — and no device was found.
The hearing officer found Isaiah not liable for possession of an electronic vaping device — a rare vindication in a ticketing case. But the village imposes a $50 fee for attending the hearing, which Isaiah still had to pay.
Isaiah’s mother, Catherine Hilgeman, said in an interview that she was upset school officials had questioned and searched her son without contacting her. She said she told her son he had learned a lesson: “You are a young Black male. You already have something against you. You shouldn’t, but you do — it’s the color of your skin. When somebody looks at you they automatically think, ‘They’re up to no good.’”
Christian, a multiracial student ticketed in the fall, described a strikingly similar incident. Another student, who saw in a mirror that a school administrator was walking into the bathroom, quickly handed his vape pen to Christian, who put it in his pocket, the family said.
Christian, 16, was required to appear at a ticket hearing in Bradley on a January afternoon. Most of the people ordered to attend that day were high school students, and most of them, including Christian, had been ticketed for possession of vaping devices. The hearing officer ordered Christian to pay $175 — a $125 fine plus a $50 hearing fee — and then asked if he would pay that day or if he needed time.
“Take some time,” Christian said. He is paying the fine off with money he earned at his job at Little Caesars. By early May, he had paid $113, his mother said.
If students don’t pay their fines quickly, Bradley is one of many Illinois municipalities that have sent the debt to collection agencies or to a program run by the state comptroller’s office that deducts money from tax refunds or payroll checks.
At DeKalb High School, west of Chicago, nearly half the tickets issued during the past three years went to Black students, even though only about 20% of the students are Black. Between the start of the school year and mid-November, police wrote about 30 tickets to students, and Black students received 22 of them, or 73%. Most of the tickets were for fighting, followed by cannabis possession.
Tickets were also written at the two middle schools in DeKalb Community Unit School District 428, to students as young as 11, city records show. Black students make up about a quarter of the enrollment at each school, but at Huntley Middle School at least 63% of tickets went to Black students during the last three school years. At Clinton Rosette Middle School, tickets did not always specify race, but at least 40% went to Black students.
At four DeKalb hearings that reporters attended in the fall and winter, nearly all of the students were Black or Latino. All of the adults involved in the hearing process — the prosecutor, the clerk, the bailiff, the hearing officer — were white.
Records from the last three school years show that DeKalb students were most commonly cited for fighting, a violation that comes with a minimum $300 fine. The city gives students a choice: Pay within 21 days of getting the ticket, or attend a hearing. At the hearing, students can contest the ticket or plead liable, which usually results in an order to do community service. Hearings are held twice a month at 9 a.m. at the police station, and students have to miss school to be there.
If the students don’t pay and don’t show up on their hearing date, the fine increases to the maximum allowed by state law: $750, plus a $100 administrative fee. If the fines and fees are not paid, the debt can be sent to collections.
Terri Jackson, whose 14-year-old daughter agreed to perform 25 hours of community service after being ticketed for fighting, said she thinks the reason more tickets are written to Black children is simple: “They’re paying attention to what the Black kids do.”
At a hearing in November, a 15-year-old boy who had been caught with cannabis vape cartridges at the high school received 15 hours of community service; he would be fined $250 if he didn’t complete it. After he went before the hearing officer, he told reporters he thought white students were disciplined less harshly at his school.
“There’s differences. There are situations when they get caught and not punished like we do,” said the sophomore, who identifies as Black and Latino.
Brian Wright, principal at Bradley-Bourbonnais Community High School, called his school’s ticketing disparity disturbing and perhaps a reflection of racial bias.
“We have to assume that there is a population of our white students doing the same things that our Black students are, but why are they not getting ticketed but our Black students are?” Wright asked. “It is bothersome to me, but it is good information to take back to our assistant principals to see.”
Wright said the school already is concerned about disproportionate suspensions. He also said the school has been working to address racial equity and inclusivity during the past few years by diversifying the books in the curriculum and including more students of color in Advanced Placement courses.
Administrators at other schools who were interviewed for this story said the disparities in ticketing at their schools are not the result of racial bias.
“The police are just being responsive to the actions of the students,” DeKalb High School Principal James Horne said. “Where you see in the data the disproportionate numbers, the unfortunate part is there is disproportionate trauma that is affecting certain parts of the community.” He added: “We’re just being responsive to the challenge of our students.”
Horne said his high school doesn’t only respond to student misbehavior by involving police; it also uses restorative justice practices that bring students together to resolve conflicts with discussion and problem-solving. The school tries to avoid discipline that causes students to miss class time, Horne said.
Reporters sent DeKalb district officials questions about disparities at the two middle schools. They did not address those questions but wrote in a statement that they have been taking actions to better support their students and are developing a new districtwide code of conduct.
Disproportionate ticketing also occurs at schools with relatively few Black students, the analysis found. East Peoria Community High School, for example, has about 25 Black students in an average year. But Black students received 11 of the tickets police wrote during the past three school years. That’s 10% of all police tickets, even though Black students represent just 2% of the school’s enrollment. This school year, records show Black students received six of the 34 tickets police issued through mid-January, or about 18%. These totals don’t include truancy tickets, as those were issued by a school employee.
Marjorie Greuter, the East Peoria Community High School superintendent, disputed any suggestion that students are ticketed unfairly at her school.
“We’re consistent in our referral for city ordinance violations. If a kid is vaping, it doesn’t matter — male, female, white, Black, low-income, high-income — they’re going to get referred” to the school police officer, Greuter said.
“If it’s disproportionate, it’s because the offense is disproportionate or the offender is disproportionate.”
Bloom Township High School District 206 has two schools: Bloom Trail in Steger and Bloom in Chicago Heights. The Chicago Heights Police Department does not ticket students at Bloom, but Steger police have agreed to ticket students at Bloom Trail when contacted by school officials.
“They call us and we ticket them,” said Steger police Chief Greg Smith, who acknowledged that when he got into a fight at school as a teenager in the mid-1980s, his dean and football coach took care of it.
“I think the world has changed. What happened in the past, it wouldn’t be unheard of for a dean to smack a kid upside the head — that, they just don’t do anymore.”
Now, he said, “it is the police officer’s problem, and it’s unfortunate, but everything has come down to ‘We need the police.’ We are handling a lot more issues than police used to.”
In Chicago Heights, Deputy police Chief Mikal Elamin said officers will arrest a student if necessary — if the school or a victim signs a complaint — but the department doesn’t think ticketing is appropriate. Police have not ticketed students at Bloom High School in at least the last three years, records show.
“I can’t tell you that we have never ticketed, but I can say that it is not our policy to target or focus on our high school students. We wouldn’t do that,” Elamin said. He said issuing tickets would be “punishing the parent” because students typically aren’t capable of paying.
In an emailed response to reporters’ questions, Bloom Township district officials said administrators call the police when someone is injured or at risk of physical harm, when there is “severe and potentially dangerous” school disruption or when a student’s behavior has “willfully interrupted the learning process” beyond what school workers can handle.
“Overall, we work to communicate that the school is not the place to handle your disagreements physically,” according to the email. “We are intentional about addressing these situations fairly and equitably, regardless of students’ race or gender.”
After reviewing the district’s own data and in response to the findings of the Tribune-ProPublica investigation, the Bloom Township superintendent scheduled a meeting with the Steger police chief to revisit their approach to police involvement in discipline.
“We want to be on the right side of things and do what is best for children,” said Latunja Williams, the district’s assistant superintendent for human resources.
Decades of research on school discipline has shown that when a judgment call is involved — such as whether to ticket someone for disorderly conduct for being disruptive or profane — students of color are disciplined more severely.
The Tribune and ProPublica were able to analyze both the race of students and the alleged violations for about 3,000 tickets that police wrote in 34 districts. While Black students made up about 11% of the enrollment in schools in these districts, they received nearly 29% of the tickets related to student behavior, including disorderly conduct, disturbing the peace, insubordination, “activity constituting a public nuisance” and “prohibited conduct on school property.” White students represented about 45% of enrollment and 44% of the tickets related to student behavior. Black students also were disproportionately ticketed for fighting, assault and other offenses related to physical aggression.
Other types of violations, such as possession of drug paraphernalia, were more in proportion to Black students’ enrollment. For several other racial groups, including Asian students and Native American students, there were too few tickets to draw meaningful conclusions.
Russ Skiba, a professor emeritus at Indiana University and a leading researcher on educational inequity, said U.S. schools began suspending Black students disproportionately for behavioral offenses in the 1970s, after districts were forced to fully desegregate. In the 1990s, he added, police became a more common presence in schools, exacerbating inequalities in discipline.
“There is an abundance of research that shows that Black students are not engaging in more severe behavior, that they receive punishments that are harsher for the same behavior,” Skiba said. “Black and brown kids understand, and it doesn’t go unnoticed, that they are being punished more often, suspended more often and, in your case, ticketed more often.”
Few studies have examined ticketing of students, including how race may play a role. But an analysis published this year by the American Civil Liberties Union found police cited Black students in the Erie City School District in Pennsylvania for minor infractions at four times the rate of white students.
And in Texas, the Texas Appleseed advocacy group uncovered disparities in police ticketing in multiple school districts, leading state lawmakers to pass legislation in 2013 that prohibits officers from issuing tickets for disrupting class and other misbehavior at school. In the state’s Bryan Independent School District, police had issued 53% of tickets for “disruption of class” to Black students during the 2011-2012 school year, even though that group made up about 21% of the district’s enrollment. U.S. Department of Education investigators looking into the Bryan district found at least 10 incidents where Black students received harsher punishment than white students for similar conduct.
Federal data tracks how often schools involve police in a school incident, which is called a police referral, and whether an arrest was made, as well as the race of the students involved. The data does not track ticketing or other possible outcomes. In Illinois, Black students accounted for about 17% of enrollment but 42% of the students referred to police in the 2017-18 school year, according to the federal data.
The gap is similar with suspensions and expulsions. State data shows that in the 2019-20 school year about 44% of the students suspended or expelled from Illinois public schools were Black.
Citing the federal and state data, Illinois state education and justice officials in March urged schools to evaluate their punitive discipline policies, including suspensions and expulsions, and the impact of police in their schools. They said the expanding role of police officers at school raises concerns about a disparate impact on students of color, particularly Black students.
It was the first guidance the state has issued to school districts with the intent of ensuring that disciplinary practices do not violate civil rights law. Illinois State Board of Education spokesperson Jackie Matthews said punishing students for behaviors perceived as defiance or misconduct does nothing to address the reasons the students are behaving that way.
“These tactics disproportionately impact students of color and increase the odds of students dropping out and experiencing involvement with the criminal justice system,” Matthews wrote in an email.
The recent state guidance did not mention tickets, which the Tribune-ProPublica investigation found to be the most common outcome when police get involved in school incidents.
Amy Meek, chief of the Civil Rights Bureau in the Illinois attorney general’s office, said schools can be in violation of civil rights laws if their policies and practices have a disparate impact on certain groups of people — even if it is not intentional.
Ticketing students “falls within the umbrella of concerns” related to disparate impact and is “something that we definitely look forward to looking at in more depth,” Meek said.
“School districts have an ongoing obligation to annually revisit their discipline policies,” she said. “This is a prime opportunity for them to look at their data and take a look at practices that they may be employing that impose an unjustified disparate impact because of race.”
Harold Jordan, nationwide education equity coordinator at the ACLU, said the U.S. Department of Education should be specifically tracking police ticketing at schools as part of its Civil Rights Data Collection, which is used to monitor whether schools provide equal opportunities to all students. The education department did not respond to a request for comment.
“I think it’s significant because it’s an indicator of the extent to which there’s a growing amount of collaboration between schools and police that’s outright harmful,” Jordan said.
He said that while some incidents at school are serious, most discipline is for minor infractions. “Two kids can do essentially the same thing and be treated quite differently in how they are disciplined, and especially whether police are involved,” Jordan said. “Too often, race and ethnicity are factors.”
Bloom Township High School District 206 is on an Illinois State Board of Education list of districts that, for three consecutive years, suspended or expelled students of color disproportionately. In the 2019-20 school year, 88.5% of students suspended at Bloom Trail High School were Black, though Black students make up only about 54% of the student body.
Concerned about those numbers, district officials have focused this year on alternative ways to correct student behavior, they wrote in an email. The district is one of six in the state participating in training sessions focused on improving equity in student discipline, funded by the Illinois State Board of Education with pandemic relief funds.
Bloom Township school administrators are working with Loyola University Chicago school discipline experts to get certified in restorative justice practices. In February, all school employees were trained on positive behavior interventions. The district also has partnered with the University of Illinois at Springfield to learn about “empathetic instruction,” a way of handling student misbehavior in less punitive ways.
“Our ultimate goal is to ensure a safe learning environment for all students and the school community, while proactively addressing the challenging behaviors of some of our neediest students,” district officials wrote in an emailed response.
But ticketing remains a central part of Bloom Trail’s disciplinary process, and by mid-April of this school year, all but six of the 54 tickets police wrote at the school went to Black students. No white students were ticketed.
Two of the tickets written to Black students went to the Posleys’ sons, Josiah and Jeremiah, who were 16 and 14 at the time.
Josiah said he made a bad decision to meet another student in the bathroom after a disagreement. Once there, he said, he got jumped by several boys and defended himself. “I didn’t instigate it. I didn’t cause it,” said Josiah, who excels in algebra and literature and wants to be an engineer. “I’m not like that.”
Jeremiah said he followed Josiah into the bathroom out of concern for his brother. He didn’t hit anyone, he said, but one of the boys punched him in the face. At least five boys were involved in the fight, and a security guard who tried to break it up needed four stitches after a student — not one of the brothers — pushed him into a window, according to the district.
After the fight, school officials suspended the brothers and threatened to expel Josiah, a junior, for “mob action.” A meeting also was called to review the special education plan for Jeremiah, a freshman who has autism, and his parents feared the school would try to transfer him.
The family was shocked by the severity of the punishment for two boys who had not had previous discipline issues and were good students. They decided to find a lawyer and challenge the school’s actions. Bloom Trail later withdrew the threat of expulsion and told both boys to come back to school.
But by then, the school had already asked Steger police to write tickets. Both boys, as well as three other students who were in the bathroom, were cited for disorderly conduct.
The Posleys said involving police added a layer of unnecessary punishment and worry for the family. The police department sent letters to their home notifying the boys that they had to appear at a hearing in November at the police station.
Jackie Ross, an attorney at Loyola University Chicago’s ChildLaw Clinic who specializes in school discipline and special education, said she took on Josiah and Jeremiah’s case because she felt the boys were being treated unfairly. The same goes for many others, she said.
“There is this gross secret practice going on of fining families of color who are largely unrepresented and making a lot of money from it,” Ross said.
The school district said officials couldn’t talk about the discipline of individual students.
As the brothers’ November hearing date neared, Elizabeth Posley worried that Josiah’s longer hair wouldn’t be considered “presentable.” Her husband agreed, even though Josiah thought it was unfair that he would have to change the way he looked to avoid being stereotyped.
“In my mind, because you look a certain way as an African American child, you’re going to be judged a certain way,” Elizabeth Posley said. Rodney Posley used his clippers to cut Josiah’s hair.
Both boys wore suits to the hearing, Jeremiah’s from his eighth-grade graduation. The family lined up several character references, including one from a church leader. Three Bloom Trail employees — a guidance counselor, a social worker and a teacher — signed a letter praising Jeremiah and his parents for their positive involvement in school.
“Jeremiah is a hard worker, compassionate and respectful of others,” they wrote.
Josiah said he expected the hearing would be in a courtroom, like the one on the TV show “Judge Mathis.” Instead, it took place in a Steger police conference room with rows of stackable chairs.
According to a recording of the hearing, Ross told the hearing officer that Illinois law specifically prohibits schools from fining students for disciplinary reasons. She said Jeremiah has difficulty reading social cues because of his autism and went into the bathroom not knowing he was walking into a fight. Jeremiah has protections under federal disabilities law, she argued, and the consequences he faced for his actions, including the ticket, were inappropriate.
The family said at the hearing that school officials had scaled back some of the school-based punishment and that the family expected the ticket would be thrown out, too.
“It doesn’t matter if the school disciplined the children or didn’t discipline them,” hearing officer Brian Driscoll said in response. At the hearing, he said, “it is just different rules.”
Under Steger’s municipal code, the hearing officer has discretion in setting the amount of a fine or can decide to give a warning instead.
Driscoll found both boys liable and said he would fine Josiah $75 and Jeremiah $25. A third boy involved in the fight also received a $75 fine. Two others didn’t show up for the hearing and were fined $150 each.
The five boys ticketed for the Bloom Trail fight, all students of color, collectively owed the village $475.
“I didn’t find what he did helpful,” Elizabeth Posley said of the hearing officer. “He didn’t tell the kids to apologize or make up. He just fined them and kicked them out. He fined kids all night. Every kid who got in there got a fine.”
The Posleys didn’t pay the fines that night. They thought about appealing. But a few days later, concerned that they had a short window before the village could impose further financial consequences, Rodney Posley went to the police station to pay.
When he got there, he found out Steger accepts only cash or checks for ticket payments, and he didn’t have $100 on him. He drove to a nearby Jewel-Osco supermarket and bought a Snickers bar with his debit card so he could get cash back, then drove back and handed over the money.
Josiah’s suspension prevented him from playing drums at the high school’s homecoming concert in the fall. Now that it’s prom season, he’s glad he can participate in school activities again. Wanting his younger brother to experience a typical high school rite of passage, Josiah decided to take Jeremiah to the prom with him.
On Friday, surrounded by 20 family members, the brothers slipped on sunglasses and posed in the driveway by an arch of red and black balloons to match their red and black suits. As the boys left for the dance, the whole family cheered.
A restaurant company and its owner have won their court battle against a Tennessee law requiring businesses to post "warning" signs outside their bathrooms if they let transgender people use them, convincing a federal judge that the statute violates their First Amendment rights by compelling speech.
U.S. District Judge Aleta A. Trauger struck down the 2021 law on Tuesday, ruling that its enforcement would violate the First Amendment. The government may state an opinion for the community, but if it "wishes to speak freely, it must speak in its own voice," rather than using "its police powers to 'compel private persons to convey the government's' message," the judge said in granting the company's motion for summary judgment and dismissing the case.
If the government does use its police powers, "then the First Amendment's Free Speech Clause comes into play and may constrain the exercise of that power," Judge Trauger said, citing a 2015 ruling by the U.S. Supreme Court in Walker v. Texas Division of the Sons of Confederate Veterans Inc.
Judge Trauger went on to say that although not all compelled speech is unconstitutional, courts have concluded that some types of such speech are more constitutionally suspect than others.
"The type of forced-speech policy most likely to run afoul of the First Amendment is, generally speaking, one in which individuals are coerced into betraying their convictions by involuntarily affirming the government's position on a controversial topic," the judge wrote, citing another Supreme Court ruling in Janus v. American Federation of State, County and Municipal Employees, Council 31 , in 2018.
The federal judge had initially blocked the state law in July, granting a motion for preliminary injunction filed by the American Civil Liberties Union in the suit originally brought on behalf of business owners Robert Bernstein and Kye Sayers. She ordered Tennessee's fire marshal, its director of codes enforcement and two district attorneys general to take no actions to enforce House Bill 1182, which had gone into effect on July 1.
Bernstein, owner of a food and beverage business, and Sayers, owner of a performance space, claimed in their lawsuit that the law violated their First Amendment rights by compelling speech. They asked for an injunction blocking the law while their suit proceeds.
In granting the injunction, Judge Trauger found that the state enacted a law ordering the plaintiffs to say something "they do not wish to say, in furtherance of a message they do not agree with," while the business owners provided evidence showing they strive to be welcoming spaces for groups that include transgender people. The signage required by the act would disrupt these spaces and cause "real" harm that could not "simply be remedied by some award at the end of litigation," according to the judge.
The law specifies that businesses that are open to the public and allow members of either biological sex to use any public restroom must post signs — measuring at least 8 inches wide and 6 inches tall — which must say: "Notice: This facility maintains a policy of allowing the use of restrooms by either biological sex, regardless of the designation on the restroom."
The ACLU sued in June, challenging the constitutionality of the law as a violation of the plaintiffs' First Amendment rights. The suit named as defendants State Fire Marshal Carter Lawrence, Director of Codes Enforcement Christopher Bainbridge, District Attorney General for the 20th Judicial District Glenn R. Funk and District Attorney General for the 11th Judicial District Neal Pinkston.
"Plaintiffs do not want to display this notice," the suit said. "They do not agree with this characterization of their policies and they do not want to convey the Tennessee General Assembly's controversial and stigmatizing message to customers, clients and staff."
The complaint said Bernstein's company, Bongo Productions LLC, owns restaurants, coffee shops and coffee roasting operations, including a decades-old Nashville eatery called Fido.
Sayers' Sanctuary Performing Arts is a "performing arts venue, community center and safe haven" with transgender founders, according to the complaint. On Jan. 28, Sayers voluntarily dropped out of the suit.
The owners said they wanted their businesses to be inclusive and had no desire to block transgender people from using certain bathrooms, which they said could put them in physical danger and cause psychological damage. They said they received no complaints about letting people use restrooms best fit with their gender identity and noted that the legislation uses but does not define the phrase "biological sex," the definition of which they said is in dispute.
Hedy Weinberg, executive director of the ACLU of Tennessee, spoke positively of the court's decision in a statement Tuesday, pointing to Judge Trauger's finding that "It would do a disservice to the First Amendment to judge the act for anything other than what it is: a brazen attempt to single out trans-inclusive establishments and force them to parrot a message that they reasonably believe would sow fear and misunderstanding about the very transgender Tennesseans whom those establishments are trying to provide with some semblance of a safe and welcoming environment."
Weinberg applauded the court for saying that the law violates the First Amendment and harms transgender people.
"Transgender individuals should be able to live their lives free of harassment and discrimination," Weinberg said. "[The] decision ensures that the businesses who welcome them are not forced to become instruments for politicians' discrimination."
Judge Trauger granted the motion for summary judgment as to all defendants except Pinkston, ruling that because Sayers — the only plaintiff within Pinkston's territorial jurisdiction — voluntarily dismissed their claims, any remaining claims pending against Pinkston were dismissed for lack of jurisdiction.
The remaining defendants were ordered to take no actions to enforce Tennessee House Bill 1182 and Senate Bill 1224, the statutes instructing businesses to post the bathroom notices.
A spokesperson for the Tennessee Office of the Attorney General and Reporter, which is defending the state officials, declined Wednesday to comment on the injunction, saying they are still reviewing the ruling.
The business owners are represented by Stella Yarbrough of the American Civil Liberties Union Foundation of Tennessee and Rose Saxe, Emerson Sykes and Malita Picasso of the American Civil Liberties Union Foundation.
The Tennessee state officials are represented by Alexander S. Rieger and Rainey A. Lankford of the Office of the Attorney General and Reporter.
The case is Bongo Productions LLC, et al. v. Carter Lawrence, et al., case number 3:21-cv-00490, in the U.S. District Court for the Middle District of Tennessee.
A D.C. Circuit panel on Tuesday grilled attorneys for a hemp industry trade group to identify what exactly about U.S. Drug Enforcement Administration regulations they found unlawful, while the agency reaffirmed its position that the rules were in sync with the federal statute legalizing hemp.
In the 2020 interim final rule at issue in the appeal, the DEA said any hemp derivative would still be considered a Schedule I substance if it went over the legal limit of psychoactive THC, a position that counsel for the agency asserted during oral arguments Tuesday.
Attorney Sarah Carroll, representing the government, told the panel, "If someone takes a cannabis plant that itself would qualify as hemp because it's very low in THC, but then creates some kind of derivative from that plant and the derivative is itself higher in THC, the derivative is controlled marijuana even though it's from a hemp plant."
The problem for the hemp industry, counsel for the hemp parties said, is that the process by which hemp is turned into CBD for consumer products creates waste and intermediate-stage material that exceed the 0.3% Delta-9-THC limit, becoming so-called "hot" hemp product.
Judge Laurence Silberman repeatedly pushed counsel for the hemp parties to articulate where, in their reasoning, the DEA's interim final rule diverged from the 2018 Farm Bill.
"If the government takes the position that the language in the regulation means the same as the statute, there wouldn't be any controversy in the case at all," Judge Silberman said.
Shane Pennington, an attorney for the Hemp Industries Association, told the court that when Congress removed hemp-derived cannabinoids from the Controlled Substances Act, it necessarily must have removed hemp-derived Delta-9-THC, regardless of the amount hemp processors might end up handling.
"The effect of the DEA's rule is to reimpose the 0.3% threshold onto the tetrahydrocannabinol definition, which is something Congress did not do — and couldn't have meant to do," Pennington said.
In other words, Delta-9-THC could never be "0.3% of itself," he said.
Asked to describe hemp companies' injuries and standing in the matter, Pennington said that the DEA's decision to treat hemp manufacturers' working materials as contraband created tremendous strains for the industry, since local law enforcement, third-party regulators and ancillary companies took their cues from the agency's regulations.
Pennington pointed to a 2013 D.C. Circuit court decision in the case Americans For Safe Access, in which the court wrote that a DEA decision to classify something as Schedule I was an "authoritative value judgment" that was "inherently pejorative."
"It has already caused us harm, reputational harm, by making this authoritative and 'inherently pejorative' statement about a substance that we use," Pennington said. "It would be like if we were a cake company, and the DEA said flour and eggs were Schedule I substances."
Carroll, the attorney for the government, said hemp parties had not raised these arguments in their opening brief and could not show how they had been injured by the DEA's rule, which she said was simply the agency conforming its regulations to the Farm Bill.
"Here, there is no evidence whatsoever on these pretty nuanced, to say the least, distinctions that petitioners try to draw in their reply brief," she said. "But certainly they have not carried the burden of showing that there is some difference between the statute and the rule that would cause a concrete injury to them."
Carroll told the court that the DEA's rule was designed to be in line with the Farm Bill and was not intended to broaden the agency's authority, although she acknowledged that opposing counsel might interpret the 2018 Farm Bill differently than the agency.
The court noted that the hemp parties would have standing to bring a legal challenge against a local sheriff or a bank who took adverse action against them, but seemed to suggest the challenges to the agency rule before the court were unripe at this juncture.
Judge Karen Henderson said the two interlinked appeals presented procedural and jurisdictional hurdles that the hemp parties may not have overcome. "Counsel may have wonderful theories," she said. "Counsel may even have some substance to the theories, but that's not our role here."
The appeal was heard by Circuit Judges Karen Henderson, Judith Rogers and Laurence Silberman for the D.C. Circuit.
Hemp Industries Association and RE Botanicals are represented by Matthew Zorn of Yetter Coleman LLP, Shane Pennington, Shawn Hauser and David Kramer of Vicente Sederberg LLP, Rod Kight of Kight Law Office PC, Garrett Graff of Moye White LLP and Patrick D. Goggin of Law Offices of Patrick D. Goggin.
The DEA is represented by Mark B. Stern and Sarah Carroll of the U.S. Department of Justice's Civil Division.
The cases are Hemp Industries Association et al. v. U.S. Drug Enforcement Administration et al., case no. 20-1376, and Hemp Industries Association et al. v. U.S. Drug Enforcement Administration et al., case no. 21-5111, in the U.S. Court of Appeals for the District of Columbia Circuit.