Debunking the Nondelegation Doctrine for State Regulation of Federal Elections

One objection to the conduct of the 2020 election concerned the key role played by state executives in setting election rules. Governors and elections officials intervened to change a host of regulations, from ballot deadlines to polling times, often acting pursuant to legislation granting them emergency powers. Some advocates, politicians, and judges cried foul. They argued that state legislatures may not devolve the power to set the “Times, Places, and Manner” of federal elections under Article I, Section 4 of the Constitution.

This Article contests that view. Drawing on a survey of elections statutes in the thirteen original colonies, I argue that local officials frequently made critical decisions about the time, place, and manner of early American elections. Executive officers like sheriffs and local officials like selectmen had enormous discretion to determine the time and place of elections, and sometimes also their manner. That discretion was repeatedly affirmed by Congress. Advocates of the Independent State Legislature (“ISL”) theory must interpret these exercises of local power as evidence that Founding-era legislatures delegated their power under the Elections Clause. As a doctrinal matter, this history suggests that courts embracing the ISL theory ought to accord a broad permission for legislatures to delegate their Elections Clause powers today. For opponents of the ISL theory, the history of local power over federal elections may provide further reasons to question the literal meaning of the term “legislature” in Article I, Section 4.

Introduction

Imagine that a state legislature amends its election laws by passing the following statute: “The Secretary of State is authorized to amend existing election law if, in her judgement, such amendments would promote the fairness of an upcoming election.” Call this the “Delegation Act”; assume it is legal under the state constitution. Would a regulation promulgated under this Act violate Article I, Section 4 of the U.S. Constitution?

This hypothetical question was exactly the one faced by tens of federal courts during the 2020 election, when state executives across the country began modifying election rules to ensure COVID-safe elections. The result was a serious divide between Supreme Court precedent and a literalist reading of the Elections Clause pressed by textualists.

Article I, Section 4’s Elections Clause provides that “[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.”1.U.S. Const. art. I, § 4, cl. 1 (emphasis added). The Constitution contains numerous references to elections, but in this Article, I use the phrase “Elections Clause” to refer specifically to this clause.Show More Precedent going back over a century reads this clause broadly, such that that “Legislature” means “whoever is allowed to legislate.”2.See Smiley v. Holm, 285 U.S. 355, 368 (1932) (holding that a gubernatorial veto is part of the “legislature” for Elections Clause purposes); Ohio ex rel. Davis v. Hildebrant, 241 U.S. 565, 566, 568 (1916) (holding that the Elections Clause permits Ohio to use a referendum to pass its redistricting plan); see also infra Section I.A (discussing scholars’ broad interpretation of “Legislature”).Show More Under this rule, the Delegation Act is legal: the Secretary of State is authorized to promulgate regulations and is thus “allowed to legislate.”3.Of course, the Secretary of State would still be restrained by a number of other federal constitutional provisions, like the Equal Protection Clause and the Due Process Clause.Show More This interpretation was most recently affirmed by the U.S. Supreme Court in 2015.4.Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n (“AIRC”), 576 U.S. 787, 808 (2015).Show More

But several Justices have advocated discarding this precedent in favor of an alternative theory of the Elections Clause that features a so-called “Independent State Legislature” (“ISL”).5.Other scholars refer to an “Independent State Legislature Doctrine,” see, e.g., Hayward H. Smith, History of the Article II Independent State Legislature Doctrine, 29 Fla. St. U. L. Rev. 731, 732 (2001), though referring to this view as a “doctrine” may lend it too much heft.Show More When the Elections Clause speaks of the “Legislature,” they say, it means that exactly one entity may regulate the time, place, and manner of federal elections: “the representative body which ma[kes] the laws of the people.”6.AIRC, 576 U.S. at 825 (Roberts, C.J., dissenting) (alteration in original) (emphasis omitted) (quoting Smiley, 285 U.S. at 365).Show More Legislatures are thus “independent” when regulating federal elections in the sense that they are unbound by state constitutions (and, by implication, are free of the institutions that enforce state constitutions, namely state courts).7.See, e.g., Michael T. Morley, The Independent State Legislature Doctrine, Federal Elections, and State Constitutions, 55 Ga. L. Rev. 1, 8 (2020) (“[S]tate constitutions . . . cannot limit a legislature’s power to regulate most aspects of federal elections.”).Show More As this Article was going to press, the Court granted certiorari to reconsider the ISL theory.8.See Moore v. Harper, No. 21-1271, 2022 WL 2347621 (U.S. June 30, 2022) (granting certiorari).Show More

The Delegation Act raises a different question arising from the literalist reading of the Elections Clause: May the legislature itself convey its power? This Article argues that the right answer is yes. The Federal Constitution allows expansive legislative delegations under the Elections Clause.

That claim is contested among proponents of the Independent State Legislature theory. Some approve of delegations. Chief Justice Rehnquist’s concurrence in Bush v. Gore9.531 U.S. 98, 112 (2000) (per curiam). An earlier per curiam decision in Bush v. Palm Beach County Canvassing Board, 531 U.S. 70, 76–77 (2000), had also strongly intimated that the Court was inclined to adopt the Independent State Legislature theory, but the opinion fell short of actually adopting the theory as its holding.Show More endorses the Florida Legislature’s decision to “delegate[] the authority to run the elections and to oversee election disputes to the Secretary of State . . . and to state circuit courts.”10 10.Bush v. Gore, 531 U.S. at 113–14.Show More The Arizona Legislature made similar arguments when it challenged a referendum establishing an independent redistricting commission in 2015: the legislature, it claimed, has total freedom to assign its regulatory duties to whomever it pleases.11 11.AIRC, 576 U.S. at 814.Show More

But more recent treatments of the ISL theory have begun to view delegations with greater skepticism. Several articles have expressed doubt about the propriety of delegations under the Elections Clause, arguing that the legislature cannot empower others to make rules for federal elections.12 12.I provide more detail on this claim in Section I.A, infra. To briefly summarize that discussion, two prominent scholars have advocated a strict view of statutory delegations. Derek Muller claims in a 2016 piece that “the historical understanding of the power of the ‘Legislature’ precluded a delegation of its power to another entity,” an almost-wholesale repudiation of delegations. Derek T. Muller, Legislative Delegations and the Elections Clause, 43 Fla. St. U. L. Rev. 717, 718 (2016). In some of his writing, Michael Morley has likewise argued against any restrictions on legislative power to set election regulations, including restrictions passed by legislatures themselves. Morley, supra note 7, at 92 (arguing that state legislatures should not be able to restrict their own “inalienable authority granted by the U.S. Constitution” to write elections laws); Michael T. Morley, The New Elections Clause, 91 Notre Dame L. Rev. Online 79, 93–94 (2016) [hereinafter Morley, The New Elections Clause] (criticizing AIRC for foreclosing future delegation challenges). Note, however, that a more recent perspective disclaims hostility to delegations. Michael T. Morley, The Independent State Legislature Doctrine, 90 Fordham L. Rev. 501, 555 (2021) [hereinafter Morley, The Independent State Legislature Doctrine].Show More And even more modest proposals, like the proposal to use the general federal nondelegation doctrine in federal elections, open the door to a future in which legislative delegations under the Elections Clause are highly contested.13 13.That is, many scholars expect federal nondelegation doctrine to be significantly tightened in coming years. See, e.g., Nicholas R. Parrillo, A Critical Assessment of the Originalist Case Against Administrative Regulatory Power: New Evidence from the Federal Tax on Private Real Estate in the 1790s, 130 Yale L.J. 1288, 1295–97 (2021) (describing the support for a much more stringent version of the doctrine). If this were to occur, then applying federal nondelegation rules to state elections might prove problematic.Show More

Some members of the judiciary appear even more hostile to Elections Clause delegations. During the 2020 election, a number of plaintiffs who brought Elections Clause challenges against executive actions found a sympathetic audience among federal judges. Citing the Elections Clause, for instance, the U.S. Court of Appeals for the Eighth Circuit overturned a Minnesota order extending the deadline for receiving mail-in ballots, even though the Minnesota Secretary of State claimed to possess delegated statutory authority to issue it.14 14.Carson v. Simon, 978 F.3d 1051, 1062 (8th Cir. 2020); see infra Section I.B.Show More Other judges either followed suit or issued dissenting opinions indicating they would have liked to.15 15.Tex. League of United Latin Am. Citizens v. Hughs, 978 F.3d 136, 150 (5th Cir. 2020) (Ho, J., concurring); Wise v. Circosta, 978 F.3d 93, 104 (4th Cir. 2020) (en banc) (Wilkinson & Agee, JJ., dissenting); see infra Section I.B.Show More

In short, an emerging movement that spans academia and the judiciary would severely curtail the power of state legislatures to delegate power over elections.

This Article’s primary purpose is to show that, as a doctrinal matter, Elections Clause delegations are entirely permissible. The Federal Constitution recognizes the power of state legislatures to delegate their authority over elections to state executives and state courts. Federal courts reviewing such delegations should give full effect to Elections Clause delegations, regardless of their view on whether state legislatures are bound by state constitutions in making federal elections law, and regardless of the delegation rules they might apply to Congress under Article I, Section 8.

I argue that a delegation-friendly reading of the Elections Clause is the only interpretation that accounts for the clear course of practice in the Founding era. Specifically, I undertake an original, comprehensive survey of election laws in the original thirteen states during the four decades following the ratification of the Constitution in 1788. While many scholars have used historical evidence to construe the meaning of the Elections Clause, all previous studies focus on evidence from the Civil War and the decades that followed it.16 16.See infra Section I.A; see also, e.g., Muller, supra note 12, at 718–20 (outlining an argument on legislative delegations rooted in late nineteenth-century congressional precedents and the pre-ratification history of the Seventeenth Amendment).Show More This is the first study to draw on the early American practice most relevant to an originalist interpretation of the Constitution.17 17.The text of the Elections Clause is susceptible to interpretation by reference to historical practice because it is ambiguous with respect to delegations. See William Baude, Constitutional Liquidation, 71 Stan. L. Rev. 1, 14 (2019).To see this, first note that the Elections Clause is simply equivalent to a grant of legislative power—no different than the grant of power to Congress in Article I, Section 8. In particular, no special significance should be attached to the appearance of the word “prescribe,” a word that the Supreme Court’s favorite Founding-era sources treat as synonymous with “make legislation about.” See, e.g., 1 William Blackstone, Commentaries *38 (defining law as a “rule of action, which is prescribed by some superior, and which the inferior is bound to obey”); id. at *44 (“Municipal law . . . is properly defined to be ‘a rule of civil conduct prescribed by the supreme power in a state . . . .’”); id. at *46, *52; see also The Federalist No. 57, at 280 (James Madison) (Terence Ball ed., 2003) (using the phrase “the mode prescribed by the Constitution for the choice of representatives” to refer to the states’ control over elections under the Elections Clause); The Federalist No. 75, at 365 (Alexander Hamilton) (Terence Ball ed., 2003) (“The essence of the legislative authority is to enact laws, or in other words to prescribe rules for the regulation of the society.”). Because “prescribe” simply means “make law about,” the Elections Clause is no different from other grants of legislative power. Does a grant of legislative power preclude delegations?Virtually everyone agrees that the Constitution’s other major grant of legislative power—Article I, Section 8—is textually ambiguous with respect to delegations. See, e.g., Keith E. Whittington & Jason Iuliano, The Myth of the Nondelegation Doctrine, 165 U. Pa. L. Rev.379, 389 (2017) (noting “[t]here is no explicit textual prohibition on the delegation of legislative power,” though “such a rule has long been thought implicit”); Gary Lawson & Patricia B. Granger, The “Proper” Scope of Federal Power: A Jurisdictional Interpretation of the Sweeping Clause, 43 Duke L.J.267, 274, 324 n.233 (1993) (anchoring the nondelegation doctrine in the Necessary & Proper Clause, not in the grant of power at the outset of Article I, Section 8).The conjunction of these two facts suggests that the propriety of Election Clause delegations cannot be determined from the text alone. Thus, historical evidence matters. It might either reveal Americans’ expectations about what the Clause’s text meant or reveal the settlement of their meaning in the first decades of the republic. See Baude, supra, at 14.Show More

The historical evidence shows that local power over elections was widespread in the decades following the Founding. In nine of thirteen states, profoundly consequential control over the “Times” and “Places” of elections was exercised by local officials like sheriffs or justices of the peace. To name just one example, Virginia sheriffs had the authority to adjourn elections up to four days, and they could relocate polling from the county courthouse if the county was “infected with any contagious disease, or . . . in danger of an attack from a public enemy.”18 18.Act effective Jan. 1, 1787, ch. 55, § 3, 1785 Va. Acts 38, 39.Show More Or take New York, where elections inspectors had total power to determine polling places and polling times.19 19.See, e.g., Act of Feb. 13, 1787, ch. 15, § 4, 1787 N.Y. Laws 316, 318; see also infra Appendix (“New York”).Show More Advocates of the Independent State Legislature theory must interpret these examples as delegations, and thus ought to embrace the legality of legislative delegations today.

In modern elections, of course, state executives have joined local officials in exercising power over federal elections. One might well wonder whether there is a constitutional difference between local power at the Founding and state executive power today.

Proponents of the ISL theory cannot sustain that view. First, as a factual matter, both “local” and “executive” officers received delegated power in the Founding era. Second, what makes Founding-era local governments arguably distinguishable from modern-day state executives is their claim to quasi-sovereignty in regulating their own affairs.20 20.See infra Part III.Show More It might thus be plausible to see local control over federal elections as an exercise of inherent, rather than delegated, power, a very different matter than horizontal delegations to state executives. But that interpretation would be utterly incompatible with the Independent State Legislature theory, which requires that state legislatures be the sole sources of legitimate rulemaking authority for federal elections; an exercise of inherent local power would scramble that narrative. Thus, advocates of the ISL theory ought to embrace delegation as the explanation for the historical evidence presented below.

Getting the delegation question right matters a great deal. COVID-19 is a powerful illustration of the need for occasional flexibility in election regulation, with dozens of states shifting their rules via executive action.21 21.See infra note 72 and accompanying text.Show More It is an open question whether safe and fair elections could have been held absent such delegations. But the implications of a nondelegation doctrine for the Elections Clause go far beyond COVID. State and local elections officials depend heavily on delegation to keep their agencies moving.22 22.See, e.g., Justin Weinstein-Tull, Election Law Federalism, 114 Mich. L. Rev. 747, 778–80 (2016); Daniel P. Tokaji, The Future of Elections Reform: From Rules to Institutions, 28 Yale L. & Pol’y Rev.125, 130–31 (2009) (describing the discretion baked into current election administration systems).Show More Adopting a nondelegation rule would wreak havoc on those systems.

With that said, the primary purpose of this Article is to intervene in the doctrinal debate over Elections Clause delegation; its aim is not to defend the practice of delegation as a matter of policy. It may be true, as some political science research suggests, that delegation is a necessary (though insufficient) ingredient in creating independent and expert agencies, in which case we might see delegation as a good.23 23.See generallyGary J. Miller & Andrew B. Whitford, Above Politics 17–22(2007) (arguing that delegation is key to establishing credibly neutral agencies like the Federal Reserve). As Michael McConnell points out, the issue of neutrality is less pronounced when legislatures make generalized ex ante rules. Michael W. McConnell, Two-and-a-Half Cheers for Bush v Gore, 68 U. Chi. L. Rev. 657, 661–62 (2001). But a regime without any delegation at all would inevitably require significant policy choices to be made at a close enough vantage point to an election that the stakes of any decision, and the likely beneficiaries, would be readily apparent.Show More Some of the examples cited below demonstrate a darker side of delegation, which is the risk that delegees use their positions to further the political ambitions of their allies. For present purposes, I bracket the normative question of whether we ought to celebrate delegation or deplore it. The goal here is to show that local power was a fact that was widely viewed as legal and to draw out the doctrinal implications of that historical evidence.

This Article also does not resolve two broader issues raised by the Independent State Legislature theory, namely (1) whether state legislatures are bound by state constitutions and (2) whether state courts can review state election laws governing federal elections. To be sure, my argument matters most in a world where the ISL theory is adopted, since current doctrine would defer entirely to state constitutions to determine the legality of delegations.24 24.See Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n (“AIRC”), 576 U.S. 787, 808 (2015) (“[R]edistricting is a legislative function, to be performed in accordance with the State’s prescriptions for lawmaking.”).Show More And the evidence here may be relevant to debates over the ISL theory. As I note above, what I call “silent delegations” to local governments might instead be interpreted as evidence of inherent local power over federal elections, which would undercut the ISL theory’s literalist reading of “legislature.”25 25.As noted below, I thank Greg Ablavsky and Robert Gordon for helping me see this alternative possibility.Show More Also, as Hayward H. Smith has noted, the aggressive delegations I document below may undercut the view that legislative power over federal elections was sacrosanct.26 26.Hayward H. Smith, Revisiting the History of the Independent State Legislature Doctrine, 53 St. Mary’s L.J. (forthcoming 2022) (manuscript at 37), https://papers.ssrn.com/sol3/paper​s.cfm?abstract_id=3923205 [https://perma.cc/78LE-H76B].Show More But this Article is not primarily about whether the ISL theory is correct.

As I argue in Part I, that is partially in recognition of the fact that the ISL theory appears very likely to be adopted. The Supreme Court has not taken a case addressing the proper interpretation of the Elections Clause since the Arizona redistricting litigation in 2015. In that case, Chief Justice Roberts authored a ringing dissent, joined by Justices Thomas and Alito, effectively endorsing the ISL theory.27 27.AIRC, 576 U.S. at 824–25 (Roberts, C.J., dissenting);see infra note 69 and accompanying text.Show More Today, the Chief Justice would almost certainly be in the majority. Justices Kavanaugh and Gorsuch trumpeted their adherence to the ISL theory during the 2020 election cycle, making five sitting Justices who have recently endorsed the ISL theory in their opinions.28 28.Democratic Nat’l Comm. v. Wis. State Legislature, 141 S. Ct. 28, 29 (2020) (Gorsuch J. concurring); id. at 34 n.1 (Kavanaugh, J. concurring); see infra notes 70–71 and accompanying text.Show More In recent redistricting litigation, several Justices have restated their commitment to this view.29 29.Moore v. Harper, 142 S. Ct. 1089, 1089–90 (2022) (mem.) (Alito, J. dissenting from denial of application for stay); id. at 1089 (Kavanaugh, J., concurring in denial of application for stay).Show More Even if it has not yet powered a majority opinion, the ISL theory already represents the views of the majority on the Supreme Court.

Finally, while this Article’s primary purpose is to contribute to a revived debate on the meaning of the Elections Clause, the pervasiveness of local delegations I document here adds to a growing literature on delegations in the early republic more generally. Most notably, Nicholas Parrillo has recently uncovered the history of federal boards of tax assessors empowered in 1798 to review property assessments under an ambiguous congressional statute.30 30.Parrillo, supra note 13, at 1302, 1304.Show More As Parrillo notes, originalist advocates of a more stringent nondelegation doctrine have traditionally argued that all Founding-era legislative delegations fall into the categories of (1) delegations concerning foreign affairs or (2) voluntary transactions and government benefits, such as those pertaining to veterans’ benefits.31 31.Id. at 1301 & n.48.Show More If, as advocates of the ISL theory believe, state legislatures make federal law when they regulate federal elections and are subject to the same nondelegation rules as Congress,32 32.See, e.g., Morley, The Independent State Legislature Doctrine, supra note 12, at 535 (“When plaintiffs allege a violation of their constitutional rights or federal voting-related statutes, they raise a federal question.”).Show More then the proliferation of delegation in the Elections Clause context would seem to provide another example of delegation under the Federal Constitution that affected the exercise of core political rights.33 33.See supra note 17 for a defense of the view that the language of the Elections Clause is not meaningfully different from that in Article I, Section 8.Show More

This Article proceeds as follows. Part I places this intervention in context by reviewing the scholarly and judicial discussion of the Independent State Legislature theory. It argues that the issue of permissible delegations has yet to be answered by extant scholarship and demonstrates that delegations were a major issue during 2020 election litigation. Part II presents the historical evidence suggesting that expansive and politically significant delegations to local officials were a pervasive feature of early American elections. Part III links that historical record back to modern controversies, arguing that state executives are no different from local officials. I conclude with some reflections on how federal courts should analyze delegations in future litigation.

  1. U.S. Const. art. I, § 4, cl. 1 (emphasis added). The Constitution contains numerous references to elections, but in this Article, I use the phrase “Elections Clause” to refer specifically to this clause.
  2. See Smiley v. Holm, 285 U.S. 355, 368 (1932) (holding that a gubernatorial veto is part of the “legislature” for Elections Clause purposes); Ohio ex rel. Davis v. Hildebrant, 241 U.S. 565, 566, 568 (1916) (holding that the Elections Clause permits Ohio to use a referendum to pass its redistricting plan); see also infra Section I.A (discussing scholars’ broad interpretation of “Legislature”).
  3. Of course, the Secretary of State would still be restrained by a number of other federal constitutional provisions, like the Equal Protection Clause and the Due Process Clause.
  4. Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n (“AIRC”), 576 U.S. 787, 808 (2015).
  5. Other scholars refer to an “Independent State Legislature Doctrine,” see, e.g., Hayward H. Smith, History of the Article II Independent State Legislature Doctrine, 29 Fla. St. U. L. Rev. 731, 732 (2001), though referring to this view as a “doctrine” may lend it too much heft.
  6. AIRC, 576 U.S. at 825 (Roberts, C.J., dissenting) (alteration in original) (emphasis omitted) (quoting Smiley, 285 U.S. at 365).
  7. See, e.g., Michael T. Morley, The Independent State Legislature Doctrine, Federal Elections, and State Constitutions, 55 Ga. L. Rev. 1, 8 (2020) (“[S]tate constitutions . . . cannot limit a legislature’s power to regulate most aspects of federal elections.”).
  8. See Moore v. Harper, No. 21-1271, 2022 WL 2347621 (U.S. June 30, 2022) (granting certiorari).
  9. 531 U.S. 98, 112 (2000) (per curiam). An earlier per curiam decision in Bush v. Palm Beach County Canvassing Board, 531 U.S. 70, 76–77 (2000), had also strongly intimated that the Court was inclined to adopt the Independent State Legislature theory, but the opinion fell short of actually adopting the theory as its holding.
  10. Bush v. Gore, 531 U.S. at 113–14.
  11. AIRC, 576 U.S. at 814.
  12. I provide more detail on this claim in Section I.A, infra. To briefly summarize that discussion, two prominent scholars have advocated a strict view of statutory delegations. Derek Muller claims in a 2016 piece that “the historical understanding of the power of the ‘Legislature’ precluded a delegation of its power to another entity,” an almost-wholesale repudiation of delegations. Derek T. Muller, Legislative Delegations and the Elections Clause, 43 Fla. St. U. L. Rev. 717, 718 (2016). In some of his writing, Michael Morley has likewise argued against any restrictions on legislative power to set election regulations, including restrictions passed by legislatures themselves. Morley, supra note 7, at 92 (arguing that state legislatures should not be able to restrict their own “inalienable authority granted by the U.S. Constitution” to write elections laws); Michael T. Morley, The New Elections Clause, 91 Notre Dame L. Rev. Online 79, 93–94 (2016) [hereinafter Morley, The New Elections Clause] (criticizing AIRC for foreclosing future delegation challenges). Note, however, that a more recent perspective disclaims hostility to delegations. Michael T. Morley, The Independent State Legislature Doctrine, 90 Fordham L. Rev. 501, 555 (2021) [hereinafter Morley, The Independent State Legislature Doctrine].
  13. That is, many scholars expect federal nondelegation doctrine to be significantly tightened in coming years. See, e.g., Nicholas R. Parrillo, A Critical Assessment of the Originalist Case Against Administrative Regulatory Power: New Evidence from the Federal Tax on Private Real Estate in the 1790s,
    130

    Yale

    L.J. 1288, 1295–97

    (2021) (describing the support for a much more stringent version of the doctrine). If this were to occur, then applying federal nondelegation rules to state elections might prove problematic.

  14. Carson v. Simon, 978 F.3d 1051, 1062 (8th Cir. 2020); see infra Section I.B.
  15. Tex. League of United Latin Am. Citizens v. Hughs, 978 F.3d 136, 150 (5th Cir. 2020) (Ho, J., concurring); Wise v. Circosta, 978 F.3d 93, 104 (4th Cir. 2020) (en banc) (Wilkinson & Agee, JJ., dissenting); see infra Section I.B.
  16. See infra Section I.A; see also, e.g., Muller, supra note 12, at 718–20
    (

    outlining an argument on legislative delegations rooted in late nineteenth-century congressional precedents and the pre-ratification history of the Seventeenth Amendment).

  17. The text of the Elections Clause is susceptible to interpretation by reference to historical practice because it is ambiguous with respect to delegations. See William Baude, Constitutional Liquidation, 71 Stan. L. Rev. 1, 14 (2019).To see this, first note that the Elections Clause is simply equivalent to a grant of legislative power—no different than the grant of power to Congress in Article I, Section 8. In particular, no special significance should be attached to the appearance of the word “prescribe,” a word that the Supreme Court’s favorite Founding-era sources treat as synonymous with “make legislation about.” See, e.g., 1 William Blackstone, Commentaries *38 (defining law as a “rule of action, which is prescribed by some superior, and which the inferior is bound to obey”); id. at *44 (“Municipal law . . . is properly defined to be ‘a rule of civil conduct prescribed by the supreme power in a state . . . .’”); id. at *46, *52; see also The Federalist No. 57, at 280 (James Madison) (Terence Ball ed., 2003) (using the phrase “the mode prescribed by the Constitution for the choice of representatives” to refer to the states’ control over elections under the Elections Clause); The Federalist No. 75, at 365 (Alexander Hamilton) (Terence Ball ed., 2003) (“The essence of the legislative authority is to enact laws, or in other words to prescribe rules for the regulation of the society.”). Because “prescribe” simply means “make law about,” the Elections Clause is no different from other grants of legislative power. Does a grant of legislative power preclude delegations?

    Virtually everyone agrees that the Constitution’s other major grant of legislative power—Article I, Section 8—is textually ambiguous with respect to delegations. See, e.g., Keith E. Whittington & Jason Iuliano, The Myth of the Nondelegation Doctrine, 165 U. Pa. L. Rev.

    379, 389 (2017) (noting “[t]here is no explicit textual prohibition on the delegation of legislative power,” though “such a rule has long been thought implicit”); Gary Lawson & Patricia B. Granger, The “Proper” Scope of Federal Power: A Jurisdictional Interpretation of the Sweeping Clause, 43 Duke L.J.

    267, 274, 324 n.233 (1993) (anchoring the nondelegation doctrine in the Necessary & Proper Clause, not in the grant of power at the outset of Article I, Section 8).

    The conjunction of these two facts suggests that the propriety of Election Clause delegations cannot be determined from the text alone. Thus, historical evidence matters. It might either reveal Americans’ expectations about what the Clause’s text meant or reveal the settlement of their meaning in the first decades of the republic. See Baude, supra, at 14.

  18. Act effective Jan. 1, 1787, ch. 55, § 3, 1785 Va. Acts 38, 39.
  19. See, e.g., Act of Feb. 13, 1787, ch. 15, § 4, 1787 N.Y. Laws 316, 318; see also infra Appendix (“New York”).
  20. See infra Part III.
  21. See infra note 72 and accompanying text.
  22. See, e.g., Justin Weinstein-Tull, Election Law Federalism, 114 Mich. L. Rev. 747, 778–80 (2016); Daniel P. Tokaji, The Future of Elections Reform: From Rules to Institutions, 28 Yale L. & Pol’y Rev.

    125, 130–31 (2009) (describing the discretion baked into current election administration systems).

  23. See generally Gary J. Miller & Andrew B. Whitford, Above Politics 17–22 (2007) (arguing that delegation is key to establishing credibly neutral agencies like the Federal Reserve). As Michael McConnell points out, the issue of neutrality is less pronounced when legislatures make generalized ex ante rules. Michael W. McConnell, Two-and-a-Half Cheers for Bush v Gore, 68 U. Chi. L. Rev. 657, 661–62 (2001). But a regime without any delegation at all would inevitably require significant policy choices to be made at a close enough vantage point to an election that the stakes of any decision, and the likely beneficiaries, would be readily apparent.
  24. See Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n (“AIRC”), 576 U.S. 787, 808 (2015) (“[R]edistricting is a legislative function, to be performed in accordance with the State’s prescriptions for lawmaking.”).
  25. As noted below, I thank Greg Ablavsky and Robert Gordon for helping me see this alternative possibility.
  26. Hayward H. Smith, Revisiting the History of the Independent State Legislature Doctrine, 53 St. Mary’s L.J. (forthcoming 2022) (manuscript at 37), https://papers.ssrn.com/sol3/paper​s.cfm?abstract_id=3923205 [https://perma.cc/78LE-H76B].
  27. AIRC, 576 U.S. at 824–25 (Roberts, C.J., dissenting); see infra note 69 and accompanying text.
  28. Democratic Nat’l Comm. v. Wis. State Legislature, 141 S. Ct. 28, 29 (2020) (Gorsuch J. concurring); id. at 34 n.1 (Kavanaugh, J. concurring); see infra notes 70–71 and accompanying text.
  29. Moore v. Harper, 142 S. Ct. 1089, 1089–90 (2022) (mem.) (Alito, J. dissenting from denial of application for stay); id. at 1089 (Kavanaugh, J., concurring in denial of application for stay).
  30. Parrillo, supra note 13, at 1302, 1304.
  31. Id. at 1301 & n.48.
  32. See, e.g., Morley, The Independent State Legislature Doctrine, supra note 12, at 535 (“When plaintiffs allege a violation of their constitutional rights or federal voting-related statutes, they raise a federal question.”).
  33. See supra note 17 for a defense of the view that the language of the Elections Clause is not meaningfully different from that in Article I, Section 8.

Interpreting Injunctions

Injunctions are powerful remedies. They can force a person to act or refrain from acting, dictate policies that the government must adopt, or even refashion public institutions. Violations of an injunction can result in contempt.

Despite the importance of injunctions, courts have applied an astonishingly wide range of contradictory approaches to interpreting them. They have likewise disagreed over whether appellate courts should defer to trial courts’ interpretations or instead review those interpretations de novo. Virtually no scholarship has been written on these topics.

This Article proposes that courts apply a modified textualist approach to injunctions. Under this scheme, courts would generally interpret injunctions according to the ordinary meaning of their language. When a provision in an injunction quotes or incorporates by reference an extrinsic legal authority, such as a statute or contract, however, courts would interpret that provision according to the methodology they would ordinarily apply to that extrinsic authority. This proposed approach ensures that injunctions provide regulated parties with adequate notice of the conduct proscribed, curtails judicial abuses of power, and aligns tightly with the procedural rules that govern injunctions in both federal and state courts.

This Article further proposes that appellate courts review trial courts’ interpretations of injunctions de novo. Independent appellate review naturally aligns with the textualist goal of implementing the best reading of an injunction, promotes principles of notice, and prevents government overreach.

Introduction

Injunctions are one of the most powerful remedies in the law.1.F.W. Maitland, Equity 254 (A.H. Chaytor & W.J. Whittaker eds., 1929).Show More They dictate behavior; parties who disobey injunctions face the prospect of contempt.2.Int’l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 826–27 (1994) (discussing the distinction between criminal and civil contempt); see alsoJoseph Moskovitz, Contempt of Injunctions, Civil and Criminal, 43 Colum. L. Rev. 780, 780–81 (1943) (explaining that the “distinction” between civil and criminal contempt “is made decisive in such vital matters as parties, procedure, evidence, judgments, and review”).Show More Over the past century, injunctions have grown only more powerful, evolving into new forms such as structural injunctions3.SeeOwen M. Fiss, The Civil Rights Injunction 4–5 (1978).Show More and nationwide injunctions.4.SeeMichael T. Morley, Disaggregating the History of Nationwide Injunctions: A Response to Professor Sohoni, 72 Ala. L. Rev. 239 (2020) (explaining how nationwide defendant-oriented injunctions are a relatively recent phenomenon); see alsoSamuel L. Bray, Multiple Chancellors: Reforming the National Injunction, 131 Harv. L. Rev. 417, 440 (2017) (tracing the rise of nationwide injunctions in the 1960s).Show More For these reasons, ascertaining the precise meaning of an injunction is critically important. Parties need to know what conduct an injunction requires or prohibits, and courts must be able to determine whether an injunction has been violated.

There is significant inconsistency, however, in how courts interpret injunctions. Courts at every level have employed a wide range of methods, including textualism, purposivism, intentionalism, and pragmatism. These different theories can easily lead to inconsistent interpretations of identical injunctions. The lack of a uniform approach to interpreting injunctions has also contributed to disagreement among appellate courts as to whether to defer to trial courts’ interpretations of such orders. Some appellate courts review trial courts’ interpretations of injunctions de novo, while others apply more deferential standards of review.5.Compare Abbott Labs. v. TorPharm, Inc., 503 F.3d 1372, 1382 (Fed. Cir. 2007) (“[I]nterpretation of the terms of an injunction is a question of law we review de novo.”), with In re Managed Care, 756 F.3d 1222, 1234 (11th Cir. 2014) (concluding that a court should give “great deference” to a judge’s interpretation of an injunction that he entered).Show More Deference makes more sense under some interpretive regimes than others.

One reason for this disarray is that theories of interpretation for injunctions are surprisingly underdeveloped. In contrast to the extensive bodies of work that discuss various approaches to interpreting the Constitution,6.See, e.g., Jack M. Balkin, Living Originalism (2011); Keith E. Whittington, Constitutional Construction: Divided Power and Constitutional Meaning (1999); Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment (1997); Robert H. Bork, The Tempting of America: The Political Seduction of the Law (1990).Show More statutes,7.See, e.g., Antonin Scalia, A Matter of Interpretation (2d ed. 2018); William N. Eskridge, Jr., Interpreting Law: A Primer on How to Read Statutes and the Constitution (2016); Robert A. Katzmann, Judging Statutes (2014).Show More regulations,8.See, e.g., Cass R. Sunstein, Chevron as Law, 107 Geo. L.J. 1613 (2019); Kevin M. Stack, Interpreting Regulations, 111 Mich. L. Rev. 355 (2012).Show More contracts,9.See, e.g., Omri Ben-Shahar & Lior Jacob Strahilevitz, Interpreting Contracts via Surveys and Experiments, 92 N.Y.U. L. Rev. 1753 (2017); Richard A. Posner, The Law and Economics of Contract Interpretation, 83 Tex. L. Rev. 1581 (2005).Show More and wills,10 10.See, e.g., Kent Greenawalt, A Pluralist Approach to Interpretation: Wills and Contracts, 42 San Diego L. Rev. 533, 534 (2005); Joseph Warren, Interpretation of Wills—Recent Developments, 49 Harv. L. Rev. 689 (1936).Show More virtually nothing has been written about the proper method for interpreting injunctions.11 11.No article specifically focuses on the unique interpretive concerns that injunctions raise. Professor Timothy Jost analyzed some of those issues in his work on modifying injunctions. SeeTimothy Stoltzfus Jost, From Swift to Stotts and Beyond: Modification of Injunctions in the Federal Courts, 64 Tex. L. Rev. 1101, 1104–05 (1986). Other pieces have briefly touched on the topic as it arises in particular contexts, such as abstention, see Matthew D. Staver, The Abstention Doctrines: Balancing Comity with Federal Court Intervention, 28 Seton Hall L. Rev. 1102, 1137–38 (1998), and anti-gang injunctions, see Beth Caldwell, Criminalizing Day-to-Day Life: A Socio-Legal Critique of Gang Injunctions, 37 Am. J. Crim. L. 241, 280–81 (2010).Show More Injunctions present several considerations that do not arise with regard to other legal instruments. For example, unlike statutes that typically apply to groups of people or entities, or even the general public, injunctions operate as targeted laws, imposing coercive legal obligations on particular named parties and their associates. Moreover, in contrast to virtually every other type of legal document, an injunction is typically interpreted by the same person—the trial judge—who entered the injunction in the first place.12 12.See, e.g., Steven Seidenberg, Fast-Forward: Federal Circuit Makes It Easier to Enforce Injunctions in Patent Cases, 17 ABA J. 16, 16 (Aug. 2011) (“[A] contempt proceeding is usually heard by the same judge who issued the injunction . . . .”).Show More

At first glance, these considerations do not uniformly point toward a single theory of interpretation. For example, on the one hand, one might support a purposivist approach to interpretation because injunctions are typically both drafted and interpreted by the same court. An injunction’s author is in the best position to know the goals she was trying to accomplish and the most effective ways to promote them. On the other hand, because injunctions are targeted at particular individuals, a textualist approach would limit abusive enforcement by constraining the court’s ability to impose sanctions.

This Article recommends two main principles to guide the interpretation of injunctions. First, it proposes that courts adopt a modified textualist approach to interpreting injunctions. Under this proposal, a court would construe most provisions within an injunction according to the ordinary meaning of their language.13 13.For seminal discussions of textualism in statutory interpretation, see John F. Manning, Textualism and the Equity of the Statute, 101 Colum. L. Rev. 1 (2001) [hereinafter Manning, Equity], and John F. Manning, Textualism and Legislative Intent, 91 Va. L. Rev. 419 (2005) [hereinafter Manning, Textualism].Show More A textualist approach ensures adequate notice to individuals subject to the injunction; reduces opportunities for judicial abuse of the contempt power; and is most consistent with both Federal Rule of Civil Procedure 65(d), which requires an injunction to “state its terms specifically,”14 14.Fed. R. Civ. P. 65(d)(1)(B).Show More as well as its state analogues. Although a textualist approach presents the risk that individuals might try to circumvent injunctions by skirting the bounds of the prohibited conduct, courts can address this problem by modifying injunctions when necessary to prohibit such actions. This proposal reduces the risk of arbitrary or vindictive enforcement while still providing courts with flexibility to tailor injunctions over time to address unforeseen problems.15 15.In making this textualist proposal, we do not seek to engage with objections to the entire endeavor of textualism, such as whether the ordinary meaning of language can be derived without considering purpose driving that language. See, e.g., Richard A. Posner, The Problems of Jurisprudence 22–69 (1990); Richard H. Fallon, Jr., The Statutory Interpretation Muddle, 114 Nw. U. L. Rev. 269, 279 (2019); William N. Eskridge, Jr. & Philip P. Frickey, Statutory Interpretation as Practical Reasoning, 42 Stan. L. Rev. 321, 340–45 (1990). Instead, we rely on the work of the many others who have established that it is generally possible to determine the “ordinary meaning” of language independent of the lawmaker’s intent or purpose. See, e.g., John F. Manning, What Divides Textualists from Purposivists?, 106 Colum. L. Rev. 70, 79 (2006) (arguing that ordinary meaning can be derived by reading text through the lens of a “community’s shared conventions”); Jeremy Waldron, Legislators’ Intentions and Unintentional Legislation, in Law and Interpretation 329, 339 (Andrei Marmor ed., 1995) (arguing that shared conventions inform the meaning of language).Show More

We call the proposal “modified” textualism because we recognize an exception under which courts should depart from a pure textualist approach. Injunctions often draw on other legal authorities, such as statutes or contracts, that courts may interpret using approaches other than textualism. This Article proposes that a court should construe provisions within an injunction that quote or incorporate by reference an extrinsic legal authority according to the interpretive theory it would ordinarily apply to that type of authority. In contrast, when a provision restates or paraphrases an extrinsic legal authority in the issuing court’s own language—and especially when the provision imposes prophylactic protections that go beyond the requirements imposed by that extrinsic authority—the court should apply a textualist interpretation. Although this approach loses some of the benefits of notice and constraint provided by textualism, it maintains consistency and coherence in the interpretation of those other legal authorities.16 16.In other contexts, courts will sometimes apply special treatment to a legal provision that quotes an extrinsic legal authority. For example, courts generally apply Auer deference to agencies’ interpretations of their own regulations, except for regulations that merely reiterate statutory provisions. SeeGonzales v. Oregon, 546 U.S. 243, 256–57 (2006) (stating that deference under Auer v. Robbins, 519 U.S. 452 (1997), does not extend to agency rules that merely quote statutes).Show More

Furthermore, although courts should apply a modified textualist approach in determining what an injunction means, non-textualist considerations should still play an important role in determining the proper remedy for violations. Not all violations of injunctions require contempt. A court has broad discretion to decline to hold a violator in contempt, for example, where that person’s conduct was only a technical violation of the injunction or did not undermine the injunction’s purpose. A court may likewise refuse to impose contempt sanctions when they would be against the public interest. Permitting courts to consider purposivist factors at the remedy phase would preserve a textualist approach to interpreting the terms of the injunction itself while capturing some of the benefits of non-textualist methods of interpretation.

Second, this Article argues that appellate courts should not defer to trial courts’ interpretations of injunctions. Plenary review naturally aligns with the textualist premise that an injunction’s text has a single, best legal meaning. De novo review also tends to ensure notice to the regulated parties by limiting the ability of an injunction’s author to enforce her unexpressed intentions or underlying purposes. And it prevents judicial abuses more effectively than deferential review by creating a greater degree of oversight.

Moreover, the standard justifications for appellate deference do not warrant a more limited standard of review for trial judges’ interpretations of injunctions.17 17.See Paul Horwitz, Three Faces of Deference, 83 Notre Dame L. Rev. 1061, 1078 (2008) (identifying the two broad categories of justifications for deference: legal authority and epistemic authority).Show More Legislatures have not passed sweeping laws that either grant trial courts unique judicial authority over the interpretation of injunctions or require appellate courts to defer to them. Furthermore, trial courts do not have special expertise in determining the ordinary meaning of language; an appellate court is just as capable as a trial court of resolving such issues. Indeed, the characteristics that would make a trial judge an expert on an injunction’s meaning—being the judge who presided over the proceedings that led to the injunction and originally entered it—are precisely the same factors that create the greatest risk of abuse and accordingly counsel against deference.

Part I of this Article begins by explaining the fundamentals of injunctions, describing how they are entered and enforced. It then examines the wide range of interpretive methods courts have used to interpret them.

Part II begins building the case for a modified textualist approach to interpreting injunctions. It explains that textualism better promotes the values of providing notice and constraining government action than other methods of interpretation. It goes on to show that textualism also aligns well with the Federal Rules of Civil Procedure and analogous state provisions that require courts to clearly specify the terms of injunctions. This Part then addresses three major objections to a textualist approach. One is the practical argument that textualism makes it easier for parties to circumvent injunctions. Another is the prudential objection that a textualist approach may lead judges to enter unnecessarily broad injunctions to avoid such circumvention. Finally, this Part considers the philosophical argument that textualism is inapt because the “law” created by the injunction is really the intent of the drafter, and the terms of the injunction are merely evidence of that intent.

Part III more fully explores the contours of our proposal. It begins by suggesting that, although courts generally should interpret injunctions based on textualist principles, they should construe provisions in an injunction that quote or incorporate extrinsic legal authorities according to the interpretive methodologies the court would apply to those authorities in other contexts. This Part goes on to show why this modified textualist approach is appropriate not only for permanent injunctions, but for all other types of injunctions—including temporary restraining orders, preliminary injunctions, and consent decrees—as well. Finally, this Part recognizes that, although courts should adopt modified textualism to interpret injunctions, they still may consider non-textual factors in exercising their discretion as to whether to hold violators in contempt. This approach provides clarity about the meaning of an injunction, while mitigating some of the potential harshness of textualism by permitting courts to opt against punishing all violations of the text.

Part IV turns from the question of how to interpret injunctions to the issue of who should have power to ultimately determine their meaning. Building on the arguments developed in earlier Parts, it argues that appellate courts should determine the meaning of injunctions de novo, rather than mechanically adopting or deferentially reviewing trial courts’ interpretations.

  1. * Judge John J. Parker Distinguished Professor of Law and Associate Dean, University of North Carolina School of Law.
  2. ** Associate Professor, Florida State University (FSU) College of Law. The authors are grateful for helpful feedback and suggestions from Sam Bray, Richard Fallon, Carissa Hessick, Doug Laycock, Leigh Osofksy, and Caprice Roberts, as well as the participants at the Notre Dame Law School Remedies Roundtable and 2018 Southeastern Association of Law Schools Remedies Discussion Group.
  3. F.W. Maitland, Equity 254 (A.H. Chaytor & W.J. Whittaker eds., 1929).
  4. Int’l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 826–27 (1994) (discussing the distinction between criminal and civil contempt); see also Joseph Moskovitz, Contempt of Injunctions, Civil and Criminal, 43 Colum. L. Rev. 780, 780–81 (1943) (explaining that the “distinction” between civil and criminal contempt “is made decisive in such vital matters as parties, procedure, evidence, judgments, and review”).
  5. See Owen M. Fiss, The Civil Rights Injunction 4–5 (1978).
  6. See Michael T. Morley, Disaggregating the History of Nationwide Injunctions: A Response to Professor Sohoni, 72 Ala. L. Rev. 239 (2020) (explaining how nationwide defendant-oriented injunctions are a relatively recent phenomenon); see also Samuel L. Bray, Multiple Chancellors: Reforming the National Injunction, 131 Harv. L. Rev. 417, 440 (2017) (tracing the rise of nationwide injunctions in the 1960s).
  7. Compare Abbott Labs. v. TorPharm, Inc., 503 F.3d 1372, 1382 (Fed. Cir. 2007) (“[I]nterpretation of the terms of an injunction is a question of law we review de novo.”), with In re Managed Care, 756 F.3d 1222, 1234 (11th Cir. 2014) (concluding that a court should give “great deference” to a judge’s interpretation of an injunction that he entered).
  8. See, e.g., Jack M. Balkin, Living Originalism (2011); Keith E. Whittington, Constitutional Construction: Divided Power and Constitutional Meaning (1999); Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment (1997); Robert H. Bork, The Tempting of America: The Political Seduction of the Law (1990).
  9. See, e.g., Antonin Scalia, A Matter of Interpretation (2d ed. 2018); William N. Eskridge, Jr., Interpreting Law: A Primer on How to Read Statutes and the Constitution (2016); Robert A. Katzmann, Judging Statutes (2014).
  10. See, e.g., Cass R. Sunstein, Chevron as Law, 107 Geo. L.J. 1613 (2019); Kevin M. Stack, Interpreting Regulations, 111 Mich. L. Rev. 355 (2012).
  11. See, e.g., Omri Ben-Shahar & Lior Jacob Strahilevitz, Interpreting Contracts via Surveys and Experiments, 92 N.Y.U. L. Rev. 1753 (2017); Richard A. Posner, The Law and Economics of Contract Interpretation, 83 Tex. L. Rev. 1581 (2005).
  12. See, e.g., Kent Greenawalt, A Pluralist Approach to Interpretation: Wills and Contracts, 42 San Diego L. Rev. 533, 534 (2005); Joseph Warren, Interpretation of Wills—Recent Developments, 49 Harv. L. Rev. 689 (1936).
  13. No article specifically focuses on the unique interpretive concerns that injunctions raise. Professor Timothy Jost analyzed some of those issues in his work on modifying injunctions. See Timothy Stoltzfus Jost, From Swift to Stotts and Beyond: Modification of Injunctions in the Federal Courts, 64 Tex. L. Rev. 1101, 1104–05 (1986). Other pieces have briefly touched on the topic as it arises in particular contexts, such as abstention, see Matthew D. Staver, The Abstention Doctrines: Balancing Comity with Federal Court Intervention, 28 Seton Hall L. Rev. 1102, 1137–38 (1998), and anti-gang injunctions, see Beth Caldwell, Criminalizing Day-to-Day Life: A Socio-Legal Critique of Gang Injunctions, 37 Am. J. Crim. L. 241, 280–81 (2010).
  14. See, e.g., Steven Seidenberg, Fast-Forward: Federal Circuit Makes It Easier to Enforce Injunctions in Patent Cases, 17 ABA J. 16, 16 (Aug. 2011) (“[A] contempt proceeding is usually heard by the same judge who issued the injunction . . . .”).
  15. For seminal discussions of textualism in statutory interpretation, see John F. Manning, Textualism and the Equity of the Statute, 101 Colum. L. Rev. 1 (2001) [hereinafter Manning, Equity], and John F. Manning, Textualism and Legislative Intent, 91 Va. L. Rev. 419 (2005) [hereinafter Manning, Textualism].
  16. Fed. R. Civ. P. 65(d)(1)(B).
  17. In making this textualist proposal, we do not seek to engage with objections to the entire endeavor of textualism, such as whether the ordinary meaning of language can be derived without considering purpose driving that language. See, e.g., Richard A. Posner, The Problems of Jurisprudence 22–69 (1990); Richard H. Fallon, Jr., The Statutory Interpretation Muddle, 114 Nw. U. L. Rev. 269, 279 (2019); William N. Eskridge, Jr. & Philip P. Frickey, Statutory Interpretation as Practical Reasoning, 42 Stan. L. Rev. 321, 340–45 (1990). Instead, we rely on the work of the many others who have established that it is generally possible to determine the “ordinary meaning” of language independent of the lawmaker’s intent or purpose. See, e.g., John F. Manning, What Divides Textualists from Purposivists?, 106 Colum. L. Rev. 70, 79 (2006) (arguing that ordinary meaning can be derived by reading text through the lens of a “community’s shared conventions”); Jeremy Waldron, Legislators’ Intentions and Unintentional Legislation, in Law and Interpretation 329, 339 (Andrei Marmor ed., 1995) (arguing that shared conventions inform the meaning of language).
  18. In other contexts, courts will sometimes apply special treatment to a legal provision that quotes an extrinsic legal authority. For example, courts generally apply Auer deference to agencies’ interpretations of their own regulations, except for regulations that merely reiterate statutory provisions. See Gonzales v. Oregon, 546 U.S. 243, 256–57 (2006) (stating that deference under Auer v. Robbins, 519 U.S. 452 (1997), does not extend to agency rules that merely quote statutes).
  19. See Paul Horwitz, Three Faces of Deference, 83 Notre Dame L. Rev. 1061, 1078 (2008) (identifying the two broad categories of justifications for deference: legal authority and epistemic authority).
  20. Injunction, Black’s Law Dictionary 520 (10th ed. 2014); 43A C.J.S. Injunctions § 1 (2004) (“An injunction is a judicial order requiring a person to do or refrain from doing certain acts.”).
  21. The heart of the ongoing debate over nationwide injunctions—more properly called “defendant-oriented injunctions”—concerns whether a court must tailor an injunction to protect only the rights of the plaintiffs before it, or instead may expand the order to protect the rights of third-party non-litigants as well. See Michael T. Morley, Disaggregating Nationwide Injunctions, 71 Ala. L. Rev. 1, 28–29 (2019).
  22. See, e.g., Nw. Indian Cemetery Protective Ass’n v. Peterson, 565 F. Supp. 586, 606 (N.D. Cal. 1983) (after a trial, permanently enjoining road construction in portions of a national forest), aff’d in part, vacated in part 764 F.2d 581 (9th Cir. 1985), rev’d sub nom. Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439 (1988).
  23. See Winter v. Nat. Res. Def. Council, 555 U.S. 7, 22 (2008) (“Our frequently reiterated standard requires plaintiffs seeking preliminary relief to demonstrate that irreparable injury is likely in the absence of an injunction.”).
  24. Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981) (“The purpose of a preliminary injunction is merely to preserve the relative positions of the parties until a trial on the merits can be held.”); accord Benisek v. Lamone, 138 S. Ct. 1942, 1945 (2018) (per curiam); see Kevin J. Lynch, The Lock-In Effect of Preliminary Injunctions, 66 Fla. L. Rev. 779, 817 (2014) (“When a preliminary injunction is granted, it merely preserves the status quo long enough for a decision to be reached on the merits . . . .”); Morton Denlow, The Motion for a Preliminary Injunction: Time for a Uniform Federal Standard, 22 Rev. Litig. 495, 507 (2003) (“Generally there are three purposes for granting a preliminary injunction: (1) maintaining the status quo, (2) preserving the court’s ability to render a meaningful decision, and (3) minimizing the risk of error.”).
  25. Fed. R. Civ. P. 65(a)(1).
  26. See, e.g., Fed. R. Civ. P. 65(b)(1) (authorizing TROs “without . . . notice to the adverse party” if the movant establishes that “immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard”).
  27. Local No. 93, Int’l Ass’n of Firefighters v. City of Cleveland, 478 U.S. 501, 522 (1986) (explaining that a consent decree draws its force from “the agreement of the parties, rather than the force of the law upon which the complaint was originally based”).
  28. eBay, Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006). These standards are only presumptive; Congress may change or eliminate them for a particular federal cause of action through clear statutory language. See Michael T. Morley, Enforcing Equality: Statutory Injunctions, Equitable Balancing Under eBay, and the Civil Rights Act of 1964, 2014 U. Chi. Legal F. 177, 190–94 [hereinafter Morley, Enforcing Equality]. Many states have similar standards for granting injunctions, see 43A C.J.S. Injunctions, supra note 18, § 42 (listing various states imposing similar requirements), although state courts may interpret and apply them differently than federal courts, see Michael T. Morley, Beyond the Elements: Erie and the Standards for Preliminary and Permanent Injunctions, 52 Akron L. Rev. 457, 465–68 (2018) [hereinafter Morley, Beyond the Elements].
  29. See Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 546 n.12 (1987) (noting the close relationship between the standards for preliminary and permanent injunctive relief); see also 42 Am. Jur. 2d Injunctions § 8, Westlaw (database updated 2021). To obtain a preliminary injunction, a party must show that he is “likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, 555 U.S. 7, 20 (2008). The only differences between this standard and the requirements for permanent relief are that the plaintiff must show only a likelihood of success on the merits rather than actual success, and the court need not separately consider whether an adequate remedy at law exists. Id. The requirements for obtaining a TRO and a preliminary injunction are the same, except the plaintiff seeking a TRO must also demonstrate that circumstances made it impracticable or impossible to notify opposing counsel. See Fed. R. Civ. P. 65(b)(1); S. Cagle Juhan & Greg Rustico, Jurisdiction and Judicial Self-Defense, 165 U. Pa. L. Rev. Online 123, 126 (2017) (“[W]hen considering motions seeking TROs, courts use the same factors as for PIs . . . .”).
  30. See Winter, 555 U.S. at 32 (“An injunction is a matter of equitable discretion.”); Abbott Labs. v. Gardner, 387 U.S. 136, 148 (1967) (“[I]njunctive and declaratory judgment remedies are discretionary . . . .”). Because trial courts have such broad discretion concerning injunctions, appellate courts typically review both the decision to enter such orders, as well as their scope, only for abuse of discretion. United States v. E.I. du Pont de Nemours & Co., 366 U.S. 316, 323 (1961). Nevertheless, on some occasions, appellate courts have engaged in detailed line-by-line parsing of lengthy injunctions, adjusting them as required to ensure their validity, see, e.g., Hartford-Empire Co. v. United States, 323 U.S. 386, 410–35 (1945).
  31. In Local No. 93, 478 U.S. at 525–26, the U.S. Supreme Court held that a federal court may enter a consent decree if it has jurisdiction over the case, the decree “come[s] within the general scope of the case made by the pleadings,” it “further[s] the objectives of the law upon which the complaint was based,” and it does not affirmatively require “unlawful” action.
  32. Ethyl Gasoline Corp. v. United States, 309 U.S. 436, 461 (1940); accord FTC v. Nat’l Lead Co., 352 U.S. 419, 430 (1957) (“[T]he Court is obliged not only to suppress the unlawful practice but to take such reasonable action as is calculated to preclude the revival of the illegal practices.”); see also Tracy A. Thomas, The Prophylactic Remedy: Normative Principles and Definitional Parameters of Broad Injunctive Relief, 52 Buff. L. Rev. 301, 314 (2004) (“[T]here are two definitive attributes of the prophylactic remedy: it is (1) injunctive relief with a preventive goal, (2) that imposes specific measures reaching affiliated legal conduct that contributes to the primary harm.”).
  33. Such broader relief is especially appropriate when the defendant has engaged in knowing and intentional wrongdoing. United States v. U.S. Gypsum Co., 340 U.S. 76, 89–90 (1950) (holding that people who willfully violate the law “call for repression by sterner measures than where the steps could reasonably have been thought permissible”).
  34. Courts may also use injunctions to “cure the ill effects of the illegal conduct” by prohibiting the defendants from profiting from, or enjoying other benefits of, their past illegal activities. Id. at 88–89. For example, an injunction may cancel a contract executed as the result of a price-fixing conspiracy, even though the parties might have entered into the same contract without violating antitrust laws. See United States v. Bausch & Lomb Optical Co., 321 U.S. 707, 724 (1944).
  35. Swift & Co. v. United States, 196 U.S. 375, 396 (1905); see NLRB v. Express Publ’g Co., 312 U.S. 426, 435–36 (1941) (“[T]he mere fact that a court has found that a defendant has committed an act in violation of a statute does not justify an injunction broadly to obey the statute,” when that statute prohibits conduct “unlike and unrelated to that with which he was originally charged.”). That said, some precedent suggests that when the Government wins an injunction against violations of federal statutes, it should get the benefit of the doubt about the proper scope of the order to ensure the law is adequately enforced. Local 167, Int’l Brotherhood of Teamsters v. United States, 291 U.S. 293, 299 (1934) (“In framing [the injunction’s] provisions doubts should be resolved in favor of the Government and against the conspirators.”); accord Hartford-Empire, 323 U.S. at 409 (suggesting that a court may “resolve all doubts in favor of the Government” in framing injunctions).
  36. Fed. R. Civ. P. 65(d)(1)(A). Forty-four states have promulgated provisions comparable to Federal Rule 65. See Ala. R. Civ. P. 65; Alaska R. Civ. P. 65; Ariz. R. Civ. P. 65; Ark. R. Civ. P. 65; Cal. Code Civ. Proc. § 65; Colo. R. Civ. P. 65; Conn. Gen. Stat. Ann. § 53a-206; Del. Ch. Ct. R. 65; Fla. R. Civ. P. 1.610; Ga. Code Ann. § 9-11-65; Haw. R. Civ. P. 65; Idaho R. Civ. P. 65; 735 Ill. Comp. Stat. Ann. 5/11-101; Ind. R. Trial P. 65; Kan. Stat. Ann. § 60-906; Ky. R. Civ. P. 65.02; La. Code Civ. Proc. Ann. art. 3605; Me. R. Civ. P. 65; Md. R. 15-502; Mass. R. Civ. P. 65; Minn. R. Civ. P. 65.04; Miss. R. Civ. P. 65; Mo. Sup. Ct. R. 92.02; Mont. Code Ann. § 27-19-105; Neb. Rev. Stat. Ann. § 25-1064.01; Nev. R. Civ. P. 65; N.H. Sup. Ct. R. 48; N.J. Ct. R. 4:52-4; N.C. R. Civ. P. 65; N.D. R. Civ. P. 65; Ohio R. Civ. P. 65; Okla. Stat. tit. xii, § 12-1386; Or. R. Civ. P. 79; R.I. Super. Ct. R. Civ. P. 65; S.C. R. Civ. P. 65; S.D. Codified Laws § 15-6-65(d); Tenn. R. Civ. P. 65.02; Tex. R. Civ. P. 683; Utah R. Civ. P. 65A; Vt. R. Civ. P. 65; Wash. Super. Ct. Civ. R. 65; W. Va. R. Civ. P. 65; Wyo. R. Civ. P. 65. Of the other six states, five—Iowa, New York, Pennsylvania, Virginia, and Wisconsin—have adopted similar requirements by common law. 205 Corp. v. Brandow, 517 N.W.2d 548, 552 (Iowa 1994); Jacquin v. Pennick, 49 A.2d 769, 772 (Pa. Commw. Ct. 1982); Rollins v. Commonwealth, 177 S.E.2d 639, 642 (Va. 1970); Dalton v. Meister, 267 N.W.2d 326, 330 (Wis. 1978); see also 67A N.Y. Jur. 2d Injunctions § 167 (2021) (gathering cases describing New York’s specificity requirement for injunctions). Only New Mexico appears not to have adopted specificity requirements.
  37. Fed. R. Civ. P. 65(d)(1)(B)–(C). Wright, Miller, and Kane’s treatise contends that the “requirement of ‘reasonable detail’ appears to be repetitious of the specificity requirement.” 11A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure – Civil § 2955 (3d ed. 2013). Whether an injunction is sufficiently clear depends on a holistic reading of the order. An otherwise vague provision in an injunction may provide adequate notice when read in conjunction with the order’s other provisions. Schine Chain Theatres, Inc. v. United States, 334 U.S. 110, 126 (1948) (noting that potentially vague provisions in an injunction must be “read . . . in light of the other paragraphs of the decree”).
  38. Wright et al., supra note 35, § 2955; see also 13 William Moore, Federal Practice – Civil § 65.60[3] (“A court must frame its injunctions or restraining orders so that those who must obey them will know precisely what the court intends to forbid or require.”). Rule 65 further provides that an injunction binds only the parties to a case, their officers and agents, as well as third parties acting in concert with them, if they have notice of it. Fed. R. Civ. P. 65(d)(2). One of the authors has argued that Rule 65(d)(2) is a substantive rule that exceeds the judiciary’s rulemaking authority under the Rules Enabling Act, but the principles it codifies are consistent with both traditional equitable principles as well as the law of nearly all states. Morley, supra note 19, at 49 n.277.
  39. Schmidt v. Lessard, 414 U.S. 473, 476 (1974); see also Wright et al., supra note 35, § 2955 (explaining that this specificity requirement is “designed to protect those who are enjoined by informing them of what they are called upon to do or refrain from doing in order to comply with the injunction or restraining order”).
  40. Schmidt, 414 U.S. at 477.
  41. Milk Wagon Drivers Union v. Meadowmoor Dairies, Inc., 312 U.S. 287, 296 (1941). Interestingly, the Court has also suggested, “[A] judge himself should draw the specific terms of such restraint and not rely on drafts submitted by the parties.” Id.
  42. Regal Knitwear Co. v. NLRB, 324 U.S. 9, 10, 15 (1945) (upholding validity of an injunction which specified that it applied not only to the named respondent but its “successors and assigns” as well, because “[i]f defendants enter upon transactions which raise doubts as to the applicability of the injunction, they may petition the court granting it for a modification or construction of the order”); see also McComb v. Jacksonville Paper Co., 336 U.S. 187, 192 (1949) (upholding broad injunction in part based on respondents’ ability to “petition[] the District Court for a modification, clarification or construction of the order”); United States v. Crescent Amusement Co., 323 U.S. 173, 188 (1944) (suggesting that the “burden” of an injunction drafted in “general” terms can be “lightened by application to the court”).
  43. See N.Y. State Ass’n for Retarded Children, Inc. v. Carey, 706 F.2d 956, 967 (2d Cir. 1983) (Friendly, J.) (“The power of a court of equity to modify a decree of injunctive relief is long-established, broad, and flexible.”).
  44. Fed. R. Civ. P. 60(b)(5) (allowing a court to grant relief from an order when “applying it prospectively is no longer equitable”); see Rufo v. Inmates of Suffolk Cty. Jail, 502 U.S. 367, 383 (1992) (“[A] party seeking modification of a consent decree bears the burden of establishing that a significant change in circumstances warrants revision of the decree. . . . [and] the proposed modification is suitably tailored to the changed circumstance.”); cf. United States v. Swift & Co., 286 U.S. 106, 119 (1932) (holding that a district court may modify an antitrust consent decree upon a “clear showing of grievous wrong evoked by new and unforeseen conditions”); see generally 42 Am. Jur. 2d Injunctions § 288, Westlaw (database updated 2021) (summarizing the circumstances under which courts may modify or dissolve injunctions).
  45. Gunn v. Univ. Comm. to End War in Viet Nam, 399 U.S. 383, 389 (1970) (“An injunctive order is an extraordinary writ, enforceable by the power of contempt.”).
  46. See Local 28 of Sheet Metal Workers’ Int’l Ass’n v. EEOC, 478 U.S. 421, 443 (1986).
  47. Hicks v. Feiock, 485 U.S. 624, 631 (1988).
  48. Int’l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 828 (1994) (explaining that contempt sanctions may “punish a prior offense”).
  49. Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 441 (1911).
  50. Hicks, 485 U.S. at 632. Accordingly, defendants in criminal contempt proceedings are entitled to the same constitutional protections that apply in other criminal prosecutions. Id. (holding, in a contempt case, that “criminal penalties may not be imposed on someone who has not been afforded the protections that the Constitution requires of such criminal proceedings”). For example, defendants in criminal contempt proceedings have the rights to a jury trial (unless the punishment will be six months or less), Bloom v. Illinois, 391 U.S. 194, 210 (1968); to an attorney, Cooke v. United States, 267 U.S. 517, 537 (1925); and to have the prosecution prove its case beyond a reasonable doubt, Hicks, 485 U.S. at 632; Gompers, 221 U.S. at 444; see also U.S. Dep’t of Justice, Criminal Resource Manual § 754 (2012).
  51. United States v. United Mine Workers of Am., 330 U.S. 258, 303 (1947).
  52. Id. at 332 (Black, J., concurring in part and dissenting in part); Gompers, 221 U.S. at 441–42.
  53. See Local 28 of Sheet Metal Workers’ Int’l Ass’n v. EEOC, 478 U.S. 421, 443 (1986) (citing United Mine Workers, 330 U.S. at 303–04).
  54. Id.; Int’l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 828 (1994) (“The paradigmatic coercive, civil contempt sanction . . . involves confining a contemnor indefinitely until he complies with an affirmative command such as an order to pay alimony, or to surrender property ordered to be turned over to a receiver, or to make a conveyance.” (internal quotation marks omitted)).
  55. Bagwell, 512 U.S. at 838 (stating that courts may use the compensatory contempt power to “enter broad compensatory awards . . . through civil proceedings”); Doug Rendleman, Irreparability Resurrected?: Does a Recalibrated Irreparable Injury Rule Threaten the Warren Court’s Establishment Clause Legacy?, 59 Wash. & Lee L. Rev. 1343, 1379, 1390 (2002).
  56. United Mine Workers, 330 U.S. at 304.
  57. Gompers, 221 U.S. at 441–42. Although civil contempt may result in these harsh sanctions, fewer protections apply because it is not a criminal remedy. See Turner v. Rogers, 564 U.S. 431, 442 (2011) (“[W]here civil contempt is at issue, the Fourteenth Amendment’s Due Process Clause allows a State to provide fewer procedural protections than in a criminal case.”); Bagwell, 512 U.S. at 827 (holding that “[n]either a jury trial nor proof beyond a reasonable doubt” is necessary for imposing “civil contempt sanctions”).
  58. United Mine Workers, 330 U.S. at 304.
  59. Turner, 564 U.S. at 442 (“[O]nce a civil contemnor complies with the underlying order, he is purged of the contempt and free.”); see also Gompers, 221 U.S. at 442 (explaining that the respondent “can end the sentence and discharge himself at any moment by doing what he had previously refused to do”).
  60. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) (“Those who apply the rule to particular cases, must of necessity expound and interpret that rule.”); Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 53 (2012) (“Every application of a text to particular circumstances entails interpretation.”).
  61. 1 Charles Fisk Beach, Jr., Commentaries on the Law of Injunctions § 261, at 272 (1895) (“[W]hether or not there has been a breach of an injunction must often turn upon the scope of its terms.”).
  62. See Manning, Textualism, supra note 13, at 434 (stating that “modern textualists” look to the “ordinary meaning” of words and phrases, as well as “the relevant linguistic community’s (or sub-community’s) shared understandings and practices”).
  63. Manning, supra note 15, at 76 (explaining that textualism counsels a court to interpret legal writings based on how “a reasonable person would use language under the circumstances”).
  64. Chisom v. Roemer, 501 U.S. 380, 404 (1991) (Scalia, J., dissenting).
  65. (1801) 31 Eng. Rep. 962.
  66. Id. at 962. The injunction prohibited the defendant “from cutting down or felling any trees or timber standing or growing for ornament . . . of the mansion-house and buildings at Ombersley Court” and other nearby locations. Id.
  67. Id. at 964.
  68. Id. at 963–64. Woodward v. Earl Lincoln (1674) 36 Eng. Rep. 1000, provides another example of textualism. There, an injunction quieted possession of property. The enjoined individual later assisted a magistrate who lawfully seized the property for restitution. The court held that this assistance violated the injunction. Id.
  69. 402 U.S. 673 (1971).
  70. Id. at 676.
  71. Id.
  72. Id. at 674, 676.
  73. Id. at 677.
  74. Id. at 683.
  75. Id. at 677.
  76. Id.
  77. Id. at 677–78.
  78. Id. at 679.
  79. Id. at 681; see also United States v. Atl. Ref. Co., 360 U.S. 19, 23–24 (1959) (interpreting language in a consent decree based on its “normal meaning,” rather than adopting “another reading” which “might seem more consistent with the Government’s reasons for entering into the agreement in the first place”); Hughes v. United States, 342 U.S. 353, 356–57 (1952) (applying plain-meaning interpretation of consent decree). Justice Douglas’ dissent in Armour employed a purposivist approach, instead. He declared that the “evil at which the decree is aimed is combining meatpackers with companies in other food product areas.” Armour, 402 U.S. at 686 (Douglas, J., dissenting). That harm would occur, Justice Douglas said, regardless of whether Armour itself sold prohibited food products, or a company that dealt in such products acquired Armour instead. Id. at 687. Accordingly, he argued, despite the consent decree’s narrow language, it should be given a broader construction to promote its underlying goals more effectively.
  80. See Henry M. Hart, Jr. & Albert M. Sacks, The Legal Process: Basic Problems in the Making and Application of Law 1374 (William N. Eskridge, Jr. & Philip P. Frickey eds., 1994) (1958) (concluding that courts should “[i]nterpret the words of the statute immediately in question so as to carry out the purpose as best it can”); Max Radin, A Short Way with Statutes, 56 Harv. L. Rev. 388, 407 (1942); see also Cabell v. Markham, 148 F.2d 737, 739 (2d Cir. 1945) (Hand, J.) (“[S]tatutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.”).
  81. Manning, supra note 15, at 91 (“Purposivists give precedence to policy context.” (emphasis omitted)).
  82. See, e.g., Int’l Longshoreman’s & Warehouseman’s Union v. Juneau Spruce Corp., 342 U.S. 237, 243 (1952) (applying a “looser, more liberal meaning” to the statutory term “district court of the United States” in order to include Alaska’s territorial courts).
  83. See Church of the Holy Trinity v. United States, 143 U.S. 457, 459 (1892) (“[A] thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers . . . .”).
  84. See 1 Edward M. Dangel, Contempt § 242 (1939) (“[I]t is the spirit and not the letter of the command to which obedience is required, and it must be obeyed in good faith according to its spirit.”).
  85. Bolt v. Stanway (1795) 145 Eng. Rep. 965, 965; 2 Anst. 556, 556–57.
  86. Id.
  87. Id. at 965; 2 Anst. at 557; accord Chaplin v. Cooper (1812) 35 Eng. Rep. 7, 8; 1 V. & B. 16, 19; see also Axe v. Clarke (1779) 21 Eng. Rep. 383, 383–84; Dickens 549, 549–50 (concluding that requiring the sheriff to tender seized assets to satisfy a judgment violated an injunction prohibiting the plaintiff from recovering on that judgment); Robert Henley Eden, A Treatise on the Law of Injunctions 72–73 (1821) (agreeing that, when a court enjoins a person from suing to obtain someone else’s property, and the sheriff has attached that other person’s property, the enjoined party may not sue the sheriff to obtain the attached property). For another early example of purposivism, see St. John’s College, Oxford v. Carter (1839) 41 Eng. Rep. 191, 192; 4 My. & Cr. 497, 497–98 (holding that a defendant violated an injunction prohibiting him from chopping wood in Bagley Wood by encouraging others to chop the wood).
  88. 24 Eng. Rep. 1006; 3 P. Wms. 146.
  89. Id. at 1006; 3 P. Wms. at 146–47.
  90. Id. at 1006; 3 P. Wms. at 148. Although relatively rare today, injunctions prohibiting individuals from launching new legal proceedings were historically common. See Eden, supra note 85, at 68. Courts regularly applied purposivism in interpreting those types of injunctions to ensure that they did not unduly interfere with already pending actions. Id. at 69.
  91. 336 U.S. 187 (1949).
  92. Id. at 189.
  93. Id. at 190.
  94. Id.
  95. Id.
  96. Id.
  97. Id. at 195.
  98. Id. at 192.
  99. Id.
  100. Id. at 193.
  101. Id.
  102. Id. at 192. Justice Frankfurter—usually an avowed purposivist, see, e.g., Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 538–39 (1947)—joined with Justice Jackson to issue a strong textualist dissent. He declared that injunctions must be “explicit and precise.” McComb, 336 U.S. at 195 (Frankfurter, J., dissenting). He believed that the injunction at issue lacked the “clearness of command” required for a court to conclude that the defendants had disobeyed it. Id. at 196. “Behind the vague inclusiveness of an injunction like the one before us,” Frankfurter cautioned, “is the hazard of retrospective interpretation as the basis of punishment through contempt proceedings.” Id. at 197. He further warned that holding respondents in contempt for violating vague or general injunction provisions would encourage courts to draft orders with “indefinite terms.” Id. “To be both strict and indefinite” was “a kind of judicial tyranny.” Id. at 195.
  103. 312 U.S. 287 (1941).
  104. Id. at 291–92.
  105. Id. at 308 (Black, J., dissenting).
  106. Id.
  107. Id.
  108. Id. at 298 (majority opinion).
  109. Id. Justice Black, applying a primarily textualist approach, dissented, refusing to read such implicit limitations into the injunction. Rejecting Frankfurter’s interpretation, Black stated, “I find not even slight justification for an interpretation of this injunction so as to confine its prohibitions to conduct near stores dealing in respondent’s milk. Neither the language of the injunction nor that of the complaint which sought the injunction indicates such a limitation.” Id. at 310 (Black, J., dissenting). Black’s proposed methodology departed from textualism, however, because he argued that to interpret the injunction, the Court must consider not only the injunction itself, but also “the complaint, the answer, the evidence, the findings, and the decision and judgment of the Illinois courts.” Id. at 307.
  110. See, e.g., United States v. Klinger, 199 F.2d 645, 648 (2d Cir. 1952) (Hand, J.) (“[W]hat we do, and must do, is to project ourselves, as best we can, into the position of those who uttered the words, and to impute to them how they would have dealt with the concrete occasion.”), aff’d by an equally divided Court, 345 U.S. 979 (1953) (per curiam).
  111. Richard A. Posner, Statutory Interpretation—in the Classroom and in the Courtroom, 50 U. Chi. L. Rev. 800, 817 (1983) (“The judge should try to think his way as best he can into the minds of the enacting legislators and imagine how they would have wanted the statute applied to the case at bar.”).
  112. 280 U.S. 168 (1929).
  113. 28 U.S.C. § 380 (1925) (current version at 28 U.S.C. § 2284 (2018)); Michael T. Morley, Vertical Stare Decisis and Three-Judge District Courts, 108 Geo. L.J. 699, 727–33 (2020).
  114. Hobbs, 280 U.S. at 170.
  115. Id. at 171.
  116. Id.
  117. Id. at 172.
  118. Id.
  119. See Ronald Dworkin, Law’s Empire 95 (1986) (explaining that pragmatism counsels courts to “make whatever decisions seem to them best for the community’s future, not counting any form of consistency with the past as valuable for its own sake”); Richard A. Posner, Law, Pragmatism, and Democracy 59–60 (2003) (arguing for legal interpretations that produce the best outcomes); Anita S. Krishnakumar, Dueling Canons, 65 Duke L.J. 909, 992 (2016) (explaining that pragmatism “posits only that judges should construe statutes by focusing on the practical consequences that will result from an interpretation and seeking the best result”).
  120. Krishnakumar, supra note 117, at 993 (noting that pragmatists argue that interpretation should take into account both social context and more tangible consequences).
  121. Id. (noting that pragmatists argue that “the goal of statutory interpretation should be to produce the best results for society”) (citing Richard A. Posner, The Problematics of Moral & Legal Theory 227 (1999); Richard A. Posner, The Problems of Jurisprudence 73–74 (1990)).
  122. 62 F.3d 903, 906 (7th Cir. 1995) (Posner, C.J.).
  123. Id. at 905.
  124. Id.
  125. Id. at 907.
  126. Id.
  127. Id. at 906.
  128. Manning, supra note 15, at 76 (explaining that textualism counsels a court to interpret legal writings based on how “a reasonable person would use language under the circumstances”).
  129. Although a court should generally employ textualism to determine the meaning of injunctions, we also propose that a court consider an injunction’s purpose when determining whether to impose sanctions on a violator. See infra Section III.C.
  130. See infra Section III.A.
  131. Manning, Equity, supra note 13, at 7 (arguing that textualism more faithfully implements legislative will than purposivism).
  132. See Heather K. Gerken & Ari Holtzblatt, The Political Safeguards of Horizontal Federalism, 113 Mich. L. Rev. 57, 87 (2014) (explaining how political minorities may use vetogates to block legislation).
  133. Frank H. Easterbrook, Statutes’ Domains, 50 U. Chi. L. Rev. 533, 547 (1983) (“Although legislators have individual lists of desires, priorities, and preferences, it turns out to be difficult, sometimes impossible, to aggregate these lists into a coherent collective choice.”).
  134. See id. at 546.
  135. U.S. Const. art. I, § 7. All states have a presentment requirement, see Jordan E. Pratt, Disregard of Unconstitutional Laws in the Plural State Executive, 86 Miss. L.J. 881, 910 (2017) (“Like the federal Constitution, all state constitutions require that, to become law, bills must either be passed by the legislature and approved by the governor, or enacted by the legislature over the governor’s veto.”), and forty-nine have bicameralism requirements, see Hillel Y. Levin, Stacie Patrice Kershner, Timothy D. Lytton, Daniel Salmon & Saad B. Omer, Stopping the Resurgence of Vaccine-Preventable Childhood Diseases: Policy, Politics, and Law, 2020 U. Ill. L. Rev. 233, 252 (discussing the “forty-nine states with bicameral legislatures”).
  136. Antonin Scalia & John F. Manning, A Dialogue on Statutory and Constitutional Interpretation, 80 Geo. Wash. L. Rev. 1610, 1612 (2012) (“Nothing but the text has received the approval of the majority of the legislature and of the President, assuming that he signed it rather than vetoed it and had it passed over his veto. Nothing but the text reflects the full legislature’s purpose.”).
  137. Baker v. Gen. Motors Corp., 522 U.S. 222, 236 (1998) (“Sanctions for violations of an injunction, in any event, are generally administered by the court that issued the injunction.”).
  138. See Seidenberg, supra note 12, at 16 (“[A] contempt proceeding is usually heard by the same judge who issued the injunction . . . .”).
  139. Note, Textualism as Fair Notice, 123 Harv. L. Rev. 542, 557 (2009) [hereinafter Fair Notice] (“[T]extualism by its very definition seeks to satisfy this dictate of fair notice . . . .”).
  140. See Smith v. Goguen, 415 U.S. 566, 572 & n.8 (1974) (quoting Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939)).
  141. Carissa Byrne Hessick & F. Andrew Hessick, Procedural Rights at Sentencing, 90 Notre Dame L. Rev. 187, 210 (2014).
  142. See United States v. Davis, 139 S. Ct. 2319, 2325 (2019) (“Vague laws contravene the ‘first essential of due process of law’ that statutes must give people ‘of common intelligence’ fair notice of what the law demands of them.” (quoting Connally v. Gen. Constr. Co., 269 U.S. 385, 391 (1926))).
  143. U.S. Const. art. I, § 9, cl. 3 (prohibiting Congress from enacting ex post facto laws); id. art. I, § 10, cl. 1 (prohibiting states from enacting ex post facto laws); see Bouie v. City of Columbia, 378 U.S. 347, 353–54 (1964).
  144. Charles Stewart Drewry, A Treatise on the Law and Practice of Injunctions 398 (1842) (“To be guilty of a breach of injunction, the party must have notice of it . . . .”).
  145. See, e.g., Marquis of Downshire v. Lady Sandys (1801) 31 Eng. Rep. 962, 963; 6 Ves. Jun. 108, 109 (observing the duty of the courts to define an injunction’s terms “with precision and accuracy” so that it “might be clearly understood by the parties”); Skip v. Harwood (1747) 26 Eng. Rep. 1125, 1125; 3 Atk. 564, 565 (discussing the importance of notice in an injunction).
  146. Cal. Artificial Stone Paving Co. v. Molitor, 113 U.S. 609, 618 (1885).
  147. Taggart v. Lorenzen, 139 S. Ct. 1795, 1802 (2019) (“‘[B]asic fairness requir[es] that those enjoined receive explicit notice’ of ‘what conduct is outlawed’ before being held in civil contempt . . . .” (quoting Schmidt v. Lessard, 414 U.S. 473, 476 (1974) (per curiam))).
  148. United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95 (1820); see 1 William Blackstone, Commentaries *88 (“Penal statutes must be construed strictly.”).
  149. United States v. Davis, 139 S. Ct. 2319, 2333 (2019).
  150. See id. (observing that the rule of lenity “is founded on ‘the tenderness of the law for the rights of individuals’ to fair notice of the law” (quoting Wiltberger, 18 U.S. (5 Wheat.) at 95)); United States v. Bass, 404 U.S. 336, 348 (1971) (explaining that the rule of lenity arises in part from “the instinctive distaste against men languishing in prison unless the lawmaker has clearly said they should” (quoting Henry J. Friendly, Mr. Justice Frankfurter and the Reading of Statutes, in Benchmarks 196, 209 (1967))); see also United States v. Santos, 553 U.S. 507, 514 (2008) (plurality opinion) (stating that the rule of lenity “vindicates the fundamental principle that no citizen should be held accountable for a violation of a statute whose commands are uncertain, or subjected to punishment that is not clearly prescribed”).
  151. See Leocal v. Ashcroft, 543 U.S. 1, 11 n.8 (2004) (“Because we must interpret the statute consistently, whether we encounter its application in a criminal or noncriminal context, the rule of lenity applies.”); United States v. Thompson/Ctr. Arms Co., 504 U.S. 505, 517–18 (1992) (plurality opinion) (applying the rule of lenity to a “tax statute . . . in a civil setting” because the statute “has criminal applications”).
  152. See Clark v. Martinez, 543 U.S. 371, 380–81 (2005) (holding that, if a court must construe a statute’s language a particular way in one setting, that interpretation carries over to other settings, and declaring that “[t]he lowest common denominator, as it were, must govern”).
  153. Although the rule of lenity is a doctrine of statutory interpretation, a handful of courts have applied it when interpreting injunctions to decide whether to impose criminal contempt. See, e.g., Gates v. Pfeiffer, No. G039450, 2009 WL 693468, at *9 (Cal. Ct. App. Mar. 17, 2009) (citing Lopez v. Superior Court, 72 Cal. Rptr. 3d 929, 935 (Ct. App. 2008)) (“As a penal law, the restraining order was subject to the so-called ‘rule of lenity,’ which requires that ambiguities in penal laws be construed in favor of defendants.”).
  154. See supra notes 44–45 and accompanying text.
  155. See supra notes 46–49 and accompanying text.
  156. Cf. Leocal, 543 U.S. at 11 n.8 (explaining that “[b]ecause we must interpret the statute consistently, whether we encounter its application in a criminal or noncriminal context, the rule of lenity applies”).
  157. Taggart v. Lorenzen, 139 S. Ct. 1795, 1801–02 (2019) (justifying the rule of strict construction in a compensatory contempt case on the ground that coercive contempt can be a severe remedy); see also Shillitani v. United States, 384 U.S. 364, 369 (1966) (stating that civil contempt constitutes “punishment,” but that it has a different “character and purpose” than criminal contempt (quoting Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 441 (1911))).
  158. See Fair Notice, supra note 137, at 557 (“Textualism as fair notice emphasizes the importance of interpreting laws as their subjects would fairly have expected them to apply.”).
  159. See Manning, supra note 15, at 76 (explaining that textualism counsels a court to interpret legal writings based on how “a reasonable person would use language under the circumstances”).
  160. See Hart & Sacks, supra note 78, at 1374 (concluding that courts should “[i]nterpret the words of the statute immediately in question so as to carry out the purpose as best it can”).
  161. See Frank H. Easterbrook, The Role of Original Intent in Statutory Construction, 11 Harv. J.L. & Pub. Pol’y 59, 63 (1988) (“[L]aw is like a vector. It has length as well as direction. We must find both, or we know nothing of value. To find length we must take account of objectives, of means chosen, and of stopping places identified.”).
  162. See Posner, supra note 109, at 817 (explaining that, under an intentionalist approach, “the task for the judge . . . [is] to think his way as best he can into the minds of the enacting legislators and imagine how they would have wanted the statute applied to the case at bar”).
  163. Krishnakumar, supra note 117, at 993 (noting that pragmatists argue that interpretation should consider social context and practical consequences).
  164. Id. at 915 (noting that pragmatism “does not claim to promote predictability”).
  165. See Manning, Textualism, supra note 13, at 434 (stating that “modern textualists” look to the “ordinary meaning” of words and phrases, as well as “the relevant linguistic community’s (or sub-community’s) shared understandings and practices”).
  166. Smith v. United States, 508 U.S. 223, 242 (1993) (Scalia, J., dissenting) (“[T]o speak of ‘using a firearm’ is to speak of using it for its distinctive purpose, i.e., as a weapon. To be sure, ‘one can use a firearm in a number of ways,’ . . . including as an article of exchange, . . . but that is not the ordinary meaning of ‘using’ [it].” (footnote omitted)).
  167. The rule of lenity would point toward the narrower definition of use, of course.
  168. Foucha v. Louisiana, 504 U.S. 71, 80 (1992) (quoting Zinermon v. Burch, 494 U.S. 113, 125 (1990)) (noting that protection from “arbitrary, wrongful government actions” is a core feature of due process).
  169. The Federalist No. 47, at 316 (James Madison) (Harvard Univ. Press ed. 2009) (praising separation of powers on the ground that “accumulation of all powers, legislative, executive, and judiciary, in the same hands . . . may justly be pronounced the very definition of tyranny”); see INS v. Chadha, 462 U.S. 919, 959 (1983) (“[W]e have not yet found a better way to preserve freedom than by making the exercise of power subject to the carefully crafted restraints spelled out in the Constitution.”).
  170. See The Federalist No. 47 (James Madison); Rebecca L. Brown, Separated Powers and Ordered Liberty, 139 U. Pa. L. Rev. 1513, 1534 (1991) (“[S]eparation of powers [is] aimed at the interconnected goals of preventing tyranny and protecting liberty.”); see also Ilan Wurman, Constitutional Administration, 69 Stan. L. Rev. 359, 368–69 (2017).
  171. Of course, injunctions predate modern conceptions of separation of powers. But the primary reason the Framers adopted separation of powers as a critical structural principle for the Constitution was to provide increased protection for individual liberty compared to the traditional English system. See Erwin Chemerinsky, The Assault on the Constitution: Executive Power and the War on Terrorism, 40 U.C. Davis L. Rev. 1, 16–17 (2006) (“Having endured the tyranny of the King of England, the framers viewed the principle of separation of powers as the central guarantee of a just government.”).
  172. Int’l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 840, (1994) (Scalia, J., concurring) (“That one and the same person should be able to make the rule, to adjudicate its violation, and to assess its penalty is out of accord with our usual notions of fairness and separation of powers.”).
  173. Charles de Montesquieu, The Spirit of the Laws 174 (Thomas Nugent trans., 1873) (1748) (stating that, if those functions are united, “the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator” (emphasis added)); accord The Federalist No. 47 (James Madison); see also Irving R. Kaufman, The Essence of Judicial Independence, 80 Colum. L. Rev. 671, 701 (1980) (arguing that separating the judiciary from the legislature is central to ensuring “impartial justice”).
  174. Doug Rendleman, Preserving the Nationwide National Government Injunction to Stop Illegal Executive Branch Activity, 91 U. Colo. L. Rev. 887, 931 (2020) (“The structural injunction has faced criticism on two major grounds: federalism and separation of powers.”).
  175. Fed. R. Civ. P. 65(d)(1)(B)–(C).
  176. See supra note 34.
  177. Wright et al., supra note 35, § 2955 (explaining that, since Rule 65(d)’s language “strongly suggests that only those acts specified by the order will be treated as within its scope and that no conduct or action will be prohibited by implication, all omissions or ambiguities in the order will be resolved in favor of any person charged with contempt”).
  178. See, e.g., Schering Corp. v. Ill. Antibiotics Co., 62 F.3d 903, 906 (7th Cir. 1995); see also supra notes 120–25 (discussing Schering).
  179. See Schmidt v. Lessard, 414 U.S. 473, 476 (1974) (declining to enforce an injunction on the grounds it violated Rule 65(d), because the order was neither “‘specific’ in outlining the ‘terms’ of the injunctive relief granted,” nor “describe[d] ‘in reasonable detail . . . the act or acts sought to be restrained’”); see also Int’l Longshoreman’s Ass’n v. Phila. Marine Trade Ass’n, 389 U.S. 64, 76 (1967) (overturning “unintelligible” injunction); Hartford-Empire Co. v. United States, 323 U.S. 386, 410 (1945); see also Atiyeh v. Capps, 449 U.S. 1312, 1317 (1981) (Rehnquist, C.J., in chambers) (staying order requiring prison officials to reduce prison population by “at least 250” by a particular date because it “falls short of this specificity requirement”).
  180. In Madsen v. Women’s Health Center, 512 U.S. 753, 808–09 (1994), Justice Scalia suggested in his concurrence that the injunction at issue should be read narrowly to satisfy the precision requirement. But in doing so, Justice Scalia did not suggest that a judge’s intent could be used to cure an otherwise defective injunction. Instead, he effectively used the precision requirement as the basis for a substantive canon of interpretation, analogous to the constitutional avoidance principle. Cf. NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 507 (1979) (declining to interpret a federal law in a way that would raise “difficult and sensitive questions” under the First Amendment). Under Justice Scalia’s approach, courts should reject a broad interpretation of an injunction that would cause that injunction to violate Rule 65(d)’s “axiomatic requirement that its terms be drawn with precision.” Madsen, 512 U.S. at 809.
  181. See, e.g., Malley v. Briggs, 475 U.S. 335, 342 (1986) (“[O]ur role is to interpret the intent of Congress in enacting [42 U.S.C.] § 1983 . . . .”).
  182. See, e.g., United States v. W.T. Grant Co., 345 U.S. 629, 633 (1953) (“The purpose of an injunction is to prevent future violations” of the underlying legal provisions.); cf. Cont’l Ill. Nat’l Bank & Trust Co. v. Chi., Rock Island & Pac. Rye Co., 294 U.S. 648, 676 (1935) (noting that an injunction may be issued “for the purpose of protecting and preserving the jurisdiction of the court ‘until the object of the suit is accomplished and complete justice done between the parties’” (quoting Looney v. E. Tex. R.R. Co., 247 U.S. 214, 221 (1918))).
  183. See supra note 77.
  184. See supra notes 108–09 and accompanying text.
  185. See, e.g., Chi. Bd. of Educ. v. Substance, Inc., 354 F.3d 624, 632 (7th Cir. 2003) (Posner, J.) (describing an injunction as “appallingly bad” and ordering its modification sua sponte); W. Water Mgmt., Inc. v. Brown, 40 F.3d 105, 109 (5th Cir. 1994) (recognizing a district court’s authority to modify injunctions sua sponte with prior notice to the parties). See generally Wright et al., supra note 35, § 2961 (noting the “universally recognized principle that a court has continuing power to modify or vacate” an injunction).
  186. See Jost, supra note 11, at 1109 (explaining how courts can use their power to modify injunctions to address unexpected changes in circumstance); see, e.g., Chrysler Corp. v. United States, 316 U.S. 556, 560 (1942) (modifying injunction in light of the parties’ actions).
  187. See United States v. Armour & Co., 402 U.S. 673, 681–82 (1971) (refusing to interpret a consent decree beyond its “four corners,” and declaring that the Government should instead ask the trial court to modify the decree if it is not achieving its intended purposes). Requiring a textualist approach would also incentivize judges to craft injunctions more precisely, to accurately embody their intended proscriptions and promote their goals.
  188. See supra notes 31–33 and accompanying text.
  189. See id.
  190. This argument does not go to the nature of an injunction. Instead, it is an argument about the court’s role in interpreting injunctions. In other words, the argument does not claim that an injunction is the intent of the drafter; rather, it claims that, to perform their role as agent honestly, courts should seek to implement the drafter’s intent.
  191. See Amy Coney Barrett, Substantive Canons and Faithful Agency, 90 B.U. L. Rev. 109, 112 (2010) (discussing the faithful agent theory of interpretation).
  192. Anita S. Krishnakumar, Backdoor Purposivism, 69 Duke L.J. 1275, 1284–85 (2020).
  193. Richard H. Fallon, Jr., Three Symmetries Between Textualist and Purposivist Theories of Statutory Interpretation—and the Irreducible Roles of Values and Judgment Within Both, 99 Cornell L. Rev. 685, 686 (2014) (“A central ambition of most theories of statutory interpretation is to ensure that judges act as faithful agents of the legislature . . . .”); Frank H. Easterbrook, Judges as Honest Agents, 33 Harv. J.L. & Pub. Pol’y 915, 915 (2010) (“The honest-agent [theory] is not controversial.”).
  194. Manning, Equity, supra note 13, at 16 & n.65 (“[A] faithful agent’s job is to decode legislative instructions according to the common social and linguistic conventions shared by the relevant community.”); Frank H. Easterbrook, Text, History, and Structure in Statutory Interpretation, 17 Harv. J.L. & Pub. Pol’y 61, 63 (1994); see also Fallon, supra note 191, at 687 (“In textualists’ estimation, courts best act as faithful agents by enforcing the fair meaning of the words that the legislature enacted.”).
  195. See Easterbrook, supra note 191, at 922 (describing difficulties in identifying the desires of drafters); Krishnakumar, supra note 190, at 1334–35 (“[M]any textualists take the view that the enacted text is the best available evidence of Congress’s intent and that close attention to the text is the only way to accurately effectuate that intent.”).
  196. See, e.g., In re W.R. Grace & Co., 475 B.R. 34, 95–96 (D. Del. 2012) (discussing injunction incorporating statutes relating to asbestos claims); In re S.N., No. E055823, 2014 WL 185651, at *4 (Cal. Ct. App. Jan. 16, 2014) (discussing injunction incorporating statutes relating to gang violence).
  197. See, e.g., Richard H. Fallon, Jr., The Meaning of Legal “Meaning” and Its Implications for Theories of Legal Interpretation, 82 U. Chi. L. Rev. 1235, 1237 (2015) (explaining how different theories are appropriate for interpreting various types of texts).
  198. See H.L.A. Hart, Positivism and the Separation of Law and Morals, 71 Harv. L. Rev. 593, 607 (1958) (first proposing this famous example).
  199. Cf. Clark v. Martinez, 543 U.S. 371, 380 (2005) (“It is not at all unusual to give a statute’s ambiguous language a limiting construction called for by one of the statute’s applications, even though other of the statute’s applications, standing alone, would not support the same limitation. The lowest common denominator, as it were, must govern.”); Leocal v. Ashcroft, 543 U.S. 1, 11 n.8 (2004) (explaining that, if a statute has criminal and civil applications, courts “must interpret the statute consistently, whether we encounter its application in a criminal or noncriminal context”).
  200. See, e.g., Matter of Rimsat, Ltd., 98 F.3d 956, 965 (7th Cir. 1996) (interpreting an injunction that quoted § 543(b) of the Bankruptcy Code by construing that provision of the Code).
  201. Auer v. Robbins, 519 U.S. 452, 461–62 (1997) (holding that an agency’s interpretation of its own regulation that reflects its “fair and considered judgment on the matter in question” is “controlling unless ‘plainly erroneous or inconsistent with the regulation,’” even if the agency adopted that interpretation without notice-and-comment rulemaking and communicated it in an amicus brief (quoting Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 359 (1989))); see also Kisor v. Wilkie, 139 S. Ct. 2400, 2418 (2019) (holding that Auer deference “enables the agency to fill out the regulatory scheme Congress has placed under its supervision,” but cautioning that “th[e] Court has cabined Auer’s scope in varied and critical ways”); Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945) (providing that, when a regulation’s “meaning . . . is in doubt,” the agency’s interpretation “becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation”).
  202. Gonzales v. Oregon, 546 U.S. 243, 257 (2006) (“An agency does not acquire special authority to interpret its own words when, instead of using its expertise and experience to formulate a regulation, it has elected merely to paraphrase the statutory language.”). But see Hanah Metchis Volokh, The Anti-Parroting Canon, 6 N.Y.U. J.L. & Liberty 292, 311 (2011) (“[T]he fact that a statute and a regulation use the same words should not always lead to the conclusion that they mean the same thing.”).
  203. Gonzales, 546 U.S. at 257.
  204. Id.
  205. See supra Section II.A.
  206. See supra note 200 and accompanying text.
  207. See supra note 27.
  208. See supra note 42 and accompanying text.
  209. Cf. Morley, Beyond the Elements, supra note 26, at 477 (discussing “[t]he need for consistency between the standards for preliminary and permanent injunctions”).
  210. Fed. R. Civ. P. 65(b)(1).
  211. Local No. 93, Int’l Ass’n of Firefighters v. City of Cleveland, 478 U.S. 501, 519 (1986) (holding that consent decrees are “hybrid[s]” that can be characterized as both contracts and judgments). But see Thomas M. Mengler, Consent Decree Paradigms: Models Without Meaning, 29 B.C. L. Rev. 291 (1988) (arguing that a consent decree cannot be treated either as a traditional contract or court order).
  212. Local No. 93, 478 U.S. at 519 (“[B]ecause their terms are arrived at through mutual agreement of the parties, consent decrees also closely resemble contracts.”).
  213. See, e.g., EEOC v. Local 580, Int’l Ass’n of Bridge, Structural & Ornamental Ironworkers, 925 F.2d 588, 594 (2d Cir. 1991).
  214. 420 U.S. 223 (1975).
  215. Id. at 238.
  216. Id.
  217. See Local No. 93, 478 U.S. at 518 (agreeing that a “consent decree looks like and is entered as a judgment”).
  218. ITT Continental Baking, 420 U.S. at 247 (Stewart, J., dissenting) (accusing the majority of “proclaim[ing] a new rule of construction for consent orders or decrees” that was “totally at odds with our previous decisions” and “directly contrary” to precedents allowing a court to consider only the “four corners” of a consent decree); see also United States v. Armour & Co., 402 U.S. 673, 682 (1971) (“[T]he scope of a consent decree must be discerned within its four corners, and not by reference to what might satisfy the purposes of one of the parties to it.”); United States v. Atl. Refin. Co., 360 U.S. 19, 23–24 (1959) (interpreting language in a consent decree based on its “normal meaning,” rather than adopting “another reading” which “might seem more consistent with the Government’s reasons for entering into the agreement in the first place”); Hughes v. United States, 342 U.S. 353, 356–57 (1952) (applying plain-meaning interpretation of consent decree).
  219. See Fed. R. Civ. P. 65(d)(2).
  220. Alternatively, federal courts could create a body of federal common law principles for interpreting consent decrees. Creating such a unique interpretive regime distinct from the law governing other types of injunctions seems unnecessarily duplicative, complicated, and burdensome. And any such body of federal common law is likely to be plagued with the same inconsistencies and indeterminacy as the law governing constitutional and statutory interpretation.
  221. Differences in contract law among the states could substantially impact a consent decree’s proper interpretation. For example, states differ on whether contracts must be construed in light of an implied duty of good faith and fair dealing; states that have recognized such a duty have adopted different approaches on how to construe and apply it. See Richard A. Bales, The Discord Between Collective Bargaining and Individual Employment Rights: Theoretical Origins and a Proposed Reconciliation, 77 B.U. L. Rev. 687, 751 (1997) (“[S]ome but not all states imply a duty of good faith and fair dealing into every contract . . . .”); Thomas A. Diamond & Howard Foss, Proposed Standards for Evaluating When the Covenant of Good Faith and Fair Dealing Has Been Violated: A Framework for Resolving the Mystery, 47 Hastings L.J. 585, 590 (1990) (“[A]uthorities differ about the methodology for determining whether conduct violates the covenant [of good faith].”).
  222. Armour & Co., 402 U.S. at 681.
  223. Id. at 681–82 (“[T]he decree itself cannot be said to have a purpose; rather the parties have purposes, generally opposed to each other, and the resultant decree embodies as much of those opposing purposes as the respective parties have the bargaining power and skill to achieve.”).
  224. See Manning, supra note 15, at 70–71, 74 (advocating for textualism because legislation embodies a compromise); see also Easterbrook, supra note 159, at 63 (noting that a non-textualist interpretative approach ignores that “laws are born of compromise”).
  225. See Michael T. Morley, Consent of the Governed or Consent of the Government? The Problems with Consent Decrees in Government-Defendant Cases, 16 U. Pa. J. Const. L. 637, 663–64 (2014).
  226. Id. at 682–88.
  227. See, e.g., Islamic Inv. Co. of the Gulf (Bah.) Ltd. v. Harper, 545 F.3d 21, 25 (1st Cir. 2008) (explaining that “even if all of [the] conditions [for contempt] are satisfied, the trial court retains a certain negative discretion . . . to eschew the imposition of a contempt sanction . . . in the interests of justice”); Trials, 45 Geo. L.J. Ann. Rev. Crim. Proc. 569, 683 (2016) (“Courts have broad discretion in finding civil contempt and in imposing sanctions . . . .”).
  228. See United States v. United Mine Workers of Am., 330 U.S. 258, 303 (1947) (“In imposing a fine for criminal contempt, the trial judge may properly take into consideration the extent of the willful and deliberate defiance of the court’s order, the seriousness of the consequences of the contumacious behavior, the necessity of effectively terminating the defendant’s defiance as required by the public interest, and the importance of deterring such acts in the future.”); e.g., United States v. Henderson, No. CR 10-117 BDB, 2012 WL 787575, at *3 (N.D. Okla. Mar. 9, 2012) (“In exercising that discretion, the Court will consider factors such as the egregiousness of the violation, the extent to which the disclosure maligned Petitioner’s reputation, and any countervailing considerations that might have supported the disclosure or that militate against imposition of the severe sanction of contempt.”).
  229. See, e.g., Angiodynamics, Inc. v. Biolitec AG, 946 F. Supp. 2d 205, 213 (D. Mass. 2013) (“The text of a court order determines its power over parties. To allow parties to independently deduce the purpose of a court order and determine what acts would be most in line with the purpose—regardless of the text—would make this court irrelevant.”).
  230. See, e.g., Navajo Nation v. Peabody Coal Co., 7 F. App’x 951, 956 (Fed. Cir. 2001) (affirming trial court’s refusal to hold a party in contempt for violating an injunction, because the party’s actions “did not thwart a purpose behind any of the [trial court’s] orders” (citing In re Dual-Deck Video Cassette Recorder Antitrust Litig., 10 F.3d 693, 694–95 (9th Cir. 1993))).
  231. The original form of the rule of lenity specified that courts could not extend a criminal statute beyond its text, but could narrow the statute in favor of defendants by considering its purpose. See, e.g., State v. Norfolk S. R.R. Co., 82 S.E. 963, 966 (N.C. 1914) (“It is an ancient, but just and equitable, doctrine which extends a penal statute beyond its words in favor of a defendant, while holding it tightly to its words against him.”); 1 William A. Hawkins, Treatise of the Pleas of the Crown, ch. 30, § 8, at 77 (1st ed. 1712) (“Penal Statutes are construed strictly against the Subject, and favuorably and equitably for him.”). The rule thus called for different methods of interpretation: textualism to prevent the extension of criminal statutes and purposivism to narrow them.

    Such blending of methodologies is uncommon, if not disfavored, today, because each method of interpretation rests on a different set of assumptions and principles. Our proposal avoids this difficulty by permitting courts to consider purpose and other non-textual methods only at the remedial stage, after the court has determined that the text of the injunction has been violated.

  232. Abbott Labs. v. TorPharm, Inc., 503 F.3d 1372, 1382 (Fed. Cir. 2007) (“[I]nterpretation of the terms of an injunction is a question of law we review de novo.”).
  233. See, e.g., In re Managed Care, 756 F.3d 1222, 1234 (11th Cir. 2014) (concluding that an appellate court should give “great deference” to a judge’s interpretation of an injunction that he entered); Schering Corp. v. Ill. Antibiotics Co., 62 F.3d 903, 908 (7th Cir. 1995) (“When the district judge who is being asked to interpret an injunction is the same judge who entered it . . . , we should give particularly heavy weight to the district court’s interpretation.”); Hensley v. Bd. of Educ. of Unified Sch. Dist. No. 443, Ford Cnty., 504 P.2d 184, 188 (Kan. 1972) (“When the same trial judge who entered an injunction order hears a later contempt proceeding based on violation of that injunction the interpretation . . . will generally be followed by the appellate court.”); see also Salazar v. Buono, 559 U.S. 700, 762 (2010) (Breyer, J., dissenting) (stating that “the construction given to an injunction by the issuing judge . . . is entitled to great weight” (quoting Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 795 (1994) (Scalia, J., concurring in judgment in part and dissenting in part))). It should be noted that Justice Scalia’s endorsement of deferential review is at least somewhat in tension with his concern that allowing the judge who entered an injunction to determine whether that injunction was violated is a recipe for abuse. See Int’l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 840 (1994) (Scalia, J. concurring).
  234. See Henry J. Friendly, Indiscretion About Discretion, 31 Emory L.J. 747, 758 (1982) (stating that plenary review is necessary to achieve consistency in the law).
  235. See id.; Ass’n of Cmty. Orgs. for Reform Now (“ACORN”) v. Ill. State Bd. of Elections, 75 F.3d 304, 306 (7th Cir. 1996) (observing that the interpretation of an injunction “clarifies . . . the injunction”).
  236. Chad M. Oldfather, Error Correction, 85 Ind. L.J. 49, 55 (2010) (“[D]eferential standards . . . mean that reversal often does not follow from an appellate court’s conclusion that it would have implemented the applicable law differently were it the decision maker in the first instance.”).
  237. Cf. Jeffrey M. Surprenant, Comment, Pulling the Reins on Chevron, 65 Loy. L. Rev. 399, 420 (2019) (“[E]mploying a de novo review would encourage both legislative drafters and their agency helpers to write clear statutes that will withstand judicial scrutiny.”); Laurence H. Silberman, Chevron—The Intersection of Law & Policy, 58 Geo. Wash. L. Rev. 821, 824 (1990) (stating that Chevron should lead Congress to be more careful in drafting laws when it wants to avoid delegation).
  238. Anita S. Krishnakumar, Textualism and Statutory Precedents, 104 Va. L. Rev. 157, 204 (2018) (“Textualist judges, particularly in the post-Scalia era, tend to presume that there is a correct, definitive answer to every (or nearly every) interpretive question . . . .”); see also Christine Kexel Chabot, Selling Chevron, 67 Admin. L. Rev. 481, 509 (2015) (“[T]extualists assume Congress has provided a single, objectively determinable meaning in statutory text.”).
  239. William Ortman, Rulemaking’s Missing Tier, 68 Ala. L. Rev. 225, 246 (2016) (identifying various “structural epistemic advantages” that “reduce the likelihood of legal error” by the appellate courts).
  240. See Marin K. Levy, Visiting Judges, 107 Calif. L. Rev. 67, 139 (2019) (noting the pressures faced by district judges and not appellate judges).
  241. See Ortman, supra note 237, at 247–48
  242. In arguing that appellate courts should review interpretations de novo, we do not mean to say that appellate courts should review de novo the decision to impose contempt for violations. An injunction’s proper interpretation is a question of law. It is distinct from the subsequent question of whether to hold a person who has violated the injunction in contempt. Decisions about whether to impose contempt sanctions on violators depend on a myriad of factors. See supra note 226 and accompanying text. An appellate court should overturn that decision only if it constitutes an abuse of discretion. Perez v. Danbury Hosp., 347 F.3d 419, 423 (2d Cir. 2003) (reviewing a “finding of contempt under an abuse of discretion standard”).
  243. Horwitz, supra note 17, at 1078.
  244. See id. at 1078–85.
  245. See id. at 1085–90.
  246. See id. at 1072–78.
  247. Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984).
  248. See Smiley v. Citibank (S.D.), N.A., 517 U.S. 735, 740–41 (1996) (“We accord deference to agencies under Chevron . . . because of a presumption that Congress, when it left ambiguity in a statute meant for implementation by an agency, understood that the ambiguity would be resolved, first and foremost, by the agency . . . .”); see also Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 Duke L.J. 511, 515 (1989) (providing a similar justification for Chevron deference).
  249. Smiley, 517 U.S. at 740–71.
  250. Auer v. Robbins, 519 U.S. 452 (1997).
  251. See Kisor v. Wilkie, 139 S. Ct. 2400, 2412 (2019) (plurality opinion) (“We have explained Auer deference (as we now call it) as rooted in a presumption about congressional intent—a presumption that Congress would generally want the agency to play the primary role in resolving regulatory ambiguities.”). A closely related justification for deference to agencies that the Kisor Court identified is that interpreting federal laws necessarily involves policy decisions which Congress has empowered agencies to make. Id. at 2413. There is no comparable assignment of policy-making authority to federal trial courts. More importantly, contempt proceedings are held after an alleged violation of an injunction has occurred. Allowing trial courts to implement policy considerations when interpreting an injunction at that late point would acutely raise the notice and abuse problems outlined earlier.
  252. Cf. Grupo Mexicano de Desarrollo, SA v. Alliance Bond Fund, Inc., 527 U.S. 308, 318 (1999) (explaining that federal courts’ equity powers are limited by the historical practices of the English Court of Chancery).
  253. Bray, supra note 4, at 446 (“There was no appeal from the Chancellor . . . .”).
  254. Horwitz, supra note 17, at 1085 (“The second basic justification for judicial deference is not grounded on the legal authority of the institution to which the courts defer, but rather on its epistemic authority.”).
  255. See United States ex rel. Graham v. Mancusi, 457 F.2d 463, 469–70 (2d Cir. 1972) (Friendly, J.) (“It would still be for the judge who saw and heard the witnesses at the trial or, better, another judge who would see and hear them without having been exposed to the illegal evidence, to determine where the truth lay—not for appellate judges reading a cold record.”); see also Brown v. Plata, 563 U.S. 493, 555 (2011) (Scalia, J., dissenting) (“[H]aving viewed the trial first hand [the trial judge] is in a better position to evaluate the evidence than a judge reviewing a cold record.”).
  256. See, e.g., Emps. Ins. of Wausau v. Browner, 52 F.3d 656, 666 (7th Cir. 1995).
  257. Id.
  258. 139 S. Ct. 2400, 2412 (2019).
  259. Id.
  260. John F. Manning, Textualism and the Role of The Federalist in Constitutional Adjudication, 66 Geo. Wash. L. Rev. 1337, 1355 (1998) (arguing that textualists can consider other people’s interpretations of a statute, because “the way reasonable persons actually understood a text” can be useful evidence of the text’s meaning, particularly “if those persons had special familiarity with the temper and events of the times that produced that text”); see also Kent Greenawalt, The Nature of Rules and the Meaning of Meaning, 72 Notre Dame L. Rev. 1449, 1451 (1997) (discussing the evidentiary value of other people’s interpretations of a text).
  261. Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944).
  262. Id.; cf. Kristin E. Hickman & Matthew D. Krueger, In Search of the Modern Skidmore Standard, 107 Colum. L. Rev. 1235, 1238 (2007) (“Skidmore’s sliding scale encompasses three zones or ‘moods’ reflecting strong, intermediate, and weak or no deference.”).

From Massive Resistance to Quiet Evasion: The Struggle for Educational Equity and Integration in Virginia

This fifty-year retrospective on Virginia’s 1971 constitutional revision argues that state constitutional language has both the power and promise to effect policy change in the area of educational equity.

In the years after Brown, Virginia dramatically resisted efforts to integrate. Then the Commonwealth embraced a moderate stance on integration, as part of its 1971 constitutional revision, to end de jure segregation and provide a “quality” education for “all children.” Looking to new quality standards produced by a Board of educational experts, Virginia optimistically turned to the technocracy movement, hoping to take education out of politics. New aspirational language was meant to deepen the legislature’s commitment to public schools and repair Massive Resistance’s damage to public schools.

Looking back fifty years later, however, it is clear that this constitutional revision, while successfully meeting its goals around Massive Resistance, did not address underlying problems it is often assumed to have solved, such as inadequate funding or persistent de facto segregation. Other states’ journeys battling the same issues have looked different, and these differences highlight some of the strengths and weaknesses of Virginia’s approach.

This Note ultimately argues that the 1971 constitutional revision never intended to solve these problems, and thus, the work for educational advocates right now is not to come up with more clever litigation, but to convince Virginians to agree on a fairer school system—perhaps through a new constitutional revision. In the context of new public concern about racial justice following George Floyd’s death and the Coronavirus crisis, I argue that Virginia today may finally be ready to finish the work started in 1971.

Introduction

In the first years of Virginia’s existence, Thomas Jefferson proposed a radical idea: Widespread public education, for the purpose of preserving democracy.1.2 A.E. Dick Howard, Commentaries on the Constitution of Virginia 879 (1974).Show More His vision is today enshrined in the Commonwealth’s Bill of Rights, which declares “[t]hat free government rests, as does all progress, upon the broadest possible diffusion of knowledge,” and that the Commonwealth thus should give its people the opportunity to develop their talents through “an effective system of education throughout the Commonwealth.”2.Va. Const. art. I, § 15.Show More He proposed a public education system for all, funded by taxes—a revolutionary idea at the time.3.Howard, supra note 1, at 879–80.Show More

Virginia’s leaders did not adopt Jefferson’s plan for public education.4.Id. at 880.Show More In fact, it was not until after the Civil War, at the behest of a compromise with Congress for readmission to the Union5.Derek W. Black, The Constitutional Compromise to Guarantee Education, 70 Stan. L. Rev. 735, 783 (2018).Show More (and, as at least one scholar has suggested, primarily a result of advocacy by ex-slaves6.James D. Anderson, The Education of Blacks in the South, 1860–1935, at 4–5, 15–16 (1988).Show More), that Virginia reluctantly began to build a universal public education system.

By the middle of the twentieth century, public education had been quietly adopted as a staple of Virginian life, but it was neither a priority nor a value statement­­—unequal, segregated, and never particularly well-funded.7.See, e.g., Richard G. Salmon, The Evolution of Virginia Public School Finance: From the Beginnings to Today’s Difficulties, 36 J. Educ. Fin. 143, 146–48 (2010).Show More Virginia’s most famous public education moment—its participation in “Massive Resistance” in the years following Brown v. Board of Education—instead showed the Commonwealth’s willingness to sacrifice its children’s education to hold onto the racist ideals of its past.8.See infra Part I.Show More Perhaps no state was party to more high-profile segregation litigation in those years than Virginia, and unfortunately on the wrong side of history.9.See, e.g., Brown v. Bd. of Educ., 347 U.S. 483 (1954) (incorporating Davis v. Cty Sch. Bd.); Griffin v. Cty. Sch. Bd., 377 U.S. 218 (1964); Green v. Cnty. Sch. Bd., 391 U.S. 430 (1968), Richmond Sch. Bd. v. Bd. of Educ., 412 U.S. 92 (1973) (per curiam).Show More

But in 1971, Virginia’s leaders finally sought to change this relationship to public education by enacting major constitutional changes to the Commonwealth’s education article.10 10.See infra Part II.Show More This note analyzes the work the 1971 revision has done in Virginia’s public grade schools during the years since from both a legal and policy perspective. The note ultimately concludes that the results achieved—the primacy and complexity of the Standards of Quality in Virginia’s public schools; the new balance of power between the Board of Education, the General Assembly, and local school boards; and the eradication of de jure segregation while preserving options for de facto segregation—were close to what the 1971 revisers intended. The revision solidified a technocratic approach to educational inputs in the Commonwealth, and it ensured an increased centralization of funding structures and decision-making that would reject any future attempts at racial segregation through local school closures. Looking back on the era that saw Virginia’s “Massive Resistance” swept away and a newfound optimism about effective, non-partisan policymaking fall into place, I conclude that the revision of the education article was a success of its time.

However, today Virginia’s schools face persistent problems of equity. Though on average, Virginia’s public schools produce high quality results, that quality is not experienced equally by all students. In fact, Virginia’s poor students receive significantly less funding than their wealthier counterparts,11 11.Bruce D. Baker, Danielle Farrie & David Sciarra, Is School Funding Fair? A National Report Card 11 (7th ed. 2018), https://drive.google.com/file/d/1BTAjZuqOs8pEGWW‌6oUBotb6omVw1hUJI/view [https://perma.cc/T2JL-23SB].Show More despite having significantly more need, and they perform considerably worse according to the National Assessment of Educational Progress (NAEP).12 12.See Achievement Gaps Dashboard, Nation’s Rep. Card, https://www.nations‌reportcard.gov/dashboards/‌achievement_gaps.aspx [https://perma.cc/9EMX-V2MD] (last visited June 2, 2020) (follow “Dashboard” hyperlink; then search “Virginia” for the Jurisdiction field, “Eligible for National School Lunch Program” for the “Student Group 1” field, and “Not eligible for National School Lunch Program” for the “Student Group 2” field) (comparing achievement gaps in Virginia between students who are and who are not eligible for the National School Lunch Program).Show More Nor is segregation gone. Though de jure segregation and public school defunding have been successfully eradicated, de facto segregation is now on the rise. The number of hyper-segregated, highly impoverished schools has nearly doubled in Virginia since 2003.13 13.Chris Duncombe & Michael Cassidy, Increasingly Separate and Unequal in U.S. and Virginia Schools, Commonwealth Inst. (Nov. 4, 2016), https://www.thecommonwealth‌institute.org/2016/11/04/increasingly-separate-and-unequal-in-u-s-and-virginia-schools [https://perma.cc/C6R2-NY9Q].Show More

While many scholars and advocates argue that such inequities comprise state constitutional violations best fixed by a court, I conclude that this is simply not so in Virginia. The 1971 revision of the Virginia Constitution was not meant to solve these problems.14 14.In fact, it is not clear that education policy is designed to solve such problems by itself—a holistic approach that includes addressing income inequality, healthcare, and housing is likely needed. Such an argument, however, is outside the scope of this Note.Show More In fact, Virginia’s voters have never had a state-wide discussion of educational equity and integration, nor have they been forced to make a commitment to such values.

As our nation has been rocked by protests against racial injustice and ravaged by a new pandemic that has wreaked havoc on communities of color, in particular, issues of race and inequity have been shoved to the forefront of public dialogue in a way few of us have before confronted. The time is ripe for Virginia to finally finish the work begun fifty years ago. A new constitutional amendment to Virginia’s education article could facilitate this conversation. In 1971, Virginia’s leaders wanted to make education a priority for the first time and decided to take the first step away from active segregation. Today, it is time to reshape our education article yet again, with a vision of equity and excellence that will finish the journey away from segregation and finally step toward a shared, fair shot at the future for our children.

 

  1. * J.D., University of Virginia School of Law, 2021; M.P.P., Frank Batten School of Leadership and Public Policy, 2021; M.Ed., University of Massachusetts, 2013. I am sincerely grateful to Professor A.E. Dick Howard for guiding my research for this Note, and to Professors Kimberly Robinson and Andy Block for providing me with important learning experiences that expanded my knowledge of education and policy in Virginia. I also want to express my gratitude to the members of the Virginia Law Review who assisted in the editing and preparation of the Note—particularly Matthew West and Matthew Kincaid.

  2. 2 A.E. Dick Howard, Commentaries on the Constitution of Virginia 879 (1974).

  3. Va. Const. art. I, § 15.

  4. Howard, supra note 1, at 879–80.

  5. Id. at 880.

  6. Derek W. Black, The Constitutional Compromise to Guarantee Education, 70 Stan. L. Rev

    .

    735, 783 (2018).

  7. James D. Anderson, The Education of Blacks in the South, 1860–1935, at 4–5, 15–16 (1988).

  8. See, e.g., Richard G. Salmon, The Evolution of Virginia Public School Finance: From the Beginnings to Today’s Difficulties, 36 J. Educ. Fin. 143, 146–48 (2010).

  9. See infra Part I.

  10. See, e.g., Brown v. Bd. of Educ., 347 U.S. 483 (1954) (incorporating Davis v. Cty Sch. Bd.); Griffin v. Cty. Sch. Bd., 377 U.S. 218 (1964); Green v. Cnty. Sch. Bd., 391 U.S. 430 (1968), Richmond Sch. Bd. v. Bd. of Educ., 412 U.S. 92 (1973) (per curiam).

  11. See infra Part II.

  12. Bruce D. Baker, Danielle Farrie & David Sciarra, Is School Funding Fair? A National Report Card 11 (7th ed. 2018), https://drive.google.com/file/d/1BTAjZuqOs8pEGWW‌6oUBotb6omVw1hUJI/view [https://perma.cc/T2JL-23SB].

  13. See Achievement Gaps Dashboard, Nation’s Rep. Card, https://www.nations‌reportcard.gov/dashboards/‌achievement_gaps.aspx [https://perma.cc/9EMX-V2MD] (last visited June 2, 2020) (follow “Dashboard” hyperlink; then search “Virginia” for the Jurisdiction field, “Eligible for National School Lunch Program” for the “Student Group 1” field, and “Not eligible for National School Lunch Program” for the “Student Group 2” field) (comparing achievement gaps in Virginia between students who are and who are not eligible for the National School Lunch Program).

  14. Chris Duncombe & Michael Cassidy, Increasingly Separate and Unequal in U.S. and Virginia Schools, Commonwealth Inst. (Nov. 4, 2016), https://www.thecommonwealth‌institute.org/2016/11/04/increasingly-separate-and-unequal-in-u-s-and-virginia-schools [https://perma.cc/C6R2-NY9Q].

  15. In fact, it is not clear that education policy is designed to solve such problems by itself—a holistic approach that includes addressing income inequality, healthcare, and housing is likely needed. Such an argument, however, is outside the scope of this Note.

  16. Howard, supra note 1, at 880–81; Salmon, supra note 7, at 144–45.

  17. Howard, supra note 1, at 881 (citing Va. Const. of 1870, art. VIII, § 1).

  18. Id. at 881–82 (citing Va. Const. of 1870, art. VIII, § 3).

  19. Salmon, supra note 7, at 146.

  20. Id.

  21. Howard, supra note 1, at 882.

  22. Va. Const. of 1902, art. IX, § 140.

  23. Salmon, supra note 7, at 146–48.

  24. Id. at 147­–48.

  25. Id.

  26. Va. Const. of 1902, art. II, § 21; Douglas Smith, “When Reason Collides with Prejudice”: Armistead L. Boothe and the Politics of Desegregation in Virginia, 1948–1963, 102 Va. Mag. Hist. & Biography 5, 6 (1994).

  27. Va. Const. of 1902, art. II, § 19; Wythe W. Holt, Jr., The Virginia Constitutional Convention of 1901­­–1902: A Reform Movement Which Lacked Substance, 76 Va. Mag. Hist. & Biography 67, 96 (1968).

  28. Smith, supra note 25, at 6.

  29. Id. See generally J. Harvie Wilkinson, III, Harry Byrd and the Changing Face of Virginia Politics 1945–1966 (1968) (describing the political structures supporting Byrd and the changing role of Byrd’s organization in Virginia politics).

  30. See, e.g., Richard F. Weingroff, Senator Harry Flood Byrd of Virginia—the Pay-As-You-Go Man, U.S. Dep’t of Transp., https://www.fhwa.dot.gov/infrastructure/byrd.cfm [https://perma.cc/Y9Z8-MVDY] (last visited June 4, 2021) (describing Byrd’s gubernatorial platform as a plan “to institute the best methods of efficiency and economy in State affairs”); Massive Resistance, Va. Museum Hist. & Culture, https://www.virginiahistory.org/‌collections-and-resources/virginia-history-explorer/civil-rights-movement-virginia/massive [https://perma.cc/CXA6-CRS3] (last visited Sept. 1, 2020) (describing Byrd’s leadership of Massive Resistance).

  31. J. Rupert Picott, The Status of Educational Desegregation in Virginia, 25 J. Negro Educ

    .

    345, 346 (1956).

  32. Id. at 346–47 (citing Gray Commission, Public Education Report of the Commission to the Governor of Virginia 9, 11 (1955)).

  33. Charles H. Ford & Jeffrey L. Littlejohn, Reconstructing the Old Dominion: Lewis F. Powell, Stuart T. Saunders, and the Virginia Industrialization Group, 1958–65, 121 Va. Mag. Hist. & Biography 147–48 (2013).

  34. Va. Museum Hist. & Culture, supra note 29.

  35. Harrison v. Day, 106 S.E.2d 636, 646 (Va. 1959).

  36. Id. at 647.

  37. The Closing of Prince Edward County Schools, Va. Museum Hist. & Culture, https://www.virginiahistory.org/collections-and-resources/virginia-history-explorer/civil-rights-movement-virginia/closing-prince [https://perma.cc/FX34-5RQ5] (last visited Sept. 1, 2020).

  38. Id. See generally Kristen Green, Something Must Be Done About Prince Edward County (2015) (recounting the struggle for integration in the county).

  39. Va. Museum Hist. & Culture, supra note 36; see also Griffin v. Cty. Sch. Bd., 377 U.S. 218, 231 (1964) (explaining that this policy existed “for one reason, and one reason only: to ensure . . . that white and colored children in Prince Edward County would not, under any circumstances, go to the same school”).

  40. Griffin, 377 U.S. at 230.

  41. Id. at 232. Note that this litigation is actually an extension of the Brown v. Board litigation from Prince Edward County. Interestingly, the equality at issue was not equal treatment of races but equal treatment of students in different counties in Virginia. The Court, however, also saw the practice as a thinly veiled attempt at continuing the segregation outlawed by Brown. See id. at 220–21.

  42. Cty. Sch. Bd. v. Griffin, 133 S.E.2d 565 (Va. 1963).

  43. Id. at 565, 578.

  44. Va. Const. of 1902, art. IX, § 129 (“The General Assembly shall establish and maintain an efficient system of public free schools throughout the State.”).

  45. Griffin, 133 S.E.2d at 573.

  46. Id. at 577–78 (“It is for the General Assembly first to determine whether the failure of a locality to cooperate and assume its responsibility renders the system inefficient. It doubtless has the power to shape its appropriations for public schools under § 135 of the Constitution to correct an inefficiency in its established system, but that is in the area of legislative discretion, not in itself a constitutional requirement. The question of the efficiency of the system and whether it meets the constitutional requirement of § 129 becomes a matter of law only if it clearly appears that the system has broken down and adherence to it amounts to a disregard of constitutional requirements.”).

  47. Hullihen W. Moore, In Aid of Public Education: An Analysis of the Education Article of the Virginia Constitution of 1971, 5 U. Rich. L. Rev. 263, 266–67 (1971).

  48. See Ford & Littlejohn, supra note 32, at 149; James H. Hershman, Jr., Massive Resistance Meets Its Match: The Emergence of a Pro-Public School Majority, in The Moderates’ Dilemma: Massive Resistance to School Desegregation in Virginia 104 (Matthew D. Lassiter & Andrew B. Lewis eds., 1998).

  49. The Twenty-Fourth Amendment to the U.S. Constitution passed Congress in 1962 and was ratified in 1964, banning poll taxes for federal elections. Virginia was one of four states that tried to keep a state election poll tax in place, but was sharply admonished by the Supreme Court for doing so in Harper v. Virginia State Board of Elections. 383 U.S. 663, 666 (1966).

  50. James R. Sweeney, Southern Strategies: The 1970 Election for the United States Senate in Virginia, 106 Va. Mag. Hist. & Biography 165, 166 (1998).

  51. See, e.g., Markus Schmidt, The Voting Rights Act of 1965—How America Did Overcome, Rich. Times-Dispatch (Aug. 1, 2015), https://richmond.com/news/local/government-politics/the-voting-rights-act-of-1965—how-america-did-overcome/article_7d47ec7d-bf98-5014-8e25-5c72b2617a39.html [https://perma.cc/8XM5-MYFD].

  52. Baker v. Carr held that federal courts could review state redistricting choices, paving the way for Reynolds v. Sims, the case requiring state legislatures to apportion on a roughly equal population basis. Baker v. Carr, 369 U.S. 186, 197–98 (1962); Reynolds v. Sims, 377 U.S. 533, 575–77 (1964). See also, Sweeney, supra note 49, at 166 (“[T]he United States Supreme Court undermined the controlling influence of rural areas in the apportionment of state legislatures.”).

  53. Sweeney, supra note 49, at 165–66.

  54. M. Caldwell Butler, A Republican Looks at the 1968 Virginia General Assembly, 45 U. Va. News Letter 1 (Inst. Gov’t, Charlottesville, Va.), Sept. 15, 1968.

  55. A.E. Dick Howard, Adopting a New Constitution: Lessons from Virginia, in 1 State Constitutions for the Twenty-first Century: The Politics of State Constitutional Reform 77 (G. Alan Tarr & Robert F. Williams eds., 2005).

  56. Id. at 74.

  57. Id. at 74–75.

  58. Id. at 76–77.

  59. Id. at 77.

  60. Id.

  61. Id. at 82.

  62. Id. at 83.

  63. Id. at 78, 80–83.

  64. Id. at 85.

  65. Compare Va. Const. of 1902, art. IX, §§ 130, 132, with Va. Const. art. VIII, §§ 4–5.

  66. Compare Va. Const. of 1902, art. IX, § 139, with Va. Const. art. VIII, § 3.

  67. Compare Va. Const. of 1902, art. IX, § 131, with Va. Const. art. VIII, § 6.

  68. Compare Va. Const. of 1902, art. IX, §§ 134–135, with Va. Const. art. VIII, § 8.

  69. Report of the School Division Criteria Study Commission to the Governor and the General Assembly of Virginia, S. Doc. No. 5, at 7 (1973). This focus on district size and efficiency was a reflection of the technocratic movement of the time. Emmy Lindstam, Support for Technocratic Decision-Making in the OECD Countries: Attitudes Toward Apolitical Politics 5–6 (May 2014) (B.A. thesis, University of Barcelona) (on file with University of Barcelona).

  70. Compare Va. Const. of 1902, art. IX, §§ 133, 136, with Va. Const., art. VIII, § 7. While district consolidation was a controversial issue on the subject of integration in many ways, the provision ultimately at issue here was only technical—solving the problem of multiple school boards in one county. The originally proposed Section 5(a), unrelated, suggested that the Board have sole power to draw division lines, excluding the General Assembly from the consolidation process. Howard, supra note 1, at 920–21. As ultimately passed, the General Assembly sets limits on this power. Va. Const., art. VIII, § 5(a).

  71. Va. Const. of 1902, art. IX, § 140.

  72. Comm’n on Const. Revision, The Constitution of Virginia: Report 256–57 (1969).

  73. Hershman, supra note 47, at 104.

  74. Comm’n on Const. Revision, supra note 71, at 254.

  75. Scott v. Commonwealth, 443 S.E.2d 138, 142 (Va. 1994).

  76. Comm’n on Const. Revision, supra note 71, at 99.

  77. Howard, supra note 1, at 896.

  78. Va. Const. of 1902, art. IX, § 129.

  79. Va. Const. art. VIII, § 1.

  80. Id. Note that the Commission did not discuss this choice directly in their commentary. Comm’n on Const. Revision, supra note 71, at 254–56.

  81. Va. Const. art. VIII, § 1.

  82. Comm’n on Const. Revision, supra note 71, at 257–58.

  83. 310 F. Supp. 572 (W.D. Va. 1969).

  84. Howard, supra note 1, at 895–96.

  85. Compare Va. Const. of 1902, art. IX, § 138, with Va. Const. art. VIII, § 3 (describing compulsory education standards). In 1971, the drafters included that the “appropriate age” of compulsory education was “to be determined by law.” Id.

  86. Moore, supra note 46, at 278–79.

  87. Id. at 280–81.

  88. Va. Const. art. VIII, § 2.

  89. Id.

  90. Moore, supra note 46, at 276–77.

  91. For a literature review of technocracy that highlights the widespread optimism in the 1960s and 70s that “technocracy appeared to be a feasible future form of government[,]” see Lindstam, supra note 68.

  92. The standards are currently found in the Code of Virginia. See Va. Code Ann. §§ 22.1-253.13:1–22.1-253.13:9 (2020).

  93. It is important to clarify that this Note speaks of retrospectively rejecting Massive Resistance as a different object than prospectively achieving integration. Modern readers may struggle to differentiate the two, seeing all forms of segregation as equally bad. However, to a 1971 reviser, spurning Massive Resistance was a very different political choice than embracing racial integration.

  94. See Lindstam, supra note 68, at 5 and accompanying text.

  95. Va. Const. art. VIII, § 2.

  96. See, e.g., James E. Ryan, Five Miles Away, A World Apart: One City, Two Schools, and the Story of Educational Opportunity in Modern America 1–8 (2010).

  97. Id. at 13.

  98. Virginia Magazine highlighted the sudden (perhaps imagined) threat the public felt of “increasing budget deficits, higher local taxes, and the withdrawal of government spending streams that had lifted so many parts of the Old Dominion from structural underemployment[,]” including a concern that the federal government would withdraw its Naval Base and other investments from the state. Ford & Littlejohn, supra note 32, at 149–51. Business Week predicted a massive rise in local property taxes, and Dr. Loren A. Thompson called Massive Resistance an “Education Crisis” that was “the main reason that Virginia was falling behind other states in attracting new industries and businesses.” Id. at 154. In other words, negative press coverage about the state predicted economic harm to white elites, a prospect that moderates wanted to avoid.

  99. Id. at 149, 152–54.

  100. Hershman, supra note 47, at 104–05.

  101. Va. Const. art. VIII, § 1.

  102. Va. Const. art. VIII, § 2.

  103. Howard, supra note 1, at 901.

  104. Va. Const. art. VIII, §§ 2, 5(e); Howard, supra note 1, at 901–04.

  105. Infra notes 110–14 and accompanying text.

  106. 1972–73 Op. Va. Att’y Gen. 353.

  107. 1975–76 Op. Va. Att’y Gen. 313.

  108. 1980–81 Op. Va. Att’y Gen

    .

    79–85.

  109. Id.

  110. Acts of the Virginia legislature are granted a “presumption of constitutional validity.” Sch. Bd. v. Parham, 243 S.E.2d 468, 472 (Va. 1978). For the court to declare a statute unconstitutional requires a clear violation. A mere “shadow [of a doubt about constitutionality] is not enough.” Lipscomb v. Nuckols, 172 S.E. 886, 889 (Va. 1934).

  111. Scott v. Commonwealth, 443 S.E.2d 138, 139 (Va. 1994).

  112. Id. at 140.

  113. Id.

  114. Id. at 142. Note that Scott did leave open the possibility of an adequacy challenge; the Court indicated that students might have an individual right to a certain level of education. Id. (“[T]he Students do not contend that the manner of funding prevents their schools from meeting the standards of quality.”).

  115. Va. Code Ann. § 22-19.1 (1973) (describing the issuance procedure).

  116. See, e.g., 1972 Va. Acts 1032–36.

  117. See 1984 Va. Acts 1572–76, 1655–59.

  118. Joint Legislative Audit & Review Comm’n of the Va. Gen. Assembly (“JLARC”), Review of Elementary and Secondary School Funding 27 (2002), http://jlarc.virginia.gov/pdfs/reports/Rpt277.pdf [https://perma.cc/W8VG-AN4S].

  119. Va. Code Ann

    .

    § 22.1-18.01 (2020).

  120. See Va. Bd. of Educ., October 2019 Meeting Update 3 (2019), https://www.vsba.org/images/uploads/October_2019_Meeting_Report.pdf [https://perma.cc/SM4R-JCQS].

  121. See Va. Att’y Gen., Opinion Letter (Jan. 4, 2019), https://www.oag.state.va.us/files/Opinions/2019/18-046-Opinion-to-Senator-Stanley-Issued.pdf [https://perma.cc/DPG8-JJXK]; 2002 Op. Va. Att’y Gen.

    54

    n

    .29

    .

  122. Justin Mattingly, Schools Across Virginia, Richmond Region, Fare Better Under New Accreditation Standards, Rich. Times-Dispatch (Sept. 27, 2018), https://www.richmond.com/news/local/education/schools-across-virginia-richmond-region-fare-better-under-new-accreditation/article_ecaddfcd-9a08-534d-960f-9ab5266fc3cb.html [https://perma.cc/4WSB-R7X2] (demonstrating the Board’s effort to use data to evaluate schools more accurately); Va. Bd. of Educ., Comprehensive Plan

    : 2018–2023,

    at

    4–6

    (2017), https://www.doe.virginia.gov/boe/plan/comprehensive-plan.pdf [https://perma.cc/P9ZC-9ESH]; Va. Bd. of Educ., 2013 Annual Report on the Condition and Needs of Public Schools in Virginia app. A, at 36–37 (2013), https://www.doe.virginia.gov/boe/reports/annual_reports/2013_appendix_a_sol_history.pdf [https://perma.cc/7M78-HTXQ].

  123. See, e.g., Davis Burroughs, Virginia Board of Education Seeks Nearly $1 Billion in New K–12 Funding, Va. Dogwood (Oct. 17, 2019), https://vadogwood.com/2019/10/17/virginia-board-of-education-seeks-nearly-1-billion-in-new-k-12-funding/ [https://perma.cc/BJ4W-C22Y] (describing the Board’s 2019 political push for expanded at-risk funding in service of “equitable outcomes” for disadvantaged children).

  124. Id.

  125. Justin Mattingly, It Was a Landmark Year for Education Funding in Virginia—Until COVID-19, Rich. Times-Dispatch (Apr. 24, 2020), https://richmond.com/news/virginia/it-was-a-landmark-year-for-education-funding-in-virginia—until-covid-19/article_c50665a6-172d-5f56-a1b0-43240cfff68d.html [https://perma.cc/J4F9-5WH9].

  126. Professor Salmon suggests that the complexity of this formula was a direct response to Burruss v. Wilkerson and an attempt to avoid equal rights litigation over school funding. Salmon, supra note 7, at 151.

  127. Id. at 152.

  128. Id. at 152–53.

  129. Id. at 153.

  130. Va. Code Ann. § 22.1-199.1 (2020).

  131. JLARC, supra note 117, at iv–vi; Salmon, supra note 7, at 155.

  132. Schuyler VanValkenburg, Jeff Bourne & Mike Mullin, A Student Who Is Safe Is a Student Who Is Safe to Learn, Rich. Times-Dispatch

    (

    Mar. 31, 2019), https://www.richmond.com/opinion/columnists/vanvalkenburg-bourne-and-mullin-column-a-student-who-is-safe/article_db7679dc-4f32-50fc-901e-deeac5550033.html [https://perma.cc/6WUT-GVAS].

  133. Daniella Cheslow, In Shadow of Coronavirus, Virginia Lawmakers to Freeze New Spending in State Budget, WAMU 88.5 (Apr. 22, 2020), https://wamu.org/story/20/04/22/in-shadow-of-coronavirus-virginia-lawmakers-to-freeze-new-spending-in-state-budget/ [https://perma.cc/58FH-9UXM].

  134. Nat’l Educ. Ass’n, Rankings of the States 2018 and Estimates of School Statistics 2019, at 33 (2019), https://www.nea.org/sites/default/files/2020-06/2019%20Rankings%20and%20Estimates%20Report.pdf [https://perma.cc/3KFT-GFQ6].

  135. Editorial, Did the Virginia Supreme Court Show School Districts How to Sue Over Disparities?, Roanoke Times (Oct. 20, 2018), https://roanoke.com/opinion/editorials/‌editorial-did-the-virginia-supreme-court-show-school-districts-how-to-sue-over-disparities/article_f3e07697-879d-50d1-9ac9-573b741856c7.html [https://perma.cc/LF7H-HFMP].

  136. Baker et al., supra note 11, at

     

    11; Bruce Baker, Danielle Farrie, Theresa Luhm & David G. Sciarra, Is School Funding Fair? A National Report Card 5 (5th ed. 2016); Bruce D. Baker, David G. Sciarra & Danielle Farrie, Is School Funding Fair? A National Report Card 16 (3d ed. 2014); Bruce D. Baker, David G. Sciarra & Danielle Farrie, Is School Funding Fair? A National Report Card 14 (2d ed. 2012); Bruce D. Baker, David G. Sciarra & Danielle Farrie, Is School Funding Fair? A National Report Card 32 (2010).

  137. Comm’n on Constitutional Revision, supra note 71, at 254.

  138. Va. Const. art. VIII, § 1.

  139. Ryan, supra note 95, at 5.

  140. Id. at 55–109.

  141. Id. at 56; Green v. Cty. Sch. Bd., 391 U.S. 430, 433–35 (1968); U.S. Comm’n on Civil Rights, Southern School Desegregation, 1966–67, at 45–47 (1967), https://www.crmvet.org/docs/ccr_sch_desegregation_south_6707.pdf [https://perma.cc/89N8-RAPJ].

  142. Ryan, supra note 95, at 56; The Memphis 13 (Daniel Kiel 2012), https://thememphis13.com [https://perma.cc/B65A-VV7G].

  143. Green, 391 U.S. at 437–41.

  144. Ryan, supra note 95, at 72.

  145. Bradley v. Sch. Bd., 345 F.2d 310, 316 (4th Cir. 1965).

  146. Ryan, supra note 95, at 73; Bradley v. Sch. Bd., 416 U.S. 696, 701 (1974) (“[O]n March 10, 1970, petitioners filed with the District Court a motion for further relief in the light of the opinions of this Court in Green . . . .”).

  147. Ryan, supra note 95, at 74; Bradley v. Sch. Bd., 317 F. Supp. 555, 578–79 (E.D. Va. 1970).

  148. Ryan, supra note 95, at 74–82.

  149. Id. at 82–84; Bradley v. Sch. Bd., 338 F. Supp. 67, 105 (E.D. Va. 1972).

  150. Bradley v. Sch. Bd., 462 F.2d 1058, 1066 (4th Cir. 1972) (“We think that the root causes of the concentration of [B]lacks in the inner cities of America are simply not known . . . .”).

  151. Rich. Sch. Bd. v. Bd. of Educ., 412 U.S. 92, 93 (1973).

  152. Ryan, supra note 95, at 78, 80.

  153. Id. at 80.

  154. 418 U.S. 717, 752–53 (1974).

  155. Id. at 745.

  156. Kimberly Jenkins Robinson, Resurrecting the Promise of Brown: Understanding and Remedying How the Supreme Court Reconstitutionalized Segregated Schools, 88 N.C. L. Rev. 787, 817–19 (2010).

  157. See Va. Code. Ann. § 22.1-25(A)(1)–(3) (2016) (“1. The school divisions as they exist on July 1, 1978, shall be and remain the school divisions of the Commonwealth until further action of the Board of Education taken in accordance with the provisions of this section except that when a town becomes an independent city, the town shall also become a school division. 2. No school division shall be divided or consolidated without the consent of the school board thereof and the governing body of the county or city . . . 3. No change shall be made in the composition of any school division if such change conflicts with any joint resolution . . . of the General Assembly . . . .”). Note that this statute strips the Board of its constitutional power to draw division lines in ways that best promote the standards of quality. See Angela Ciolfi, Shuffling the Deck: Redistricting to Promote a Quality Education in Virginia, 89 Va. L. Rev. 773, 808–13 (2003).

  158. See Va. Code. Ann. § 22.1-25(A)(1)–(3) (2016).

  159. See Robinson, supra note 155, at 811–39 (arguing that the Court has validated resegregation in schools).

  160. See, e.g., Genevieve Siegel-Hawley, Jennifer Ayscue, John Kuscera & Gary Orfield, Miles to Go: A Report on School Segregation in Virginia, 1989–2010, at v (2013)

    (

    describing increases in Virginia’s hyper-segregated schools since 1989).

  161. 551 U.S. 701, 747–48 (2007).

  162. Id.

  163. Id. at 748 (“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”).

  164. Juliana Menasce Horowitz, Ruth Igielnik & Rakesh Kochhar, Pew Rsch. Ctr., Most Americans Say There Is Too Much Economic Inequality in the U.S., but Fewer than Half Call It a Top Priority 19–22 (2020), https://www.pewsocialtrends.org/2020/01/09/trends-in-income-and-wealth-inequality/ [https://perma.cc/BGG6-DPM8].

  165. Duncombe & Cassidy, supra note 13, at 1.

  166. Id. This does not account for Black children who are relegated to lower-tracked classrooms or face other intra-school segregation. See Karolyn Tyson, Tracking, Segregation, and the Opportunity Gap: What We Know and Why It Matters, in Closing the Opportunity Gap: What America Must Do to Give Every Child an Even Chance

    170, 180 (

    Prudence L. Carter & Kevin G. Welner eds

    ., 2013).

  167. Audra D.S. Burch, James Monroe Enslaved Hundreds. Their Descendants Still Live Next Door., N.Y. Times (July 7, 2019), https://www.nytimes.com/2019/07/07/us/politics/monroe-slavery-highland.html [https://perma.cc/LZ6R-KYHL].

  168. Household Income in Virginia, Statistical Atlas, https://statisticalatlas.com/state/Virginia/Household-Income [https://perma.cc/VY6A-ABBS] (last visited June 1, 2020) (showing that Black families in Virginia are twice as likely as the general population to be represented in the lowest three income brackets).

  169. Food Rsch. & Action Ctr., Poverty, Hunger, Health, and the Federal Nutrition Programs: A Profile of the Southern Region 13–14 (2020), https://frac.org/wp-content/uploads/FRAC-Poverty-Hunger-Health-and-the-Federal-Nutrition-Programs-2020.pdf [https://perma.cc/8W6U-7PKP].

  170. Kathryn Howell, RVA Eviction Lab, Eviction and Educational Instability in Richmond, Virginia 3 (2020), https://rampages.us/rvaevictionlab/wp-content/uploads/sites/33937/2020/02/RVAEL_Eviction-and-Educational-Instability-in-Richmond.pdf [https://perma.cc/EU4J-Z7BP] (showing significantly higher eviction rates in school districts with large Black student populations).

  171. Food Rsch. & Action Ctr., supra note 168, at 16–18.

  172. Dep’t of State Police

    ,

    Crime in Virginia

    2019,

    at

     

    54 (2020), https://www.vsp.virginia.gov/downloads/Crime_in_Virginia/Crime_In_Virginia_2019.pdf [https://perma.cc/4TAJ-UHUA] (finding that 45% of violent crimes with known victims in Virginia in 2019 had Black victims, while Black Virginian’s only make up 20% of the Virginia population); Vera Inst., Incarceration Trends in Virginia 1 (2019), https://www.vera.org/downloads/pdfdownloads/state-incarceration-trends-virginia.pdf [https://perma.cc/VWX9-LSGD].

  173. In 2019, Blacks—who make up only 20% of the Virginia population—made up 42% of all arrests. Dep’t of State Police, supra note 171, at

     

    70–71. Additionally, they represent over half of Virginia’s prison population. Vera Inst., supra note 171, at 1.

  174. Prosperity Now Scorecard, State Outcome & Policy Report: Virginia 4 (2021), https://scorecard.prosperitynow.org/data-by-location#state/va [https://perma.cc/AE77-ZQRK] (last visited Sept. 20, 2020) (select “download state outcome & policy report,” then search “Virginia” in the state field, and select “download PDF”) (showing that while 72% of white families in Virginia own homes, fewer than half of Black families own homes); see also Ta-Nehisi Coates, The Case for Reparations, Atlantic (June 2014), https://www.theatlantic.com/magazine/archive/2014/06/the-case-for-reparations/361631/ [https://perma.cc/76HH-BJ2J] (describing historic attempts to deprive Black families of property).

  175. Va. Dep’t of Hous. and Cmty. Dev., Analysis of Impediments to Fair Housing Choice in the Commonwealth of Virginia

    36

    (2018), https://www.dhcd.virginia.gov/sites/default/files/Docx/consolidated-plan/analysis-of-the-impediments-to-fair-housing.pdf [https://perma.cc/XE39-CB8J].

  176. Benjamin F. Teresa, RVA Eviction Lab, The Geography of Eviction in Richmond: Beyond Poverty (2020), https://rampages.us/rvaevictionlab/wp-content/uploads/sites/33937/2020/02/RVAEL_Geographies-of-Eviction.pdf [https://perma.cc/G5TF-K7QT].

  177. See Achievement Gaps Dashboard, supra note 12 (comparing Black eligible students in Virginia with white eligible students).

  178. Id.

  179. Virginia Early Childhood Foundation found, for example, that Black students who showed up to school kindergarten-ready fell behind significantly faster than their white or Asian peers. By third grade, the number of Black children from the same cohort not meeting literacy benchmarks had more than doubled. Va. Early Childhood Found., Virginia’s Biennial School Readiness Report Card 6 (2018), https://www.vecf.org/wp-content/plugins/pdf-viewer/stable/web/viewer.html?file=https://www.vecf.org/wp-content/uploads/2018/10/VECF2018BiennialSchoolReadinessReport.pdf [https://perma.cc/AZ48-TTAS].

  180. Class of 2020 Diplomas and Completion, Va. Dep’t of Educ. Sch. Quality Profiles, https://schoolquality.virginia.gov/virginia-state-quality-profile#desktopTabs-4 [https://perma.cc/YEL2-TGR8] (last visited Sept. 1, 2020).

  181. College Board, SAT Suite of Assessments Annual Report: Virginia

    3, 8, 13

    (2019), https://reports.collegeboard.org/pdf/2019-virginia-sat-suite-assessments-annual-report.pdf [https://perma.cc/K927-KKYA]; The ACT, The Condition of College & Career Readiness 2019, Virginia Key Findings 7 (2019), http://www.act.org/content/dam/act/unsecured/documents/‌cccr-2019/Virginia-CCCR-2019.pdf [https://perma.cc/A6DN-7ZKY].

  182. Statistical Atlas, supra note 167 (showing Blacks twice as likely as the general population to be represented in the lowest three income brackets).

  183. This Note does not discuss the 1960s federal immigration laws, mostly because Virginia’s Hispanic population remains quite small today, and most immigrants to the state of other races are fairly well-off (Virginia’s Asian population is one of the wealthiest groups in the country). Demographic and Economic Profiles of Hispanics by State and County, 2014: Virginia, Pew Rsch. Ctr., https://www.pewresearch.org/hispanic/states/state/va [https://perma.cc/JK4K-5D9S] (last visited Mar. 14, 2021); Zinie Chen Sampson, Virginia’s Asian Population Grows, Free Lance-Star (May 28, 2011), https://fredericksburg.com/local/virginias-asian-population-grows/article_ae0fc9e6-8af4-5dec-a7c7-35257f4a0f30.html [https://perma.cc/DR33-3MCE]. However, many of the disparities noted above are also true for the small but growing Hispanic community in Virginia, which has been hit especially hard by Coronavirus. Mechelle Hankerson, ‘My Community Doesn’t Have a Voice’: Are Virginia Schools Meeting the Needs of an Increasing Hispanic Population?, Va. Mercury (Sept. 16, 2019), https://www.virginiamercury.com/2019/09/16/my-community-doesnt-have-a-voice-are-virginia-schools-meeting-the-needs-of-an-increasing-hispanic-population/ [https://perma.cc/D5BH-3SDR]; Kate Masters, Latinos Shoulder a Disproportionate Share of COVID-19 Cases. Advocates Want More Representation in Contact Tracing., Va. Mercury (June 26, 2020), https://www.virginiamercury.com/2020/06/26/latinos-shoulder-a-disproportionate-share-of-covid-19-cases-advocates-wants-more-representation-in-contact-tracing/ [https://perma.cc/G33E-H8PB].

  184. Southwestern Virginia has been hit particularly hard by the opioid epidemic but also faces other economic and healthcare struggles. For an excellent read on the region, see generally Beth Macy, Dopesick: Dealers, Doctors, and the Drug Company that Addicted America (2018).

  185. Robinson v. Cahill, 303 A.2d 273, 291 (N.J. 1973) (citing N.J. Const. of 1844, art. IV, § 7 (1875)).

  186. State Profiles: New Jersey, Educ. L. Ctr., https://edlawcenter.org/states/newjersey.html [https://perma.cc/8FF5-G72R] (last visited Sept. 1, 2020).

  187. See, e.g., Borough of Neptune City v. Borough of Avon by the Sea, 294 A.2d 47, 51, 56 (N.J. 1972) (holding that municipalities may not charge for beach use, due to the public trust doctrine); S. Burlington Cty. NAACP v. Twp. of Mount Laurel, 336 A.2d 713, 724–25 (N.J. 1975) (holding that municipalities cannot use zoning laws to prohibit affordable housing for middle- and low-income residents); State v. Shack, 277 A.2d 369, 372–75 (N.J. 1971) (holding that migrant workers can have access to necessary services despite traditional property law rules).

  188. J. Peter Byrne, Are Suburbs Unconstitutional?, 85 Geo. L.J. 2265, 2274 (1997) (reviewing Charles M. Haar, Suburbs Under Siege: Race, Space, and Audacious Judges (1996) and David L. Kirp, John P. Dwyer & Larry A. Rosenthal, Our Town: Race, Housing, and the Soul of Suburbia (1995)).

  189. N.J. Const

    .

    art. VI; id. at art. XI, § IV (describing the new court’s structure and transition plan).

  190. Id. at art. VI, § VII.

  191. Byrne, supra note 187, at 2274.

  192. Arthur T. Vanderbilt, Law Library: American Law and Legal Information, https://law.jrank.org/pages/11066/Vanderbilt-Arthur-T.html [https://perma.cc/Q3LC-798C] (last visited July 5, 2021).

  193. Id. See, e.g., Winberry v. Salisbury, 74 A.2d 406, 414 (N.J. 1950) (holding, in an opinion by Chief Justice Vanderbilt, that the New Jersey Constitution gives power to the courts, not the legislature, to decide rules affecting procedure in the state’s courts).

  194. Many first-year law students will remember reading State v. Shack in their property class. The case is an example of the court’s innovative take on property law. See State v. Shack, 277 A.2d 369, 372–75 (N.J. 1971).

  195. Byrne, supra note 187, at 2274.

  196. Id.

  197. Id. See Educ. L. Ctr., supra note 185.

  198. Bruce D. Baker & Sean P. Corcoran, Ctr. for Am. Progress, The Stealth Inequities of School Funding: How State and Local School Finance Systems Perpetuate Inequitable Student Spending 5 (2012) [hereinafter CAP Report]; see also Baker et al., supra note 11, at 11 (showing New Jersey ranking among the top states in funding distribution in 2015 and Virginia ranking among the lowest); Ryan, supra note 95, at 160 (describing high-poverty schools in New Jersey as “generously funded” due to “school finance litigation”).

  199. Baker et al., supra note 11, at 16–17; see also CAP Report, supra note 197, at 5 (displaying New Jersey’s school funding system from 2007 to 2009).

  200. Baker et al., supra note 11, at 11.

  201. New Jersey is probably recently famous for the debacle of education reform in Newark Schools, in which millions of dollars were raised, but the classrooms never saw the money. See Dale Russakoff, Schooled, New Yorker (May 12, 2014), https://www.newyorker.com/magazine/2014/05/19/schooled [https://perma.cc/5TST-B7KM].

  202. Race and Ethnic Achievement Gaps, Stan. Ctr. for Educ. Pol’y Analysis, https://cepa.stanford.edu/educational-opportunity-monitoring-project/achievement-gaps/race/ [https://perma.cc/R3CH-WG2C] (last visited June 2, 2020).

  203. U.S. Dep’t of Educ., School Composition and the Black-White Achievement Gap 24 (2015), https://nces.ed.gov/nationsreportcard/subject/studies/pdf/school_composition_and_‌the_bw_achievement_gap_2015.pdf [https://perma.cc/DM6C-MCMZ] [hereinafter School Composition].

  204. Like Virginia, New Jersey has some of the best-ranked public schools in the nation. See, e.g., U.S. News Best High Schools Rankings, U.S. News & World Rep., https://www.usnews.com/education/best-high-schools/rankings-overview (last visited Mar. 20, 2020) (listing a school in Northern Virginia as the best public high school in the nation).

  205. State Performance Compared to the Nation, Nation’s Rep. Card, https://www.nationsreportcard.gov/profiles/stateprofile?chort=1&sub=MAT&sj=AL&sfj=NP&st=MN&year=2019R3 [https://perma.cc/JH8Y-SXAG] (last visited June 9, 2021) (choose “Grade 4,” toggle between “Mathematics” and “Reading,” and select “Average scale scores” and “2019”).

  206. N.J. Const. art. VIII, § IV.

  207. Id.

  208. Ryan, supra note 95, at 146.

  209. Baker et al., supra note 11, at 10–11, 16, 17.

  210. Stan. Ctr. for Educ. Pol’y Analysis, supra note 201.

  211. Fourth-grade reading ranks third in the nation, and fourth-grade math ranks seventh. In eighth grade, rankings drop slightly. Nation’s Rep. Card, supra note 204.

  212. Wyo. Const. art. VII, § 8.

  213. Id. at art. VII, § 1.

  214. Id. at art. VII, § 10. Wyoming is known as the ‘equality state’ because it was the first state to grant women suffrage, and did so from its inception. Id. at art. VI, § 1.

  215. Id. at art. VII, § 14.

  216. Id. at art. VII, § 11.

  217. 606 P.2d 310, 314, 320 (Wyo. 1980).

  218. Id. at 314–15.

  219. Id. at 315 n.3.

  220. Campbell Cty. Sch. Dist. v. State, 907 P.2d 1238, 1246–47 (Wyo. 1995).

  221. Id. at 1238, 1247–48.

  222. Id. at 1249–50.

  223. Id. at 1279–80.

  224. Scott v. Commonwealth, 443 S.E.2d 138, 142 (Va. 1994). Scott occurred just one year before Campbell County. The difference in the level of analysis and detail in the opinions is remarkable.

  225. Campbell Cty. Sch. Dist., 907 P.2d at 1279.

  226. Virginia has a population of over 8 million, while Wyoming’s population has yet to cross 600,000. Race and Ethnicity in Wyoming, Statistical Atlas, https://statisticalatlas.com/state/Wyoming/Race-and-Ethnicity [https://perma.cc/4VW8-UFJW] (last visited June 5, 2020); see Population of Wyoming, Stat. Atlas, https://statisticalatlas.com/state/Wyoming/Population [https://perma.cc/6W7D-XC9E] (last visited June 5, 2020).

  227. Race and Ethnicity in Wyoming, Stat. Atlas, https://statisticalatlas.com/state/Wyoming/Race-and-Ethnicity [https://perma.cc/4VW8-UFJW] (last visited June 5, 2020); see Population of Wyoming, Statistical Atlas, https://statisticalatlas.com/state/Wyoming/Population [https://perma.cc/6W7D-XC9E] (last visited June 5, 2020).

  228. U.S. Dep’t of Educ., supra note 202, at 23 n.21, 24–25.

  229. See supra note 213 and accompanying text.

  230. Wyoming did not become a state until 1890, after slavery was outlawed in the United States. The state constitution began with statements of racial equality. See Wyo. Const. art. I, § 2. This is not to say that Wyoming avoided all discrimination, but rather, it was never as entrenched as was the case in Virginia. See, e.g., Kim Ibach & William Howard Moore, The Emerging Civil Rights Movement: The 1957 Wyoming Public Accommodations Statute as a Case Study, 73 Annals of Wyo. 2, 3 (2001).

  231. One of the biggest advocates for education funding in Virginia is rural Republican State Senator Bill Stanley, who has recognized that there are striking similarities in the needs of rural and urban school districts. Amy Friedenberger, ‘Facing a Dire Need’ for Funding for School Construction, Virginia Lawmakers Pitch Proposals, Roanoke Times (Jan. 18, 2020), https://www.roanoke.com/news/education/facing-a-dire-need-for-funding-for-school-construction-virginia-lawmakers-pitch-proposals/article_fdcfc9ef-54a9-5d7d-b780-b87a44d8a0fa.html [https://perma.cc/6GYC-T3TM]; see also Macy, supra note 183 (describing life in rural Virginia).

  232. Sabrina Tavernise & Robert Gebeloff, How Voters Turned Virginia from Deep Red to Solid Blue, N.Y. Times (Nov. 9, 2019), https://www.nytimes.com/2019/11/09/us/virginia-elections-democrats-republicans.html [https://perma.cc/X8Q6-LXNK].

  233. See, e.g., Wyoming Education Ranked 6th in Nation by the National Education Quality Report,

    KULR8

    News (Sept. 5, 2019), https://www.kulr8.com/news/wyoming-education-ranked-th-in-nation-by-the-national-education/article_e2dcc056-d036-11e9-a031-9f508f484af7.html [https://perma.cc/2WMW-4BBF] (quoting State Superintendent of Public Instruction Jillian Balow).

  234. See supra Section III.B.

  235. See supra notes 111–115 and accompanying text.

  236. See supra notes 216–232 and accompanying text.

  237. See supra notes 211–212 and accompanying text.

  238. See supra Part II.

  239. Richmond’s private school attendance rate, around 30%, is significantly higher than the national average. Libby Germer, A Public History of Public Housing: Richmond, Virginia, Yale Nat’l Initiative to Strengthen Teaching in Pub. Schs. (last visited Sept. 23, 2020), https://teachers.yale.edu/curriculum/viewer/initiative_15.03.05_u [https://perma.cc/XDQ2-HRL2]. The national average in the United States has consistently hovered around 10%. Jack Jennings, Proportion of U.S. Students in Private Schools is 10 Percent and Declining, Huffington Post (Mar. 28, 2012, 12:31 PM), https://www.huffpost.com/entry/proportion-of-us-students_b_2950948 [https://perma.cc/TZ9Z-S534].

  240. Va. Code Ann. § 22.1-25(A) (2016). See also Ciolfi, supra note 156, at 807 (suggesting the unconstitutionality of current division in lines in Virginia because they do not promote or realize the standards of quality).

  241. See supra note 167 and accompanying text.

  242. See supra Section III.C; Duncombe & Cassidy, supra note 13.

  243. See supra Part I.

  244. See supra Part II.

  245. See supra Part III.

  246. See supra Part IV.

  247. In fact, it is unclear if those in the middle are doing particularly well. While federally required data highlights children below the federal poverty level as a group, it aggregates all other children together, hiding the wide disparities in outcomes between the middle and the very rich. See Daniel Markovits, The Meritocracy Trap: How America’s Foundational Myth Feeds Inequality, Dismantles the Middle Class, and Devours the Elite 124–33 (2019). We may be missing important trends in achievement and education amongst middle- and working- class children. Though school reformers may still be focused on the plight of the poor, increasing attention to the middle— and better disaggregating data—may shed light on even more concerning trends.

  248. Duncombe & Cassidy, supra note 13, at 1.

  249. Ryan, supra note 95, at 149–50.

  250. This Note does not address charter schools because Virginia has very few, and the movement hasn’t gained much ground in the Commonwealth. Virginia’s Public Charter Schools, Va. Dep’t of Educ., https://www.doe.virginia.gov/instruction/charter_schools/‌charter_schools.shtml [https://perma.cc/4YD3-W3LZ] (last visited June 9, 2021) (listing only 8 charter schools operating in the state); Editorial, A Chance for Charter Schools To Finally Break Through in Virginia, Wash. Post (Feb. 14, 2017), https://www.washingtonpost.com/opinions/a-chance-for-charter-schools-to-finally-break-through-in-virginia/2017/02/14/82e6539e-efd6-11e6-b4ff-ac2cf509efe5_story.html [https://perma.cc/4PZG-BTBB] (discussing the political difficulties).

  251. For the full debate on school governance, see Who’s in Charge Here? The Tangled Web of School Governance and Policy (Epstein ed., 2004).

  252. See, e.g., CAP report, supra note 197, at 17.

  253. See generally, e.g., Kimberly Jenkins Robinson, A Federal Right to Education: Fundamental Questions for Our Democracy

     

    (2019); While advocacy for increased federal help has certainly resulted in more standardized testing and more litigation, as of 2018, federal dollars made up less than 8% of school revenue. Nat’l Educ. Ass’n

    ,

    supra note 133, at 8. For the same reason that a low state share of funding results in greater inequities between districts, a low national share contributes to large inequities between state spending on students. See, e.g., Markovits, supra note 246, at 126–27.

  254. I am not the first scholar to suggest this. See, e.g., Ryan, supra note 95, at 1–14.

  255. See supra Part II.

  256. Alisa Chang & Jonaki Mehta, Why U.S. Schools Are Still Segregated—And One Idea To Help Change That, NPR (July 7, 2020), https://www.npr.org/sections/live-updates-protests-for-racial-justice/2020/07/07/888469809/how-funding-model-preserves-racial-segregation-in-public-schools [https://perma.cc/SY6Y-KXFL].

  257. See CAP Report, supra note 197, at 1–2.

  258. See, e.g., San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 14–16 (1973); Edgewood Indep. Sch. Dist. v. Kirby, 777 S.W.2d 391, 392–93 (Tex. 1989); David G. Hinojosa, Rodriguez v. San Antonio Independent School District: Forty Years and Counting, in The Enduring Legacy of Rodriguez: Creating New Pathways to Equal Educational Opportunity 24­–40 (Charles J. Ogletree, Jr. & Kimberly Jenkins Robinson eds., 2015).

  259. Hinojosa, supra note 257, at 37–38.

  260. Friedenberger, supra note 230; JLARC Report to the Governor and the General Assembly of Virginia, Efficiency and Effectiveness of K-12 Spending, S. Doc. No. 11 (2015).

  261. Editorial, Lots of Virginia Schools are Outdated. Why That Matters., Roanoke Times (Aug. 15, 2018), https://roanoke.com/opinion/editorials/editorial-lots-of-virginia-schools-are-outdated-why-that-matters/article_cc2a3cbe-f65c-5453-86f6-22c4e846d353.html [https://perma.cc/8NV9-TS6C]; Debbie Truong, ‘Borderline Criminal’: Many Public Schools Teeter on the Edge of Decrepitude, Wash. Post (May 25, 2019, 4:55 PM), https://www.washingtonpost.com/local/education/borderline-criminal-thats-the-condition-of-decrepit-public-schools/2019/05/25/bad60064-556f-11e9-814f-e2f46684196e_story.html [https://perma.cc/9FA5-L3J2]; Brendan King & Chelsea Rarrick, Richmond Teachers Believe Moldy Classrooms are Making Them Sick, CBS 6 News Rich. (Oct. 3, 2016, 11:37 AM), https://www.wtvr.com/2016/10/02/richmond-teachers-believe-moldy-classrooms-are-making-them-sick/.

  262. As of 2018, Richmond’s required construction budget hovered around 800–900 million dollars. Truong, supra note 260. The annual operating budget of Richmond city in that year was about 700 million dollars. City of Rich., Adopted Annual Fiscal Plan for Fiscal Year 2018 (2018) http://www.richmondgov.com/Budget/documents/BiennialPlans/2018_‌AdoptedAnnualFiscalPlan.pdf [https://perma.cc/M94Q-K8A5].

  263. Cf. Editorial, supra note 260 (describing analogous conditions). See also Zachary Reid, 100 Years Ago, Richmond’s Students Faced a Situation Similar to Today’s: Crumbling Facilities, Rich. Times-Dispatch (Apr. 30, 2016), https://richmond.com/news/local/100-years-ago-richmonds-students-faced-a-situation-similar-to-todays-crumbling-facilities/article_712a5f52-f50d-5bec-a09f-40221195a5be.html [https://perma.cc/M3AT-6DCK] (noting the racial disparities in crumbling school buildings).

  264. Ryan, supra note 95, at 129 (“By all accounts, [the foundation amount] is unrealistically low.”); see also Salmon, supra note 7, at 155–61 (concluding that Virginia’s school funding is inadequate).

  265. The Local Composite Index formula is contained in the biennial budget language. 2020 Va. Acts 153–55. Note that Virginia does have a separate budget line item called the At-Risk Add-On (created shortly after the Scott case), which provides additional funds for disadvantaged students. Va. Code Ann. § 22.1-199.1 (2020). However, it has also suffered from budgetary limitations. See, e.g. Chris Duncombe & Chad Stewart, Virginia Can Choose Equity for School Funding During Economic Crisis (2020), https://www.thecommonwealthinstitute.org/wp-content/uploads/2020/06/Virginia-Can-Choose-Equity-for-School-Funding-During-Economic-Crisis.pdf [https://perma.cc/9UEC-5MRU] (describing the un-allotment of At-Risk funds during economic downturns).

  266. Ryan, supra note 95, at 157­–70; CAP Report, supra note 197, at 1–2.

  267. Early Childhood Education, Ctrs. for Disease Control & Prevention (“CDC”), https://www.cdc.gov/policy/hst/hi5/earlychildhoodeducation/index.html [https://perma.cc/GE3V-QZRD] (last visited Aug. 5, 2016); Tamara Halle et al., The Research Base for a Birth Through Eight State Policy Framework Child Trends (2013), https://www.childtrends.org/wp-content/uploads/2013/12/2013-20ResearchBase.pdf [https://perma.cc/D42D-7L75].

  268. Preschool, Va. Dep’t of Educ., http://www.doe.virginia.gov/early-childhood/preschool/index.shtml [https://perma.cc/N9YB-4VWH] (last visited Sept. 2, 2020) (showing public options available for needy students; note that non-qualifying students must find private options, which range from home settings to official preschools or daycares); Allison H. Friedman-Krauss et al., The State of Preschool 2018: State Preschool Yearbook 162–63 (2019) (showing that Virginia’s public state preschool program still has limited access, ranking poorly across the board).

  269. See Friedman-Krauss et al., supra note 267, at 162–63.

  270. CDC, supra note 266.

  271. Id.; see also Press Release, Learning Pol’y Inst., What Does the Research Really Say About Preschool Effectiveness? (Jan. 31, 2019), https://learningpolicyinstitute.org/press-release/what-does-research-really-say-about-preschool-effectiveness [https://perma.cc/JAY7-229Z] (reaffirming that children enrolled in preschool reap both short- and long-term benefits). Sarah Jane Glynn, Jane Farrell & Nancy Wu, The Importance of Preschool and Child Care for Working Mothers, Ctr. for Am. Progress (May 7, 2013), https://www.americanprogress.org/issues/education-k-12/reports/2013/05/08/62519/the-importance-of-preschool-and-child-care-for-working-mothers/ [https://perma.cc/2US8-3C3K]; Kelsey Piper, Early Childhood Education Yields Big Benefits—Just Not the Ones You Think, Vox (Oct. 16, 2018, 9:00 AM), https://www.vox.com/future-perfect/2018/10/16/17928164/early-childhood-education-doesnt-teach-kids-fund-it.

  272. CDC, supra note 266.

  273. David M. Quinn & Morgan Polikoff, Summer Learning Loss: What Is It, and What Can We Do About It?, Brookings (Sept. 14, 2017), https://www.brookings.edu/research/summer-learning-loss-what-is-it-and-what-can-we-do-about-it/ [https://perma.cc/4G76-MYYR]; Jaclyn Zubrzycki, Year-Round Schooling Explained, EducationWeek (Dec. 18, 2015), https://www.edweek.org/leadership/year-round-schooling-explained/2015/12 [https://perma.cc/7B9Q-FUD7].

  274. Afterschool Alliance, What Does the Research Say about Afterschool? (Nov. 2017), http://afterschoolalliance.org/documents/What_Does_the_Research_Say_About_Afterschool.pdf [https://perma.cc/G2ZU-63AB]; Benefits for Youth, Families, & Communities, Youth.Gov, https://youth.gov/youth-topics/afterschool-programs/benefits-youth-families-and-communities [https://perma.cc/X57N-CMXG] (last visited Sept. 1, 2020).

  275. Piper, supra note 270 (explaining why benefits accrue more the closer a program starts to birth).

  276. Editorial, Will Virginia Finally Mandate Equal Schools?, Roanoke Times (Jan. 24, 2020), https://roanoke.com/opinion/editorials/editorial-will-virginia-finally-mandate-equal-schools/article_804e788e-0606-528a-8d90-b048f3300ddc.html [https://perma.cc/6757-QFLY].

  277. Ciolfi, supra note 156, at 820; Chang & Mehta, supra note 255.

  278. Tyson, supra note 165, at 169–70.

  279. Kimberly A. Goyette, Danielle Farrie & Joshua Freely, This School’s Gone Downhill: Racial Change and Perceived School Quality Among Whites, 59 Soc. Probs. 155, 166–71 (2012) (describing how white parents perceive their school quality to be declining simply as a result of greater numbers of Black children attending the school, regardless of actual metrics); Chase M. Billingham & Matthew O. Hunt, School Racial Composition and Parental Choice: New Evidence on the Preferences of White Parents in the United States, 89 Soc. Educ. 99, 99 (2016) (finding that the “proportion of [B]lack students in a hypothetical school has a consistent and significant inverse association with the likelihood of white parents enrolling their children in that school”).

  280. The Benefits of Socioeconomically and Racially Integrated Classrooms, Century Found. (Apr. 29, 2019), https://tcf.org/content/facts/the-benefits-of-socioeconomically-and-racially-integrated-schools-and-classrooms/.

  281. Id. (finding that students in integrated classrooms are less likely to drop out, more likely to enroll in college, and on average have higher test scores).

  282. Alana Semuels, The City that Believed in Desegregation, Atlantic (Mar. 27, 2015) https://www.theatlantic.com/business/archive/2015/03/the-city-that-believed-in-desegregation/388532/ [https://perma.cc/XU4N-DJ5V]; see also John Eligon, Busing Worked in Louisville. So Why Are Its Schools Becoming More Segregated?, N.Y. Times (July 28, 2019), https://www.nytimes.com/2019/07/28/us/busing-louisville-student-segregation.html [https://perma.cc/LGN7-8HE2] (noting that a Louisville school district is one of the nation’s most racially integrated).

  283. John Brittain, Larkin Willis & Peter W. Cookson Jr., Sharing the Wealth: How Regional Finance and Desegregation Plans Can Enhance Educational Equity, (2019), https://learningpolicyinstitute.org/sites/default/files/product-files/Sharing_The_Wealth_REPORT.pdf [https://perma.cc/86NL-6LVJ].

  284. Id.

  285. Ryan, supra note 95, at 112–14.

  286. See, e.g., id. at 112.

  287. Id. at 113 (describing a stump speech by President Reagan against busing and comprehensive integration in schools where the “crowd greeted these statements with silence” and the local paper called integration the district’s “proudest achievement”).