K-12 Masking Wars


The use of public insults and misinformation by the political right has acted as both a headwind and deadweight against the achievement of structural civil rights reform. These tactics act as a headwind by making it difficult to build effective remedies into a statute, and then, after the statute is enacted, they act as a deadweight to make it difficult to enforce the limited set of remedies that exist. To withstand the force of this public insult playbook, it is important for civil rights statutes to have strong, structural enforcement mechanisms rather than neo-liberal, one-person-at-a-time kinds of remedies.

In this article, I show how the current “masking wars” in K-12 classrooms provide an excellent example of the tension between the rights of disabled students, who need masks to be worn in the classroom for their own safety, and the use of public insults and misinformation to impair access to those rights.

Uninformed Consent


Since the Supreme Court decided Planned Parenthood of Southeastern Pennsylvania v. Casey in 1992, there has been a race to the bottom to use the doctrine of so-called “informed consent” to coerce pregnant women into becoming mothers by giving birth to a child. Pregnant women are handed glossy brochures with four-week-old fetuses magnified into portrayals of living children and falsely told that their decision to terminate their pregnancy is likely to lead to increased risks of breast cancer, depression, and future fertility problems. Childbirth, by contrast, is romantically portrayed as a risk-free, wholly positive experience, consistent with pregnant women’s natural destiny as mothers.

In this article, I argue that this race to the bottom is inconsistent with standard tort principles that apply to medical procedures, but courts have tolerated it because of their stereotypical conception of the pregnant person as a “mother” and the fetus as an “unborn child.” This Article argues that an equality-based conception of reproductive rights can help unmask the gender-based stereotypes that underlie this race to the bottom.

Constructively, this Article argues that informed consent is possible within abortion jurisprudence. The Down syndrome proinformation campaign has been a successful part of such a movement. Unfortunately, the current rush by states to criminalize an individual’s decision to terminate a pregnancy after a prenatal diagnosis of Down syndrome is the latest coercive step that is unraveling such important advances in informed consent.

Pregnant people, like all patients, are entitled to receive fair and balanced information to make informed decisions about their personal autonomy. It is important to recognize their right to decide whether to become parents rather than to conceptualize them as already being “mothers” due to their pregnancy.

White Supremacist Constitution


The United States Constitution has been a document that, during every era, has helped further white supremacy. White supremacy constitutes a “political, economic and cultural system in which whites overwhelmingly control power and material resources, conscious and unconscious ideas of white superiority and entitlement are widespread, and relations of white dominance and non-white subordination are daily reenacted across a broad array of institutions and social settings.”** Rather than understand the Constitution as a force for progressive structural change, we should understand it as a barrier to change.

From its inception, the Constitution enshrined slavery and the degradation of Black people by considering them to be property rather than equal members of the community. The Civil War Amendments did not truly abolish slavery and only prohibited a limited band of state action. Radical Reconstruction was short-lived as white supremacy quickly eviscerated any political gains that Black voters had achieved.

The Supreme Court has interpreted the Civil War Amendments consistently with their white supremacy roots. Rather than serve as an effective instrument to help eradicate the badges, incidents and vestiges of slavery, the Constitution has become a tool both to ban voluntary race-affirmative measures at the federal, state and local government level while also precluding Congress from enacting strong abolitionist measures. The Court has enshrined the views of Andrew Johnson, a fierce proponent of white supremacy, into its basic structure.

This Article challenges us to imagine how resistance lawyers might seek to use the Constitution to help eliminate white supremacy while also generally recognizing the limitations of the use of the judicial system, including the specific limitations of the U.S. Constitution, for that purpose. Only then might we achieve a truly radical reconstruction.

** Frances Lee Ansley, Stirring the Ashes: Race, Class and the Future of Civil Rights Scholarship, 74 Cornell L. Rev. 993, 1024 n. 129 (1989)