University of Baltimore Law Review

College Athletes: Considering Employment Status in the Wake of NCAA v. Alston

*Grace Clarke

I. Introduction

The spring of 2021 was a rejoiceful time for many college athletes across the country—they could finally be paid for their play.[1] The debate of amateurism in college sports has lingered for decades, but the Supreme Court officially addressed the matter in NCAA v. Alston.[2] Student athletes brought a lawsuit alleging that the National Collegiate Athletic Association (NCAA) violated federal antitrust law[3] by restricting the compensation that colleges and universities could provide students who played on their sports teams.[4] However, this case did not address whether students, who could now receive payment by their schools, are actual employees of the schools.[5] The debate of employment status continues to run rampant in courts and legislatures across the country, as well as the discussion as to the risks and benefits of this status for student athletes.[6]

II. National Labor Relations Board

The question about whether student athletes are employees has not been directly addressed by the National Labor Relations Board (NLRB); however, its review of recent complaints demonstrates that it is considering whether college athletes should be identified as employees.[7] In December of 2022, the National College Players Association (NCPA), on behalf of football and basketball players at the University of Southern California, filed charges with the NLRB against the NCAA to “affirm college athlete employee status for every FBS[8] football player and Division I basketball player at every public and private university in the nation.”[9] The NLRB directed its Los Angeles Regional Office to pursue charges of unfair labor practices.[10] The NCPA previously brought this issue to the NLRB to determine whether student athletes are employees of the school with the right to unionize, but the Organization did not succeed.[11]

III. Johnson v. NCAA

In the pending Third Circuit case, Johnson v. NCAA, student athletes across multiple colleges and universities brought suit arguing that “student athletes who engage in interscholastic athletic activity for their colleges and universities are employees who should be paid for the time they spend related to those athletic activities.”[12] The plaintiffs contend that they should be paid for their time because student athletes should be considered employees subject to the Fair Labor Standard Act (FLSA).[13] A three-judge panel for the Court of Appeals for the Third Circuit heard this case on February 15, 2023, after defendants filed an interlocutory appeal.[14]

A decision in favor of the plaintiffs would result in a circuit split, opening the door for the Supreme Court to determine how to classify student athletes: both the Ninth Circuit[15] and Seventh Circuit[16] previously found that student athletes are not employees of the school and therefore not protected by the FLSA.[17] However, both Circuits addressed the issue prior to the Supreme Court’s decision in Alston.[18]

IV. Developing Legislation

Senators in Congress have called for legislative action to clarify issues such as employee status for student athletes.[19] Both Senator Ted Cruz and Senator Joe Manchin have introduced bills that do not specifically state whether student athletes are employees, but discuss reform that would inherently answer the question.[20] Another potential bill, the College Athletes Protection and Consumer Act, drafted by Senators Blumenthal, Moran, and Booker, would “reform and strengthen college athletics, and make sure athletes get the support and protections they need while setting baseline, national standards.”[21] While none of these proposed bills specifically address the employment status of college athletes, each of these Senators have spoken out against classifying athletes as employees.[22]

V. Conclusion

What are the potential effects of deeming student athletes employees of their schools? While organizations such as NCPA have advocated tirelessly for the cause, others do not believe the benefits would be so great. As employees, student athletes would have the right to unionize.[23] Additionally, collegiate athletes could potentially seek compensation for the time spent playing, as championed by the plaintiffs in Johnson.[24] On the other hand, at a Senate hearing in October of 2023, the President of the NCAA discussed the possible consequences, including “scholarship awards taxed under U.S. employment laws” and that “smaller schools would be forced out of the college sports business entirely as they do not have large athletic budgets.”[25] The Senate hearing emphasized the need for regulation, as courts and states grapple with the issue themselves. Legislation is essential to regulate the authority granted in Alston, so student athletes can be just that—not student-athlete-employees.

*Grace Clarke is a second-year day student at the University of Baltimore School of Law, where she is a Staff Editor for Law Review and a member of the Royal Graham Shannonhouse III Honor Society. During her first-year summer, Grace worked as a judicial intern for the Honorable Judge Laura S. Ripken on the Appellate Court of Maryland. In May, she plans to join Miles & Stockbridge P.C. as a summer associate in the Labor and Employment Practice Group.

[1] Nat’l Collegiate Athletic Ass’n v. Alston, 141 S. Ct. 2141, 2166 (2021).

[2] Id. at 2147.

[3] See 15 U.S.C. § 1. “Specifically, they alleged that the NCAA’s rules violate § 1 of the Sherman Act, which prohibits ‘contract[s], combination[s], or conspirac[ies] in restraint of trade or commerce.’” Alston, 141 S. Ct. at 2151.

[4] Alston, 141 S. Ct. at 2147.

[5] Id.

[6] See, e.g., Johnson v. Nat’l Collegiate Athletic Ass’n, 556 F. Supp. 3d 491, 495 (E.D. Pa. 2021); Protecting Athletes, Schools, and Sports Act of 2023, S. 2495, 118th Cong. (2023).

[7] Kelly Lienhard, Sens. Say Student-Athletes Should Not Be Deemed Employees, Law 360 (Oct. 17, 2023, 8:43 PM), https://www.law360.com/employment/articles/1732612/sens-say-student-athletes-should-not-be-deemed-employees.

[8] See FBS VS. FCS Explained, Signing Day Sports: The Wire (Oct. 7, 2022), https://thewire.signingdaysports.com/articles/fbs-vs-fcs-explained/. Football Bowl Division (FBS) is the highest level of NCAA football.

[9] NCPA Files NLRB Charges for College Athlete Employee Status, Wages,NCPA, https://www.ncpanow.org/releases-advisories/ncpa-files-nlrb-charges-for-college-athlete-employee-status-wages (last visited Mar. 22, 2024).

[10] Chris Isidore, NLRB Opens Door for Union for College Athletes, CNN (Dec. 15, 2022, 10:14 PM),https://www.cnn.com/2022/12/15/business/nlrb-unfair-labor-practice-athletes-usc-pac-12-ncaa/index.html.

[11] Id.

[12] Johnson, 556 F. Supp. 3d at 495.

[13] Id.

[14] Id.

[15] Dawson v. Nat’l Collegiate Athletic Ass’n, 932 F.3d 905, 907 (9th Cir. 2019) (holding that college football players are not employees of the National Collegiate Athletic Association (NCAA) and PAC-12 Conference (PAC-12) within the meaning of the Fair Labor Standards Act (FLSA)).

[16] Berger v. Nat’l Collegiate Athletic Ass’n, 843 F.3d 285, 288 (7th Cir. 2016) (finding thatstudent athletes at the University of Pennsylvania are not employees entitled to minimum wage under the FLSA).

[17] See Josh Goldberg & Carter Gaines, What You Need to Know About Johnson v. NCAA, Greenspoon Marder LLP (May 1, 2023),https://www.gmlaw.com/news/what-you-need-to-know-about-johnson-v-ncaa/.

[18] Compare Dawson, 932 F.3d 905 and Berger, 843 F.3d 285 with Nat’l Collegiate Athletic Ass’n v. Alston, 141 S. Ct. 2141, 2166 (2021).

[19] Lienhard, supra note 7.

[20] Id.

[21] Richard Blumenthal et al., College Athletes Protection and Compensation Act Discussion Draft, Richard Blumenthal, U.S. Sen. for Conn. (July 20, 2023), https://www.blumenthal.senate.gov/imo/media/doc/07202023college_athletes_protection_and_compensation_actonepager.pdf.

[22] Lienhard, supra note 7.

[23] NCPA, supra note 8. “Unionized professional sports leagues and players have a collective bargaining agreement (CBA) that sets player compensation at a fair market rate of 50% of total revenue and comprehensive benefits.” Id.

[24] Johnson v. Nat’l Collegiate Athletic Ass’n, 556 F. Supp. 3d 491, 495 (E.D. Pa. 2021).

[25] Lienhard, supra note 7.

The Farm Bill Spoiled: What Happens Next for Inequalities in Land-Grant Institutions

*Josie Shaffer

I. Introduction

Amid partisan turmoil on Capitol Hill, Congress failed to pass the Farm Bill before its September 30th, 2023, deadline.[1] As a result, certain programs will lose their funding and their ability to run their programs, and many farm commodity programs will now rely on outdated laws once the Bill is exhausted.[2] The 118th Congress need not sound any alarms yet, since previous omnibus Farm Bills like this one have taken years past their first deadlines to get a final vote.[3] However, the delay leaves many institutions’ hope for increased federal funding in limbo.[4] Congress missed an opportunity to address the inequalities from earlier Farm Bill-funded research programs between predominantly white land-grant institutions and their historically Black land-grant university counterparts.[5] Organizations push for solutions to these disparities, but it may not be remedied legislatively as the status of the 2023 Farm Bill remains unknown.

II. History

The Farm Bill is an omnibus law that Congress passes about every five years to fund various agriculture programs.[6] Enacted in the 1930s, the original Farm Bills kept food prices fair for farmers and consumers and ensured an adequate food supply as part of the New Deal.[7] Over time, Congress has expanded that original idea through increased funding to various sectors of the agricultural industry, from the farm to the table and all the research in between.[8] Since 1977, the Farm Bill has included a research title that reauthorizes funding for existing programs such as land-grant universities.[9]

Congress established land-grant universities (LGUs) through the Morrill Act of 1862 to expand agriculture research through higher education institutions.[10] However, Black Americans did not get to experience this increase access until an 1890 amendment to the Morrill Act—almost 30 years later.[11] This second Morrill Act prohibited the distribution of federal funds to states that made distinctions of race in admissions “unless at least one land-grant college for African Americans was established.”[12] Many of these universities mandated by the Morrill Act of 1890 (1890 institutions) persist today as Historically Black Colleges and Universities (HBCUs).[13]

Originally colleges focusing on solely agriculture, many LGUs designated in the first Morrill Act (1862 institutions) are now their state’s flagship universities such as the University of Maryland and the University of Wisconsin.[14] Federal legislation provides capacity grants— recurring federal appropriations—and federal appropriations to LGUs for research, education, and extension, or practical experience in the field.[15] When the Hatch Act passed in 1887, authorized funding for the creation of centers for agricultural research in connection with a state’s LGU.[16] Federal funds provided to state institutions under the Hatch Act, must be matched by the state per dollar with nonfederal funding.[17]

However, U.S. Secretary of Education Miguel Cardona and U.S. Secretary of Agriculture Thomas Vilsack recently highlighted unequal appropriated funding for different LGUs, with distributions ranging from $172 million for 1890 institutions to $2.1 billion for 1862 institutions.[18] Disproportionate state funding can also be seen in states hosting both 1862 and 1890 institutions. For example, Florida did not meet the 1-to-1 Hatch Act-required state funding needed Florida Agricultural and Mechanical University (FAMU), an 1890 institution.[19] Two and a half hours away at the University of Florida, an 1862 institution, however, Florida matched funds with a state-to-federal funding ratio of at least 14-to-1.[20]

The 2018 Farm Bill removed the restriction that capped 1890 institutions’ appropriations from one fiscal year into the next.[21] Section 7213 of the 2018 Farm Bill called for the United States Department of Agriculture (USDA) to name at least three Centers of Excellenceat 1890 institutions and authorized annual appropriations of $10 million to fund such centers.[22] While removing this limitation allows 1890 institutions greater flexibility in long-term projects with additional funding, 1890 institutions still do not receive equitable state funding compared to 1862 institutions that could help with these projects.[23]

III. 1890 Land-Grant Institutions Remain Underfunded as No Resolution to the 2023 Farm Bill is Clear

To fix disparities between LGUs, congressman David Scott introduced a bill in 2021 to provide $100 million in funding for student scholarships at 1890 institutions by permanently reauthorizing the 1890 Scholarship program without Farm Bill reauthorization.[24] This initiative and other hopes of combatting the deeply rooted inequities between the LGUs stall as the 2023 Farm Bill makes a slow crawl to a final vote. Without legislative action to increase funding to 1890 institutions, supporters may try other legal endeavors to decrease the funding gap between LGUs.

However, a recent suit in Maryland demonstrates the legislative action like the Farm Bill is not the only vehicle for fixing disparate funding at LGUs. In 2021, Maryland settled a lawsuit accusing the state of undermining HBCUs across Maryland’s ability to attract students for $577 million.[25] Along with allegations of underfunding, the lawsuit alleged Maryland allowed traditionally white institutions to duplicate programs offered at HBCUs, making it more difficult for HBCUs to attract students.[26] The 4th Circuit Court of Appeals found that the program duplication perpetuated segregation and directed the settlement funds to the expansion of academic programs at Maryland’s four HBCUs, including 1890 institution University of Maryland Eastern Shore.[27] This settlement could inspire supporters of 1890 institutions in the other seventeen states where both 1862 and 1890 institutions are located to sue their state governments for allowing traditionally white institutions to duplicate programs offered at 1890 institutions.[28] As mentioned, the University of Florida and FAMU both maintain agriculture programs, but the 1862 program has the benefit of more state-to-federal matching funds. Accordingly, FAMU could look to Maryland HBCU’s settlement with the state as means to challenge their disparities through the courts.

IV. Conclusion

Several provisions in the 2018 Farm Bill addressed discrepancies in how 1862 and 1890 institutions receive and manage federal funds.[29] Supporters of 1890 institutions hoped that, with the reauthorization of the Farm Bill, lawmakers would add additional education and research opportunities to combat unequal funding between LGUs. Congress granted an extension of the 2018 Farm Bill until September 2024[30], but if LGUs want additional funding for their programs, they may need to consider legal actions, like those seen in Maryland, to secure research, education, and extension activities in the near future.

Photo Credit: U.S. Department of Agriculture

*Josie Shaffer is a second-year day student at the University of Baltimore School of Law, where she is a Staff Editor for Law Review and a member of the Royal Graham Shannonhouse III Honor Society. Additionally, Josie serves as the UB LEADS Coordinator for the Student Bar Association. She is currently a senior law clerk at the Maryland Office of the Attorney General’s Organized Crime Unit.

[1] See Allison Winter, The Farm Bill Has Expired. Congress Is Months Away from a New Version, Md. Matters (Oct. 2, 2023), https://www.marylandmatters.org/2023/10/02/the-farm-bill-has-expired-congress-is-months-away-from-a-new-version/.

[2] See Cong. Rsch. Serv., R47659, Expiration of the Farm Bill 2–3 (2023).

[3] See id. at 2.

[4] See Katherine Knott, How the Farm Bill Could Affect Higher Education, Inside Higher Ed. (Jul. 25, 2023), https://www.insidehighered.com/news/government/2023/07/25/whats-stake-institutions-students-farm-bill-talks.

[5] See generally 2023 Farm Bill Title VII Policy Recommendations, Association of Public & Land-Grant Universities, https://www.aplu.org/wp-content/uploads/APLU-Farm-Bill.pdf (last visited Oct. 22, 2023) (suggesting policy recommendations for amending Title VII of the upcoming farm bill).

[6] Cong. Rsch. Serv., IF12047, Farm Bill Primer: What is the Farm Bill? 1 (2023).

[7] What Is the Farm Bill?, Nat’l Sustainable Agric. Coal., https://sustainableagriculture.net/our-work/campaigns/fbcampaign/what-is-the-farm-bill/ (last visited Oct. 19, 2023).

[8] Id.

[9] Genevieve K. Croft, Cong. Rsch. Serv., R47057, Preparing for the Next Farm Bill 43 (2022).

[10] Genevieve K. Croft, Cong. Rsch. Serv., R45897, The U.S. Land-Grant University System: Overview and Role in Agricultural Research 1 (2022).

[11] Id. at 3.

[12] Id.

[13] See id.

[14] Sara Partridge, The 2023 Farm Bill Must Address Inequalities in the Land-Grant University System, Ctr. for Am.Progress (July 26, 2023), https://www.americanprogress.org/article/the-2023-farm-bill-must-address-inequities-in-the-land-grant-university-system/. Benson, supra note 9, at 26.

[15] Croft, supra note 9, at 12. Extension, Nat’l Inst. Food & Agric., https://www.nifa.usda.gov/about-nifa/how-we-work/extension (last visited Feb. 5, 2024).

[16] 7 U.S.C. § 361(a).

[17] Id.

[18] Id.

[19] Partridge, supra note 13.

[20] Id.

[21] Croft, supra note 9, at 16.

[22] Cong. Rsch. Serv., IF11319, 2018 Farm Bill Primer: Agricultural Research and Extension 1 (2018).

[23] Press Release, U.S. Dep’t Educ., Secretaries of Education, Agriculture Call on Governors to Equitably Fund Land-Grant HBCUs (Sept. 18, 2023), https://www.ed.gov/news/press-releases/secretaries-education-agriculture-call-governors-equitably-fund-land-grant-hbcus#:~:text=U.S.%20Secretary%20of%20Education%20Miguel,grant%20peers%20in%20their%20states.

[24] Press Release, Congressman David Scott, Ranking Member David Scott Introduces Legislation to Support 1890 Scholarships (Mar. 8, 2023), https://democrats-agriculture.house.gov/news/documentsingle.aspx?DocumentID=2750.

[25] Elizabeth Shwe, Maryland Settles HBCU Federal Lawsuit for $577 Million, Md. Matters (Apr. 28, 2021), https://www.marylandmatters.org/maryland-settles-hbcu-federal-lawsuit-for-577-million/.

[26] Id.

[27] Id.

[28] Land-Grant Colleges and Universities, Nat’l Inst. Food & Agric., https://www.nifa.usda.gov/land-grant-colleges-universities (last visited Oct. 22, 2023).

[29] See Cong. Rsch. Serv., supra note 17, at 1.

[30] Further Continuing Appropriations and Other Extensions Act, Pub. L. No. 118-22 (2023).

Law, Policy, and Maryland’s Cannabis Industry

The legalization of cannabis in Maryland has raised a host of challenging legal and regulatory questions. The University of Baltimore Law Review will gather Maryland’s foremost experts on cannabis, including policymakers, regulators, and legal practitioners, to address a wide range of criminal, business, and social equity aspects of cannabis legalization. The event will take place on Friday, April 12, 2024, at the University of Baltimore School of Law. Attendance is free and open to the public. Lunch will be served, and a reception will follow the conclusion of the event. Please register at the link below to explore this budding new industry!

If I Go Missing, Be Sure This Folder Gets Entered as Evidence!

*Andrea Hutton

I. Introduction

Scholars often trace the modern obsession with true crime media to Truman Capote’s 1966 best seller, In Cold Blood.[1] Today, the genre’s popularity is at an all-time high thanks to newer media offering these gory tales. Lovers of these stories have endless options such as the still popular true crime novel, dedicated television channels, as well as streaming and podcast offerings.[2]

After several years of true crime at the peak of popularity, critics are assessing the impact of these stories across platforms, posing the question: “Has this gone from entertainment to obsession?”[3] Many say yes. Scholars and critics point out that women are especially susceptible to allowing true crime to take over their daily lives.[4] For some women true crime evolves from entertainment to a real-life threat that leaves them asking, “[w]hat if it happens to me?”[5]

This question looms large for many women, leading some to compile an “If I Go Missing” folder.[6] The concept is simple: a person documents all the information they believe would aid in a missing persons search in the unlikely circumstance they ever go missing.[7] A popular true crime podcast provides a fifty-three-page template to listeners who sign up for its emails.[8] Similarly, stationery retailers offer aesthetically pleasing binders to compile details like the potential victim’s social media logins, distinctive tattoos, and the names and contact information for individuals the compiler thinks the police should question first. [9]

Since the initial rise of true crime podcasts, several pieces of the media have leapt into the real world and altered the course of the legal proceedings surrounding those stories.[10] So far, these legal effects have primarily dealt with reconsiderations of guilty verdicts.[11] But what might occur in the courtroom when such obsession and documentation sadly prove correct, and a victim’s folder makes its way into a trial as evidence?

II. Admitting Evidence and the Victim’s If I Go Missing Folder

One need not attend law school to realize the importance of evidence in proving or disproving a case. Evidence lies at the heart of any court proceeding, so much so that the Supreme Court and Congress worked in conjunction to compile and codify robust common law evidence rules into the Federal Rules of Evidence.[12] While an attempt to admit a victim’s folder would implicate many narrow issues that would require fact-based analysis, courts will have to consider certain broad evidence and Constitutional questions that would apply regardless of specific facts. This section provides an overview of some of those broad questions.

The initial hurdle when determining the admissibility of a victim’s folder, like any piece of evidence, lies in the question of relevance. The relevance of any evidence turns on the proponent’s reason for presenting it.[13] Proffered evidence may be relevant for some purposes, but not others.[14] While the folder’s relevance would be the first, and potentially most important, requirement for admission, such inquiry remains is highly fact-specific, and speculation is not productive. Assuming the court overrules an opposing party’s relevance challenge the opposition next raise a challenge based on authentication—that is, if the evidence is what the proponent claims it is.[15]

A lawyer could authenticate a victim’s folder in several ways.[16] They may offer testimony of a witness who saw the victim completing the information in the folder[17] or who can attest to private information in the document that only the victim would know.[18] If handwritten, a lay person[19] or expert could testify to similarities between the handwriting in the document and the victim’s previously authenticated handwriting.[20]

However, evidence that passes relevance and authentication challenges may still face the law student’s greatest fear: an objection based on the rule against hearsay. The rule against hearsay prevents a party from offering evidence in the form of statements made outside of court as proof that the content of the statement is true.[21] In cases where lawyers have attempted to offer a person’s private writings or recollections as evidence, the opposing party invoked the hearsay rule to prevent admission of the writing.[22] Hearsay challenges can be difficult to navigate for both parties to a case because the rule comes with numerous exceptions and exemptions.[23] One hearsay exception allows for admission of “[a] statement of the declarant’s then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health).” Absent this use, an opposing party could successfully bar admission of this statement as inadmissible hearsay.[24] This exception could prove helpful if a prosecutor wished to enter certain parts of an If I Go Missing Folder, like a list of people to question that includes the accused, to illustrate the victim’s mental feeling that the accused could cause them serious harm, but not as proof of the accused’s guilt.

Alternatively, if the defense used the folder for a reason other than to prove the truth of the matter asserted, the evidence may be admissible if deemed relevant.[25] When a party offers an individual’s out of court statements as evidence of the declarants state of mind the statement is “not hearsay at all because [it is] not offered to prove the truth of the declaration.”[26] Proponents often offer statements to prove—circumstantially—whether the declarant was of sound mind.[27] For example, a proponent could offer a folder in an attempt to show that its author was paranoid, nervous, or some other mental state if that information is relevant.

The final evidentiary hurdle is based in the Constitution, rather than the Federal Rules of Evidence. In a criminal trial, the Sixth Amendment provides the accused the right “to be confronted with the witnesses against him.”[28] In Crawford v. Washington, the Supreme Court ruled that, in a criminal trial, this clause prevents the admission of otherwise permissible hearsay when the statement is testimonial, the declarant is unavailable for cross-examination, and the statement was not previously subject to cross-examination by the accused.[29] While the Court declined to provide a binding definition of “testimonial” in Crawford, it did propose that a statement may be testimonial if “made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.”[30] Given the ultimate purpose of these folders—to help police find a missing person—a court would likely rule that its contents are testimonial. Thus, in a criminal case where the author of the folder is not available for cross-examination, the Sixth Amendment would bar admission of this evidence.

III. Conclusion

One hopes that the exploration in this piece is much ado about nothing—that the likelihood of being a victim of homicide remains low and these folders remain filed away from the public eye. However, if opposite circumstances occur, an If I Go Missing folder may prove a novel riddle for the assigned judge. In the interim, if the folders make women feel safer, maybe they are worth the time and money.

*Andrea Hutton is a second-year day student at the University of Baltimore School of Law, where she is a Staff Editor for Law Review and a member of the Royal Graham Shannonhouse III Honor Society. Andrea received dual bachelor’s degrees from Louisiana State University in Public Relations and Fashion Merchandising. Before law school, she had a nearly 10-year career in digital marketing and business development. She intends to practice real estate law.

[1] Lindsey Webb, True Crime and Danger Narratives: Reflections on Stories of Violence, Race, and (In)justice, 24 J. Gender Race & Just. 131, 150 (2021).

[2] Id. at 151.

[3] See Emma Berquist, True Crime Is Rotting Our Brains, Gawker (Oct. 12, 2021), https://www.gawker.com/culture/true-crime-is-rotting-our-brains.

[4] See id.

[5] See id.

[6] Fortesa Latifi, ‘If I Go Missing’ Folders for the (Very Unlikely) Possibility That You Do, N.Y. Times (Aug. 19, 2023), https://www.nytimes.com/2023/08/19/style/if-i-go-missing-folders-binders.html.

[7] Id.

[8] Ashley Flowers & Brit Prawat, If I Go Missing, Crime Junkie, https://crimejunkiepodcast.com/wp-content/uploads/2022/02/CJP-If-I-Go-Missing-2022-Editable.pdf.

[9] “In Case I Go Missing” Binder, Savor, https://savor.us/collections/just-in-case-collection/products/in-case-i-go-missing-binder?variant=42761566224642.

[10] Michael Levenson, Maryland Supreme Court to Hear Arguments in Adnan Syed Case,N.Y. Times (Oct. 4, 2023), https://www.nytimes.com/2023/10/04/us/adnan-syed-serial-supreme-court-maryland.html.

[11] Id.

[12] See G. Alexander Nunn, The Living Rules of Evidence, 170 U. Pa. L. Rev. 956–57 (2022).

[13] See Fed. R. Evidence 401 advisory committee’s note to 1972 proposed rules (explaining the need for a relevancy rule).

[14] See id.

[15] See Fed. R. Evid. 901(a).

[16] See Fed. R. Evid. 901.

[17] Id. at 901(b)(1).

[18] Id. at 901(b)(4).

[19] Id. at 901(b)(2).

[20] Id. at 901(b)(3).

[21] See Fed. R. Evid. 801(c), 802.

[22] See State v. Williams, 133 Ariz. 220, 227 (1982).

[23] See Fed. R. Evid. 803–07.

[24] Id.

[25] Williams, 133 Ariz. at 228.

[26] Id.

[27] Fed. R. Evid. 801.

[28] U.S. Const. amend. VI.

[29] Crawford v. Washington, 541 U.S. 36, 68 (2004).

[30] Id. at 52.

Williams v. Kincaid: Outlier or Trendsetter?

*Christina Charikofsky

I. Introduction

In a summer marked by significant and far-reaching Supreme Court decisions,[1] the Court denied a consequential petition for certiorari in the Fourth Circuit case of Williams v. Kincaid.[2] The denial allowed a landmark ruling, which permitted “gender dysphoria” to qualify as a disability under the Americans with Disabilities Act (ADA),[3] to endure as good law in Maryland, West Virginia, Virginia, North Carolina, and South Carolina.[4] In the months following, the Williams Court’s reasoning has influenced several other federal courts to adopt similar positions when presented with the question of whether gender dysphoria is a qualifying disability under the ADA.[5]

II. Williams v. Kincaid

In 2022, the Fourth Circuit decided the case of Williams v. Kincaid.[6] The plaintiff, Kesha Williams, a transgender woman, was an inmate at the Fairfax County Adult Detention Center.[7] The Detention Center originally placed Williams in women’s housing, but later removed her to male housing after she informed the nurse “that she is transgender, suffers from gender dysphoria, and for fifteen years had received hormone medical treatment for her gender dysphoria.”[8] The nurse changed Williams’ records to indicate her sex assigned at birth, “male”, and consequentially, the Detention Center required Williams to wear men’s clothing.[9]

Subsequently, prison officials denied Williams’ prescribed hormone medication for two weeks.[10] Additionally, Williams suffered severe and frequent harassment by both the male inmates she was housed with and the prison deputies.[11] Williams’ requests to be referred to by female pronouns, shower privately, and be searched by female officers were met with hostile denial.[12] After the conclusion of her incarceration, Williams brought several claims against prison officials, including one under the ADA.[13]

Williams argued she was covered by the ADA because of her diagnosis of gender dysphoria.[14] The defendants argued that gender dysphoria falls outside of the scope of the ADA’s coverage[15] because of a provision prohibiting its application to “transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders.”[16] The District Court of Maryland granted the defendants’ motion to dismiss for failure to state a claim for which relief can be granted.[17] On appeal, the Fourth Circuit considered whether gender dysphoria is a “gender identity disorder,” and if so, whether it results from a physical impairment.[18]

The court found that gender dysphoria does not fall within the meaning of gender identity disorders excluded from coverage under the ADA.[19] The Court held that “the ADA excludes from its protection anything falling within the plain meaning of ‘gender identity disorders,’ as that term was understood ‘at the time of enactment.’”[20] In 1990, “at the time of [the ADA’s] enactment,”[21] the Diagnostic and Statistical Manual of Mental Disorders (DSM) did not recognize gender dysphoria as medical diagnosis, but it did recognize a class of gender identity disorders.[22] As the medical and scientific community’s understanding advanced, the American Psychiatric Association (APA) removed gender identity disorders from the DSM in 2013.[23] At the same time, the APA added the diagnosis of gender dysphoria.[24] The court reasoned that this revision by the APA suggested a meaningful difference between the terms “gender identity disorder” and “gender dysphoria.”[25] Significantly, the definitions between the terms differ greatly, with the latter focusing on the “‘clinically significant distress’ felt by some of those who experience ‘an incongruence between their gender identify and their assigned sex.’”[26]

The court went even further in this distinction, ruling that gender dysphoria can result from a physical impairment, marking another way in which the ADA can cover the diagnosis.[27] The court stated that Williams’ claim that she required hormone therapy leads to a reasonable inference of some physical basis for her gender dysphoria.[28] This was enough to satisfy the minimal pleading standards, and enough for Williams to survive a motion to dismiss.[29]

III. The Trend Following Williams and the Future of Gender Dysphoria Under the ADA

Following the Fourth Circuit’s ruling, the defendants’ petitioned the Supreme Court for certiorari to consider the question.[30] The Supreme Court denied the petition for certiorari, allowing the Williams ruling to stand.[31] The question of whether gender dysphoria is covered by the ADA was an issue of “first impression for the federal appellate courts” when the Fourth Circuit considered it.[32] As the question arises in other circuits, the decision in Williams will likely provide significant guidance and persuasive authority to federal courts. The question becomes; will other circuits follow or break from the key holding of Williams?

In the short time since the Fourth Circuit decided Williams in 2022, other federal courts have found the case persuasive.[33] A federal district court in the Middle District of Pennsylvania (located in the Third Circuit) relied heavily on the reasoning used in Williams to hold that a plaintiff could successfully plead facts to allege that their “gender dysphoria results from a physical impairment.”[34] The Western District of New York (located in the Second Circuit) compared the reasoning of the Williams court with that of courts that have ruled the opposite way.[35] That court found the Fourth Circuit’s reasoning persuasive.[36] Additionally, in the District of Colorado (located in the Tenth Circuit), a federal judge declined to defer to his own district’s precedent on the issue because it was outdated. Instead, the judge cited the Williams decision, saying: “the Court finds persuasive a recent thorough and closely reasoned decision by the Fourth Circuit in Williams v. Kincaid[37]Similarly, the District of Oregon (located in the Ninth Circuit) indicated a nod of approval of the Fourth Circuit’s ruling.[38]

Although the Fourth Circuit’s reasoning in Williams has yet to penetrate circuit boundaries up to the appellate court level, it appears to have gained momentum in only a few short months. Including the Fourth Circuit, five federal circuits have now indicated support for the Williams holding.[39] The quick and continued adoption of the Williams holding will likely pique greater interest among the Supreme Court the next time the issue is presented.[40] Ultimately, only time will tell if the Williams holding will become the rule nationwide.

IV. Conclusion

Williams v. Kincaid remains a historic ruling.[41] In the Fourth Circuit, entities covered under the scope of the ADA must provide reasonable accommodations to transgender individuals dealing with gender dysphoria.[42] While circuits outside of the Fourth have not formally adopted the Williams holding, federal district courts in other circuits have shown a willingness to look to Williams for guidance.[43] The question of whether gender dysphoria is a covered disability under the ADA remains unsettled in most circuits,[44] and the Williams ruling may encourage those with grievances to bring claims under the statute. As a result, many more federal courts will have the opportunity to consider the issue. For now, Williams v. Kincaid will continue to be the leading authority,[45] but the issue seems destined for eventual consideration by the Supreme Court.

*Christina Charikofsky is a second-year student at the University of Baltimore School of Law. Christina received her Bachelor’s in Political Science and Economics from Goucher College—where she was a student-athlete and competed as a member of the Women’s Soccer team. After the completion of her first year of law school, Christina was inducted into the Royal Graham Shannonhouse III Honor Society as a Distinguished Scholar. Christina is currently a Staff Editor for the University of Baltimore Law Review, participates on the Honor Board, serves as the Law Scholar for Professor Matthew Lindsay’s Torts course, and works as a Research Assistant to Professor Dionne Koller. Additionally, Christina is currently completing an externship at Kollman & Saucier, P.A. She is excited to be returning to the firm for the summer of 2024.

[1] See, e.g., Biden v. Nebraska, 600 U.S. 477 (2023); 303 Creative LLC v. Elenis, 600 U.S. 570 (2023); Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600 U.S. 181 (2023); Groff v. DeJoy, 600 U.S. 447 (2023).

[2] Kincaid v. Williams, 143 S. Ct. 2414 (2023).

[3] Williams v. Kincaid, 45 F.4th 759, 769 (4th Cir. 2022), cert. denied, 143 S. Ct. 2414 (2023).

[4] See generally id.

[5] See discussion infra Parts II–III.

[6] Williams, 45 F.4th 759.

[7] Id. at 763.

[8] Id. at 764.

[9] Id.

[10] Id.

[11] Id.

[12] Id. at 764–65.

[13] Id. at 765.

[14] Id.

[15] Id.

[16] 42 U.S.C. § 12211(b)(1).

[17] Williams, 45 F.4th at 765.

[18] Id. at 766.

[19] Id. at 769.

[20] Id. at 766.

[21] Id. at 769 (quoting Bostock v. Clayton Cty., 140 S. Ct. 1731, 1750 (2020)).

[22] Id. at 767.

[23] Id.

[24] Id.

[25] Id. at 767, 769.

[26] Id. at 768.

[27] Id. at 770.

[28] Id. at 770–71.

[29] Id. at 770.

[30] Petition for a Writ of Certiorari, Kincaid v. Williams, 143 S. Ct. 2414 (2023) (No. 22-633).

[31] Kincaid, 143 S. Ct. 2413.

[32] Williams, 45 F.4th at 766.

[33] See infra notes 33–37 and accompanying text.

[34] Guthrie v. Noel, No. 1:20-CV-02351, 2023 U.S. Dist. LEXIS 161325, at *27–40 (M.D. Pa. Sep. 11, 2023).

[35] Kozak v. CSX Transp., Inc., No. 20-CV-1845, 2023 U.S. Dist. LEXIS 133299, at *13–16 (W.D.N.Y. Aug. 1, 2023).

[36] Id. at *15.

[37] Griffith v. El Paso Cnty., No. 21-cv-00387-CMA-NRN, 2023 U.S. Dist. LEXIS 32186, at *46–47 (D. Colo. Feb. 27, 2023), adopted by 2023 U.S. Dist. LEXIS 74698.

[38] Gibson v. Cmty. Dev. Partners, No. 3:22-cv-454-SI, 2022 U.S. Dist. LEXIS 189828, at *20 (D. Or. Oct. 18, 2022) (“The Ninth Circuit has not addressed these categorical exclusions. The Fourth Circuit, however, recently held that as a matter of statutory construction, gender dysphoria is not a gender identity disorder, and so nothing in the ADA compels the conclusion that gender dysphoria is excluded from ADA protection. The Court need not determine whether gender dysphoria constitutes a disability under the ADA or Rehabilitation Act to decide Defendants’ motion. Assuming without deciding that gender dysphoria is a disability. . . .” (internal citations omitted)).

[39] See id.; Griffith, 2023 U.S. Dist. LEXIS 32186, at *46–47; Kozak, 2023 U.S. Dist. LEXIS 133299, at *13–16; Guthrie, 2023 U.S. Dist. LEXIS 133299, at *13–16.

[40] See Kincaid v. Williams, 143 S. Ct. 2414, 2415 (2023) (Alito, J., dissenting).

[41] See discussion supra Part I.

[42] See Williams v. Kincaid, 45 F.4th 759, 769 (4th Cir. 2022), cert. denied, 143 S. Ct. 2414 (2023); 42. U.S.C. §§ 12101–12213.

[43] See Gibson, 2022 U.S. Dist. LEXIS 189828, at *20; Griffith, 2023 U.S. Dist. LEXIS 32186, at *46–47; Kozak, 2023 U.S. Dist. LEXIS 133299, at *13–16; Guthrie, 2023 U.S. Dist. LEXIS 133299, at *13–16.

[44] See Williams, 45 F.4th at 766 (“[T]he district court held, that the exclusion for ‘gender identity disorders not resulting from physical impairments’ applied to . . . gender dysphoria and barred . . . ADA claim[s]. Whether this is so constitutes a question of first impression for the federal appellate courts.”).

[45] See id.