Institutionalized Ostracism

Danieli Evans January, 2025

Abstract

Belonging is a fundamental need, like food or water. Hundreds of social psychology studies find that people who are ostracized (excluded, rejected, or ignored) experience severe pain and suffering. Ostracism threatens basic needs, triggers the same neurocognitive processing system as physical pain, and impairs functioning. Furthermore, ostracized people may cope in ways that beget “deviant” labeling and further ostracism. Belonging and ostracism are prevalent themes in social psychology research, but these constructs have received relatively little attention in law. This Article begins to explore the implications of this research for law. I make three contributions: First, I name and describe the phenomenon of “institutionalized ostracism”: When government institutions ostracize people in ways that threaten their sense of belonging. This institutionalized ostracism is mostly lawful under current antidiscrimination law. Second, I draw from social psychology literature to explain why institutionalized ostracism is so harmful—in some ways comparable to physical violence. Third, I identify and critique several ways in which current jurisprudence supports and facilitates institutionalized ostracism. In discussing these, I make some preliminary suggestions as to how our jurisprudence ought to attend to the harm of ostracism.

“Social exclusion crushes self-esteem, because it suggests you did something wrong. You feel powerless: Whatever you do, you will be met with silence. You are invisible, irrelevant, and studies show, in physical pain.”¹

“This ostracism, this otherness, is among the most distressing feelings that can be felt by our social species.”²

I. Introduction

A gay couple asks a web designer for a wedding website. The designer turns them away; says they don’t make wedding websites for same-gender couples.³

A schoolteacher puts one child into a windowless seclusion room for several hours as a punishment for “disruptive” behavior.⁴

People who lack housing are forced to camp out under a freeway overpass because the city has prohibited camping in public parks and on public streets.⁵

An employee complains to her employer about a coworker’s inappropriate behavior. After she complains, her coworkers give her the silent treatment: they ignore her, don’t make eye contact, exclude her from conversations.⁶

A transgender high school student is not allowed to use the bathroom that matches his gender identity. The school forces him to use a separate, isolated restroom that stands apart from the common restrooms.⁷

A group of twelve-year-old boys, who are Black and Latino,⁸ are stopped by police regularly during their walk home from school. Police separate them from other pedestrians, ask what they are doing, where they are going, and why they are here.⁹

A person convicted of a crime is removed from society, kept in a cell, and cut off from their family, friends, and all of society. They know that when they are released, the stigmatizing label of a criminal record will follow them everywhere, leading everyone to treat them with suspicion.¹⁰

These scenarios involve different people, in different situations, and they are governed by various legal standards. But they all involve a common injury: A person is ostracized, and the ostracism is lawful.

In recent decades, ostracism has received significant attention in social psychology research.¹¹ In this literature, ostracism is defined as being excluded, rejected, or ignored.¹² Ostracism can be wholly inadvertent and passive, such as being left out of a ball tossing game between two other players (even if they are computer-simulated characters).¹³ Regardless of what motivates ostracism—whether it is due to prejudice or inadvertent neglect—it threatens the fundamental need to belong, triggers the neurocognitive processing system associated with physical pain, causes negative emotions, and impairs cognitive functioning.¹⁴

The burgeoning literature on ostracism has received relatively little attention in law or legal scholarship.¹⁵ This Article aims to fill that void. This Article makes three main contributions:

First, in Part II, I identify the phenomenon I call “institutionalized ostracism”: When laws governing basic social institutions—including housing, education, employment, and criminal law enforcement—exclude people in ways that threaten their sense of belonging. Because the definition of ostracism is broader than the legal definition of discrimination, much of this institutionalized ostracism is permissible under existing discrimination law.

Institutionalized ostracism works to create and sustain cycles of social disadvantage and marginalization. People who occupy stigmatized identities are likelier to be ostracized through exclusionary policies, like school discipline, tracking students within school, exclusionary zoning, and ostracizing criminal punishments. This includes members of protected classes and also people who do not fit into any class currently protected by discrimination law, such as lower-income people and people who appear different or defy the dominant group’s norms in some way.¹⁶ These people, often seen as outsiders, are likeliest to experience institutionalized ostracism in various domains, and this may adversely impact their wellbeing, behavior, and their relationship to social institutions.¹⁷

Second, in Part III, I ground the phenomenon of institutionalized ostracism in a large body of social psychology literature on belonging and ostracism. This literature has developed mostly in recent decades.¹⁸ This literature suggests that institutionalized ostracism may cause significant pain and suffering—as much so as physical injury. This literature also illuminates how institutionalized ostracism can interact with prior experiences of stigma and discrimination to create and sustain cycles of deviant labeling and social exclusion.

Third, in Part IV, I identify and critique three ways in which current jurisprudence upholds and facilitates institutionalized ostracism: First, interpreting the Equal Protection clause as an anti-classification principle, which focuses exclusively on discriminatory motives, rather than one concerned with the exclusionary effects of a policy. Second, invalidating or limiting the application of anti-ostracism policies, such as anti-discrimination laws and race-conscious diversity, equity, and inclusion policies. Third, allowing and imposing ostracizing methods of punishment without considering the harm of ostracism, and whether it is ill-suited or disproportionate with respect to the goals of punishment. These doctrinal moves effectively support institutionalized ostracism.

As a preview to my argument, consider one common method of disciplining primary school students for “disruptive” behavior: physically excluding them from the classroom or the school.¹⁹ The law prohibits disciplining students based on race (or another protected trait) without a valid justification.²⁰ But if there are no racial disparities in discipline, or if the school can justify those disparities with race-neutral reasons, these ostracizing punishments are lawful.²¹ In fact they are routine and commonplace.²²

However, for reasons previewed above and elaborated below, regardless of the motivation, these ostracizing punishments may be profoundly harmful—they may cause pain comparable to physical injury and impact a student’s wellbeing, functioning, and relationship to the institution.²³ Yet, school authorities are free to ostracize students if they do so in a way the law deems non-discriminatory. This is one example of how the Court’s current approach to Equal Protection effectively allows institutionalized ostracism—a critique I explore further in Part IV.

II. Institutionalized Ostracism

This Part names and describes the phenomenon I call institutionalized ostracism. I will begin by defining the term, and explaining how it differs from the legal definition of discrimination. Then I illustrate the phenomenon by describing examples of institutionalized ostracism in housing, education, employment, and criminal law enforcement.

A. Definition

Ostracism: My definition of ostracism draws from social psychology research investigating its effects. This literature defines it as excluding, rejecting, or ignoring someone, on an individual or group-basis.²⁴ A helpful illustration of how ostracism is defined in social psychology is the “balltossing” paradigm, often used to operationalize ostracism in psychology experiments: The participant plays a ball tossing game with two other players (either human or computer simulated characters), and the other players suddenly (and without explanation) begin to ignore the participant and throw the ball to one another for several more minutes, without tossing it to the participant any more.²⁵

The ball tossing paradigm illustrates an important point about ostracism, and how it differs from the law’s definition of discrimination: Ostracism includes ignoring, neglecting, or overlooking someone in an ambiguous context, and it needn’t be deliberate or motivated by prejudice. It may be inadvertent—indeed in some of the ostracism experiments, the person left out of the ball tossing game knows that the other players are computer characters, who would have no awareness of the subject’s personal characteristics.²⁶ In other words, ostracism is defined exclusively by the experience of being excluded, rejected, or ignored; it does not depend on the reason for it.

Experimental paradigms manipulating ostracism typically involve situations or contexts where there is potential for social interaction, where one might ordinarily be included or acknowledged, but instead they are left out or ignored—e.g., playing a ball tossing game, selecting who to work with on a group task, or a quiz predicting whether one will have family or intimate partners later in life.²⁷ In situations where there is potential for interaction or inclusion, being ignored or excluded may convey (or be interpreted as conveying) that the ostracized individual does not belong. In other words, ostracism occurs in situations where people might normally interact with one another, such that being ignored or shut out is not inevitable and can therefore be interpreted as having some social meaning.

Institutionalized: I use the term “institutionalized” to refer specifically to ostracism that is supported or caused by government institutions.²⁸ I use the term to distinguish the type of ostracism that I’m discussing here from ostracism by private individuals, unsupported by government policy. Most people use ostracism in their personal relationships to sanction people for behaving in hurtful or offensive ways and/or to distance themselves from people they disapprove of.²⁹ My argument is not focused on this sort of private ostracism, since it raises fundamentally different questions from state-imposed ostracism.

Hence, the term “institutionalized ostracism” captures official policies and practices that ostracize (as defined in the previous paragraph) on an individual or group basis. Institutionalized ostracism includes practices andpolicies that ostracize individuals deliberately and explicitly, i.e., as a means of punishment, and ones that might not be designed to ostracize people but have the effect of excluding them.

B. Ostracism vs. discrimination

There is a significant overlap between the concept of ostracism and the concept of discrimination, which refers to specific types of exclusion and rejection. However, a key point of this Article is to show how the law’s concept of discrimination differs from ostracism, and how discrimination law permits many ostracizing policies. I discuss examples in Part II.C, but before moving on to these illustrations, I will parse the differences between ostracism and the law’s concept of discrimination. Ostracism differs from the legal concept of discrimination in several ways:

First, discrimination law is focused on the reason for excluding or rejecting a person or group of people; it prohibits such exclusion only insofar as it is based on a protected trait. The Court has adopted an anti-classification reading of the Equal Protection clause, which only implicates intentional discrimination based on a protected trait.³⁰ Discrimination statutes likewise prohibit discrimination based on specified protected traits.³¹ Ostracism differs because it need not be based on a protected trait. While members of protected classes do encounter frequent ostracism, people are also commonly ostracized for reasons other than their status in a protected group, such as their socioeconomic status, their appearance, perceived capability, perceived deviance, and other idiosyncratic differences.³² The ball tossing paradigm, where the subject is excluded from a ball tossing game with two other computer characters, seemingly at random, illustrates that ostracism is hurtful even if it is not based on protected trait.³³

Second, discrimination law allows for a defense when exclusion is justified by “valid” reasons, such as person’s qualifications, deservingness, or behavior.³⁴ Under an anti-discrimination framework, employers and other regulated entities are able to defend many facially-neutral practices that disproportionately exclude, or ostracize, members of protected groups.³⁵ In contrast, ostracism refers to the experience of being excluded, regardless of the the validity of the reason. It is hurtful even if it can be justified by seemingly neutral and arguably valid reasons, such as capability or economic rationality.

Lastly, courts have understood discrimination—and the government’s interest in protecting people from it—largely in material terms, such as economic injury.³⁶ Whereas, ostracism is a harm separate of any economic or material injury.

The following section will illustrate these differences by describing examples of institutionalized ostracism, most of which are permissible under existing discrimination law.

C. Examples of Institutionalized Ostracism

This section draws from sociological, ethnographic, and narrative accounts to describe institutionalized ostracism in housing, education, employment, and criminal law enforcement. These examples illustrate how laws and policies in these four areas use or support ostracism. Then, in Part III, I draw from social science research on belonging and ostracism to explain why these policies are so hurtful and can have a lasting impact on peoples’ behavior and opportunities.

It is important to note that the policy areas I discuss here are not the only examples of institutionalized ostracism: Other significant examples include immigration law,³⁷ Indian law (and the law’s treatment of indigenous people),³⁸ voting,³⁹ family regulation,⁴⁰ and the welfare system.⁴¹ I do not mean to minimize the ostracism in these areas of law. To the contrary, exclusion, rejection, and neglect are so integral to these bodies of law that they would require a more comprehensive treatment than I could accomplish in this Article.

1. Housing

I begin with housing because it is integral to one’s place in society. It impacts everything: where one goes to school, who one affiliates with, what type of policing one experiences, and one’s employment opportunities.⁴² Hence, a person’s home is inseparable from their sense of belonging and status in society.⁴³

Housing policies ostracize in various ways. I will focus on two examples here: First, housing segregation caused by exclusionary zoning. Second, economic policies that cause and sustain homelessness, along with policies that exile unhoused people from public spaces.

a. Exclusionary zoning

Communities across the country are segregated by race and socioeconomic status.⁴⁴ Exclusionary zoning policies, which restrict development and land use in ways that make it difficult to build multifamily and other forms of more affordable housing, functionally exclude lower-income people from socially desirable neighborhoods and communities.⁴⁵ Today, about 75% of residential land in major cities in America is zoned exclusively for single family housing, and not affordable to lower-income people.⁴⁶ Because of the tremendous wealth gap, Black Americans are disproportionately excluded from these neighborhoods and the social resources and opportunities they offer.⁴⁷

Exclusionary zoning (and resulting racial and economic segregation) is a form of ostracism—it is not only geographic exclusion, but social exclusion. People who are shut out of desirable neighborhoods, relegated to identifiably poor communities marked by fewer resources and opportunities, are stigmatized. They are also shut out of access to social networks and social capital that higher-resource communities might offer. This exclusion limits social opportunities and social mobility.⁴⁸ As Audrey McFarlane observes, “zoning has enshrined a stigmatization of lower cost multifamily housing, in particular rental apartments,” and zoning laws “cumulatively implemented a desire by Whites to control Black movement and live apart from Blacks, Asians, Jews, Mexicans, immigrants or anyone stigmatized as being undesirable.”⁴⁹

Policymakers are responsible in myriad ways for creating and sustaining race and wealth-based housing segregation.⁵⁰ Exclusionary zoning policies are constitutional, unless there is adequate evidence of racial motivation.⁵¹ They are defensible under the Fair Housing Act (which prohibits policies with a disparate racial impact) if they serve legitimate neutral justifications, such as preserving a neighborhood’s character or economic value.⁵²

b. Homelessness and exclusion from public space

On a more fundamental level, housing policy embraces ostracism by creating circumstances that drive homelessness.⁵³ Millions of Americans are unhoused or at risk of losing their housing.⁵⁴ Unhoused people are ostracized because they are effectively shut out of most private and many public spaces with no permanent place to belong to; they are stripped of the sense of belonging that comes from having a place within a geographic community or neighborhood.⁵⁵ Moreover, people who lack housing experience more stigma, dehumanization, and discrimination than any other social group.⁵⁶

Various law and policy choices contribute to homelessness: For example, not requiring employers to pay people living wages,⁵⁷ exclusionary zoning,⁵⁸ the criminalization of substance use disorder,⁵⁹ the failure to fund mental and behavioral health treatment,⁶⁰ choosing to prioritize property interests of the wealthy over investing in affordable housing,⁶¹ and the Supreme Court’s holding that the Fourteenth Amendment does not protect a fundamental interest in housing.⁶² While housing is a human right under various international agreements and resolutions, including the United Nations Universal Declaration of Human Rights,⁶³ and there have been proposals to this effect in the U.S. Congress, there is currently no law in the U.S. guaranteeing a right to housing.⁶⁴ Laws prohibiting discrimination do not affirmatively guarantee access to housing.⁶⁵

Unhoused people are ostracized even further by laws excluding them from public space. Cities throughout the country have criminalized behaviors associated with being unhoused, such as camping in public spaces, sitting or lying down in public, and obstructing sidewalks.⁶⁶ Sarah Rankin describes these policies as an “increasingly popular and deleterious manifestation of the urge to exile.”⁶⁷ Courts have allowed cities to punish unhoused people for existing in public space.⁶⁸

In sum, housing policy embraces ostracism through exclusionary zoning, failing to invest in affordable housing, and excluding unhoused people from public space.

2. Education

Education is crucial to being a fully participating member of society.⁶⁹ Yet many people experience ostracism in the domain of education. I will discuss two categories of common educational policies that ostracize: First, racial and socioeconomic segregation between schools; and second, ostracism within schools. This includes policies like culturally hegemonic curriculum, tracking, normative codes of conduct and dress, and exclusionary discipline. These ostracizing policies all threaten students’ sense of belonging in educational institutions, which is essential to engagement and success in those institutions.⁷⁰

a. Segregation between schools

When Brown v. Board of Education outlawed segregated schooling in 1954, it recognized the stigmatic harm of segregation (an especially odious form of ostracism).⁷¹ Yet, the courts have failed to fully remedy the harm that Brown identified.⁷² School segregation has been increasing since the 1980s, and today approximately 40% of Black students attend a school that is “intensely segregated” (meaning 90-100% non-White students).⁷³ School zoning and assignment policies interact with residential segregation to create schools that are largely segregated by race and economic status, and materially unequal.⁷⁴

Lower income students, disproportionately students of color, frequently attend schools with materially inadequate facilities and resources, fewer challenging and creative courses, less-experienced teachers and administrators, and outdated technology.⁷⁵ Schools in less-wealthy areas tend to subject students to more control and surveillance.⁷⁶ This conveys suspicion and distrust of these students; it questions their belonging in school.⁷⁷

These differences are not only a matter of material inequity. They have an ostracizing social meaning. Students in markedly under-resourced, visibly segregated schools understand these policies as conveying they are not welcome or valued in the educational domain.⁷⁸ Erika Wilson describes these exclusionary educational policies as a form of “social closure,” a “process of subordination whereby one group monopolizes advantages by closing off opportunities to another group of outsiders[,] . . . which it defines as inferior and ineligible.”⁷⁹ LaToya Baldwin Clark aptly captures race- and class-based school district boundaries as “barbed wire fences,” designed to “keep children ‘in their place’ both physically and socially.”⁸⁰ Education scholars argue that “the segregation of funding from minoritized students, implicit or explicit, is as damaging to students and learning as was de facto segregation.”⁸¹

Segregated and unequal schools are a product of the Court’s interpretation of the Equal Protection clause, which implicates only race-motivated state action, and not “race-neutral” policies that effectively exclude students based on race or socioeconomic status. I elaborate on this in Part IV.A.

b. Ostracism within schools

Within schools, many administrative policies segregate, isolate, and neglect certain students, as well. I will discuss several examples here: culturally hegemonic curriculum, tracking, normative codes of conduct, and exclusionary discipline.

Exclusionary curriculum : Curriculum conveys important, official messages about who belongs and who is valued within the school and in society more broadly. When school administrators choose a culturally hegemonic curriculum—one that focuses exclusively on the dominant group’s perspective (typically White, Eurocentric, cis- and hetero-normative)— they ignore and implicitly silence the perspectives of those outside the dominant group.⁸² Students’ whose cultural identities and perspectives are ignored or overlooked may experience ostracism, since the message of such curricular choices is that their views and perspectives are unimportant or insignificant, at least to the culturally dominant groups.⁸³ Consistent with this, experience suggests that curriculum centered around students’ perspectives, including critical consciousness, can support a sense of belonging.⁸⁴

Our laws and policies are responsible for culturally hegemonic curriculum in several ways: Schools, by default, tend to use culturally hegemonic curriculum.⁸⁵ Moreover, when teachers or school officials have attempted to adopt culturally relevant or critical pedagogy, legislators have passed laws limiting their ability to do so. For example, the Mexican American Studies program in a Tucson public school had a significant positive impact on students’ experiences and academic achievement.⁸⁶ Yet, in 2010, Arizona passed a law designed to eliminate the Mexican American Studies program, despite (or perhaps because of) its demonstrated value to Mexican American students.⁸⁷ More recently, numerous states have enacted laws limiting or prohibiting teaching critical lessons about our history of oppression, racism, and systems that sustain social inequality.⁸⁸ Florida prohibited classroom discussion about sexual orientation and gender identity in public schools.⁸⁹

Laws restricting culturally relevant curriculum may be unconstitutional if a court finds they were motivated by racial bias or designed to suppress the views of a particular group.⁹⁰ But this only occurs after educators have taken initiative to pursue culturally inclusive curricula. There is no affirmative constitutional requirement for schools to adopt more culturally inclusive curricula, or to correct their default culturally hegemonic curricula.

Tracking: The practice of tracking students within school based on perceived ability and aptitude also ostracizes by labeling some students as “special needs,” or “regular” as opposed to “gifted” or ”advanced,” and separating them physically and socially.⁹¹ Once a student is categorized as having lower ability, this categorization may change how teachers interact with the student in a way that produces a self-fulfilling cycle of exclusion from educational opportunities.⁹²

These policies violate discrimination law if schools assign students based on a protected trait, such as race or disability.⁹³ But tracking policies are commonplace, and courts have upheld them where there is a race-neutral justification for racial disparities in assignments, including socioeconomic status.⁹⁴ Though assignments may be ostensibly based on “neutral” criteria, such as aptitude or ability assessments, there is substantial evidence that they often reflect race- and class-based biases of teachers and administrators.⁹⁵

Normative Codes of Conduct : Schools ostracize through codes of conduct and dress that enforce the dominant group’s norms, and censor or sanction students who deviate in some way. For example, schools may ostracize LGBTQ+ students, and encourage students to do the same, by adopting cis/heteronormative codes of conduct that punish LGBTQ+ students for expressing their identities. Many LGBTQ+ students report having been prohibited from using chosen names and/or pronouns, wearing clothes deemed “inappropriate” for their gender, engaging in displays of affection, discussing or writing about their identity, and using the bathroom that matches their gender.⁹⁶ These policies are stigmatizing and ostracizing because they convey that LGBTQ+ individuals are deviant, abnormal, and unwelcome.⁹⁷ Studies find that LGBTQ+ students who experience such treatment are significantly likelier to drop out of school.⁹⁸ Schools also ostracize students through codes of grooming and dress that impose norms associated with Whiteness, prohibiting natural hairstyles or clothing styles associated with minoritized racial and cultural groups.⁹⁹

Normative codes of conduct, grooming, and dress may violate the Equal Protection clause if courts find they are motivated by sex or race, and they are not justified by sufficiently important or compelling interests to withstand heightened scrutiny.¹⁰⁰ But courts have upheld these policies after finding that they satisfy scrutiny, without considering the harm of ostracism.¹⁰¹

Exclusionary discipline : Finaly, schools ostracize students through exclusionary discipline. Prevailing approaches to school discipline ostracize— they physically shut a student out of the classroom or school, and explicitly label them as deviant. Furthermore, most disciplinary incidents go on a student’s permanent record, which will shape how authorities perceive and interact with them in the future.

Millions of students are suspended each year, beginning as early as preschool.¹⁰² Members of stigmatized social groups are likelier to be disciplined: Black, Latino/a, and Native American students,¹⁰³ students with disabilities, LGBTQ+ students, and lower SES students are disciplined at disproportionate rates. Research consistently suggests that these disparities are largely attributable to social and cultural biases.¹⁰⁴ These are the same students who are also disproportionately ostracized through other policies, such as tracking, exclusionary curriculum, and normative codes of conduct and grooming.¹⁰⁵

Ostracizing punishments may lead to self-escalating cycles of deviant labeling and more severe exclusion. A large literature on the school to prison pipeline documents how these policies push students out of school and into the criminal system.¹⁰⁶ Studies suggest that being shut out of the classroom labels a student as deviant, sets them up for further suspicion, exclusion, and rejection, and this may drive them toward more “deviant” peers and behavior.¹⁰⁷ Students who have been suspended are less likely to graduate on time, more likely to drop out of school, and less likely to attend college.¹⁰⁸ Students who are suspended or expelled are significantly more likely to be arrested and convicted of a crime, compared to those who are not.¹⁰⁹ Hemez et al. describe suspensions as a “negative turning point,” since children without early behavioral issues are more likely to be arrested after being suspended, compared to children who did show early behavioral issues.¹¹⁰ Though the construct of ostracism (and related social psychology literature) has not been a focus in school discipline policy guidance,¹¹¹ it seems to capture a significant problem with prevailing approaches.

In Equal Protection challenges, plaintiffs must show that disparities in discipline are motivated by the student’s race, gender, or another protected trait.¹¹² Absent a finding of discriminatory motives, courts tend to defer to school officials’ disciplinary decisions.¹¹³

Courts have rejected constitutional challenges to the arrest of an eleven-year old student with disabilities for kicking a teacher;¹¹⁴ locking a kindergartner with significant disabilities in a restraining desk that prevented them from moving;¹¹⁵ detaining a six-year-old with disabilities in a windowless closet for over an hour for infractions like not following directions, giving angry looks, mimicking his peers, and continuously talking;¹¹⁶ and placing a nine-year-old in a seclusion room for an entire day because he allegedly committed minor physical transgressions against other students.¹¹⁷ These opinions do not consider the adverse psychological effects of ostracism, which I discuss below, or how it may undermine the school’s goals by alienating students, driving withdrawal, disengagement, and further identification with “deviant” peer groups.

In sum, institutionalized ostracism is common in our school system. This includes segregation between schools, and various policies that ostracize students within school. Some of these may be covered by discrimination law. But many are not, either because there is no proof of illicit motivation or there is a ‘valid’ justification for disparities. I will discuss this further in Part IV.A.

3. Employment

Work is a vital determinant of a person’s belonging and status in society.¹¹⁸ Despite laws prohibiting employment discrimination, employment-related policies ostracize people in various ways. Here I discuss two examples: chronic unemployment and ostracism within one’s workplace.

a. Exclusion from dignified work

Being shut out of stable, reliable work is a form of ostracism. As William Forbath explains, “[w]ork has much to do with defining the person. Not only cash but respect, honor, and recognition—the currencies of status.”¹¹⁹ Those who are unemployed and “working poor,” who work unreliable, degrading, and demeaning jobs and make barely enough to survive, experience persistent “degradation and stigma.”¹²⁰ The harm is one of status and belonging, not just money.¹²¹

Despite laws prohibiting discrimination, many people are unemployed, particularly people who occupy stigmatized identities, including racial minorities, LGBTQ+ people, people with a criminal record, people who have traits associated with poverty (e.g., bad credit history; no college education; missing or broken teeth; lacking housing),¹²² people with disabilities,¹²³ people who are older,¹²⁴ people who have higher body weight.¹²⁵ Some joblessness is due to discrimination, and some is due to structural factors in the economy.¹²⁶

People who face persistent exclusion from work may give up on trying to find a job—why continue to put yourself in a situation where you will experience the pain of rejection?¹²⁷ This withdrawal may be selfprotective, insofar as it avoids the pain of subsequent rejection, but it also means that the person sacrifices the potential to attain stable, meaningful work, and may be relegated to underground economies, which can lead to criminalization and more severe ostracism (as I discuss in Part II.D).

For example, in a multi-year study of Black and Latino boys growing up in heavily policed neighborhoods in Oakland, California, Victor Rios describes how the boys—who also experienced ostracism in school and through policing and criminalization—worked hard to find jobs and prepare for interviews. But they became discouraged after repeated rejection.¹²⁸ Turning to the illegal economy meant risking incarceration. But it was worth it to “avoid the stigma, shame, and feeling of failure that the job-application process produced . . . .”¹²⁹

Our laws do little to protect people from the ostracism of unemployment. Discrimination law is a limited tool when it comes to addressing discriminatory employment practices, because biased motives are notoriously difficult to prove, and employers can defend policies with a disparate impact by advancing a neutral, non-discriminatory business justification.¹³⁰ Moreover, discrimination law does not require job creation, mandate employers hire people who lack job-related qualifications, or address structural changes in the economy that produce real mismatches between job-seekers and jobs.¹³¹

Progressives and civil rights leaders have long argued that guaranteeing full and equal citizenship requires guaranteeing decent employment to anyone who wants it.¹³² Franklin Delano Roosevelt proposed a “social and economic bill of rights” that included the right to “a useful and remunerative job” and to earn enough to make a living.¹³³ In 1967, Martin Luther King, Philip Randolph, and Bayard Rustin proposed a “Freedom Budget for All Americans,” which would guarantee full employment to anyone willing to work.¹³⁴ But this “social citizenship” was not adopted, and policymakers instead chose to focus on piecemeal interventions and “quick fixes” that control, criminalize and further marginalize jobless people.¹³⁵

b. Ostracism within the workplace

Our laws also tolerate ostracism within workplaces. “Workplace ostracism” occurs when coworkers neglect, ignore, or exclude an employee in circumstances where it would be appropriate to include them.¹³⁶ This sort of omission is more subtle, passive, and sometimes ambiguous or inadvertent than the type of overtly hostile action typically considered discrimination or harassment.¹³⁷ According to research, workplace ostracism is common,¹³⁸ and compared to harassment, may have an even stronger negative effect on employees’ wellbeing, sense of belonging, and retention.¹³⁹

Studies find that ostracized individuals may withdraw, disengage, practice “defensive silence,” engage in acts of deviance or defiance or leave the job.¹⁴⁰ While these coping behaviors may be self-protective, they are likely counterproductive with respect to the employee’s advancement in the workplace. Workplace ostracism may disparately impact members of stigmatized groups, who are likelier to be ostracized repeatedly.¹⁴¹

Discrimination law does little to address even overt forms of verbal hostility and harassment, and it does not address ostracism.¹⁴² Courts have concluded that being ignored or ostracized does not count as an “adverse employment action,” and therefore cannot be grounds for a discrimination claim.¹⁴³

4. Criminal Law Enforcement

Institutionalized ostracism in housing, education, and employment may drive people toward behavior that society labels as “deviant” or “antisocial.” Thus, experiences of social disadvantage and economic exclusion may channel people into even more severe ostracism: The ostracizing punishments of the criminal system. In the most extreme instance, studies find that ostracism is a common experience among people who commit acts of mass violence.¹⁴⁴ People who have committed such acts have been described by the media as being “invisible,”¹⁴⁵ “slow,” “dull,” “not part of the in crowd,” “displaced,”¹⁴⁶ “lone wolves,” “losers,” and “on the edge of society with difficulty holding down jobs and problems as well in their sexual relationships.”¹⁴⁷

Various accounts also suggest that people may be driven to join extremist groups, including Right Wing and Jihadist groups, by experiences of social marginalization and their search for belonging.¹⁴⁸ Similar themes emerge in Rios’s study of Black and Latino boys growing up in heavily policed neighborhoods in Oakland, California. Rios documented how the boys were “injected with microdoses of social death,” ultimately leading to “social incapacitation.”¹⁴⁹ Authorities labeled these youth as “delinquent” or “at risk,” oftentimes because of their physical appearance or social background, treated them with suspicion, and punished them for minor transgressions.¹⁵⁰ Many of the boys felt like their teachers feared them and regarded them with suspicion.¹⁵¹

Rios explains how the boys in his study, who felt excluded from “a network of positive credentials, education, and employment opportunities,” adopted “resistance identities”—identities that operate by “excluding the excluder.”¹⁵² Sometimes, in response to disrespect and exclusion, the boys committed “crimes of resistance”—trivial transgressions (like stealing a $0.25 bag of chips) to protest “a system that seemed to be stacked against them.”¹⁵³ While seemingly futile or irrational, “[t]hese transgressions served as a resource for feeling empowered and for gaining redress for the humiliation, stigma, and punishment they encountered even when they were being ‘good.’”¹⁵⁴

These behaviors are often misinterpreted as reflecting an individual’s “deviant,” “antisocial,” or “violent” character or culture.¹⁵⁵ But the research on ostracism, which I discuss below, suggests that these behaviors may be normal, universal human responses to experiencing chronic ostracism.¹⁵⁶

a. Ostracizing punishment

Standard approaches to criminal law enforcement use ostracism to incapacitate and punish people suspected or convicted of wrongdoing. This ostracism begins with street policing—stops, frisks, citations, and arrests— and escalates with criminal conviction and incarceration.

Police stops are a formative experience for many people, especially members of socially stigmatized groups: Approximately one third of Americans experience an arrest by the age of 23—nearly 50% of Black males and 40% of White males.¹⁵⁷ People with disabilities are at significantly higher risk of arrest (approximately 42% by age 28), regardless of race, and Black people with disabilities have a disproportionately high risk of being arrested (55% by age 28).¹⁵⁸ Volumes of scholarship documents how members of socially stigmatized, historically marginalized groups are disproportionately policed and punished.¹⁵⁹

Criminal law enforcement is violent in many respects. Police kill and injure people daily.¹⁶⁰ By focusing on ostracism, I do not mean to trivialize the physical violence of policing and incarceration. But ostracism is a distinct and significant harm inflicted by policing and criminal punishment. Even if police use minimal physical force and cause no physical injury, being stopped, frisked, or arrested inflicts the harm of ostracism. Being stopped and questioned impugns a person’s credibility and belonging.¹⁶¹ It is stigmatizing; it labels the person as a suspect, a deviant.¹⁶² For example, one man described the experience when police first stopped him as an eleven-year-old while he was playing in a water-balloon fight: “[T]hey [] like criminalized us, you know? [B]ecause afterwards, even though we were kids, . . . the entire communities thought that we were up to something bad. So, [] it really changed the perspective of how [] my neighbors looked at me. And how they reacted towards me.”¹⁶³

When an arrest publicly labels a person as deviant, it socially distinguishes them, and sets them up for further ostracism by other members of the community. Studies have found that youth who are arrested or stopped by police are likelier to report a sense of social exclusion, a lower commitment to education, identify as “deviant,” and associate with “deviant” peers.¹⁶⁴ People who scored higher on these “labeling mechanisms” were also more likely to report engaging in deviant behavior, compared to people who had not been arrested.¹⁶⁵ The labeling effects of an arrest may be particularly harmful to Black youth and members of other stigmatized racial groups, because an arrest record coupled with racial stereotypes appears to make police extra-suspicious of them during future encounters.¹⁶⁶

A stop or arrest is an ostracizing experience in and of itself, but incarceration is an even more severe and totalizing form of ostracism. Prison is “social death.”¹⁶⁷ Prison physically separates someone from mainstream society and their social connections. And even after a person reenters society, they face lasting, perpetual exclusion and stigma due to their criminal record.¹⁶⁸

Encounters with criminal law enforcement may lead people to withdraw from politics and civic institutions. Amy Lerman and Vesla Weaver found that people who were stopped and frisked (even if not arrested or convicted) were significantly less likely to vote, and the demobilizing effect is larger with arrest and incarceration.¹⁶⁹ They observe that experiences with the criminal system socialize people to view themselves as “custodial citizens,” “constituted not as participatory members of the democratic polity, but . . . outside the bounds of political consideration.”¹⁷⁰

Courts impose ostracizing punishments routinely, without recognizing the harm ostracism causes, or its potential to perpetuate cycles of deviant labeling and exclusion.¹⁷¹ I will return to this point in Part IV.C.

* * *

The foregoing described institutionalized ostracism in housing, education, employment, and criminal law enforcement. It described how these ostracizing policies can create and sustain cycles of social exclusion. In the next Part, I draw from social science research on ostracism to explain why institutionalized ostracism is so harmful, and why people may respond in ways that tend to beget further social exclusion.

III. The Need to Belong and the Harm of Ostracism

A. Ostracism Threatens Basic Needs

A central premise in social psychology, and related fields of social and cultural behavior, is that human behavior is oriented around fulfilling the fundamental need to belong.¹⁷² In recent decades, social psychologists have focused on belonging as the “core social motive,” a need “that underlies and helps to explain a great deal of human behavior.”¹⁷³ Belonging is a “need,” as distinct from a mere want, because it is essential to wellbeing, and deprivation causes dysfunctional outcomes.¹⁷⁴ People deprived of belonging display a range of adverse effects “including stress, depression, poor psychological adjustment, a lowered ability to self-regulate, and comprised psychological health.”¹⁷⁵ The need to belong underlies other widely recognized social motives, including the needs for self-esteem, trust, control, understanding, and meaningful existence.¹⁷⁶

The need to belong is innate and has an evolutionary and neurobiological basis. From the earliest human civilizations, people lived in groups whose members relied on one another for survival. Being outcast could be life-threatening.¹⁷⁷ Because of this, people are evolutionarily programmed to seek acceptance and to respond to rejection as a threat.¹⁷⁸

In light of the focus on belonging, there has been a recent proliferation of research investigating what happens when peoples’ sense of belonging is threatened, i.e., when a person is ostracized.¹⁷⁹ As noted previously, ostracism is defined as excluding, rejecting, or ignoring an individual or a group.¹⁸⁰ In lab experiments, ostracism has been operationalized through several common paradigms: One is the “ball-tossing” paradigm, which I discussed in Part II.A.¹⁸¹ Another is the “life-alone paradigm,” where participants fill out a fake personality quiz, and those in the ostracism condition are told that their quiz responses predict they will end up alone later in life.¹⁸² A third is the “get acquainted” paradigm, where participants do a meet-and-greet with potential collaborators on a group task, and those in the ostracism condition are told that no one wanted to work with them.¹⁸³

Nearly universally, these ostracism manipulations cause significant pain and distress. FMRI studies show that ostracism activates the same region of the brain that is activated when a person experiences physical pain.¹⁸⁴ This is because the pain system is a warning mechanism, designed to alert the brain and body to danger, and social exclusion is recognized as a threat just like physical injury.¹⁸⁵ Accordingly, people who experience rejection report feeling pain comparable to chronic back pain and childbirth.¹⁸⁶ When asked to recall a physically painful event or a socially painful event, people reported considerably higher levels of pain when recalling socially painful events, especially those coded as including ostracism.¹⁸⁷ Opioids alleviate both physical and social pain, which further suggests that both physical trauma and social exclusion trigger the same neurocognitive processing system.¹⁸⁸

Over 200 publications report that experimentally-induced ostracism threatens the fundamental need to belong, and related needs of self-esteem, control, and meaningful existence.¹⁸⁹ Many studies also find that ostracism increases feelings of sadness, anger, and distress.¹⁹⁰ Ostracism elicits this reaction even when the subject knows that the ostracism is unintentional, that the excluders are simply following a script, and when the excluders are non-human characters in a computer game.¹⁹¹

In the short term, ostracism appears to cause pain and threaten basic needs for most people. But, in the longer term, people may cope with ostracism in different ways, depending on the circumstances and their own social background. I elaborate on these coping strategies and the factors that appear to influence them in Parts II.B and II.C.

B. Coping Methods

In addition to causing immediate social and emotional pain, ostracism may have longer-term impacts on a person’s behavior. People may cope with ostracism in ways that are self-defeating or maladaptive; these coping mechanisms may hurt a person’s wellbeing, undermine their prospects of succeeding within an institution, and ultimately lead to more ostracism. How a person copes may depend on their social background—specifically their own prior experiences with social exclusion and rejection.

Reviewing ostracism research, Kipling Williams identifies four types of coping behaviors: “tend and befriend,” “fight,” “flight,” and “freeze.”¹⁹² “Tend and befriend” involves making extra effort to gain acceptance.¹⁹³ Numerous studies find that ostracized people are likelier to agree with, mimic, obey, and positively rate other people, even if doing so goes against their own knowledge, values, or perceptions.¹⁹⁴ While this is in one sense an adaptive response, as it may gain acceptance and fortify the need to belong, it can also be harmful or self-defeating: “In many instances, trying to be more socially acceptable can lead individuals down the path of gullibility and social susceptibility, making them easy targets for social manipulation.”¹⁹⁵

“Fight” is another common way of coping with ostracism. Many studies demonstrate a causal link between ostracism, aggression, derogating the excluder, and other behavior regarded as “deviant” or “antisocial.”¹⁹⁶ For example, a series of experiments found that participants who experienced ostracism, when later asked to prepare a meal for somebody else, poured significantly more hot sauce on the other person’s food (knowing they hate hot sauce).¹⁹⁷ Studies find that ostracism makes people likelier to endorse radical and extremist views, more willing to “fight and die” for their group’s beliefs, and more willing to join a group that engages in illegal activity.¹⁹⁸ Williams hypothesizes that people who have been chronically ignored or overlooked may commit an act of violence as a means of getting noticed, even if in a negative way.¹⁹⁹

People may also cope with ostracism with “flight,” avoiding or withdrawing from the excluding group or situation where they experience ostracism.²⁰⁰ Just like someone who touches a hot stove will avoid touching it again, a person who experiences ostracism in a particular situation may avoid that situation in the future. While flight may avoid the pain of further ostracism, it may be self-defeating, since the person who withdraws from an institution will lose out on the social connections, resources, and opportunities the institution offers.²⁰¹

Some research also indicates that ostracism may elicit a “freeze” response, a “concussed or affectively numb” state, a sense of lethargy, meaninglessness, and flat emotions.²⁰² This state is associated with reduced empathy and cognitive functioning, and dysregulation.²⁰³ This may be particularly likely if the ostracism seems interminable or unavoidable. For example, people ostracized through the “life alone” paradigm²⁰⁴ performed worse on an “IQ” test in both speed and accuracy; and people rejected from a collaborative group ate more junk food, but enjoyed the food less, compared to those who were accepted.²⁰⁵ Researchers hypothesize that people ostracized in these situations lose motivation to regulate their behavior, since behavioral regulation is largely calibrated toward fitting in with the group. If there is no hope of fitting in, why bother self-regulating?²⁰⁶

C. Interaction Between Social Background and Responses to Ostracism

How people interpret ostracism—and thus, how they cope with it— may be influenced by their social history and background. People who are higher in a trait called “rejection sensitivity,” which means that they “tend to chronically expect rejection, to see it when it may not be happening, and to respond to it hostilely,” tend to have stronger and more adverse reactions to ostracism.²⁰⁷ People who have histories of trauma (including discrimination, neglect, abuse, rejection by caregivers, bullying, or teasing) tend to be higher in rejection sensitivity.²⁰⁸ Thus, people from disadvantaged social backgrounds—those characterized by abuse, neglect, and/or discrimination—may be likelier to respond to ostracism in adverse ways.

For this reason, institutionalized ostracism may be especially harmful to those who occupy stigmatized social identities. This is because these individuals are likelier to have more prior experiences of discrimination, rejection, and social exclusion.²⁰⁹ Intergroup settings “might prompt individuals with stigmatized identities to anticipate greater social pain, priming prior exclusionary experiences and heightening the psychological experience of social pain.”²¹⁰ Because of prior experience with prejudice (and/or awareness of its prevalence), members of stigmatized social groups may be more conscious of a risk that people may harbor prejudice against them, and hence likelier to attribute ambiguous, unexplained ostracism to prejudice.²¹¹

Consistent with this theory, one study found that Black participants were more likely to attribute being left out of a ball tossing game to prejudice, even if the other players were members of the same racial group.²¹² All participants reported that being left out of the game made them feel like an outsider, less worthy, invisible, and out of control, but these feelings were more enduring for those who attributed their ostracism to prejudice.²¹³ The authors observe that “anticipating prejudice, particularly race-based prejudice, may magnify the experience of ostracism when it occurs.”²¹⁴

Ostracism attributed to racial prejudice may be especially harmful and threatening because racial prejudice is unfair, fundamentally degrading, pervasive, and largely outside a person’s control.²¹⁵ Another study found that participants who attributed ostracism to racial prejudice felt more out of control and meaningless, had more negative affect, and expressed more willingness to use alcohol—and these effects were most pronounced among people who had previous experiences with racial discrimination.²¹⁶

This point is significant in terms of how the institutionalized ostracism described above in Part II.C interacts with and reinforces social inequality. People who occupy stigmatized identities are likelier to be ostracized,²¹⁷ and being ostracized may harm them relatively more, because it reinforces and amplifies prior experiences with stigma, prejudice, and social rejection.

In sum, the social science research suggests that ostracism is profoundly hurtful—especially for people who have prior experiences with social stigmatization and prejudice. Furthermore, ostracism may lead people to behave in ways that beget further social exclusion.

IV. Our Jurisprudence of Institutionalized Ostracism

In Part II, I discussed various examples of institutionalized ostracism that are lawful and prevalent. The literature discussed in Part III illuminates why these practices might be profoundly hurtful, especially for members of stigmatized groups who experience ostracism more frequently. In this Part, I critique several ways in which our jurisprudence supports and facilitates institutionalized ostracism. In each of these areas, courts have overlooked or trivialized the need to belong and the harm of ostracism. I make some preliminary suggestions as to how jurisprudence ought to consider the harm of ostracism.²¹⁸

A. Interpreting Equal Protection as an Anti-Classification Principle

The Court has interpreted the Equal Protection clause as an anti-classification principle, which implicates only policies that purposefully discriminate based on a fixed set of suspect classifications.²¹⁹ This approach supports institutionalized ostracism: Policies that disproportionately ostracize members of stigmatized and marginalized social groups, like exclusionary zoning, segregated schools, within-school tracking, exclusionary discipline, and criminal law enforcement do not trigger scrutiny except in relatively rare cases where the plaintiff can prove the policy was motivated by race or another suspect trait.²²⁰

This approach to interpreting the Equal Protection clause was not inevitable: It is not compelled by the text of the clause and courts have not always interpreted it this way. Brown v. Board of Education declared segregation (a particularly explicit and odious form of ostracism) unconstitutional in part, because of its stigmatizing social meaning.²²¹ After this, many lower courts had found that zoning, school assignment and funding policies violated Equal Protection because they effectively perpetuated racial segregation and stigmatization—these findings did not depend on the purpose motivating the policy.²²² This interpretation of Equal Protection imposed an affirmative duty to remedy patterns of segregation. It meant that policies that effectively perpetuated or sustained systemic exclusion were subject to scrutiny, regardless of the motivation for them.²²³

In the 1970s, however, the Court rejected this approach and adopted the anti-classification reading, holding that the Equal Protection clause only implicates state action intended to harm members of a protected class.²²⁴ It did so in acquiescence to public backlash to school desegregation, in order to limit the scope of integration orders.²²⁵ Thus, the anti-classification rule allowed politically powerful groups to adopt policies that effectively ostracize those they wish to exclude, so long as they do so on a ‘race-neutral’ and non-suspect basis, such as socioeconomic status, aptitude, capability, or ostensibly deviant behavior.²²⁶

By adopting the anti-classification approach, the Court facilitated racial and socioeconomic segregation. The Court’s focus on discriminatory purpose as the touchstone of an Equal Protection violation meant that courts could not order integration across school district boundaries unless there was proof those boundaries were drawn for discriminatory purposes.²²⁷ This allowed “White flight”—White families moving to suburban areas with separate school districts in order to avoid integrated schools.²²⁸ And, by holding that wealth is not a suspect classification, the Court allowed school funding policies that create stark differences in resources between schools in higher- and lower-income neighborhoods.²²⁹ Such observable disparities in school resources further stigmatize lower income neighborhoods and create an incentive for wealthier people to cluster in neighborhoods with higher property values.

The Court’s anti-classification reading, by focusing exclusively on a fixed set of illicit motives while allowing policies that ostracize on other grounds, entirely overlooks the need to belong and the harm of ostracism. The Court has never considered how belonging is vital to basic welfare and functioning, or how ostracism may inflict harm that compares in ways to physical violence—literally triggering the same pain response system.²³⁰ Once one recognizes this, it becomes easier to see why an anti-classification principle, by allowing state-imposed ostracism, falls short of fulfilling the Fourteenth Amendment’s promise of equal citizenship.²³¹

Many scholars have critiqued the Court’s interpretation of the Equal Protection clause and argued that, rather than focusing exclusively on motivation, the Court should consider harms such as subordination,²³² stigmatization,²³³ demeaning or disrespect,²³⁴ and institutionalized humiliation.²³⁵ Relatedly, scholars have argued that the Fourteenth Amendment’s guarantees of full and equal citizenship impose an affirmative duty on government to protect and secure peoples’ sense of belonging (or equal access to institutions that confer belonging and status).²³⁶ These “respect inflected” definitions all share a common concern with what a policy or practice conveys about a person’s belonging and status.²³⁷

I do not have the space to develop what an ostracism-sensitive approach to Equal Protection would look like—this is a topic for future work. But, as a preliminary step, an approach that considered the harm of ostracism would be more aligned with the aforementioned “respectinflected” approaches. There seems to be substantial overlap between ostracism and disrespect, demeaning, subordination, humiliation, and the like. Oftentimes, ostracizing state action causes these harms.²³⁸ Hence, if Equal Protection jurisprudence were more centered around values of respect, belonging, and anti-subordination, it would be more concerned about ostracism. And conversely, a jurisprudence more concerned about the harm of ostracism would do more to address state action that disrespects, demeans, humiliates, stigmatizes, and subordinates.²³⁹

Like these other respect-inflected interpretations of Equal Protection, an ostracism-sensitive jurisprudence would consider the social meaning of a state action—how excluded people understand and experience the act— as opposed to the motivation for the act. It would implicate state action that ostracizes groups or individuals under circumstances that threaten their sense of belonging within the relevant institution. Under an ostracismsensitive approach, courts would recognize that members of stigmatized social groups may be likelier to attribute ostracism to social prejudice (due to prior experiences of prejudice and discrimination), and that ostracism is more harmful when people attribute it to prejudice.²⁴⁰ Hence, an ostracism-sensitive approach would be particularly skeptical of policies that disproportionately ostracize members of stigmatized social groups.

The motivation would not be dispositive, since people (especially those who have experienced social prejudice) tend to attribute ostracism to prejudice regardless of whether this is the actual motive. Scrutiny would not be limited to a fixed set of suspect traits, since people can be ostracized for myriad reasons, not amenable to fixed or rigid definition.²⁴¹ Moreover, the important question would not be the grounds for ostracism, but the social context. A classification used to exclude members of stigmatized groups most likely causes the harm of ostracism, whereas using the same classification to include or integrate members of these groups arguably does not. ²⁴²

This approach to Equal Protection might implicate many of the policies I discussed in Part II.C, which are not suspect under the current anti-classification principle unless there is proof of invidious motives: Exclusionary zoning that effectively segregates based on race and class,²⁴³ school district zoning and funding policies that create segregated and unequal schools,²⁴⁴ exclusionary school discipline,²⁴⁵ culturally hegemonic curricula, normative codes of conduct and grooming that effectively stigmatize minoritized social groups,²⁴⁶ and criminal law enforcement.²⁴⁷ This approach might be similar, in some ways, to the disparate impact principles that some lower courts had applied in the 1960s and ‘70s, before the Court adopted the anti-classification reading.²⁴⁸

B. Invalidating Anti-Ostracism Policies

Second, and relatedly, the Court has furthered institutionalized ostracism by striking down or limiting the application of policies designed to protect people from ostracism, such as anti-discrimination laws and raceconscious diversity, equity, and inclusion policies. It has done so on the grounds that these policies do not serve state interests compelling enough to justify infringing individuals’ constitutional rights. Two recent examples of this are 303 Creative v. Elenis ²⁴⁹ and Students for Fair Admissions v. Harvard (“SFFA”) .²⁵⁰ In both cases, the Court struck down policies that were arguably designed to protect people from ostracism. It did so without considering the harm of ostracism.

In 303 Creative v. Elenis , the Court held that a state’s antidiscrimination law would violate the First Amendment if it were applied to prohibit a web designer from discriminating based on sexual orientation in the sale of wedding websites.²⁵¹ The web designer claimed that selling wedding websites to same-gender couples would violate her freedom of expression by compelling her to express a message she disagreed with. The Court held that the state’s interest in preventing discrimination was not sufficiently compelling to justify infringing the designer’s freedom of expression.²⁵² The majority acknowledged that discrimination is a “deprivation of personal dignity” and that governments have a compelling interest in addressing it.²⁵³ But it stated, without much explanation, that this interest must yield to the designer’s First Amendment freedoms.²⁵⁴

The majority opinion minimized the government’s interest in applying the anti-discrimination law to the web designer. It suggested that the government’s interest in prohibiting discrimination is paramount when the discriminatory businesses have “something like monopoly power,” implying that was not the case here.²⁵⁵ This emphasis on monopoly power indicates that, in the majority’s view, the state’s interest in protecting people from discrimination is most compelling if there is an economic injury—i.e., inability to purchase goods/services—and the interest is less compelling when the excluded customers could purchase goods and services elsewhere.²⁵⁶

By focusing on economic injury as the primary harm associated with discrimination, the majority overlooked the distinct harm of ostracism.²⁵⁷ The Court did not appreciate that ostracism may inflict pain comparable to physical injury, and this is separate from any economic injury. Justice Sotomayor’s dissent pointed out this inconsistency in a rare judicial acknowledgement of the ostracism research I discuss here, stating that ostracism is “one of the most distressing feelings” a person can experience.²⁵⁸

The Court similarly overlooked the harm of ostracism in SFFA , holding that race-conscious admissions policies at Harvard and the University of North Carolina violate the Equal Protection clause.²⁵⁹ It stated that the educational benefits of diversity are “elusive,” “imponderable,” and “not sufficiently coherent” to satisfy strict scrutiny.²⁶⁰ The Court contrasted the educational benefits of diversity with an interest that it has found sufficiently compelling: preventing physical violence.²⁶¹

In litigation about race-conscious admissions policies, including in SFFA , courts have framed the educational benefits of diversity in terms of utilitarian and largely market-based values, such as training future leaders, producing new knowledge, and preparing people to work in diverse environments.²⁶² This framing overlooks a distinct, equity-related purpose of diversity-oriented policies: Namely, these policies aim to reduce the well-documented isolation, tokenization, stigmatization, and ostracism that members of historically-excluded groups experience within the institution.²⁶³

In SFFA, the Court failed to appreciate that race-conscious diversity policies work to ameliorate ostracism, and it failed to see the connection between belonging, wellbeing, and educational opportunity.²⁶⁴ Research discussed in Part III indicates that ostracism threatens students’ basic needs, and therefore may be as adverse as if they were deprived of food or water or subject to physical harm. In this sense, diversity—insofar as it counteracts the routine ostracism that members of minoritized groups experience—is integral to alleviating what might otherwise be a hostile educational environment for members of those groups.²⁶⁵

In evaluating the government’s justification for anti-ostracism policies like the ones at issue in 303 Creative and SFFA , courts ought to consider the severe harm associated with ostracism—in particular, that ostracism may cause pain comparable to physical injury. This point is noteworthy because the Court has recognized that protecting people from physical injury is a state interest sufficiently compelling to justify infringing the individual rights at issue in 303 Creative and SFFA .²⁶⁶ But ostracism may cause similar or even more severe pain and suffering.²⁶⁷ Courts should consider this point when balancing the state’s interest against individual rights in cases like these.²⁶⁸

C. Imposing Ostracizing Punishments Without Scrutiny

A third way in which courts support institutionalized ostracism is by deferring to policymakers’ judgements about exclusionary and stigmatizing methods of punishment, without recognizing the harm they cause or questioning their justifications.²⁶⁹ Courts consider ostracism to be a normal part of punishment, as opposed to an exceptional harm that warrants justification.

In 1958, the Court recognized that one of the most extreme forms of ostracism—expatriation—is cruel and unusual because it leads to “discrimination” and “banishment,” “a fate universally decried by civilized people.”²⁷⁰ Though the Court acknowledged the cruelty of this particularly extreme form of ostracism, it has otherwise adopted a deferential posture toward ostracizing punishments, such as incarceration,²⁷¹ solitary confinement,²⁷² and myriad exclusions imposed on people with criminal convictions.²⁷³ These policies cause harms similar to expatriation (i.e., discrimination, alienation from mainstream society, and banishment from social institutions), albeit without formally stripping a person of citizenship. The courts have also granted police broad discretion to stop, question, and arrest people, even in circumstances where the arrest serves no purpose but “gratuitous humiliation.”²⁷⁴

Apart from constitutional limits on punishment, sentencing codes require courts to consider whether a sentence serves the goals of punishment, including retribution, deterrence, incapacitation, and rehabilitation.²⁷⁵ Courts generally presume, without serious consideration, that ostracizing punishments serve these goals. For example, in U.S. v. Gementera , the Ninth Circuit upheld a sentencing condition that required the defendant to stand in front of a post office while displaying a two-sided sandwich board sign stating “I stole mail; this is my punishment.”²⁷⁶

The court rejected the defendant’s argument that shaming punishments cannot be rehabilitative because they cause a person to withdraw from society and inflict psychological injury.²⁷⁷ It noted that “[v]irtually all individuals who are convicted of serious crimes suffer humiliation and shame, and many may be ostracized by their communities. Indeed, the mere fact of conviction . . . is stigmatic.”²⁷⁸ Hence, the Court reasoned, this effect does not deprive the punishment of rehabilitative value.²⁷⁹ This logic is circular: The court presumed that ostracism must serve the goals of punishment simply because ostracizing punishments are the norm.²⁸⁰

Properly accounting for the harm of ostracism should lead courts to more carefully analyze whether, and under what circumstances, ostracizing punishments are appropriate. One way to better understand the circumstances in which ostracizing punishments may be ill-suited or disproportionate is to consider such punishments in relation to the recognized goals of punishment: retribution, deterrence, incapacitation, rehabilitation, and expressing condemnation.

If retribution is the goal, the punishment should be proportionate to the wrongdoing.²⁸¹ Corporal punishment, or the deliberate infliction of physical injury as a punishment, has been considered by some courts as being cruel and unusual, and has been condemned by the federal government.²⁸² In contrast, ostracizing punishments are much more commonly accepted, and rarely questioned as inherently cruel. But understanding that ostracism triggers the same neurocognitive response as physical pain suggests that ostracism might be as hurtful (and arguably as cruel) as physical punishments, such as whipping and caning.

If the objective of punishment is specific deterrence (deterring the punished person from future crime),²⁸³ ostracism research suggests that exclusion may exacerbate, rather than ameliorate, the causes of “deviant” behavior. For the reasons elaborated in Part III.B, ostracized people may cope in ways that seem “deviant” or “antisocial”—though these behaviors are ultimately efforts to fortify the need to belong and related needs.²⁸⁴ If seemingly “deviant” behavior is driven by a sense of alienation and exclusion, ostracizing punishments may exacerbate the underlying causes of that behavior.²⁸⁵

It is also questionable whether ostracism is effective as a general deterrent (setting an example that will discourage other people from committing similar acts). Whether this works may depend on various factors, including the social position of the individual, and the perceived basis for the ostracism. Vicarious ostracism—observing others being ostracized— may be as threatening and destabilizing as being ostracized oneself.²⁸⁶ If both the ostracized and the observer are members of a stigmatized social group, and the observer attributes ostracism to prejudice against their own social group, it may threaten their own identity, as well.²⁸⁷

In terms of the goal of incapacitation (preventing a person from causing further harm),²⁸⁸ it may be necessary to physically exclude or separate someone to protect other people from harm. Though ostracism may be effective and even necessary to prevent imminent harm in some contexts, this response may exacerbate the sense of alienation and estrangement that can drive “deviant” behavior.²⁸⁹ Hence it should not be imposed gratuitously, or any more or longer than necessary to protect other people. Furthermore, it is vital to provide avenues to reintegrate the person into the community, rather than causing ongoing stigmatization and marginalization.²⁹⁰ Ostracizing punishments may also serve an expressive function by publicly condemning the wrongdoer’s action.²⁹¹ But the same concerns and limitations should apply here.

Lastly, if the goal is rehabilitation, the ostracism research suggests that a more constructive response would be to take measures that establish and fortify the person’s sense of belonging and security within the community.²⁹² One example of an intervention that may have the potential to do this is the restorative justice model: Under a restorative justice model, when a person commits harm, authorities do not exclude or stigmatize them, but rather, authorities include them in a restorative conference with the harmed party and other members of the community, where they discuss the harm they caused, what they can do to make the harmed party whole, and what caused them to commit the harm.²⁹³ In its ideal form, restorative justice would develop understanding and connection between the harm-doer, the harmed, and the community, and work to repair social bonds between all parties.²⁹⁴ Consistent with the ostracism literature, studies suggest that restorative justice can be more effective than carceral punishments in changing behavior.²⁹⁵

But there are limits to how much restorative justice can do to support peoples’ sense of belonging when it operates against the background of extreme social and economic inequality and exclusion.²⁹⁶ Hence, an even more fundamental measure for cultivating peoples’ sense of belonging and security would be to ensure that everyone has access to the core social institutions that determine a person’s participation and status in society. This is a central premise of the community safety agenda put forth by the Movement for Black Lives and abolitionist movement.²⁹⁷ It also echoes an argument that progressive leaders have long made for “social citizenship”: That to meaningfully guarantee full citizenship, the state must include all people in the social institutions that determine a person’s participation and respect in society.²⁹⁸

V. Conclusion

I named and described the phenomenon of institutionalized ostracism—when government institutions exclude, reject, or neglect people under circumstances that threaten their sense of belonging. I drew from social science literature to explain why this institutionalized ostracism is so hurtful, and how it can cause cycles of deviant labeling and social exclusion. Finally, I identified and critiqued several ways in which current jurisprudence supports and facilitates institutionalized ostracism. Then I made some preliminary suggestions as to how jurisprudence ought to consider the harm of ostracism. The broadest and most transformative implication of this discussion is that our jurisprudence ought to recognize belonging as a fundamental legal value, one that is integral to equal opportunity and equal citizenship.