William E Thro

University of Kentucky, Office of Legal Counsel, General Counsel

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William E. Thro is General Counsel of the University of Kentucky,
former Solicitor General of Virginia, and a constitutional scholar. Over the
course of his career, he has served as chief legal officer for both a public
flagship research university and a public liberal arts college, litigated
constitutional issues in the Supreme Court of the United States and lower
appellate courts, taught courses on the Constitution at both the
undergraduate and law school levels, and written extensively on
constitutional law in education contexts. In addition to co-authoring two
books, THE CONSTITUTION ON CAMPUS: A GUIDE TO LIBERTY AND EQUALITY IN
PUBLIC HIGHER EDUCATION (2022) and TITLE IX: THE TRANSFORMATION OF SEX
DISCRIMINATION IN EDUCATION (2018), he has published more than sixty
articles in law reviews or peer reviewed journals as well as many book
chapters. His articles on school finance litigation have been cited by the
highest courts of twelve States.

Mr. Thro is the recipient of Stetson University’s Kaplin Award
(contribution to higher education law & policy scholarship) and the
Education Law Association’s McGhehey Award (contributions to education
law). He is a Fellow of the National Association of College & University
Attorneys (higher education scholarship) and a Distinguished Research &
Practice Fellow of the National Education Finance Academy (contributions
to education finance). He is the President of the National Education
Finance Academy, Chair of the General Counsel Advisory Committee of the Association of Public and Land Grant Universities, past President of the
Education Law Association, and a member of the NCAA General Counsel
Advisory Board.

As the Chief Legal Officer for the University of Kentucky, he provides
initiative-taking strategic advice on critical legal and policy issues
confronting a land grant research university with an integrated academic
medical center, a high-profile athletics program, and an operating budget of
over $5.6 billion. Before assuming his present position in 2012, he spent eight
years as the first in-house counsel at Christopher Newport University, a
public liberal arts university. Prior to becoming in-house counsel at
Christopher Newport, he represented public institutions as an Assistant
Attorney General in both Colorado and Virginia.
As Solicitor General of Virginia for four years, he was responsible for
the Virginia State Government’s U.S. Supreme Court litigation (except
capital cases) as well as lower court appeals involving the constitutionality
of statutes or politically sensitive issues. He argued two cases in the U.S.
Supreme Court and numerous cases in the lower appellate courts. He co-
authored seven U.S. Court merits briefs, eleven U.S. Supreme Court amicus
briefs, and more than fifty briefs at the petition stage.
He is a former Associate Professor of Constitutional Studies at
Christopher Newport University and served as adjunct law faculty for both
the University of Kentucky and University of Richmond.

A native of Kentucky, he received his undergraduate degree summa
cum laude from Hanover College. In addition to receiving the Crowe
Citation as the outstanding male in his class, he was the first Hanover
student to become a Harry S. Truman Scholar. He earned a graduate degree
with honours from the University of Melbourne while attending as a Rotary
Foundation International Ambassadorial Scholar. His law degree is from
the University of Virginia where he was a published member of the VIRGINIA
LAW REVIEW and research assistant to constitutional law professor A.E. Dick
Howard. He began his legal career as a judicial clerk to the late Judge
Ronald E. Meredith of the U.S. District Court for the Western District of
Kentucky in Louisville.
He is married to the Rev. Dr. Julie Urback Thro and has three adult
children and (Sorrah, Will, and Noah) and a daughter-in-law (Amber).
Phone: 859-257-2936
Address: University of Kentucky
301 Main Building
Lexington, KY 40506-0032
United States of America

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Papers by William E Thro

The Future of Sovereign Immunity

Social Science Research Network, 2010

ABSTRACT Sovereign immunity, which is confirmed by the Eleventh Amendment, has enormous significa... more ABSTRACT Sovereign immunity, which is confirmed by the Eleventh Amendment, has enormous significance for education lawyers and their clients. Essentially, “sovereign immunity of the States” means that private individuals or corporations cannot sue the States, state agencies, or state institutions. Therefore, if a state university or a school district is considered an “arm of the State,” then both the entity and its administrators, when sued in their official capacities, generally are immune from lawsuits. During the last years of the Rehnquist Court, the Supreme Court frequently addressed sovereign immunity issues. Between 1996 and 2002, a five Justice majority – Chief Justice Rehnquist, Justice O’Connor, Justice Scalia, Justice Kennedy, and Justice Thomas – effectively restored and expanded the sovereign immunity of the States. In each of these cases, this majority was opposed by a four Justice dissenting bloc – Justice Stevens, Justice Souter, Justice Ginsburg and Justice Breyer. Although the Justices refused to expand sovereign immunity during the last years of the Rehnquist Court, the Court did not disturb the jurisprudential foundation that it had constructed between 1996 and 2002. With the death of Chief Justice Rehnquist and the retirement of Justice O’Connor, it is somewhat unclear where the Court stands. The fact that the Chief Justice joined Justice Thomas’ vigorous dissent in Central Virginia Cmty. Coll. v. Katz, suggests that he supports the reasoning of the 1996 through 2002 decisions. Justice Alito, who joined the Court after Katz was decided, was generally supportive of sovereign immunity during his tenure on the U.S. Court of Appeals for the Third Circuit. Thus, it is likely that there are five Justices – Chief Justice Roberts, Justice Scalia, Justice Kennedy, and Justice Alito – who will continue to support an expansive interpretation of sovereign immunity. I am optimistic about the future of sovereign immunity. Indeed, I believe that the Roberts Court will reaffirm the 1996 to 2002 precedents and will even expand the scope of the State’s sovereign immunity. In particular, I believe that the Roberts Court will: (1) limit Congress’ power to abrogate sovereign immunity to statutory claims that are also constitutional claims; (2) limit Congress’ power to use the Spending Clause to exact waivers of sovereign immunity to statutory claims that are also constitutional claims; and (3) restore a State’s sovereign immunity in the Courts of another State. The purpose of this Essay is to explain my beliefs about the future of sovereign immunity. This purpose is accomplished in three sections. First, because many readers may be unfamiliar with the Court’s sovereign immunity jurisprudence, Section I provides a general background of both the constitutional theory and recent developments in sovereign immunity. Second, because it is difficult to understand my beliefs about the future of sovereign immunity without understanding the exceptions to sovereign immunity, Section II briefly explains the exceptions to sovereign immunity – abrogation, waiver, exposure to a counter-claim, no immunity in the courts of another State, and the Ex parte Young doctrine. Third, Section III explores why I believe that it is likely that the Roberts Court will limit abrogation to statutory claims that are also constitutional claims, limit the ability to exact waivers to statutory claims that are also constitutional claims, and restore a State’s immunity in the courts of another State.

The Significance of Blackstone's Understanding of Sovereign Immunity for America's Public Institutions of Higher Education

The Journal of college and university law, 2001

Puffery or Law: Reflections on the Florida School Finance Decision

Social Science Research Network, 2019

Barnett’s & Bernick’s Theory of Constitutional Construction and School Finance Litigation

Law & Courts eJournal, 2018

Although education is not a fundamental right under the United States Constitution, every State C... more Although education is not a fundamental right under the United States Constitution, every State Constitution has a provision mandating, at a minimum, that the State provide a system of free public schools. In school finance litigation, the plaintiffs claim that the state legislature has violated the State Constitution by failing to fund the public schools in an equitable or adequate manner. Despite scores of cases and a significant amount of academic commentary, “there are few certainties in the school funding litigation process.” Much of the uncertainty results from judicial confusion over the nature of constitutional analysis in school finance litigation. Because state high courts are the ultimate interpreters of state constitutions and because those decisions are binding on parties not before the Court, judges should use the original public meaning of the relevant state constitutional provisions rather than their own policy preferences. While the original public meaning of the St...

Financing Education: An Overview of Public School Funding

School business affairs, 2015

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The Coal Miner’s Daughter Preference: A Review of Cashin’s Place, Not Race: A New Vision of Opportunity in America

A half century after Henry Caudill described the abject poverty of Eastern Kentucky as “night com... more A half century after Henry Caudill described the abject poverty of Eastern Kentucky as “night comes to the Cumberlands,” the region still awaits the dawn. Lyndon Johnson, inspired in part by Caudill’s work, launched the War on Poverty in Letcher County, Kentucky, but that war was lost in Appalachia. By any objective measure, the fifty-four Kentucky counties served by the Appalachian Regional Commission lag behind the rest of the Commonwealth and the Nation. Indeed, in terms of per capital income, poverty rate, percentage of adults with a high school diploma, percentage of adults with a college degree, and homes with broadband access, the non-Appalachian counties of Kentucky (population 3.2 million) closely track the national average, but the Appalachian counties (population 1.1 million) resemble another country.Yet, despite the obvious economic, cultural, and educational disadvantages, America’s selective schools give little regard for the people of this beautiful, yet troubled, reg...

The Adoption of Title IX

legal and legislative issues The Many Faces of Compliance : The Supreme Court ’ s Decision in

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*1 Rosenkranz' Constitutional Subjects and School Finance Litigation (FNA1)

In an article entitled The Subjects of the Constitution, Professor Nicholas Quinn Rosenkranz sets... more In an article entitled The Subjects of the Constitution, Professor Nicholas Quinn Rosenkranz sets forth a new model of judicial review. Emphasizing that the grammatical structure of constitutional provisions “may be just as revealing as the words themselves,” Rosenkranz insists that “careful attention to constitutional grammar can reveal - and will reveal - nothing less than the constitutional structure of judicial review.” Like ordinary grammar, constitutional grammar has subjects (the governmental actor), verbs (the unconstitutional action), and objects (the statutes and regulations). According to Rosenkranz, judicial review, like grammatical analysis, “should begin at the beginning with subjects.” In other words, the “fundamental question from which all else follows” is identifying the subject of the Constitution - who has violated the Constitution. Once a court determines the constitutional subject, the constitutional predicate - the verb and the objects - logically follow. Know...

Special Solicitude: Religious Freedom at America’s Public Universities

Laws, 2021

Rejecting the Obama Administration’s argument that the First Amendment requires identical treatme... more Rejecting the Obama Administration’s argument that the First Amendment requires identical treatment for religious organizations and secular organizations, the Supreme Court held such a “result is hard to square with the text of the First Amendment itself, which gives special solicitude to the rights of religious organizations.” (Hosanna-Tabor, 565 U.S. at 189). This “special solicitude” guarantees religious freedom from the government in all aspects of society, but particularly on public university campuses. At a minimum, religious expression and religious organizations must have equal rights with secular expression and secular organizations. In some instances, religious expression and religious expression may have greater rights. The Court’s 2020 decisions in Espinoza v. Montana Department of Revenue, and Our Lady of Guadalupe School v. Morrissey-Berru, reinforce and expand the “special solicitude” of religion. Indeed, Espinoza and Our Lady have profound implications for student re...

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Clash of Values : Religious Autonomy and State Efforts to Eliminate All Forms of Discrimination

Expanding the Rights of Student Religious Groups on College and University Campuses: The Implications of Trinity Lutheran Church v. Comer

Laws, 2018

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Administrative Procedure Act

Title IX, May 20, 2018

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Undermining Christian Legal Society v. Martinez

In Christian Legal Society v. Martinez, a sharply divided Supreme Court held that officials at a ... more In Christian Legal Society v. Martinez, a sharply divided Supreme Court held that officials at a public institution in California might require a student religious group to admit all-comers from the student body, including those who disagree with its beliefs, as a condition of being recognized. Put another way, the Court declared that the government, through university officials, might force religious groups to choose between compromising their values and receiving benefits that other student groups receive as a matter of constitutional right. Yet, three years after Christian Legal Society, there is cause to question the continued viability of the decision. Two recent Supreme Court decisions, Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC and Agency for International Development v. Alliance for Open Society International, Inc., collectively undermine the result in Christian Legal Society. First, Hosanna-Tabor establishes that religious groups have a right of religious autonomy — absolute discretion to determine whom its leaders will be. Logically, if an organization can restrict its leadership to those who adhere to the faith, basic principles, then the organization ought to be able to impose a similar requirement on membership. Second, in Alliance for Open Society, the Court revived and redefined the unconstitutional conditions doctrine — government may impose conditions that define the program, but may not impose conditions that reach outside the program. As a result, government cannot force a religious group to surrender its religious autonomy rights as a condition of receiving some government subsidy or benefit — such as university recognition or access to student activity funds. In sum, Hosanna-Tabor and Alliance for Open Society collectively contradict the result in Christian Legal Society.

Originalism and the State Education Clauses: The Louisiana Voucher Case as an Illustration

In school finance litigation, the plaintiffs claim that the state legislature has violated the St... more In school finance litigation, the plaintiffs claim that the state legislature has violated the State Constitution by failing to provide enough money for the public schools. Historically, litigants have relied on two different constitutional theories. In “equity suits,” which dominated the 1970s and 1980s, the plaintiffs assert that all children are entitled to have the same amount of money spent on their education and/or that children are entitled to equal educational opportunities. Specifically, the plaintiffs contend the legislature violates the State Constitution’s Equality Guarantee because education is a fundamental right. In “adequacy suits,” which have dominated since 1989, the plaintiffs, relying on the State Constitutions’ Education Clauses argue that the finance system is unconstitutional because some schools lack the money to meet minimum standards of quality. In other words, all children are entitled to an education of at least a certain quality, and that more money is necessary to bring the worst school districts up to the minimum level mandated by the State Constitution. Yet, despite the recent dominance of the Adequacy Theory, the courts are inconsistent in the interpretation of the Education Clauses. Although these provisions are limitations on legislative discretion, the cases focus not whether the legislature abused its discretion, but on the characteristics of individual school districts. While there are significant textual differences among the Education Clauses, those distinctions have been largely meaningless. Consequently, “there are few certainties in the school funding litigation process.”In order to bring consistency to school finance litigation based on the adequacy theory, it is necessary to develop a consistent coherent theory of constitutional interpretation for the Education Clauses. One such plausible theory is the application of Originalism to the Education Clauses. Interestingly, the Louisiana school voucher case, Louisiana Federation of Teacher v. Louisiana, while technically not a school finance case, in the sense of equity or adequacy, illustrates the application of Originalism to the Education Clauses as to how schools are to be financed. The purpose of this Article is to examine the Louisiana school voucher case through the lens of Originalism. This purpose is accomplished in three Parts. Part I provides a general overview of Originalism. Part II discusses the Louisiana school voucher case with particular emphasis on the Court’s use of Originalism. Part III explores the potential implications of an Originalism in other school finance cases.