The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
Court Rejects Challenge to Trump's Executive Orders on Anti-Semitism
One of the Orders calls on federal agencies to use the International Holocaust Remembrance Alliance definition, which would label certain criticisms of Israel as anti-Semitic.
From Monday's decision by Judge Douglas Harpool (W.D. Mo.) in McClanahan v. Trump, which I think reaches the correct result:
On December 11, 2019, President Donald Trump issued Executive Order 13899, directing federal agencies to use the International Holocaust Remembrance Alliance ("IHRA") definition of antisemitism in enforcing Title VI of the Civil Rights Act. On January 29, 2025, President Trump issued Executive Order 14188 titled Additional Measures to Combat Anti-Semitism. It states that it shall be the policy of the United States to combat anti-Semitism vigorously, using all available and appropriate legal tools, to prosecute, remove, or otherwise hold to account the perpetrators of unlawful anti-Sematic harassment and violence.
Plaintiff alleges Executive Order 14188 orders the Department of Education and Department of Justice to investigate individuals and institutions critical of Israel and to withhold federal funding from universities that allow such criticisms. Plaintiff alleges that Executive Order 13899 and its expanded enforcement constitute a direct violation of his civil[] rights….
Plaintiff expresses concern that the executive order he challenges calls for the Government to retaliate against those who hold beliefs or express opinions critical of the State of Israel or the Jewish community or religion. If that is how the Government interprets the measure or enforces the measure as so applied is certainly problematic under the First Amendment of our Constitution. [For more on how certain ways of enforcing the IHRA definition can violate the First Amendment, see here and here. -EV]
However, the Court interprets the measure as prioritizing efforts to curtail acts of violence, harassment or discrimination directed toward the Jewish faith and those supportive of the Jewish state rather than to punish those who merely hold opinions critical of these groups. The First Amendment does not protect acts of violence, harassment, or discrimination. In fact, laws long ago enacted prevent acts of violence, harassment and discrimination based on religious beliefs or political opinion. To that extent the Court views the executive orders as a statement of priority or emphasis rather than a change in substantive law.
Alabama Defendants in Youth Gender Medicine Case May Disclose Discovery Documents from World Professional Association for Transgender Health
Monday's decision by Judge Liles Burke (M.D. Ala.) in Boe v. Marshall dealt with whether the defendants should be able to publicly disclose documents that they had obtained in discovery. (The underlying case involves a challenge to Alabama's restrictions on youth gender medicine.) First, the factual background:
The World Professional Association for Transgender Health ("WPATH") touts its guidelines and standards of care for treating transgender children as the product of rigorous science and broad consensus. Given this wide acceptance of what WPATH claims to be reliable evidence, one would think it would be willing and eager to demonstrate as much. It is not….
This case began in 2022 when the Plaintiffs filed their complaint and moved for a preliminary injunction to block enforcement of an Alabama law restricting the use of certain medications in children diagnosed with gender dysphoria. Over the course of three days, the Court heard testimony from multiple expert witnesses who touted WPATH as the leading authority responsible for developing the prevailing guidelines and standards of care for physicians treating children with gender dysphoria. In an affidavit, one of the Plaintiffs' medical experts stated that WPATH "has been recognized as the standard-setting organization for the treatment of gender dysphoria for more than forty years." [Further details omitted. -EV] … In other words, the Plaintiffs and many of the amici believe that WPATH is the preeminent leader in the field of transgender medicine for children.
Unsurprisingly, the Defendants sought discovery from WPATH regarding, among other things, the evidence it used to develop its guidelines and standards of care. But surprisingly, the organization allegedly responsible for creating the benchmark for gender dysphoria treatment was not so keen on turning over the evidence it used to develop that standard. WPATH resisted the Defendants' subpoena at every turn. Given its own characterization of its guidelines and standards, one would expect WPATH to welcome the opportunity to put the supporting evidence on display.
A Lawyer Who Litigated Grutter v. Bollinger Comments on the Court's Recent Case on Discrimination Against Majority Groups
I've known Michael Rosman at the Center for Individual Rights for 30 years; he has litigated many important cases, including with regard to racial preferences, and was one of the lawyers in Grutter v. Bollinger. I'm therefore delighted to pass along his short reaction to Ames v. Ohio Dep't of Youth Services; all the remaining text of the post is Michael's:
In Ames v. Ohio Dept. of Youth Services, the Supreme Court unanimously rejected the "background circumstances" rule that some circuits had applied in Title VII cases when the plaintiff claiming employment discrimination was a member of a "majority" group (like whites). The "background circumstances" rule required such "majority" plaintiffs to present some evidence showing that their employer was the "unusual" employer that discriminated against the majority.
Title VII, the Court held, had one text, that text applied to everyone and, accordingly, the same requirements for proving discrimination applied to everyone. Pretty straightforward, and, in my view, undoubtedly correct. So correct that Ohio did not really bother to defend the "background circumstances" rule.
What I have not read in the aftermath of the opinion, though, is the Court's own role in inspiring this bizarre interpretation, and allowing it to fester as a blot on statutory interpretation and Title VII. Not to mention the Court's less-than-candid discussion of its own responsibility.
The appeal in Ames was from the Sixth Circuit. In its first footnote, the Court noted the other circuits that had adopted the rule: the Seventh, Eighth, Tenth, and D.C. Circuits. It cited cases decided between 1992 and 2004 from those circuits. But, as Justice Thomas's concurrence pointed out, the "background circumstances" requirement was first adopted by the D.C. Circuit in 1981 in a case called Parker v. Baltimore and Ohio Railroad Co. So, for over forty years, majority plaintiffs in at least some jurisdictions had to meet an additional requirement that the Supreme Court unanimously rejected in 2025 in a quick eight-plus page opinion. And the "circuit split" has existed since at least 1999, when the Third Circuit explicitly rejected the "background circumstances" requirement.
Academic Freedom Podcast on the University Endowment Tax
An explainer from Brian Galle
A new episode of the Academic Freedom Podcast has been released. The podcast is sponsored by the Academic Freedom Alliance and the Center for Academic Freedom and Free Speech at Yale Law School.
This episode features a conversation with Brian Galle, the Agnes Williams Sesquicentennial Professor of Tax Policy at Georgetown University Law Center, an expert on taxation and nonprofits. Galle recently served as a senior fellow in the division of corporation finance at the Securities and Exchange Commission.
He joins us to talk about the proposed tax on university endowments now making its way through Congress. The Republican House Ways & Means Committee issued a press release proclaiming that their bill "holds woke, elite universities that operate like major corporations . . . accountable." The House bill would impose dramatic new taxes on universities, hitting a number of wealthy universities particularly hard.
What is the endowment tax and what is its significance for the future of higher education? The new episode can be found here.
New Mexico Appeals Court Dismisses Suit Seeking to Compel Greater Environmental Regulation under State Constitution
The appeals court concludes the lawsuit failed to present a claim upon which relief can be granted under state law.
As legislative efforts to limit fossil fuel consumption falter, environmental activists have turned to the courts with increasing frequency and ever-more-expansive legal theories. Some of this litigation relies upon state tort law. Other suits rely upon more innovative arguments.
Several groups have pressed constitutional arguments that the failure to control various forms of pollution violate federal or state constitutional rights. Such arguments have gone nowhere in federal courts (and with good reason), but some have succeeded at the state level. Most notably, the Montana Supreme Court concluded that state citizens have a judicially enforceable right to environmental protection that constrains state-level environmental policies.
In 2023, a group of environmental activists represented by the Center for Biological Diversity filed suit in New Mexico arguing that the state constitution requires greater regulation of the oil and gas industry within the state and the suspension of new oil and gas well permits until the state complied with its constitutional obligations. The suit relied upon a state constitutional provision which provides:
The protection of the state's beautiful and healthful environment is hereby declared to be of fundamental importance to the public interest, health, safety and the general welfare. The legislature shall provide for control of pollution and control of despoilment of the air, water and other natural resources of this state, consistent with the use and development of these resources for the maximum benefit of the people
Last year, in Atencio v. New Mexico, a trial court denied the state's motion to dismiss the suit, prompting an appeal.
Last week, a New Mexico appeals court granted the state's motion to dismiss on the grounds that the plaintiffs failed to state a claim upon which relief may be granted under state law.
Constitutional Limits on Environmental Law—Call for Papers
The Pacific Legal Foundation and Catholic University Law Review are co-sponsoring a symposium on environmental law's constitutional constraints;
The Pacific Legal Foundation and Catholic University Law Review have posted a call for papers for a symposium on "Searching for Constitutional Limits on Environmental and Natural Resources Law." Here is the write-up:
Even in its most flattering light, the modern administrative state coexists uneasily with the core constitutional principle that the federal government possesses only limited enumerated powers, while the States and the people retain the remainder. "The Framers could hardly have envisioned today's vast and varied federal bureaucracy and the authority administrative agencies now hold over our economic, social, and political activities," as famously observed by Chief Justice Roberts.
Nowhere is our contemporary regulatory apparatus more pervasive than in the realm of environmental and natural resources policy. Several prominent statutes—including the Clean Water Act and the Endangered Species Act—routinely reach intra-state and non-commercial activity lacking any apparent nexus with interstate commerce. The federal government, moreover, exercises absolute power over 30% of all land, including 46% of the contiguous eleven western States and 61% of Alaska.
At some point, the growing tension between the Framers' design and modern reality must breach the Constitution's boundaries.
Accordingly, they are seeking "papers that explore the limits of Congress's regulatory authority over environmental and natural resources policy."
Papers will be presented at a symposium in Spring 2026 and published in the Catholic University Law Review. Full details are here.
New Orleans Mayor Wasn't Entitled to Restraining Order Against Woman Who Took Photos of Her in a Public Place
A temporary order had been issued, but the trial court refused to extend it into a permanent order, and awarded $15K in attorney fees; an appellate court has just upheld the trial court's final decision, and added $8K for appellate attorney fees.
From Cantrell v. Breaud, decided Monday by Louisiana Court of Appeal Judge Daniel L. Dysart, joined by Judge Karen K. Herman:
On the afternoon of Sunday, April 7, 2024, from the balcony of her residence at the Upper Pontalba Apartments, Ms. Breaud took photographs of Mayor Latoya Cantrell and NOPD Officer Jeffrey Vappie, a member of the mayor's security detail, while the two were seated at a table on the Chartres Street side balcony of the Tableau Restaurant, located in the French Quarter.
By way of background, Nola.com (John Simerman), reporting on the case, stated that, "the snapshots that roiled New Orleans, revealing Mayor LaToya Cantrell enjoying drinks on a French Quarter balcony with her alleged police officer paramour, Jeffrey Vappie." Vappie is also being prosecuted for alleged fraudulent timecard submission and other false statements related to the alleged affair.
On May 9, 2024, Mayor Cantrell filed an official police report setting out the alleged criminal actions of Ms. Breaud of the taking the photos, which took place on April 7, 2024. On May 10, 2024, Mayor Cantrell filed a "Petition for Protection From Stalking or Sexual Assault" (hereinafter referred to as the "Restraining Order") … against Ms. Breaud …. In summary, the petition for the Restraining Order set out that Ms. Breaud had followed her, harassed her and was an uninvited presence.
In her own handwriting, Mayor Cantrell set forth that the "[a]ctions of the defendant have placed me and my family in greater risk of being harmed, jeopardizing my safety especially at places I frequent." She further provided that "[T]he defendant aggressively photographed and harassed me while I was having lunch on a restaurant balcony." The trial court granted the petition and on May 10, 2025, a temporary restraining order/order of protection ("TRO") was issued and a … hearing was set for May 20, 2024, to determine whether the temporary restraining order should be continued.
Father Sues Newspaper for Not Adequately Covering Son's Basketball Games
From Lafayette v. Abrami by Vermont Superior Court (Lamoille County) Judge Benjamin Battles; the case was decided May 20, but just posted on Westlaw:
Plaintiff's pro se complaint alleges the following facts. Plaintiff is the parent of a Vermont high-school basketball player and a "lifelong student of the game." Plaintiff's son, who plays for a school outside of Chittenden County [where Burlington is located], is "one of Vermont's top-performing high school basketball players."
The Burlington Free Press is Vermont's largest newspaper. In 2018, it created and marketed Vermont Varsity Insider as a platform to cover high school sports throughout Vermont…. Despite its claims of statewide coverage, Vermont Varsity Insider focuses on Chittenden County schools, many of which have advertising or other commercial relationships with defendants. While scores from other schools are reported when available, detailed analyses of games or individual players are not.
Although plaintiff's son had multiple 30-point games during the 2024-2025 season, his performances were not reported in Vermont Varsity Insider, despite plaintiff's repeated complaints. This lack of coverage has hurt plaintiff's son's college prospects and caused plaintiff anxiety and stress, leading to uncontrollable vomiting, severe gastrointestinal distress, and panic attacks requiring benzodiazepine treatment. The complaint seeks compensatory and punitive damages and pleads causes of action for (i) violation of the Vermont Consumer Protection Act; (ii) breach of contract; (iii) negligent infliction of emotional distress; and (iv) unjust enrichment….
Large Libel Models: Small Business Sues Google, Claiming AI Overview in Searches Hallucinated Attorney General Lawsuit
The case is LTL LED LLC v. Google LLC (D. Minn.); see pp. 104 of this PDF onwards for the amended complaint. The lawsuit was filed in March in Minnesota trial court, but was just removed to federal court. The plaintiffs are the business and four of its officers, all of whom were also mentioned by name in some Google AI Overviews (assuming the exhibits attached to the Complaint are correct).
The Complaint claims that none of the sites linked to by the report actually reported that Wolf River had ever faced a Minnesota AG lawsuit, or was otherwise sued for the alleged misconduct. According to the Complaint,
Google cited numerous sources in support of its false assertions; however, none of the referenced materials in fact contained the information Google claimed they did.
The Complaint also alleges specific lost business:
On March 3, 2025, a customer … terminated his relationship with Wolf River. The customer referred to lawsuits that appear when he "Googled" Wolf River…. The total contract price was $39,680.00.
Today in Supreme Court History: June 11, 1993
6/11/1993: Church of the Lukumi Babalu Aye v. City of Hialeah decided.
Federal Circuit Grants Government's Motion for Stay Pending Appeal in Our Tariff Case
It's disappointing. But the court will hear the case on the merits on an expedited basis, and we have a strong case.
Earlier tonight, the US Court of Appeals for the Federal Circuit imposed a stay pending appeal temporarily blocking implementation of the Court of International Trade ruling striking down Trump's "Liberation Day" tariffs, in the case filed by the Liberty Justice Center and myself on behalf of five businesses harmed by the tariffs. The stay also applies to the case filed by twelve states led by Oregon, decided in the same CIT ruling. The court's order is available here.
It's an unfortunate decision. As is often the case with stay orders, the court said very little about its reasoning. But it did seem to go out of its way to indicate this is not a ruling on the merits:
Both sides have made substantial arguments on the merits. Having considered the traditional stay factors, see Fed. R. App. P. 8; Nken v. Holder, 556 U.S. 418, 426 (2009), the court concludes a stay is warranted under the circumstances. See also Trump v. Wilcox, 605 U.S. ___, 145 S. Ct. 1415, 1415 (2025) (per curiam) ("The purpose of . . . interim equitable relief is not to conclusively determine the rights of the parties, but to balance the equities as the litigation moves forward….") The court also concludes that these cases present issues of exceptional importance warranting expedited en banc consideration of the merits in the first instance.
The court also ordered an expedited schedule for consideration of the case, and decided it would hear the case en banc (meaning it will be heard by all members of the court, and not just a three-judge panel), noting that "these cases present issues of exceptional importance warranting expedited en banc consideration of the merits in the first instance."
We have a strong case, and I remain guardedly optimistic that the appellate court will ultimately see that the President's claim of virtually unlimited power to impose tariffs is blatantly illegal—which is what every court to have considered the issue so far has concluded.
Liberty Justice Center Senior Counsel Jeffrey Schwab, with whom I am co-counsel on this case, issued the following statement, with which I agree.
We're disappointed the Federal Circuit allowed the unlawful tariffs to remain in place temporarily. It's important to note that every court to rule on the merits so far has found these tariffs unlawful, and we have faith that this court will likewise see what is plain as day: that IEEPA does not allow the president to impose whatever tax he wants whenever he wants. We are glad the Federal Circuit recognized the importance of this case, and agreed to hear it before the full court on an expedited schedule.
For those interested, a compendium of links my writings on the case is available here.
Draft Amicus Brief in Chiles v. Salazar, the Professional Speech / Minor Conversion Therapy Case
I've written an amicus brief on my own behalf in this case (here's the PDF version). I'll be filing it tomorrow, but I thought I'd preview it here, in case there are some corrections or criticisms that I should take into account. Please let me know if you have anything to suggest (though please recall that the brief is aimed at fitting the case within the existing Supreme Court precedents, and not arguing to the Court how existing precedents should be overruled or modified).
Interest of the Amicus Curiae
Eugene Volokh is the Thomas M. Siebel Senior Fellow at the Hoover Institution at Stanford University. He is one of the few professors to have written on the speech integral to illegal conduct exception to the First Amendment, on which the decision below relied in part, Pet. App. 49a-50a. In particular, he is the author of The "Speech Integral to Criminal Conduct" Exception, 101 Cornell L. Rev. 981 (2016); Overbroad Injunctions Against Speech (Especially in Libel and Harassment Cases), 44 Harv. J.L. & Pub. Pol'y 147 (2022); One-to-One Speech vs. One-to-Many Speech, Criminal Harassment Laws, and "Cyberstalking," 107 Nw. U. L. Rev. 731 (2013); and over 50 other law review articles on the First Amendment, as well as a First Amendment casebook.
Amicus hopes that this brief can help explain the proper boundaries of the speech integral to illegal conduct exception, and can show that this Court—unlike the court below—should not rely on that exception in this case.
Summary of Argument
[1.] Amicus takes no position on what First Amendment test this Court should articulate for restrictions on professional-client speech. But this Court should not apply the speech integral to illegal conduct exception to formulate such a test, or to resolve this case.
Speech cannot lose its protection just because it is relabeled conduct and then banned. Indeed, this Court has consistently recognized that making "conduct" illegal or tortious abridges free speech when the conduct consists of speech that supposedly causes harm because of what it communicates.
Rather, the "speech integral to illegal conduct" exception properly applies to speech that sufficiently risks causing or threatening some other nonspeech crime or tort: It is that relationship that makes speech "integral" to the criminal or tortious conduct.
The illegal conduct can consist of physical nonspeech behavior. It can consist of speech that is independently constitutionally unprotected under some other exception. And it can consist of an agreement, which is treated as analogous to physical conduct. But it is not enough that the speech itself be labeled illegal conduct, such as "contempt of court," "breach of the peace," "sedition," "use of illegally gathered information," "treatment," or "professional advice."
Webinar Conversation on the First Amendment and Requiring Fifth-Graders to Read Pro-Gender-Ideology Books to Kindergarten Students
I much enjoyed this conversation with Kayla Ann Toney (First Liberty Institute), who was the prevailing lawyer in S.E. v. Grey:
Encinitas Unified School District required two fifth-grade boys and their assigned kindergarten buddies to read and watch My Shadow is Pink and do an activity, pressuring the kindergartners to choose a color to represent their own shadows. The plaintiffs allege this was designed to make the students question their gender identity. Represented by First Liberty Institute and the National Center for Law and Policy, the families filed a complaint in the Southern District of California and sought a motion for preliminary injunction. On May 12, 2025, Judge M. James Lorenz granted that motion in part, requiring the school district to provide advance notice and opt-outs when gender identity material is taught in mentoring programs. The judge's opinion focused on compelled speech, finding that the plaintiffs were likely to succeed on the merits of that claim. Free speech expert Professor Eugene Volokh and counsel Kayla Toney, who represents the families, broke down the opinion and discussed its ramifications for First Amendment jurisprudence.
Here's an excerpt from Judge James Lorenz's order from last month:
The school activity at issue occurred in the context of the buddy program, a weekly class pairing younger and older students. The buddy program is a mandatory part of the school curriculum. P.D. and S.E., both fifth graders, were each paired with a kindergartener. In this program, "students in the older classroom mentor students in the younger classroom."
Until the buddy class at issue, the buddy program involved art or garden projects, and any books read in the class were selected by the students. The school sent parents a weekly newsletter listing the books the students were reading each week. For the buddy class at issue, the book entitled My Shadow Is Pink was selected by the teachers and was not listed in the weekly newsletter.
My Shadow Is Pink is about a boy who liked to wear dresses and play with toys associated with girls. Because the boy thought he did not "fit in" with his family and peers, his shadow was pink rather than blue. The story involves a conflict between the boy and his father. The father eventually comes to accept his son's "pink shadow" not as a phase but as reflecting the boy's "inner-most self." Although the term "gender identity" does not appear in the book, the author describes it as a children's book on the subject of gender identity. Defendants admit that the book "does address gender identity."
In preparation for the buddy class, the teacher first read the book to P.D. and S.E.'s fifth grade class. The fifth graders then joined their kindergarten buddies, and the teacher showed a read-along video of the book to the fifth graders sitting next to their respective buddies. The video was followed by an "art activity" in which the teacher asked the kindergarteners to "pick a color that represents you," and instructed the fifth graders to trace their respective buddies' shadows on the ground with colored chalk.
Liberty Fund Symposium on "The Legacy of David Boaz" Continues
There are now initial contributions by Andy Craig, Tarnell Brown, Aaron Ross Powell, Jonathan Blanks, and myself, plus response essays.
The Liberty Fund symposium on "The Legacy of David Boaz" – prominent libertarian thinker and longtime Cato Institute leader—is continuing. We now have initial essays by all five participants—Andy Craig, Tarnell S. Brown, Aaron Powell, Jonathan Blanks, and myself. Each person will also have two response essays commenting on others' contributions, and some have already been posted, including my own.
Here are the contributions posted so far:
Andy Craig, "David Boaz Understood Liberty and the Rule of Law are Inseparable"
Ilya Somin, " David Boaz on Immigration"
Tarnell Brown, "Perspective Essay Invasive Illiberalism: David Boaz and the Russo-Ukrainian War"
Aaron Ross Powell, "David Boaz and Trans Rights"
Jonathan Blanks, "The Expansion of Liberty makes America Great"
Jonathan Blanks, "Embracing a Liberalism beyond Policy" (Response Essay)
Ilya Somin, "Liberal Universalism and the Menace of Nationalism" (Response Essay)
Here is an excerpt from my response essay:
I have few disagreements with the other contributors to the symposium in honor of David Boaz. But I want to take this opportunity to highlight some common themes that run through all our essays. Most notable is the imperative of extending liberty to as wide a range of people as possible, breaking through morally arbitrary distinctions such as those of race, gender, sexual orientation, and immigrant status. The struggle for liberty also cannot stop at national boundaries, but rather must include liberal states working to oppose oppressive regimes internationally, in some cases by force.
Like most libertarians, David Boaz advocated protecting a wide range of liberties, both "economic" and personal. But he went further than many in emphasizing the importance of extending those rights to all people, without distinction. Central to David's thought was the idea that libertarianism requires both a broad conception of the range of liberties that must be protected, and a broad view of the range of people entitled to that full protection. As Andy Craig puts it, "[n]othing offended David more than picking and choosing some people as more deserving of freedom than others, treating some people's rights as important and other people's rights as disposable."
Civitas Institute Symposium: Texas and the Future of Legal Education
Five scholars discuss what role, if any, the ABA should play in the regulation of legal education.
Recently, the Texas Supreme Court requested comments on "whether to reduce or end the Rules' reliance on the ABA." Perhaps unsurprisingly, all of the Law Deans and nearly all law professors have fallen in line to support the ABA. I thought that the SCOTX would benefit from some alternate views. I helped to coordinate an excellent symposium from the Civitas Institute about the future of legal education in Texas. Here, five scholars discuss what role, if any, the ABA should play in the regulation of legal education.
- Josh Blackman "The Supreme Court of Texas Must Put Texas First, and Liberate Law Students from the ABA
- Seth J. Chandler "Accrediting for Tomorrow: Law School Metrics and Interstate Compacts
- Andrew P. Morriss "Ending the ABA's Role in Accreditation Will Benefit Texas
- Derek T. Muller "New Paths for Legal Education Should Be Considered
- Ilya Shapiro "The ABA Deserves to Lose Its Accreditation Monopoly
- John Yoo "The Conserving Force of Lawyers in American Democracy"
My essay challenges the orthodoxy that what is good for elite Texas law schools is good for Texas. I am skeptical.
The Texas Supreme Court, and indeed most state courts, have been subject to regulatory capture. Law deans want to attract law students from across the country, even those who do not plan to stay in Texas. Two decades ago, Justice Clarence Thomas lamented that the University of Michigan Law School was little more than "a waystation for the rest of the country's lawyers, rather than a training ground for those who will remain in Michigan." Thomas, as usual, was right. He questioned UM's "decision to be an elite institution [that] does little to advance the welfare of the people of Michigan or any cognizable interest of the State of Michigan."
We can ask the same question about Texas. Why is it in the interest of the Texas Supreme Court to allow students to be educated here and practice elsewhere? President Trump is fond of saying that Americans should put America first. Why shouldn't Texans put Texas first? Certainly, the Texas legislature does not provide benefits to Texans who pledge to leave the state. Why should the Supreme Court of Texas, when acting as a legislative body, behave any differently?
Thankfully, SCOTX now has a chance to correct the course. In 1983, SCOTX delegated to the American Bar Association the authority to accredit law schools. For the past four decades, law students must graduate from an ABA-approved law school to sit for the Texas bar exam. But in April 2025, SCOTX solicited public comments on "whether to reduce or end the . . . reliance on the ABA." This request came on the heels of the Florida Supreme Court's similar request.
The problems with the American Bar Association's Section of Legal Education are well known. The ABA imposes an endless series of "standards" on law schools, without providing any evidence that these standards are actually effective. The organization imposes a one-size-fits-all all policy, without regard to how the missions of elite law schools differ from those of access law schools. And critically, the left-leaning ABA has dragooned all law schools to impose onerous DEI requirements — a step they have only temporarily suspended in response to action from the Trump Administration. Critically, the ABA does not consider the needs of the people of Texas.
Yet, as could be predicted, the Texas Law Deans have rallied in support of the American Bar Association. On May 12, a "conversation" on the ABA's role as accreditor was convened by all of the Texas law schools (including my own). There were eleven speakers, ten of whom wholeheartedly supported the ABA's role as accreditor. Only Professor Seth J. Chandler of the University of Houston offered some critical comments about the organization. However, such groupthink is emblematic of the broader lack of ideological diversity in the academy. Moreover, this monolithic thought is especially unhelpful when deciding whether to change the regulatory regime. (Indeed, this online symposium hosted by the Civitas Institute was occasioned by the glaring one-sided nature of the ABA defense rally.)
The Texas Supreme Court would be well served to consider the entire symposium.
Arresting Someone for Violating a Probation Condition That Doesn't Exist …
would violate the Fourth Amendment, holds the Eleventh Circuit.
A short excerpt from the long Gervin v. Florence, decided yesterday by the Eleventh Circuit (opinion by Judge Robin Rosenbaum, joined by Judges Nancy Abudu and Charles Wilson):
DeShawn Gervin has not been a model citizen. But he did do at least one thing right. As Gervin's sole condition of probation, a Georgia court kicked him out of its jurisdiction and banned him from returning. And Gervin followed that instruction. He moved to North Carolina.
But he didn't stay out of trouble there, either. North Carolina imprisoned Gervin for breaking and entering, larceny, and robbery and kidnapping.
Soon after, a probation officer with the Georgia Department of Community Supervision learned of Gervin's North Carolina transgressions. And she sought a warrant for his arrest in Georgia. In support, she swore that Gervin had "failed to report" and "absconded from probation supervision" in violation of his probation conditions. Another probation officer under her supervision then petitioned to revoke Gervin's probation based on his failure to report.
After the probation officer obtained the warrant, police officers in North Carolina arrested Gervin on the Georgia warrant. Then they extradited Gervin to Georgia. And Gervin spent 104 days in jail waiting for the court to resolve his probation-revocation charges.
But as we've recounted, the Georgia court's only probation condition for Gervin required him never to reenter its judicial circuit. And that's the one thing he had not done. So however else Gervin had broken the law, he had not violated his Georgia probation.
Today in Supreme Court History: June 10, 1916
6/10/1916: Justice Charles Evans Hughes resigns.
