The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002

The Volokh Conspiracy

Some Dubious Reasoning in Judge Gerard McHugh's Haverford Opinion

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Eugene blogged earlier today about Judge Gerard McHugh's opinion dismissing a hostile environment complaint by Jewish students against Haverford College. I have not read the complaint, and I'm not going to take issue with Judge McHugh's ruling--I tend to think that the strongest case Jewish students typically have is disparate treatment, not hostile environment, in part for the First Amendment reasons Judge McHugh identifies--but I did find some of his reasoning rather dubious, to wit:

(1) Plaintiffs also discuss assorted social media posts made by Haverford Professors Gina Velasco, Guangtian Ha, and Tarik Aougab on their personal social media accounts. Id. ¶¶ 49, 51, 54-57. These posts all disparage those who continue to support Israel, but vary in tone, taste, and conviction. Id. I begin with the observation the social media posts are leveled at the state of Israel, not people of Jewish descent.

Well, no. If social media posts by professors are disparaging supporters of Israel, those posts are disparaging individuals, not the state of Israel. On northeastern liberal arts campuses like Haverford, the most vocal supporters of Israel will be predominately, perhaps exclusively, Jewish students. Professors nevertheless have a right to criticize people, including Jewish people, for supporting Israel. However, there is a point where such criticism can be of a nature where the professor may be justly suspected of being unwilling to treat some of his or her students fairly. (Imagine a professor who says, for example, "I will take any opportunity I can to take revenge on any Zionists I come across.") At that point, the university may have a duty to step in.

(2) At a meeting with Jewish community leaders to discuss the campus climate, Vice President Young also reportedly said that "Jewish students needed to condemn 'genocide' rather than report[] antisemitism." At a similar meeting with Jewish community leaders, Plaintiffs also aver that Dean McKnight posited that attacks against Jews who are committed to Israel are categorically different from attacks against other minorities. Plaintiffs finally contend that at a Chabad-hosted event, President Raymond stated that on October 7th, she saw "peaceful people" breaking free from their chains.

As a preliminary matter, none of these statements embrace Hamas. Plaintiffs can reasonably characterize them as focusing on the suffering of Palestinians without showing similar concern for the losses inflicted by Hamas or for the surge of antisemitic incidents making headlines. As a matter of campus leadership, there may be ample basis for criticism if such statements were made, but the statements remain pure speech about matters of public concern.

My first objection is that Vice President Young has an obligation to enforce Title VI, and at least some manifestations of antisemitism are violations of Title VI. For a university VP to be telling Jewish leaders that students shouldn't be reporting antisemitism, period, seems to strongly suggest that VP Young is discouraging students from reporting potential Title VI violations, and also that Young will not enforce Title VI when it comes to antisemitism. Imagine, for example, a Swarthmore VP telling black community leaders that instead of African American students reporting racism on campus, they should be condemning genocide in South Sudan.

Second, while McKnight is entitled to his opinion that attacking Jews who support Israel is categorically different than attacking members of other minority groups, the dean also has Title VI obligations. Imagine Dean McKnight saying "attacking women who support abortion/black students who support affirmative action is 'categorically different' than attacking other groups." You can't imagine it because it wouldn't happen, but in any event the dean doesn't get to pick and choose which groups on campus get protected and why. To the extent he is saying that they are being attacked for their ideology rather than their identity, that raises all sorts of complicated questions that can't be dismissed "categorically."

Third, if President Raymond indeed stated that on 10/7, she saw "peaceful people breaking free from their chains," how is that not embracing Hamas? Who was responsible for October 7, if not Hamas?

At least with regard to points 1 and 2, when you are in a position of university authority, and in that position you are charged with enforcing civil rights laws, your comments that relate to such enforcement may in fact be speech on matters of public concern, but that surely doesn't provide a blanket exemption from liability. Imagine, for example, a university official says, "I think Latinos are typically criminals, and I wish we did not have any at Haverford." Is that speech on a matter of public concern? Sure. Does that mean the First Amendment protects Haverford from liability based in part on that statement if Latino students sue, and use that as evidence of (at best) deliberate indifference to their concerns? Hardly.

(3) The encampment lasted three days, a relatively short period compared to similar encampment activity on other college campuses. … Here, amidst a period of extreme unrest on college campuses across the country, it was not clearly unreasonable for administrators to allow protestors to freely express themselves for three days.

I've expressed the view that the way universities should handle rule-breakers is to ask whether they would allow the rule-breaking if white supremacists were doing it. Surely, Haverford fails that test here, and I don't think it's "reasonable" for universities to decide whether to enforce rules based on the political views of the rule-breakers.

But my bigger concern here is Judge McHugh referring to an illicit encampment as students freely expressing themselves. Occupying someone else's (Haverford's) property is trespass, not freedom of expression. The students could have expressed themselves in all sorts of ways without breaking college rules, and the law. So if Judge McHugh is correct that Haverford's response was reasonable, it was because it was reasonable for Haverford to allow students to break school rules and the law, because no one was otherwise stopping the students from expressing themselves.

(Fun thought experiment: imagine the students "occupied" Judge McHugh's chambers  or courtroom. Think they would have lasted three days thanks to his tolerance for "freedom of expression"?)

To conclude, again, I'm not arguing that Judge McHugh's decision was ultimately wrong. At the very least, I would need to study the pleadings before I could think about reaching such a conclusion. I also tend to be skeptical of hostile environment claims, both because of First Amendment concerns and because it's very hard to prove that a plaintiff was truly denied the benefits of an education by a hostile educational environment. But that said, I think that Judge McHugh's sloppy reasoning undermines the force of his opinion, and makes it look like he is apologizing for Haverford administrator's misbehavior rather than merely concluding that it did not rise to the level of a Title VI hostile environment violation.

Guns

California General Ban on Nonresidents' Getting Concealed Carry Licenses Violates Second Amendment

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From today's Hoffman v. Bonta, decided by Judge Cathy Ann Bencivengo (S.D. Cal.):

The sole issue in this case is whether the Constitution requires California to allow nonresidents to apply for a concealed carry weapons (CCW) license. Plaintiffs, who are not California residents, complain that they are prohibited from carrying a firearm for self-defense when they visit California. For standard two-year licenses, California imposes a residency requirement. An applicant who has his or her principal place of business or employment within the local permitting jurisdiction may receive a 90-day license. Unlike some states, California does not have a reciprocity policy for CCW licenses.

The State argues … that … the Second Amendment does not mandate that a traveler be allowed to use another state's license to carry in California. In effect, they argue that nonresidents do not qualify as "the people." The Supreme Court has not interpreted "the people" so narrowly. See Heller (the people "unambiguously refers to all members of the political community, not an unspecified subset")….

California [argues that its rule is justified by] historical analogues relating to various "locality-based licensing laws" from the mid-19th century…. The problem for the State is not the licensing laws themselves: Plaintiffs do not seek California's licensing scheme stricken in its entirety. Instead, the State must provide a historical analogue for licensing laws that did not allow nonresidents to apply. For that category of restriction, the State provides a series of state laws from the early 1900s that appear to impose residency requirements on licenses. Ignoring that these laws do not date to the Founding or Ratification Era, many laws from the same period explicitly allowed nonresidents to apply.

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Free Speech

Are Plaintiffs More Eligible to Be Pseudonymous in Lawsuits Against the Government? Less Eligible?

Today's D.C. Circuit decision muddies the matter still further.

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Many courts list "whether the suit … challeng[es] the actions of the government or that of private parties" as one factor in deciding whether to allow pseudonymity. But which way does that factor cut?

[1.] Some courts conclude that pseudonymity is less available in suits against the government than in suits against private parties, see, e.g., Doe v. Megless (3d Cir. 2011):

Does the subject of the litigation heighten the public's interest? Here, interest "is heightened because Defendants are public officials and government bodies." This factor supports disclosure of Doe's identity.

Likewise, see M.M. v. Zavaras (10th Cir. 1998):

Plaintiff's claim to relief clearly involves the use of public funds, and the public certainly has a valid interest in knowing how state revenues are spent.

See also Femedeer v. Haun (10th Cir. 2000) ("the public has an important interest in access to legal proceedings, particularly those attacking … properly enacted legislation"). Or see Doe v. Pub. Citizen (4th Cir. 2014):

[T]he public interest in the underlying litigation is especially compelling given that Company Doe sued a federal agency.

[2.] Others, though, conclude that pseudonymity is less available in suits against private parties than in suits against the government, see, e.g., S. Methodist Univ. Ass'n of Women L. Students v. Wynne & Jaffe (5th Cir. 1979):

Furthermore, all of the plaintiffs previously allowed in other cases to proceed anonymously were challenging the constitutional, statutory or regulatory validity of government activity. While such suits involve no injury to the Government's "reputation," the mere filing of a civil action against other private parties may cause damage to their good names and reputation and may also result in economic harm.

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Free Speech

No Pseudonymity for Would-Be FDIC Employee Challenging Ban on Employment of Felons

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From Doe v. Hill, decided today by D.C. Circuit Judge Patricia Millett, joined by Judges Neomi Rao and Judith Rogers:

Dr. Doe challenges the constitutionality of the Federal Deposit Insurance Corporation's [statutory] ban on hiring those who have been convicted of a felony. {Dr. Doe was convicted of two Ohio felonies when he was a young man in the early 1990s. Since then, Dr. Doe has lived a law-abiding life, obtained a PhD, and become a federal public servant with a security clearance. In 2009, he applied for and received a pardon from the Ohio governor, and his felony convictions were sealed by an Ohio court.} …

Because federal court proceedings are presumptively open and transparent, proceeding under a pseudonym is rarely granted. {Civil complaints filed in federal court must "name all the parties[,]" Fed. R. Civ. P. 10(a), and the suit must be prosecuted in "the name of the real party in interest," id. 17(a)(1).} Although Dr. Doe has a legitimate privacy interest in his sealed felony convictions, that interest is insufficient in this case to overcome the strong presumption against pseudonymous litigation….

This presumption is grounded in "the 'customary and constitutionally-embedded presumption of openness in judicial proceedings.'" We generally require "parties to a lawsuit [to] openly identify themselves … to protect[] the public's legitimate interest in knowing all of the facts involved, including the identities of the parties."

Requiring parties to litigate under their real names serves important values. Accurate party names allow citizens to evaluate the nature of the claims raised and the interests at stake, to assess "the real-world aftermath of a suit," and to determine for themselves whether "justice was done." Knowing the identity of parties also makes it easier for citizens to investigate abuses of the judicial process like judicial conflicts of interest and ex parte contacts, and it promotes the appearance of fairness. "Secrecy breeds suspicion[,]" and so "[s]ome may believe that a party's name was masked as a means of suppressing inconvenient facts and that the court was either asleep at the wheel or complicit in the cover up."

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Free Speech

California Law Stops City from Flying World Flag Above U.S. and California Flag

And the U.S. Constitution doesn't preclude this result.

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From City of Arcata v. Citizens in Support of Measure M, decided Friday by the California Court of Appeal (Justice Charles Smiley, joined by Justices Jim Humes and Monique Langhorne Wilson); seems quite right to me:

In November 2022, the City's voters passed Measure M, an initiative to enact an ordinance requiring the City to "fly the Earth Flag at the top of all city-owned flagpoles, above the flag of the United States of America and the California flag, and any other flags that the city may choose to display." Measure M passed with 3,051 votes in favor of the measure and 2,781 votes against it. The City subsequently adopted Measure M as an ordinance (the Ordinance), as required by Elections Code section 9217….

Under article XI, section 7 of the California Constitution, "[a] county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws." (Italics added.) Put another way, "[o]ur state's Constitution grants state laws enacted by our Legislature supremacy over nearly all ordinances adopted by the more local government entities such as counties and cities." …

[California Government Code] section 436 … provides, "Where the National and State Flags are used, they shall be of the same size. If only one flagpole is used, the National Flag shall be above the State Flag and the State Flag shall be hung in such manner as not to interfere with any part of the National Flag. At all times the National Flag shall be placed in the position of first honor." This mandate is absolute, barring a small carveout the Legislature provided in section 434.5, which states that entities such as cities and counties can impose "reasonable restrictions" on the time, placement, and manner of display of the National Flag, but only when "necessary for the preservation of the public's health, safety, or order." …

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Politics

Comment to the Texas Supreme Court On Whether To "Reduce Or End" Reliance on the American Bar Association

"What is good for Texas is not necessarily good for the University of Texas, and vice versa."

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In April, the Supreme Court of Texas invited comments on whether Texas should "reduce or end" reliance on the American Bar Association's Section on Legal Education. A few weeks ago, the Civitas Institute organized a symposium on this important topic. I have now submitted a comment to the Court. In short, whether the Court keeps or abandons the ABA, there should be a recognition that the interests of law deans are not always consonant with the interests of the general public.

Here is my comment:

I submit this comment in my individual capacity, and not on behalf of my employer, the South Texas College of Law Houston. Admittedly, my views about the ABA are out of sync with those of most law professors and deans in Texas. I submit this minority report quite deliberately. The Supreme Court's order invited "comments on this topic from the Texas Board of Law Examiners, the Texas law school deans, the bar, and the public." With respect, I think this order lists the relevant constituencies backwards. The Supreme Court's authority to regulate the legal profession is premised on serving the public interest. And the interests of law school deans, in particular, are not always consonant with the public interest. 

A simple example illustrates this point. Were the Supreme Court to end its reliance on the American Bar Association, the most immediate practical effect would be on portability: Students who graduate from Texas law schools that are not ABA accredited may not be eligible to sit for bar exams in other states. To law school deans, this outcome would be an anathema. How can elite law schools thrive without recruiting top students who will not stay in Texas? Of course, Texas could still allow students who graduate from law schools in other states to sit for the Texas Bar exam. And nothing would prevent elite law schools from voluntarily undergoing ABA accreditation. The theoretical problem is limited to students who graduate from non-elite Texas law schools who seek to leave our state. 

I think the public would ask a reasonable question: Why should the state adopt rules to benefit people who have no interest in serving Texans? Herein lies the disconnect. 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." What is good for Texas is not necessarily good for the University of Texas, and vice versa.

In June, I helped to organize a symposium hosted by the Civitas Institute about Texas and the Future of Legal Education. This conversation advanced a range of criticisms about the ABA's role. I think each essay, which I've appended to this comment, is worth studying. But here, I urge the Court to consider the broader interest of the public, and not simply the concerns of entrenched regulated entities. There is no demonstrable connection between the ABA's onerous regulations and "promoting high-quality and cost-effective legal education." In the past decade, the Supreme Court of Texas erred by adopting the Uniform Bar Exam and joining the NextGen Bar Exam—decisions that were part of the conveyor belt towards nationwide portability. In that process, the Supreme Court has neglected the teaching of Texas law and flattened federalism. The time is now ripe for the Supreme Court to change course. If portability is so important, there are other ways to accomplish this end than through the ABA's byzantine regime. 

I do hope SCOTX changes course.

Free Speech

Court Allows Breach of Contract Claim for Haverford's Allegedly Failing to Respond to Anti-Semitism Complaints—But Only for Nominal Damages

"So whatever hard to imagine rationalization Haverford might offer for obscuring the content of its actual bias policy—an artifice reminiscent of Dean Wormer's 'double secret probation'—I find the demarcation 'draft' to be of no legal import."

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In yesterday's Landau v. Corp. of Haverford College, Judge Gerard McHugh (E.D. Pa.) rejected plaintiffs' Title VI claims (see here for more), but allowed the breach of contract claim to go forward, albeit only for nominal damages:

Plaintiffs allege that although they filed complaints to Haverford about many of the instances [of alleged anti-Semitic behavior], they did not receive any response, violating the policies that Haverford represents as active on their website. The absence of demonstrable harm does not prohibit this claim, because Pennsylvania law permits contract claims for nominal damages. Plaintiffs allege that Haverford failed to evenhandedly enforce its "Anti-Discrimination, Harassment, and Bias Policy." To state a claim for breach of contract, a plaintiff must "set forth facts regarding (1) the existence of a contract, including its essential terms; (2) a breach of duty imposed by the contract; and (3) resultant damages." "Written guidelines, policies, and procedures" distributed to students over the course of enrollment may constitute the terms of such contracts.

[1.] Existence of a Valid Contract

Plaintiffs rely on a combination of two Haverford documents as the basis for their claim. They first allege that Haverford has breached its promise set forth in its Non-Discrimination Statement to provide an employment and educational environment free from all forms of unlawful discrimination on the basis of "religion, national origin, ancestry, citizenship … or any other characteristic protected by law." Plaintiffs then allege that this Non-Discrimination policy is enforceable through the College's Anti-Discrimination, Harassment, and Bias Policy ("Bias Policy"), which itself is a binding contract, and details a series of procedures that Haverford has failed to follow. Plaintiffs attach what they contend is an active and binding version of the Bias Policy that they downloaded from Haverford's website. Plaintiffs also plead that the policy is directly adjacent to the portal where students can, and did, submit "bias incidents."

Haverford disputes the validity of the contract, pointing to the fact that the attached PDF of the Bias Policy, the same Bias Policy that was linked on Haverford's website on the date of oral argument, is clearly labeled as a "draft." Haverford argues that because the Policy was designated as a draft, it was not in force during any of the incidents alleged. Notably, Haverford does not provide any alternative policy that was in place, further asserting that even if the Court finds that the Bias Policy was operative, Plaintiffs' allegations of breach are too vague to state a contract claim.

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Returning to Virginia

After twenty-four years, my time in Ohio comes to an end.

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Twenty-four years ago, I left my home in Virginia and moved to Ohio to join the faculty at the Case Western Reserve University School of Law. Several years later, I was tenured, became the inaugural holder of the Johan Verheij Memorial Professorship, and then the founding Director of the Coleman P. Burke Center for Environmental Law.

I have now moved back to Virginia as I am joining the faculty at the William & Mary Law School as the Tazewell Taylor Professor of Law. I am grateful to those who supported and enriched my academic career at CWRU, and to those at W&M who have given me this next opportunity. I am excited to begin this next chapter.

SCOTUS Puts Skrmetti SDP Case Out Of Its Misery

The ACLU's cert petition is denied, and several other petitions are GVR'd.

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Last week I speculated what would happen to the ACLU's cert petition in Skrmetti that raised the Due Process issue. I wondered if the Court would GVR the parental rights issue in light of Mahmoud.

Today's order list denied review in L.W. v. Skrmetti. There were no recorded dissents. It seems the Due Process claim is now dead. The Tennessee law, and others like it, will now go into effect.

Indeed, the Court GVR'd several related cases. First, West Virginia excluded treatment for gender dysphoria from Medicaid. The Fourth Circuit held this exclusion violated the Equal Protection Clause. Second, North Carolina excluded treatment for gender dysphoria from the state employee health plan. The Fourth Circuit likewise ruled against the state. Third, Idaho denied Medicaid coverage for sex-reassignment surgery. After Skrmetti was argued, the Ninth Circuit found this exclusion was unlawful.

These issues will bubble back to the Court in a year or so. Let's see if the Fourth Circuit can see the writing on the wall. Speaking of which, guess which Circuit was the "Biggest Loser" at the Court this term? No, it was not my beloved Fifth Circuit.

David Lat explains (based on Adam Feldman's Stat Pack):

Some circuits got reversed a lot. Subjectively and anecdotally, it felt to me that the Fifth Circuit took it on the chin this Term in terms of reversals. But if you look at reversals in percentage terms, the First, Fourth, Ninth, and Tenth Circuits were the most reversed, all with a 100 percent reversal rate—based on two, eight, four, and five cases decided by SCOTUS, respectively. So with a 0-8 record before the justices, the Fourth Circuit was the "biggest loser," in terms of the court with the highest reversal rate and the highest total number of cases. (The Ninth Circuit had three cases that were dismissed as improvidently granted.)

The Fifth Circuit didn't do that badly. The Fifth Circuit had the most total cases reversed (10), and some were high-profile—such as Bondi v. VanDerStock (a statutory-interpretation case about "ghost guns"), Kennedy v. Braidwood Management (an Appointments Clause challenge to an Affordable Care Act-created task force), and FCC v. Consumers Research (a nondelegation challenge to the FCC's "universal service" scheme). But the Fifth Circuit wound up with a 77 percent overall reversal rate, since it was also affirmed in three appeals—including the closely followed Free Speech Coalition, Inc. v. Paxton (a First Amendment challenge to an age restriction for pornography websites).

I think the reversal rate should include GVRs as well.

Stay tuned for more.

So What'd I Miss?

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I apologize for my blog silence the past five days. I have just finished work on a major book deadline (much more about that soon), so was unable to opine on the Court's final decisions. I have some thoughts. So stay tuned.

The Supreme Court, Martians, Justice Jackson, and Chief Justice Roberts

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Justice Jackson's dissent in the universal injunction case (CASA, Inc. v. Trump) includes this line:

A Martian arriving here from another planet would see these circumstances and surely wonder: "what good is the Constitution, then?" What, really, is this system for protecting people's rights if it amounts to this—placing the onus on the victims to invoke the law's protection, and rendering the very institution that has the singular function of ensuring compliance with the Constitution powerless to prevent the Government from violating it? "Those things Americans call constitutional rights seem hardly worth the paper they are written on!"

Some people have suggested there's something strange or inappropriate about bringing Martians into it, but it seems a pretty familiar locution. Here, for instance, is Chief Justice Roberts from Riley v. California (2014), which labels it familiar enough to be "proverbial":

These cases require us to decide how the search incident to arrest doctrine applies to modern cell phones, which are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.

Justice Thomas used a similar phrase in Foster v. Chatman (2016) and Justice O'Connor in Engle v. Isaac (1982), both quoting Judge Henry Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142, 145 (1970):

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Parental Rights

No Qualified Immunity for School District Police Officer Who Seized Home-Schooled 14-Year-Old from Home

The child, and her 12-year-old brother, were left under the supervision of a neighbor by the mother, who left town for six days for a foreign job interview.

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From McMurry v. Weaver, decided Friday by the Fifth Circuit (Judge Carolyn Dineen King, joined by Judge Jim Ho and Irma Carrillo Ramirez):

In October 2018, Plaintiff-Appellee Megan McMurry resided in a gated apartment complex in Midland, Texas with her daughter, Plaintiff-Appellee J.M., (then age fourteen) and son C.M. (then age twelve). J.M. took classes virtually from home, C.M. attended Abell Junior High School (Abell), part of the Midland Independent School District (MISD), and Ms. McMurry taught at Abell. Ms. McMurry's husband and the children's father, Plaintiff-Appellee Seth Adam McMurry, was deployed to the Middle East with the National Guard. To explore a job opportunity that would allow the family to move closer to Mr. McMurry, Ms. McMurry planned a trip to Kuwait from Thursday, October 25 to Tuesday, October 30.

Before leaving, Ms. McMurry arranged for a neighbor, Vanessa Vallejos, to check in on J.M. and C.M., and for coworkers to take C.M. to school. J.M. often babysat Ms. Vallejos's son, and Ms. McMurry had arranged for Ms. Vallejos to watch J.M. and C.M. while she was out of town in the past.

On the morning of October 26, 2018, Defendant-Appellant Alexandra Weaver, a police officer with MISD, received a text from a counselor who was supposed to take C.M. to school that day. Weaver already knew that Ms. McMurry was out of the country because Ms. McMurry had emailed all Abell campus employees including Weaver a few days earlier. Upon receiving the text, she became concerned that J.M. and C.M. were without adult supervision, and informed her supervisor, Officer Kevin Brunner, of her concerns.

Weaver and Brunner then proceeded to meet with three of Ms. McMurry's coworkers and learned that (1) Ms. McMurry was traveling for a job interview; (2) C.M. was at school; (3) a neighbor, whose son J.M. often babysat, was checking on the children daily; and (4) J.M. was homeschooled. Weaver and Brunner then went to the McMurrys' apartment to conduct a welfare check on J.M.

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Unenumerated Rights

Parental Rights and Youth Gender Medicine

The Supreme Court just declined this morning to consider this issue, but here's how a noted lower court judge analyzed the matter.

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Some people have asked: Why aren't state statutes limiting youth gender medicine treatments violations of parental rights (given that they apply even when the parents ask for the treatment for their children)? The answer, I think, is that the Court hasn't generally recognized a constitutional right to get forbidden medical procedures for oneself, much less a right to get them for one's children. I think Sixth Circuit Judge Jeffrey Sutton correctly summarized the legal rules in L.W. v. Skrmetti (which the Supreme Court just declined to review):

There is a long tradition of permitting state governments to regulate medical treatments for adults and children. So long as a federal statute does not stand in the way and so long as an enumerated constitutional guarantee does not apply, the States may regulate or ban medical technologies they deem unsafe.

Washington v. Glucksberg puts a face on these points…. The Court reasoned that there was no "deeply rooted" tradition of permitting individuals or their doctors to override contrary state medical laws. The right to refuse medical treatment in some settings, it reasoned, cannot be "transmuted" into a right to obtain treatment, even if both involved "personal and profound" decisions….

Abigail Alliance hews to this path. The claimant was a public interest group that maintained that terminally ill patients had a constitutional right to use experimental drugs that the FDA had not yet deemed safe and effective. As these "terminally ill patients and their supporters" saw it, the Constitution gave them the right to use experimental drugs in the face of a grim health prognosis. How, they claimed, could the FDA override the liberty of a patient and doctor to make the cost-benefit analysis of using a drug for themselves given the stark odds of survival the patient already faced? In a thoughtful en banc decision, the D.C. Circuit rejected the claim. The decision invoked our country's long history of regulating drugs and medical treatments, concluding that substantive due process has no role to play….

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