The Volokh Conspiracy

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

Last night I shared my resignation letter from the Heritage Foundation. Today, the story continues to develop.

The Wall Street Journal reports that 15 staffers are moving from Heritage to Advancing American Freedom (AAF).

Among those joining AAF are John Malcolm, the head of the foundation's legal and judicial studies center, Kevin Dayaratna, the head of the foundation's data analysis center and Richard Stern, the director of the foundation's economic policy studies institute. AAF said it is bringing on about a dozen other staff members. Malcolm is taking seven members of his center's team. . . .

"After Kevin Roberts's video, I had several judges, academics, and prominent practitioners come up to me, personal friends of mine, who said 'we love you, we love the Meese Center, but we're not going to do anything with the Heritage Foundation in the future,'" Malcolm, the departing expert, said. "The Kevin Roberts video was a seminal moment inside the organization."

The AAF press release includes this quote from Attorney General Meese:

Former U.S. Attorney General Edwin Meese III stated the following, "I am proud to announce Advancing American Freedom as the home for the new Edwin Meese III Institute for the Rule of Law. AAF has already established itself as a leader in the conservative movement.

I am confident that the lawyers and staff in the Meese Institute will continue to play a leading role in advancing the conservative legal movement in terms of their scholarship, and by working with allies to achieve our mutual objectives, educating the general public about important legal issues, helping to train the next generation of conservative lawyers, and defending the Constitution and rule of law."

Here is the list of people moving over:

Tom Jipping will join The Edwin Meese III Institute for the Rule of Law as a Senior Legal Fellow.

Paul Larkin will join The Edwin Meese III Institute for the Rule of Law as a Senior Legal Fellow.

Amy Swearer will join The Edwin Meese III Institute for the Rule of Law as a Senior Legal Fellow.

Jessica Reinsch will join The Edwin Meese III Institute for the Rule of Law as a Director of Programs.

Jenna Hageman will join The Edwin Meese III Institute for the Rule of Law as a Program Associate.

Meaghen McManus will join The Edwin Meese III Institute for the Rule of Law as a Program Associate

David Burton will join the Plymouth Institute for Free Enterprise as a Senior Research Fellow.

Rachel Greszler will join the Plymouth Institute for Free Enterprise as a Senior Research Fellow.

Preston Brashers will join the Plymouth Institute for Free Enterprise as a Research Fellow.

John Peluso will join the Plymouth Institute for Free Enterprise as a Policy Analyst.

Welcome to the Edwin Meese III Institute for the Rule of Law.

From Curtis v. Hawaii Mission Academy, decided Friday by the Hawaii Intermediate Court of Appeals (Judges Keith Hiraoka, Sonja McCullen, and Kimberly Guidry), I think correctly:

The underlying facts of this case are largely undisputed. Jean-Marcel Clouzet (Mr. Clouzet) taught Bible Studies at Hawaiian Mission Academy, a parochial school affiliated with the Hawai'i Conference of Seventh-Day Adventists (the Conference). In February 2022, Mr. Clouzet invited his wife (Mrs. Clouzet) to speak to the Bible Studies class about marriage and relationships.

During the discussion, a student asked a question related to white privilege. According to Kallie's deposition, Mrs. Clouzet stated she herself benefited from white privilege and pointed Kallie out, saying she had it too. Kallie identifies as non-white/Hispanic. {Kallie was eighteen years old at the time of the incident.}

The next day, Kallie's Father emailed the principal of Hawaiian Mission Academy, Joe Lee (Principal Lee), expressing that he found the incident "to be beyond offensive." He reminded Principal Lee they were assured "that those type of race views had no place at" Hawaiian Mission Academy. Kallie's Father stated that "nothing short of [Mr. Clouzet's] near immediate resignation or termination from [Hawaiian Mission Academy] would be a satisfactory resolution."

By February 17, 2022, eight days after the incident, Mr. Clouzet had been fired…. The Curtis Family brought a civil action seeking in excess of $5,778,000.00 in damages arising from the incident….

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From In re Marriage of Patel & Yendru, decided Friday by the Kansas Court of Appeals, in an opinion by Justice Stephen Hill, joined by Justice Kathryn Gardner and District Judge Joan Lowdon:

The work of our courts is public business, but not all of that business should be made public. There are reasonable limits to the public disclosures of some court records. Trade secrets, military secrets, and facts that their revelation would serve no other purpose but to promote scandal and public embarrassment may be protected from public scrutiny. Thus, by law, a court may seal some court records….

Patel [the mother] and Yendru [the father], who are both successful doctors in the Wichita area, divorced in 2011 when their child, A.Y., was four years old…. In May 2024, A.Y. was set to graduate high school, and the graduation fell on Yendru's weekend for parenting time. Patel requested that she have A.Y. at her house from Thursday-Sunday of graduation weekend; Patel had already scheduled a party with A.Y.'s friends on that Saturday and A.Y. knew of the event. On March 26, the case manager recommended that the parents split the weekend—Friday and Saturday with Patel; Sunday and Monday with Yendru….

Yendru objected …. [His motion] included a portion with the heading "Special Circumstances" in which Yendru alleged improper conduct by Patel for events that occurred 13 years before the motion was heard. It is this special circumstance portion of the record that is sealed….

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From N.Y. State Police v. K.L., decided by Ulster County (N.Y.) trial court judge Julian Schreibman on Dec. 12:

Often referred to as the "Red Flag Law," Article 63-A created ERPOs [Extreme Risk Protection Orders]. Although an ERPO is a "Protection Order," it does not limit where the subject can go or with whom he or she can associate. Rather, an ERPO does one thing: it prohibits the subject from possessing or acquiring firearms for up to one year.

Significantly, the Red Flag Law is not addressed only to criminal gun violence but also encompasses the goal of reducing suicide by firearm…. "The Red Flag Law seeks to keep guns out of the hands of persons who may be suffering from acute emotional trauma or a mental health crisis and are at risk of harming themselves or others." …

The enactment of the Red Flag law was not met with a flood of petitions. However, on May 14, 2022, a racially motivated mass shooting in Buffalo left ten Black New Yorkers dead. In the wake of this massacre, on May 18, 2022, Governor Kathy Hochul issued an Executive Order titled, "Directing the State Police to File Extreme Risk Protection Orders" (the "Executive Order")….. [S]ince the Executive Order, there has been a sharp increase in the filing of TERPO [Temporary Extreme Risk Protection Order] applications, with a significant portion of these directed at at-risk persons including troubled children, senior citizens, persons with serious chronic illnesses, and individuals processing trauma through acts of non-suicidal self-harm such as "cutting."

Since the Executive Order was issued, more than 17,000 New Yorkers have been found by a court to be likely to seriously harm themselves or others. In this County, it has been the Court's experience that, in the majority of cases, the respondent does not possess any firearm, and has no intention of doing so, so that even when the TERPO or ERPO is granted, no firearms are confiscated and neither the respondent nor the public are made any safer. Instead, the aggressive pursuit of ERPOs simply raises the prospect of further traumatizing the respondent. This is such a case….

Guns Children's Rights

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12/22/1789: Justice Levi Woodbury born.

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On December 16, Harmeet Dhillon's Civil Rights Division of the Department of Justice filed the complaint in U.S. v. Government of Virgin Islands in the District Court of the Virgin Islands. The lawsuit was filed "to restore the Second Amendment rights of law-abiding citizens" under 34 U.S.C. § 12601, which authorizes the Attorney General to sue a governmental authority engaging in a pattern or practice that deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States.

Under Virgin Islands ("VI") law, possessing or carrying an unlicensed firearm is an offense subjecting an individual to a term of "imprisonment of not less than ten years," and/or a fine "not less than $10,000 nor more than $15,000."

But to obtain a license to possess and carry a firearm, a person must "establish[] to the satisfaction of the Commissioner [of the Police Department] that he has good reason to fear death or great injury to his person or property, or … any other proper reason for carrying a firearm, and the circumstances of the case, established by affidavit of the applicant and of at least two credible persons, demonstrate the need for such license."

There's no principled difference between that and the New York law that the Supreme Court in Bruen found to infringe on the Second Amendment: the applicant must prove "proper cause," meaning "a special need for self-protection distinguishable from that of the general community," i.e., evidence "of particular threats, attacks or other extraordinary danger to personal safety."

As the VI complaint further alleges, an applicant for a license must have "good moral character" without articulating any standard therefor, and a license may be denied to "any person who for justifiable reasons is deemed to be an improper person by the Commissioner" or if a "proper reason exists to deny such application," without specifying any standard. A separate license must be obtained for each specific firearm, which must be inspected annually by the police.

By contrast, the shall-issue licensing regimes approved in footnote 9 of Bruen "appear to contain only 'narrow, objective, and definite standards' guiding licensing officials, … rather than requiring the 'appraisal of facts, the exercise of judgment, and the formation of an opinion,' … —features that typify proper-cause standards like New York's."

Without any legal authority, the VI Police Department requires the applicant to install a safe that is permanently bolted to the home's wall or floor where a licensed firearm is to be stored. Each applicant must have his or her own safe even if they share a home with another applicant (as in the case of married couples). Before a license is issued, a home inspection is required, which takes several months to a year to schedule and complete.

Again, as Bruen's footnote 9 states: "because any permitting scheme can be put toward abusive ends, we do not rule out constitutional challenges to shall-issue regimes where, for example, lengthy wait times in processing license applications or exorbitant fees deny ordinary citizens their right to public carry." And of course the Virgin Islands still has a may-issue regime, news of the Bruen decision having apparently been ship-wrecked on its journey there.

But the usual suspect nanny states on the mainland did get the Bruen decision and have taken every measure to obstruct it. The recent article by Mark W. Smith, "Licenses Delayed, Rights Denied: How Contemporary Firearm Carry Licensing Regimes Continue to Violate the Second Amendment," Harvard JLPP (Fall 2025), summarizes the situation as follows:

jurisdictions hostile to gun rights have responded not with compliance, but with sophisticated resistance. In these states, the right recognized in Bruen exists on paper but remains largely inaccessible in practice. These states have transformed federalism's promise of experimentation into what can only be described as laboratories in denying constitutional rights. The tools are facially neutral—processing times, training requirements, documentation standards—but their cumulative effect is anything but. When examined systematically, these measures reveal a deliberate strategy of administrative nullification that courts have been slow to recognize and even slower to remedy.

The Virgin Islands are hardly a tropical paradise where no one really needs a gun for self-defense. Homicide, robbery, and drug trafficking are endemic. Data from the Virgin Islands Police Department describe "violent crime statistics exceeding national averages and creating serious concerns for the territory's 87,146 residents. The homicide rate in the US Virgin Islands continued to surpass that of mainland United States and even major cities like Chicago, establishing the territory as one of the most dangerous areas under US jurisdiction."

The Virgin Islands is not the only jurisdiction being targeted by the Civil Rights Division. In September, the Department of Justice's Civil Rights Division sued the Los Angeles County Sheriff's Department "due to their pattern or practice of infringing the Second Amendment rights of law-abiding citizens seeking concealed carry weapons (CCW) permits."

Stephen Halbrook is a Senior Fellow with the Independent Institute. His latest books are America's Rifle: The Case for the AR-15 and The Right to Bear Arms: A Constitutional Right of the People or a Privilege of the Ruling Class? He is also author of The Founders' Second Amendment, Securing Civil Rights, Gun Control in the Third Reich, and Gun Control in Nazi-Occupied France. He has written over 30 law review articles and has testified in Congressional hearings on firearm law bills. He has also litigated extensively in the field, often representing groups such as the NRA, National African American Gun Association, Western States Sheriffs' Association, Congress of Racial Equality, National Association of Criminal Defense Lawyers, and more. He has argued before the U.S. Supreme Court in Castillo v. U.S. (2000), Printz v. U.S. (1997), and U.S. v. Thompson/Center Arms Co. (1992), as well as in front of many other courts. In D.C. v. Heller, he filed an amici curiae brief on behalf of a majority of members of Congress.

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12/21/2025

Dear Dr. Roberts,

It is with deep regret that I must resign my position as Senior Editor of the Heritage Guide to the Constitution. Indeed, I could not have even conceived of such an action only a few months ago when we launched the third edition of the guide. On Constitution Day, I proudly stood at the Heritage Foundation as we released this book to the world. But your actions have made my continued affiliation with Heritage untenable. First, your comments were a huge unforced blunder, and gave aid and comfort to the rising tide of antisemitism on the right. Second, in the wake of your remarks, jurists, scholars, and advocates have made clear to me they can no longer associate with the Heritage Guide they contributed to. Third, and perhaps most tragically, your actions have weakened the ability of the storied Meese Center for Legal and Judicial Studies to promote the rule of law. My resignation is effective immediately.

For the past decade, I have cherished my close ties with The Heritage Foundation. I received several awards from Heritage, including the inaugural Edwin Meese Originalism Award. Every year, I lecture at the Heritage Clerkship Academy. I published a Heritage whitepaper on fighting antisemitism. And the crowning achievement of my professional career has been my service as the senior editor of the Heritage Guide to the Constitution, which was published only three months ago. I devoted four years of my life to this definitive treatment of the Constitution. More importantly, John and I recruited more than 150 jurists, scholars, and advocates to participate in this generational project. As a testament to the value of this enterprise, Justice Samuel Alito graciously wrote the preface. All of this work was possible thanks to the sterling reputation of the Meese Center. Attorney General Edwin Meese is the cornerstone of the conservative legal movement. My co-editor John Malcolm is a brilliant scholar and bold leader who has guided the Meese Center to great heights. And the staff of the Meese Center provided the careful attention and insightful edits to make the Guide possible.

Yet, Heritage came to a crashing halt after your infamous video. Your initial remarks were indefensible. Your apology was underwhelming. And the lack of any meaningful followup over the past three months has been telling. For reasons only you know, you aligned the Heritage Foundation with the rising tide of antisemitism on the right. As Senator Ted Cruz observed, "this poison of antisemitism on the right . . . is spreading with young people." I agree with Ben Shapiro: "If Heritage Foundation wishes to retain its status as a leading thought institution in the conservative movement, it must act as ideological border control." Antisemitism is always the canary in the coalmine. History teaches us that any society that fails to protect its Jewish people is destined for despair.

I am not alone in recognizing how you wounded Heritage's moral standing. For more than a year, the Meese Center was planning a massive book signing at the Federalist Society National Convention. Heritage generously donated nearly 1,500 copies of the Guide, and everyone in attendance would have received a free copy. We arranged for nearly one-hundred contributors to autograph the book. Regrettably, your ill-timed remarks came only a few days before the Convention began. In short order, contributors told us that they could no longer autograph a book they already contributed to. The Heritage brand, once iconic, instantly became toxic. We made the difficult decision to cancel the book signing. This was a point of personal sadness, as John and I were so eager to celebrate the launch of this important work with the conservative legal movement.

The fallout is even greater. Judges who have spoken at Heritage told me they would no longer affiliate with Heritage, and would no longer recommend their clerks attend the Clerkship Academy. Scholars who won prizes from Heritage told me they would no longer contribute to any Heritage publications. Public interest litigators have tweeted that they will no longer attend the Legal Strategy Forum.

The Heritage Foundation is greater than any single President. But one President has done what was once unthinkable. The Meese Center cannot survive under Heritage's current leadership, and the damage to the Meese Center brand has been irreparable. My only hope is that the important scholarship in the Heritage Guide can continue to be studied.

Sincerely,

Josh Blackman

Former Senior Editor

Heritage Guide to the Constitution

12/21/1922: Justice Pierce Butler takes oath.

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From Judge Sharion Aycock (N.D. Miss.) yesterday in Billups v. Louisville Municipal School Dist.:

The Court also observes that the Defendant … could have flagged the fictious citation and misrepresentation of case law [by Plaintiff's counsel] in a reply brief or supplemental filing. The Court takes this opportunity to issue a charge. Going forward, the Court expects all parties to assist in maintaining the integrity of the judicial process and to be diligent in flagging AI misuse. "[O]therwise, the risk is too great that such errors will persist undetected, potentially leading to an outcome unsupported by law." Elizondo v. City of Laredo (S.D. Tex. 2025).

Judge Marina Garcia Marmolejo's order in Elizondo does indeed take the same view:

The Court also observes that Defendant, the City of Laredo, could have flagged these fictitious citations in a reply brief or supplemental filing. Although this oversight does not rise to the level of sanctionable conduct, the Court expects all parties to assist in maintaining the integrity of the judicial process by alerting the Court to such errors. The Court encourages greater diligence in flagging citation errors in the future— otherwise, the risk is too great that such errors will persist undetected, potentially leading to an outcome unsupported by law.

To be sure, lawyers often need no prompting to alert the court to errors by the other side. But sometimes they might feel reluctant to look like they're piling on with objections, especially when the erroneous citation is on a tangential point, or when they think they've already destroyed the other side's arguments on the merits. And sometimes they might be reluctant to spend their time and the client's money on putting together a list of errors by the other side (especially when that requires a whole new supplemental filing).

These decisions show that, despite that, alerting the court to all the citation errors you found in the other side's filings may be important to maintaining the court's confidence and goodwill. They can be useful citations if you do want to file such a list of errors but are afraid that a different judge will fault you for piling on. And they can be worth noting to your client if you want to explain why you're spending time and money on listing (and verifying and explaining) the other side's errors.

AI in Court

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On December 16, President Trump issued a proclamation barring nearly all legal migration from some 40 countries. As my Cato Institute colleague David Bier explains in a thorough and insightful post, the new policy goes well beyond Trump's already expansive previous travel bans, causing great harm including separating many US citizens and permanent residents from spouses and children:

President Trump signed a new proclamation that bans nearly all legal immigration from about 40 countries, covering about one in five legal immigrants from abroad and nearly 400,000 legal immigrants over three years. Although it exempts some foreign workers and travelers from certain countries, this ban does not include any categorical exemption or waiver for spouses, minor children, or parents of US citizens or legal permanent residents, making it far harsher than his prior bans.

The ban repudiates the immigration system Congress created. The Trump administration is reimposing via executive order the national origins system that governed immigration policy from 1924 to 1965. After four decades of rigorous debate, Congress ended that system. In the Immigration Act of 1965, it allocated the caps on immigrant visas equally between countries and prohibited discriminating against immigrant visa applicants based on their race, sex, nationality, place of birth, or place of residence.

David's post effectively outlines the enormous scope of the new ban, and the extensive harm it will cause. He also shows that the supposed security rationale for the policy is utterly indefensible, as immigrants from these countries actually pose little, if any, security risk.

From a constitutional point of view, this proclamation further underscores Trump's claim to virtually unlimited executive discretion to restrict migration, in the process abrogating legal migration pathways established by Congress, including even those for spouses and children of US citizens. In an article on Trump's earlier - already extensive - second-term travel bans, I explained why this violates the nondelegation doctrine, which constrains delegation of legislative power to the executive, and addressed various objections (such as the idea that immigration restriction is actually an inherent executive power; also, I note that Trump v. Hawaii (2018) doesn't preclude nondelegation challenges to executive immigration restrictions, because it did not consider that issue, or even mention it). I think this policy also likely violates the major questions doctrine, which requires Congress to speak clearly when it delegates to the executive the power to decide major economic or political questions.

Nondelegation and major questions are central issues in ongoing challenges to Trump's attempt to impose a $100,000 tax on H-1B visas, and in at least one case challenging the the less extreme travel ban he imposed in June. I hope litigants will raise these issues, here as well.

As James Madison argued, the framers of the Constitution likely did not intend to give the federal government a general power to restrict immigration at all. And they certainly did not mean for such a sweeping power to be exercised at the whim of one man.

12/20/1976: Craig v. Boren decided.

I recently wrote about the Trump Administration's reprehensible effort to deport courageous Chinese dissident Guan Heng to Uganda, which country would likely transfer him back to China, where he would face imprisonment or death. So I am happy to be able to say that the administration has now apparently dropped this plan:

The U.S. on Friday dropped its effort to deport a Chinese national who helped document Beijing's alleged abuses against Uyghur Muslims to Uganda, the man's lawyer told Reuters.

Guan Heng, a Chinese citizen-journalist, fled the U.S. in 2021 after taking video of alleged concentration camps in China's western Xinjiang region. He released the video after arriving in the U.S., where he applied for asylum….

"We just got a letter informing that DHS (Department of Homeland Security) will not seek to remove Mr. Guan to Uganda," his lawyer Allen Chen told Reuters.

Chen said it was not clear if Washington would continue to pursue Guan's removal, either to China or another country, but said sending such a "high-profile dissident" back to China would be unlikely.

Under Department of Homeland Security (DHS) policies, migrants may be deported to third countries if immigration authorities either have "credible" diplomatic assurances they will not be persecuted or tortured if sent there or have given the migrants as little as six hours of notice ahead of time that they are being sent to such a place.

Nonetheless, Chen said the withdrawal of the Uganda removal order was a positive development, adding that he expected Guan would have a bond hearing in coming weeks, though his asylum case could take several years.

As Guan's lawyer notes, the administration could still potentially try to deport him directly to China. But they are unlikely to do after having dropped the attempt at a "third country" deportation, which probably had a better chance of success.

This reversal is likely the result of the widespread outcry against the attempt to deport Guan. It's not likely that the administration suddenly had an epiphany about the legal issues involved (it was always obvious that Guan has a very strong case for asylum). Thus, this is a sign the administration is not immune to public resistance to its cruel and unjust deportation policies. Opponents should learn from this experience and keep up the pressure, and - where possible - increase it.

As noted in my previous post about Guan, the attempt to deport him is just part of a much broader policy of deporting dissidents and victims of persecution back to their oppressors:

Sadly, the effort to deport Guan is part of a broader pattern of Trump administration efforts to deport dissidents and victims of persecution back to the regimes that oppress them. These policies now include deporting Russian dissidents back to Vladimir Putin's brutal dictatorship, refugees who fled oppression in Cuba and Venezuela, Iranian Christians who fled persecution by that country's radical Islamist regime, and Afghans who fled the Taliban (including many who aided the US during the war). Such policies are obviously cruel and unjust. They are also strategically counterproductive.

A policy that essentially aids anti-American regimes in their persecution of dissidents undermines our position in the international war of ideas between these governments' ideologies and ours, and deters future would-be dissidents and allies from working against those governments or aiding us. This isn't making America Great Again. It's making us simultaneously evil and stupid.

Ideally, these other cruel deportation policies should be met with the same widespread condemnation as that which resulted in the administration's reversal on Guan Heng.

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Another item from today's Ninth Circuit decision in Reges v. Cauce, written by Judge Daniel Bress and joined by Judge Milan Smith (for more on the primary portion of that opinion, see the UW Professor's Parody of Land Acknowledgment in Class Syllabus Protected by First Amendment post):

Executive Order 31, UW's "Nondiscrimination and Affirmative Action" policy … begins …:

The University of Washington, as an institution established and maintained by the people of the state, is committed to providing equality of opportunity and an environment that fosters respect for all members of the University community. This policy has the goal of promoting an environment that is free of discrimination, harassment, and retaliation. To facilitate that goal, the University retains the authority to discipline or take appropriate corrective action for any conduct that is deemed unacceptable or inappropriate, regardless of whether the conduct rises to the level of unlawful discrimination, harassment, or retaliation….

Free Speech Campus Free Speech

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A short excerpt from today's long Ninth Circuit decision in Reges v. Cauce, written by Judge Daniel Bress and joined by Judge Milan Smith (note that the university apparently didn't argue that the speech was unprotected because it was off-topic for a computer science class, presumably because the university itself had encouraged non-parody land acknowledgments in such syllabuses):

A public university investigated, reprimanded, and threatened to discipline a professor for contentious statements he made in a class syllabus. The statements, which mocked the university's model syllabus statement on an issue of public concern, caused offense in the university community. Yet debate and disagreement are hallmarks of higher education. Student discomfort with a professor's views can prompt discussion and disapproval. But this discomfort is not grounds for the university retaliating against the professor….

In 2019, the Allen School [of Computer Science & Engineering at the University of Washington] revised its "Best Practices for Inclusive Teaching" to recommend that instructors include an "Indigenous Land Acknowledgement" in their course syllabi. This document offered UW's official land acknowledgment as an example, while making clear that its suggestions were "not prescriptions," but only "ideas" intended to help faculty be "more effective teacher[s] and better role model[s] for more of your students."

Professor Reges viewed UW's land acknowledgment, and the recommendation to include it in syllabi, as a political statement. Reges believes that land acknowledgments are part of "an agenda of 'diversity, equity, and inclusion' that treats some groups of students as more deserving of recognition and welcome than others on account of their race or other immutable characteristic." He therefore did not think it was appropriate for the Allen School to recommend the inclusion of this "political statement" in syllabi. Reges also disagreed with the factual premise of the land acknowledgment, as he believed that "most of the land currently occupied by UW was densely forested before the land was cleared to make way for the campus." He thought the land acknowledgment expressed "that UW's presence is somehow illegitimate, shameful, morally wrong, or unlawful," and considered it "an empty, performative act of moralism" ripe for parody….

On January 3, 2022, the first day of UW's Winter Quarter, Reges met with his Computer Science and Engineering 143: Computer Programming II (CSE 143) class in an online session. This introductory course is required for certain majors and included roughly 500 students. During the session, students accessed Reges's syllabus, which contained the following statement: "I acknowledge that by the labor theory of property the Coast Salish people can claim historical ownership of almost none of the land currently occupied by the University of Washington." Although Reges briefly mentioned the statement during class, it appears most students did not notice it at the time.

This led to an uproar, which is described in much more detail in the opinion. That in turn led to the university's "opening a lengthy disciplinary investigation (during which a merit pay increase was withheld), reprimanding Reges, and threatening him with further discipline—plainly qualifies as adverse employment action under our precedents."

Reges sued, claiming that this constituted unconstitutional retaliation based on his First-Amendment-protected speech. The panel concluded that the First Amendment presumptively protects a university professor's speech while teaching (it had settled that general question in Demers v. Austin (9th Cir. 2014)). And while such speech, like other government employee speech that's presumptively protected by the First Amendment, could be restricted under the so-called "Pickering balancing test" (named after Pickering v. Bd. of Ed. (1968)), that test had to be applied in an especially speech-protective way in a public university:

Free Speech Campus Free Speech

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I've just donated to the Institute for Justice, one of the top libertarian public interest law firms in the country, and a weekly contributor to this blog: IJ's John Ross writes the excellent Short Circuit feature. If you want to support libertarian litigation, donating to IJ is a great way to do that. Here's John's pitch:

Friends, please give us money. We'll use it to publish the Short Circuit newsletter and also to sue the government when it shuts down soup kitchens without warning or cause, arrests a grandma at gunpoint on a decades-old warrant for a different person, falsely declares property blighted (so it can be taken via eminent domain), confiscates a $95k airplane over a six-pack of beer, raids construction sites and detains innocent citizens because they appear Latino, extorts people who want to build an addition on their home, and many other dastardly and irrational deeds. Help IJ protect the constitutional rights of all Americans today at ij.org/donate.

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The Volokh Conspiracy

Welcome to the Edwin Meese III Institute for the Rule of Law

Court Rejects $5M Lawsuit Over Teacher's Saying High School Student Benefited from "White Privilege"

"The Work of Our Courts Is Public Business, but Not All of That Business Should Be Made Public"

N.Y. State Police Attempt to Get "Red Flag" Gun Ban Order Against 11-Year-Old Girl Was "Legally Frivolous," "Needlessly Risk[ed] Further Injury"

Today in Supreme Court History: December 22, 1789

Open Thread

Second Amendment Roundup: Civil Rights Division Sues Virgin Islands

My Resignation From The Heritage Foundation

Today in Supreme Court History: December 21, 1922

Open Thread

Duty to Alert Court to Opponents' "Fictitious Citation[s]" and "Misrepresentation of Case Law"

Trump's Cruel and Illegal Expanded Travel Ban

Today in Supreme Court History: December 20, 1976

Trump Administration Drops Effort to Deport Chinese Dissident Guan Heng to Uganda

Open Thread

First Amendment Challenge to UW "Unacceptable or Inappropriate" Conduct Policy Revived

UW Professor's Parody of Land Acknowledgment in Class Syllabus Protected by First Amendment

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