The Volokh Conspiracy

An excerpt from the 11,000-word opinion in Hartzell v. Marana Unified School Dist., decided today by Ninth Circuit Judge Milan Smith, joined by Judges Wallace Tashima and Bridget Bade:

Following an incident on February 7, 2020, at Dove Mountain K-CSTEM school (Dove Mountain), Plaintiff-Appellant Rebecca Hartzell was banned from the school premises. Hartzell claims that she was banned from the school in retaliation for her protected speech. Defendants-Appellees, the Marana Unified School District (the District) and Andrea Divijak, the principal at Dove Mountain, assert that Hartzell was banned because of her conduct; specifically, they allege that Hartzell assaulted Divijak….

Hartzell is the parent of eight school-aged children, five of whom attended Dove Mountain during the 2019–20 school year. Divijak was serving as the principal of Dove Mountain at that time. In August 2019, the District opened Dove Mountain, a new kindergarten through eighth grade school. Dove Mountain is a part of and run by the District….

Hartzell has a master's degree in special education and a doctorate focusing on applied behavioral analysis and autism. She also became an associate professor of practice at the University of Arizona, and a director of the master's program in applied behavioral analysis at that institution….

On February 7, 2020, Dove Mountain hosted an event where students presented projects they had been working on for a few months. Two of Hartzell's children were scheduled to present in different rooms simultaneously. While attending the event, Hartzell saw Divijak in a classroom and approached her. Hartzell was accompanied by one of her children, who attended preschool at Dove Mountain. No other children were present.

Hartzell "sarcastically" thanked Divijak for "making [her] choose which kid [she was] going to support again today." Hartzell testified that she began to walk away, but Divijak responded that she was "sorry that [Hartzell was] just never happy." Hartzell testified that she turned back around and explained her proposed solution to the scheduling conflicts.

One of my many thankless tasks is to criticize conservatives. In many regards, this work is more unpleasant than criticizing liberals. When I talk about people on the left, the blowback is predictable: liberals call me a partisan hack, while conservatives support me, or at least silent. But when I talk about people on the right, conservatives attack me as a turncoat, while liberals hold me up as a token to attack those they despite. Like I said, the task is thankless. At times, I feel like Cassandra: I saw troubles long ago, but others wouldn't listen. Now, they're listening.

With each passing day, Justice Barrett is demonstrating why she had no business being appointed to the Supreme Court. Indeed, she should have never been put on the "short list" before she decided a single case. And I'm not sure why she leapfrogged over so many other qualified candidates in Indiana for the Seventh Circuit seat. Justice Kavanaugh was described as the most qualified Supreme Court nominee in modern history. Justice Barrett, by that standard, would be the least qualified Supreme Court nominee in modern history. Everything is laid out here. If the goal was to give Chief Justice Roberts a wing-woman, mission accomplished.

There is a constant drumbeat urging Justice Thomas and Justice Alito to retire. I think those calls are unlikely to succeed for many reasons, but also they are misguided. Thomas and Alito are still making important jurisprudential contributions to the Court. By contrast, Justice Barrett is not. I struggle to count five Barrett opinions that are noteworthy. And when Barrett casts an important vote, her actual bottom line is murky. We saw this in the Trump immunity case, yesterday in San Francisco v. EPA, and in today's USAID ruling (more on that confusing case later). Justice Barrett tells us to read the opinion, but when we read what she writes, we are left confused.

I'll lay down the marker. I think Justice Barrett should step down. I don't think she actually enjoys this job. I can't imagine her family actually prefers the swamp over South Bend. I don't think she enjoys being the focus of the political storm. And I am fairly confident she does not like President Trump. Look at this video! Justice Alito learned his lesson about making facial expressions at the Joint Session, but Justice Barrett has not.

Maybe Amy Coney Barrett does have a soul pic.twitter.com/kICrskHf8c

— ian (@Boatstory1) March 5, 2025

The next four years will be a never-ending series of balancing acts to avoid ruling for Trump. And to what end?

And if Barrett steps down and is replaced by someone in the mold of Justice Thomas or Alito, then Chief Justice Roberts will be sidelined for the foreseeable future. His shenanigans only work when he has a fifth vote. Roberts may see fit to step down as well. I don't think he really wants to be here either. Look at how quickly he scurried away after Trump talked to him.

"Thank you again. Thank you again. Won't forget," President Trump says as he shakes the hand of Supreme Court Justice John Roberts. pic.twitter.com/uFrvem6rUj

— Tom Dreisbach (@TomDreisbach) March 5, 2025

Cue the howls. I'm used to it.

I'm much looking forward to this program on free speech Thursday, March 13 at 6 pm in Phoenix, particularly because I've long so admired Justice Bolick. I first met him when I was a law student, and he had just recently before cofounded the Institute for Justice; he went on to become one of the leading libertarian lawyers in the country.

Since joining the bench, he has become one of the leading proponents of state courts interpreting their state constitutions differently (and often more broadly) than the U.S. Supreme Court has interpreted the federal Constitution. (They are, after all, often worded quite differently.) He's an excellent and creative legal thinker, and it's always a pleasure to have a conversation with him. If any of you are around Phoenix then, and are inclined to join us, it would be great to see you there.

Yesterday's Missouri Court of Appeals decision in Ameer v. Lyft, Inc. reversed a grant for summary judgment for Lyft, allowing plaintiff's claim to go forward on products liability and negligence theories; here's part of the analysis (from Judge Robert Clayton, joined by Judge Michael Wright and, as to the negligence claim, Judge John Torbitzky). The trial court granted summary judgment from Lyft, but the appellate court reversed, reasoning (in part) that Lyft's allowing people to "fraudulently and anonymously request[]" a ride may be legally actionable. Lyft "purportedly failed to contain multiple protections for its drivers including," among other things, "adequate data verification technology pertaining to a passenger's age, identity, or violent propensity":

Plaintiff avers Lyft implemented measures in states other than Missouri requiring purported passengers using the Lyft App with an anonymous form of payment "to provide a driver's license, state ID, or another type of document that shows their name or mailing address," allowing Lyft to discover that a "fictitious person who set up the Lyft account d[oes] not exist[ ] and that the form of payment [i]s unverified." Notably, to allow Lyft to be foreclosed from liability in Missouri for omissions in the design of the Lyft App which were allegedly implemented in other states would incentivize Lyft and other mobile application developers to: (1) not put protections in place for Lyft drivers and customers in Missouri; and (2) eliminate protections for its users in other states….

Plaintiff's petition specifically avers Lyft implemented measures in its App in other states requiring purported passengers using a Lyft account with an anonymous form of payment "to provide a driver's license, state ID, or another type of document that shows their name or mailing address," allowing Lyft to discover that a "fictitious person who set up the Lyft account d[oes] not exist[ ] and that the form of payment [i]s unverified" ….

You can download it at this link.

Abstract:

The Supreme Court's 1920s Education Trilogy cases–Meyer v. Nebraska, Pierce v. Society of Sisters, and Farrington v. Tokushige–were important milestones in American constitutional history.

These decisions protected private schools, religious and otherwise, from the threat of closure in many states. This preserved educational freedom for parents who preferred private education for their children.

As a constitutional matter, the Trilogy became the foundation of a due process jurisprudence that moved beyond liberty of contract, property rights, and police power considerations to a broader protection of fundamental rights.

This Article describes external forces that may have motivated this shift—revulsion at the Ku Klux Klan, backlash against Progressive statism of the sort that demanded the closure of private schools, and the Justices' need to cultivate political allies among ethnic and religious minority populations.

This Article also reviews the idiosyncratic biographical factors that may have led Justice Brandeis to join the majority in Meyer. Brandeis' vote with the majority helped preserve the Education Trilogy cases as precedents that later generations of liberal Justices felt comfortable relying upon.

This morning, the Supreme Court denied the Trump Administration's application for a stay of a district court's temporary restraining order blocking the Administration's effort to pause the disbursement of funds from the U.S. Agency for International Development. The unsigned order in Department of State v. AIDS Vaccine Advocacy Coalition directs the district court to "clarify what obligations the Government must fulfill to ensure compliance with the temporary restraining order, with due regard for the feasibility of any compliance timelines." This likely means that the approximately $2 billion in funds "owed for work already completed" before entry of the court's TRO must be paid out.

While the order is unsigned, it is clear that it was joined by the Chief Justice and the four female justices (Sotomayor, Kagan, Barrett and Jackson). Justice Alito dissented, joined by Justices Thomas, Gorsuch, and Kavanaugh. The dissent begins:

Does a single district-court judge who likely lacks jurisdiction have the unchecked power to compel the Government of the United States to pay out (and probably lose forever) 2 billion taxpayer dollars? The answer to that question should be an emphatic "No," but a majority of this Court apparently thinks otherwise. I am stunned.

Justice Alito's dissent argues, among other things, that "the District Court's enforcement order should be construed as an appealable preliminary injunction, not a mere TRO." It further argues that the Trump Administration is likely to prevail on the merits on grounds of federal sovereign immunity (because the plaintiffs are seeking to force the disbursement of funds from the federal treasury). The dissenters seem unconvinced that the Administrative Procedure Act waives sovereign immunity for these purposes. This does not mean those who believe they are owed money by USAID have no remedy, just that they have to pursue such claims in the Court of Federal Claims instead of a federal district court.

The brief dissent concludes:

Today, the Court makes a most unfortunate misstep that rewards an act of judicial hubris and imposes a $2 billion penalty on American taxpayers. The District Court has made plain its frustration with the Government, and respondents raise serious concerns about nonpayment for completed work. But the relief ordered is, quite simply, too extreme a response. A federal court has many tools to address a party's supposed nonfeasance. Self-aggrandizement of its jurisdiction is not one of them. I would chart a different path than the Court does today, so I must respectfully dissent.

This is far from the end of the case. Indeed, since four justices dissented here, it is abundantly clear that there will be four votes for certiorari once the Department of Justice files a petition. In other words, stay tuned.

An interesting response to The Plaintiff Police by Sarah L. Swan, Rutgers (Newark); here's the Introduction:

If a person purposely shoots at and injures another, should the shooter be accountable to pay damages to the person harmed? Absent significant justification, in almost every circumstance in every state, the answer is yes. But in The Plaintiff Police, Professor Sarah L. Swan argues that if the injured person is a police officer, the answer should be no. If the officer is hit by a negligent driver's car, she argues for the same result: no tort claim. Professor Swan would dramatically limit police claims to exclude intentional, reckless, and negligent torts, with only narrow exceptions.

As support for this extreme measure, The Plaintiff Police draws on the backdrop of historical racism, significant abuses of police power, and a set of cases that push the limits of tort liability no matter who brings the claim. That set includes Doe v. Mckesson, in which a police officer who was severely injured by a rock-throwing protestor filed suit against Black Lives Matter (BLM) protest organizers (a case that we have previously criticized as insufficiently protective of First Amendment rights). Alongside concerns about racism in policing, The Plaintiff Police draws on the widespread perception that injured civilians can rarely obtain civil remedies for police abuses.

Together, these impressions of vindictive police plaintiffs, and immunity from tort liability, foster a reflexive hostility to the police. In light of these impressions, Professor Swan argues that any possibility of civil action or recovery by police officers will be disproportionate to civilian legal actions, worsen power differentials, dampen political participation, and harm local citizen-community participation. On that basis, The Plaintiff Police argues for a draconian, if easy to administer, rule: if the plaintiff is a police officer, the court should toss out the plaintiff's claims at the start of the case.

We are aware of no state or country that has granted its entire population absolute immunity from civil liability for the tortious, even criminal, harms that its civilians inflict on police. And we think there are good reasons they haven't. In this Response, we argue that the arc of U.S. common law runs in the exact opposite direction: the common law has expanded, and should continue to expand, the civil legal rights of wrongfully injured people, including civilians wrongfully injured by police and police wrongfully injured by civilians.

Last week, I started blogging (and Monday and Tuesday, I continued blogging) about my new article Expressive Discrimination: Universities' First Amendment Right to Affirmative Action, just published by the Florida Law Review. In these days of federal attacks on private DEI, maybe some private universities might find this useful as a strategy for fighting back against the Trump Administration!

Monday's post gave the main thesis, laying out under what conditions a Boy Scouts expressive association right might be viable under current caselaw. Tuesday's post laid out some complications of the theory, answering four questions: (1) Does the race context make anything different? (No.) (2) Does the market context make anything different? (No.) (3) Does the Title VI conditional-spending context make anything different? (Yes, some.) and (4) Can public universities use this theory? (No.) Today's post asks: "What are the limits of this theory?", and how some lower courts have pushing its boundaries.

If you want to see the PDF with all the juicy footnotes, read the whole thing.

III. What Are the Limits of This Theory?

A. Where the Doctrine Is

Let's recap. A lot is uncertain about the Boy Scouts doctrine. I've suggested how universities can look more like the Boy Scouts—make faculty and students into mouthpieces for inculcating university values. That might involve abandoning some academic-freedom norms (at least as concerns diversity values); many universities might not want to adopt this modest proposal, for good and obvious reasons.

Can a university take advantage of this theory without becoming a Boy Scouts clone? Perhaps, but it's hard to know for sure, because Boy Scouts is the only Supreme Court case that clearly shows how expressive-association norms can overcome antidiscrimination law.

Rumsfeld v. FAIR says, though, that we get no exceptions when the behavior isn't inherently expressive, i.e., when the behavior can be engaged in nonexpressively and you need words surrounding the conduct to explain that the behavior is expressive. This is what guarantees the constitutionality of antidiscrimination laws in most circumstances.

And the lesson of Roberts is that even when an organization engages in expression, it must show a substantial burden on its ability to express its message—which is difficult with an antidiscrimination law, except if the law alters the message or affects the choice of leaders or authority figures who speak for the organization.

B. Where the Doctrine Might Go

Where are some of flexibilities in the doctrine—i.e., where can we imagine that the doctrine might move in the future? Here, I discuss three areas: what constitutes a substantial burden, whether a governmental interest is compelling, and what activities count as expressive. The easier it is to find a substantial burden, the less compelling the governmental interest, and the more activities are expressive, the more likely an affirmative action program—even outside of universities—will be to survive under the expressive-association theory.

The Washington Post (Spencer Hsu) reports:

Interim D.C. U.S. Attorney Ed Martin has dropped plans to investigate the country's most powerful elected Democrat over a statement he made about two conservative Supreme Court justices five years ago, concluding that a probe is unfounded, two people familiar with the matter said Tuesday.

The possibility had been aired by Mr. Martin in a Jan. 21 letter (and again in follow-up letters):

As United States Attorney for the District of Columbia, I receive requests for information and clarification. I take these requests seriously and act on them with letters like this one you are receiving.

At this time, I respectfully request that you clarify your comments from March 4, 2020. Your comments were at a private rally off the campus of the U.S. Capitol. You made them clearly and in a way that many found threatening. Your exact words were:

"I want to tell you Gorsuch. I want to tell you Kavanaugh. You have released the whirlwind and you will pay the price. You won't know what hit you if you go forward with these awful decisions." Link here: https://www.cnn.com/videos/politics/2020/03/04/schumer-gorsuch-kavanaugh-supreme-court-abortion-lead-vpx.cnn

We take threats against public officials very seriously. I look forward to your cooperation with my letter of inquiry after request. Should you have further questions regarding this matter, please do not hesitate to call my office or schedule a time to meet in person.

It seems to me clear that Schumer's statement wasn't a punishable true threat of criminal attack; rather, it was a constitutionally protected threat of political retaliation:

Readers of the blog likely recall this lawsuit, brought by climate scientist Michael Mann against columnist Mark Steyn, blogger Rand Simberg, the National Review, and the Competitive Enterprise Institute (see our various posts on the subject). The National Review and CEI had been granted summary judgment in 2021, but in January 2024, the jury found Steyn and Simberg liable for defamation, to the tune of $1 compensatory damages + $1M punitives against Steyn, and $1 compensatory + $1K punitives against Simberg.

For a very quick summary of the facts, from Justice Alito's 2019 dissent from denial of certiorari:

Penn State professor Michael Mann is internationally known for his academic work and advocacy on the contentious subject of climate change. As part of this work, Mann and two colleagues produced what has been dubbed the "hockey stick" graph, which depicts a slight dip in temperatures between the years 1050 and 1900, followed by a sharp rise in temperature over the last century. Because thermometer readings for most of this period are not available, Mann attempted to ascertain temperatures for the earlier years based on other data such as growth rings of ancient trees and corals, ice cores from glaciers, and cave sediment cores. The hockey stick graph has been prominently cited as proof that human activity has led to global warming. Particularly after emails from the University of East Anglia's Climate Research Unit were made public, the quality of Mann's work was called into question in some quarters.

Columnists Rand Simberg and Mark Steyn criticized Mann, the hockey stick graph, and an investigation conducted by Penn State into allegations of wrongdoing by Mann. Simberg's and Steyn's comments, which appeared in blogs hosted by the Competitive Enterprise Institute and National Review Online, employed pungent language, accusing Mann of, among other things, "misconduct," "wrongdoing," and the "manipulation" and "tortur[e]" of data.

For more details, including more on the "pungent language" (such as Simberg's "[c]omparing 'Climategate' with the then-front-page news of the Penn State sexual abuse scandal involving Jerry Sandusky"), see Competitive Enterprise Institute v. Mann (D.C. 2016).

Today's long decision (over 14,000 words) by D.C. Superior Ct. Judge Alfred Irving in Mann v. National Review, Inc. declined to disturb the jury's findings that defendants had libeled plaintiff—including that their statements were recklessly or knowingly false—but sharply reduced the punitive damages awards (as our own Jonathan Adler predicted shortly after the verdict):

Today's Report and Recommendation by Magistrate Judge Sean Riordan in Davis v. Harrison (E.D. Cal.) discusses a lawsuit that stems from family drama (more details below); plaintiff sued for defamation and for intentional infliction of emotional distress, and then moved for judgment on the pleadings. The report and recommendation concluded that there were factual disputes as to the defamation question (basically, who's telling the truth), and it also concluded that those would affect the IIED claim as well. But it also raised the question whether and when even accurate allegations, coupled with disclosure of personal information about the plaintiff, might constitute IIED:

The Complaint alleges that Defendant's daily efforts to defame and harass Plaintiff online are "so extreme that it exceeds all bounds of decency in a civilized community[.]" It further alleges that Defendant jeopardized Plaintiff's safety by distributing her personal information whenever she made those accusations. Finally, the Complaint asserts that the "emotional, mental, and physical distress" caused by this conduct is amplified by the fact that Plaintiff is trying to process the grief arising from Mr. Shabazz's death.

Defendant's alleged conduct would certainly qualify as outrageous if her statements about Plaintiff and her family are false. But as discussed above, judgment on the pleadings for any defamation claim is improper because the veracity of Defendant's allegations against Plaintiff is in dispute.

Whether daily posts about Plaintiff and her family are extreme and outrageous if Defendant's allegations are true is unclear. Plaintiff cites no case law indicating that prolific social media posting about another individual constitutes IIED where the contents of the posts are substantially true, even if extremely unflattering.

This ambiguity extends to the leaking of Plaintiff's personal information, including her address and physical appearance. There is surprisingly little case law on whether "doxing" an individual can constitute IIED.

Today the Court decided one case, San Francisco v. EPA. As I predicted, the majority opinion was assigned to Justice Alito. (My other predictions for the other October sitting cases look to be on track.) But the breakdown was unusual. Here is the description from the syllabus:

ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J., and THOMAS and KAVANAUGH, JJ., joined, in which GORSUCH, J., joined as to all but Part II, and in which SOTOMAYOR, KAGAN, BARRETT, and JACKSON, JJ., joined as to Part II. BARRETT, J., filed an opinion dissenting in part, in which SOTOMAYOR, KAGAN, and JACKSON, JJ., joined.

The majority votes to reverse the Ninth Circuit. Justice Gorsuch does not join Part II, and does not write separately to explain why. But Justice Gorsuch does join Part III of the majority, which explains why the Court will reverse the Ninth Circuit. Justices Barrett, Sotomayor, Kagan, and Jackson only join Part II, but they do not join Part III. As I read the opinion, the Barrett quartet would affirm the Ninth Circuit. By all accounts, Barrett did not "dissent in part." She outright dissented. If anything she concurred in part, dissented in part, and dissented from the judgment.

I agree with Ed Whelan's analysis:

Justice Alito's majority opinion reverses the Ninth Circuit ruling. In what she labels an opinion "dissenting in part," Justice Barrett and the three justices (Sotomayor, Kagan, and Jackson) who sign on to her opinion "join Part II of [Alito's] opinion." But they disagree with his argument in Part III and thus would affirm the Ninth Circuit.

Perhaps I'm missing something, but it sure seems to me that Barrett's opinion is a straight dissent.

Relatedly: As I understand the traditional practice, any opinion that is a dissent in part must also be a concurrence in part. But the fact that Barrett agrees with part of Alito's reasoning does not mean that she concurs in any part of his judgment.

There is some drama brewing here. Justice Gorsuch did not explain why he did not join Part II. That failure to join would have rendered Part II as not part of the majority opinion. But the Barrett quartet came in to join Part II, making it a majority opinion. Yet, the Barrett quartet disagreed with everything else in the majority opinion, including the bottom line judgment.

There is another possibility. At this point, Justice Barrett's slide to the left is unmistakeable at this point. I wrote about this years ago, but people are slowly starting to see it. I don't think she will go full Souter, but will be, at best, a Justice O'Connor. Or maybe a Justice Frankfurter, whose only jurisprudence is one of restraint. For the time being, these sorts of locutions ("dissenting in part") mask the slide. At the end of the term, when statistics are assembled about Barrett's voting pattern, this case may be scored as a 9-0 reversal. But that scoring is only superficial. For those who care, on FantasySCOTUS, I scored this case a 5-4 reversal.

Early in her tenure, Justice Barrett urged us to "read the opinions." I've tried, truly. But she writes less than any other member of the Court. According to Empirical SCOTUS, Barrett writes the shortest opinions on average. She has only ever dissented from denial of cert once. And she is silent on the shadow docket. When Barrett does write separately, it is often unclear which parts of the majority she actually agrees with. The Trump immunity decision is a leading example.

Speaking of Barrett's writings, where is her book? The lucrative deal was announced in April 2021 before she had written a significant majority opinion. Four years later, the book is not on the shelf, and I cannot find a publication date anywhere. By contrast, Justice Gorsuch has already co-authored two books during his tenure, and Justice Jackson published her memoir within two years of her confirmation. Justice Kavanaugh's book deal was announced in June 2024, with a publication date in 2025 or 2026. I know people get upset when I talk about Barrett's publication record as a professor, but her productivity on the bench is much the same. She has not given any speeches of note in years, and had only a light-hearted conversation at the Federalist Society National Lawyers Convention in 2023.

Nominees for the Supreme Court do not change much when they join the Supreme Court. People are who they are. I say this not to criticize any current member of the Court, but so that we are all aware of what happens the next time a vacancy arises.

Update: A colleague wrote:

I don't think ACB's (and the other dissenters') move re Part II of the plurality opinion actually works. There are not five votes for that rationale among justices who also agreed with the judgment. Because Part II does not support any aspect of a judgment that a majority of the court agrees with, I still think it has the precedential effect of a plurality. It *might* be different if the judgment had changed because of Part II, but it didn't. And I don't think dissenters can make plurality opinions majority opinions just by "joining" that part of the opinion any more than they can do so by expressing their agreement with that part in dissent.

Whatever the intent was, I don't think it succeeded.

An interesting post by Jacob Mchangama (Vanderbilt) and Jeff Kosseff (US Naval Academy). A brief excerpt:

In 2019, Dias Toffoli, then-Chief Justice of Brazil's Federal Supreme Court, appointed fellow judge Alexandre de Moraes to lead an inquiry to investigate "fake news, false reports of crimes, slanderous reports, threats, and other infractions" that "affect the honor and security of the Federal Supreme Court, its members, and family." De Moraes soon dramatically expanded the scope of his powers to include "fake news" and propaganda aimed at democratic institutions more generally, with wide-ranging consequences for political speech in Brazil.

By 2022, when appointed President of the Electoral Court, de Moraes received expanded authority to police political speech during elections to prevent the "distribution and sharing of knowingly untrue or gravely decontextualized information affecting the electoral process". de Moraes' controversial methods have divided Brazilian opinion — some see him as a defender of democracy, others as the censorial Grand Inquisitor of the Brazilian public sphere.

De Moraes most recently made headlines with his suspension of conservative social media platform Rumble for allegedly allowing the dissemination of misinformation. We're not qualified to comment on de Moraes' application of Brazilian law, but it's worth noting that de Moraes' decision goes to great lengths in defending the blanket ban against Rumble based on principles of liberal philosophy and foreign legal standards, including First Amendment jurisprudence. But in doing so de Moraes manages to mangle John Stuart Mill and misrepresent U.S. free speech law.

The whole thing is much worth reading.

An excerpt from the Second Circuit's long (and, I think, generally correct) decision yesterday in Miller v. McDonald (Judges José Cabranes, Richard Wesley, and Eunice Lee):

In 2019, New York repealed the religious beliefs exemption to its school immunization law. The law now applies to all students attending public, private, or parochial schools, except those who qualify for the law's medical exemption. Two parents of Amish students, three Amish "community schools," and an elected representative of all Amish schools in New York sued New York officials … claiming that the school immunization law infringes on their free exercise rights ….

New York maintained [health and religious] exemptions until 2019. During 2018 and 2019, the United States experienced the worst measles outbreak in over twenty-five years; New York was the epicenter. Most cases occurred in communities with clusters of unvaccinated individuals. Following that outbreak, the legislature repealed the religious beliefs exemption while retaining the medical exemption….

A neutral and generally applicable law's burden on religion is constitutional if the law passes the relatively low hurdle of rational basis review—that the state has chosen a means for addressing a legitimate government interest rationally related to achieving that goal. If a law is not neutral or generally applicable, however, the government must demonstrate that the law satisfies strict scrutiny, which requires the law "to further 'interests of the highest order' by means 'narrowly tailored in pursuit of those interests.'"

From Creal v. Nasiri, decided Thursday by California Court of Appeal Justice Victor Viramontes, joined by Justices Maria Stratton and Elizabeth Grimes:

Creal is a certified public accountant (CPA). He has been a practicing CPA since 1978 and operates an accountancy firm in Torrance under the name Creal & Creal, An Accountancy Corporation. Creal's business consists primarily of preparing individual tax returns, business tax returns, and litigation support….

Creal maintained a website for his firm for 20 years but did not generally advertise as most of his new clients were referrals from existing clients. While Creal's firm had a webpage on Yelp, Creal did not create the page but merely confirmed with Yelp that the firm was his. He could not delete the Yelp page or modify any of the Yelp reviews. Creal believed newly referred clients would check Yelp for reviews….

In June 2015, Creal was retained as an expert by Nasiri's ex-husband, Mohamadali Abolahrar, in the dissolution case between Abolahrar and Nasiri. Although originally retained as an expert, Creal also filed an amended tax return for Abolahrar after learning there was an Internal Revenue Service (IRS) tax credit for $65,000 for 2013. To claim the tax credit, Creal filed a married-filing-separately return for Abolahrar in March 2017, claiming half the credit for Abolahrar, believing the tax credit was a community property interest. Despite only claiming half the credit, the IRS refunded the entire amount to Abolahrar.

On October 26, 2017, Abolahrar's family law attorney asked Creal to pick up Abolahrar's laptop from Nasiri's family law attorney, Nadine Jett. Creal went to Jett's office and informed the receptionist that he was there for the laptop. While he waited in the reception area, Nasiri walked in and spoke to the receptionist. Creal did not interact with Nasiri in the office, and left once he received the laptop.

After Creal left Jett's office, he noticed a Porsche parked in the parking area and believed it belonged to Nasiri. Believing the Porsche was a community property asset, Creal photographed the vehicle. As Creal was taking the photos, Nasiri came outside and told him, "'You cannot do that.'" Creal replied, "'Yes, I can. It's in a public place.'" Creal noticed Nasiri had her cell phone camera pointed at him, so he took a picture of Nasiri.

On October 26, 2017, Nasiri posted a one-star review on Creal's Yelp page.

Last week, I started blogging (and yesterday, I continued blogging) about my new article Expressive Discrimination: Universities' First Amendment Right to Affirmative Action, just published by the Florida Law Review. In these days of federal attacks on private DEI, maybe some private universities might find this useful as a strategy for fighting back against the Trump Administration!

Yesterday's post gave the main thesis, laying out under what conditions a Boy Scouts expressive association right might be viable under current caselaw. Today's post lays out some complications of the theory, answering four questions: (1) Does the race context make anything different? (No.) (2) Does the market context make anything different? (No.) (3) Does the Title VI conditional-spending context make anything different? (Yes, some.) and (4) Can public universities use this theory? (No.)

If you want to see the PDF with all the juicy footnotes, read the whole thing.

II. Some Complications

A. Is Race Different?

One might resist this whole argument by arguing that race discrimination is different from the sexual-orientation discrimination in Boy Scouts and 303 Creative.

But the racial angle shouldn't make any difference. The doctrine doesn't distinguish between race and other bases of discrimination. When one challenges governmental discrimination, Equal Protection doctrine draws strong distinctions—embodied in the applicable tiers of scrutiny—depending on whether the discrimination was based on race, sex, or something else. But that's not implicated here, because there's no state action in private universities' affirmative action programs. Here, the issue is compelled association, which (as discussed above) is like compelled speech.

Doctrinally, a person's liberty interest in saying something racist is the same as their interest in saying something anti-gay: the question is merely whether they're being made to say something they don't want to say. There's no doctrinal reason why 303 Creative would (or should) have come out differently if Lorie Smith had refused to make websites for interracial marriages.

And for associational freedom, an antidiscrimination law can burden a group's expression just as much when the group is being racially discriminatory as when it's being discriminatory against LGBT people. There's no doctrinal reason why Boy Scouts would (or should) have come out differently if it were a "Hitler Youth" organization that wanted to have white scoutmasters to teach white supremacy. (Or, in a more mainstream context, compare the racial theater and TV casting decisions discussed above with the gender-related decisions of someone making straight rom-coms or cisgender female beauty pageants.)

The cases cite each other without regard to the type of discrimination involved. Claybrooks v. ABC, recognizing a right to be racially discriminatory in TV show casting, relied heavily on Hurley—a case about an LGBT Irish-American group's participation in a parade—without considering whether race issues are different from LGBT issues. Similarly, Donaldson v. Farrakhan, finding a right to address a men-only audience, relied on Boy Scouts without discussing whether anti-LGBT discrimination is similar to sex discrimination (or even a type of sex discrimination, as later suggested by Bostock v. Clayton County).

Perhaps the difference isn't in the level of the burden on the speaker or association, but on whether the government would prevail under the relevant level of scrutiny. Can the government prevail more easily in a race case?

The topic for the 13th Annual Harlan InstituteVirtual Supreme Court competition is Free Speech Coalition v. Paxton. Last week, the top ten teams presented oral arguments. The Round of 4 will be held later this month.

Round of 10 Match #1

Team 20133 v. Team 20129

Round of 10 Match #2

Team 20149 v. Team 20241

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What's on your mind?

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Expressive Discrimination: Universities' First Amendment Right to Affirmative Action — Part 3

Continuing my serial blogging on whether private universities can use a Boy Scouts expressive association theory to have race-based affirmative action.

Harlan Virtual Supreme Court Round of Ten

Ten teams of high school students presented oral arguments on Free Speech Coalition v. Paxton.

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