Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

Alaska's sparse population creates unique educational challenges. To address these, the state created "correspondence programs," in which a student's public school uses the post office or float planes to deliver lessons and then pick up and grade assignments. In 1997 and again in 2014, the law was broadened to allow parents more freedom to design their children's curriculum and receive reimbursement for certain educational expenses, including tuition at nonpublic schools. But now the program is under attack, and IJ has teamed up with a group of Alaska families who benefit from the program to defend it in court.
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I have been following from a distance a controversy over the alleged conduct of Prof. Lara Sheehi, who teaches a mandatory DEI class to psychology grad students at George Washington University. The key allegations amount to her denigrating, bullying, and otherwise mistreating students who are Israeli, Jewish, and/or pro-Israel. Professors who should know better claim that she's being targeting for her pro-Palestinian views. The allegations suggest otherwise, and also raise the question as to why a professor would be bringing her views of the Palestinian-Israeli conflict into a psychology DEI class to begin with… Note that even those of us, like blogfather Eugene and me, who are quite skeptical of hostile environment law based on speech in general, draw a clear line at hostile speech by faculty that is individually targeted at specific students.

In any event, Scholars for Peace in the Middle East has put out an open letter on the controversy, and I thought it was quite good (though as you might expect I have a few quibbles, so I'm not adopting the entire letter as my own perspective), so I'm sharing it.

Open letter to George Washington University (GWU) regarding allegations of antisemitism

We, the undersigned, are mental health clinicians and educators, practitioners of psychotherapy and psychoanalysis, and scholars of antisemitism from several disciplines. We are a diverse group, including those from the political left, right, and center; Jews and non-Jews, and those with varied views on Zionism.

We are deeply concerned about allegations regarding Dr. Lara Sheehi, the newly elected President and former Secretary of the Society for Psychoanalysis and Psychoanalytic Psychology (Division 39 of the American Psychological Association) and chair of the American Psychoanalytic Association's Teachers' Academy. Dr. Sheehi teaches a required Diversity course for graduate students in psychology at The George Washington University. A formal complaint has been made on behalf of several of her Jewish and Israeli students describing a series of failures on her and the University's part to treat all students equally and with respect. (We urge the reader to review the entire StandWithUs complaint to grasp the magnitude of the accusations.) These allegations are alarming and, if true, expose an egregious abuse of the trust customarily placed in educators and constitute a clear violation of Title VI, which prohibits discrimination on the basis of national origin and other characteristics in institutions receiving government support.

Since this complaint appeared, several letters in defense of Dr. Sheehi have circulated, and gained wide support, claiming that concerns about her teaching and her online presence – which is rife with profanity and hateful rhetoric against Zionism and Israelis – are the result of a right-wing Zionist conspiracy. It is shocking to reflect that those signatories signed letters that did not even consider the possibility that the students' allegations might be true, nor demand they be given respectful consideration. Would this be the case if the students were not Jewish or Israeli? Imagine the scandal that would erupt if a group of students from another background – Black students, Muslim students, or LGBT students – alleged that their professor excluded and shamed them based on their religion, ethnicity, national origin, or sexual orientation in a required course on diversity. The calls for such a professor's resignation or removal would be swift and severe. And while these remain allegations at present, Dr. Sheehi's tweets and online interviews regarding Israelis render the allegations quite plausible, with more than enough reason to warrant careful scrutiny. (Her deleted twitter account included statements such as the following: "Israelis are so f***ing racist," "Zionists are unhinged," "you can't be a Zionist and also a feminist" "F*** Zionism, Zionists…" "F*** every person who is not yet an anti-Zionist," and "Zionists are so far up their own a****".)

Therefore, compelling Jewish and Israeli students to take a course with Dr. Sheehi while these complaints are being investigated is highly inappropriate. As precedent, consider the case of Professor Amy Wax, a University of Pennsylvania law professor who made hostile remarks about Black students in a required course and was then removed from this teaching role.

Letters written in support of Dr. Sheehi have claimed that she is being "silenced" because of her views on the Israeli-Palestinian conflict. Let us clarify that this is simply not the case. She remains free to express her political and academic views, which are not relevant here. Her classroom conduct is. If the complaints against her are supported by the facts, then her willingness to bully, belittle, and retaliate against students of a particular religious and ethnic background and national origin are highly unprofessional. That being so, we are dismayed by the totally inadequate response to the students' concerns displayed by the faculty in GWU's psychology program and by the administrators at higher levels of leadership. In a time when considerable resources are poured into promoting diversity, equity, and inclusion, singling out Jews and Israelis as undeserving of those protections is nothing short of antisemitic. Moreover, it is ironic to see Jewish Voice for Peace criticizing StandWithUs, the organization that filed the complaint on behalf of the GWU students, for "…conflating some Jewish students' emotional discomfort with targeted harassment…." This is especially disingenuous when diversity, equity, and inclusion efforts argue that impact supersedes intent in matters of racism and discrimination. The particular politics of StandWithUs as an organization have no bearing on the issue of whether the students' allegations should be taken seriously.

Unfortunately, the many letters circulating in support of Dr. Sheehi deflect from the important matter and claim that concerns about her alleged classroom conduct are simply attempts to restrict her academic freedom, encourage threats to her safety, advocate for "doxxing," and/or come from a right-wing "playbook." These claims are baseless. Indeed:
We deplore any threats to Dr. Sheehi's safety (or those close to her) in the strongest possible terms.

We vigorously oppose any attempt to "dox" Dr. Sheehi, or to publish private information about her in a malicious effort to damage her reputation ahead of the US Department of Education's Office of Civil Rights investigation. The allegations against her are worrisome enough as they stand. There is no need for these reprehensible tactics.

We strongly support academic freedom, though many of us disagree with Dr. Sheehi's framing of the Israeli-Palestinian conflict.We deny that concerns raised about Dr. Sheehi come only from the right wing or from a Jewish conspiracy of powerful individuals and will not dwell on the tired antisemitic trope that this argument represents. The concerns about her conduct and her suitability for specific educational and leadership roles comes from across the political spectrum.

We acknowledge that the allegations in the StandWithUs complaint are, as yet, allegations. We urge the Department of Education and GWU to promptly and dispassionately conduct their own investigations by carefully evaluating the testimony of the Jewish and Israeli students in light of substantial corroborating evidence.

The fact that some extremists are subjecting Dr. Sheehi to doxxing and death threats, while deeply unfortunate, should not be used to silence legitimate concerns about her suitability for teaching or leadership roles. Dr. Sheehi is amply entitled to her opinions, her academic freedom, and, above all, her personal safety. But as a teacher of a diverse group of students and leader of a diverse organization, she must not allow her political views to prejudice her interactions with students, patients, or colleagues. [emphasis added by DB]

We hope that this expression of concern dispels the egregious misconceptions present in the various letters of support Dr. Sheehi has received thus far. We choose to speak out because cases like these involving Jewish and Israeli students being bullied, belittled, and excluded are increasingly commonplace on campuses across the United States and seldom get the scrutiny and impartial treatment they deserve. They not only feed a global resurgence of antisemitism but fuel a dangerous turn in the mental health field where activism is entering the consulting room, where "anti-discrimination" efforts covertly condone discrimination, and where frankly unprofessional and unethical behavior masquerades under the guise of academic freedom.

In conclusion, we call upon GWU to relieve Dr. Sheehi of teaching roles in required courses until this matter is adjudicated. In light of the online material available, if the allegations against Dr. Sheehi are corroborated in part or in whole, this may also cast doubt upon her suitability to train psychotherapists in general.

Respectfully and sincerely signed,

CLICK HERE TO SIGN

[Earlier posts in this series: No. 1 / No. 2 / No. 3 / No. 4]

From Lon Fuller, "The Principles of Social Order":

My final conclusion is that, like many other precious human goals, the rule of law may best be achieved by not aiming at it directly. What is perhaps most needed is not an immediate expansion of international law, but an expansion of international community, multiplying and strengthening the bonds of reciprocity among nations. When this has occurred—or rather as this occurs—the law can act as a kind of midwife—or, to change the figure, the law can act as a gardener who prunes an imperfectly growing tree in order to help the tree realize its own capacity for perfection. This can occur only when all concerned genuinely want the tree to grow and to grow properly. Our task is to make them want this.

I'm a huge Lon Fuller fan; if you are unfamiliar with his work, I would start with "The Morality of Law," which is, in my opinion, one of the truly great works of legal theory. The above quotation, from an essay on international law, packs a lot of interesting ideas into a short and rather brilliantly-phrased paragraph: that many "precious human goals" can best be achieved by a kind of misdirection, or averted vision; that the law is like a gardener pruning a tree "to help the tree realize its own capacity for perfection"; and that "our task" is to help "all concerned" to "genuinely want" it to reach that state.

The Supreme Court has a pretty interesting, and potentially very important, "dormant commerce clause" case before it this term—National Pork Producers Council v. Ross. Dormant commerce clause doctrine is a tangled, internally-contradictory mess, and this case gives the Court an opportunity to clarify—or to even more thoroughly mess up—some important principles governing state power in a national marketplace.

The relevant facts (taken here from the opinion below) are straightforward:

California (through Proposition 12, passed by the voters in 2018) bans the sale of uncooked pork products if the seller knows (or should know) that the meat came from a breeding pig that was confined "in a cruel manner." The law defines that to include, among other things, providing less than 24 square feet of living space—roughly the size of two bath towels—per breeding pig. California accounts for around 13% of total pork consumption in the U.S.; virtually all of the pork sold in California (>99%) comes from producers in other States. At present, only around 4% of U.S. pork producers meet California's space requirements for breeding pigs.

The Pork Producers Council (PPC) challenge this law on ground that it violates the Dormant Commerce Clause. They concede that the law does not fall under the DCC's prohibition against State laws that "discriminate" against out-of-state producers in favor of in-state producers; Prop 12, they acknowledge, treats in-state and out-of-state pork producers and sellers alike.

They rely instead on two of the other strands of DCC doctrine:

• First and foremost, that the CA law "impermissibly regulates extraterritorial conduct" outside of California's borders by compelling out-of-state producers, as a practical matter, to change their operations (at considerable cost) so as to comply with California standards.
• Second, that it imposes "excessive burdens on interstate commerce without advancing any legitimate local interest." California's "philosophical preferences about conduct occurring almost entirely outside California," and its "desire to prevent what California considers animal cruelty that is occurring entirely outside the State's borders," cannot justify the burdens imposed on pork producers nationwide.

[Quotations above are from the PPC's brief, available here ]

The "extra-territoriality" claim is especially important and potentially far-reaching. All sides agree that California may not actually compel pork producers in Iowa or Arizona—in the sense of imposing a legal obligation on them enforceable by means of a fine or other punishment—to adopt California's pig-breeding standards, just as it may not compel businesses in Iowa or Arizona to abide by California's minimum wage rules, or California's business licensure rules, or California's public accommodation law, and so forth.

While this principle of territorial allocation of state authority is clear enough, it has proven a little tricky to pinpoint exactly where, in the Constitution (or elsewhere? the "common law of nations"?), this prohibition is articulated; as Prof. Douglas Laycock once put it*, the prohibition against extra-territorial exercises of state coercive power was "so obvious that the Founders neglected to state it." Much ink has been spilled over the question whether such action violates the Dormant Commerce Clause, or the Due Process Clause, or both, and the Court may take this opportunity to weigh in on that question. But wherever it comes from, the principle itself seems quite firmly established.

*See Douglas Laycock, Equal Citizens of Equal and Territorial States: The Constitutional Foundations of Choice of Law, 92 Colum. L. Rev. 249, 251 (1992)

At the same time, it is likewise true, generally speaking, that California may constitutionally impose its particular local standards—regarding product labelling, or product safety, etc.—on goods and services brought in from out-of-state and used or sold in California. Such laws may, as a practical matter, have extra-territorial effects; out-of-state businesses may have to alter their practices, possibly significantly, with regard to goods destined for sale in California, changing their method of manufacture or their packaging or labelling. But they are under no legal obligation to make those changes unless and until they choose to avail themselves of the California market and ship their goods there.

In the case at hand, California's position is: That's all we're doing—applying our local standards to goods that are sold in California. We're not compelling pork producers in Iowa or Arizona or in any other State to adopt our particular standards. Pork producers in Iowa are under no obligation whatsoever to change their pig-breeding practices because of Proposition 12; they need do so only if they wish to avail themselves of selling their pork in California.

The PPC, needless to say, sees things differently.  This is not, they say, run-of-the-mill state regulation of in-state sales:

"Though Proposition 12 applies to sales of pork meat in California, its practical effects are almost entirely extraterritorial. There are very few sow farms in California. The State imports 99.87% of the pork it consumes. Proposition 12 therefore governs the housing conditions of sows located almost exclusively outside of California, [and] the practical effect of the regulation is to control conduct beyond the boundaries of the State."

Moreover, they claim, Proposition 12 does—"as a practical matter"—compel out-of-state breeders to comply with its standards, because of the structure of the pork market in the U.S.:

"Proposition 12's extraterritorial effects are not limited to the 13% of U.S. pork production [sold] in California. A market pig progresses through multiple farms outside of California as it is raised, and then is processed into many different cuts of meat that are sold across the country. If any part of a pig is sold in California, the sow it came from must be Proposition 12-compliant. And sow farmers cannot say with certainty that no meat from any of their pigs will be sold in California, after those pigs pass through nursery and finishing farms, a packer-slaughter plant, then distributors, before their meat reaches consumers. As a practical matter, all or most [sow] farmers will be forced to comply with California requirements." [emphasis added]

In other words, because pig farmers can't tell if some piece of Elsie the Sow might end up in California, they'll have to give her 24 square feet of space, lest they find themselves violating California law when her feet end up in sausage destined for San Francisco.

That's a pretty interesting variation on the extra-territoriality theme.  I don't think the Court will buy it, though I could be wrong.  That kind of "compulsion" is entirely a function of the particular configuration, at this particular point in time, of the pork market, and California is neither responsible for that nor need it adjust its regulatory affairs to take it into account. The Dormant Commerce Clause does not and should not be read to give any industry protection for the particular manner in which it has chosen to configure its nationwide distribution schemes. That configuration can change in response to market and regulatory pressures; if enough pig breeders don't want to alter their practices to bring themselves into compliance with Proposition 12, the pork distribution market will surely respond; there is no inherent reason why distributors can't offer "California-free" contracts, promising that none of products in their product stream will be shipped to California retailers, and that will solve the "compulsion" dilemma.

While I am reasonably confident that the Court will not go along with PPC's claim that Proposition 12 violates the "extra-territoriality" prong of the Dormant Commerce Clause, I'm not at all sure how it will handle their alternative claim—that the law imposes "excessive burdens on interstate commerce without advancing any legitimate local interest." California's interest here, they assert, is just a "philosophical preference," a "desire to prevent what California considers animal cruelty that is occurring entirely outside the State's borders." Even if California would have the right to apply a law directed at health and safety against pork imported from out-of-state—a certificate that the pigs were trichinosis-free, say—Proposition 12 has no health and safety rationale, and therefore cannot outweigh or justify the burdens imposed on pork producers nationwide.

I'm scratching my head over that one; I'm not even sure where the Court might look to answer the question as to whether prevention of cruelty to animals is, or is not, a "legitimate" public purpose.

The twenty-first episode (Apple Podcasts link here and Spotify link here) of Strangers on the Internet with co-host and psychologist Michelle Lange features a conversation with married couple Prof. Talia Lerner and Phillip Nightingale. They are our first guest couple, and Phillip is our first male guest altogether on the podcast.

Northwestern University neuroscientist Talia did not think that a heavily tattooed former military sniper would be in her romantic future, and yet that is how the dating app process shook out in the end. Phillip proved to be the interesting, open-minded, poetry-writing partner that would turn into a capable stepdad to her son and involved father to their subsequent daughter together. Our Chicago-dwelling couple came from different socioeconomic classes, ethnic backgrounds, and religions, and via therapy and solid communication forged a path toward what became a happy second marriage for both of them.

How did Phillip abandon his plan to travel the world and instead navigate becoming an academic spouse? And what were the reasons Talia agreed to add a third child to their family when initially, Phillip criticizing her parenting of her oldest kid on a first zoo trip together almost led her to call it quits on the relationship? Follow us to the Midwest for this modern-day love story you don't want to miss!