The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.
Last year, the Supreme Court held that if states provide funding for students attending private schools, then they can't withhold that funding from students attending religious private schools. But four months later, the First Circuit upheld just such a religious exclusion in Maine on the basis that funding was being restricted not because of the status of a particular school as religious, but because the money could be put to a religious use. Over at The Wall Street Journal, IJ Senior Attorney Michael Bindas explains why SCOTUS should grant cert in Carson v. Makin and put to rest the idea that the blurry distinction between religious "status" and "use" is constitutionally significant.
- Two former Liberian government officials sue a human-rights organization for defaming them, saying that the group suggested they took bribes when they are, in fact, totally righteous dudes. D.C. Circuit: This lawsuit is barred by the First Amendment. Dissent: Shouldn't it matter that there's no evidence anyone was bribed? Also, by the by, New York Times v. Sullivan is "a threat to American Democracy." Also, the media is biased against Republicans, and Candy Crowley was a bad debate moderator in 2012.
- What do you get when you mix the super-complicated area of Indian law with the super-complicated area of water rights? Dismissal by the D.C. Circuit because the rancher-plaintiffs lack standing. Ranchers claim Klamath, Ore. tribes' enforcement of their water rights causes the ranchers an injury and sue the feds who oversee those rights. But even if the feds acted unlawfully, says the court, the tribes would still have the power to enforce those rights, and weren't made parties to the lawsuit.
- Pennsylvania wants to sell a juvenile detention center, and an Islamic education group wants to buy it. But several Pennsylvania legislators allegedly scuttle the deal—there are overtones of Islamophobia throughout—and the property goes to another bidder. Third Circuit: Doesn't matter. You can't get damages from lawmakers for doing law. The legislators are protected by absolute immunity for their legislative acts and qualified immunity for everything else.
- The Defense Department is supposed to post certain military discharge records online with personal information redacted. But—whoops—lots of information wasn't redacted. So in 2019 DoD temporarily yanked all 245,000 records while it figured out how to do the redactions, even though the records are supposed to be public. Fourth Circuit: No suing about that. There's no such thing as a challenge to general agency mismanagement. (As of March 1, about 189,000 records are back up.)
- What, precisely, does it mean to be an agent of a foreign government (and thus subject to registration with the Attorney General)? The Fourth Circuit has the deets. The upshot? An executive with Gen. Mike Flynn's lobbying group really should have disclosed this his campaign to discredit a Turkish dissident was on behalf of the Turkish government. Conviction reinstated.
- An Indiana minor can get an abortion without parental consent if she gets a court order, but her parents must still be notified before the abortion unless the court determines that notice isn't in her best interests. Seventh Circuit (2019): The notice requirement is likely unconstitutional, so it's preliminarily enjoined. SCOTUS (2020): Please reconsider in light of our most recent abortion case. Seventh Circuit (2021): Okay. It's still likely unconstitutional.
- Thoughts and prayers for Scott Kennedy, branded eternally in the Federal Reporter as "the tormented boyfriend." Though in fairness, that description—courtesy of the Seventh Circuit, affirming his erstwhile girlfriend/escort's conviction for wire fraud—seems not inapt.
- A school-resource officer at Columbia, Mo. high school escorts a sixteen-year-old student to a room, where two police officers interrogate her about a sexual assault that took place at the house of a different student who happened to share her first name. The student sues, inter alios, the school-resource officer. Who is entitled to qualified immunity, holds an Eighth Circuit panel (speaking through Judge Morris Sheppard Arnold, one of only two judges (fact-check us if we're wrong) in U.S. history to share a federal court with a sibling. (The other was his brother, Richard.) (Yes, we said "federal court," not "federal judiciary as a whole." Don't come at us with gotcha talk of Charles Breyer.)
- Does the University of Oregon's practice of paying "retention bonuses" to keep faculty members from fleeing to other universities violate the Equal Pay Act or Title VII? Ninth Circuit: Very possibly. This female psychology professor has adequately alleged that she was paid less than male colleagues doing the same job. Dissent: Professors aren't interchangeable. They weren't doing the same job, and this ruling will put universities in the Ninth Circuit at a competitive disadvantage with universities that continue to pay retention bonuses.
- Bremerton, Wash. public high school football coach kneels at midfield for a brief prayer at the end of each game. Players begin joining him, and, eventually, this morphs into motivational, religious speeches. Administrators suspend him after he declines their request to stop. Does this violate the coach's free speech or free exercise rights? Ninth Circuit (2017): No preliminary injunction. Ninth Circuit (2021): No, full stop. Indeed, allowing the prayers to continue might have violated the Establishment Clause. Concurrence: The coach wasn't required to jump into the nearest broom closet to privately pray, but praying with a crowd like this crossed the line.
- Ghanaian man comes to the United States on an F-1 visa, which allows him to stay in the country as long as he's enrolled in an approved educational institution. He's arrested, charged with first degree rape, and held in jail for 13 months until a jury acquits him. BIA: And for those 13 months he wasn't enrolled in school, so we're deporting him. Tenth Circuit: That's fine.
- Won't someone think of the poor Georgia corrections officials who were "entrapped" into helping a confidential informant transport drugs? Eleventh Circuit: We will think about two of the four, who should have been able to present an entrapment defense. The others are hosed, though.
- Judge Rosenbaum of the Eleventh Circuit has some additional thoughts about a ruling on "consensual" police encounters from last August, urging the Supreme Court to adopt a sort of mini-Miranda for stop-and-talks.
In 2019, residents of Castle Hills, Texas elected Sylvia Gonzalez, a 72-year-old retiree, as the first Hispanic councilwoman in city history. But the mayor and other officials launched a retaliation campaign against Sylvia after she ruffled some feathers by proposing to replace the city manager. The campaign included a pair of criminal investigations and a nonsensical criminal charge that resulted in her arrest (and her mugshot appearing on TV), as well as litigation to strip her of her seat that cost Sylvia tens of thousands of dollars to defend. Last year, Sylvia filed a civil suit against the city and several officials, and this week a federal judge ruled that the suit can proceed. The right to be free of retaliatory arrest in these circumstances is clearly established, so the mayor, police chief, and other officials are not entitled to qualified immunity. Click here to read more.