Short Circuit: A Roundup of Recent Federal Court Decisions

No pants in school, no women's ice hockey in school, and racial quotas in schools.

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Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

Hamdi Mohamud, then a teenager, spent about two years in prison after a federal officer outright fabricated a criminal case against her. But the Eighth Circuit dismissed her lawsuit against the officer because, it held, there is no constitutional remedy against federal officials who cause innocent people to be arrested and thrown in prison. (Nor has there been any other kind of remedy. Despite her perjury, the officer is currently a St. Paul police officer earning six figures a year.) This week, IJ asked the Supreme Court to take a look and reverse. Click here to learn more.

  • A single family that owns 34 corporations that in turn own 362 Boston taxicab medallions sues Uber under various state law "unfair competition" claims. The claims relate to the period between 2013 and 2015 when whatever Uber was doing in Massachusetts was, shall we say, a "gray area." There's some dispute on what the correct standard is for "unfair competition" (with one possibility being the "rascality test"). But in any case, the First Circuit upholds the district court's ruling for Uber, whose actions were not the "extreme or egregious business conduct" the taxicab owners needed to prove. (We discussed this case on the podcast.)
  • When too few non-Black/Hispanic students apply for spots in Connecticut magnet schools, the seats that are reserved for them go empty even if Black and Hispanic students would like them. Does the regulation capping the schools' Black or Hispanic population at 75 percent violate the Equal Protection Clause? The nonprofit that brought the suit doesn't have standing to find out, says the Second Circuit.
  • A civilian military contractor providing air traffic control at an Afghan airport directs an airplane into the side of a mountain. All souls lost, and their families sue. The district court grants the contractor summary judgment, citing a "combatant activities" immunity. Second Circuit: No, that only applies when "[t]he Government made me do it," and it didn't here. Go to trial, and you can argue over whether the pilot shares some of the blame.
  • Allegation: Chinese businesses colluded to impose price controls on Vitamin C exports, a per se violation of the Sherman Act. Trial Court: Correct, and they must pay treble damages of $147 million. Second Circuit (2016): Actually, they owe nothing. SCOTUS (2018): Reversed. Second Circuit (2021): They still owe nothing, because the price controls were required by Chinese law; international comity prevents us from imposing liability. Dissent: Nonsense! The law imposed a minimum price for exports, but the companies conspired to fix a higher price.
  • Believing individuals would be less likely to report crimes if they feared deportation, New Jersey's AG adopted a policy in 2018 restricting how state law enforcement assists federal immigration officials. Ocean County: Federal law preempts the policy. Third Circuit: It is a little weird that a political subdivision is suing its own state in federal court, but they can when the Supremacy Clause and preemption are at issue. In any event, this federal law does not "preempt" the AG's policy because preemption only occurs when a law regulates private, not state, conduct.
  • Allegation: If you work for FedEx, you can get paid time off for jury duty, illness, or bereavement, but reservists can't get paid time off for short-term military leave. Naval reservist sues, alleging this policy violates federal law. Third Circuit: Sounds like it. Employers must give service members the same rights and benefits that other employees on comparable leave would get.
  • Conspirator in 1990 murder writes letter in 2016 to co-conspirator recanting the testimony that put away the co-conspirator. In fact, the putative co-conspirator didn't have "anything to do with" the murder. The letter writer dies shortly after. Yikes! The letter lacks a return address, and prison policy is to reject those. Did it violate due process for prison officials not to notify the putative co-conspirator about his rejected mail? It might have, says the Third Circuit. Case un-dismissed.
  • Third Circuit: The Supreme Court has said that officers may not use gratuitous, non-penologically purposed force against inmates. That alone gave the officer here at least "some notice" that he could not strike a restrained, nonthreatening detainee. Plus, both our court and our sister courts have specifically said as much. So no qualified immunity for these strikes (which also got the officer criminally charged).
  • Two taxpayers sue, claiming that Montgomery County, Md. violated federal law by paying COVID-19 relief benefits to undocumented persons. Fourth Circuit: There is indeed such a federal law, but nothing in the law suggests that it can be enforced by taxpayers. Dissent: Maryland law allows taxpayers to sue, and states can create rights of action for violations of federal statutes. (Also dissent: But I'd hold that these taxpayers lack Article III standing regardless.)
  • North Carolina charter school's dress code says that girls—and only girls—must wear skirts, jumpers, or "skorts." No pants or shorts allowed. Fourth Circuit: The district court held that the dress code violated Equal Protection but not Title IX. We reverse on both counts. The charter school is not a state actor, so Equal Protection does not apply. But Title IX does apply here, even if it doesn't expressly mention dress codes, and we remand for the district court to analyze the case under Title IX. Dissent: In 2021, women walk in space, serve in the Supreme Court, and we even have a female Vice President. And yet girls in this public school are not allowed to wear pants. That violates Equal Protection.
  • The Constitution says the States can't take private property without paying just compensation. So if a State takes your property, you can sue in federal court for that aforementioned compensation. Right? … Right? … Fourth Circuit: Nope. State sovereign immunity bars that claim.
  • Texas man starts sending taunting postcards to police referencing V for Vendetta and mailing homemade bombs, one of which damages a church's administrative building. He's arrested and convicted under a statute that requires that the building damaged by fire or explosion be used in or influence interstate commerce. His lawyer argues the church's building doesn't count. Fifth Circuit: An argument that is V for Vacuous.
  • Regular old medical malpractice doesn't give rise to an Eighth Amendment claim. But deliberate indifference does—which is precisely how the Fifth Circuit (over a dissent) categorizes Angie, La. prison medical staff's "cursory treatment" of an inmate complaining of increasingly extreme pain and an inability to walk. (Only after six weeks of providing ibuprofen and muscle balm did they take an X-ray and discover his hip was broken and in need of surgery.) No qualified immunity.
  • Former employee of a Hurst, Tex. putt-putt golf course robs the establishment, murders the manager. He's sentenced to death after prosecutors tell the jury that the victim's family wanted the death penalty—something that wasn't true. But the Fifth Circuit won't address his claims, finding that he can't overcome the high procedural bar for habeas relief.
  • Lansing, Mich. officer violates jail policy, checks box affirming she put eyes on a detainee who in fact she did not put eyes on. The detainee, who was unconscious and lying in a pool of his own vomit, dies. Sixth Circuit: Ironically, to be liable the officer would have needed to witness the detainee's distress and do nothing. Violating jail policy means she's off the hook. However, another officer, who (among other things) did see the detainee, does not get qualified immunity.
  • Ohio man pleads guilty to being a felon in possession, securing a plea bargain for a guideline sentence of 51 to 63 months, from which the gov't was prohibited from suggesting any upward departure. District Court: I'm giving you 120 months. Sixth Circuit: Try again. District Court: Ok, 96 months. Sixth Circuit: The gov't breached the plea agreement the second time around, so we're sending it back down—to a new judge this time.
  • Arkansas "Ag-Gag" law creates a civil cause of action to prevent people from gaining access to slaughterhouses under false pretenses. Animal-rights groups that want to send undercover employees in to document animal abuse sue, alleging a First Amendment violation. Eighth Circuit: And they have standing. They aren't sending in undercover employees because of the law. Dissent: The chain of events needed to create liability is too speculative to support standing.
  • Iowa "Ag-Gag" law makes it a crime to gain access to or employment at slaughterhouses under false pretenses. Animal-rights groups sue, alleging First Amendment violations. Eighth Circuit: The access provision is constitutional, because it only proscribes lies intended to facilitate trespassing. But the employment provision is unconstitutional, because it proscribes even immaterial lies. Concurrence: I agree, but these are tricky issues. Dissent: No, they aren't. Both provisions are constitutional.
  • In 1972, Congress outlawed sex discrimination in federally funded education programs. And then in 1974, it delegated to an agency the writing of regulations applying the law to college sports. Which were written in 1975. With a policy about what they meant in 1979. And a clarification of the policy in 1996. And more clarifications in 2003 and 2010. District court: All these clarifications mean plaintiffs failed to state a claim when suing about how the University of North Dakota eliminated women's ice hockey but not men's. Eighth Circuit: Reversed. Clarifications don't overrule policy, so plaintiffs might have a case. Concurrence: Courts are told to defer to regulations, interpretations of regulations, and clarifications of interpretations, but "[w]hat gets buried under these layers of deference may well be the statute itself."
  • In Colorado prisons, inmates who are religious observers are exempt from beard-shaving requirements. Can a Muslim inmate who was forced to shave his beard sue a sergeant for intentionally discriminating against his religious beliefs—and doing so with anti-Muslim animus? District Court: Neither the Tenth Circuit nor the Supreme Court has addressed this exact situation before, so qualified immunity for the sergeant. Tenth Circuit: Reversed. It's obvious from general First Amendment principles that officials may not discriminate against a person's religion. And it's super obvious that they may not discriminate out of animus. (Ed.'s Note: We at IJ like to think our amicus brief had something to do with this result.)
  • While intentionally discriminating against a prisoner's religiously motivated grooming preferences obviously violates the First Amendment, unintentionally discriminating against a prisoner's religiously motivated eating habits does not, says the Tenth Circuit. Qualified immunity for the chaplain who denied Jewish prisoner's kosher meal request.
  • Eleventh Circuit: Stop applying Rooker-Feldman!

In 2019, a Department of Homeland Security officer stepped in front of Kevin Byrd's moving car, pointed a loaded gun at Byrd, told Byrd he'd "put a bullet through his f—king skull," and then pulled the trigger. The gun jammed. When police arrived, the agent showed them his badge, leading them to detain Byrd for several hours. When they reviewed the security footage, they let Byrd go. Why was the agent so mad at Byrd? Because he'd been asking questions about the agent's son drunkenly crashing his car at 70 mph with Byrd's ex-girlfriend in the car. But when Byrd sued the agent, the Fifth Circuit said there is no constitutional remedy against federal officials for excessive force and unlawful detention in a parking lot (as opposed to inside a home). This week, IJ asked the Supreme Court to take a look and reverse. Click here to learn more.

NEXT: Today in Supreme Court History: August 13, 1788

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  1. “The Constitution says the States can’t take private property without paying just compensation. So if a State takes your property, you can sue in federal court for that aforementioned compensation. Right? … Right? … Fourth Circuit: Nope. State sovereign immunity bars that claim.”

    So why would ANY state pay compensation then if the prohibition contains no remedy?

    1. You must think the worst of our government leaders.

      I can’t say I blame you.

      1. After Biden’s thuggery with the eviction moratorium, I think very little of our leftist leaders.

        1. “Biden’s thuggery with the eviction moratorium”

          Those darn thugs, keeping people from being homeless in a pandemic. That’s just the sort of things thee thugs are known for. Throw in the thuggery of the cops in Las Vegas, treating a simple self-help eviction execution as if it were some kind of crime to shoot people who are behind in their rent.

    2. I may be wrong on this, but I think it is because the lawyers pleaded the case wrong. They should have filed against the people on the commission in their official capacity or perhaps like a 1983 suit. Instead he filed it directly against the commission and asserted a claim straight under the 14th A.

      1. But the state is the party that seized the property, and the state is the one that owes compensation.

        In any case, if this is going to be the rule, Congress should abrogate state sovereign immunity for takings. See Board of Trustees of the University of Alabama v. Garrett

      2. The eleventh amendment bars official capacity damages claims against state officials because as official capacity claims, they seek compensatory monetary relief from the state, not the state official. Ex parte young official capacity claims are limited to prospective injunctive relief intended to prohibit future unconstitutional conduct; they cannot be brought against state officials for monetary relief for a completed wrong. See Edelman v. Jordan, https://scholar.google.com/scholar_case?case=14955300599631495032&hl=en&as_sdt=6&as_vis=1&oi=scholarr

        1. Perhaps Prof Somin could answer if he reads these comments, although doubful he does. But I’m not sure that asking for just compensation is a claim for damages. Since the constitutional violation isn’t the taking but not giving the compensation I think it is an ongoing constitutional violation that you want to stop/be fixed. It isn’t a violation that has already occurred that you need compensation for. Admittedly I haven’t done any research into caselaw on this so that may not be true based on precedent.

            1. That is helpful thank you. Do you have a citation on that? As I said that is very possible but I’d like to read the court’s reasonsing

    3. Because the state constitutions generally contain parallel provisions, which the state courts enforce.

      1. Then the case was filed in the wrong court. If you’re suing under a state constitution, you belong in their court. Federal court is for federal claims, and/or qualified diversity claims. If you don’t have one of those when you file a suit in a federal court, you are going to lose your case, even if it would have been successful if pleaded correctly in state court.

  2. Re. the charter school case, I would have thought charter schools “private enough” that this would be a parental choice issue, the parents chose to send their kid to the school knowing (or at least having an opportunity to know) that this policy was in place.

  3. Just to be nit-picky here on the last story about the Glowie agent.

    It’s not “the gun jammed” when it didn’t shoot even the first bullet, but rather, the gun “was jammed” or suffered a misfire or something similar. A gun only jams *after* a round is fired and subsequently fails to fire a second.

    1. Could be a squib load.

      1. More likely, as happens (I’ve seen it) with sometimes otherwise competent law enforcement types that only shoot 50 rounds to qualify at the range 1x-2x a year, is that there wasn’t ever a round in the chamber. This federal agent, who is obviously not the sharpest tool in the shed and a few fries short of a Happy Meal, inserted the mag and didn’t rack the slide before he loaded up. And didn’t, like I do before I CCW, check the loaded chamber indicator.

        Very few rounds, out of the billions produced these days, especially the highly quality controlled self-defense rounds and not cheap .22, have production issues where they don’t fire.

        Though I did hear about one cop in my hometown, in a case almost two decades ago now, who over-oiled his gun after a range session and that seeped into the primer of the round in the chamber. Perp with knife comes after him, and there was nothing but a click. His partner shot the guy for him. Now, why some dumbass would charge two cops with guns pointed at him is a whole other story.

        1. According to the (not very well-written) complaint, “Defendant Lamb then tries to pull the trigger at Mr. Byrd but the bullet falls out / becomes dislodged.” The complaint also alleges that the defendant’s wife “picked up the dislodged bullets from her hus- band’s gun and put them in her car.”

          1. Something is wrong. Even if the complaint is “not very well-written” even one bullet/round falling out of a firearm is quite rare but more than one round falling out is almost unheard of.

            If there is a FTF it is some what common to cycle a firearm and eject unfired bullets and it is possible this is what happened. Thing is it takes two hands to cycle a weapon.

            I also wonder if Lamb’s attempt (according to the complaint) to break the driver’s side window of the vehicle using his fire arm was the cause of the FTF. There is a famous meme about the difference between a Glock made of plastic and a 1911 service automatic made of steel saying pistol whipping someone with a hunk of plastic just does not get your message across.

            Just a guess but it is possible to release the magazine on a pistol while trying to smash a car window and maybe that is how the bullets got on the ground. I have to wonder what the security vids show about this.

            1. Maybe Lamb was drunk.

              Maybe his gun has a magazine disconnect safety that prevents it from shooting without a magazine? These aren’t so common with LEO guns.

              I am completely baffled how someone gets away with attempted murder just because he’s wearing a uniform. WTF.

              1. “I am completely baffled how someone gets away with attempted murder just because he’s wearing a uniform. WTF.”

                Well, they also often get away with completed murders just because wearing a uniform at the time of the murder. That’s why it’s newsworthy when one of them gets charged, tried, and/or convicted for the murder.

    2. If the intent is to convey the message than the gun did not discharge a projectile into the guy’s f–king head, “the gun jammed” conveys that message.

      1. How is a problem to use proper English combined with a fraction of an understanding of how guns work to say “the gun *was* jammed” or even easier, “the gun failed to fire”?

        (note, I said it was nit-picky already on a blog with nit-picky lawyer types, so it’s not out of place).

        1. Could not the gun have been fine, but something went wrong during firing, causing it to (generic term) jam at that point? Would that not accurately be described as the gun jammed during firing?

          1. No, a jam requires a round to be fired properly, then a malfunction during firing to occur. From reading this, the fed had a misfire before firing of some sort. Mechanically just how things work.

        2. The correct term is FTF (failed to fire). So far I am the only one who has posted before the FTF Lamb used the firearm (according to the complaint) to try and break the driver’s side window of the car. This sounds like a possible cause of a FTF. Pro tip: it is never a good idea to use a firearm as a hammer.

        3. “(note, I said it was nit-picky already on a blog with nit-picky lawyer types, so it’s not out of place).”

          So having it pointed out to you that it’s too nit-picky even for them should be a wake-up call. This isn’t an article about weapons that didn’t fire on a website for gunsmiths. They might care about the difference in language that so offends you.

  4. “He’s arrested and convicted under a statute that requires that the building damaged by fire or explosion be used in or influence interstate commerce. His lawyer argues the church’s building doesn’t count.”

    Is there anything left anymore that doesn’t “influence interstate commerce?”

    1. If the church doesn’t affect commerce, it should sing hallelujah about all the federal regulations it will now be free to ignore.

      1. This seems like a pretty clear example of the misuse of the interstate commerce clause to give the federal government a general police power for what would normally be a state crime.

        Clearly stealing gumballs is not beyond its reach.

        1. Oh no, it’s much worse than you think.

          Current standing DOJ policy (and this goes back decades) is that it is enough for criminal jurisdiction to attach if an implement used to commit the crime once traveled interstate commerce, and that could have happened decades and dozens of owners before the crime was committed.

          1. Wasn’t there a Montana case where firearms manufactured in the state, and stamped “not to be sold outside of Montana”, and which had never left the state were considered interstate commerce because the Montana residents who bought the guns that never left the state “might” have bought an out of state gun instead?
            (or maybe Minnesota, some northern-ish state with an “M)

            1. Possibly.

              But even if the courts ruled out the “might have bought an out of state gun instead” argument, if you read the DOJ policy, the next argument would be that the steel from which the guns were made traveled in interstate commerce, or the tools used to make the guns traveled in interstate commerce..

              And if you build a steel smelting operation in Montana, was the ore mined in Montana or did it travel in interstate commerce?

              The DOJ policy on criminal jurisdiction under the interstate commerce clause has been built to be a truism. There is no escape from interstate commerce.

              1. It IS true that not much commerce these days doesn’t cross any borders. It isn’t just college students looking for a lower drinking age who cross borders any more.

              2. The smelter using air that crossed state boundaries would be enough basis at this point. They’ve totally obliterated everything after “to regulate”.

                1. Gee, Brett, it’s certainly true that air crosses state borders, but does it do so “in commerce”? You’ve gone off the deep end assigning bad-faith motivation to anyone who disagrees with you about anything.

    2. God is everywhere, even in different states.

  5. But when Byrd sued the agent, the Fifth Circuit said there is no constitutional remedy against federal officials for excessive force and unlawful detention in a parking lot (as opposed to inside a home).

    Wouldn’t the agent be subject to suit under ordinary state tort law?

  6. Reason logo
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    Short Circuit: A Roundup of Recent Federal Court Decisions
    No pants in school, no women’s ice hockey in school, and racial quotas in schools.
    JOHN ROSS | 8.13.2021 3:30 PM

    Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

    Hamdi Mohamud, then a teenager, spent about two years in prison after a federal officer outright fabricated a criminal case against her. But the Eighth Circuit dismissed her lawsuit against the officer because, it held, there is no constitutional remedy against federal officials who cause innocent people to be arrested and thrown in prison. (Nor has there been any other kind of remedy. Despite her perjury, the officer is currently a St. Paul police officer earning six figures a year.)

    The linked article dances with some weasel words, in the usual way suggesting the bad cop got off scott free, attempting to conflate in the mind of the reader that with inability to sue for denial of constitutionally-protected rights.

    Was this case actually a sordid tale of that? How could such lies not yield firing or banning from police work? At the very least, their word is crap and useless if not dangerous to any future case.

    1. This article on the Reason front page ( A Federal Cop Devised a Bogus Sex Trafficking Ring and Jailed This Teen for 2 Years. The Cop Can’t Be Sued. ) has more detail on how it went down. If anything, it’s even worse.

  7. I’ve seen the story in some other places unconnected to Reason and they also say she’s working for the St. Paul police.

    1. Sorry, trying to respond to Krayt.

    2. She worked for the St Paul Police first. When the events in question went down, she was on a temporary assignment with a federal human trafficking task force. She only ever had a temporary federal badge.

  8. unintentionally discriminating against a prisoner’s religiously motivated eating habits does not, says the Tenth Circuit. Qualified immunity for the chaplain who denied Jewish prisoner’s kosher meal request.

    How was this unintentional? Surely a chaplain is aware, at a minimum, that Jews have dietary laws.

    1. If you click on the underlined words, you can read the court opinions being summarized here.

    2. From the decision:

      Mr. Ralston is a Messianic Jew. In December 2013, he was arrested and booked into the Denver Detention Center. On an intake questionnaire, Mr. Ralston left blank a question about his religious affiliation. He also indicated that he did not require a special religious diet. Three days later, however, Mr. Ralston
      filed a grievance, stating that his faith required him to keep a kosher diet. The Denver Detention Center’s chaplain, Mr. Cannon, was responsible for coordinating special diet requests from inmates. On January 2, 2014, he denied Mr. Ralston’s request for a kosher diet. In a written explanation, he noted that Mr. Ralston had not indicated a religious affiliation on his intake questionnaire.

      And he also stated that a rabbi had “examined our menu” and determined that “our meals are fully acceptable in the Messianic Jewish Faith.”

    3. Surely a chaplain is aware, at a minimum, that Jews have dietary laws.

      Part of the problem here is that the summary omitted a very important adjective, “Messianic”. A Messianic Jew is part of a small and fairly obscure subgroup of people of Jewish origin that believe that Jesus of Nazareth is the Messiah, the Son of God, and (usually) one of the persons of the Trinity, but isn’t part of any ordinary Christian denomination.

      So, with that in mind:

      1) Messianic Jews, in fact, do not agree with each other about whether Messianic Jews have dietary laws, so it’s hardly minimum knowledge for a random chaplain to know if they do.

      2) The chaplain consulted a rabbi, and the rabbi told him that Messianic Jews didn’t need a special diet.

      3) This guy indicated he had no religious dietary needs on his intake form.

      4) This guy didn’t mention his religion on his intake form.

      Given all that, no, I would not expect any reasonable chaplain to conclude this guy was making a request based on a sincere religious belief rather than just being someone who, say, was incarcerated, didn’t like the food, was told by a fellow inmate the kosher meals were better, and filed a request to that end.

      I do think the chaplain probably should have gone ahead and put him on a kosher diet anyway in response to the first request rather than denying it and waiting for the lawsuit-accompanied second request, but it’s perfectly reasonable for the court to conclude, given the state of qualified immunity law, that the specified course of action wasn’t clearly mandated by established law back in 2014.

      1. NaS, Matthew, DRM,

        Thanks for the clarification.

        Lazy of me not to click through.

        “Messianic” Jews, like “Jews for Jesus,” is, IMO, an inherently deceptive term, not unlike “Papal Protestants” or something.

      2. Quibble: Most “Messianic Jews” are not of Jewish origin. They’re just random Protestants who have decided to call themselves Jews and keep some Jewish laws.

        Not that that’s relevant, since the first amendment protects even religions that have only one adherent, but it had to be said.

    4. Back when I was just an undergrad I got excused from class claiming I was a Budhist and was celebrating the Day of the Ox. And yea I am aware of how to spell Buddhist but as far as I know they have no holiday for the Day of the Ox.

      1. “Back when I was just an undergrad I got excused from class claiming I was a Budhist and was celebrating the Day of the Ox”

        Back when I was an undergrad, if I didn’t want to go to class, I didn’t go to class.

  9. >>>
    Ohio man pleads guilty to being a felon in possession, securing a plea bargain for a guideline sentence of 51 to 63 months, from which the gov’t was prohibited from suggesting any upward departure. District Court: I’m giving you 120 months. Sixth Circuit: Try again. District Court: Ok, 96 months. Sixth Circuit: The gov’t breached the plea agreement the second time around, so we’re sending it back down—to a new judge this time.
    <<<

    The criminal looks like scum. But the prosecutors did make a plea deal, and then violate it ("I'm not going to violate the deal that says we can't ask for a higher punishment, but gosh, if we'd known then what we know now, we probably wouldn't have made that deal. but, hey, I'm not going to violate the deal"!).

    So I think this was the right choice

    1. It’s not like going to prison for five years is anywhere near “light”

      1. It’s lighter than going there for 10 years

        1. Or a lifetime of being greg.

    2. You sure do love making up stuff in your imagination, and then attributing it to other people, don’t you?

      1. More projection from Jimmy.

        You can tell it’s projection, since he spits out a word salad without any actual reasoning behind it.

        TBF, he’s not capable of reasoning, so its absence isn’t surprising

        1. “More projection from Jimmy.”

          Trying to change your name? Won’t work. You’re a greg. A total greg.

  10. “What gets buried under these layers of deference may well be the statute itself.”

    Indeed. However, “the statute itself” actually guts the plaintiffs’ case.

    Specifically, the statute mandates that no one be denied the opportunity to participate in a given program on the basis of sex. Despite the huge pile of regulations to the contrary, every women’s team operated by a school that receives federal funds is a violation of the statute, because every such team denies males the opportunity to participate. on the basis of their sex.

    So if we go back to the actual statute, the plaintiffs don’t just lose, they lose completely and absolutely, because they’re trying to argue that the school violated Title IX by abolishing a team whose very existence was plainly illegal under Title IX. If they want to play for a hockey team at a school that accepts federal funds, their only legal option under Title IX as it’s actually written is to play on the same teams under the same terms as the men.

    Which is exactly what the district court should rule as soon as this is kicked back. If Congress wants federally-funded schools to have separate-but-equal sports programs, it can sit down and write a replacement for Title IX that actually requires separate-but-equal programs rather than nondiscrimination in programs.

  11. I always look forward to John Ross’s commentaries. It’s great reading in law spiced with witticisms and wonderful pleasing gambols with the English language.

    So many dry lawyers. This one is not dry.

  12. “”When too few non-Black/Hispanic students apply for spots in Connecticut magnet schools, the seats that are reserved for them go empty even if Black and Hispanic students would like them.”

    Huh? You just said too few are applying, so what black and hispanic students are out there that “would like them” but can’t get them?

    1. Hush, now. Don’t bother important people when they are working.

      1. But it’s Ok to bother unimportant people when they are wanking.

    2. “When too few non-Black/Hispanic”

      See the “non-” there?

      “even if Black and Hispanic students would like them”

      These would be students who are not “non-Black/Hispanic”.

      1. “‘When too few non-Black/Hispanic”
        See the ‘non-‘ there?
        ‘even if Black and Hispanic students would like them’
        These would be students who are not ‘non-Black/Hispanic’.”

        If they wanted to go to this specific school, maybe they should have applied to this specific school. There were seats set aside for them.

    3. On October 23, 2017, Dianna Wentzell, the Commissioner of the Connecticut State Department of Education (the “Commissioner”) issued a memorandum (the “2017 RIS Memorandum”), which implemented so-called “reduced-isolation setting standards” (the 8 “2017 RIS”) for Connecticut’s interdistrict magnet schools pursuant to Conn. Gen. Stat. (“CGS”) §§ 10-264l and 10-264r.2 The 2017 RIS Memorandum required that all interdistrict magnet schools in Connecticut enroll at least 25% non-Black and non-Hispanic students on pain of financial penalties.

      2 In pertinent part, CGS § 10-264l defines an interdistrict magnet school program as follows: “[A] program which (i) supports racial, ethnic and economic diversity, (ii) offers a special and high quality curriculum, and (iii) requires students who are enrolled to attend at least half-time. An interdistrict magnet school program does not include a regional agricultural science and technology school, a technical education and career school or a regional special education center.”

      This looks like insane racist garbage to me, so I’m curious why the Appeals Court was so desperate to let it continue

      1. I’m curious why you think the Appeals Court was so desperate to let it continue.

        1. Because any parent whose kid was denied entrance into a school that had open seats should clearly have standing to sue.

          The only reason they went for the standing BS is because they didn’t want to have to rule on the reality of the program.

          1. Amazingly, given your track record, you forgot to answer the question you were asked.

          2. Because any parent whose kid was denied entrance into a school that had open seats should clearly have standing to sue.

            Then maybe… a parent whose kid was denied entrance into a school that had open seats should have sued?

            You do know, “Person A would have standing, so therefore we shouldn’t find lack of standing by random other person B” isn’t the way it works, right?

            The only reason they went for the standing BS is because

            …it’s their constitutional obligation.

        2. So, there’s two ways this question can be intended:
          1: What makes me think the decision is an illegitimate attempt to avoid answering the questions brought up? (Because any parent whose kid didn’t get into the school because of that policy clearly has standing, and IIRC people with standing who group together don’t lose that standing)

          2: Why do I think they want to keep the policy?
          A: I don’t know
          B: See my comments below about people who think that you can’t have a good school unless there are white & Asian students there. Apparently none of them ever say “Lean on Me”, or heard about Principal Joe Clark

          1. Because any parent whose kid didn’t get into the school because of that policy clearly has standing, and IIRC people with standing who group together don’t lose that standing

            I mean, you do recall correctly, but the plaintiffs here aren’t an organization of parents whose kids didn’t get into the school.

            1. All it takes is one parent in that group, no?

              1. no. If you want to sue as a group, then everybody in the group has to have standing. Otherwise, you get a joinder problem.

      2. “In pertinent part, CGS § 10-264l defines an interdistrict magnet school program as follows: “[A] program which (i) supports racial, ethnic and economic diversity”

        “This looks like insane racist garbage to me,”

        Of course it does.

        1. Gee, now, why was this brought up?

          Oh, I know, it was brought up because black and Hispanic students were only allowed to be 75% of the student body, even if that meant any seats weren’t filled.

          So, are you so stupid you couldn’t remember that? Or just so dishonest that you don’t care?

          Or both, of course

          1. It’d be easier for literally everyone else in the world if you’d stop projecting your own stupidity onto other people.

            You literally said that you find having a student body that is diverse is racist.

    4. I’m more familiar with Connecticut’s “Lighthouse” schools than its “magnet” schools, but suspect they are the same thing.

      The idea was to build selective schools in minority neighborhoods and have them of sufficient quality that the White kids would want to go to them, thus integrating the schools. There may have been a consent decree — this was a fellow student discussing it at a grad seminar but memory is he mentioned one.

      Well, if you are admitting via quota to achieve a certain defined racial percentage, the last thing you are going to do is let a non-White student have the seats that you have reserved for the White students so as to have your minimum percentage of White students.

      On the other hand, you are denying a Black or Hispanic student on the basis of the student’s race.

      And that’s the issue….

      1. Well, the core belief here is the belief that black and Hispanic kids can’t learn unless they have enough of “their betters” (white and Asian kids) to make for a “good learning experience”.

        It’s disgusting and racist, but that’s the Democrats and the Left for you

        1. Watching the two of you try to out-stupid each other might be entertaining. But it’ll still be an awfully big pile of stupid before it’s over.

        2. “Well, the core belief here is the belief that black and Hispanic kids can’t learn unless they have enough of ‘their betters’ (white and Asian kids) to make for a ‘good learning experience’.”

          That’s YOUR core belief.

          “It’s disgusting and racist”

          Uh, yeah, it is.

          1. THe adults are talking here, Jimmy. Go over in the corner and play with yourself

            1. If the adults are talking , you need to STFU.

  13. The 5th Circuit’s decision provides clear guidance to prison systems on how to ensure perfect compliance with the 8th Amendment regarding medical treatment of patients.

    Provide no medical facilities or personnel whatsoever. And have guards wear earmuffs so that they can never hear what patients are saying.

    That way, prison personnel can ensure they can never acquire any knowledge of prisoner medical conditions that might risk accidentally leading to the knowing deliberate indifference that constitutes an 8th Amendment violation.

    Prison officials have foolishly followed a path of based on sentimentality. But sentimentalism is a sure path to liability. It is precisely concern for patient welfare that makes deliberate indifference possible. If prsisons want to meet their legal obligations, prisonpersonnel who put the prison system at liability risk by displaying such inappropriate sentimentality need to be ruthlessly rooted out.

    By lying that rhey had observed the prisoner when they hadn’t, the prison officials in this case displayed a laudable appreciation of the nature of and a laudable concern for prosoners’ constitutional rights. By simply not showing up and lying that they had, these officials guaranteed that the ensure that the medical care rights of prisoners under their charge could never be violated by making it impossible for them to ever become aware of their charges’ medical needs.

    Their laudable and salutory concern for preventing violations of prisoner constitutional rights provides a model that prison officials across the country ought to aspire to.

    1. “The 5th Circuit’s decision provides clear guidance to prison systems on how to ensure perfect compliance with the 8th Amendment regarding medical treatment of patients.
      Provide no medical facilities or personnel whatsoever. ”

      Checks out. No way THAT could be mistaken for deliberate indifference.

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