The Volokh Conspiracy

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

The Volokh Conspiracy

Bar Exam

The California Bar Exam's February Fiasco

An online administration meltdown and question leaks leave test takers frustrated and furious and others demanding answers.

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It appears the February administration of the California bar exam was a bit of a fiasco. Many trying to take the exam online were locked out and prevented from finishing, or in some cases even starting, the exam. The Bar planned for a retake, but it appears at least some questions were leaked online. A class action suit has already been filed and some are proposing provisional licensure for test takers as the mess is sorted out. The new exam was supposed to save the California Bar money, but it will not work out that way.

Paul Caron has assembled coverage of the mess over at TaxProf Blog in posts here and here, and will likely post follow ups as the story unfolds.

"Humiliating for Every American"

Guest post from John Taylor, Episcopal Bishop of Los Angeles

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If anyone cares to defend yesterday's disgraceful display by our Mafioso-in-Chief, be my guest, in the comments below. Surely this crosses the line, even for the diehards. I've asked a thousand times on this blog: what can this guy do that would make his supporters disavow and disown him? [the "Murder on 5th Avenue in Broad Daylight" question] Perhaps this was it? Are there really no Republicans out there who have the courage to stand up and say: "All Americans should be deeply ashamed of what he has done in our name, and deeply ashamed of how he did it." No?

The text is by John Taylor, Bishop of the Episcopal Diocese of Los Angeles [and, interestingly, the former director of the Nixon Presidential Library]. Emphases are mine. /DP

#AmericanCoup Seeing Putin's boys bully a besieged freedom fighter in the Oval Office was humiliating for every American. Since there is no presidential precedent for the public brutalizing of an ally, we reach for fiction and Mayor Carmine DePasto, from the comedy "Animal House," and his summit with the dean of Faber College. "If you want this year's homecoming parade in my town," he says, "you have to pay." When the dean accuses him of extortion, the mayor replies, "Look, these parades are very expensive. You're using my police, my sanitation people, my three Oldsmobiles. So if you mention extortion again, I'll have your legs broken."

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Taxes

The Case Against Taxing University Endowments

Tax professor Erik Jensen suggests taxes on large university endowments are not as good idea as some people think.

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Some universities have multi-billion-dollar endowments. Should they be taxed? I am no tax expert, but I have long been concerned that the case for taxing endowments looks a bit like the case for taxing wealth generally. Yet some conservatives support the former while opposing the latter.

In 2017, as part of the Tax Cuts and Jobs Act, Congress imposed a 1.4 percent tax on the net investment income of large, well-endowed universities. The question now is whether it should be expanded.

My colleague Erik Jensen knows far more about tax law than I do, and he had a piece this week in Civitas Outlook suggesting why taxes on university endowments is not such a great idea. Not only does the tax raise minimal revenue, it induces universities to waste more money on accountants and administrators to account for and avoid the tax (and its "cliff effect"), and its costs are not ultimately borne by universities as institutions.

In form, colleges pay the tax, just as corporations pay the corporate income tax. But everyone except Bernie Sanders knows that the economic burden of corporate tax is borne by some combination of investors, employees, and customers—not the targeted corporations, which are legal fictions. Economist Douglas Holtz-Eakin has similarly argued that "in the near-term, the students and university employees will bear the brunt of the [endowment] tax." Is that desirable?

Jensen also suggests that if the purpose of the tax is to penalize universities for being too progressive or "woke," that is a misguided justification for the policy.

I defer to no one in my dislike of wokeness, but it's a bad idea to have the federal government attacking educational institutions for permitting disfavored views. If a college is nothing but a platform for political indoctrination, challenge its tax-exempt status. But despite what you may have read, no elite university is tainted with wokeness from top to bottom. Yes, even departments in the hard sciences and engineering have overdone wokeness in hiring and promotions, but it's hard to see how a course in physics or a research lab is going to be excessively woke.

In any event, the idea that an institution should be taxed because politicians think it's too woke should make all who care about academic freedom nervous. (We should be similarly nervous about any proposed federal mandates requiring wokeness.) I'll leave to First Amendment scholars the question of whether an anti-wokeness motivation for a tax violates the Constitution. But, even if constitutional, it's not something Congress should do.

Administrative Law

D.C. Circuit Stays Mandate in Marin Audubon Society v. FAA

After refusing to order remand without vacatur, the D.C. Circuit pauses the effect of its decision.

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Last fall, in Marin Audubon Society v. Federal Aviation Administration, a divided panel of the U.S. Court of Appeals for the D.C. Circuit concluded that the Council on Environmental Quality lacks statutory authority to issue binding regulations implementing and interpreting the National Environmental Policy Act.

Last month, the full court denied a petition for en banc review in the case, while a majority of judges on the court joined an opinion suggesting the above holding was merely dicta.

Today, the original panel granted a stay of the judgment in the case (having previously denied the petitioners request for remand without vacatur). Writing for the panel, Judge Randolph explained that in cases like this, in which the party challenging a government regulation for being too lax as opposed to too stringent, a stay may be justified so as not to leave the petitioner in worse condition than before filing suit. In such cases, Judge Randolph explained, equitable considerations may justify a stay without compromising the effect of the court's conclusion that the agency action was unlawful.

Judge Srinivasan concurred separately "in the disposition" on the grounds that he would have granted remand without vacatur as an initial matter.

For myself, I prefer Judge Randolph's approach. One reason for this is I do not understand how remand without vacatur is consistent with the instruction for courts to "set aside" unlawful agency actions. Whether or not one believes universal relief is appropriate, once a court concludes that an agency action is unlawful, the court should not be willing to enforce that action, either in the instant case or going forward.

In addition, remand without vacatur does not put much pressure on an agency to fix the problem. As a consequence, agencies often drag their feet to comply with such orders. While staying the mandate produces much the same outcome--a court judgment that the agency action was unlawful that does not take effect--a stay that can be lifted at the court's discretion or that expires at a date certain does more to incentivize the agency to fix the problem. Indeed, if the primary justification for remand without vacatur is that courts should not enter judgements that are disruptive to the prevailing party, this is actually a stronger argument for Judge Randolph's position than Judge Srinivasan's.

Birthright Citizenship

Divided Fourth Circuit Denies Partial Stay of Preliminary Injunction Against Executive Order Curtailing Birthright Citizenship

If nationwide injunctions were okay against other administrations, the Fourth Circuit see no reason they are not okay now.

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Today a divided panel of the U.S. Court of Appeals for the Fourth Circuit denied the Trump Administration's application for a partial stay of a nationwide preliminary injunction granted by a district court  against the implementation of the Administration's Executive Order curtailing birthright citizenship. The denial was largely based upon the question of whether it was appropriate for the district court to grant universal relief and not the merits of the case.  The U.S. Court of Appeals for the Ninth Circuit previously denied an application for emergency relief in parallel litigation challenging the same E.O.

The Fourth Circuit order was entered on behalf of Judge Harris, joined by Judge Gregory. Judge Niemeyer dissented, also focusing on the question of nationwide relief. He would have narrowed the injunction to the parties in the case. Assuming the Trump Administration seeks Supreme Court review, this case would present a clear opportunity for the Supreme Court to (finally) provide guidance on when universal relief is appropriate (and the answer should be "only in special circumstances").

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Hamas, Israel, and the Death of International Humanitarian Law

Taken over by the far left, the IHL community discredited the field by going easy on Hamas and libeling Israel.

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[Cross-posted at my Times of Israel blog]

International humanitarian law is dead. Ideologically motivated hostility to Israel since the Hamas massacre of Israelis on October 7 killed it.

IHL was invented after World War II. The war saw tens of millions of civilians were killed, some intentionally as in the Shoah, and some because their lives were not valued when military decisions were being made.

The underlying idea was that regardless of which side was right or wrong in any given international conflicts, armed forces on both sides have obligations to protect civilians to the extent possible while engaged in war.

If the IHL community had taken this seriously, imagine what would have happened immediately after October 7.

IHL scholars, activists, and organizations would have been unified in their intense denunciation of the massive violation of all precepts of international law by Hamas in their massacre, torture, rape and kidnapping of Israeli civilians.

They would have demanded that Hamas immediately release its hostages, and insisted that the world pressure not just Hamas but its allies and enablers in Egypt, Qatar, and Iran, to ensure the safe and unconditional release of the hostages. They would have insisted, publicly and consistently, that Hamas surrender.

And when Hamas would have then, inevitably, refused to give in, the IHL community would have denounced Hamas's failure to wear uniforms to allow Israel to distinguish enemy fighters from civilians, its intentional placing civilians at risk, its obstruction and theft of humanitarian aid, and, not least, its continuing to hold, torture, and rape hostages.

An IHL community actually devoted to IHL would also of course have had concerns about Israeli actions. They would have reviewed Israeli military responses in Gaza to see if they met the proportionality standard. That standard is quite vague, but surely IHL scholars, activists, and organizations could have contributed measured analyses and occasional criticism of Israeli actions. They also could properly have insisted that to the extent Israel took control of territory that ensured that the civilian population was properly fed and sheltered, consistent with international law.

None of this happened, of course. The IHL community, writ large, had been taken over by the far left, and for a variety of interrelated ideological reasons IHL activists are hostile to Israel's very existence, and do not believe that Israel has any right to defend itself, including from Hamas terrorism. Therefore any civilian casualties caused by Israeli military action were unacceptable.

As a result of these ideological biases, the first reaction of the IHL community to 10/7 ranged from rather tepid criticism of Hamas to exculpatory language suggesting that Hamas's actions on October 7 were understandable as an effort at so-called de-colonization. Either way, IHL people and organizations called for an immediate cease-fire and more general Israeli restraint, even though legally speaking Israel and every right to go after Hamas.

Things just spiraled downward from there. False accusations of genocide, intentional targeting of civilians, intentional starvation of Gazans, and more have been the coin of the realm the IHL world. Meanwhile, Hamas has largely been given a pass, despite the fact that its terrorist forces violate IHL every single time they take military action.

Two particularly absurd manifestations of the IHL world's anti-Israel bias stick out in my mind. First, there was the condemnation of Israel's pager operation against Hezbollah. For months, IHL activists had been alleging that at best Israel was not narrowly targeting Hamas terrorists and at worst was engaging in genocidal indiscriminate bombing. So you think these groups would rejoice and praise Israel when it managed to kill or wound three thousand enemy terrorists with almost no civilian casualties. Instead, various IHL organizations and prominent individuals accused Israel of terrorism.

After that, we may have reached the reductio ad absurdum a few months ago, when Amnesty International came out with a report accusing Israel of genocide. The report acknowledged that Israel's actions didn't really seem to meet what it called the prevailing "overly cramped interpretation of international jurisprudence" that would "effectively preclude" finding that Israel committed genocide. Amnesty's solution to that quandary, since it really, really wanted to accuse Israel of genocide, was to make up a new definition of genocide that would encompass Israel's actions.

There were a lot of failures on before 10/7, on 10/7 and thereafter. But as a law professor no failure hits home like the willingness of people around the world who claim to be devoted to international humanitarian law to ignore, distort, and pervert the law, lest it be used to protect Jews and condemn their enemies.

[Author's note: This post is based on a speech I gave at a memorial for the Bibas children, Shiri Bibas, and Oded Lipfshitz on February 26, 2025, at George Mason University's Antonin Scalia Law School. The event was sponsored by the Jewish Law Students Association.]

Expressive Discrimination: Universities' First Amendment Right to Affirmative Action — Part 1

Maybe some universities can continue to do race-based affirmative action, even after SFFA v. Harvard.

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My article Expressive Discrimination: Universities' First Amendment Right to Affirmative Action has finally been 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! I'll reproduce the Abstract and Introduction today, and continue to post the rest of the article next week. In the meantime (and especially if you want all the juicy footnotes), read the whole thing.

A note before starting: One of the earliest contributions to this literature was my co-blogger David Bernstein's 2001 article in the William & Mary Bill of Rights Journal. Another was David Geary's 2004 student note in The University of Chicago Law Review. Aside from that, there hasn't been much. A couple of articles were written more or less simultaneously with (and independently from) my article: Kent Greenfield's 2024 article in the American Journal of Law & Equality, and Part III of Taylor Barker's 2024 essay in the Stanford Law Review.

Abstract

In the wake of Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, affirmative action proponents should pursue a First Amendment approach. Private universities, which are speaking associations that express themselves through the collective speech of faculty and students, may be able to assert an expressive association right, based on Boy Scouts of America v. Dale, to choose their faculty and students. This theory has been recently strengthened by 303 Creative LLC v. Elenis.

I discuss various complexities and counterarguments: (1) Race is not different from sex or sexual orientation for purposes of the doctrine. (2) The market context may not matter, especially after 303 Creative. (3) The conditional-federal-funding context does give the government more power than a simple regulatory context; the government will still be able to induce race-neutrality by the threat of withdrawing federal funds, but the unconstitutional conditions doctrine precludes draconian penalties such as withdrawing all funds from the entire institution based only on affirmative action in some units. (4) This theory doesn't apply to public institutions.

I also explore the potential flexibilities of this theory, based on recent litigation. The scope of the Boy Scouts exception might vary based on (1) what counts as substantial interference with expressive organizations, (2) what counts as a compelling governmental interest, and, most importantly, (3) what it takes for activity to be expressive.

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Fifth Circuit Panel Issues 24-Page Unpublished Opinion In Favor Of Planned Parenthood and Reverses Judge Kacsmaryk⁩

Is this opinion a "one and done" decision to evade en banc review?

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There is a long-running debate in FedCourts circles about unpublished opinions. These decisions, by their terms, are not precedential. Yet, lawyers, and some courts, will cite unpublished opinions as precedents. The line between published and unpublished is fuzzy at best. And, as I understand things, if one judge on a panel requests it, an opinion will be published.

There is another element of unpublished opinions that is less understood: because unpublished opinions are not precedent, there is less of a need to review them en banc. To be clear, the en banc court can review en unpublished opinion, but because the decision is not precedential, it may not be considered a good use of the court's resources.

In 2022, this issue arose on the Fifth Circuit. A panel of the Fifth Circuit (Smith, Elrod, Oldham) ruled in favor of the plaintiff in Sambrano v. United Airlines. The panel  issued an unpublished opinion. Judge Smith dissented on the merits. But he also objected to the majority's decision to issue an unpublished opinion:

I call this the "one and done" method of decisionmaking. Two judges randomly selected for a panel decide that—for whatever reason—a particular result is correct but can be achieved only by divorcing the opinion from the common-law tradition, by evading precedent, and by obscuring the path in the shroud of an unpublished per curiam opinion. The obvious result is to foster whatever happens to be the "Blue Plate Special" cause on a given day.

Judge Smith hints that the decision to use an en banc opinion was designed to evade en banc scrutiny.

The fact that an opinion is unpublished furnishes just another reason to vote to deny en banc scrutiny. But by today's ruling, the Good Ship Fifth Circuit is afire. We need all hands on deck.

At the time, I wrote "Judge Smith shot up a flare over the Gulf of Mexico." I will need to amend that post to the "Gulf of America."

Any member of the panel could request that opinion should be published. Judge Smith could have made that request, but he (apparently) didn't. There is a bit of game theory behind this move. By Smith not voting to publish the opinion, he ensures that a decision he thinks is erroneous will not be a circuit precedent. Had he voted to publish the opinion, and made the decision a precedent, that would have made en banc review more likely. But this latter option creates the risk that en banc review is denied, and there is now an entrenched precedent.

With the benefit of hindsight, en banc review was denied in Sambrano by a 13-4 vote. Judge Smith dissented from the denial of rehearing en banc. He lamented a 1996 rule change that made it easier to designate opinions as non-published. And he doubled down on his criticism of the majority:

Our concern was prescient. As I say in my panel dissent, the "obvious result" of the majority's decision is to foster today's "'Blue Plate Special' cause" without committing to sweeping legal changes that may not always produce the same outcomes.21 This "'one and done' method of decision-making"22 is made possible only by abusing the availability of unpublished opinions―a device that the full court has now fully validated by denying re-hearing.

Judge Smith worried that other rogue panels can avoid en banc review by marking the opinion as unpublished:

And by a lopsided vote, the en banc court declines to lift a finger. After today, a future panel that wishes to use the "one and done" method of decisionmaking can feel more secure in thinking there will be no consequences.

I think we have found just such a panel.

Yesterday, a Fifth Circuit panel issued a twenty-four page unpublished decision. The panel reversed a judgment by Judge Matt K, which found that Planned Parenthood was liable for $2 billion in damages. This issue was complex, and of great significance. There was every reason to publish it. But it wasn't. Judges Barksdale, Southwick, and Graves were on the panel. Though, on paper, this panel has two Republican-appointed judges, Barksdale and Southwick consistently vote with the liberal bloc on the en banc court. When I read this decision, my immediate thought was a "one and done" move  designed to shield the opinion from en banc review.

I would expect activity before the en banc court soon.

Update: Is it possible for the en banc court to vacate the panel's decision to issue an unpublished decision, and then vacate that precedential opinion. This approach would send a clear signal about "one and done" panel opinions. Even judges who agree with the panel on the merits should disfavor this evasion principle.

Prosecutors

Should the Charges Against Mayor Adams Now Be Dismissed With Prejudice … Because of Prosecutorial Misconduct?

That's the powerful argument that Mayor Adams's lawyers are making, citing (among other grounds) the leaking of a resignation letter containing "the wildly inflammatory and false accusation that Mayor Adams and his counsel had, in essence, offered a quid to the Department of Justice in exchange for the quo of dismissal."

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I've been following the Justice Department's pending motion to dismiss corruption charges against Mayor Adams, focusing on the question of whether the dismissal involves some sort of illegal quid pro quo.  The motion seeks to dismiss the charges without prejudice. Yesterday, the Mayor's skilled defense attorneys filed a new motion to dismiss the charges—with prejudice—based on alleged prosecutorial misconduct in leaking internal Justice Department correspondence critical of the dismissal. The Mayor's new motion raises important issues and highlights why, in my view, the existing motion to dismiss has become even more easily defensible.

To set the stage: On this blog, we've had a debate about the dismissal motion that I think (to some degree) tracks the national debate in New York and elsewhere about the dismissal motion. To simplify,  initially there was a wave of outrage about an alleged quid pro quo in the dismissal motion (as suggested in the resignation letter by Acting U.S. Attorney Danielle Sassoon). But faced with sworn denials from lawyers on both sides of the case, that outrage seems to have morphed into concern about whether the dismissal should be with or without prejudice.

Illustrating that transition from the debate here on this blog, VC readers will recall two initial posts by David Post asserting that there was an improper quid pro quo in the dismissal, the first one linking to a full copy of the Sassoon letter and the second one developing her allegation. Josh Blackman responded, and then David Post replied, reasserting his quid pro quo position. I then supported Josh Blackman's view by arguing that motion to dismiss was easily defensible and, in a second post, that there was no quid pro quo. David Post then rejoined with a post entitled: "No Quid Pro Quo. So?" My reading of this post (as suggested by its title) is that David has retreated to the position that whether there was, in fact, a negotiated quid pro quo is unimportant because things will implicitly shake out in way that resembles quid pro quo. I've seen similar arguments elsewhere. And another recent post (relating views of Professor Ryan Snyder) notes the debate over the quid pro quo and then proceeds on the assumption that there was a quid pro quo—without attempting to defend that characterization.

Yesterday's motion by Mayor Adams highlights an overlooked feature of the trajectory of this debate: the mere fact that government prosecutors have leaked an internal allegation of an improper "quid pro quo" has been highly and unfairly damaging to Mayor Adams. I was going to try and summarize the motion's allegations. But it seems best to begin by simply quoting from the motion's powerful introductory paragraph:

Following the Department of Justice's long-overdue decision to dismiss the case against Mayor Adams, someone within the government leaked a February 12, 2025 letter from the former interim U.S. Attorney for the Southern District of New York to the Attorney General. The leaked letter disclosed, among other things, the former interim U.S. Attorney's self-proclaimed confidence in Mayor Adams's guilt; the fact that Southern District prosecutors were planning to re-indict Mayor Adams, including on a new and equally baseless obstruction charge; and the wildly inflammatory and false accusation that Mayor Adams and his counsel had, in essence, offered a quid to the Department of Justice in exchange for the quo of dismissal. The disclosure of this letter to the press was part of an extraordinary flurry of leaked internal Justice Department correspondence that included memoranda from the Acting Deputy Attorney General to the Southern District and an unhinged resignation letter by one of the former line prosecutors on this case. In addition to violating Mayor Adams's fundamental constitutional rights and ability to receive a fair trial, the government's leaks violated numerous statutory and court rules, including the Justice Department's own longstanding policies aimed at curbing prosecutorial misconduct.

The Mayor's new motion goes on to support these allegations with detailed argumentation. I am not endorsing the motion but want to focus here on the quid pro quo issue. Read More

Free Speech

Protesters Disrupt Stanford Class

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Stanford reports:

On Tuesday afternoon, Feb. 25, several individuals disrupted the Democracy and Disagreement course in Cemex Auditorium to protest a guest speaker, former Secretary of the Treasury Larry Summers, who was there to debate with the economist Emmanuel Saez on the idea of a wealth tax.

The protestors were not Stanford students.

This behavior violates university policy and will not be tolerated. The Department of Public Safety collected information from the disruptors and is referring the information to the Santa Clara County District Attorney's Office. We are taking steps to ban these individuals from our campus, which is private property. We extend the university's apologies both to the speakers and to the students who were in attendance.

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Free Speech

More on Free Speech on Campus, Title VI, and Anti-Israel Speech

"[I]n seeking to hold Cooper Union liable for [students'] expression, [plaintiff] cannot help but say the quiet part loud: sweeping otherwise-protected political expression into the hostility analysis will create pressure on institutions 'to suppress speech to ensure compliance with Title VI,' causing 'regulated entities to adopt restrictive policies in an effort to avoid liability' for a hostile environment."

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Judge John Cronan Feb. 5 decision in Gartenberg v. Cooper Union declined to dismiss plaintiffs' claims alleging a hostile educational environment for Jewish students at Cooper Union (a college in New York), but held that those claims could not be based on certain political speech that the college had tolerated. Plaintiffs moved to reconsider, and in a new decision Tuesday, Judge Cronan stood by his earlier position; an excerpt:

[Gartenberg asks the Court to] revise its Opinion and Order to hold Cooper Union potentially liable under Title VI for "all incidents of harassment alleged in the Complaint, including those where the harassment was accomplished through political speech."

Gartenberg does not specify which additional allegations of "harassment" she believes the Court misclassified as protected speech on matters of public concern. The Court therefore assumes that her Motion seeks to have the Court recast some or all of the following incidents as actionable harassment under Title VI and the First Amendment: (1) a demonstration by pro-Palestinian students on a public sidewalk adjacent to the Foundation Building concerning the Israeli-Palestinian conflict; (2) the distribution of fliers supporting the Palestinian cause; (3) a controversial "art display" advocating violent resistance to "colonialism"; (4) a speech by Dr. Omer Bartov titled, "The Never Again Syndrome: Uses and Misuses of Holocaust Memory and the Weaponization of Language"; (5) an on-campus "vigil" organized by a pro-Palestinian student organization to "Honor Palestinian Martyrs"; (6) a flier inviting members of Cooper Union's community to "come grieve and honor all those killed by decades of Israeli occupation and imperial violence"; (7) a statement published in Cooper Union's student newspaper by the school's Muslim Student Association that characterized "the account of the Jewish students being trapped in the library as 'a false narrative'"; (8) a statement published in same issue of the school newspaper by Cooper Union's Black Student Union, which "declared solidarity with 'the Palestinian struggle against colonialism and genocide' and claimed that 'the conflation of Zionism and Judaism' is 'manipulative, exploitive and racist'"; and (9) an "alumni letter" signed by Cooper Union students, faculty members, and administrators that expressed support for the Palestinian cause and, among other things, stated that "[i]t is historical malfeasance for the administration to issue a statement of condemnation of Hamas's October 7th attacks without acknowledging the context in which these attacks took place."

The Court declines to amend its First Amendment analysis to expose Cooper Union to possible civil liability based on these incidents…. Gartenberg argues that under Healy v. James (1972), a lesser degree of First Amendment protection for political speech is warranted in the higher-education context due to the "'special characteristics' of schools."

But Healy said exactly the opposite: "[T]he precedents of [the Supreme Court] leave no room for the view that, because of the acknowledged need for order, First Amendment protections should apply with less force on college campuses than in the community at large. Quite to the contrary, '[t]he vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.'"The Supreme Court in Healy, therefore, made clear that "[t]he college classroom with its surrounding environs is peculiarly the 'marketplace of ideas,'" and stressed its decision was "break[ing] no new constitutional ground in reaffirming this Nation's dedication to safeguarding academic freedom" on college campuses.

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