The Volokh Conspiracy

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

From today's opinion by Judge Myron Thompson (M.D. Ala.) in Yellowhammer Fund v. Attorney General; he is denying the defendant's motion to dismiss, rather than issuing an injunction, but in the process he expresses definite views about the unconstitutionality of the Alabama AG's actions:

At its core, this case is simply about whether a State may prevent people within its borders from going to another State, and from assisting others in going to another State, to engage in lawful conduct there.

In Dobbs v. Jackson Women's Health Org., the United States Supreme Court held that the U.S. Constitution no longer protects a right to abortion, allowing States to regulate and restrict abortions before viability. In Alabama, it is now a felony for anyone to perform or attempt to perform an abortion absent a medical emergency….

Although the plaintiffs may no longer legally coordinate abortions in Alabama, they wish to help the people they serve access abortions in States where such abortions are lawful. The plaintiffs have not done so because Alabama's Attorney General, defendant Steve Marshall, has threatened to prosecute anyone who helps arrange abortions in other States. The Attorney General has publicly declared that Alabama law prohibits anyone from assisting or otherwise facilitating an out-of-state act that, if performed in Alabama, would constitute a crime, including performing or attempting to perform abortions. The plaintiffs would all resume providing assistance to people seeking abortions if not for the Attorney General's threats….

The judge concluded that the threatened prosecutions would violate the right to travel:

[Plaintiffs' right to travel claim] will not be dismissed because (a) the right to travel includes the right both to move physically between States and to do what is lawful in those States, and (b) prosecuting those who facilitate lawful out-of-state abortions, as the Attorney General threatens to do, would violate that right….

And the judge also agreed with plaintiffs that "enforcing the Attorney General's reading of Alabama's criminal laws, including those punishing inchoate offenses and codifying accomplice liability, would violate the freedom of speech":

Relying on the First Amendment, the plaintiffs contend that the Attorney General cannot prosecute or threaten to prosecute those who help others obtain lawful out-of-state abortions for inchoate crimes, such as conspiracy and solicitation, as accomplices, or otherwise. They submit that Alabama's criminal laws cannot authorize the Attorney General to act on his threats without creating an unconstitutional content-based restriction on speech, at least as applied to the speech they and their staff wish to engage in: informing their clients about the laws of other States, offering counseling services about treatment options outside Alabama, and providing material support to clients seeking abortions in States where they are lawful.

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From an e-mail just circulated by President Sally Kornbluth:

Dear members of the MIT community,

The war in the Middle East continues to cause anguish and conflict here at MIT. Some have expressed their views through the encampment on the Kresge lawn. My team and I, as well as many faculty members, have engaged in extensive conversation with these students and have not interfered as they have continued their protest. However, given developments over the past several days, I must now take action to bring closure to a situation that has disrupted our campus for more than two weeks.

My sense of urgency comes from an increasing concern for the safety of our community. I know many of you feel strongly that the encampment should be allowed to continue indefinitely – that the protest is simply a peaceful exercise of the right to free expression, and that normal rules around campus conduct shouldn't apply in the face of such tragic loss of life in Gaza.

But I am responsible for this community. Without our 24-hour staffing, students sleeping outside overnight in tents would be vulnerable. And no matter how peaceful the students' behavior may be, unilaterally taking over a central portion of our campus for one side of a hotly disputed issue and precluding use by other members of our community is not right. This situation is inherently highly unstable.

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Today is Holocaust Remembrance Day (Yom HaShoah). In a fitting tribute, a group of federal judges have announced they will no longer hire law clerks who choose to attend Columbia University (not just the law school) starting with the Fall of 2024. The leaders of the letter, as you might expect, are Judge James Ho of the Fifth Circuit and Judge Lisa Branch of the Eleventh Circuit, along with Judge Matthew Solomson of the Court of Federal Claims.

The letter begins:

Since the October 7 terrorist attacks by Hamas, Columbia University has become ground zero for the explosion of student disruptions, anti-semitism, and hatred for diverse viewpoints on campuses across the Nation. Disruptors have threatened violence, committed assaults, and destroyed property. As judges who hire law clerks every year to serve in the federal judiciary, we have lost confidence in Columbia as an institution of higher education. Columbia has instead become an incubator of bigotry. As a result, Columbia has disqualified itself from educating the future leaders of our country.

And concludes:

Considering recent events, and absent extraordinary change, we will not hire anyone who joins the Columbia University community—whether as undergraduates or law students—beginning with the entering class of 2024.

Justice William Brennan refused to hire law clerks from Harvard Law School because he disliked criticisms of the Supreme Court by some of its faculty. The objective of our boycott is different—it is not to hamper academic freedom, but to restore it at Columbia University.

People may not be familiar with Justice Brennan's practice. Owen Fiss discusses it in his book, Pillars of Justice:

The letter is also signed by Judges Alan Albright, David Counts, James W. Hendrix, Matthew J. Kacsmaryk, Jeremy D. Kernodle. Tilman E. Self, III, Brantley Starr, Drew B. Tipton, Daniel M. Traynor, and Stephen Alexander Vaden.

I recognize that many (most?) judges do not agree with the Ho/Branch boycott model. Indeed, as far as I know, Judge Duncan did not join the boycott against Stanford! Other than Judge Solomson, I do not see any Jewish judges who have joined this letter. There is still time. And I don't think this program needs to be limited to federal judges. As Universities appease the occupiers with hints at BDS, leaders of other industries should publicly adjust hiring practices accordingly.

State Constitutional Law

Wisconsin Court Upholds Ban on Adoption by Parent's Nonmarital Partner, Debates State Constitutional Interpretation

How should courts interpret state constitutional provisions that read, "All people are born equally free and independent, and have certain inherent rights: among these are life, liberty and the pursuit of happiness; to secure these rights, governments are instituted, deriving their just powers from the consent of the governed."

Eugene Volokh | 5.6.2024 1:42 PM

From A.M.B. v. Circuit Court, decided last week by the Wisconsin Supreme Court, in a unanimous opinion written by Justice Rebecca Grassl Bradley; the opinions are long, so these are only short excerpts:

A creature of statute, adoption confers legal rights and duties on adopted children and their adoptive parents. The legislature has made policy choices regarding the circumstances under which children may be adopted and by whom. A.M.B. is the biological mother of M.M.C. and wishes to have her nonmarital partner, T.G., adopt M.M.C. Under the adoption statutes, T.G. is not eligible to adopt M.M.C. because T.G. is not A.M.B.'s spouse.

A.M.B. and T.G. allege the legislatively drawn classifications violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution in denying T.G. the right to adopt M.M.C. and in denying M.M.C. the right to be adopted by T.G. Because the adoption statutes do not restrict a fundamental right or regulate a protected class, we consider whether any rational basis exists for the legislative limits on eligibility to adopt a child. Among other legitimate state interests, promoting stability for adoptive children through marital families suffices for the statutes to survive this equal protection challenge; therefore, we affirm the circuit court….

The Supreme Court has declared, "equal protection is not a license for courts to judge the wisdom, fairness, or logic of legislative choices." Because the legislative classifications restricting adoption do not infringe a fundamental right or affect a protected class, we consider only whether any rational basis exists for the legislative limits on eligibility to adopt a child. Because the state has a legitimate interest in promoting stability for adoptive children through marital families, petitioners' equal protection challenge to Wisconsin's adoption statutes fails.

Justice Rebecca Frank Dallet concurred (joined by Justices Ann Walsh Bradley and Janet Protasiewicz), arguing for a broader reading of the Wisconsin Constitution's Article I, Section 1:

State Constitutional Law Law & Government

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In February, I wrote about a Fourth Circuit decision in Doe v. Sidar, which discusses one-sided pseudonymity. Today, I see that Google received yet one more request that it remove that post from its indexes, and thus vanish it from search results. That's the fourth attempt so far aimed at that particular post; I've written about the first three here and here. The request's theory is that the post violated the copyright in a tumblr post, https://www.tumblr.com/case49news/745091056157196289/fourth-circuit-on-one-sided-pseudonymity-in-sexual:

Free Speech Copyright Right of Access

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The Spring 2024 issue of Liberties features an essay, "Curricular Trauma" by Len Gutkin, on the decline in the humanities, with a particular focus on the study of literature. The cause of this decline is "overdetermined"; "anyone who claims the crisis is univariate is propagandizing." There are external pressures that have constrained the humanities, to be sure, but there are also problems that have festered within.

One development Gutkin discusses is how traditional areas of study have been supplanted by politicized subfields (perhaps in an effort to make the study of literature more "relevant").

Traditionally, English literary studies has been organized in two principal ways: by period ("Elizabethan," "nineteenth century") and by genre ("poetry," "the novel"). Often but not always, a faculty position consisted of some combination of period and genre ("We seek a scholar of the English literature of the eighteenth century with particular expertise in its poetry"). There are a few murkier designations, too, such as "modernism" and "Romanticism," which name both periods and aesthetic tendencies. Finally, there are, or there used to be, a handful of single authors considered so important that they constitute fields in themselves: in English, Shakespeare first of all; then Chaucer, Milton, and, distantly, Spenser. (Of these, only Shakespeare still survives as a hiring category.) While other major figures — Dickens or Wordsworth or George Eliot or T.S. Eliot, say, and more recently Thomas Pynchon or Toni Morrison or John Ashbery — have long enjoyed robust scholarly communities, there have almost never been faculty positions devoted exclusively to them. Finally, there were the small number of subfields proper, which tended to demarcate minority literatures in a particular period (like "twentieth-century African American literature").

This was a broadly if never entirely coherent system, with rough parallels in other humanistic fields. But in the last decade, it broke down almost completely. The rudiments of the old categories persisted — or at least some of them did; others, like "modernism," flickered out of existence entirely — but the real energy was in the subfields, like "ecocriticism." The proliferation of subfields can look bewildering and baroque to an outsider, both weirdly random and oddly specific. A perusal of some recent job advertisements gives the flavor. Skidmore seeks a medievalist "with research and teaching experience in the field of premodern critical race studies," especially one who might bring "an intersectional approach." The University of Saint Joseph, in Connecticut, wants to hire a scholar of Renaissance literature who can also teach "gender studies, postcolonial studies, and/or social media writing." Colby College needs a scholar of pre-1800 British literature (a capacious swath!) and is "especially interested in candidates whose work engages the environmental humanities or premodern critical race studies." (Perusing these ads, one notices how common is the "or" linking two utterly disparate subfields, as though the hiring committee couldn't help but admit to the arbitrariness of the whole business.) Santa Clara University would like to hire a medievalist or early modernist with expertise in "culture, race, social justice, and Digital Humanities." Vanderbilt is looking for an English professor "whose research engages the study of race, colonization and decolonization, diaspora, and/or empire"; period is unspecified, but "substantive investments in periods prior to 1900" are welcome.

The Vanderbilt posting represents the completion of the takeover of the field by the subfields. Period is left vague; genre goes completely unmentioned. Both are replaced by a list of linked historical topics. The uninitiated might wonder: Why is this a job in literature? The answer has to do with the political commitments, implicit in some cases and explicit in others, of the subfields, commitments that are much less obviously entailed by the older period or generic categories. This is not to imply that "race, colonization and decolonization, diaspora, and/or empire" are somehow invalid fields of academic inquiry. They are urgent topics for political, sociological, and historical analysis. But they are also, in the context of a literary studies department, frank political signals. Less sophisticated than Vanderbilt, Santa Clara gives the game away by including "social justice" in its litany of subfields.

One specific area he discusses is ecocriticism, and the tendency within the field to focus on activism at the expense of actual literary analysis or engagement with text.

"It seems like a little bit of a falling off," [John] Guillory said on American Vandal. "It's very hard to say what literary study is doing on behalf of the climate crisis by talking about a particular poem by Wordsworth. Not that there's not a relation between Wordsworth and the environment, because we rediscovered the whole subject of nature in Romantic literature by way of the climate crisis. But what is it doing? What is that criticism doing for the climate crisis?" Here we must admit that the concerns of [Hilton] Kramer and Co. had a certain prescience. Questions like Guillory's can be asked of almost all of the currently fashionable subfields claiming some version of [Caroline] Levine's "affirmative instrumentality." Either the theoretical frame is inadequate to the political mission — as in ecocriticism — or else an achievable mission is bathetically disproportionate to the theoretical armature in which it is cloaked. My favorite recent instance of the latter is the professor of geography at a SUNY school who offered a lecture on "Decolonizing your Garden." Attendees would "learn to enjoy the benefits of a chemical-free garden using local hardy native species." The Home Depot near me offers the same service, although they don't call it decolonization.

He closes with a warning about the tendency to allow fear of trauma to constrain literary study (as if important artistic works should not have an impact).

When students and faculty converge on a conviction that large swathes of literature and art are too poisonous to approach, the disciplines undergirding the various subfields will become anemic indeed. How can you persuade people about the essential importance of art if you make yourself complicit in their fear of it? Skepticism is one of the habits of mind that the humanities classroom is designed to inculcate. But horror, revulsion, the easy and self-congratulatory condemnation of the aesthetic artifacts of the past? The discovery of "trauma" in the contents of the syllabus? The transformation of the representational concerns of the project of canon-revision into therapeutic concerns about safety and harm is not the only face of the crisis of the humanities, but surely it is one of them.

Flash back to September 2009. President Obama was advocating for his health care reform during a joint session of Congress. He sought to assure the American people that the Affordable Care Act would not provide coverage for illegal immigrants.

Obama: There are also those who claim that our reform efforts would insure illegal immigrants. This, too, is false. The reforms I'm proposing would not apply to those who are here illegally.

Representative Joe Wilson of South Carolina famously yelled out, "You lie."

Obama responded, "It's not true." The Center for American Progress offered a helpful fact-check, finding that "Every proposal on the table explicitly disqualifies illegal immigrants from receiving federal benefits."

President Obama also said that the ACA did not raise taxes.

Now flash forward to June 2012. In the span of two weeks, the Obama administration announced DACA and Chief Justice Roberts upheld the Affordable Care Act. That was a pretty impressive thirteen day run! So much for that no-tax promise. But, in keeping with his other promise, in August 2012, the Obama administration expressly excluded DACA recipients from the ACA, and CMS definition of "lawfully present." Though there were several challenges to DACA, none gained much steam.

Two years later, in November 2014, the Obama Administration announced DAPA. That executive action faced a serious legal challenge by the Texas Attorney General, and we saw one of the first important forum-shopped nationwide injunctions. Throughout the litigation, the Obama administration insisted that DAPA, and DACA, did not actually confer benefits on recipients. Rather, it was merely an exercise of "prosecutorial discretion." (Stop me if you've heard this before). Sure, DAPA, and DACA, would have granted "lawful presence" to these aliens, and thus allowed them to work. But that was all because of regulations from the Reagan administration. (Stop me if you've heard this before.) Lawyers for the executive branch insisted that DAPA, and DACA recipients would not be eligible for health insurance benefits under the Affordable Care Act. (Stop me if you've heard this before.)

Fast forward to the present. The Biden Administration has "reconsidered" the Obama policy from August 2012, and expanded ACA coverage to DACA recipients:

In previously excluding DACA recipients from the definition of "lawfully present," we had posited that other definitions of lawful presence should not be used as a touchstone for eligibility if the program in question was not established with the explicit objective of expanding access to health insurance affordability programs. However, given the broad aims of the ACA to increase access to health coverage, we now assess that this rationale for excluding certain noncitizen groups from such coverage was not mandated by the ACA, and it failed to best effectuate congressional intent in the ACA. Additionally, HHS previously reasoned that considering DACA recipients eligible for insurance affordability programs was inconsistent with the relief that the DACA policy afforded. However, on further review and consideration, it is clear that the DACA policy is intended to provide recipients with a degree of stability and assurance that would allow them to obtain education and lawful employment, including because recipients remain lower priorities for removal. Extending eligibility to these individuals is consistent with those goals. There also was no statutory mandate to distinguish between recipients of deferred action under the DACA policy and other deferred action recipients.

Now, DACA recipients will receive subsidies on an exchange established by the state (which also includes the federal exchange, thank you again John Roberts). You can read the 145-page rule. But none of it will matter. Chief Justice Roberts (thanks!) has already signaled that he is not willing to stop DACA because reliance, and we know the Chief will never let anyone lose health care coverage. Twelve years later, Obama and Biden will simply get away with it.

When all is said and done, President George W. Bush's decision to appoint Roberts to fill Chief Justice Rehnquist's seat will likely be Bush's most consequential decision--more important than anything he did after 9/11, in Iraq, or Afghanistan. All of those actions have faded into the rear-view mirror, but we are still stuck with the Chief. And it was a decision that Bush made under tight time constraints with (perhaps) the understanding that Harriet Miers would be the backup option.

In any event, who lied? DACA and ACA have come full circle.

From Judge Frank Easterbrook's opinion Friday in Doe v. Loyola Univ. Chicago, joined by Judges Ilana Rovner and Amy St. Eve, following up on an opinion from a week before in Doe v. Indiana Univ.:

Loyola University Chicago expelled John Doe after concluding that he had engaged in sexual activity with Jane Roe, a fellow student, without her properly obtained consent. Contending that the University discriminates against men, Doe sued under Title IX of the Education Amendments Act of 1972, 20 U.S.C. §§ 1681–88, plus Illinois contract law….

[1.] [A]lthough anonymity may be common in Title IX suits, it must be justified in each case. "Title IX [does not create an] easement across the norm of using litigants' names." Doe v. Indiana University (7th Cir. 2024). Complaints normally must name all parties. Fed. R. Civ. P. 10(a). Exceptions such as the use of initials for minors, Fed. R. Civ. P. 5.2(a)(3), may apply to some first-year college students, but Doe was an adult when he filed this suit. "[J]udicial proceedings, civil as well as criminal, are to be conducted in public." "Identifying the parties to the proceeding is an important dimension of publicness. The people have a right to know who is using their courts." "Secrecy makes it difficult for the public (including the bar) to understand the grounds and motivations of a decision, why the case was brought (and fought), and what exactly was at stake in it." … [O]nly "exceptional circumstances" justify the use of a fictitious name for an adult ….

Educational institutions that receive federal funds must not disclose students' records except under specified circumstances. 20 U.S.C. § 1232g(b). But this statute does not apply to plaintiff, who is not an educational institution and may disclose his own records. More: a federal regulation, 34 C.F.R. § 99.31(a)(9)(iii)(B), authorizes educational institutions to disclose student records in the course of litigation once a student sues the educational institution.

Free Speech Right of Access

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Generally speaking, plaintiffs who want to use the civil justice system must sue in their own names, even when that might damage their reputations and professional prospects. Someone suing an ex-employer, for instance, may worry that future employers might not want to hire a known litigious employee; or he may expect that the employer will argue that he was fired for sexual harassment, theft, incompetence, etc., allegations that will then be connected with his name (even as he argues that they are false and that the real reason for firing was, say, race discrimination). Likewise, a libel plaintiff may worry that the lawsuit will just further amplify the libelous allegations. But that usually doesn't suffice for pseudonymity, unless the plaintiff can show a serious (more than merely speculative) risk of physical harm stemming from being identified, or the case involves a purely legal rather than a factual challenge.

But when the case involves controversial topics that might arouse public disapproval, cases are split. For instance, a recent case rejected pseudonymity where plaintiff argued that his challenge to Twitter policies might draw attacks on his children from "unbalanced people in the world" who "hate President Trump supporters." Another rejected pseudonymity for plaintiffs objecting to a school's "Black Lives Matter" posters. But other cases allowed pseudonymity for challenges to school board policies on teaching views associated with Critical Race Theory, or on gender identity. And cases are split as to whether challenges to vaccine mandates may proceed pseudonymously.

Now let's throw in another factor: What if the case is a challenge to a university disciplinary proceeding? When it comes to challenges to sexual misconduct findings under Title IX, most courts have allowed pseudonymity (see Appendices 4a & 4b of The Law of Pseudonymous Litigation), though the Seventh Circuit has just strongly disagreed with that majority view. Should pseudonymity be more broadly allowed in all university disciplinary proceedings, whether or not they involve sexual misconduct?

One past case had indeed allowed pseudonymity where university students had sued over having been disciplined for engaging in actions that were supposedly "racist, anti-Semitic, homophobic, sexist, and hostile to people with disabilities." And now we see something similar in a high-profile case arising out of the protests, Doe v. Columbia Univ. (S.D.N.Y.).

In Doe v. Columbia, the Complaint alleges (recall, as always, that these are allegations):

This action arises out of the egregious miscarriage of justice against Plaintiff, a Jewish student at Columbia University and former Israeli Defense Forces soldier, through the University's biased misconduct proceedings, which rushed to silence Plaintiff and brand him as a criminal for harmlessly exercising his freedom of expression in opposition to a pro-Hamas pro-Palestine rally, while turning a blind eye and refusing to take action against the rally organizers, who have called for violence and destruction of an entire legal state, have called for the genocide of the Jewish people generally, and have specifically threatened Jewish students on Columbia's campus….

On January 17, 2024, Plaintiff attended one of the unsanctioned pro-Hamas pro-Palestine rallies on campus, and, as a harmless expression of his speech, he sprayed into the air a novelty, non-toxic "fart" spray named "Liquid Ass" and "Wet Farts" which he purchased on Amazon for $26.11.

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5/6/1776: Virginia Declaration of Rights by George Mason is published. Thomas Jefferson relied on this document when drafting the Declaration of Independence.

Legacy preferences in college admissions have come under increasing criticism in recent years, especially in the wake of the Supreme Court's decision curbing the use of racial preferences in SFFA v. Harvard, last year. Sociologist Roderick Graham and I recently debated this issue at the Divided We Fall website, which hosts debates on various public policy issues.

I opposed legacy preferences, while Prof. Graham defended them. I appreciate Graham's willingness to take on the difficult task of defending this increasingly unpopular policy. I hold various unpopular views, myself, and know it isn't always easy for speak out for such things. Nonetheless, I wasn't persuaded by his points.

Here's an excerpt from my intro statement:

I rarely agree with Democratic Representative Alexandria Ocasio-Cortez, but she was right to denounce legacy preferences in college admissions as "affirmative action for the privileged." They are unjust for much the same reasons as racial and ethnic preferences are. In both cases, some applicants are rewarded, while others are punished for arbitrary circumstances of ancestry that they have no control over. These preferences have no connection to academic ability or other skills that might make them better students or better members of the university community. The fact that your parents are Black, White, or Hispanic says nothing about how good an applicant you are. And the same goes for whether or not your parents went to Harvard….

In some ways, legacy preferences are worse than racial preferences for historically disadvantaged minority groups. The former cannot be defended on the rationale that they are somehow making up for historic injustices. They also cannot be justified on the grounds that they promote "diversity"–the rationale the U.S. Supreme Court rightly rejected last year as justification for racial preferences. Scions of elite-college graduates are neither a historically oppressed minority nor a source of educationally-valuable diversity….

The usual rationale for legacy preferences is that they increase alumni donations. This might be a defensible argument for profit-making institutions whose primary goal is to make money. But most universities are public or nonprofit institutions that—at least in principle—are supposed to prioritize other objectives, such as promoting education and research. Legacy preferences are obviously inimical to those goals. Moreover, it isn't even clear that legacy status actually increases donations significantly. Several elite schools, such as Johns Hopkins, MIT, and my undergrad alma mater Amherst College, have recently abolished legacy preferences with few, if any, ill effects.

And here's an excerpt from my response to Graham:

Graham is wrong to analogize legacy preferences to "preferences for students with strong athletic or artistic abilities." Athletic and artistic abilities are valuable skills. By contrast, legacy status is an arbitrary circumstance of birth, like race or ethnicity. Being the scion of an alum does not indicate that you are a good student or have a valuable skill to contribute to the university community. Being the child of an elite-college graduate may be correlated with academic ability, just as being the son of an NBA player may be correlated with basketball ability. But schools need not rely on such crude correlations based on ancestry when they have access to direct measurements of the relevant skills, such as grades and test scores for academic ability and high school sports records for athletic talent….

Legacy preferences are even less defensible than racial and ethnic preferences for historically disadvantaged groups, such as Black or Native American people. The former can be defended on the grounds that they compensate for historic injustices or promote "diversity." These rationales have serious flaws, and I reject them, but they are at least plausible. By contrast, no one can argue that the children of elite-college alumni are an oppressed minority. Nor are schools likely to suffer from a shortage of the "diverse" perspectives provided by such students. Selective colleges will have plenty of legacies in the student body, even without preferences.

There is also a rejoinder by Prof. Graham, which follows my response.

Interestingly, Graham's argument for legacy preferences isn't really an argument for legacy preferences, at all. He doesn't even make the standard argument that they increase alumni donations.

Graham's arguments are actually defenses of other nonacademic admissions criteria. For example, in his rejoinder, he argues that schools should use admissions preferences to promote ideological diversity (increasing the percentage of conservative students) and socioeconomic diversity (increasing the percentage of students from relatively poor families). I have great skepticism about the desirability of ideological preferences in admissions, and would use socioeconomic ones only to a very limited degree, in order to avoid "mismatch" problems of the kind that also bedevil preferences. But even if these types of preferences are justified, they are not the same thing as legacy preferences. The latter don't help relatively poor applicants (quite the opposite, in fact!) and there is little reason to think they will contribute to ideological diversity.

I have previously written about legacy preferences and the issues they raise here and here.

Ben Sasse, President of the University of Florida, has an op-ed in the Wall Street Journal explaining his approach to speech and protest at UF. The op-ed articulates three principles that other universities may wish to follow.

First, universities must distinguish between speech and action. Speech is central to education. We're in the business of discovering knowledge and then passing it, both newly learned and time-tested, to the next generation. To do that, we need to foster an environment of free thought in which ideas can be picked apart and put back together, again and again. The heckler gets no veto. The best arguments deserve the best counterarguments.

To cherish the First Amendment rights of speech and assembly, we draw a hard line at unlawful action. Speech isn't violence. Silence isn't violence. Violence is violence. Just as we have an obligation to protect speech, we have an obligation to keep our students safe. Throwing fists, storming buildings, vandalizing property, spitting on cops and hijacking a university aren't speech.

Second, universities must say what they mean and then do what they say. Empty threats make everything worse. Any parent who has endured a 2-year-old's tantrum gets this. You can't say, "Don't make me come up there" if you aren't willing to walk up the stairs and enforce the rules. You don't make a threat until you've decided to follow through if necessary. . . .

Appeasing mobs emboldens agitators elsewhere. Moving classes online is a retreat that penalizes students and rewards protesters. Participating in live-streamed struggle sessions doesn't promote honest, good-faith discussion. Universities need to be strong defenders of the entire community, including students in the library on the eve of an exam, and stewards of our fundamental educational mission. . . .

Third, universities need to recommit themselves to real education. Rather than engage a wide range of ideas with curiosity and intellectual humility, many academic disciplines have capitulated to a dogmatic view of identity politics. Students are taught to divide the world into immutable categories of oppressors and oppressed, and to make sweeping judgements accordingly. With little regard for historical complexity, personal agency or individual dignity, much of what passes for sophisticated thought is quasireligious fanaticism.

One thing I learned from the article is that UF is imposing a three-year suspension on students who violate these policies, as in a three-year prohibition from campus. Writes Sasse: "We said it. We meant it. We enforced it. We wish we didn't have to, but the students weighed the costs, made their decisions, and will own the consequences as adults."

The Wall Street Journal has an interesting article explaining how the leaders of campus protests learned some of their strategies and tactics from national organizations and outside activists. It begins:

The recent wave of pro-Palestinian protests on college campuses came on suddenly and shocked people across the nation. But the political tactics underlying some of the demonstrations were the result of months of training, planning and encouragement by longtime activists and left-wing groups.

At Columbia University, in the weeks and months before police took down encampments at the New York City campus and removed demonstrators occupying an academic building, student organizers began consulting with groups such as the National Students for Justice in Palestine, veterans of campus protests and former Black Panthers.

They researched past protests over Columbia's expansion into Harlem, went to a community meeting on gentrification and development and studied parallels with the fight over land between Palestinians and Israelis. They attended a "teach-in" put on by several former Black Panthers, who told them about the importance of handling internal disputes within their movement.

"We took notes from our elders, engaged in dialogue with them and analyzed how the university responded to previous protests," said Sueda Polat, a graduate student and organizer in the pro-Palestinian encampment.

. . .

Focusing on Columbia, the article notes how the current protests grew out of earlier efforts, and earlier conflicts between protestors and the university.

In March, there was a "Resistance 101" training scheduled at Columbia with guest speakers including longtime activists with Samidoun: Palestinian Prisoner Solidarity Network, a Vancouver, British Columbia-based group that celebrated the Oct. 7 Hamas attack on Israel. The administration twice barred the event, citing some of the organizers' known support of terrorism and promotion of violence. Columbia students hosted the event virtually nonetheless, which prompted Columbia President Minouche Shafik to suspend several of them. . . .

"There is nothing wrong with being a member of Hamas, being a leader of Hamas, being a fighter in Hamas," [Samidoun coordinator Charlotte] Kates said. "These are the people that are on the front lines defending Palestine."

Samidoun didn't respond to emailed requests for comment. The German government banned the group last November after saying it supported terrorism and antisemitism, and incited the use of violence to enforce political interests.

The article also talks about how such training and coordination have been funded, noting that National Students for Justice in Palestine (the target of a recently filed lawsuit alleging collaboration with Hamas or Hamas-supporting entities), is funded through the Wespac Foundation, a New York-based nonprofit, and shows how NSJP has recommnded tactics and coordinated messaging for its various campus affiliates.

Last week, the House of Representatives passed the Anti-Semitism Awareness Act of 2023 by an overwhelming margin. Some critics of the law are concerned about its definition of what constitutes antisemitism. My co-blogger David Bernstein thinks such criticisms are overblown, while Eugene Volokh fears the definition could chill legitimate (and non-antisemitic) criticism of Israel.

The editors of Tablet have a slightly different take. They are not concerned about the act's definition of antisemitism, but are concerned about how this definition could be utilized within larger bureaucratic structures to suppress speech, both within universities and elsewhere. A taste:

Our objection, however—and it is an important one—is to the broader edifice of speech-policing of which this bill is a part. . . .

In a world in which people with minority opinions are increasingly subject to the full force of "the whole of government" or "the whole of society" being brought against them by a narrow group of powerful people, we have an existential interest as a people in supporting free speech and constitutional rights for others—on the historically sound principle that they will soon be coming for us.

There are those who argue that the old speech regime isn't coming back, and like any other group we have to optimize around the one that actually exists. It makes no sense for Jews, they say, to unilaterally disarm in a war that isn't ending anytime soon or probably ever, so we might as well ask for our own protections, demand our own diversity officers, start our own affinity clubs, and so on.

In addition to killing our souls, this direction also has the disadvantage of not actually working. The government can—and usually does—twist any new office or power it receives such that it permanently serves the opposite of its original purpose, and that these offices never, ever go away, turning your brilliant temporary solution into a source of permanent hostility. . . .

This means that we must reject all proposals, even from well-meaning sources, that seek to empower government to address the issue of speech on our behalf—like when New York Congressman Ritchie Torres introduced a bill that would allow the Department of Education to subject universities that receive federal funding to "third-party antisemitism monitors." Torres is a courageous and smart lawmaker, and no one here doubts that his heart is in the right place. But this is lunacy. No one should support it.

The essay also directs particularly pointed criticism at universities for "abandoning the principles of free inquiry" and "turn[ing] themselves into factories for conformity and increasingly bizarre, divisive, and hateful doctrines held by the loudest (and often smallest) factions of their faculty." This is particularly problematic because many universities themselves have abandoned any principled defense of free speech. As the authors note, this could be a reason to abandon universities. It is no reason to abandon free speech.

The essay ends:

The freedom and successes that Jews have enjoyed in America have been due to the protections afforded by our Constitution, and the respect for individual rights that became part of our culture. The most legitimate tax we owe—to each other, to our fellow citizens, and to those who fought for our right as Americans to say whatever the fuck we want—is the work we are asked to put in, day in and day out, to protect that freedom.

That's where our strength lies. Don't lose sight of it.

5/5/1992: The 27th Amendment is ratified. It was initially proposed in 1789.

No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.

My co-blogger Orin Kerr argues that the NY Falsifying Business Records law, Section 175.10 includes two elements: 1) falsifying business records; and 2) doing so "when the intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof." Orin hypothesizes that the part of the law mentioned in Part 2 of this test need not survive First Amendment scrutiny by itself. As a matter of statutory interpretation, Orin suggests that the second element of the Falsifying Business Records charge need only be an element of the Section 175.10 crime. And an element of the crime need not be constitutional itself.

This is not true. Donald Trump had a First Amendment right to spend money to win the 2016 presidential election by safeguarding his reputation, and Orin's construction of NY law would burden Trump's core political speech. NY cannot have a two element crime, both of which elements need to be proved, if one of the elements violates the First Amendment. Orin analogizes Trump's case to the case of someone who engages in battery during a political debate. Obviously, there is no right to engage in battery while engaging in First Amendment protected debate. But, there is a First Amendment right to spend money to protect your reputation and your family right before a presidential election by paying false accusers to stay silent. Doing so is not a crime.

Alvin Bragg says that the other crime that Trump falsified business records to conceal is that described by NY Election Law Section 17-152: "Any two or more persons who conspire to promote or prevent the election of any person to a public office by unlawful means *** shall be guilty of a misdemeanor." Paying hush money, like buying time for television and radio advertisements, is not an "unlawful means" of trying to win an election. The First Amendment completely protects what Trump is alleged to have done in 2016.

In fact, the person who has acted wrongly here is Alvin Bragg who for the first time in 235 years of American history has indicted a former president who is the Republican nominee for president in 2024 just to muddy him up. Bragg did this by splashing the irrelevant facts of the Stormy Daniels hush money allegation all over the front pages of the newspaper just as the 2024 presidential campaign gets kicked off. Republican nominee Trump cannot campaign during three vital weeks of the campaign season because Alvin Bragg has him locked up in a NY courtroom where the judge has subjected Trump to a gag order. Bragg and the judge trying Trump's NY State criminal case have committed constitutional torts for which they cannot be sued only because of our dumb prosecutorial and judicial immunity rules.

Steven Calabresi is the Clayton J. & Henry R. Barber Professor of Law at Northwestern Pritzker School of Law, where he specializes in constitutional law. He also teaches regularly at the Yale Law School. Before going into teaching, he worked in the Reagan White House, and was a Special Assistant for Attorney General Edwin Meese III. He has written or co-written many law review articles and several books, including The Meese Revolution: The Making of a Constitutional Moment (2024) (with Gary Lawson).

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I thank Steve for his clarification below about his theory of why Trump might have a First Amendment defense in the New York case. As I understand it, Steve's argument can be understood as being about the phrase "another crime" in New York Penal Law 17.50:

A person is guilty of falsifying business records in the first degree when he commits the crime of falsifying business records in the second degree, and when his intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof.

Steve's argument is that the element of concealing the commission of "another crime" has to refer to an act that doesn't just satisfy the elements of a criminal statute, but that, interpreted independently, is a crime that satisfies independent First Amendment review. And so he argues that, if the jury identifies those elements of another criminal law as having been satisfied, that is not "another crime" if there would be a First Amendment defense to liability for those elements independently — either under current law, or, if needed, on a better understanding of law as changed by the Supreme Court on appeal from Trump's conviction by overturning the Court's precedent.

This is an interesting argument, and I confess it is not what I thought Steve was arguing in his first post. So I certainly appreciate the clarification, and I apologize to Steve for the misunderstanding. One thought I have in response is that there's a pretty interesting interpretive question raised by Steve's argument. When the New York legislature uses the phrase "another crime" as part of an element, does "another crime" mean the elements of some other criminal law, or is "another crime" more of an independent constitutional concept meaning the elements of some other criminal law only to the extent that the elements could be a free-standing criminal offense without violating the Constitution?

I take it Steve believes the latter. That might be right. But I'm not entirely sure about that. Off the top of my head, I would think it's a question of statutory interpretation rather than the constitutional law of elements of crimes. Offenses have to satisfy the First Amendment as a whole, obviously, but I don't think there is a constitutional problem with a particular element of a crime involving First Amendment protected activities. For example, if a legislature says that it's a crime to punch someone during a protest, the fact that the protest is protected by the First Amendment doesn't mean that punching someone during a protest would be. If I'm right about that, then I would think this ends up an interesting question of statutory interpretation assuming that Steve is right about the First Amendment issue (either under current law or possible future law).

I poked around on Westlaw briefly to see if I could find New York cases on this question, but I didn't come across anything useful. It's a hard question to research, as the relevant terms end up bringing up a lot of unrelated cases. But thanks again to Steve for the clarification, and I'd be interested to know if others make more headway on the statutory question than I did.

I have been increasingly aware of, and disturbed by, instances of local police declining the requests of universities to help the universities--which generally do not have law enforcement officers capable of dealing with hundreds of people resisting arrest--arrest protestors and remove their protest encampments. I was preparing to write a blog post about this, but Hans Bader beat me to it. So rather than reinvent the wheel, with permission, below is a shortened version of Hans' post:

You have a right to free speech, but that doesn't give you a First Amendment right to camp out on my lawn with protest signs. That's trespassing. But government officials sometimes allow trespassing when they sympathize with the trespasser's viewpoint. Baltimore, Philadelphia, and Washington, DC have refused to remove progressive anti-Israel protesters camping out at private universities — Johns Hopkins University, the University of Pennsylvania, and George Washington University.

Law professor David Bernstein notes that "Baltimore police will not assist in removing illegal encampment at Johns Hopkins University. Worse, they actually praise the illegal encampment as a valid exercise of First Amendment rights, which is complete nonsense. It's especially nonsensical because most of the protesters are trespassers with no connection to the university."

"The City of Baltimore strongly stands with every person's First Amendment rights. Barring any credible threat of violence or similarly high threshold to protect public safety, BPD currently has no plans to engage solely to shut down this valid protest or remove protesters," said the Baltimore police department in a statement apparently dictated by the mayor's office.

Contrary to what this statement claims, there is no "First Amendment" right to camp out on public property, much less private property like the campus of Johns Hopkins University, which can tell trespassers to leave regardless of whether they are engaged in First Amendment activity. Camping out on someone else's property is not a "valid protest," even if the protesters have not yet made any "threat of violence." The Supreme Court ruled that protesters do not have a right to camp out even on public property devoted to public use, like national parks, in Clark v. Community for Creative Non-Violence (1984).

Yet Neetu Arnold of the National Association of Scholars notes that Philadelphia is similarly refusing to clear out a protest camp at the University of Pennsylvania, a private Ivy League university: "Philadelphia Police ignores Penn's request to disband unauthorized encampment. The university has to provide proof that the encampment poses an imminent danger. Penn students have received multiple warnings to avoid the immediate area." The Daily Pennsylvanian reports that the "Philadelphia Police Department declines to disband encampment after Penn requests immediate help."

As a University of Pennsylvania alumnus notes, these illegal protests are only being allowed by progressive officials because of the viewpoint they are expressing. If the protesters were "white nationalists waving nazi flags and telling black people they should go back to Africa I'm sure [police] would be out there pretty quickly" to remove them.

As Professor Bernstein observes, allowing the illegal encampment at Johns Hopkins to persist despite the university's objections is a bad idea: "This one poses a special danger to public safety because, I'm told by a reliable source, 'almost none' of the people manning the encampment are Hopkins students. They are professional agitators from 'the community.'"

No city would tolerate such trespassing if the protesters' ideology were different — such as if they were white nationalists, whose speech is protected by the First Amendment despite their repellent ideology. (The Supreme Court ruled in favor of a First Amendment lawsuit by white nationalists in 1992, because even racist protests are protected by the First Amendment, see Forsyth County v. Nationalist Movement (1992). Even on campus, racist speech such as Nazi meetings, can be protected, see National Socialist White People's Party v. Ringers (1973)).

This favoritism by progressive cities violates the First Amendment. According to the Supreme Court, the government cannot favor certain kinds of protests over others. (See Police Department v. Mosley (1972)).

When someone posted non-threatening confederate-flag flyers saying "Huzzah for Dixie" at American University in 2017, the local FBI office investigated the flyers as if the First Amendment did not exist, at the request of the university. Law enforcement investigated the speech, even though courts in Washington, DC had ruled that far worse, blatantly racist speech was protected by the First Amendment. (See, e.g., United States v. Popa (1999)).

Yet now, DC police are refusing to remove trespassing students camped out on the grounds of George Washington University. As the National Review reported on April 28:

Police in Washington, D.C., rejected requests from campus officials at George Washington University to clear anti-Israel protesters from their campus encampment this week, fearing that doing so could be bad publicity.

Although police were poised to disband the encampment at around 3 a.m. on Friday morning, city officials in the police chief's and mayor's office told police to stand down and said that it would look bad publicly for police to disrupt a "small number of peaceful protesters," the Washington Post reported on Friday…George Washington officials originally wanted to clear the encampment by 7 p.m. on Thursday. The school said on Friday that protesters "violated several university policies and were trespassing" and added that "any student who remains in University Yard may be placed on temporary suspension and administratively barred from campus. Several students have already been notified of their suspensions." Police who reportedly lined the encampment's perimeter on Friday warned protesters that they would soon issue arrests, but they never did.

"After demonstrators refused multiple instructions to relocate, GWPD requested additional support from the DC Metropolitan Police to ensure the safety and security of all our community members through a measured and orderly approach," George Washington said in a statement….Dozens of anti-Israel protesters are still occupying the encampment…At a rally held at George Washington this week, a speaker was recorded saying, "There's only one solution, intifada revolution. We must have a revolution so we can have a socialist reconstruction of the United States of America."

David Bernstein adds: Denver police have also refused to help with an encampment. UCLA police sat by and did nothing for days while members of encampment prohibited, by physical forces, students from getting to their classes or the library via the encampment without permission. Police only intervened after violence broke out when counter-demonstrators confronted the encampers.

From what I can gather, the problem in cities is usually not that the police department itself is unwilling to assist, but that they are under orders from the mayor, afraid of upsetting far left constituents, to stand down. This is going a bit beyond my expertise, but from what I understand the Justice Department could and should, but won't under the Biden administration, investigate whether these police departments are violating the terms of their federal funding, and also denying equal protection of the law, by refusing to enforce the law for ideological and political reasons. An added factor is that this lack of enforcement is to the specific detriment of Jewish students who have disproportionately faced threats, intimidation, and violence from people at the encampments.

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