The decision allows such pseudonymity when the defendant has already been found (by default judgment) to have committed the assault, but Judge Wilkinson's concurrence argues that, absent this unusual factor, one-sided pseudonymity should be frowned on.
From today's Fourth Circuit opinion in Doe v. Sidar, written by Judge Toby Heytens and joined by Judges Robert Bruce King and J. Harvie Wilkinson:
A woman sued a man for sexually assaulting her and used a pseudonym throughout discovery. After the man refused to comply with its discovery orders [including by failing to provide a DNA sample], the district court entered a default judgment against him and ordered the woman to use her real name going forward. The woman appeals the district court's non-anonymity order …. [W]e hold the district court committed legal error by understating the woman's interest in anonymity, appearing to announce a general rule that fairness considerations invariably cut against allowing a plaintiff to be anonymous at trial unless the defendant is also anonymous, and failing to recognize the significance of its default judgment on liability….
Because the district court entered a default judgment on liability, we treat it as conclusively established that Cenk Sidar raped Jane Doe in London in September 2017. As this Court has explained, "[t]he legal effect of a default judgment is that the defendant is deemed to have admitted the plaintiff's well-pleaded allegations of fact … and is barred from contesting … the facts thus established." …
The trial court refused to allow Doe to proceed pseudonymously, and the Fourth Circuit held that this decision was mistaken. The Circuit acknowledged that pseudonymity is an exception, available only in rare cases. But it noted that lawsuits brought by rape victims are one category of cases in which plaintiffs can often proceed pseudonymously, to protect their privacy. And it held that the trial court wrongly concluded, among other things, that one-sided pseudonymity—pseudonymity for plaintiff when the plaintiff has named the defendant—is impermissible:
2/21/1868: President Johnson orders Secretary of War Edwin Stanton removed from office. In Myers v. U.S. (1926), the Supreme Court found that Johnson's actions were lawful.
The difficulties some cities are experiencing arise because many migrants aren't allowed to work, and because of restrictions on construction of new housing.
Migrants arrive at the U.S.-Mexico border in Eagle Pass, Texas, in July 2022. (Miguel Juarez Lugo/ZUMAPRESS/Newscom)
In recent months, many politicians and media outlets have focused on the "migrant crisis" in various cities, supposedly caused by the arrival of large numbers of asylum seekers. Many of these migrants cannot support themselves, and end up taking up shelter space or living on the streets. In a recent Atlantic article (unfortunately, paywalled), Jerusalem Demsas explains why the supposed crisis is in reality a product of flawed government policies, rather than migration, as such:
When the mayor of New York, of all places, warned that a recent influx of asylum seekers would destroy his city, something didn't add up.
"I said it last year when we had 15,000, and I'm telling you now at 110,000. The city we knew, we're about to lose," Eric Adams urged in September. By the end of the year, more than 150,000 migrants had arrived. Still, the mayor's apocalyptic prediction didn't square with New York's past experience. How could a city with more than 8 million residents, more than 3 million of whom are foreign-born, find itself overwhelmed by a much smaller number of newcomers?
In another legendary haven for immigrants, similar dynamics were playing out. Chicago has more than 500,000 foreign-born residents, about 20 percent of its population, but it has been straining to handle the arrival of just 35,000 asylum seekers in the past year and a half. Some people have even ended up on the floors of police stations or in public parks. Mayor Brandon Johnson joined Adams and a handful of other big-city mayors in signing a letter seeking help with the "large numbers of additional asylum seekers being brought to our cities."
Sometimes the best way to understand why something is going wrong is to look at what's going right. The asylum seekers from the border aren't the only outsiders in town. Russia's 2022 invasion of Ukraine brought a separate influx of displaced people into U.S. cities that quietly assimilated most of them. "We have at least 30,000 Ukrainian refugees in the city of Chicago, and no one has even noticed," Johnson told me in a recent interview.
According to New York officials, of about 30,000 Ukrainians who resettled there, very few ended up in shelters. By contrast, the city has scrambled to open nearly 200 emergency shelters to house asylees from the Southwest border.
What ensured the quiet assimilation of displaced Ukrainians? Why has the arrival of asylum seekers from Latin America been so different? And why have some cities managed to weather the so-called crisis without any outcry or political backlash? In interviews with mayors, other municipal officials, nonprofit leaders, and immigration lawyers in several states, I pieced together an answer stemming from two major differences in federal policy. First, the Biden administration admitted the Ukrainians under terms that allowed them to work right away. Second, the feds had a plan for where to place these newcomers. It included coordination with local governments, individual sponsors, and civil-society groups. The Biden administration did not leave Ukrainian newcomers vulnerable to the whims of Texas Governor Greg Abbott, who since April 2022 has transported 37,800 migrants to New York City, 31,400 to Chicago, and thousands more to other blue cities—in a successful bid to push the immigration debate rightward and advance the idea that immigrants are a burden on native-born people.
Demsas is largely right here. Ukrainians admitted under the Uniting for Ukraine (U4U) program have not caused any controversy in cities largely because they are allowed to immediately start working, and thereby can support themselves and contribute to our economy. By contrast, asylum seekers aren't eligible to apply for work permits for six months, and even then it often takes the federal immigration bureaucracy a long time to actually issue them.
What is true for Ukrainians is also true of Cubans, Nicaraguans, Venezuelans, and Haitians admitted under the "CNVH" program - an extension of the U4U model to a combine total 30,000 migrants per month fleeing oppression and violence in those four countries. Several hundred thousand people have entered the US under the CNVH program. But, like the Ukrainians, they have immediate work authorization, and therefore turn out to be an asset to cities, not a burden.
As Demsas explains, the federal government should abolish the six-month rule and let asylum-seekers work legally from day one. The Biden Administration has taken this step for many Venezuelans already in the US. But it needs to expand work authorization to other asylum seekers.
I do think Demsas gets one point wrong here. For the most part, it is not true that "the feds had a plan for where to place" U4U participants. The program requires each migrant to have a US sponsor. But, beyond that, the federal government makes little or no effort to control where and how they live.
I myself am a sponsor in the U4U program, and have advised other sponsors and migrants. Generally speaking, the migrants decide for themselves where they are going to settle in the US. Sponsors advise, but do not dictate. I now have eight Ukrainian sponsorees. To my knowledge, never once has a federal official attempted to plan where they live and work, or even offered advice on that subject.
Instead of planning and controlling, U4U mostly lets the market and civil society work. That, I think, is the real key to its success. While I don't myself have CNVH sponsorees, I know people who do; that program seems much the same.
Demsas also notes that, even when it comes to asylum seekers, the dfficulties encountered in New York and Chicago have largely been avoided in cities like Houston and Miami, even though the latter also have experienced recent influxes. What's the difference between these cases? I don't know for sure. But a major factor is likely that the cities with serious problems also tend to have highly restrictive zoning rules, which make it difficult or impossible to build housing in response to demand. I have previously noted this issue in the case of New York.
In New York, housing issues have been exacerbated by the city's ill-advised free shelter guarantee, which incentivizes both migrants and poor natives to seek out free housing at public expense. New York would be well-advised to end the guarantee, while simultaneously ending exclusionary zoning rules that block new housing construction.
It is also true, as Demsas notes, that Texas Gov. Greg Abbott's migrant busing program - which has heavily targeted New York and Chicago - has caused disruption in those cities:
When immigrants make their way to a city in an organic fashion, they usually are drawn to a place where they have family ties, job leads, or other connections and resources available….
That's very different from the haphazard Texas busing program. When Abbott's buses arrive at their destinations, many of them are filled with people who had specific plans to go somewhere else. Cities then re-ticket many of the passengers. The mayor of Denver told me that roughly 40 percent of asylees who are bused into his city have no intention of staying there.
Abbott should stop the busing program, and instead let migrants choose their own destinations and pay their own way. In addition to increasing the migrants' economic productivity (thereby boosting the US economy) and reducing disruption in New York and Chicago, it would also save Texas taxpayers money. The state has spent some $148 million busing migrants to other parts of the country.
In sum, the "migrant crisis" is largely caused by a combination of perverse federal, state, and local policies that bar asylum seekers from working legally, artificially restrict housing construction, and bus migrants to places other than where they actually want to go. Migrants who enter by programs that avoid these obstacles don't cause any crises. Indeed, they are actually assets to the economy. If governments want to end the "crisis," for the most part they need only get out of the way.
In Doe v. Jeancharles (M.D. Fla.), Doe is suing "alleging violations of the federal Trafficking Victims' Protection Reauthorization Act ('TVPRA'), violations of the Fair Labor Standards Act ('FLSA'), breach of contract," and related theories. The Complaint alleges that:
Dr. Jean-Charles targeted desperate and vulnerable Immigrant Medical Graduates ("IMG"), he lured them to work for JC Medical Center with the promise of compensation, experience, and a recommendation letter to help them "match" a residency program, he withheld payment or underpaid these vulnerable IMG's [including Doe], and has coerced them to work full-time hours seeing scores of patients.
But yesterday's decision by Magistrate Judge Robert Norway (M.D. Fla.) concludes that Doe had to sue under his own name:
Federal Rule of Civil Procedure 10(a) requires that "every pleading" in federal court "name all the parties." This rule "protects the public's legitimate interest in knowing all of the facts involved, including the identities of the parties." … A party may proceed anonymously or pseudonymously by establishing "a substantial privacy right which outweighs the 'customary and constitutionally-embedded presumption of openness in judicial proceedings.'" … The Eleventh Circuit has found that the "first step" [in this analysis] is to consider the three factors analyzed in Southern Methodist University Association of Women Law Students v. Wynne & Jaffe (5th Cir. 1979): "whether the party seeking anonymity (1) is challenging government activity; (2) would be compelled, absent anonymity, to disclose information of utmost intimacy; or (3) would be compelled, absent anonymity, to admit an intent to engage in illegal conduct and thus risk criminal prosecution."
Along with the SMU factors, the court should "carefully review all the circumstances of a given case and then decide whether the customary practice of disclosing the plaintiff's identity should yield to the plaintiff's privacy concerns." For example, the court may also consider "whether the plaintiffs were minors, whether they were threatened with violence or physical harm by proceeding in their own names, and whether their anonymity posed a unique threat of fundamental unfairness to the defendant." …
The District of Columbia's ban on firearm magazines that hold over ten rounds was the subject of oral argument in the D.C. Circuit on February 13. The case is Hanson v. District of Columbia, and the appeal concerns the district court's denial of a preliminary injunction against enforcement of the ban. The circuit panel included Judges Patricia Millett ('13) and Justin Walker ('20), and Senior Judge Douglas Ginsburg ('86).
The argument should have turned on one, and only one, question: are the banned magazines commonly possessed by law-abiding citizens for lawful purposes? As Professor Mark W. Smith has explained, under District of Columbia v.Heller (2008) and N.Y. State Rifle & Pistol Ass'n v. Bruen (2022), that is the only relevant question in an arms ban case. See Smith, "What Part of 'In Common Use' Don't You Understand?" Harvard JLPP (2023). That is because the common use test is the product of the text first and then history approach the Supreme Court has applied in this context. In Heller, the Court examined the Second Amendment's language to determine that as a matter of plain text "arms" includes (but is not limited to) all firearms. It then examined history to determine that only dangerous and unusual firearms can be banned. It follows that citizens have a fundamental right to possess firearms that are in common use today, because if they are in common use, they cannot be "dangerous and unusual."
The answer to the common use question in this case is a resounding and unequivocal yes — there are hundreds of millions such magazines lawfully owned for lawful purposes by Americans today. By any measure, that's common possession. To be sure, magazines are not themselves firearms, but they are key components of all modern semiautomatic firearms, as they are the part of the firearm that holds and feeds the ammunition. And the practical effect of the magazine ban is to prohibit an entire category of firearms; i.e., firearms that are capable of firing more than 11 rounds (one in the chamber, 10 in the magazine) without reloading.
Instead, the oral argument was a bit of déjà vu all over again. In Heller, the Supreme Court held that firearms "in common use" for "lawful purposes like self-defense" may not be banned. After Heller, I was part of a team challenging D.C.'s ban on such magazines (as well as on semiautomatic rifles) in a case that came to be known as Heller II. In the D.C. Circuit, oral argument was conducted before Judge Douglas Ginsburg (yes, the same Judge Ginsburg) together with then-Judge Brett Kavanaugh and Judge Karen Henderson.
JUSTICE JACKSON: If I understand you correctly, each new company that is created in an industry can suddenly bring a challenge that might risk or undermine valid --invalidation of the entire basis of the industry, each new company, because you say each new company that's created can bring such a lawsuit. Now, whether or not it will succeed, I understand, but aren't you risking destabilization of the industry in this way?
MR. WEIR: We don't think so. We -- we think the experience in the Sixth Circuit is what you'll see. There --there was no uptick in challenges to old regulations in the Sixth Circuit, and we would have seen them there in the last --
JUSTICE JACKSON: Is --is that possible because we had other doctrines that prevented, so, you know, for example, Chevron existed and so there were lots of things that already --you know, right? Like, there are reasons why you might not have an uptick. I'm just wondering, in a world in which you could bring these actions, why wouldn't you have this problem?
MR. WEIR: Well, I --I think that because most regulations are --are valid, there's --there's no argument that they're unlawful. So you would --so you wouldn't see them. It's only the ones that have defects that you're going to see challenges to or potential defects.
Was this a suggestion that Chevron will no longer exist after this term? I suppose we will know by July.
UPDATE: I should have listened to the second-half of the argument before posting. Had I done so, I would have noted this question from Justice Kagan:
JUSTICE KAGAN: Mr. --Mr. Snyder, I want to emphasize that I'm asking you a hypothetical question. It's an "if" question. There is obviously another big challenge to the way courts review agency action before this Court. Has the --has the Justice Department and the agencies considered whether there is any interaction between these two challenges? And, again, you know, if Chevron were reinforced, were affirmed. If Chevron were reversed, how does that affect what you're talking about here?
Does this question make it more or less likely that Justice Jackson inadvertently disclosed Chevron's fate? Was Justice Kagan just being precise? Or was she covering for her colleague's gaffe? Again, time will tell.
[This post is co-authored with Professor Seth Barrett Tillman]
On Monday, February 19, 2024, Professor John Mikhail wrote a post on Balkinization titled, A Reality Check on "Officer of the United States" at the Founding. His post begins:
The Supreme Court seems poised to reverse Colorado's decision to exclude Donald Trump from its Republican presidential primary ballot on grounds other than that Trump did not take the right kind of oath to support the Constitution. Nevertheless, one or more of the Justices might still be inclined to agree with Trump that the President is not an "officer of the United States" within the meaning of Section Three of the Fourteenth Amendment. Trump prioritized this argument in his briefs to the Court, drawing primarily on the scholarship of Seth Barrett Tillman and his co-author, Josh Blackman. While I have long admired the detailed work that Professors Tillman and Blackman have done on this topic, I remain unconvinced by their core argument that this term refers only to appointed officials, not elected officials. In this post, I outline some of the reasons why, drawing upon research that I have pursued for many years on the Officers of the United States to which the Necessary and Proper Clause refers. Much of the evidence I discuss here has been ignored or overlooked in the existing scholarship on Section Three, and most of it does not appear in any of the briefs in Trump v. Anderson. (emphasis added).
We appreciate that Mikhail thought our scholarship was "detailed," but we were surprised by his conclusion. Could it be that we have "overlooked"" leading evidence to the contrary? Or worse, were we aware of this contrary evidence, yet consciously chose to "ignore"? No. We have addressed in our scholarship almost all of the arguments that Mikhail advances in his post. He does not indicate with any specificity what evidence was "ignored or overlooked" in the literature by others or by us. Perhaps Mikhail is not persuaded by our prior publications and responses. But that's quite a different claim from asserting that something significant was "ignored or overlooked."
Mikhail's post closes with this admonition: "the Justices should think long and hard before declaring that the President of the United States is not an Officer of the United States for the purposes of Section Three." Were Mikhail merely making intellectual points about an abstract legal question, we would be inclined to not reply with such rapidity. Indeed, Mikhail has had the opportunity to put his thoughts into writing on these issues since circa 2017. Here, at the eleventh hour, after briefing and oral argument in Trump v. Anderson, after the decision has already been assigned to a Justice and is likely substantially drafted, this is yet another attempt at rushed scholarship. We view recent posts by Mark Graber and others in a similar fashion. We use this opportunity to respond to Mikhail's primary points.
Has Supreme Court doctrine invited censorship? Not deliberately, of course. Still, it must be asked whether current doctrine has courted censorship—in the same way one might speak of it courting disaster.
The Court has repeatedly declared its devotion to the freedom of speech, so the suggestion that its doctrines have failed to block censorship may seem surprising. The Court's precedents, however, have left room for government suppression, even to the point of seeming to legitimize it.
This Article is especially critical of the state action doctrine best known from Blum v. Yaretsky. That doctrine mistakenly elevates coercion as the archetype or model of constitutionally accountable government conduct. Even in suits against government, the Blum test normally requires plaintiffs to prove that private action has been coercively converted into government action. In such ways, the Blum state action doctrine is not merely erroneous, but has signaled to government that it can get away with censorship as long as it keeps most of it privatized and not overtly coercive.
When it comes to the First Amendment, this Article expresses concern about the doctrinal tendency to confuse "abridging" and "prohibiting." The First Amendment carefully distinguishes the two: It simultaneously bars abridging, or reducing, the freedom of speech, and forbids prohibiting the free exercise of religion. This isn't to say that much coercion is required for a free exercise violation. But the First Amendment at least reveals that it bars whatever merely diminishes the freedom of speech, without any need to show coercion or other prohibiting. Unfortunately, this important distinction between abridging and prohibiting has been lost, with the result that First Amendment doctrine seems to make coercion necessary for a speech violation. Once again, doctrine mistakenly suggests that government can censor Americans—at least if it avoids the most blatant sorts of coercion.
The Supreme Court needs to repudiate the judicial doctrines that invite censorship. When the censorship-justifying doctrines are put aside, and the First Amendment itself is examined, it becomes clear that the Amendment leaves no room for privatized and less-than-coercive evasions of its freedom of speech. This is not, moreover, an unrealistic ideal. The First Amendment itself contains hints as to how censorship can be barred without standing in the way of lawful executive persuasion.
The Center is accepting applications until March 15; check out the details here. (I'm one of the Advisory Board members.) An excerpt:
Each year, the Center selects Fellows from a broad range of disciplines and backgrounds such as law, journalism, higher education, social science, technology and government.
The Center welcomes candidates from all backgrounds to apply, and invites a wide range of innovative projects. As part of the University of California, the Center is committed to promoting diversity and equal opportunity in its education, services and administration, as well as research and creative activity. We are focused on projects that address current issues affecting students, staff, administrators and faculty and will have a direct impact on individuals and communities across campuses. Work products can take many forms such as (but not limited to) qualitative/quantitative research, curricular modules, toolkits or training programs/pilots.
As a Center Fellow, you will be welcomed into a community of practitioners, educators and students who share the common purpose of advancing the mission of the Center. Incoming Fellows are connected with former Fellows and become part of a larger UC-wide and national network of scholars, educators, practitioners and activists.
The one-year fellowship will run from July 1, 2024 through June 30, 2025.
Justice Alito wrote a strong dissent to denial of certiorari. The issues the case raises are likely to recur. In the meantime, the lower court ruling in the case sets a dangerous precedent.
The Thomas Jefferson High School for Science and Technology. Fairfax, Virginia. (NA)
Today the Supreme Court refused to review Coalition for TJ v. Fairfax County School Board, a case in which the Thomas Jefferson High School for Science and Technology ("TJ") - a selective high public school in Fairfax County, Virginia - used facially neutral means to to reduce the percentage of Asian students it admitted. In 2020, TJ adopted a new admissions policy that, while neutral on its face, was actually intended to reduce the percentage of Asian-American applicants accepted at the school, in order to increase the percentage of other groups, and get a student body closer to the population demographics of Fairfax County (which is about 19% Asian).
I criticized the Fourth Circuit appellate court opinion in this case here, analyzed the district ruling in favor of the plaintiffs here.
Before proceeding, I should note that my wife, Alison Somin, is one of the Pacific Legal Foundation attorneys representing the plaintiffs in this case (a group of parents of Asian-American applicants to TJ), on a pro bono basis. If you want to discount what I say because of this connection, you are free to do so. But my interest in both anti-Asian discrimination in education and the more general issue of the use of "facially neutral" policies for discriminatory purposes long predates Alison's work on the TJ case. Anyone who cares to check will, I think, find that my take on the case is completely consistent with my previously expressed views on these two interconnected topics.
Justice Samuel Alito (joined by Justice Thomas) wrote a forceful dissent to denial of certiorari, warning that the lower court ruling sets a dangerous precedent (I raised similar concerns myself, as did Judge Allison Jones Rushing in her dissent to the Fourth Circuit ruling):
A group representing applicants for admission to a highly competitive public magnet school brought suit, claiming that changes in the school's admissions requirements violated the Equal Protection Clause. They alleged that the changes were made for the purpose of discriminating on the basis of race, to the detriment of Asian-American applicants. The District Court found that direct and circumstantial evidence supported that claim and issued aninjunction against implementation of the changes. On appeal, however, a divided Fourth Circuit panel reversed and held that the plaintiff 's claim failed simply because the challenged changes did not reduce the percentage of Asian-American admittees below the percentage of Asian-American students in the schools in the jurisdictions served by the magnet school. What the Fourth Circuit majority held, in essence, is that intentional racial discrimination is constitutional so long as it is not too severe. This reasoning is indefensible, and it cries out for correction….
The panel majority held that the Coalition could not prevail because, as the majority saw things, the new policy "visit[ed] no racially disparate impact on Asian American students" since, even after use of the new policy began, Asian Americans still received 54.36 percent of the admissions offers [compared to the previous 73%]….This percentage exceeded the percentage of Asian- American students in the applicant pool, and therefore, according to the panel majority's reasoning, Asian-American students had no cause to complain. As the panel majority put it, "an application of elementary arithmetic shows that Asian American students, as a class, experience no material disadvantage under the policy's functioning" and in fact perform "better in securing admission to TJ than students from any other racial or ethnic group…."
As Judge Rushing explained in dissent, under the Fourth Circuit's view, the Constitution permits "facially neutral laws explicitly motivated by racial discrimination, as long as the law's negative effect on the targeted racial group pushes it no lower than other racial groups…." "It would not matter, for example, if a new law cut a racial group's success rate from 90% to 30% and the legislature was open about its discriminatory purpose, as long as no other racial group succeeded at a higher rate…. " This rule defies law and logic.
Consider the following hypothetical case. Suppose that white parents in a school district where 85 percent of the students are white and 15 percent are black complain because 10 of the 12 players (83 percent) on the public high school basketball team are black. Suppose that the principal emails the coach and says: "You have too many black players. You need to replace some of them with white players." And suppose the coach emails back: "Ok. That will hurt the team, but if you insist, I'll do it." The coach then takes five of his black players aside and kicks them off the team for some contrived—but facially neutral—reason. For instance, as cover, he might institute a policy that reserves a set number of spots on the roster for each of the middle schools who feed to the high school. According to the reasoning of the Fourth Circuit majority, this action would not violate equal protection because the percentage of black players left on the team (approximately 42 percent) would exceed the percentage of black students in the school. I cannot imagine this Court's sustaining such discrimination, but in principle there is no difference between that imaginary case and one now before us.
As the district court found, the record in this case is full of statements indicating that race was the primary motivation for for the change in admissions policies, and that the School Board specifically sought to reduce the number of Asian students in order to increase the percentage of blacks and Hispanics, and also to - as the TJ principal put it - ensure the TJ student body better "reflect[s] the racial composition in [the Fairfax County Public Schools].'" Other officials claimed that having too many Asian students was in itself harmful because it would damage TJ's "culture." State legislator Mark Keam fulminated about the "unethical ways" Asian-American parents "push their kids into [TJ]," when those parents are "not even going to stay in America," but instead are "using [TJ] to get into Ivy League schools and then go back to their home country."
The Fourth Circuit could have limited themselves to holding (wrongly, in my view) that the School Board would have adopted the new policy even in spite of illicit racial motivation; this is the relevant legal standard under longstanding Supreme Court precedent. But they went beyond that and made a much worse decision, holding that evidence of racist motivation is simply irrelevant so long as the group discriminated against is still represented at a higher rate than its percentage of the applicant pool. That's a dangerous precedent that can easily be abused in many circumstances, by both right and left-wing policy makers.
As I have previously noted, anti-Asian policies at TJ and many other elite educational institutions are reminiscent of efforts to reduce the number of Jewish students at many elite colleges in the early 20th century. Those policies, too, were often facially neutral, and in many cases the number of Jewish students admitted was still higher than the percentage of Jews in the applicant pool or in the general population. Yet, today, few doubt these policies qualify as anti-Semitic discrimination. The same reasoning should apply to the TJ case and others like it.
While the Court has refused to take the TJ case, the issues it raises are likely to recur. In the wake of the Supreme Court's decision in SFFA v. Harvard severely restricting open use of racial preferences in admissions, many schools are likely to use facially neutral means to achieve the same ends, by deliberately using admissions criteria that correlated with race. The problem of efforts to reduce the number of Asian students at elite institutions is also far from unique to this case. Indeed, it arose in the Harvard case itself.
The Supreme Court can run from these questions. But it can't hide from them for very long. If the justices try to do so, more and more institutions are likely to find "race neutral" ways to circumvent the Court's decision, and to target Asian students.
The order came down today; it noted that no judge called for a vote on the en banc rehearing petition. Here's my post on the panel decision, from September.
[* * *]
California Restriction on Gun Ads That "Reasonably Appear[] to Be Attractive to Minors" Likely Unconstitutional
From Junior Sports Magazines, Inc. v. Bonta, decided today [Sept, 13, 2023] by Ninth Circuit Judge Kenneth Lee, joined by Judges Randy Smith and Lawrence VanDyke:
This case is not about whether children can buy firearms. (They cannot under California law.) Nor is this case about whether minors can legally use firearms. (California allows minors under adult supervision to possess and use firearms for hunting, target practice, and other activities.) And this case is not about whether California has tools to combat the scourge of youth gun violence. (It does.)
Rather, this case is about whether California can ban a truthful ad about firearms used legally by adults and minors—just because the ad "reasonably appears to be attractive to minors." So, for example, an ad showcasing a safer hunting rifle with less recoil for minors would likely be unlawful in California. Under our First Amendment jurisprudence, states can ban truthful and lawful advertising only if it "materially" and "directly" advances a substantial government interest and is no more extensive than necessary. California likely cannot meet this high bar.
While California has a substantial interest in reducing gun violence and unlawful use of firearms by minors, its law does not "directly" and "materially" further either goal. California cannot straitjacket the First Amendment by, on the one hand, allowing minors to possess and use firearms and then, on the other hand, banning truthful advertisements about that lawful use of firearms. There is no evidence in the record that a minor in California has ever unlawfully bought a gun, let alone because of an ad. Nor has the state produced any evidence that truthful ads about lawful uses of guns—like an ad about hunting rifles in Junior Sports Magazines' Junior Shooters—encourage illegal or violent gun use among minors. Simply put, California cannot lean on gossamers of speculation to weave an evidence-free narrative that its law curbing the First Amendment "significantly" decreases unlawful gun use among minors. The First Amendment demands more than good intentions and wishful thinking to warrant the government's muzzling of speech.
In severalrecentposts I have noted that Justice Kavanaugh appears to want the Supreme Court to hear a significant number of cases that his colleagues do not. We know this because the Supreme Court's order lists often note that he would have granted certiorari in a case that was denied.
This case presented the following interesting questions:
1. Whether a union's unlawful secondary boycott is shielded by the work-preservation defense because the targeted secondary employer could choose to take its business elsewhere and, in that way, can "control" the primary employer's work assignments.
2. Whether a union's unlawful secondary boycott is shielded by the work-preservation defense even when no bargaining unit jobs are threatened.
While I find these questions interesting, it does not appear that four justices found them to be worthy of certiorari.
While he appears to want the Court to hear more cases, Justice Kavanaugh did not join Justice Alito's dissent from denial of certiorari in Coalition for TJ v. Fairfax County School Board, a case concerning the extent to which school districts may consider race (or proxies for race) in school assignment decisions. (My co-blogger Ilya Somin blogged about the lower court's decision here.)
What this may suggest is that while Justice Kavanaugh wants to hear more cases that raise questions of significance to the business community or regulatory matters, including cases involving patents, tort litigation and labor law, he is not as keen to hear cases implicating culture war flashpoints, such as race.
An important qualification to note here is that justices are not required to disclose when they would have granted certiorari in a given case. So while we know at least some cases in which Justice Kavanaugh would have granted certiorari, we do not know how his colleagues voted in these cases, or whether there are other cases in which Justice Kavanaugh would have supported certiorari, but chose not to disclose that fact.
This morning, on the Orders List, the Court denied a motion to intervene filed by Missouri, Kansas, and Idaho. These states argued that the should be allowed to intervene so as to ensure that the requirements of Article III standing are met so that the Court can reach the merits. (This is, I take it, a tacit admission that the plaintiffs' standing claims are quite tenuous, as I have argued at length in some of the poses linked below.) The states base this argument, in part, on their successful motion to intervene in the trial court (which Adam Unikowsky dissects here). In any event, the Court rejected the motion.
The Court also ruled on two applications to file late-submitted amicus briefs, one from the American Bar Association and one from former Commissioners of the FDA. Interestingly enough, the Court rejected the former brief, but accepted the latter. Looking at the two briefs, this seems like a reasonable call. The FDA Commissioners brief provides relevant expertise that might be absent from other filed briefs. The ABA brief, not so much. Indeed, one has to wonder why the ABA brief was filed at all, as this case does not relate (even tangentially) to the needs or interests of the legal profession and does not add much given what has already been filed on the FDA's behalf in this case. Moreover, filing briefs like this is something the ABA should avoid if it wants to be seen as an apolitical organization that represents the legal profession and can speak to questions relating to the practice of law with any degree of authority.
The Court also denied a motion to intervene filed by Gregory J. Roden as "Next Friend of Americans en ventre sa mere." No surprise there.
For those interested in more about this case, yesterday I participated in a panel discussion on this case with my colleague Jessie Hill, sponsored by the Law-Medicine Center at the Case Western Reserve University School of Law. Video of that program may be viewed here.
Also, here are my prior blog posts about this case and the issues it raises:
I've revised my short essay called Equity's Role in Defining Property Rights, and this passage might be relevant for readers interested in remedies, standing, and equity:
Critically, this protection of property rights is tailored, and it does not have to be just a reiteration of the property right in the form of an injunction. In other words, one should be careful not to think that an injunction is simply on all fours with the scope of the right in question. To the contrary, an equitable remedy may be phased in or phased out, expanded prophylactically, limited because of laches or unclean hands or undue hardship, or made conditional on acts to be taken by the plaintiff or defendant or both. And even after an injunction is issued, the court can come back and modify or dissolve it, without changing the underlying property right.
The most famous exposition of a contrary view, conceiving of the scope of an injunction as coextensive with a property right, is Professor Guido Calabresi and Douglas Melamed's One View of theCathedral. That article is right to emphasize the protection of property with equitable remedies like the injunction. But the Cathedral's mistake is to ignore how the protection of property rights by equity is distinct from the definition of property rights. The scope of one does not have to be the scope of the other.
These property exceptions—these doctrines that equity will not do x, y, or z, except to protect property rights—serve multiple functions. One function is to channel equity's focus. Analogous to standing doctrine, they tie equity to something more concrete and specific, ensuring that the dispute can be put "on the map," so to speak.
If you want to read more, the essay is here. And the way equitable doctrines (like the requirement of a proprietary interest) can work analogously to standing doctrine is taken up in Debs and the Federal Equity Jurisdiction, coauthored with Professor Aditya Bamzai.
"Lawyers in litigation may be expected to assume the risk of a certain amount of rough-and-tumble. Their families do not. In preying on the families of opposing counsel, Mr. Manookian crossed the Rubicon."
In this lawyer disciplinary case, the lawyer's conduct compels disbarment. The lawyer sent a series of intimidating, demeaning, embarrassing, and harassing communications to opposing counsel and others.
Some targeted family members of opposing counsel, including one family member who was also a former client, and caused well-founded concern for their well-being and safety. In the ensuing disciplinary proceedings, a Board of Professional Responsibility hearing panel found that the purpose of the communications was to intimidate opposing counsel in order to gain unfair advantage in pending litigation. It concluded inter alia that the lawyer's conduct was prejudicial to the administration of justice, that he failed to respect the rights of third persons, and that he violated his duty to a former client, in violation of Tennessee's Rules of Professional Conduct.
The hearing panel said the presumptive sanction was disbarment, found four aggravating factors, and found no mitigating circumstances. Without explanation, the hearing panel recommended a two-year suspension instead of disbarment. The attorney appealed to the trial court. The trial court indicated that, had the Board of Professional Responsibility filed a separate petition for review, the trial court would have recommended disbarment, but because the Board did not, the trial court affirmed the sanction of suspension. Both parties appeal.
Here, the lawyer's conduct was egregious. Victimizing the families of opposing counsel and causing concern for their well-being and safety is an especially grave offense and a profound dishonor as a lawyer. The hearing panel's decision to deviate downward from the presumptive sanction of disbarment was arbitrary and capricious, and the lawyer must be disbarred. Accordingly, we modify the judgment of the hearing panel and impose the sanction of disbarment.
An excerpt from the long discussion of Manookian's misconduct:
The administrator, at Texas A & M University Texarkana, alleges he was pushed out because of his race, and because he had declined to discipline a student who "had used the word 'Nigga' in [a classmate's] presence while on a trip to the mall."
From Magistrate Judge J. Boone Baxter's Report and Recommendation in Greig v. Texas A&M Univ. Texarkana, adopted Thursday by District Judge Rodney Gilstrap (E.D. Tex.):
Plaintiff Carl Greig … alleges he is a fifty-eight year old white male who worked for TAMUT as the Assistant Vice President of Student Affairs for approximately twenty-five years. According to Plaintiff, part of his job duties included investigating student complaints about other students' violations of TAMUT's Code of Conduct and other offensive behavior. Plaintiff alleges he received favorable reviews until July 2022 and had never been discipled or told that his job performance fell below acceptable standards prior to July 2022. Plaintiff alleges he was discriminated against on the basis of race based on a single incident where he investigated, but did not discipline, a student who used a negative racial epithet. Specifically, Plaintiff alleges as follows:
In August of 2021, a student ("Student 1") filed a written complaint with [Plaintiff's] office complaining that another student ("Student 2") had used the word "Nigga" in her presence while on a trip to the mall several months earlier (Spring 2021). At the time the offensive word was used, the students were good friends and Student 1 did not complain that she was offended by Student 2's statement. The students' friendship deteriorated after the Spring of 2021 and then had a series of interpersonal problems including, but not limited to, Student 1 complaining to [Plaintiff] about Student 2's offensive statement and Student 2 claiming that Student 1 had threatened to "beat her ass."
[Plaintiff] knew of the students' long history of interpersonal conflict. [Plaintiff] conducted a thorough investigation into Student 1's complaint. [Plaintiff] conducted research regarding Student 2's First Amendment rights and sought guidance from the System General Counsel and the TAMU System Title IX Coordinator on how to respond to Student 1's complaint. Based on advice he received from both legal counsel and the TAMU System Title IX Coordinator and [Plaintiff's] own research, [Plaintiff] decided that punishing Student 2 would violate her First Amendment rights and that she had not violated the Student Code of Conduct in effect at that time. [Plaintiff] counselled Student 2 on three separate occasions about how offensive the word she used was and advised her not to use the word again.
Student 1 was dissatisfied that [Plaintiff] had not removed Student 2 from her position on Student Government and in a sorority and elevated her complaint to the President who assigned the investigation to the Human Resources Department that had no authority over or involvement with student complaints. The Human Resources Director conducted her own investigation into Student 2's statement and ultimately did not punish Student 2.
Plaintiff alleges TAMUT began reducing his job duties following the Human Resource Director's investigation; removed Plaintiff from investigating any student complaint that involved race and from any involvement in any Title IX case; and cancelled, without explanation, an open position for which Plaintiff had selected a candidate. Plaintiff further alleges as follows:
In the aftermath of [Plaintiff's] decision not to discipline Student 2, Defendant held a "Town Meeting," open to students and faculty. At the Town Meeting, a faculty member demanded that [Plaintiff] be replaced by a person of color. Defendant's President attended the Town Hall and did not reject the faculty member's demand. In November 2021, [Plaintiff's] supervisor, the Vice President of Student Affairs, advised him that he should consider looking for a new job because Defendant intended to blame [Plaintiff] for all race-related issues after his failure to punish Student 2. [Plaintiff's] supervisor also said [Plaintiff] made the right decision not to punish Student 2.
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