Eugene Volokh's Blog, page 109

[Ilya Somin] Yet Another Federal Court Rules Against Trump in an Alien Enemies Act Case

[The Southern District of New York rules Trump invoked the Act illegally, because there is no "invasion" or "predatory incursion."]

A prison guard transfers deportees from the U.S., alleged to be Venezuelan gang members, to the Terrorism Confinement Center in Tecoluca, El Salvador. Mar. 16, 2025 (El Salvador Presidential Press Office)

 

Another day, another federal court ruling against Trump in an Alien Enemies Act case. The Alien Enemies Act of 1798 (AEA) can only be used to detain and deport immigrants in the event of a declared war, or an "invasion" or "predatory incursion" perpetrated by a "foreign nation or government." The Trump Administration has been trying to use the AEA as a tool to deport Venezuelan migrants without due process, by claiming they are members of the Tren de Aragua drug gang. Today, Judge Alvin Hellerstein of the Southern District of New York issued a decision ruling that Trump's invocation of the AEA is illegal. It follows similar rulings by district courts in Texas and Colorado, and by Judge Karen LeCraft Henderson of the D.C. Circuit. Multiple earlier court decisions have reached the same conclusion with respect to the meaning of "invasion" in the Constitution.

Like previous AEA decisions, Judge Hellerstein ruled against Trump because there is no "invasion" or "predatory incursion":

A statute should be interpreted as to its plain meaning at the time of its adoption, in the context of the events of that time….

In 1798, the United States was engaged in an undeclared war with France. See David McCullough, John Adams, at 499-505 (2001). Their respective navies fought each other at sea. Id. at 499. The American government feared incursions by the French in the territories west of the Appalachian Mountains….

An "invasion," as used in the AEA, was understood as a "[h]ostile entrance upon the right or possessions of another" or a "hostile encroachment," such as when "William the Conqueror invaded England." Samuel Johnson, Invasion, A Dictionary of the English Language (4th ed. 1773). Another dictionary defined "invasion" as a "hostile entrance into the possession of another; particularly the entrance of a hostile army into a country for the purpose of conquest or plunder, or the attack of a military force." Noah Webster, Invasion, American Dictionary of the English Language (1828). The Constitution itself uses the term "invasion" on three occasions, all of which occur within the context of military action by a foreign state against theterritorial integrity of the United States. Specifically, Section 8 of Article I of the Constitution provides Congress with the power to "call[] forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasion," Section 9 of Article I, also known as the "Suspension Clause," bars the suspension of the habeas writ, "unless when in Cases of Rebellion or Invasion the public Safety may require it," and Section 4 of Article IV, also known as the "Invasion Clause," provides that the federal government "shall protect [the states] against Invasion…."

In a similar vein, an "incursion" was understood to mean an "[a]ttack" or "[i]nvasion without conquest." Samuel Johnson, Incursion, A Dictionary of the English Language (4th ed. 1773). And early cases used the term "predatory incursion" to refer to military-like conflicts waged by an Indian tribe or a foreign nation-state, as opposed to civil immigration violations. See, e.g., Huidekoper's Lesssee v. Douglass, 7 U.S. 1, 7 (1805) (referring to a measure intended to "repel the predatory incursions of the Indians" as an antidote to an Indian war)….

I would put less emphasis on dictionary definitions and more on the use of these terms, in context, in the AEA and the Constitution. But Judge Hellerstein is right about the bottom line, here. I have defended the view that "invasion" requires a military attack, in more detail in my previous writings on the meaning of the term in the AEA and the Constitution.

Like earlier AEA rulings, Judge Hellerstein also rejected the claim that the invocation of the statute is a "political question" not subject to judicial review. He also ruled the administration illegally denied migrants detained under the statute due process and certified a class action challenging their deportation:

This nation was founded on the "self-evident" truths "that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, [and] that among these are Life, Liberty and the pursuit of Happiness." Declaration of Independence, at ¶ 2 (1776). Our Constitution embodies these truths, in a limited government of enumerated powers, in its system of checks and balances separating the executive, legislative and judicial branches, and in its guarantee that neither citizen nor alien be "deprived of life, liberty, or property, without due process of law." U.S. Const. amend. V; see Plyler v. Doe, 457 U.S. 202, 210-12 (1982) (extending these protections to aliens).

Yet, in March 2025, more than 200 aliens were removed from this country to El Salvador's Terrorism Confinement Center ("CECOT"), with faint hope of process or return. The sweep for removal is ongoing, extending to the litigants in this case and others, thwarted only by order of this and other federal courts. The destination, El Salvador, a country paid to take our aliens, is neither the country from which the aliens came, nor to which they wish to be removed. But they are taken there, and there to remain, indefinitely, in a notoriously evil jail, unable to communicate with counsel, family or friends….

The Court grants Petitioners' motion for a preliminary injunction against removal. This
Opinion gives the reasons. It discusses the whole of the AEA, and shows that the Presidential Proclamation, in mandating removal without due process, contradicts the AEA. The Opinion goes on to discuss the requirements of notice and hearing under both the AEA and the Constitution.

I have previously explained why Trump's AEA deportations violate the Due Process Clause of the Fifth Amendment.

Litigation over these issues will continue. But, as I noted last week, there is a growing judicial consensus that Trump's invocation of the AEA is illegal, covering both conservative and liberal judges.

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[Eugene Volokh] Are Employment Lawyers Disclosing the Reputational Risks of Litigation to Their Clients?

From Monday's decision by Judge Woods in Hui v. Federal Reserve Bank of N.Y. (S.D.N.Y.):

On April 30, 2025, Plaintiff filed an application to seal this case in its entirety. One distinguishing facet of the American legal system is its commitment to public access to the trial process. This legacy of "open justice" is as old as America itself. Because the plaintiff has not overcome the strong presumption to public access that attaches to judicial documents—including the complaint and the existence of the case itself—the motion to seal the case is DENIED….

Plaintiff sued in September 2024, claiming defendants had fired him based on his being Chinese-American and on his complaining about discrimination. According to the Complaint, his being of Chinese extraction (he came to the U.S. in 1990, at age 14, and has been a "proud United States citizen since 1995") led defendants to suspect him—with no evidence—of "somehow spying and/or acting as an agent for the Chinese government." On April 16, 2025, after some discovery disputes (which led to a judicial decision), the case settled. But on April 30, 2025, Plaintiff sought to seal the case, citing "'severe reputational damage' due to the public access [to case filings], which he asserts has resulted in 'deep personal and family financial difficulty.'"

But the court refused to seal the case:

There is a long-established "general presumption in favor of public access to judicial documents." … The presumption of access is "based on the need for federal courts … to have a measure of accountability and for the public to have confidence in the administration of justice." … [T]he presumption of public access to the information Plaintiff seeks to shield from the public [thus] has extraordinarily substantial weight. Plaintiff is seeking to shield from the public everything about this case—including decisions by the Court….

[As to] the countervailing interests that weigh against public disclosure[,] Plaintiff's privacy and reputational interests do not justify sealing the case in its entirety. Simply put, the harms Plaintiff asserts are no different than the consequences any litigant bringing a public lawsuit in this country faces.

The Court is sympathetic to the employment challenges that public record of an employment-related lawsuit can cause. But if the Court were to hold that Plaintiff's concerns regarding his future employment opportunities necessitated sealing an entire case, then any and all plaintiffs bringing employment discrimination claims could similarly seek to hide their cases from the public eye.

Additionally, Plaintiff took many steps in this litigation, from seeking a right-to-sue notice, filing a complaint, amending his complaint, contesting Defendant's purported motion to dismiss, to engaging in discovery. Plaintiff should have been aware at all stages of this case that the record of the case was public; yet he chose to pursue his claims nonetheless.

Further, because this case has been public for almost nine months, the harm Plaintiff raises has already manifested in a way that sealing cannot remedy. He asserts that his name "appears in public search results and has been indexed by over ten (10) legal case publication websites." Sealing the case now will not delete information stored on third-party websites and databases, and the Court cannot in this action order that others not act on the information already made publicly available….

Plaintiff's sealing request states, "this decision had an unintended and profoundly negative consequence: the lawsuit became publicly accessible and easily searchable online. I was unaware that such personal and sensitive information would be so accessible to anyone by simply searching my name on the Internet." Of course, perhaps the plaintiff's lawyer had indeed warned him at the outset that, once a case is filed, it's public and likely can't then be retroactively sealed. (I've seen a few courts agree to retroactively seal such cases, but that happens rarely, and is likely not consistent with the legal rules related to open access.) Maybe the plaintiff heard the warning, but didn't heed it.

But I wonder: Do plaintiffs' lawyers consistently provide such warnings—warnings that might scare off a potential client? (This may be a matter in many kinds of cases, not just employment cases, but my sense is that the reputational harms can be particularly serious in employment litigation.) I'd love to hear what readers know about that, especially based on their experience either as lawyers or as clients.

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[Eugene Volokh] No Dragon, No Pseudonymity, No Nothin'

From Magistrate Judge Ray Kent's order yesterday in Doe No. 2 v. County of Clinton (W.D. Mich.), the case that I first blogged about because of the dragon logo:

This is a civil rights action brought by a former inmate of the Clinton County Jail  …. On April 28, 2025, the Court entered an order striking Plaintiff's complaint containing a dragon cartoon logo and directing Plaintiff to file an amended complaint by May 5, 2025. This matter is presently before the Court on Plaintiff's motion for leave to proceed under a pseudonym. For the following reasons, the Court will deny Plaintiff's motion….

Plaintiff alleges that, on March 22, 2024, Plaintiff was arrested for allegedly drinking while on bond and was detained in the Clinton County Jail (CCJ). "[A]lmost immediately" upon booking, Plaintiff began vomiting and showing unidentified "consistent, and objective signs of medical distress." At Plaintiff's bond hearing of March 28, 2024, the District Court ordered that Plaintiff be released from custody due to Plaintiff's "health distress." Plaintiff was then taken to the University of Michigan Sparrow Clinton Hospital, where she was admitted for treatment….

"It is a general rule that a complaint must state the names of the parties." A plaintiff is permitted to proceed anonymously only in exceptional circumstances that justify an exception to the general rule. This is because naming the parties to litigation is more than a mere formality; "First Amendment guarantees are implicated when a court decides to restrict public scrutiny of judicial proceedings." Indeed, "[i]dentifying the parties to the proceeding is an important dimension of publicness. The people have a right to know who is using their courts." …

[Plaintiff's] motion falls far short of establishing that her need for anonymity outweighs the prejudice to Defendants and the public's interest in knowing her identity. Plaintiff is not a child and has not demonstrated that her lawsuit would require her to disclose matters "of the utmost intimacy" or "an intention to violate the law."

Though the Court does not dispute that Plaintiff fears retaliation and harm to her economic interests, "fear and risk are distinct concepts." Plaintiff's allegations that she "fear[s] what Defendants will do to [her]" and that her undefined economic interests "could" be negatively affected in some unidentified way are simply too vague and conclusory to warrant relief.

The fact that Plaintiff has a criminal record and was arrested for a suspected bond violation are already public record. Moreover, cases such as this, concerning the adequacy of medical care while in jail custody, are routinely filed in this Court by named plaintiffs.

Plaintiff states that she does not object to sharing her identity with the Court or counsel for Defendants, only "disclosure to the public." However, the presumption of open proceedings and the First Amendment's guarantees belongs not to the Court and counsel but to the parties and the public more broadly. Ultimately[,] Plaintiff has not shown that her privacy interests "substantially outweigh the presumption of open judicial proceedings." Therefore, Plaintiff must proceed with this action, if at all, in her full name rather than anonymously….

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[Eugene Volokh] Third Circuit: No Establishment Clause Violation in School Lessons on Islam

From Hilsenrath v. School District of the Chathams, decided yesterday by the Third Circuit (Judge Thomas Hardiman, joined by Judge Arianna Freeman):

During the 2016–2017 school year, C.H. was a seventh-grade student at Chatham Middle School. He was enrolled in a mandatory World Cultures and Geography class taught in part by long-term substitute Christine Jakowski. The class canvassed world regions to help students "gain a greater sense of the world around them" and "become active and informed global citizens." Many resources for the class, such as "calendars, handouts, assignment and project directions, and grading guidelines," were located on Google Classroom.

The class was organized into seven units, six of which focused on a different region of the world. Within each of these units, students explored the history and culture of the highlighted region, which sometimes included studying its predominant religion. During the Latin America unit, students learned about Christianity. And in the East Asia unit, students viewed PowerPoint slides and videos about Buddhism and Hinduism. The curriculum implemented state standards, including that students will be able to "[c]ompare and contrast the tenets of various world religions."

Students encountered Islam during two class periods within the "Middle East and North Africa" (MENA) unit, both taught by Ms. Jakowski. The first lesson was presented through a set of PowerPoint slides entitled "Teaching Critical Thinking[:] Making Generalizations with Content." That presentation instructed students that "[a] generalization is a broad, universal statement of understanding based on specific facts and data" and cautioned that "[s]ome are valid" and "others are invalid or faulty." To test students' understanding, the final slide directed them to identify generalizations in a hyperlinked YouTube video and to label them either "valid or faulty."

That five-minute video, entitled "Intro to Islam," contains images and written text. Instead of a voiceover, the video features background music and Arabic chants. The first half of the video alternates between quotations from the Quran and a series of questions and answers about Islam, including:

"What is Islam?" "Faith of divine guidance for Humanity, based on peace, spirituality and the oneness of God." "Who is Allah?" "Allah is the one God who created the heavens and the earth, who has no equal and is all powerful." "Who is Muhammad (S)?" "Muhammad (Peace be upon him) is the last & final Messenger of God. God gave him the Noble Quran." "What is the Noble Quran?" "Divine revelation sent to Muhammad (S) last Prophet of Allah. A Perfect guide for Humanity." "What does history say about Islam?" "Muslims created a tradition of unsurpassable splendor, scientific thought and timeless art."

After about two minutes, the video turns to a discussion of "Islamic Art and Architecture," as well as other Muslim contributions to society. Finally, text on the last substantive slide reads "May God help us all find the true faith, Islam … Ameen."

The second class in the MENA unit introduced students to "the 5 Pillars of Faith" and the "impact/significance of them in the Muslim culture." This lesson included a different PowerPoint presentation, entitled "Introduction to Islam." The slides gave students a broad overview of Islam, including: the symbol of Islam; key figures in Islam; the Quran; demographic statistics about Muslims; and a summary of the Five Pillars of Islam. The slides also included a hyperlink to a YouTube video entitled "The 5 Pillars of Islam."

"The 5 Pillars of Islam" is an animated cartoon. The video features a conversation between two children, a non-Muslim named Alex and a Muslim named Yusuf. Curious, Alex asks Yusuf a series of questions about Islam. Yusuf responds by explaining that "Muslims believe that there is only one God," whose name is "Allah" and who "is the creator of everything." After describing the Five Pillars, Yusuf invites Alex to join him in prayer. The video closes by providing an email address and a website through which viewers can "organise a mosque tour, or order an information pack."

At the end of the second lesson, students completed a "Scavenger Notes Activity," a worksheet instructing them to "[t]ake notes using the slides" and to "[f]ill in the blanks AND correct the false information" scattered throughout. One section of the worksheet read as follows:

Pillar 1: Belief/Faith (Shahadah)

The basic statement of the Islamic faith:

"There is no god but _______ and _______ is his messenger."

This statement is the centrifugal force to their religion.

Although Ms. Jakowski presented both sets of PowerPoint slides to the students, she did not show either video in class or explicitly instruct the students to view them. C.H. nonetheless watched the "Intro to Islam" and "5 Pillars" videos at home with his mother, Libby Hilsenrath. Concerned about the MENA curriculum, Hilsenrath emailed administrators and aired her complaints at a school board meeting in February 2017. At a later meeting, the Board defended its curriculum as a proper application of the school's policy on religion in the classroom. But citing "disruption," the school ultimately removed the video links from the MENA unit PowerPoint slides.…

Hilsenrath sued, "claiming that the school's MENA curriculum violated the Establishment Clause of the First Amendment." No, said the Third Circuit:

[In recent decisions], the Court "instructed that the Establishment Clause must be interpreted by reference to historical practices and understandings." This kind of historical inquiry "requires serious work." And that work is especially challenging here because "free public education was virtually nonexistent at the time the Constitution was adopted." But "[h]istorical tradition can be established by analogical reasoning," and history teaches that established churches often bore certain "telling traits":

First, the government exerted control over the doctrine and personnel of the established church. Second, the government mandated attendance in the established church and punished people for failing to participate. Third, the government punished dissenting churches and individuals for their religious exercise. Fourth, the government restricted political participation by dissenters. Fifth, the government provided financial support for the established church, often in a way that preferred the established denomination over other churches. And sixth, the government used the established church to carry out certain civil functions, often by giving the established church a monopoly over a specific function….

Hilsenrath first argues that the Board coerced her son into religious practice when it subjected him to "direct proselytizing." … But not all school activities touching on religion amount to "formal religious exercise." … [W]e must look at the whole record to discern the "proper context" in which an ostensibly religious activity took place. For example, while a teacher might recite the Ten Commandments as an act of worship, she could also use them to introduce students to the fundamental tenets of a major world religion. Context is key.

The record here shows that the Board did not proselytize. Even assuming students were compelled to watch the "Intro to Islam" and "5 Pillars" videos—a point which the parties dispute—they did so "as part of a secular program of education." The videos were embedded in PowerPoint slides entitled "Introduction to Islam" and "Making Generalizations with Content," which were presented during two sessions of a year-long class that also covered Christianity, Judaism, Buddhism, and Hinduism. In short, the MENA lesson was "integrated into the school curriculum" as part of "an appropriate study of history, civilization," and "comparative religion." …

[T]he Board assigned videos to help students "understand what a generalization is and the benefits and consequences of using them" and to "explore the 5 Pillars of Faith and be able to explain the impact/significance of them in the Muslim culture." Because the "Intro to Islam" and "5 Pillars" videos were presented in an academic rather than devotional context, they do "not come close to crossing any line" separating permissible curricular materials from impermissible proselytization….

Hilsenrath next argues that, even if the Board did not coerce students or otherwise proselytize, its curriculum still matches a hallmark of religious establishment because it favors Islam over other faiths. But even assuming the Establishment Clause requires equal treatment in primary and secondary school curricula, the record does not show favoritism here. Besides Islam, C.H. and his classmates were introduced to Christianity, Judaism, Buddhism, and Hinduism. And the World Cultures and Geography course represented only a sampling of the expansive world religions curriculum offered at the School District of the Chathams. As early as kindergarten, students learn about religious holidays such as Hanukkah and Christmas. That instruction continues through high school, when students analyze, among other things, "the doctrinal disputes … that fueled the Protestant Reformation."

Hilsenrath counters that, unlike the instruction on other religions, the MENA lesson "extol[led] Islam over all other faiths and encourage[d] conversion to the religion." This argument once again ignores context. It is true that the creator of the Intro to Islam video described Allah as "the one God" and Islam as "the true faith." But the videos were embedded within PowerPoint slides that refer to Muslims exclusively in the third person, repeatedly describing what "Muslims believe." The "Introduction to Islam" worksheet did the same, detailing Muslim beliefs and practices only from the perspective of a nonbeliever….

The United States of America is not Sparta, where children were considered wards of the state. Parents are the first and most important teachers of their children. But once children enter public school, the curriculum is dictated by local government policy, typically by an elected school board. That local arena is the proper place for debate and discussion about curricular matters. Our role as a federal court is limited to upholding constitutional rights. So we express no opinion about the propriety of the curriculum at issue, except to hold that it does not bear any of the hallmarks of religious establishment….

Judge Peter Phipps concurred in the judgment:

This Establishment Clause challenge comes at a time when the "one-size-fits-all test" from Lemon v. Kurtzman (1971) has been emphatically rejected, and there is no longer any lurking constitutional mandate of secularism in governmental affairs. To fill the jurisprudential void occasioned by Lemon's demise, the Majority Opinion uses a 'hallmarks' test: whether the challenged action bears any characteristics historically associated with an established church.

That approach has the salutary feature of being grounded in this nation's history and tradition, but I posit that history and tradition are more effective as exegetical tools for construing the text and structure of the Constitution than as freestanding constitutional norms. In addition, the use of the hallmarks test by the Majority Opinion leaves at least two critical questions unanswered: (i) whether governmental action that offends only one of the hallmarks is sufficient for an Establishment Clause violation, or whether the hallmarks should be considered in the aggregate; and (ii) if one or more of the hallmarks of an established church are present, whether that is dispositive of an Establishment Clause violation, or whether the government can justify its offending practice as comporting with history and tradition.

In my view, a hallmarks test applied to states through incorporation is not needed to conclude that the materials about Islam assigned to seventh-grade students at Chatham Middle School do not establish a religion. Instead, all that is needed is a recognition that teaching on matters of religion or even encouraging religious belief or practice in public school does not constitute a "law respecting an establishment of religion." Indeed, one of the other organic documents of the United States, the Northwest Ordinance of 1787, encouraged the teaching of religion in schools: "Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged." Thus, with the lifting of the constitutional mandate of secularism, teaching about religious matters in a public school does not violate the Establishment Clause. For that reason, the instructional materials about Islamic beliefs, practices, and modes of worship do not offend that constitutional provision, and I respectfully concur in the judgment….

Ruby Kumar-Thompson (Cleary Giacobbe Alfieri & Jacobs) represents the school defendants.

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[Eugene Volokh] Illinois Act Protecting "Lawful Reproductive or Gender Affirming Care" Doesn't Shield World Prof. Ass'n for Transgender Health (WPATH) from Subpoena

From M.H. v. Adams, decided Friday by Magistrate Judge Keri L. Holleb Hotaling (N.D. Ill.):

In the wake of Dobbs v. Jackson Women's Health Organization (2022), Illinois enacted the Lawful Health Care Activity Act to ensure "that Illinois would remain a beacon of hope and an island for reproductive justice for all who seek it" and that "[a] medical decision should be made between a patient and their doctor—no one else." The Act "[s]hields individuals in Illinois from subpoenas, summons, or extraditions related to lawful reproductive or gender affirming care in Illinois" and "[r]equires courts in Illinois to apply Illinois law in cases involving reproductive health care."

In a case of first impression in federal court involving the Act, the World Professional Association for Transgender Health ("WPATH"), an Illinois non-profit organization, invokes the Act and raises other arguments in response to a third-party subpoena … issued to it by the Director of the Idaho Department of Health and Welfare … relating to M.H. v. Smith et al., C.A. No. 22-409 (D. Idaho) ("the Underlying Action"). The Underlying Action involves two transgender Idahoans who sued directors of two Idaho departments of government challenging an Idaho Medicaid policy and state law that exclude coverage and/or the use of state funds for certain healthcare or procedures for transgender individuals. The plaintiffs in the Underlying Action rely upon WPATH's promulgated standards of care for the treatment and health of transgender and gender diverse people to support their claims that the Idaho policy and law operate to deny them healthcare that is medically necessary.

WPATH moved to quash the subpoena, but the court concluded that the Act did not protect WPATH here:

WPATH is "a non-profit" and "international membership organization" whose "mission is to promote evidence-based care, education, research, public policy, and respect in transgender health." "WPATH members engage in clinical and academic research to develop evidence-based medicine." WPATH itself "establish[ed] and update[s] the WPATH Standards of Care (SOC) for the treatment and health of transgender and gender diverse people globally." The "SOC articulate a professional consensus about the psychiatric, psychological, medical, and surgical management of transgender and gender diverse people." Volunteer "medical experts every year" help WPATH "to understand the latest science," and also "review and edit [WPATH] publications, educational materials, curriculum, and public statements." …

WPATH contends the Act shields it from complying with the Subpoena. WPATH argues that, by creating and promulgating SOC for gender dysphoria, it engages in lawful health care activity as defined under the Act, and that the Act therefore protects against the Subpoena. The Director insists the Act has no implication here. This appears to be a case of first impression; no federal court has yet interpreted the Act in a situation such as this, where a third-party foreign subpoena was issued to an Illinois non-profit like WPATH….

The Act generally bans the provision of information or expenditure of any State resource "to assist any individual, or out-of-state officer, official, agency, entity, or department seeking to impose civil or criminal liability upon a person or entity for lawful healthcare activity," and accordingly forbids an Illinois "clerk of court" from issuing (and permits a recipient to move to modify or quash) "a subpoena based upon a foreign subpoena that" either "requests information or documents related to lawful health care activity" or "is related to the enforcement of another state's law that would interfere with an individual's rights under the Reproductive Health Act." The Act defines "[l]awful health care" in relevant part as "the treatment of gender dysphoria …, including, but not limited to, all supplies, care, and services of a medical, behavioral health, mental health, surgical, psychiatric, therapeutic, diagnostic, preventative, rehabilitative, or supportive nature that is not unlawful under the laws of this State …." "Lawful health care activity" is defined as "seeking, providing, receiving, assisting in seeking, providing or receiving, providing material support for, or traveling to obtain lawful health care."

{The Director argues this language directing Illinois clerks of courts not to issue subpoenas does not apply in federal court; the Court understands WPATH's argument to be not that Illinois law prevents issuance of the Subpoena but that the Illinois law demonstrates an intent to shield certain types of information from disclosure, in the nature of a privilege or other protection.} …

WPATH does not contend it is comprised of individuals seeking or receiving lawful health care in Illinois. And, at oral argument, WPATH's counsel conceded that WPATH is not a doctor, hospital, or other direct provider of health care procedures in Illinois. When pressed regarding which of WPATH's actions bring it within the Act, WPATH's counsel explained that it was through setting and providing the SOC for gender dysphoria treatment…. [T]he Court cannot discern from the Act's language or the stated legislative intent that the creation or issuance of standards of care regarding treatment for gender dysphoria would fall within the definition of "lawful health care activity." …

[L]egislative text and commentary (and even later statements regarding the Act) addressed protections for "patients, families, and providers" against "foreign subpoenas, summonses, extradition and foreign judgments related to lawful …. gender-affirming care in Illinois." WPATH is none of those under the circumstances presented here, although the Court could envision statutory protection for a non-profit organization like Planned Parenthood Federation of America, Inc. against a subpoena seeking information about its patients and providers in Illinois.

And, while the phrase "providing material support for" lawful health care activity broadens the Act's coverage to individuals or entities beyond the person receiving or providing the lawful health care, the parties provided little to aid in interpreting the meaning of "providing material support" for lawful health care activity. The Court's research disclosed that providing material support, in other contexts, has been found to encompass donating funds, "supplying information to the Cambodian Freedom Fighters (CFF) about the Cambodian government's plans to arrest CFF members and about the strength of the Cambodian military in certain areas," and providing interpreter services for a terrorist organization leader during medical appointments and social events. Each suggests more direct involvement than creating and broadly distributing general guidelines or protocols in a professional field. On the information at hand, the Court concludes WPATH's asserted conduct here—compiling information to create standards for the treatment of gender dysphoria—does not constitute providing or providing material support for a lawful health care activity within the meaning of the Act; the Act therefore does not provide a basis to quash the subpoena under Rule 45(d)(3)(A)(iii).

The following additional and related points bolster that conclusion on the issues here. First, standards of care are routinely established through expert testimony subject to cross-examination and other rigors. See, e.g., Wand v. Johnson (W.D. Wis. 4, 2022) (issuing subpoenas for witnesses listed as experts to testify regarding "applicable protocols for nurses treating patients with symptoms of appendicitis"); S.W. by & through Wojcehowicz v. United States (N.D. Ohio 2021) (requiring submission of "expert report under Rule 26(a)(2)(B) before" witness could "offer[ ] testimony on the applicable standard of care"); Blanquart v. Kalayil (Ill. App. 2025) (explaining that plaintiff bears "the burden to present expert testimony" showing "the defendant 'deviated from the standard of care'"). It strikes the Court as doubtful that information related to WPATH's SOC would be rendered undiscoverable without a clear legislative indication that result was intended.

Second, although legislators sought to prevent the "criminaliz[ation of] parents seeking healthcare for their children" or people just "looking for help," the Subpoena was not issued in relation to a state's attempts to enforce its laws criminalizing or penalizing what in Illinois is lawful health care. Instead, the Director seeks the information as part of its defense against claims brought by Idaho residents claiming that WPATH's SOC establish the standard of care for gender dysphoria and that a failure to follow the SOC violates their rights. WPATH consistently trumpets that its SOC are "widely accepted" and "articulate a professional consensus about the psychiatric, psychological, medical, and surgical management of transgender and gender diverse people" and thus appears to desire its SOC be wielded as plaintiffs in the Underlying Action are wielding them—as incontrovertible treatment specifications. The stated purposes of the Act do not neatly encompass WPATH's gambit to cloak from inquiry its SOC under these circumstances. Accordingly, the motion to quash is denied on this ground….

But the court hasn't yet resolved WPATH's two other arguments, "that the Subpoena imposes an undue burden upon WPATH and violates the First Amendment rights of its members":

[T]he parties' submissions provide insufficient information, particularly because the Court is not familiar with the Underlying Action and issues. The Court orders the following: (1) within seven days of the date of this ruling, the counsel for the parties shall meet and confer in person or through videoconference (not telephone) to attempt to agree on the scope of WPATH's production in light of this ruling and then, within four days of their conference, the parties shall jointly report the result of their conference; and (2) upon receipt of the parties' joint report, the Court will determine whether further briefing from the parties is necessary in advance of a hearing on the Subpoena or whether, at this stage, the Subpoena should be transferred to the issuing court pursuant to Federal Rule of Civil Procedure 45(f).

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[Eugene Volokh] Monday Open Thread

[What's on your mind?]

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[Eugene Volokh] No Preliminary Injunction for Yale MBA Student Suing Over Discipline for Alleged Use of AI on Exam

From today's decision by Judge Sarah Russell (D. Conn.) in Rignol v. Yale Univ. (a case I first wrote about when Rignol's attempt to sue pseudonymously was rejected):

Plaintiff Thierry Rignol is an entrepreneur and investor who enrolled as a part-time graduate student at the Yale School of Management ("SOM") in 2023 as a member of the class of 2025. After a teaching assistant flagged one of his exams in the spring of 2024, SOM administrators conducted an investigation to determine whether Rignol violated examination rules by using generative artificial intelligence ("AI"). In the course of its investigation, SOM determined that Rignol was not forthcoming during the investigation and did use AI; SOM penalized Rignol by issuing him an F in the course and suspending him from classes for one year.

Rignol subsequently sought a preliminary injunction that would reinstate him as a student in good standing at SOM such that he could graduate with his classmates in the class of 2025 this spring. Because I conclude that Rignol has failed to make the threshold showing of irreparable harm, I deny Rignol's motion for a preliminary injunction…

Here is an excerpt from the court's long and detailed account of the factual allegations:

Thierry Rignol is an entrepreneur and investor. In his LinkedIn profile, which Defendants attach to their memorandum, Rignol describes himself as the founder of a "technology driven real estate and hospitality company" headquartered in Mexico and operating throughout the Americas. Rignol's profile says his firm had 28 full-time workers as of the end of 2020. In addition to managing his own firm, Rignol serves as a director on the boards of several private enterprises. Rignol is a French national authorized to live and work in the United States on an investor visa.

Rignol, by the way, had also run for the French Parliament in 2017, and continues to have "political aspirations."

Rignol's exam was flagged by a teaching assistant on June 10, 2024. The teaching assistant noted that Rignol's exam, "one of the highest scoring," had "clocked in at 30 pages whereas almost all others were under 20." While conceding it was theoretically possible to produce such an exam under timed conditions, the teaching assistant said that Rignol's exam "length stood out relative to the others." J. Rouwenhorst investigated further and shared his initial findings with Wendy Tsung, an SOM administrator responsible for overseeing the EMBA program. In his email to Tsung on June 11, 2024, Rouwenhorst said he had "serious concerns about violation of the exam rules, such as improper use of AI." He noted that certain "answers to essay type questions on the exam score high on the likelihood of being AI generated using ChatGPTzero as a detection tool" and "[a]t least one answer shows substantial overlap with answers to simple prompts on ChatGPT." Rouwenhorst asked that Tsung "refer this to the Honor Committee for further investigation." …

Professor Choi was chair of the Honor Committee in the summer and fall of 2024. After Tsung shared Rouwenhorst's email describing Rignol's potential academic misconduct with him, Choi undertook an initial investigation to decide whether Rignol's conduct was sufficiently serious to merit referral to the full Honor Committee. As part of that initial review, Choi sought to examine the native file of the document Rignol used to turn in the PDF containing his exam answers….

Tsung wrote to Rignol on July 30, 2024, noting that Choi was "requesting that you submit to us the word version of your submission version of the Sourcing and Managing Funds exam." Rignol did not respond [and failed to respond to follow-up requests]…. Choi says that Rignol was the first student to decline to produce documents in his ten years serving on the Honor Committee. After this initial investigation, Choi referred Rignol to the full Honor Committee. Choi relied in part on the many similarities between Rignol's answers to exam questions and those produced when Choi submitted exam questions to ChatGPT. Choi felt that Rignol's refusal to provide requested documents provided further grounds to suspect Rignol cheated on the exams….

At the hearing, Rignol continued to deny that he had used AI on his exam. Rignol told Committee members that he had ignored Choi's emails requesting Microsoft Word copies of his exams because he had written the exam in Apple Pages, not Word. Rignol says that he left the meeting in a state of considerable distress. Following the meeting, Tsung contacted Rignol to ask that he send the Pages document that he said at the hearing he used to produce the PDF. Rignol produced this document while the Committee was still meeting….

After Rignol left the hearing, the Honor Committee began deliberating. Choi says that he and other Honor Committee members found Rignol's responses to their questions at the hearing "incredible." In particular, Choi says: "The Honor Committee was stunned by [Rignol's] disruptive action of ignoring the request to submit any documents he wished us to consider at least twenty-four hours before the meeting, his prior failure to produce the electronic files requested, and his incredible explanation for why he had not done so. It concluded that [Rignol's] actions were unprecedented."

As the Committee deliberated, Choi reviewed the Pages file that Rignol had shared and researched whether the file contained its editing history. Choi determined that Pages does not transmit the editing history of a file when the file is shared via email, but that the editing history would be available on the hard drive of the computer used to write the exam. In light of this, approximately 90 minutes after Rignol had left the hearing, Tsung called Rignol to ask that he return with his laptop. Rignol responded that he was unavailable to return to campus for a meeting, but suggested he could be available the following week. Choi then called Rignol multiple times to ask him to return but Rignol did not answer his phone. Choi said that the Committee "concluded that [Rignol's] refusal to return was another delay tactic."

After some more back and forth,

[T]he Honor Committee determined that Rignol had violated examination rules by using AI. Choi says the Honor Committee relied on Rignol's decision not to be forthcoming in reaching its decision that he used AI. In particular, "[t]he Honor Committee felt that [Rignol's] refusal to provide the documents could only be explained by [Rignol] attempting to hide misconduct in light of the fact that the only alternative explanation [Rignol] had offered (regarding his use of Pages instead of Microsoft Word) was incredible."

In addition, in concluding that Rignol used AI, the Honor Committee relied on the "strong similarities between [Rignol]'s response and the ChatGPT response to one of the Sourcing and Managing Funds exam questions." Choi says that the Honor Committee did not rely on the ChatGPTZero scans produced by Rouwenhorst….

Thierry argued that Yale's process was flawed in various ways, but the judge concluded that he couldn't show irreparable harm, which the judge said was "the single most important prerequisite for the issuance of a preliminary injunction":

A movant is entitled to a preliminary injunction only if they make a clear showing that they "will suffer an injury that is neither remote nor speculative, but actual and imminent, and one that cannot be remedied if a court waits until the end of trial to resolve the harm." …

Rignol says that missing graduation and delaying his studies will lead him to forego the one-time opportunity to be recognized as class marshal, an honor afforded to the EMBA student with the highest grades in the first year core curriculum. He further asserts that the suspension will cause continuing harm for the rest of his career because he will forever be forced to explain why it took him three years instead of two to complete his EMBA. Rignol also fears that the disclosure of SOM's disciplinary proceedings will damage his standing in the eyes of potential investors and among his peers at SOM. Additionally, Rignol submits that he will be prevented from pursuing any postgraduate studies at another institution for the duration of this litigation because no university will accept him based on his current academic record at SOM. Finally, Rignol says that the suspension could imperil his ability to remain in the United States on an investor visa….

Rignol has not carried his burden of establishing that a break in studies until the start of the next academic year (in fall 2025) and continuing to have an F on his transcript will cause him irreparable harm. At the outset, I note that the Second Circuit has held that a delayed graduation alone does not constitute irreparable harm.

And although courts sometimes find that a break in studies contributing to a delay in graduation constitutes irreparable harm, they have done so based on extenuating circumstances not present here. For example, in Doe v. Middlebury College, the district court found that a one-year suspension constituted irreparable harm because it would result in the plaintiff losing a specific job he had been offered.

Similarly, in Doe v. University of Connecticut, the Court found that a two-year suspension would freeze the undergraduate plaintiff's career in its most nascent stage and, by leaving a prominent gap on his CV, require the plaintiff to explain that he was prohibited from studying or working for an extended period because he had been found responsible for a sexual assault. The Court determined that such a suspension would "forever change the trajectory of [plaintiff's] education and career." In contrast, courts have not found irreparable harm when a suspended student is unable to identify specific career prospects or educational plans that would be forfeited by serving a suspension.

Rignol has not demonstrated that his career will be irreparably marked by continuing to serve the suspension. Rignol's attorneys describe him as "a successful businessman." Unlike the suspended undergraduate students in Doe v. Middlebury and Doe v. UConn, Rignol is vastly more established in his career and can continue working in his field of choice without interruption while suspended. Indeed, Rignol failed to identify a single concrete opportunity that he would forfeit absent preliminary injunctive relief.

I am also not convinced that any gap in studies that Rignol chooses to disclose on his resume will cause irreparable harm. Continuing to serve the suspension does not prevent Rignol from listing merely his year of graduation rather than the number of years he took to earn a degree. And to the extent the suspension diminishes Rignol's earnings, those lost earnings can be quantified and remedied with money damages after a final determination of the merits of the case.

Furthermore, I reject Rignol's assertion that a preliminary injunction is necessary to prevent the damage to his professional reputation he says would occur if investors, business associates, or classmates realized that SOM determined he violated examination rules. A preliminary injunction is not an exoneration, and it would not remedy the fact that this lawsuit describing Rignol's disciplinary record is public record….

Rignol says his aspirations to pursue graduate studies at another institution will be frustrated during the pendency of this litigation because no institution will accept an applicant whose transcript discloses academic misconduct. Here again Rignol errs in assuming that if he were granted a preliminary injunction it necessarily follows that graduate schools would not learn of the disciplinary proceedings described in these public filings. Nor has Rignol articulated any concrete or immediate plan to pursue graduate studies. Thus, the harms to his aspirations of postgraduate studies are too speculative to entitle Rignol to a preliminary injunction.

Similarly, while Rignol asserts that the suspension will undermine valuable relationships he has cultivated with his classmates in the EMBA class of 2025 and cause him to forfeit the one-time honor of serving as class marshal at graduation, I find that those harms—which broadly assert that SOM has diminished the value of Rignol's degree—are compensable with money damages.

Finally, Rignol asserts that, "with immigration policies constantly shifting," the investor visa that entitles him to live and work in the United States could be revoked if immigration officials learned that Rignol took three years to complete a two-year course of study because of a finding of academic misconduct. I agree with Defendants that any immigration consequences of Rignol's suspension are too speculative to entitle him to a preliminary injunction.

The lawsuit has publicly disclosed Rignol's disciplinary record. A preliminary injunction requiring Defendants to accommodate Rignol's graduation this spring would not exonerate Rignol nor prevent public disclosure of his discipline.

{At oral argument, Defendants further asserted that, should Rignol return to SOM following his suspension, he is eligible to compete with members of the class of 2026 for the honor of being class marshal. This further supports my finding that forfeiting the honor of being class marshal at graduation in spring 2025 is not an irreparable harm. Moreover, Rignol's claim that he would be class marshal if I were to order Defendants to reinstate him and remove the F grade for the Sourcing and Managing Funds course is speculative. The class marshal honor is awarded based on grades received for certain first year classes, including Sourcing and Managing Funds. I do not know what grade Rignol would receive in the course were his exam to be graded by his professors, and thus do not know whether Rignol would indeed be entitled to the class marshal honor should he otherwise manage to satisfy the requirements for graduation.} …

{As I conclude … that Rignol has not carried his burden with respect to the irreparable harm requirement, I do not consider the merits of Rignol's claims ….}

Brendan Gooley and James M. Sconzo represent the Yale defendants.

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[Eugene Volokh] Nearly $2M Award Upheld for Former College Tennis Coach Who Sued Over Rumor of Improper Sexual Relationship with Player

Holzgrafe, a former Quincy University tennis coach, sued former Quincy tennis player Lozier, related to a rumor that Holzgrafe had "a sexual relationship with another tennis player he coached." A jury awarded Holzgrafe "$2,000,000 in general damages, $40,000 in special damages, and $874,000 in punitive damages." Friday's decision by Judge Sue Myerscough in Holzgrafe v. Lozier largely upheld the verdict:

The Court reviews the evidence in the light most favorable to the nonmoving party at this stage. The evidence at trial established Defendant was a student at Quincy University in 2017. Prior to being a student at the University, Defendant developed a relationship with the Plaintiff, who was a tennis coach, from their interactions at various tennis camps. Defendant decided to attend Quincy University and play for the Plaintiff who was the head coach of both the men's and women's teams in 2017.

By 2017, Plaintiff's and the Defendant's relationship had soured. This friction was due in part to Defendant not playing in various tennis matches. In addition, Defendant believed Plaintiff was angry with him about the injury of his girlfriend, Abby Moore, who was also on the women's tennis team. Ms. Moore broke her ankle while practicing on a basketball court with the Defendant.

In April 2017, various rumors were circulating about the tennis program and especially Plaintiff, who was the head coach. Defendant admittedly spoke to another tennis team member, Danyil Vayser, who Defendant testified told him a rumor about the Plaintiff and another tennis player, specifically that Plaintiff had had sex with a female tennis player ("Jane Doe") while on spring break.

After this conversation, Defendant repeated this information to two people, his mother, Cindy Lozier, and his girlfriend, Abby Moore. Defendant testified that his mother told him to "keep his mouth shut" and that Abby said she wouldn't tell anybody else. However, Cindy Lozier called the University and reported the rumor.

This was not the first time Mrs. Lozier had called Quincy University. Rather, she called on at least two occasions previously when there were issues with her son. One occasion involved Defendant having a problem with his roommate. Mrs. Lozier called again when she could not locate the Defendant, her son, for approximately 3 hours and had the director of safety and security locate him. The Director of Safety and Security, Sam Lathrop, did so and told Defendant to call his mother.

Abby Moore was the best friend of Jane Doe, the female tennis player at the center of this rumor. Although Abby told Defendant she would not say anything, Abby told Jane Doe that a rumor was circulated Jane Doe was sleeping with the tennis coach. This disclosure resulted in a confrontation during tennis practice where the rumor was made more public. Thereafter, a Title IX investigation was conducted and both Defendant and Plaintiff[] voluntarily departed the University.

The court concluded, among other things, that plaintiff introduced sufficient evidence of damages; that "the verdict was not against the manifest weight of the evidence; and that the coach was a private figure. The court also had an interesting discussion of defendant's liability for the further communication of the rumor by the people he told about it:

Defendant argues the Court should have excluded any testimony and damages related to republications by third parties. Specifically, Defendant argues that these republications did not stem from a first public disclosure and the republications by Abby Moore and Defendant's mother were not reasonably foreseeable.

A speaker who makes a defamatory statement is liable for republications that are the "reasonably foreseeable consequences of his actions." Defendant argues the "confidential communications" with his mother and girlfriend where he told each that "Vayser told me that Coach and [Jane Doe] had sex over spring break" cannot meet the standard for foreseeability as these comments were supposed to remain private.

Defendant thought these conversations were private, but it is reasonably foreseeable each of the individuals he spoke to would tell another this specific information. Mr. Lozier's girlfriend at the time these statements were made, Abby Moore, was the "best friend" of the female tennis player also at the center of this rumor. No matter what assurances or promises were made by Moore, it is reasonably foreseeable that a fellow student of the same age and experience as Ms. Moore, would tell her best friend a rumor being circulated about her best friend's sex life. This is especially true when that rumor involves Ms. Moore's best friend having sex with their tennis coach.

It was also reasonably foreseeable that Cindy Lozier, Defendant's mother would contact the school about this rumor. Cindy Lozier had a history of complaining to Quincy University when her son brought issues to her attention that were non-scholastic in nature. Further, Mr. Lozier admitted that his mother previously ensured people were "investigated" if they had issues with her son and had previously spoken to other parents of other students about Mr. Holzgrafe, specifically. These facts support a finding that the re-publications of Mr. Lozier's defamatory statements were reasonably foreseeable and a natural or probable consequence.

Defendant last argues because the defamatory statements were made in private conversations rather than in the public before a large group, that it was not reasonably foreseeable republication would occur…. Defendant did not shout this rumor outside, at the tennis courts, or at a large meeting at Quincy University. That fact, however, does not make republication by his mother to the University or by Ms. Moore to her best friend, any less foreseeable based on the above analysis….

The court concluded that the $2M in "general damages"—i.e., damages presumed as a likely consequence of the defamation, rather than "special damages" that are specifically proved—was excessive:

The evidence at trial proved Plaintiff was no longer able to coach student athletes at the collegiate or club level, lost his part time job, was humiliated in the public's eyes, and was accused of cheating on his wife with a student he coached. Although this evidence shows that Plaintiff has suffered damages as a result of Defendant's tortious behavior, the damages amount falls outside of reasonable compensation.

Plaintiff, while suffering emotional damages, and that to his reputation, suffered no physical damages or severe economic damages as the result of Defendant's behavior. Plaintiff did lose a part-time job, but was still employed by his family's construction company, and able to support his family's needs. The jury clearly took into consideration the mental suffering, personal humiliation, and standing in the community. However, the amount awarded is excessive given the evidence presented by the Plaintiff.

The compensatory damages award does shock the judicial conscience in terms of the sheer amount given the mostly emotional damages evidence. A $2 million award where there was no physical injury is indeed excessive, and the Court will decrease the compensatory damages award by 50%, to $1 million.

But the court didn't reduce the punitive damages award; here's a short excerpt of that long discussion:

The evidence at trial showed that Plaintiff did not suffer any physical injury. However, Plaintiff's mental health was indeed affected by the rumor he slept with a tennis player he coached while married. Plaintiff became withdrawn, depressed, and testified his life was destroyed. What had always been a constant in his life, tennis and coaching, were no longer options based on the spreading of this rumor. This rumor was the basis for a University investigation after Defendant's mother informed Plaintiff's employer, which further spread this information to the public culminating in articles written about this matter and the subsequent litigation.

During trial, no evidence was presented of any indifference to Plaintiff's personal safety or that Plaintiff was indeed more financially vulnerable than any individual who lost his job. As this Court has discussed earlier, Defendant had conversations with both his girlfriend and his mother, told them each this rumor, which was then repeated to others. Although the two conversations Defendant admits having are seemingly isolated incidents, his girlfriend's best friend was the tennis player Plaintiff was allegedly having an affair with. Almost immediately after Defendant's disclosure, this rumor was circulated through the tennis team and was discussed with the Plaintiff at a tennis practice. The repetition of information of this nature involving an athletic team was almost inevitable and cannot be described as isolated.

Lastly, the parties disagree whether Defendant's actions were malicious in nature or evocative of ill will. A review of the evidence, including testimony by the parties and other members of the tennis team, show clear friction between the parties, as well as Defendant's parents. Defendant testified that he did not spread any rumor purposely and was just repeating what was told to him. However, Defendant's mere repetition argument was disputed by Danyil Vayser in part. This Court is unpersuaded by this argument and finds that Defendant's actions were indeed reprehensible in light of the specific factors in this matter and did indeed cause significant harm to Plaintiff's mental health and reputation and this award does not violate substantive due process principles.

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[Eugene Volokh] Compelled Head-Shaving of Mental Patient With Severe Head Lice Infestation Violated Constitution

From In the Matter of the Necessity for the Hospitalization of Lila B., decided Friday by the Alaska Supreme Court (in an opinion by Chief Justice Maassen):

A woman with a severe head-lice infestation was detained at a psychiatric hospital while she awaited evaluation for a mental health commitment. The superior court issued an order authorizing hospital staff to shave the woman's head without her consent. On appeal, the woman argues that involuntary head-shaving is a significant infringement upon a patient's fundamental rights and should require a heightened showing from the State.

We hold that before the State may shave the head of a nonconsenting patient in its care, it must demonstrate by clear and convincing evidence that head-shaving is the least restrictive means of advancing a compelling government interest. Because the State failed to meet that heightened standard in this case, we vacate the order authorizing the involuntary head-shaving….

A police officer detained Lila B. on an emergency basis for a mental health evaluation and transported her to a correctional center. Several days later the Department of Corrections petitioned for an order authorizing Lila's hospitalization for evaluation pursuant to AS 47.30.710. A superior court master issued the order, and after another three days Lila was transferred to the Alaska Psychiatric Institute (API) for evaluation.

API staff saw that Lila was suffering from a severe infestation of head lice, and they decided she should stay in the hospital admissions area until the infestation could be treated. Staff members encouraged her to let them apply a permethrin shampoo treatment to her hair, which was heavily matted. She responded that allowing them to touch or treat her hair would violate her religious beliefs, though she did not specify a belief system. After failing to secure her cooperation, API staff decided they would have to shave her head before she could be admitted to a hospital unit. [After an emergency court hearing,] hospital staff shaved Lila's head….

[At the hearing,] Lila testified next, explaining her opposition to having her head shaved. She explained that her religious belief, "which is the Bible," forbade her from touching, cutting, and shaving her hair. She testified that her eczema caused a weeping infection on her scalp, "[s]o if they cut off my hair, I'm going to have to stare at myself in the mirror and remember this day … [a]nd I'm going to have to stare at my infection on my head, and it's going to be torture." …

The parties agree that shaving Lila's head against her will substantially burdened her fundamental rights and that the State was consequently required to demonstrate that the head-shaving was the least restrictive means of furthering a compelling state interest. Lila further asserts that the State was required to prove by clear and convincing evidence that other less restrictive alternatives — such as a permethrin shampoo treatment, isolation, or wearing a shower cap — were infeasible or inadequate….

We have previously held that "the right 'to be let alone' [—] including the right to determine one's own hairstyle in accordance with individual preferences and without the interference of governmental officials or agents [—] is [a] fundamental right under the constitution of Alaska."  Hairstyle is an important component of identity and self-expression. An individual may wear hair of a certain style or length as an expression of gender identity, religious practice, or culture.  During an involuntary commitment, which is a "massive curtailment of liberty,"  hairstyle may be one of the few means of self-expression the patient has left.

We have also recognized "that 'the right to make decisions about medical treatments for oneself … is a fundamental liberty and privacy right' under the Alaska Constitution."  This right must extend equally to persons experiencing mental health crises so that they "are not treated 'as persons of lesser status or dignity because of their illness.'"  When the State seeks to involuntarily commit a patient, the reviewing court "must determine that clear and convincing evidence shows [that] no feasible less restrictive alternative to involuntary commitment exists."  Because shaving a patient's head without consent intrudes upon fundamental liberty and privacy rights, we will apply this same standard in the case of an involuntary head-shaving.

Involuntary head-shaving implicates both a patient's fundamental right to control her appearance and her fundamental right to make decisions regarding medical treatment. For patients with religious objections to hair-cutting and shaving, it may also implicate free exercise rights.  {The parties agree that the head-shaving substantially burdened Lila's fundamental liberty and privacy rights. We do not decide whether Lila's testimony regarding her religious belief established a violation of her free exercise rights.}

Lila testified that viewing her shaved scalp in the mirror would be "torture." For Lila, who was detained for evaluation but did not ultimately meet the criteria for involuntary commitment, the highly visible effects of the head-shaving lasted long after her release from state custody. Before imposing such a substantial burden on a patient's fundamental rights, it is imperative that the State meet a heightened evidentiary standard. For this narrow context, we therefore adopt the clear and convincing evidence standard….

Having clarified the burden on the State, we next determine whether the State demonstrated a compelling interest in treating Lila's lice infestation. We conclude that it did….

[T]he State indubitably has, in most circumstances, a compelling interest in "protecting the life, health, and safety of … vulnerable groups."  The superior court found that "[t]ransmission of lice could adversely affect the health of patients and staff" because lice "bite their hosts and [could] cause cellulitis and other infections," and that "[o]ther patients [at API] who are unable to attend to their own hygiene are particularly at risk for untreated infections." …

We conclude that the evidence before the superior court did not clearly and convincingly establish that shaving Lila's head was the least restrictive way to accommodate the State's legitimate concerns. The court relied on Czech's testimony that a permethrin treatment "may miss" any active lice that were embedded in Lila's hair mats, but the court also acknowledged that "[i]f shampoo alone would kill the active lice, the court would not conclude that API's proposed treatment was least restrictive." Czech testified that a permethrin treatment "should kill the active lice immediately" and "should be good for approximately 10 days" before another infestation, from a new hatch of nits, could take hold. Lila's authorized detention at this stage was only 72 hours. Even assuming that nits would begin to hatch during that 72-hour period, Czech did not testify that hospital staff could not reapply a permethrin treatment during that time. And even if permethrin alone would not have killed all active lice, the State's evidence did not establish that using a permethrin treatment in conjunction with a head covering or some measure of physical isolation would have been ineffective to further the government's compelling interest in preventing the spread of lice.

Relying on Czech's testimony, the superior court further found that "API is unable to effectively isolate [Lila]." Czech's testimony established that API would be unable to accommodate "true isolation" as was necessary during the COVID-19 pandemic. However, his testimony failed to demonstrate, by clear and convincing evidence, that API could not segregate Lila from other patients in such a way as to prevent the transmission of lice. A less strict form of isolation could have furthered the State's compelling interest, particularly if API staff first applied a permethrin treatment to reduce the severity of the lice infestation. In short, we do not read Czech's testimony as providing clear and convincing evidence that no combination of permethrin, head-covering, and reasonable limitations on contact with others could have advanced the State's compelling interest in protecting patients and staff from transmission during the period of Lila's detention.

Because these alternatives were not sufficiently explored, we conclude that the State did not meet its substantial evidentiary burden to show by clear and convincing evidence that less restrictive alternatives were unavailable or infeasible. Authorizing the involuntary head-shaving was therefore error….

Kelly R. Taylor represents Lila B.

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[Josh Blackman] Today in Supreme Court History: May 5, 1992

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.

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