Eugene Volokh's Blog, page 140

[Eugene Volokh] Lawsuit Over Binghamton University's Alleged Suppression of Lecture by Economist Arthur Laffer Can Go Forward

From Judge Lawrence Kahn's opinion yesterday in Young America's Found. v. Stenger (N.D.N.Y.):

On the morning of the Laffer Event [at a lecture hall in Binghatom], the University's Senior Director of Media and Public Relations forwarded to UPD [University Police Department], [Brian Rose, University VP for Student Affairs], and other members of the University an email from the College Progressives and an online post ostensibly written on behalf of the College Progressives, PLOT [Progressive Leaders of Tomorrow], and other groups, saying that they "will be taking away … the College Republicans' space by disrupting their event." On the afternoon of the Laffer Event, UPD saw a social media post by PLOT promoting the disruption of the Laffer Event.

[UPD Chief John] Pelletier decided to personally meet Dr. Laffer at the airport when he arrived on November 18, 2019, to inform him that his lecture may be protested. In his deposition for this action, Dr. Laffer stated that Pelletier told him the University "did not want [him] to come," asked him to cancel the event, and "intimated" that he should return to his plane.

At the Laffer Event that evening, there were about nine UPD officers, including Pelletier, inside the lecture hall and fourteen officers in the surrounding hallways. YAF and the College Republicans chose for the Laffer Event to be open to the public and not ticketed because they wanted to attract as many people as possible. A large crowd entered the lecture hall. Dr. Laffer entered through a private entrance with his security team and UPD Investigator Joseph Gallagher. College Republicans president John Restuccia introduced Dr. Laffer and told the audience that if they had any disagreements, they should reserve their questions to the end of the lecture.

Seconds after Dr. Laffer began his lecture, a man in the audience stood up and started reading a speech off his phone about economics, racial oppression, President Trump, and the justice system. Someone from the audience gave the disrupter a megaphone. During the disruption, College Republicans walked in front of Dr. Laffer's podium and held up "free speech" signs.

Over a minute into the disruption, UPD officers began to slowly approach the disrupter. As they were approaching, approximately ten to fifteen audience members surrounded the disrupter, forming a human barrier to prevent the officers from reaching him. Gallagher asked Dr. Laffer how he was doing, to which Dr. Laffer replied something to the effect of, "Let's give it ten minutes."

While UPD officers were pushing toward the crowd, Pelletier walked over to Gallagher and exchanged some words. UPD officers removed one protester from the lecture hall. As the disrupter with the megaphone was being removed, Gallagher touched Dr. Laffer's back, said something to him, and then said something to Restuccia. Restuccia nodded, made a hand-waving motion, and then Dr. Laffer, Gallagher, and members of the College Republicans left the lecture hall….

Dr. Laffer left approximately two and a half minutes after the disruption began. For the next several minutes, protesters took turns standing up and reading off their phone, passing around the megaphone, while UPD officers stood at the outskirts of the room and watched. UPD officers arrested the man who originally disrupted the event and the man who handed him a megaphone, charging them with disorderly conduct….

After the Laffer Event, Pelletier had a meeting with [University President Harvey] Stenger, Rose, and other university administrators. Pelletier presented a list of the suspects that UPD was planning to arrest. At first, Rose was in favor of arresting the suspects. Then, Stenger's Chief of Staff communicated Stenger's desire to avoid further arrests. Rose initially pushed back on Stenger's view not to arrest further individuals, but eventually supported the decision. UPD did not make any further arrests….

Young America's Foundation and others sued, and the court held the case could go forward; here's a short excerpt from the long opinion (which also dealt with other controversies and other claims):

[T]he lecture hall is a limited public forum …. "A limited public forum is created only where the government 'makes its property generally available to a certain class of speakers.'" "In limited public fora, strict scrutiny is accorded only to restrictions on speech that fall[] within the designated category for which the forum has been opened." "Such restrictions must serve a compelling government interest and be narrowly tailored to achieve that interest."

"As to expressive uses not falling within the limited category for which the forum has been opened, restrictions need only be viewpoint neutral and reasonable." Here, Plaintiffs argue the "restriction" of speech was removing Dr. Laffer from the lecture hall. Since Dr. Laffer's lecture was indeed the designated category for which the forum had been opened, any restriction of the lecture is accorded strict scrutiny. As explained below, the restriction of speech did not serve a compelling government interest and thus cannot survive strict scrutiny.

There is a genuine dispute of fact as to whether this was a Government-induced "restriction"—whether Pelletier "ordered" Dr. Laffer to leave, or whether Dr. Laffer left on his own accord. Multiple witnesses, including Dr. Laffer, affirm a Government-induced restriction, and the Laffer Video does not contradict this characterization. Indeed, if a jury credits the witnesses' testimony, the Laffer Video could confirm the story that Pelletier told Gallagher to escort Dr. Laffer out, followed by Gallagher ordering Dr. Laffer and the College Republicans to leave. Construed as such, Pelletier's action effectively amounted to a cancellation of the Laffer Event. In light of this evidence, Plaintiffs have met their burden of presenting a genuine dispute of fact that Pelletier and UPD ordered Dr. Laffer to leave.

Given the restriction of speech, Defendants cannot establish that this restriction served a compelling government interest; thus, this restriction cannot survive strict scrutiny. See Bible Believers v. Wayne Cnty., Mich. (6th Cir. 2015) ("[R]emoving[] or by other means silencing a speaker due to crowd hostility will seldom, if ever, constitute the least restrictive means available to serve a legitimate government purpose."). Pelletier argues "[h]is actions and those of his officers were for the safety of everyone at the Laffer Event." But the record does not establish any imminent danger or immediate threat to public safety. The protesters, while loud and disruptive, were not approaching Dr. Laffer or the College Republicans, but instead formed a wall in front of the disrupter. Dr. Laffer remained at the podium next to his security officer away from the protesters. The protesters were physical with UPD officers, but only to the extent of protecting the disrupter with the megaphone. The fact that Dr. Laffer said, "Let's give it ten minutes" further supports the fact that there was no immediate threat to their safety. As such, it can hardly be said that there was any sort of danger or other immediate threat to public safety that could present a compelling government interest in canceling the lecture.

Since the restriction did not serve a compelling government interest, it does not survive strict scrutiny. Accordingly, there is a genuine dispute of material fact as to whether Pelletier suppressed Plaintiffs' speech.

Nevertheless, Pelletier argues that he is entitled to summary judgment because the restriction of speech was reasonable and viewpoint-neutral. As noted above, the restriction of speech falls within the designated category for which the forum has been opened, and thus strict scrutiny (and not the lower standard) applies. Nevertheless, the Court finds that even under the lower standard, Plaintiffs have presented a genuine dispute of fact that this cancellation was not "reasonable or viewpoint-neutral." Under this standard, "government officials may stop or disperse public demonstrations or protests where clear and present danger of riot, disorder, interference with traffic upon the public streets, or other immediate threat to public safety, peace, or order, appears." Yet even under this standard, this restriction would not survive.

As explained above, there was no clear and present danger of riot or an immediate threat to public safety, so the harsh action of cancelling the lecture—if credited—was far from reasonable.

Nor was this cancellation viewpoint-neutral. The protestor was allowed to disrupt the lecture for a minute before anyone attempted to intervene. Then, once Dr. Laffer and the College Republicans left the lecture hall, UPD officers abandoned all attempts to control the other disrupters. The disrupters continued to exercise their opposing viewpoint for almost eight minutes, while Pelletier and UPD officers stood on the outskirts of the room and watched. See Ctr. for Bio-Ethical Reform, Inc. v. Black (W.D.N.Y. 2017) (finding Plaintiffs stated a First Amendment claim when a university did nothing to stop a "counter-demonstrators' disruption" from burdening students' exercise of protected speech). Crediting Plaintiffs' evidence, Pelletier excluded the College Republicans' speech but allowed the College Progressives' speech to remain. As such, the restriction was not reasonable or viewpoint-neutral….

Pelletier is [also] not entitled to qualified immunity. It is clearly established that cancelling or excluding speech "will seldom, if ever, constitute the least restrictive means available to serve a legitimate government purpose." Moreover, the Second Circuit has clearly established that restrictions of speech falling within the designated category for which the limited public forum was opened is subject to strict scrutiny. There is no question that Dr. Laffer's lecture fell into the limited purpose category for which the forum was opened—it was the very reason the forum was opened. As such, it was not objectively reasonable to obstruct the very speech for which the forum was opened.

Pelletier argues that "[i]t would have been objectively reasonable for Pelletier to believe that [Dr.] Laffer could be escorted away for everyone's safety." But as explained above, there was no threat to public safety, so Pelletier's actions were not objectively reasonable.

Indeed, the jury must decide whether to credit any of Plaintiffs' evidence, but the Court finds there to be a genuine dispute of material fact as to whether Pelletier suppressed Plaintiffs' First Amendment rights by effectively cancelling the Laffer Event. Summary judgment against Pelletier in his individual capacity is denied.

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[Josh Blackman] Today in Supreme Court History: March 21, 1989

3/21/1989: Texas v. Johnson is argued.

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[Orin S. Kerr] Warrantless Home Searches Under the Alien Enemies Act?

[Trying to figure out a reported new legal argument.]

In the New York Times, Devlin Barrett reports that "Trump administration lawyers have determined that an 18th-century wartime law the president has invoked to deport suspected members of a Venezuelan gang allows federal agents to enter homes without a warrant, according to people familiar with internal discussions."

From the story:

The disclosure reflects the Trump administration's aggressive view of presidential power, including setting aside a key provision of the Fourth Amendment that requires a court order to search someone's home. * * * *

Last week, Mr. Trump quietly signed a proclamation invoking the law, known as the Alien Enemies Act of 1798. It grants him the authority to remove from the United States foreign citizens he has designated as "alien enemies" in the cases of war or an invasion.

His order took aim at Venezuelan citizens 14 or older who belong to the Tren de Aragua gang, and who are not naturalized or lawful permanent residents. "All such alien enemies, wherever found within any territory subject to the jurisdiction of the United States, are subject to summary apprehension," the proclamation said.

Senior lawyers at the Justice Department view that language, combined with the historical use of the law, to mean that the government does not need a warrant to enter a home or premises to search for people believed to be members of that gang, according to two officials familiar with the new policy. * * *

The curious part of the story is that it's hard to tell  what the government's legal theory is.  What specifically do they think suspends the usual Fourth Amendment warrant requirement?

The closest I can figure combines the references to "historical uses of the law" and a passage near the end of the story that references this 2024 report on the Alien Enemies Act.   A sentence in that report says that, during World War II,  being an alien enemy as designated by the Act was used "as sufficient cause for warrantless house raids in search of contraband."   The footnote cited as support states:

Commission on Wartime Relocation and Internment of Civilians, Personal Justice Denied (Seattle: University of Washington Press, 1997), 62; and John DeWitt, Commanding General, to James Rowe, Assistant Attorney General, Re: Alien Enemy Control Requirements, January 5, 1942, 6, https://digitalassets.lib.berkeley.ed... text/cubanc_35_1_00257389ta.pdf.

Maybe the idea is that the Alien Enemies Act allowed warrantless searches in World War II, and therefore does so today?  Let's take a look at the two sources.  The 1997 book is not available electronically, so I'm not sure (at least yet) what it says.  The 1942 document is here, but it seems to say something pretty different from what the report says it says.  Although the 2024 report appears to claim that it authorized warrantless searches,  the relevant passage seems to be a discussion of how to draft particularized search warrants to search homes:

Putting aside that an executive branch practice authorized in the early days of World War II does not exactly establish a constitutional precedent today, this a discussion of how to write particular warrants rather than an authorization of warrantless searches.

Now wait, you're thinking:  This passage seems to say that the U.S. Attorney can authorize warrants.  So that would mean that the Executive can get warrants from the Executive, which isn't much of a warrant requirement at all.  Maybe that's the warrantless search that the Trump Administration has in mind?

That's possible.  With that said, that practice would seem to run afoul of Coolidge v. New Hampshire, 403 U.S. 443 (1971), handed down long after World War II.  It turns out that, in New Hampshire, back in the 1960s, anyone could be a Justice of the Peace empowered to issue warrants.  Police officers could be Justices of the Peace, as could prosecutors.  Coolidge involved a murder investigation in which investigators obtained a search warrant from the state Attorney General in his capacity as Justice of the Peace. Coolidge held that the warrant was invalid:

Without disrespect to the state law enforcement agent here involved, the whole point of the basic rule so well expressed by Mr. Justice Jackson [that warrants had to be issued by judicial officers, not law enforcement-- ed.]  is that prosecutors and policemen simply cannot be asked to maintain the requisite neutrality with regard to their own investigations-the 'competitive enterprise' that must rightly engage their single-minded attention. * * * *

We find no escape from the conclusion that the seizure and search of the [item searched here] cannot constitutionally rest upon the warrant issued by the state official who was the chief investigator and prosecutor in this case. Since he was not the neutral and detached magistrate required by the Constitution, the search stands on no firmer ground than if there had been no warrant at all.

I can imagine a few other possible theories that the story might be referencing, but I'll wait to hear more reporting (if any is forthcoming) before getting into them.  In the meantime I just wanted to flag that it wasn't at all clear, at least to me, what argument the Trump Administration lawyers have in mind.

As always, stay tuned.

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[Stephen Halbrook] Second Amendment Roundup: 18 to 20 Age Ban Cases Coming to a Head

[Both sides agree the Supreme Court should grant cert.]

On March 10, the respondents in the successful challenge to Minnesota's ban on issuance of pistol carry permits to persons aged 18 to 20, Jacobson v. Worth, agreed with the state petitioner that the Supreme Court should grant certiorari in the case.  The Commissioner of the Department of Public Safety, the petitioner, asked the Court to grant, vacate, and remand (GVR) the case and in the alternative to resolve it on the merits.  I previously analyzed the Eighth Circuit's reasoning in finding the exclusion of persons in the 18-20 age group to violate the Second Amendment here.

Days later, on March 14, the Eleventh Circuit issued its long-awaited en banc decision in National Rifle Association v. Bondi, upholding Florida's prohibition on purchase of a firearm by persons aged 18 to 20.  That followed the Fifth Circuit's holding in Reese v. Bureau of Alcohol, Tobacco, Firearms and Explosives on January 30 that the federal restriction on handgun sales to persons under 21 violates the Second Amendment (see my post here).  On the same date, that same issue was also argued in the Fourth Circuit in Brown v. ATF.

The Eighth Circuit in Jacobson was the first federal court of appeals to resolve a Second Amendment case following the Supreme Court's decision in Rahimi, which upheld the federal ban on possession of firearms by a person subject to a court order finding him to be a credible threat to the physical safety of an intimate partner.  The court held that Minnesota failed to support its claim that 18 to 20-year-olds are a danger to the public. Contrast that with Rahimi, which repeatedly emphasized that the law at issue "applies only once a court has found that the defendant 'represents a credible threat to the physical safety' of another." The statistics applicable to the subject age group did not show that an 18-year-old, in Rahimi's words, "poses a clear threat of physical violence to another." Unlike the Minnesota law, the statute in Rahimi did "not broadly restrict arms use by the public generally."

Despite the Jacobson court's extensive analysis of Rahimi, the cert petition asks the Supreme Court to GVR the case because "instead of inviting supplemental briefing regarding the impact of Rahimi or remanding to the district court to conduct that analysis, the Eighth Circuit simply added Rahimi ornamentation to the Bruen-based opinion it had drafted."  It argues that the Court should treat Jacobson the same as the several others that it GVRed for reconsideration in light of Rahimi.  But all of those cases were decided before Rahimi.  And again, Jacobson took full account of Rahimi.

Alternatively, the cert petition argues that the circuit conflict warrants the Court's plenary review.  It claims that the "robust evidentiary record of historical principles and empirical data supports the constitutionality" of the statute based on two expert reports.  Both turn out to be two of the most prominent suspects in anti-Second Amendment litigation.

The first expert is Professor Saul Cornell, touted to be a historian on "early American history on guns and people under 21."  He's one and the same partisan who characterized the Court's decisions in Heller, McDonald, and Bruen as "the Federalist Society's latest intellectual scam," calling Bruen in particular "an ideological fantasy" and "an illustration of the current Supreme Court's new interpretive model: 'Fiction, Fantasy, and Mythology.'"

The second expert is Professor John J. Donohue, who opined on "the risks of gun violence from 18-to20-year-olds."   Another partisan, Donohue repeated Justice Stevens' statement that Heller was "the worst decision [written by Justice Scalia] during his 34 years on the Supreme Court" and added that "Bruen has created an unworkable and largely nonsensical standard for evaluating gun regulations based on history when the history has very little to say about wise policy today."

As the cert petition notes, the challengers "submitted no expert reports on any issue or rebuttal facts on these issues."  That's because, just as in Heller and Bruen, pure questions of law are the only issues.

The Jacobson respondents agree that the Court should grant cert and decide the merits, but should not GVR the case given that the Eighth Circuit already considered the issue in light of Rahimi.

As noted, the en banc Eleventh Circuit in NRA v. Bondi upheld Florida's ban on purchase of a firearm by a person in the 18-20 age group.  The majority decision was written by Chief Judge William Pryor, who ironically won a high award from the NRA when he was the Alabama Attorney General, and whose Eleventh Circuit nomination was opposed in part for his supposed status as an "opponent of gun control legislation."

The panel decision had unabashedly ruled that "Historical sources from the Reconstruction Era are more probative of the Second Amendment's scope than those from the Founding Era."  Everytown Law has been citing that conclusion in all of its briefs, even after the petition for rehearing was granted and the decision was vacated.

Chief Judge Pryor wrote to the contrary that "the Founding era is the primary period against which we compare the Florida law."  Not only has the Supreme Court "warned against the overuse of history from Reconstruction," but also its interpretation of other amendments "reflect the preeminence of Founding-era sources to the meaning of the Bill of Rights."  However, "we may look to historical practice from the mid-to-late nineteenth century at least to confirm the Founding-era understanding of the Second Amendment."

Fair enough.  But the problem is that there are no Founding-era analogues for Florida's criminalization of the purchase of a firearm to a person who is in the 18-20 age group.  Instead, the majority relies primarily on the fact that at the Founding, a contract with a person under 21 was revocable, and thus it was more difficult for such person to purchase a firearm on credit.  That was because minors were not considered reliable, which is also the reason for Florida's law, thus satisfying Bruen's "why" component.  As to "how" the right was burdened, at the Founding minors may have found it difficult to purchase firearms because they "lacked cash and the capacity to contract," whereas the Florida law imposes up to five years in the penitentiary for purchase of a firearm.  The court doesn't say it that way, but that's the reality.  To call that a valid analogue for the Florida law seems incredible.

For the majority, that premise opened the floodgates to out-of-bounds, post-enactment history: "The laws from the mid-to-late nineteenth century make explicit what was implicit at the Founding: laws may regulate the purchase of firearms by minors."  But even then, the court concedes that the state laws of that period (for the states that had any such laws) only regulated sale of concealable weapons, not rifles or shotguns.

Moreover, the court adds, "some of these laws permitted women to purchase arms at 18 years of age instead of 21."  That's the only use of the word "women" in the majority opinion or any of the concurrences.  Florida purported to ban firearm purchases because of the higher rate of violence of "people" in the affected age group, but that rate is largely limited to males.  What was the justification for banning purchases by females?

Unwittingly, the majority opinion likely would support banning married women from buying guns, since like minors at the Founding, they too lacked contract rights under the doctrine of coverture. This highlights the majority's "law trapped in amber" problem—even if it were true that 18-to-20-year-olds and married women may have had difficulty acquiring a firearm at the Founding because of limitations on their right to contract, that would not support limitations on those groups today because 18-to-20-year-olds now are generally considered adults and we have repudiated the doctrine of coverture. And there is no historical principle that would support banning gun sales to any group of adults on account of their age or sex.

Three judges joined in Judge Brasher's dissenting opinion, two of which also wrote their own dissents.  Today, 18 is the age of majority, and not just for contract rights.  The Commissioner of the Department of Law Enforcement (the nominal defendant) conceded that such persons are part of "the people" under the Second Amendment.  Further:

The Commissioner concedes that young adults at the Founding could purchase guns with money up front; the very thing they are prohibited from doing by Florida's ban. He concedes that they could even purchase guns on credit as long as the seller was willing to bear the risk that the contract might be voided, and the gun returned.

As in all of these age cases, the elephant in the kitchen is that males 18 and over were required, most prominently by the federal Militia Act of 1792, to obtain their own arms and bring them to militia musters.  (The majority wrote this off because some parents bought the arms for their children in this age group.)  Further, as the Georgia Supreme Court wrote in Nunn v. State (1846), the Second Amendment protects the "right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms."

No question exists that a cert petition will be filed in NRA v. Bondi.  It will be interesting to see how Attorney General Pam Bondi's Department of Justice will respond.  At any rate, the circuit court decisions are split and have now percolated to the boiling point, and so the Supreme Court may as well grant cert in Jacobson v. Worth and resolve the issue.

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[Eugene Volokh] Our Guest-Blogger Prof. Robert Leider (George Mason) Is New ATF Chief Counsel/Assistant Director

So reports the ATF page. Prof. Leider is a noted scholar of criminal law, the law of self-defense, and gun control (among other topics), and a former clerk for Justice Thomas.

You can read Prof. Leider's guest posts, which stemmed from his article The Modern Common Law of Crime, here; we've also quoted him extensively in other posts, such as Guns, Background Checks, Administrative Law, and the Sixth Circuit Michigan Case; Are Parents Responsible for School Shootings Committed by their Children?; and Military Federalism and State Sovereign Immunity. He's also the coauthor, with our own Will Baude, of The General-Law Right to Bear Arms.

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[Eugene Volokh] Justice Gorsuch's Dissent in Death Penalty / Religious Objection Case

In Tuesday's Hoffman v. Westcott, the Court denied a stay of execution; Justices Sotomayor, Kagan, and Jackson would have granted a stay, but didn't write an opinion; and Justice Gorsuch dissented, for himself:

The State of Louisiana plans to execute Jessie Hoffman tonight. Mr. Hoffman is a Buddhist. And he argues that the State's chosen method of execution—nitrogen hypoxia—violates his rights under the Religious Land Use and Institutionalized Persons Act of 2000. Nitrogen hypoxia will, he says, substantially burden his religious exercise by interfering with his meditative breathing as he dies. No one has questioned the sincerity of Mr. Hoffman's religious beliefs. Yet the district court rejected his RLUIPA claim anyway based on its own "find[ing]" about the kind of breathing Mr. Hoffman's faith requires.

That finding contravened the fundamental principle that courts have "no license to declare … whether an adherent has 'correctly perceived' the commands of his religion." The Court of Appeals failed to confront the district court's apparent legal error—or even to mention the RLUIPA claim Mr. Hoffman pressed on appeal. Perhaps that claim ultimately lacks merit. But the Fifth Circuit's unexplained omission leaves this Court poorly positioned to assess it. I would therefore grant the stay application and petition for writ of certiorari, vacate the judgment of the Fifth Circuit, and remand for that court to address Mr. Hoffman's RLUIPA claim in the first instance.

Note that Justice Gorsuch was speaking only about the district court's decision to interpret for itself what Buddhism demands (which is indeed something secular courts aren't allowed to do under First Amendment precedent), not the ultimate bottom line question of whether this form of execution could indeed be applied to Hoffman.

Here, by the way, is what seems to be the relevant passage from the district court decision:

The Court finds that meditative breathing is an exercise attendant to practicing Hoffman's chosen faith of Buddhism. The Court dismissed Hoffman's RLUIPA claim finding that substituting nitrogen for atmospheric air does not substantially burden. Hoffman's ability to breath. Nothing in the evidence changes this conclusion. The record evidence established that nitrogen is an inert, tasteless, colorless, odorless gas.

"[A] government action or regulation creates a 'substantial burden' on a religious exercise if it truly pressures the adherent to significantly modify his religious behavior and significantly violate his religious beliefs." Plaintiff responds that Hoffman's "sincerely held religious beliefs are substantially burdened not because he will be unable to breathe" but because he will be forced to breath nitrogen instead of air. At the preliminary injunction hearing, two Buddhist clerics testified that air (not nitrogen) is necessary for meditative breathing. They cited no religious text or instruction by the historical Buddha in support of this proposition.

The Court finds that Buddhism calls its adherents to a ritual of breathing rhythmically to achieve a mediative state, what the clerics referred to as "zen." This is analogous to Western religions' practice of prayer. The Plaintiff admits that he will have the ability to breathe in the nitrogen as it is administered. The Court finds there is no substantial burden to his exercise of rhythmic breathing. The Court denies reconsideration of this claim.

This strikes me as indeed unconstitutional, just as it would be unconstitutional for a judge to reject a Christian's religious exemption claim by saying that he and his experts "cited no religious text or instruction by Jesus" in support of a particular view: "Courts are not arbiters of scriptural interpretation" (Thomas v. Review Bd. (1981)). The questions under religious exemption regimes such as RLUIPA are whether the government have substantially burdened a claimant's sincere belief, and then whether the government may still justify the burden by showing that it's the least restrictive means of serving a compelling government interest. They cannot include the judge asking what the real beliefs of the relevant religion are.

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[Eugene Volokh] "A Statement from Constitutional Law Scholars on Columbia"

[by "Eugene Volokh, Michael C. Dorf, David Cole, and 15 other scholars."]

Published this morning in the New York Review of Books:

We write as constitutional scholars—some liberal and some conservative—who seek to defend academic freedom and the First Amendment in the wake of the federal government's recent treatment of Columbia University.

The First Amendment protects speech many of us find wrongheaded or deeply offensive, including anti-Israel advocacy and even antisemitic advocacy. The government may not threaten funding cuts as a tool to pressure recipients into suppressing such viewpoints. This is especially so for universities, which should be committed to respecting free speech.

At the same time, the First Amendment of course doesn't protect antisemitic violence, true threats of violence, or certain kinds of speech that may properly be labeled "harassment." Title VI rightly requires universities to protect their students and other community members from such behavior. But the lines between legally unprotected harassment on the one hand and protected speech on the other are notoriously difficult to draw and are often fact-specific. In part because of that, any sanctions imposed on universities for Title VI violations must follow that statute's well-established procedural rules, which help make clear what speech is sanctionable and what speech is constitutionally protected.

Yet the administration's March 7 cancellation of $400 million in federal funding to Columbia University did not adhere to such procedural safeguards. Neither did its March 13 ultimatum stipulating that Columbia make numerous changes to its academic policies—including the demand that, within one week, it "provide a full plan" to place an entire "department under academic receivership for a minimum of five years"—as "a precondition for formal negotiations regarding Columbia University's continued financial relationship with the United States government."

Under Title VI, the government may not cut off funds until it has

conducted a program-by-program evaluation of the alleged violations; provided recipients with notice and "an opportunity for hearing"; limited any funding cutoff "to the particular program, or part thereof, in which…noncompliance has been…found"; and submitted a report explaining its actions to the relevant committees in Congress at least thirty days before any funds can be stopped.

These requirements aim to ensure that any withdrawal of funds is based on genuine misbehavior on the university's part—on illegal toleration of discriminatory conduct, not just on allowance of First Amendment–protected expression. The requirements aim to make clear to recipients of federal funds just what behavior can form the basis for sanctions. And each of the requirements aims to make sure that the sanction fits the offense.

Yet here the sanction was imposed without any agency or court finding that Columbia violated Title VI in its response to antisemitic harassment or discrimination. Even to the extent that some protesters' behavior amounted to illegal harassment of Jewish students, no agency and no court has concluded that Columbia illegally failed to reasonably respond to such discriminatory behavior—much less failed to act at a level justifying withdrawal of nearly half a billion dollars in funds. The government's action therefore risks deterring and suppressing constitutionally protected speech—not just illegal discriminatory conduct.

And this danger extends beyond universities. The safeguards and limits that the administration has ignored are designed to protect all recipients of federal funding from unwarranted or excessive sanctions. They protect recipients of federal funding across the ideological spectrum, including K-12 schools, hospitals, nursing homes, and business and agricultural initiatives. The administration's failure to honor the Title VI safeguards creates a dangerous precedent for every recipient of federal financial assistance.

Steven G. Calabresi, Northwestern Law School
Erwin Chemerinsky, Berkeley Law School
David Cole, Georgetown University Law Center
Michael C. Dorf, Cornell Law School
Richard Epstein, NYU School of Law
Owen Fiss, Yale Law School
Aziz Huq, University of Chicago Law School
Pamela Karlan, Stanford Law School
Randall Kennedy, Harvard Law School
Genevieve Lakier, University of Chicago Law School
Michael McConnell, Stanford Law School
Michael Paulsen, St. Thomas Law School
Robert Post, Yale Law School
David Rabban, University of Texas Law School
Geoffrey R. Stone, University of Chicago Law School
Nadine Strossen, New York Law School
Eugene Volokh, Hoover Institution, Stanford University
Keith Whittington, Yale Law School

(I've omitted the signatories' formal titles, just to make the list easier to read.)

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[Keith E. Whittington] Diversity Statements Coming to an End at the University of California

[Is the experiment over?]

The University of California is the godfather of the use of so-called diversity statements in faculty hiring. I have a piece forthcoming at the Nebraska Law Review arguing that such diversity statement requirements for general faculty hiring at state universities violate the First Amendment and violate academic freedom principles everywhere. It seems quite likely that in practice such diversity statement requirements are also used to facilitate illegal racial discrimination in faculty hiring.

The University of California system's board of regents has now put an end to the use of such diversity statements at those schools. This is a truly remarkable development. Not unreasonably, this decision is being put in the context of the Trump administration's extraordinary attack on Columbia University, a move that I think is both lawless and itself a threat to academic freedom. But there's no question that it got the attention of university leaders across the country, and if it encourages some of them to rededicate themselves to their core institutional mission and its central values then at least some good will come of it. So silver linings and all that.

Surely diversity statements are on their last legs in higher ed -- at least until the next Democratic administration comes into power and demands that every university start using them.

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[Keith E. Whittington] The Trump Administration and Columbia University

[A threat to academic freedom]

Yesterday the Trump administration launched yet another massive financial blow at a university because it has done some things the administration does not like. This time the University of Pennsylvania's medical research is being decimated because the administration disagrees with the Penn athletic department's transgender policies.

Today I have a piece out in The Dispatch focusing on the earlier actions regarding Columbia University. New reporting suggests Columbia will soon cave to the administration's demands. Not surprising given the stakes at issue, but it will be important to see the details of what Columbia actually agrees to do and how the administration actually responds to the win.

My piece is titled "Funding with Strings Attached Risks Strangling Academic Freedom." A bit overstated, as titles often are, but this action by the administration certainly poses such a threat. Both the administration's approach to handling funding cut-offs under the Civil Rights Act and the specific demands being made of Columbia pose extraordinary threat to a pluralistic society and universities as independent centers of scholarly activity and intellectual exchange. Columbia deserves the reputational blow that it is now suffering, but Columbia's bad actions do not justify the administration's own troubling behavior.

From the piece:

These actions by the administration do not comply with existing federal civil rights laws and severely impose on the independence of a private university to set its own policies regarding speech and scholarship. The administration has seized any weapon at hand—without much concern for the legality of how it is using that weapon—to try to bend a university to its will. In doing so, it goes far beyond attempting to remedy any particular civil rights violation. No, the White House wants to force Columbia to pursue its educational and scholarly mission differently. This is not something the government should demand of a private university.

You can read the whole thing here.

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[Josh Blackman] Today in Supreme Court History: March 20, 1854

3/20/1854: The Republican Party is founded. President Abraham Lincoln would be elected President on the Republican ticket six years later on November 6, 1860.

The post Today in Supreme Court History: March 20, 1854 appeared first on Reason.com.