Eugene Volokh's Blog, page 281

[Eugene Volokh] Briefs Supporting Strong First Amendment Protection for K-12 Students' Outside-School Speech

[The amicus briefs come from several organizations and people, some liberal (e.g., the ACLU), some conservative, and some apolitical.]

The Second Circuit will be hearing the appeal of the district court decision in Leroy v. Livingston Manor School Dist.; here's the summary of the facts from Leroy's opening brief (the image involved is included above):

On April 19, 2021, while still a Livingston Manor student, Leroy was socializing with three friends after school hours, away from school property. The four were in a dance studio parking lot to pick up Leroy's friend's sister. While there, one friend told Leroy that there had been a noise coming from his car on the drive over and Leroy laid on the ground in front of the car to investigate. While he was there, another friend knelt on Leroy's back and had the third friend take a picture.

The three friends each posted the picture to their personal Snapchat accounts, with Leroy adding the caption, "Cops got another."

Another posted the same image but with a "Black Lives Matter" logo overlayed. Upon receiving several disapproving private messages on the Snapchat platform, Leroy deleted his post and asked the others to do the same, which they did. All told, the images were accessible to others for around seven minutes….

Within the seven minutes that the posts were available, a fellow Livingston Manor student, Leroy's former girlfriend, "Grace" …, captured a screenshot Leroy's post, and reposted it on Facebook and other online platforms to "condemn" Leroy. Apparently to amplify any public response, Grace also jointly posted another, out-of-context photo of two other Livingston Manor students taken by Leroy in March of 2021. An activist, Gem Amber Sun Helper reposted the images with commentary asserting that Livingston Manor "surpassed its dark history of being a Sundown Town with its own KKK Chapter." Helper or a later commentator shared this post and the phone number for Livingston Manor Central school, telling viewers to "dm" direct or private message her for additional contact information.

Grace and Helper's tactics had the apparently-intended effect against Leroy. Several individuals emailed their disapproval to John Evans, Livingston Manor's Superintendent, who responded with brief remarks about an ongoing investigation and disavowing racism in the school. The school's principal, Shirlee Davis, and its guidance counselor, Meagan Edwards, also received similar emails. Other school administrators also received emails …. The record discloses a total of 23 email exchanges between community members and school district employees.

The following morning, Davis instructed Leroy not to attend school but to instead attend a meeting with his parents before her and Evans. During the meeting, Davis and Evans interviewed Leroy about the incident. On April 21, Davis sent a letter to Leroy's parents informing them that she was suspending Leroy for five days, the maximum permissible under state law without a hearing, for "post[ing] racially offensive material on social media…" and referring the matter to Evans to determine whether such a hearing and additional punishment was warranted.

Based on a "buzz up the building" and rumors of a student protest in response to the Snapchat posts, Evans scheduled a brief assembly for seventh through twelfth grades "kind of as a counter measure to that." At the assembly, Evans preached to the students that racism had no place in their school. The entire assembly took about 15 to 20 minutes. A few students stayed afterward for "a few minutes" for a supervised kneeling protest.

The same day, Evans contacted Capital Region Board District Superintendent Anita Murphy to arrange a formal investigation and report on the incident. The investigator, Bethany Centrone, Legal Counsel for Capital Region Board, spoke with Leroy's father, Evans, and two additional students. She relied on a review of the interviews conducted by Davis and Evans and other materials to produce her report.

In her report, Centrone found that regardless of Leroy's intent, his "post[] [was] targeted at African Americans and [was] discriminatory." She recommended that Leroy and the others involved "be referred to a Superintendent's Hearing to determine whether additional discipline…is warranted for any or all of these students." …

After a disciplinary hearing, Evans exceed[ed] the hearing officer's recommendation and ban[ned] Leroy from school and extracurricular activities, including his graduation ceremony [though a New York state court enjoined the ban from the graduation ceremony].

The Hamilton Lincoln Law Institute, which is representing Leroy, has posted its brief and the amicus briefs on its site; they include briefs from the ACLU (national); FIRE, the Manhattan Institute, and the National Coalition Against Censorship; several First Amendment Scholars; the Liberty Justice Center; and the Center for Individual Rights and me.

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[Jonathan H. Adler] Supreme Court's Shrinking Docket Is Increasingly Backloaded

[The justices are hearing future cases, but that has not sped up their work. ]

The Supreme Court hears fewer cases than it used to, and justices write more separate opinions. Another change in the Court's docket has been that it's increasingly backloaded. The Court doesn't grant enough cases in the spring for the coming Fall, so the next term's cases get pushed later, contributing to the June (or even July) crunch of opinions at the end.

Kimberly Robinson of Bloomberg reports:

The justices have so far granted more than two dozen cases to be heard in their upcoming term, a handful short of the number needed to fill the court's first three argument sittings in October, November, and December. For a court that's hearing around 60 cases a term, that's a significant share of the workload pushed back.

The slow start means the justices will have to make up the deficit, creating a domino effect when hearing more cases later in the term means more opinions will stack up at the end, too. That's typically in late June, but last term slipped to early July. . . .

The court's rules contemplate approximately 115 days from when a case is granted to when it is argued—45 days for the initial brief, 30 for the response, 30 for the reply, and at least 10 days for the justices to review the briefs.

Because the court takes a summer recess from approximately July to October, that means any cases to be argued in the fall must generally be granted from mid-January to the end of the term. That's right when the court is the busiest, preparing for oral arguments and drafting opinions.

Taking fewer cases has not resulted in cases being decided more quickly, but it may have contributed to a proliferation of opinions (and longer opinions too).

The number of concurring opinions has gone up in recent terms, according to data compiled by Adam Feldman, of the blog Empirical SCOTUS. The percentage of total opinions that have been concurrences has fluctuated between 25% and 34% between 2017 and 2023, according to Feldman.

The justices last term penned more concurring opinions, 62, than majority ones, 59, accounting for almost 40% of total decisions issued in argued cases, a Bloomberg Law analysis showed. . . .

And those separate opinions have gotten longer. The average length of a concurring opinion has ballooned from 815 words in the court's 2016 term to 2,155 words last term, according to statistics compiled by Feldman and University of Florida political science professor Jake Truscott. . . .

Like concurrences, majority and dissenting opinions have also become longer, according to Feldman and Truscott's statistics.

Majority opinions have grown by nearly 800 words since 2016 to just over 5,000 words and dissents have more than doubled in that same period to around 5,900 words.

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[Eugene Volokh] Government Official's Attempt to Use an Anti-Stalking Order Against a Citizen

I've written about some other such cases in my Overbroad Injunctions article; this case involves a somewhat different set of facts than the ones I discussed there, but I thought it worth noting as well. (I agree that some citizen behavior related to officials—such as violence or true threats of crime—should indeed be enjoinable and even criminally punishable; but, unsurprisingly, protective order statutes that aren't limited to violence or true threats are sometimes used to target behavior that isn't violence or true threats.)

From Frenchko v. Shook, decided Monday by Ohio Court of Appeals Judge Eugene Lucci, joined by Judges Mary Jane Trapp and Robert Patton; note that the opinion is long, and this excerpt necessarily omits some details about Shook's background (and alleged past mental health problems):

On November 14, 2023, {Niki (Michele Nicole)} Frenchko, a Trumbull County Commissioner, filed a petition requesting the trial court to issue a CSPO {Civil Stalking Protection Order} against appellee, Shawn Shook, a resident of Warren Township in Trumbull County, Ohio, who frequently attends the commissioners' meetings.

The trial court denied the CSPO request, and the Court of Appeals affirmed that decision. Here's an excerpt from Frenchko's factual allegations:

Frenchko provided evidence pertaining to Shook's behavior and comments at commissioners' meetings and other events during this time period. Frenchko introduced into evidence video of portions of the commissioner's meetings at which Shook made comments after the public was invited to speak on matters "for the good of Trumbull County."

In his comments, Shook questioned Frenchko as to her mental health; maintained that her behavior of "playing with [her] hair, taking [her] glasses on and off, shuffling [her] papers, [and] scraping out [her] fingernails" were "games" and part of her "playbook"; maintained that Frenchko had criticized others for not coming to work or not parking in the correct locations, when Frenchko herself did not come to work and parked in designated handicapped spaces. During these comments, Shook made references to Frenchko's attendance at events outside of the commissioners' meetings.

During her testimony, Frenchko maintained that Shook's comments at the commissioners' meetings were unrelated to county business, and she believed Shook's intent was to intimidate her and to demonstrate to her that he was tracking her whereabouts. Further, Frenchko maintained that Shook obtained some of the information related to her location from her personal Facebook page, which she had blocked him from viewing.

However, Shook maintained that his comments were related to Frenchko's use of the handicapped parking spaces and her failure to attend workshops or training that had been scheduled for the commissioners. Specifically, Shook referenced Frenchko dancing at a festival in support of his position that it was unnecessary for Frenchko to utilize handicapped parking spaces. Shook acknowledged that he had multiple Facebook accounts, and he was able to view Frenchko's public posts on her personal page using a different account than the one Frenchko had blocked. He also acknowledged that much of his information as to Frenchko's whereabouts was available from groups and other individuals on Facebook.

In a video of a portion of the commissioners' meeting held on November 15, 2023, the day after Frenchko filed her petition for a CSPO, but prior to the issuance of the ex parte order, Shook placed a sign on the dais in front of Frenchko's phone, which was recording the audience while the commissioners exited the room to go into executive session. The sign blocked the video recording until Frenchko removed it.

In addition to the evidence regarding Shook's comments and conduct at the commissioners' meetings, evidence was presented as to two other functions at which Frenchko and Shook were both present—a county GOP petition signing event and a Warren City Council meeting.

With respect to the GOP event, Shook arrived at the event approximately one to two hours prior to Frenchko. Frenchko maintained that when she arrived at the event, Shook "lurk[ed]" wherever she went and stared at her; although other evidence indicated that Shook remained standing or sitting behind the county GOP secretary. A witness for Frenchko who had attended the event with her maintained that Shook was the only member of the public that she observed remaining in a singular location during the event. Frenchko's witness testified that, although other individuals were taking photographs during the event, the county GOP chairperson informed Frenchko that she needed to stop photographing or leave.

Thereafter, the GOP secretary called police officers at the direction of the chairperson, and, after the secretary indicated that the officers were on their way, Frenchko walked to the parking lot. Frenchko testified that she was unaware whether Shook remained at the event after she left, and she acknowledged that she had no evidence indicating that Shook was aware in advance of his arrival that she would be present at the event. However, Frenchko maintained that a reasonable person would have assumed she would be present.

With respect to the Warren City Council meeting, Frenchko testified that she was present at the council meeting held on November 8, 2023, and Shook was also present at the meeting, although he was not a resident of the city. Shook did not speak at the meeting, and Frenchko testified that she believed he was there for no reason other than to follow and intimidate her. After the meeting, Frenchko waited for Shook to leave the meeting before her, but, as she was exiting the building, she observed Shook speaking to another individual outside of his car, which was parked across from Frenchko's car.

Frenchko asked an officer to accompany her, and the officer agreed to observe from outside the building's door until she left. Frenchko walked to her car, but she maintained that she waited outside of her car door because she wanted Shook to leave prior to her. When the individual with whom Shook had been speaking walked away from him, that individual then stopped to speak to Frenchko, and Shook entered his car. Frenchko maintained that Shook then drove slowly through the parking lot and exited. Due to her concern regarding Shook's behavior, Frenchko took an alternate route home.

During Shook's testimony, he maintained that he attended the November 8, 2023 council meeting because he planned to speak regarding pay raises. However, Shook was unaware that he was required to complete certain paperwork and to be a city resident in order to comment. Shook provided the paperwork that must be completed to be able to speak at a Warren City Council meeting as an exhibit. Further, Shook called a witness who had been present at a Warren City Council meeting which Shook attended prior to the November 8, 2023 meeting. This witness testified that Frenchko was not present at this prior meeting.

And the court of appeals' analysis:

Based on the above evidence, following the full hearing, the trial court determined that Frenchko failed to meet her burden of demonstrating by a preponderance of the evidence that Shook engaged in the type of conduct proscribed by the menacing by stalking statute. Within its findings of fact and conclusions of law, the trial court noted the lack of civility currently present in political discourse and advised Shook to not engage in behavior that could be considered menacing by stalking.

However, the trial court specifically noted Frenchko had failed to prove in this case that Shook "stepped over the line" from engaging in political discourse to menacing by stalking. The court noted that Shook had not approached or threatened Frenchko, the parties were present at public events, and there was no evidence of Shook following Frenchko to ascertain her whereabouts.

After our review, we cannot say the evidence weighed heavily in support of finding that Shook, by engaging in the conduct described above in the latter half of 2023, knowingly caused Frenchko's fear of physical harm or mental distress. Thus, the trial court's denial of the CSPO was not against the manifest weight of the evidence….

Here's the relevant excerpt from the Ohio menacing-by-stalking statute:

(A)(1) No person by engaging in a pattern of conduct shall knowingly cause another person to believe that the offender will cause physical harm to the other person or a family or household member of the other person or cause mental distress to the other person or a family or household member of the other person….

"Pattern of conduct" means two or more actions or incidents closely related in time, whether or not there has been a prior conviction based on any of those actions or incidents, or two or more actions or incidents closely related in time, whether or not there has been a prior conviction based on any of those actions or incidents, directed at one or more persons employed by or belonging to the same corporation, association, or other organization….

["[M]ental distress" means any of the following:]

(a) Any mental illness or condition that involves some temporary substantial incapacity;

(b) Any mental illness or condition that would normally require psychiatric treatment, psychological treatment, or other mental health services, whether or not any person requested or received psychiatric treatment, psychological treatment, or other mental health services.

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[Eugene Volokh] First Amendment / Second Amendment Lawyer Jobs in California

Two organizations (Benbrook Law Group and the First Amendment Coalition) with which I've worked closely, and which I think highly of, are looking for California lawyers; application instructions are at the links.

[1.] Benbrook Law Group, a two-lawyer firm with which I've litigated some interesting First Amendment gun-related cases, is hiring a lawyer who will likely handle interesting free speech and gun cases, as well as other business cases:

We regularly represent one of America's most active firearms advocacy groups in a variety of cases surrounding the possession, carry, and sale of firearms, including Second Amendment claims and administrative disputes with the federal and state governments. We litigate race and gender preference cases. We regularly handle First Amendment claims….

We also represent businesses in disputes against regulators. A material portion of our work (sometimes up to 50%) involves all sorts of traditional business and commercial litigation on behalf of plaintiffs and defendants. As we grow, we will take on more contingent fee litigation, particularly cases consistent with the goal of enhancing liberty and equal opportunity.

The firm is seeking a lawyer with at least two years of law firm experience to assist in—and ultimately help take the lead in handling—our public policy and business cases. Not only will our new hire have the opportunity to appear in court and argue, we expect them to take on that responsibility. We are open to individuals with significantly more than the minimum required experience. Outstanding writing skills are essential given the nature of our practice….

For this hire, we need a California lawyer, preferably located in California. Our office is in Sacramento, but we anticipate that this hire may live elsewhere and work remotely. In 2025, we plan on opening a Texas office and adding at least one Texas lawyer….

Consistent with our public-policy-heavy case load, salary will fall somewhere between a public interest firm and a large firm with a full-time business litigation practice. Starting compensation will also vary depending on the candidate's experience. Performance-based bonuses can account for a material portion of overall compensation.

[2.] The First Amendment Coalition, a public interest law firm with whom I've worked with closely on many free speech and access to court records cases, is hiring a full-time Legal Fellow for one or two years:

Nonpartisan and nonprofit, FAC believes that the broadest range of engaged and informed communities is essential to the health of our democracy—that the values expressed by the First Amendment provide a blueprint for an inclusive, equitable society and a responsive, accountable government. To that end, FAC educates, advocates and litigates to protect and promote government transparency and First Amendment protections for all.

The Legal Fellow will report to FAC's Legal Director and work with FAC staff to expand FAC's strategic litigation program and our ability to provide expert legal assistance to working journalists, community members and others, with a particular focus on those in traditionally underserved communities. FAC's legal work is focused on enhancing public access to federal, state and local government records and proceedings and protecting the First Amendment rights of free speech and press. FAC also defends press independence by providing legal assistance to journalists served with subpoenas for their confidential sources or newsgathering materials.

Core Responsibilities:

Researching, drafting, submitting, and following up on requests for government records under the California Public Records Act ("CPRA") or federal Freedom of Information Act ("FOIA"); Identifying, formulating and helping to bring cases in state or federal courts to protect transparency and First Amendment rights; Organizing, researching and drafting amicus briefs, and screening amicus briefs that FAC is asked to join; Assisting in representation of subpoenaed journalists; Responding to questions by journalists and community members about First Amendment concerns, access to public records and meetings and other topics;  …

Qualifications:

… Demonstrated interest in First Amendment law and/or CPRA, FOIA, or similar access laws. A background in journalism or other work involving similar skills or experience is a plus; … California bar membership or application to join California bar pending results of recent bar examination; Preference for one or more years of legal experience working in the relevant legal areas, such as in a judicial clerkship, law firm, or non-profit organization….

Applicants are encouraged to submit materials as soon as possible; applications will be accepted through October 15, 2024.

Location: FAC has offices in San Rafael, California, but this position can be based anywhere in California.

Salary: $75,000-$85,000 depending on experience. Includes health benefits and eligibility for FAC's 401(k) retirement plan, with a 5% employer match.

Starting date: Late summer/early fall 2025.

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[Sasha Volokh] My Recent Georgia Supreme Court Oral Argument

[A pair of related cases raising important First Amendment content-discrimination issues in the context of adult entertainment.]

This last Wednesday, I argued for appellants in the Georgia Supreme Court in the pair of related cases, Georgia Ass'n of Club Executives v. Georgia and Georgia Ass'n of Club Executives v. O'Connell. It's an interesting case involving some cutting-edge issues of First Amendment law! This is the same case I argued (in the same court) three years ago, now back after a remand, and now in-person instead of on Zoom.

Anyone interested in watching the oral argument can see it on this page (it's the third video on the page). If you want to read the briefs, here's our brief, the state's brief, our reply brief, and our (short) supplemental brief.

Also, here's an article I recently published on the subject in the Journal of Free Speech Law: Taxing Nudity: Discriminatory Taxes, Secondary Effects, and Tiers of Scrutiny.

Thanks to Gary Freed and the legal team at Freed Grant LLC, without whom none of this would have been possible!

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[Eugene Volokh] UCLA Dismisses Its Appeal of Injunction That Ordered It to Avoid Repetition of Exclusion of Jewish or Pro-Israel Students from Parts of Campus

Its lawyers just filed a notice of voluntary dismissal, and UCLA announced this to employees, with a link to FAQs "to help employees understand how to carry out their responsibilities consistent with the requirements of the preliminary injunction." Some excerpts from the FAQs, which generally strike me as consistent with the injunction:

University policy states that no individual or group of individuals may prohibit or obstruct any student from accessing any ordinarily available campus areas, programs or activities on the basis of their religion, race, or any other protected characteristic, or on the basis of their political or other viewpoints, including their beliefs about the state of Israel. Individuals must also comply with all of the University's time, place, and manner policies and other policies that may impact campus events or expressive activities.

If any individual or group of individuals is prohibiting or obstructing students from accessing ordinarily available campus areas, programs or activities in violation of University policy, University officials will act to promptly restore access to students, while also limiting risks of substantial disruptions to campus operations or risks to health and safety. That includes by:

Informing individuals that they are engaging in a policy violation and directing them to change their conduct and/or remove the barrier to access. Warning individuals of the potential consequences of failure to comply and further directing them to comply. If individuals fail to comply and barriers to access remain, the University will involve appropriate resources which may include the Campus Fire Marshal, the UC Police Department, and/or other state or local law enforcement agencies to assist with removal of the barriers to access and take other appropriate action which may include involving law enforcement and may result in discipline and/or arrests. Instituting the applicable campus review process for members of the University community who are cited for a violation of campus rules or law.

What should employees do if the barrier to access cannot promptly be removed?

In some instances, it may not be possible to promptly remove a barrier to access, such as where doing so might threaten the health and safety of University community members or campus safety teams. In those circumstances, University employees should take alternative measures to promptly restore access while efforts are undertaken to remove the barrier to access. These measures may include:

Providing alternative access to a building or space, such as through a different doorway or walkway. If feasible, moving the specific program or activity to another building or space to ensure continued access for all students. If it is not possible to promptly remove the barrier or to promptly move the program or activity to another location, consistent with the requirements set forth in the injunction, the University may deem it necessary to deny access to any students to a particular space or program or activity until access can be restored for all studen For instance, if access to a University library is blocked for some students and the University cannot promptly restore access, then the University may need to close services in the library for all students until access can be restored.

The Court's order covers "any ordinarily available programs, activities, and campus areas." What does that mean?

The University will broadly construe campus areas, programs, or activities to include any area of campus that is ordinarily open to students, as well as any building, class, or activity that students can ordinarily access, including Zoom or digital programs, and University-sponsored off-campus activities. The order does not require that students have access to areas that are not ordinarily open to all students, such as faculty lounges, administrative offices, and student housing, but students may not be excluded from such areas solely on the basis of their religion or other protected characteristic, or political views, including their beliefs about the state of Israel….

The Court's order said that the University's campus security teams should not "aid or participate" in "any obstruction of access for Jewish students to ordinarily available programs, activities, and campus areas." How should a security team ensure it does not "aid or participate" in such an effort?

If individuals are obstructing access for any students to ordinarily available programs, activities, or campus areas and do not [disperse] when instructed to do so, campus security teams should take actions to promptly restore access to the program, activity, or campus area and to elevate the issue to the appropriate campus official if assistance is needed. As explained above, if it is not possible to promptly remove the barrier or to promptly move the program or activity to another location, the University may deem it necessary to deny access to all students to a particular space or program or activity until access can be restored for all students….

Does this mean that the University will prohibit protests that express a pro-Palestinian or anti-­Israel message?

No. The First Amendment protects the rights of students to protest whatever their viewpoint, and the Court made clear that its order was not meant to limit the content or viewpoints espoused in any protest or other expressive activities. Protests, however, must comply with the University's time, place, and manner rules, as well as other content- and viewpoint-neutral University policies. such as those that prohibit threats or violence. In addition, protesters may not restrict the free movement of others on campus by blocking or obstructing access to a University facility or space.

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[Josh Blackman] Mission to Israel Part X: Closing Thoughts

[This is the tenth, and final post in my series on my mission to Israel. You can read Parts I, II, III, IV, V, VI, VII, VIII, and IX.]

Our mission to Israel was on July 9 through 11. It took me nearly six weeks to publish the ten posts in this series. But it did not take me nearly that long to write them. I wrote most of the first five installments on the twelve-hour flight back from Israel. These initial posts, which focused on the legal issues, came out naturally. I could approach them somewhat objectively, and offer pointed criticisms of the Israeli legal system. But the second batch of posts took a different path.

The final installments focused on the human cost: the hostages, the surveillance footage, the kibbutz, and the music festival. With the exception of the surveillance footage, I was able to document with photographs and videos almost everything that I saw. I promptly uploaded these media to YouTube and the Volokh Conspiracy, but I didn't hit "publish." Instead, I sat on them. I waited. I needed time to reflect. Never before in my life had I been exposed to such profound suffering and trauma. And it was difficult to translate into words what I felt. I am not one to have writer block, but these posts–especially the one on the surveillance footage–were among the hardest things I have had to write. After finishing the surveillance post, I had to watch a funny movie just to clear my mind. That sort-of worked, for a short while.

I was writing, in part, to help me parse through the confusing and confounding situations I witnessed. That's how I think–I write. I was also writing to help others make sense of what they have not seen. I did not think that my writings would persuade anyone on the Israel-Gaza issue. That was not my intent, and I made no effort at advocacy. My goal was simply to relate what I had seen. As the months and years from October 7 pass, and as memories fade, these posts will remain as my personal remembrance of that horrific day.

I also do not pretend that I have any insights about the path away from the current conflict. If anyone tells you they know how to solve things, don't listen to them. Even if a "ceasefire" is reached, and some or most or all of the remaining hostages are freed, the underlying grounds for war remain. The hostilities can re-emerge at any time. To quote Gitlow v. New York, "A single revolutionary spark may kindle a fire that, smouldering for a time, may burst into a sweeping and destructive conflagration."

All I can do is take a step back and reflect on the millenia-long history of the Jewish people in Israel. The period between 1948, when Israel declared independence, and 2024, is but a mere blip. We are barely eight decades removed from the Holocaust. Nothing is fixed in stone. And I no longer take for granted that Jews will always be welcome in America.

I hope to visit Israel again with my family. I do not know when that will be.

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[Josh Blackman] Today in Supreme Court History: August 23, 2007

8/23/2007: John Yates, aboard the Miss Katie boat, threw fish overboard to avoid an inspection. He was prosecuted for destroying property to prevent a federal seizure. In Yates v. United States (2015), the Supreme Court held that the fish was not a "record."

The Roberts Court (2010-2016)

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[Eugene Volokh] Thursday Open Thread

[What's on your mind?]

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[Ilya Somin] What Walz and Vance Get Wrong About Opportunity and Mobility

[Walz is wrong to attack Vance for leaving home to go to Yale. Vance is wrong to support policies that would close off similar opportunities to others.]

Tim Walz ( Phil McAuliffe/Polaris/Newscom)

 

Over the last few days, Democratic VP nominee Tim Walz has repeatedly attacked his GOP opponent, J.D. Vance, for leaving home to attend Yale Law School:

"Like all regular people I grew up with in the heartland, J.D. studied at Yale," Walz said sarcastically at the rally…. Come on, that's not what middle America is," Walz continued.

The governor, in a recent interview on MSNBC's Morning Joe, expanded on that point, saying, "None of my hillbilly cousins went to Yale, and none of them went on to be venture capitalists, or whatever…."

He made much the same point in his acceptance speech at the Democratic National Convention: "I grew up in the small town of Butte, Nebraska, population 400. I had 24 kids in my high school class, and none of them went to Yale."

There are many legitimate lines of attack against Vance, whom I am no fan of. But this isn't one of them. There's nothing wrong with leaving home in search of opportunity—including by attending an elite educational institution in another part of the country. America was built by people who "voted with their feet" for such opportunities, through both international migration and the internal kind. And such mobility doesn't somehow become wrong when "hillbillies" do it. Ironically, among the speakers preceding Walz at the DNC was former President Bill Clinton, who grew up in a poor white family in Arkansas, and (like Vance) went on to attend Georgetown and Yale Law School.  Does Walz mean to suggest Clinton should have stuck to his "hilbilly" origins and stayed in Arkansas?

I have to admit I take this kind of attack somewhat personally. I too went to Yale Law School, the first person in my family to attend college in the United States. My wife grew up in the quintessential working class city of Allentown, Pennsylvania. Her parents (both public school teachers), and most of her other family members attended local colleges. But she chose to go to Dartmouth College, a more elite out-of-state institution that offered better opportunities. Doing that wasn't wrong, and certainly wasn't somehow a betrayal of her origins.

The real problem with Vance is not that he left home to go to Yale, but that he and Donald Trump support policies like severe migration restrictions and exclusionary zoning that close off such opportunities to others. I wrote about this in a previous post on Vance:

If you read [Vance's]… book, it's hard to avoid the conclusion that his life was transformed by [mobility]: leaving home to join the Marine Corps, get a college degree at Ohio State University, and eventually going to Yale, opened up opportunities that he probably would never have had if he had not left home….

In my later book Free to Move, I pointed out that Vance's story of success through domestic foot voting  is also similar to that of people who transformed their lives through international migration. Almost all the standard arguments against allowing the latter also apply to the former.

Over the last several years, Vance has undergone a kind of ideological transformation, becoming a prominent advocate of the MAGA populism he previously opposed. Sadly, the policies Vance now advocates would destroy opportunities for immigrants and natives alike, and in the process make America weaker and poorer.

In addition to mass deportations and other harsh migration restrictions, Vance and Trump also support exclusionary zoning, which blocks millions of native-born Americans from moving to opportunity, including many poor whites with backgrounds similar to Vance and Walz. That not only harms those prevented from moving, but also harms American society as a whole, by slowing down innovation and economic growth.

Walz's record on such issues is less bad, but still highly equivocal. Sadly, the man is not the YIMBY some praise him for being. The Democratic ticket supports a number of dubious housing policies that, if enacted, would make the problem worse, though they also have some modestly good ones.

In sum, Walz is wrong to bash Vance for seeking opportunity by going to Yale. Vance, however, is wrong to advocate policies that would predictably close off similar opportunities for others. Both men—and their respective parties—would do well to work to empower more people to vote with their feet for better educational and job opportunities.

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