Eugene Volokh's Blog, page 5

[Eugene Volokh] Minors' Religious Practices Are Legally and Constitutionally Protected Against Regulations Aimed at Preventing "Addiction"

I'm serializing my forthcoming Emory Law Journal article titled Addiction to Constitutionally Protected Activity: Speech, Press, and Religion. In my first two posts, I argued that calls to regulate social media platforms and video games on the theory that they are "addictive" could equally plausibly be made with regard to various religious practices, which seem to share some of the supposedly "addictive" properties—yet of course the Free Exercise Clause would preclude such regulation, at least as to adults. Here's where I also apply that to attempts aimed at shielding children from supposedly addictive religious practices; in coming posts, I'll talk about how this reasoning also applies to attempts aimed at shielding adults and children from supposedly "addictive" speech products:

[* * *]

So far, we have been speaking of the religious freedom rights of adults, and of religious organizations that deal with adults. But the Free Exercise Clause would also likely impose serious constraints on attempts, aimed at preventing "addiction of minors," to restrict religious organizations' conduct and speech.

[1.] "Addictive" practices promoted by parents

To begin with, say adults deliberately get their children involved in a religious institution or community, in a way that foreseeably (or even intentionally) makes the child emotionally dependent on that belief system and its practices. Indeed, say that there may be some plausible reason to think that this will lead to long-term emotional or financial harm to the children—for instance, by making them feel bad about their sexual desires or their sexual preferences, by teaching children that there are certain jobs or life paths that they shouldn't take because of what sex they are, or by depriving them of access to a quality secular education, leaving them ill-prepared for work. Say that there is evidence that it's hard for people who grow up in the particular community to leave it as adults, even if they are dissatisfied with its teachings: They may feel fearful of damnation, or concerned about the possible loss of relationships with family members and friends.

Yet it seems clear that, even under these circumstances, the Free Exercise Clause would preclude the government from trying to interfere with such parental attempts to inculcate religious beliefs into their children. Parents, for instance, have a constitutional right to send their children to private religious schools, including when they do so precisely to make sure that the children are properly taught the parents' religious beliefs. Likewise, I take it that the government can't order churches to exclude children from certain programs that are seen as unduly psychologically addictive. And the government can't order religious web sites to take steps to make sure that certain religious teachings of those sites aren't accessed by minors.

To be sure, here too the government has some authority to protect children, even against their parents. But that can generally be done only through generally applicable, religion-neutral restrictions mandates or restrictions focused on harmful conduct. A law that targets religious speech or association because of its supposedly psychologically addictive features would not, I think, qualify.

[2.] "Addictive" practices tolerated by parents

I think the same is likely with regard to religious practices that the child engages in with the toleration of his or her parents, even if they aren't driven by the parents' own preferences. Older minors sometimes do adopt religious views that differ from their parents': One survey, for instance, reported that 12% of mainline Protestant parents' children age 13 to 17 identified as evangelical rather than mainline. That may not be a huge percentage, but it would be a high absolute number, likely representing hundreds of thousands of teenagers, just in mainline Protestant families. I expect there are also hundreds of thousands of teenage children of irreligious parents who are adherents of some religion.

Here too, I don't think the Free Exercise Clause would allow restrictions focused on supposedly psychologically addictive behaviors aimed at those children, so long as the parents tolerate the children's religious affiliations. A law couldn't, for instance, try to regulate churches' teaching of minors who aren't children of church members, or web sites' communications to minors who are taking the lead on developing their own religious identities. To quote the Court in Brown v. Entertainment Merchants Association (the violent video game case), it could not "be made criminal to admit a person under 18 to church, or to give a person under 18 a religious tract, without his parents' prior consent": Such a law would "obviously [be] an infringement upon the religious freedom of young people and those who wish to proselytize young people."

[3.] Supporting parents' ability to restrict children's religious activities

To be sure, if parents don't want to let their minor children engage in various religious activities—whether because the parents fear the activities are addictive or because they just disapprove of the activities—they have considerable tools at their disposal. They can forbid their children from, say, going to some religious group's meetings or visiting some religious websites. They can threaten to withdraw various privileges if the children violate the prohibition.

They can presumably call on police to bring back minor children who, say, have run off to join some religious community or even to participate in some worship service. They may be able to sue anyone who entices their children to leave their parent for an extended time, knowing that the parents object: "One who, with knowledge that the parent does not consent, abducts or otherwise compels or induces a minor child to leave a parent legally entitled to its custody or not to return to the parent after it has been left him, is subject to liability to the parent." That may include enticing the children to join a religious residential community.

Perhaps they can also get an injunction or a restraining order forbidding such inducement or "harboring" of a minor child. And such inducers and harborers might also be criminally punishable. None of this would require any evidence of anything like addiction or manipulation, and indeed these principles apply equally to nonreligious inducement.

But these mechanisms for enforcing parental control are focused on enticement for the children to physically leave objecting parents. "Induced defiance of parental authority, without physical absence of the minor child from the home, is not enough to establish liability . . . ." I know of no precedents that would, for instance, allow the state to generally forbid religious speech to minors, or forbid religious web sites or online communities from being accessible to minors, even when the parents have indicated that they do not want their minors communicated with. And even if there might possibly be "no contact" orders issued in favor of parents who want to block communication to their children from specifically identified supposedly malign outsiders, that could not justify broad restrictions on sites that communicate with a wide range of unidentified minors, whose parents have never demanded that their children not be allowed to access those sites.

See, e.g., Eliza Shapiro & Brian M. Rosenthal, In Hasidic Enclaves, Failing Private Schools Flush With Public Money, N.Y. Times, Sept. 12, 2022 (reporting that Hasidic boys' schools provide minimal secular education, including little English and math and virtually no science or history, resulting in high rates of failed standardized tests and difficulty finding employment).

See Paul v. Watchtower Bible & Tract Soc. of New York, Inc., 819 F.2d 875, 883 (9th Cir. 1987) (describing a religious group's practice of shunning members who leave, and holding that there can be no tort liability for such shunning).

Pierce v. Society of Sisters, 268 U.S. 510 (1925).

See, e.g., Prince v. Massachusetts, 321 U.S. 158 (1944); cases requiring medical treatment of minors.

Jeff Diamant & Elizabeth Podrebarac Sciupac, 10 Key Findings about the Religious Lives of U.S. Teens and Their Parents, Pew Research Center (Sept. 10, 2020), https:‌‌//‌www.pewresearch.org/‌short-reads/‌202....

11% of adults identify as mainline Protestants, 2023–24 U.S. Religious Landscape Study Interactive Database (2025), https:‌‌//‌www.pewresearch.org/‌?post_type=rls, and there are likely about 20 million 13-to-17-year-olds in the United States. If it follows that about 11% of 13-to-17-year-olds are likewise in mainline Protestant families (a good first approximation, even if the family size of various groups may vary in some measure based on religion), that suggests that 2 million or so of 13-to-17-year-olds are children of mainline Protestant parents, so about 250,000 or so would be evangelical Protestant children of mainline Protestant parents.

See, e.g., Pew Research Center, Shared Beliefs Between Parents and Teens, Sept. 10, 2020, https:‌//‌www.pewresearch.org/‌religion/‌2020/‌...‌ (reporting that 6% of 13-to-17-year-old children of religiously "[u]naffiliated" parents have "quite different" religious beliefs from those parents). 29% of adults identify as unaffiliated, Religious Landscape Study, supra note 53, so performing the same calculation as in note 53, about 350,000 of 13-to-17-year-olds would likely be non-religiously-unaffiliated children of unaffiliated parents.

Brown v. Entm't Merchants Ass'n, 564 U.S. 786, 795 n.3 (2011).

Restatement (Second) of Torts § 700.

See, e.g., Murphy v. I.S.K. Con. of New England, Inc., 409 Mass. 842, 859–60 (1991) (cleaned up):‌‌

The common law has traditionally recognized a parent's interest in freedom from tortious conduct harming his relationship with his child, and the parent may be compensated therefor when there is interference with the normal parent-child relationship. [Such] tortious conduct . . . includes the abduction, enticement, and harboring and secreting of minor children from their parents, or in other words, the intentional interference with parental interests or rights. . . . Abduction is the physical taking of a minor child from the parent having legal custody. An action for enticement will lie where one, through an "active and wrongful effort" and knowing that the parent does not consent, induces a child to leave the parent's home. One "harbors" a minor child by inducing or encouraging a child, who is away from the parent without the parent's consent, to remain away from the parent. Liability for harboring a child will not be found, however, unless the actor knows or has reason to know that the child is away from the parent without the parent's consent. Implicit in each action is the requirement that the child be physically absent from the home for a continuous period of time. To allow recovery for interference with parental interests without physical absence of the minor child from the home would be to allow an action for alienation of affections, for which recovery cannot be had.

Murphy, 409 Mass. at 860.

See, e.g., Little v. State, 246 S.W.3d 391, 399 (Tex. App. 2008) (allowing liability when defendants "played upon Abigail's religious convictions by telling her Walter was her God-given father; they were her God-given family; and God preordained that she should come live with them," "encouraged Abigail to disobey and lie to her mother in order to conduct clandestine communications contrary to her mother's wishes," and "when Abigail agreed to run away from her mother's home, . . . suppl[ied] the manner, means, and opportunity for her to leave her home and remain secreted from her mother for a period of nineteen hours").

Murphy, 409 Mass. at 860 n.17.

See, e.g., Brekke v. Wills, 125 Cal. App. 4th 1400 (2005) (upholding a no contact order forbidding a 15-year-old's 16-year-old ex-boyfriend from contacting her, on the theory that "Defendant has no right to associate with Danielle, who is a minor child"); cf. Doe v. Mastoloni, No. 3:‌14-CV-00718 (CSH), 2016 WL 593439, *9 (D. Conn. Feb. 12, 2016) (concluding that public school teachers' "indoctrinating" particular students "into a religious cult" may violate the Establishment Clause, and may violate the parents' "parental right to raise their children in the religion of their choice . . . as guaranteed by the Free Exercise Clause . . . and Due Process Clause"). Likewise, the Court in Brown suggested that "perhaps" "the state has the power to enforce parental prohibitions—to require, for example, that the promoters of a rock concert exclude those minors whose parents have advised the promoters that their children are forbidden to attend." 564 U.S. at 795 n.3. The analogy drawn in the same footnote to religious freedom suggests that "perhaps" the same could be done for organizers of religious events, if parents indeed expressly demand that the organizers not allow their children to attend.

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[Josh Blackman] Today in Supreme Court History: September 26, 1986

9/26/1986: Chief Justice Warren Burger resigns.

Chief Justice Warren Burger

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[Eugene Volokh] Friday Open Thread

[What's on your mind?]

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[Eugene Volokh] Friday Open Thread

[What's on your mind?]

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[Eugene Volokh] I've Seen Fake Cites on Both Sides Now

Listen on Suno

From yesterday's decision by Magistrate Judge Elizabeth Stafford in Evans v. Robertson (E.D. Mich.) (both parties are pro se):

The Court notes that the parties' briefing contained multiple factitious citations and quotations, presumably a product of using artificial intelligence (AI) software. For example, Evans cites Aguirre v. Reese, No. 2:12-cv- 01837, 2013 WL 6577085, at *5 (D. Nev. Dec. 13, 2013). ECF No. 64, PageID.559. The citation is nonexistent, and the District of Nevada assigned that case number to Mazzorana v. Emergency Med. Phys. Grp., in which no filings were made on December 13, 2013. Next, Evans attributed the following quote to Doe v. F.B.I., 218 F.R.D. 256 (D. Colo. 2003): "Parties may not evade service by hiding behind pseudonyms while continuing to engage in legal actions using those same identities." ECF No. 64, PageID.561. That case contains no such language, nor has the Court found that language in any other case. Evans likewise misattributes quotations to two other cases. ECF No. 64, PageID.570-571 (citing United States v. Ziegler Bolt & Parts Co., 111 F.3d 878 (Fed. Cir. 1997); Sec. & Exchange Comm'n v. Knowles, 87 F.3d 413 (10th Cir. 1996)).

Robertson's filings also contain inaccurate citations. She cites Mickens v. 10th Jud. Dist. Ct., 460 F. App'x 728 (9th Cir. 2011), in support of her argument that courts may dismiss actions used to harass or intimidate rather than to vindicate legitimate claims. ECF No. 39, PageID.352. Although two cases by that title exist, Robertson's citation is inaccurate. See Mickens v. 10th Jud. Cir. Ct., 458 F. App'x 839 (11th Cir. 2012); Mickens v. 10th Jud. Cir., 181 F. App'x 865 (11th Cir. 2006). The cases were decided by the Eleventh Circuit and concern the application of the Rooker-Feldman doctrine and not dismissal of abusive litigation.

Robertson also cites McNair v. Everly, No. 18-12511, 2019 WL 2560069 (E.D. Mich. June 20, 2019), which does not exist. ECF No. 71, PageID.686. This district assigned that case number to Arnold v. Fresh Start Transitional Homes, in which no filings were made on June 20, 2019. Robertson's filings also contain other inaccuracies that the Court will not belabor here….

Pro se parties are expected to strictly follow procedural rules, and no authority suggests that those rules "should be interpreted so as to excuse mistakes by those who proceed without counsel." If an attorney had submitted a brief littered with inaccurate citations, Federal Rule of Civil Procedure 11 sanctions would have been appropriate.

The parties' pro se status offers no excuse for the factitious citations or quotations, and the Court will not tolerate this practice in future filings from either party. In each of their future filings, Evans and Robertson "must include a written representation that [they have] personally checked each legal citation and each citation is accurate and stands for its asserted proposition." Failure to do so may result in a recommendation to impose more stringent sanctions.

The song was written by Suno, in response to my short prompt that basically summarized the topic and provided the opening line; here are the resulting lyrics, with no edits on my part:

[Verse]
I've seen fake cites on both sides now
From phantom laws to ghostly vows
And still they stand
So bold
So proud
I really don't know truth at all

[Chorus]
Cites that shimmer
Cites that fade
AI dreams the rules it made
And both sides argue
Undismayed
But we don't know the law at all

[Verse 2]
They quote the case that wasn't there
With pages lost in digital air
A phantom judge
A ruling rare
I guess it's justice
Or a brawl

[Prechorus]
They cite the void
They cite the fake
A courtroom built on AI's quake

[Chorus]
Cites that shimmer
Cites that fade
AI dreams the rules it made
And both sides argue
Undismayed
But we don't know the law at all

[Bridge]
Oh
What a trial
Oh
What a scene
A war of ghosts in a world machine
Who holds the gavel
Who holds the blame
When truth and fiction play the same?

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[Eugene Volokh] Court Throws Out Case After Finding Plaintiffs Submitted Deepfake Videos and Altered Images

The case is Mendones v. Cushman & Wakefield, Inc., decided Sept. 9 by Judge Victoria Kolakowski (Cal. Super. Ct. Alameda County). Here's a short excerpt; the whole opinion (including copied images and detailed analysis) is worth reading:

The Court finds that Plaintiffs violated section 128.7(b) of the Code of Civil Procedure by submitting fabricated evidence in support of their motion for summary judgment….

The Court finds that exhibits 6A and 6C are products of GenAI and do not capture the actual speech and image of Geri Haas. In other words, these exhibits are deepfakes….

While the "person" depicted in exhibits 6A and 6C bears a passing resemblance to the person depicted in exhibit 36, they are not the same person. The accent, cadence, volume, word choice, pauses, gestures, and facial expression, among other characteristics, of the person depicted in exhibit 36 are vastly different from those demonstrated by the "persons" depicted in exhibits 6A and 6C….

The court also found other alterations, and concluded:

The Court finds that a terminating sanction is appropriate. This sanction is proportional to the harm that Plaintiffs' misuse of the Court's processes has caused. A terminating sanction serves the appropriate remedial effect of denying Plaintiffs— and other litigants seeking to make use of GenAI to submit video testimonials—of the ability to further prosecute this action after violating the Court's and the Defendants' trust so egregiously.

Further, a terminating sanction serves the appropriate deterrent effect of showing the public that the Court has zero tolerance with attempting to pass deepfakes as evidence.

This sanction serves the appropriately chilling message to litigants appearing before this Court: Use GenAI in court with great caution.

The plaintiffs were self-represented.

Louisiana Court of Appeal Judge Scott Schlegel ([Sch]Legal Tech) has more, with some warnings for the future; an excerpt:

The Mendones case is a warning shot. It shows the cost of letting AI forgeries seep into the system. The deepfakes in that case were crude enough that the judge could spot them, but the technology has already advanced to the point where many of us would struggle to tell the difference. Thankfully, Louisiana and the Federal Courts  [details in Judge Schlegel's post] are beginning to sketch a better path, but we are racing the clock. Because once trust is broken, no amount of technology can put it back together again.

Deepfakes in the courtroom are no longer hypothetical. They are here. And the clock is ticking. The crude fakes of today will soon look primitive, yet they are already capable of wasting judicial resources and undermining trust.

Thanks to the Media Law Resource Center (MLRC) MediaLawDaily for the pointer.

UPDATE: Here's what the judge said to explain why she didn't refer the matter to the prosecutor's office:

The Court finds that referral for criminal prosecution is not appropriate. Plaintiffs' submission of fabricated evidence brings to the Court's mind two Penal Code statutes [concerning perjury and forgery]…. The Court finds that a sanction referring Plaintiffs for criminal prosecution is simultaneously too severe and not sufficiently remedial. The sanction is too severe as even being the subject of a criminal investigation may lead to social repercussions that persist after the criminal proceedings close.

This civil judicial officer does not have the expertise and experience to balance all relevant considerations to determine whether a matter should be referred to the District Attorney for a criminal investigation. At the same time, a referral would do little to address the harm that Plaintiffs have caused in this civil proceeding.

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[Eugene Volokh] Second Circuit Allows Claim That "Implicit Bias Trainings" Constituted Racial Harassment

[The court concluded that the plaintiff, a former New York City educator and administrator, presented enough of a case to go to the jury.]

The decision in Chislett v. N.Y. City Dep't of Ed., decided today by Judge Pierre Leval, joined by Judges Joseph Bianco and William Nardini, dealt with a lawsuit brought by Chislett, a New York educator and administrator. Following a Department program of implicit bias trainings, and conflict that arose there, Chislett was demoted and then quit. The court rejected Chislett's claim of discriminatory demotion and constructive discharge, but held that Chislett's hostile work environment claim could go forward; here's an excerpt from the long opinion:

The test for a hostile work environment involves "both objective and subjective components: the conduct complained of must be severe or pervasive enough that a reasonable person would find it hostile or abusive, and the victim must subjectively perceive the work environment to be abusive." … Drawing all reasonable inferences in Plaintiff's favor, a rational juror could find that discriminatory conduct at the DOE was sufficiently severe and pervasive to have created a hostile work environment…. Chislett set forth sufficient evidence for a rational juror to find that she was repeatedly exposed to racial harassment at her workplace throughout 2018 and 2019.

First, Chislett presented evidence from which a rational jury could find that racist comments were expressed during bias trainings. For example, instructors mentioned several times that the "values of [w]hite culture are supremacist." Similarly, during one training session, Ababio-Fernandez, Senior Executive Director of the OEA [DOE's Office of Equity & Access], declared: "There is white toxicity in the air, and we all breathe it in." In the sessions, there was persistent messaging to the effect that white culture is generally "[d]efensive[];" "[e]ntitle[d];" "[p]aternalis[tic];" "[p]ower [h]oard[ers];" and "[p]rivilege[d]."

Further, there was physical segregation of white employees and singling out of staff by race during one training session as participants were ordered as to racial privilege associated with whiteness and physically "lined up to reveal the dividing 'color line of privileges that favored whites.'" Negative generalizations and stereotypes about white people were also targeted specifically at Chislett during the trainings. For instance, during a Q&A session, instructors told Chislett that her "interest in excellence was perfectionism and consistent with white supremacy." On the question of the objectivity of considering the training environment hostile and abusive, it is pertinent that one of Chislett's co-workers was similarly upset about the racial generalizations and that another regarded the DOE as "an extremely hostile environment for white individuals." {[And t]he fact that the purpose of the sessions was to combat race discrimination does not excuse the alleged presence of race discrimination in the conduct of the sessions.}

In addition, a reasonable juror could find from the evidence in the record that there were racialized comments expressed outside the trainings. As a spillover from the trainings, conversations took on a racialized tone, and OEA employees directed terminology from the trainings at Chislett. When Chislett disciplined or managed subordinates, she was allegedly called racist and labeled "white and fragile." Far from being "episodic" or isolated, these alleged comments were continuous and concentrated, especially given the frequency of the OEA's racial conversations. Construing the evidence most favorably to Chislett, a rational juror could find that there was a consistent "pattern" wherein Chislett "could expect [racist] remarks and other harassment at any time."

{We do not suggest that calling someone racist by itself constitutes racial discrimination or forms the basis of a hostile work environment claim…. "'Racism' is not a race, and discrimination on the basis of alleged racism is not the same as discrimination on the basis of race." … However, in the context of the profusion of remarks attributing numerous detrimental qualities to whiteness (including a sense of racial supremacy), there is at least a question of fact as to whether accusations that Chislett was "racist" were intended as identifying and disparaging a feature of her whiteness.}

For example, at an internal meeting on September 17, 2018, when Chislett asked her Black subordinate Renee why she was late to a meeting she was supposed to help lead (a question appropriately put by a supervisor to a subordinate), Renee told Chislett she was making a "race-based judgment" and could "not be trusted." The following week, Renee referred to the previous incident and admonished Chislett: "How dare you approach me out of your white privilege!" In or around November 2018, two Black subordinate employees on Chislett's team told her that "race is at the center of every conversation" they had with her.

Further, at one point, Chislett told her team that "this is becoming almost unbearable for me because there is increasing hostility." In response, Renee stated: "How dare you use the word unbearable, there is black people dying in the street, you don't have the right to use that term. You're coming from the position of white privilege and white supremacy." The presence of such racialized conflicts and the frequent accusations that Chislett was operating out of white privilege and supremacy for performing ordinary supervisory responsibilities further support her hostile work environment claim.

Third, Chislett presented evidence of comments expressed to another DOE employee of partially white parentage that a reasonable juror could find racially discriminatory. For instance, in February 2019, Chislett heard Renee use racialized sentiments when discussing a "white adjacent" colleague "from a mixed race family" who "adopted [B]lack daughters" and married "a white man." After the colleague attempted to monitor Renee's productivity, Renee called her "a slave master," and another employee labeled her a "white dominant leader."

While not directed at Chislett, these statements are pertinent for several reasons. First, discriminatory "conduct not directly targeted at or spoken to an individual but purposefully taking place in [her] presence can nevertheless transform [her] work environment into a hostile or abusive one." Furthermore, such discriminatory conduct by the same individual who directed similar conduct at a plaintiff may confirm the objective reasonableness of the plaintiff's perception of the conduct directed at her as racially discriminatory. Such conduct also tends to confirm that supervisory personnel are aware of and tolerate the alleged racial harassment, providing evidence of a municipal policy or custom of complicity.

From this "mosaic" of evidence, a rational juror could find that Chislett experienced a racially hostile work environment. Collectively, Chislett presented evidence of racially-charged statements expressed during trainings, in meetings, and about another employee in her presence, creating a genuine dispute of material fact about whether the workplace was racially hostile. As such, "whether the conduct taken together created a work environment that was sufficiently hostile to violate [§ 1983] is a question of fact for the jury." …

[* * *]

Here's the court's full statement of the alleged facts, though the key facts were quoted in the legal analysis quoted above:

Chislett is an educator who worked at the DOE. In 2017, she was asked to serve as the Executive Director of the "AP for All" program, an initiative of former Mayor Bill de Blasio to increase participation in Advance Placement courses by students in "underserved communities." "AP for All" was housed in the DOE's Office of Equity & Access ("OEA").

In her role, Chislett supervised fifteen employees and achieved success in expanding access to AP courses. However, there was early racial tension on her team. One subordinate, Akua Adefope, whom Plaintiff had criticized for "poor performance," reported her to the DOE's Office of Equal Opportunity and Diversity Management ("OEO") and accused her of "'microaggressions' toward people of color, such as ignoring, dismissing, avoiding, interrupting, and belittling them." The OEO found that although Chislett's comments did not rise to the level of discrimination, some of her statements were "inappropriate." Several of Chislett's subordinates also denounced her for allegedly "holding employees of color back," and when she objected, she was "accused" of being "'white and fragile.'" Chislett complained to the head of the OEA but was "scolded."

According to Chislett, racial conflict escalated when de Blasio selected Carranza as Chancellor of the DOE in 2018. Carranza implemented an "equity agenda" to tackle racial and economic disparities among students in their access to privileges within the school system. At the time, Carranza stressed the importance of his equity agenda, reportedly stating: "If you draw a paycheck from the DOE, you will either get on board with my equity platform or leave."

Both de Blasio and Carranza were intent on promoting racial diversity within the DOE. To this point, de Blasio was reportedly "fixated" on the diversity of candidates, and Carranza declared there was "no daylight" between their approaches. After becoming Chancellor, Carranza created nine Executive Superintendent roles. Seven of the nine roles were filled by Black employees. Additionally, Meisha Ross-Porter, one of the new Executive Superintendents and the person de Blasio later selected to succeed Carranza as Chancellor, declared: "When I am selecting principals, teachers, or leaders—after we make the list, we look at it and we count: how many women, how many people of color, and why…. I look at the makeup, and I literally count—and it's OK for us to do that."

During his time as Chancellor, Carranza mandated implicit bias trainings among DOE staff. The OEA was allocated $23 million and hired approximately twenty staffers to scale these trainings, which were "part and parcel" and a "'cornerstone'" of Carranza's equity agenda. Both DOE staff and outside vendors facilitated implicit bias workshops. As a member of the OEA, Chislett was required to participate in the trainings, which she claims "exacerbated the already racially-charged workplace." Some of the trainings Chislett attended were part of the DOE's formal implicit bias training initiative. Some were sponsored by specific DOE departments.

During the first bias training on May 4, 2018, the instructor told participants that "white colleagues must take a step back and yield to colleagues of color" and "recognize that values of [w]hite culture are supremacist." At the session, LaShawn Robinson, who led the OEA and would soon be promoted to Deputy Chancellor, told an employee, "We've all taken on whiteness." The training also included PowerPoint slides that described the traits of "internalized white superiority," including "individualism;" "denial;" "dominating space;" and "intellectualization."

On May 10, 2018, OEA employees attended an overnight retreat that included additional training. Speakers stated that "white culture's values" are "homogenous and supremacist" as well as that the "Protestant work ethic" and "devotion to the written word" are examples of "white supremacy." Once again, PowerPoint slides listed values associated with "white supremacy culture," including "Perfectionism;" "Sense of Urgency;" "Paternalism;" "Defensiveness;" "Individualism;" "Either/or thinking;" "Objectivity;" and "Power Hoarding." During a Q&A session, instructors told Chislett that her "interest in excellence was perfectionism and consistent with white supremacy."

At another mandatory training on June 21, 2018, instructors wrote aspects of "white culture" on four posters, including "Entitlement—access to everything;" "Need to feel validated in feelings;" and "Privilege to establish norms/'set the bar.'"Another poster was labeled, "The Haves … of white culture," and included traits such as "Individualistic;" "Privilege;" "Money;" and "Single Identity." Dr. Ruby Ababio-Fernandez, who developed the implicit bias initiative and became the OEA's Senior Executive Director, declared: "There is white toxicity in the air, and we all breathe it in." Participants were instructed to answer questions about themselves that would grade them on a scale of 0 to 130 "according to [their] white privilege like being able to buy products for [their] hair type at a typical drug store" and were physically "lined up to reveal the dividing 'color line of privileges that favored whites.'"

On day two of the training, participants were asked to break into small groups and list "white values" on a poster. Chislett felt uncomfortable and opted not to participate. In response, another participant told Chislett that she was a "horrible person" who "did not deserve to be working with children in New York City." Additionally, one of the facilitators told participants that if they did not learn to stand up to "people like [Chislett] who disagree with these views about white supremacist values, children's lives would be at stake." In no instance did a supervisor intervene.

After the implicit bias trainings, racial tensions simmered. On September 17, 2018, when Chislett asked a subordinate, Deonca Renee, why she was late to a meeting that she was supposed to help lead, Renee purportedly answered that Chislett was making a "race-based judgment" and could "not be trusted." In a meeting the following week, Renee referred to the previous incident and said to Chislett: "How dare you approach me out of your white privilege!" Chislett complained to her supervisors but did not receive support. In a meeting on November 6, 2018, Chislett's subordinate Adefope told her that she was "racist." Around the same time, Adefope and Renee told Chislett that "race is at the center of every conversation" they had with her.

At one point, Chislett told her team that "this is becoming almost unbearable for me because there is increasing hostility." In response, Renee stated: "How dare you use the word unbearable, there is black people dying in the street, you don't have the right to use that term. You're coming from the position of white privilege and white supremacy." Chislett again complained, but her supervisors did not intervene.

Content from the trainings also spilled over into workplace interactions. OEA employees directed terminology from the trainings at Chislett, for example telling her that she was "socialized as a white person to be defensive." In conversations, Chislett's subordinates frequently spoke of the stereotypical "presumed values" of Caucasians, a perception frequently expressed in the training sessions.

OEA employees were expected to have racial conversations in group settings approximately once a month. At an internal meeting on September 24, 2018, Shannon Maltovsky, Senior Director of Anti-Bias and School Support, shared PowerPoint slides listing ground rules for the office as they began to have "more conversations about race." Chislett described the rules as explaining that "whites who wanted to withdraw or not participate in order to be safe were demonstrating white fragility, and it was no longer [the] right [of white people] to be safe in the workplace."

Several of Chislett's Caucasian coworkers began to perceive the environment as hostile. One employee repeatedly stated that the workplace conduct was "unlawful." In a declaration, another employee described the "open hostility against Caucasian employees within the ranks of the DOE." Chislett and a coworker tried to meet with Ababio-Fernandez to discuss their concerns. However, Ababio-Fernandez "invited the very individuals" Chislett and her colleague hoped to discuss.

On November 30, 2018, Ababio-Fernandez assigned Chislett a leadership coach, OEA Senior Strategy and Policy Advisor Courtney Winkfield, who is also Caucasian. Winkfield offered Chislett insight into "what it means to be a white leader leading staff members of color." During a training on February 12, 2019, the facilitator told participants:

It's going to feel a little bit more uncomfortable when we get to inclusion because I'm going to ask you to talk about your power and your privilege. You are going to have to name that you have privilege. And then I'm going to ask you, while naming your privilege, to acknowledge that you may have to step back from some things, and that's not going to feel good. And you're probably going to question your job security. You're probably going to wonder how you feel you belong right now.

DOE employees made racist statements about a colleague of partially white parentage. In February 2019, Chislett heard Renee use racialized sentiments when discussing a "white adjacent" colleague "from a mixed race family" who "adopted [B]lack daughters" and married "a white man." After the colleague attempted to monitor Renee's productivity, Renee called her "a slave master," and another employee labeled her "a white dominant leader." Chislett complained about what she heard to Ababio-Fernandez and the Senior Director of Operations Shahzad Kazi, but they did not address her complaints.

On March 20, 2019, Ababio-Fernandez and Winkfield removed Chislett's supervisory responsibilities although her title and pay remained the same. They told Chislett that the team needed "time to heal." The decision was allegedly based on feedback from Chislett's team and other employees who reported that Chislett was an ineffective leader who caused "chaos" and "a negative work environment." Within two days, many of Chislett's duties were transferred to Adefope, her subordinate.

On April 3, 2019, Chislett complained to Ababio-Fernandez and Winkfield that meetings had become racially divisive. Kazi then stated: "I too am concerned about the tone of these conversations about race during team meetings. We need to make sure that we do not violate [the] Chancellor's Regulations or Union policy during OEA trainings." In response, OEA Executive Director of Educational Equity, Anti-Bias and Diversity Paul Forbes declared: "I am not concerned … because this Chancellor truly has our back."

On April 11, 2019, Chislett retained legal counsel who contacted the DOE about her "unanswered complaints regarding the hostile work environment she was forced to endure and the discriminatory manner in which … her role had been diminished …." The DOE "did not take any steps to address Chislett's complaint."

On April 16, 2019, Winkfield announced that the "AP for All" team would engage in eight weeks of "racial literacy training." Several weeks later, Chislett complained to Winkfield about a particular assigned reading, which she felt "stereotyped Caucasians." Chislett also reported that she had to "endure a colleague's offensive race-based accusations" during the trainings that her "lack of vulnerability in conversations was because [she was] white." Winkfield told Chislett that it was her "responsibility to ask people to stay in protocol" and stated that the "trainings [were] not going to change."

Around this time, several Caucasian DOE employees contacted the New York Post about Carranza's equity agenda. A reporter reached out to Chislett, who spoke anonymously about the implicit bias trainings. However, Chislett's supervisors were aware that she had spoken to the press because the New York Post reached out to the DOE to confirm her title. On May 18, 2019, the New York Post published an article titled "Schools Chancellor Richard Carranza accused of demoting admins because they were white." Two days later, the New York Post published another article titled "Richard Carranza held 'white supremacy culture' training for school admins," which contained a picture that Chislett took during an implicit bias training.

On May 23, 2019, Chislett attended an OEA staff training retreat. Conversation quickly turned to the New York Post articles. Forbes declared:

We see there are people within who already have views and say they are part of the equity excellence work and they're sitting amongst us, next to us, between us and alongside of whiteness. I keep saying, if you go to Tweed [the DOE headquarters], there are people there who say they have that title but they are not about this, but they don't know what that's about.

The room became very tense, and Renee stood up. She addressed Chislett by name and told her that she was "prohibiting this work from happening." Adefope stood up and called out Chislett as well. Other employees also stood up and told Chislett that she was "not willing to do the [equity] work" and that she "should just go." This continued for approximately fifteen minutes before Ababio-Fernandez terminated it. Chislett "tried to defend herself" and left the meeting "humiliated;" "frightened;" and "in tears."

Chislett left the retreat before the second day and required short term disability leave to seek medical attention for her emotional distress. After her leave, Chislett felt she could not return to the workplace. Consequently, Chislett resigned from the DOE in September 2019.

I'm generally pretty skeptical of imposing "hostile work environment harassment" liability on employers based on their or their employees' speech to the workplace at large (as opposed to speech targeted to a particular employee); see here for more. But while some judges have shared these First Amendment concerns, other judges (and other government actors) seem to be fine with such speech restrictions; and here there was indeed allegedly speech targeted at employees because of their race.

Brian Heller and Davida S. Perry (Schwartz Perry & Heller LLP) represent plaintiff. Thanks to Hans Bader (Liberty Unyielding) for the pointer.

The post Second Circuit Allows Claim That "Implicit Bias Trainings" Constituted Racial Harassment appeared first on Reason.com.

[Josh Blackman] The Heritage Guide to the Constitution: Essay Nos. 26–50

To continue my preview of The Heritage Guide to the Constitution, which will ship on October 14, here are the authors of essays 26–50.

Essay No. 26: The Rules Of Proceedings Clause —Paul TaylorEssay No. 27: The Punishment And Expulsion Clause —Michael SternEssay No. 28: The Journal Clause —C. Towner FrenchEssay No. 29: The Congressional Adjournment Clause —James Burnham & Louis J. Capozzi IIIEssay No. 30: The Congressional Compensation Clause —Giancarlo CanaparoEssay No. 31: The Privilege From Arrest Clause —Michael SternEssay No. 32: The Speech Or Debate Clause —Thomas G. Hungar & Michael BoppEssay No. 33: The Ineligibility Clause —Josh Blackman & Seth Barrett TillmanEssay No. 34: The Incompatibility Clause —Josh Blackman & Seth Barrett TillmanEssay No. 35: The Origination Clause —Andy GrewalEssay No. 36: The Presentment Clause —James Burnham & Louis J. Capozzi IIIEssay No. 37: The Pocket Veto Clause —Martin GoldEssay No. 38: The Order, Resolution, Or Vote (ORV) Clause —Seth Barrett TillmanEssay No. 39: The Taxing Clause —Andy GrewalEssay No. 40: The Spending Clause —James C. PhillipsEssay No. 41: The Uniformity Clause —Nelson LundEssay No. 42: The Borrowing Clause —James C. PhillipsEssay No. 43: The Foreign Commerce Clause —Eugene KontorovichEssay No. 44: The Interstate Commerce Clause —Randy E. BarnettEssay No. 45: The Indian Commerce Clause —Timothy SandefurEssay No. 46: The Naturalization Clause —Patrick GlenEssay No. 47: The Bankruptcy Clause —Todd J. ZywickiEssay No. 48: The Federal Money Clause —Todd J. ZywickiEssay No. 49: The Weights And Measures Clause —Eric ChiappinelliEssay No. 50: The Counterfeiting Clause —Judge Jay S. Bybee

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[Eugene Volokh] Religious Practices as Legally and Constitutionally Protected Against Regulations Aimed at Preventing "Addiction"

I'm serializing my forthcoming Emory Law Journal article titled Addiction to Constitutionally Protected Activity: Speech, Press, and Religion. In my first post, I argued that calls to regulate social media platforms and video games on the theory that they are "addictive" could equally plausibly be made with regard to various religious practices, which seem to share some of the supposedly "addictive" properties. But I follow this with an explanation that such regulations of religious practices would be unconstitutional. Here's the explanation as to adults; in the next post, I'll talk about how it also applies to attempts aimed at shielding children:

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Yet I take it that our legal system wouldn't allow the government to regulate such religious practices in order to prevent people from making such unwise decisions. To be sure, religious institutions can be barred from engaging in physical abuse or physical coercion. They can also be barred from outright lies about specific and secularly determinable factual assertions (e.g., about where donations would be going, or about whether the speaker had witnesses a divine visitation or healed someone through prayer).

But the law can't prevent trying to play on people's emotions through religious leaders' sincerely believed theological claims about Heaven and Hell, or through the leaders' reliance on followers' desire for community acceptance or fear of excommunication. That is true of tort liability as well as of legislation.

And that is true in spite of the fact that some religious groups, belief systems, and practices may be genuinely psychologically harmful—or, as critics of various religions have argued for millennia, may be tools that some religious leaders use to cynically milk parishioners for money. Religion can damage or destroy some people even as it helps or rescues others. (My argument doesn't rest on the theory that religion is uniformly good or even good on balance, and I personally am not religious.) Yet secular legal rules generally aren't allowed to protect people from supposedly manipulative or even addictive religious practices.

That is so, I think, for several closely related reasons.

[1.] Many religious people appear to derive emotional reward from their religious beliefs. For instance, barring large donations to religious institutions, for fear that they are the result of emotional or mental pressure, would perhaps help some people but deny an emotionally important option to other people.

[2.] Religious practice is constitutionally protected. Even under Employment Division v. Smith, attempts to target religious practice because it's religious—and thus especially likely to involve psychological pressure and "addiction"—would be presumptively unconstitutional. American governments are thus generally not allowed to restrict people's religious choices on the grounds that they think those choices might be bad for them. And that remains so even if the restrictions are aimed at protecting others' ability to choose, unimpaired by psychological pressure or addiction.

[3.] People often value their own religiously motivated decisions very differently than other people might value those decisions. If we see someone giving all his money to a church, we may feel sympathy for what to us may seem like a foolish decision. What if the person ends up needing that money for living expenses, or medical bills? Even if the church promises to provide for that, isn't it sad to see someone become dependent on the church's mercy, which may in any event be withdrawn if the person moves away from his religious beliefs?

Or if the person is near the end of his life, isn't it sad to see the person unable to leave his money to his children? If something similar happened to us—if, for instance, we were psychologically manipulated into giving away our own money—we would feel very upset at the loss.

But of course the donor might take a very different view. He may think that his donation will give him eternal salvation, which he may see as infinitely more valuable than any value the money might have to him (or even to his family). And even setting aside such unknowable benefits in a future life, his belief that he will be saved—or just his belief that he is following God's will—may give him great joy and peace in his present life. One feature of American religious freedom is that secular authorities generally don't make fundamentally theological judgments about the spiritual or psychological value of perceived salvation.

Likewise, we may think that isolating oneself from friends and family—perhaps permanently severing most of the relationships that, to us, make life meaningful—is a very bad choice and perhaps even the sign of mental illness. Yet for millennia, some religions have honored and encouraged retreat into monasticism or even hermitry, as a means of focusing on what they think is their much more important relationship with the divine. Such isolating, relationship-severing choices—and religious institutions' promotion of such choices—are themselves protected by religious freedom.

[4.] To be sure, in some situations the harm to the religious observer may be so sharp and immediate—or the mechanisms of control may be seen as so obviously improper—that the law may indeed intercede. Courts have, for instance, denied religious exemptions from generally applicable bans on the handling of poisonous snakes or drinking poison, even under the Sherbert/Yoder approach which often called for such exemptions in less perilous situations (an approach that seems poised to return). Presumably that reflected the view that protecting people's lives justifies a restriction on people's religious practices, even if people may think they get more expected spiritual benefit from snake-handling than the expected temporal cost. Likewise, religious donations may be set aside based on a finding of outright mental incompetence, and religious organizations may be sued for luring members in through outright fraud.

But for such practices to be prohibited, there must surely be something more than some general claim of "addiction" to religious beliefs, or assertions of emotional harm or modest financial loss. More than that is required to interfere with willing people's exercise of First Amendment religious freedom rights, even when the goal is to protect those who are in some sense being manipulated through cunning psychological pressure.

Thus, to borrow an argument made as to social media addiction, say that a legislature tried to regulate certain religious practices on the grounds that the practices' "addictive design itself interferes with users' liberty—their freedom of thought when subjected to an unwanted and persistent compulsion, and their bodily autonomy when addictive design contributes to mental illness." That cannot be constitutional, I think: The law can't limit the liberty of those who want to embrace psychologically powerful religious practices (even when some nonbelievers view them as "manipulation") in order to protect the liberty of those who might find themselves "addict[ed]" as a result of those practices.

[* * *]

See, e.g., Paul v. Watchtower Bible & Tract Soc. of New York, Inc., 819 F.2d 875, 883 (9th Cir. 1987) ("The harms suffered by Paul as a result of her shunning by the Jehovah's Witnesses are clearly not of the type that would justify the imposition of tort liability for religious conduct. No physical assault or battery occurred.").

See, e.g., United States v. Ballard, 322 U.S. 78 (1944); In re The Bible Speaks, 869 F.2d 628 (1st Cir. 1989).

Cf., e.g., Marks v. Estate of Hartgerink, 528 N.W.2d 539, 544-45 (Iowa 1995) (rejecting liability for wrongful excommunication); Korean Presbyterian Church v. Lee, 880 P.2d 565, 569-70 (Wash. Ct. App. 1994) (same); Paul v. Watchtower Bible & Tract Soc. of New York, Inc., 819 F.2d 875, 883 (9th Cir. 1987) (rejecting liability for shunning of a member who had left the church).

494 U.S. 872 (1990).

See, e.g., Michael W. McConnell, Why Protect Religious Freedom?, 123 Yale L.J. 770, 781 (2013) ("In the liberal tradition, the government's role is not to make theological judgments but to protect the right of the people to pursue their own understanding of the truth, within the limits of the common good.").

Cf. Religious Addiction, supra note 9 ("[t]he symptoms of religious addiction include . . . neglecting personal and family commitments"; "[t]he effects of religious addiction include . . .  isolation and strained relationships").

 Christianity, Buddhism, Hinduism, and Sufism have encouraged monasticism. See, e.g., Mayeul de Dreuille, From East to West:‌‌ A History of Monasticism (1999); Stephen J. Davis, Differences, in Monasticism:‌‌ A Very Short Introduction 13 (2018) (surveying differences among monastic traditions in Buddhism, Jainism, and Christianity); David Cook, Mysticism in Sufi Islam, in Oxford Research Encyclopedia of Religion 1, 2–3 (2015); The Ties That Bind:‌‌ Emotional and Social Bonds between Parents and Children, in Children and Family in Late Antique Egyptian Monasticism 160, 160 (2020) ("Monastic rules, handbooks, and literary texts testified to the distractions and even the dangers of maintaining familial attachments")

Catholic Canon Law continues to recognize hermitry:‌ "In addition to institutes of consecrated life [in a religious order], the Church recognizes the eremitic or anchoritic life by which the Christian faithful devote their life to the praise of God and the salvation of the world through a stricter withdrawal from the world, the silence of solitude, and assiduous prayer and penance." Canon 603 § 1. See also, e.g., Bethan Bell, A Hermit's Christmas:‌ Simplicity, Solitude and Silence, BBC, Dec. 23, 2016, https:‌//‌www.bbc.com/‌news/‌uk-england-37431760.

To be sure, not all monastic lifestyles cause for complete isolation from family, and few successful religions encourage all their members to become monks or nuns: Indeed, a religion that did that would likely not survive into the next generation. But many religions do indeed valorize such behavior, which does involve some considerable degree of isolation, and which may appeal to those members of the religion that have suitable temperaments and attitudes.

See State ex rel. Swann v. Pack, 527 S.W.2d 99 (Tenn. 1975); Hill v. State, 38 Ala. App. 404 (1956); State v. Massey, 229 N.C. 734 (1949).

Fulton v. City of Philadelphia, 593 U.S. 522, 543 (2021) (Barrett, J., concurring); id. at 544 (Alito, J., concurring in the judgment).

See, e.g., Tallahassee Bank & Trust Company v. Brooks, 200 So. 2d 251 (Fla. Ct. App. 1967).

See, e.g., Molko v. Holy Spirit Ass'n, 46 Cal. 3d 1092, 1108 (1988).

Lawrence, supra note 12, at 349; see also Matthew B. Lawrence, Addiction and Liberty, 108 Cornell L. Rev. 259, 324–25 (2023).

See Lawrence, supra note 46, at 325.

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[Josh Blackman] Today in Supreme Court History: September 25, 1981

9/25/1981: Justice Sandra Day O'Connor takes the oath.

Justice Sandra Day O'Connor

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