Eugene Volokh's Blog, page 54

[Josh Blackman] Constitutional Law, in Pop Culture

A funny movie from my youth was Tommy Boy, starring Chris Farley and David Spade. I recently rewatched it. This question on Chris Farley's final exam in history made me cringe (and not because he wrote Herbie Hancock).

Then again, perhaps I should let the producers off easy. I recently saw this book at the Houston Public Library, and also cringed.

No, the Constitution is not built to change with our country. It was made notoriously difficult to amend. This author has no apparent expertise about the Constitution, but I suppose that shouldn't stop her from writing about it.

One of my long-term goals is to write children books about the Constitution. It's on the agenda.

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[Josh Blackman] Today in Supreme Court History: July 13, 1787

7/13/1787: The Articles of Confederation Congress enacts the Northwest Ordinance.

The Articles of Confederation

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[Jonathan H. Adler] Does Hiring Diversity Officers Increase University Diversity?

[It is easier for universities to hire administrators than to engage in meaningful change.]

A new study in the Southern Economic Journal suggests that university efforts to enhance diversity by hiring DEI executives to oversee diversification efforts were largely ineffective. Specifically the study, "The Impact of Chief Diversity Officers on Diverse Faculty Hiring," finds that hiring CDOs had no effect on faculty diversity.

The abstract reads:

Racial diversity among faculty, students, and administrators is increasing at universities in the United States. These changes have been uneven, with growth in underrepresented students exceeding that of faculty diversity. To address these and other inequities, a growing number of universities have established an executive-level chief diversity officer (CDO). Our study offers a first empirical examination of this effort at selected 4-year U.S. universities from 2001 to 2019 using unique data on the initial hiring date of a CDO and publicly available demographic data. We provide a comprehensive overview of demographic trends within our data and find confidence intervals around the estimated instantaneous average treatment effect for an executive-level CDO on diverse hiring tightly contain zero. Estimated treatment effects are small and lack statistical significance within 4 years of a CDO position being established. We discuss other possible factors that explain trends toward higher diversity on campus and several possible constraints.

Should the paper's results be surprising? Not particularly. It is relatively easy for a university (or any large, bureaucratic institution) to hire administrators and adopt superficial policies. Actually changing hiring practices, on the other hand, can be quite difficult, and changing the composition of a faculty can be quite slow. If a university faculty is resistant to hiring people of different backgrounds (or viewpoints), hiring a few administrators is unlikely to change things very much.

None of this means that hiring DEI administrators has no impact. There are certainly anecdotal accounts suggesting that some such efforts can affect university culture (and perhaps in quite negative ways--as seems to have occurred at the University of Michigan). The point is that such investments do not appear to produce the sorts of changes that they promise.

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[Irina Manta] The Role and Ethics of AI Use in Online Dating

[From Helpful Learning Tool to Problematic Deception]

The Washington Post has a new podcast up this week about the ways that AI is changing online dating. Some of these ways risk crossing the line into the territory of deception. I have written previously in law review articles here and here about the issues with deception in online dating, from sexual fraud to hiding one's true identity for purposes of financial fraud or downright violence.

Deploying AI as a learning tool seems relatively unproblematic and could even turn someone into a genuinely better partner. Users of AI dating coaches have at times reported positive experiences with self-development in the relationship context. When it comes to coaching, one way to describe the line into the unethical might be the distinction between truly improving oneself versus seeking out manipulation techniques to trick others, in the genre of pick-up artists.

Those who use AI in the online dating context should ask themselves if their interaction style in the physical world will fail to reflect the image that the AI-improved texting suggested. Another, related question is whether their mate would experience frustration if they learned the extent of said AI use. It would certainly be unethical to use AI to engage in what Prof. Jill Hasday has deemed in her book on intimate lies and the law "linchpin deception," meaning to hide a known dealbreaker (sometimes in the hope of overcoming it via personal charm or the like down the line).

Another phenomenon that the WaPo podcast mentions is that AI may hide red flags (or as they call it, signals) about an individual in a profile or chat. Scholar Jennie Young, in particular, has become known for her linguistic analyses of such texts in what she calls the Burned Haystack Dating Method--accompanied now by a Facebook group boasting over 200K members. For example, she recommends that women left-swipe men who engage in so-called directive behavior (telling another user what to do) in their profiles or texting as it suggests problematic relational patterns down the line.

We can easily imagine AI being fed Young's techniques to make sure a predatory user does not tip his hand that easily. And that could assist individuals who would turn out not to be a merely "bad date" in person but in fact downright dangerous. That said, one might also picture the reverse: perhaps AI could be deployed to detect cues that another user might be problematic and/or, to come full circle, used AI in his profile or texting!

For safety purposes, the increased use of AI in text-based media may militate even more toward having a phone call or video chat before a date than was already warranted. While there remains a risk of deepfake technology being used in a video chat, this requires a greater level of sophistication on the part of predators than the mere use of a chatbot. In short, it's a safety measure far better than nothing.

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[Josh Blackman] Today in Supreme Court History: July 12, 1909

7/12/1909: 16th Amendment is submitted to the states.

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[Eugene Volokh] No Pseudonymity for Plaintiff Suing Fashion Institute of Technology Over Alleged Anti-Semitic Discrimination

From Judge John Cronan (S.D.N.Y.) today in Doe v. Fashion Institute of Tech., refusing to reconsider an earlier decision that denied Doe pseudonymity:

First, Plaintiff argues that the Court erred in several ways by concluding that the second and third factors [of the Second Circuit pseudonymity test] (risk of retaliation and severity of harm to the plaintiff) weighed only slightly in favor of anonymity. In so arguing, Plaintiff suggests that the Court overlooked evidence presented along with the renewed motion that a sticker bearing the phrase "The only good Zionist is a dead Zionist" has been affixed to at least two locations inside FIT buildings since early February 2023. Similarly, Plaintiff highlights "[r]ecent violence against Jewish students" on school campuses in New York and across the country in arguing that the Court improperly assessed the risk of harm to her. While Plaintiff's allegations of derogatory stickers affixed to buildings on FIT's campus and of violence against Jewish students elsewhere "are abhorrent," these alleged actions "were 'not directed at plaintiff or similarly situated individuals and so do not demonstrate that plaintiff is at risk of harm.'"

Plaintiff also argues that the second and third factors weigh in her favor because she has "alleged more than reputational harm resulting from the disclosure of her identity." She claims instead that disclosure of her name would result in "potential employers and educational institutions [having] easy access to the disciplinary measures Defendant has taken against Plaintiff …, which would in turn threaten her ability to secure future employment and pursue academic opportunities," and would result in a "severely compromised" "likelihood of [Plaintiff] being hired or accepted to a prestigious graduate institution."

Plaintiff's identified harms are no different than mere reputational harms, insufficient to support a motion to proceed anonymously. These claims of "economic hardship and  loss of professional goodwill" do not weigh in favor of anonymity.

Second, Plaintiff argues that the Court erred by concluding that the fourth Sealed Plaintiff factor (the plaintiff's vulnerability) weighed against proceeding anonymously. In its Opinion, the Court recognized that "[w]here Plaintiff is an adult 'who has chosen to level serious charges against a defendant in the public eye,' this fourth factor 'weighs in favor of [her] shouldering the burden of such accusations.'" … Plaintiff argues that she is "particularly vulnerable to reputational harm" as a college student, but, as explained above, Plaintiff's reputational harms are insufficient to warrant proceeding anonymously, especially as Plaintiff is an adult and chose to bring this lawsuit herself.

Third, Plaintiff argues that the Court erred in evaluating the sixth Sealed Plaintiff factor (prejudice to the defendant) because, in Plaintiff's view, FIT waived any claim of prejudice by not opposing Plaintiff's motion and the Court improperly "independently assert[ed] a claim of prejudice" on behalf of FIT…. [But] courts must evaluate prejudice as part of the balancing analysis …, even in the absence of opposition. "[D]istrict courts [must] weigh 'the interests of both the public and the opposing party' in considering such motions." … "Animating Rule 10(a) is the 'public's common law right of access to judicial proceedings,' which is a right 'supported by the First Amendment.'" …

{Plaintiff further argues that FIT's "non-opposition to [the] motion to proceed under a pseudonym is evidence that [Plaintiff's] privacy concerns are substantial and recognized by [FIT]." The Court disagrees. FIT has provided a reason for its non-opposition that is unrelated to Plaintiff's privacy concerns—"its allocation of limited time and resources."

Plus, … FIT has articulated prejudice it would suffer were the Court to allow Plaintiff to proceed anonymously in this action…. When the Court invited FIT to clarify whether it "intended to disclaim all prejudice that could result from Plaintiff proceeding under a pseudonym in this case" by not opposing the motion, FIT expressly declined to do so, and instead noted the prejudice it would suffer throughout the life of this case, id. at 2 ("[A]llowing Plaintiff to proceed anonymously in this case would hinder FIT's ability to defend itself in all phases of litigation, including discovery and at trial. Witnesses who could support FIT's defenses would not be able to come forward if they cannot ascertain the identity of the Plaintiff…. Additionally, FIT would suffer further prejudice if this action were to proceed to trial…. [T]he use of a pseudonym risks confusing a jury, as jurors will likely construe the Court's permission for the plaintiff to conceal her true identity as a subliminal comment on the harm the alleged encounter with the defendant has caused [Plaintiff]…. Thus, allowing Plaintiff to proceed under a pseudonym would prejudice FIT with regard to issues of credibility at trial."} …

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[John Ross] Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal

[Colorado River abstention, Wilton-Brillhart abstention, and sua sponte shenanigans.]

Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

What's so natural about rights? Well, a lot of our state constitutions actually call some rights "natural." And state courts consider all kinds of rights of the "natural" variety, from life, liberty, and the pursuit of happiness to the right to worship to the right to earn a living. In State Court Report, Anthony Sanders, the director of IJ's Center for Judicial Engagement, summarizes the family of "natural," "inherent," "unalienable," and "fundamental" rights—both "enumerated" and "unenumerated"—and what state courts are doing these days to protect them.

This week on the Short Circuit podcast: One gun a month is too few, even in the Ninth Circuit.

At 2020 police-brutality protest, a 6'5", 250-lb. Stamford, Conn. officer—without warning or command—hoists woman by her bra strap, pushes her backward in the air for about 15 feet, and then slams her to the pavement. The woman—who was not a protester; she was there at the request of a police supervisor to deescalate—suffers serious head and neck injuries. Second Circuit: And since it's not clear from the video whether he was trying to get past her to aid other officers or just gratuitously thumping people, the grant of qualified immunity is vacated.Shortly before the 2016 election, self-described Twitter "shitlord" tweets and retweets memes urging supporters of Hillary Clinton to vote by text message. More than four years later—and two days after the inauguration of President Biden—he is criminally indicted for conspiring to injure citizens in the exercise of their right to vote. After four days of deliberation and two Allen charges to the jury, he's convicted and sentenced to seven months in prison. Second Circuit: But there was no evidence he actually conspired with anyone, which is, y'know, an element of the crime.The federal Protection of Lawful Commerce in Arms Act preempts civil liability against gun manufacturers or sellers when gun users engage in illegal behavior. But not when the manufacturer or seller knowingly violates state or federal law. So how about a N.Y. law specifically enacted to go after the gun industry? Members of the industry challenge the law. Second Circuit: And they miss the mark because facial challenges are hard. Concurrence: But they have a good shot in an as-applied case. Governor Cuomo pretty much admitted this law is an end-run around the PLCAA when he signed it.How far down a 70-foot driveway does the home's curtilage begin? Pittsburgh, Penn. officer followed a car into a driveway after smelling weed, searched the car, found an illegal gun. The driver argued that the officer entered the curtilage of his home without a warrant. Third Circuit: If you just look at these pictures, you'll see that the officer was standing "several dozen feet" from the garage, outside the curtilage. Affirmed. Dissent: If you just look at these pictures, you'll see that the officer was more than halfway up the driveway, past the stairs to the front porch, in an area enclosed on three sides, within the curtilage."Twenty-four years ago, [Virginia] decided that Appellant was a guilty man. From that moment, the Commonwealth has done everything in its power to ensure Appellant dies in prison, eschewing the Constitution, ethical strictures, and Appellant's own repeated and consistent assertions of factual innocence." So says the Fourth Circuit in its fourth consideration of habeas for a man once sentenced to death for a murder-for-hire scheme in which the only evidence tying him to the crime was the shooter's since-recanted testimony that the shooter said was coerced by the state via death-penalty threats.Allegation: After shooting at Dallas bar, investigators clear the bar owner and a security guard of wrongdoing. Yikes! A detective who isn't assigned to the case—and who is secretly moonlighting for a neighboring property owner (who wants the bar gone)—gets the bar owner and guard brought up on bogus charges. (Prosecutors drop the case mid-trial when the conflict of interest comes to light.) Fifth Circuit: Despite any ulterior motives, the detective was doing detective stuff and thus acting within the scope of his employment. Which means, contrary to the district court, that he's immune from civil liability under Texas state law. Concurrence: We should rethink whether interlocutory appeals of denials of state-law immunity should be available.Allegation: Harris County, Tex. deputy constables like to use the n-word, refer to a police vehicle as "slave transport," and circulated pics and cartoons of a black mamba snake—a reference to plaintiff's private parts. Fellow deputies also refused to provide backup for plaintiff, and supervisors required him to clean vehicles soiled with excrement, which white deputies were not assigned to do. Fifth Circuit (unpublished): And there's some evidence that he was fired for pretextual reasons when he complained, so his Title VII race-discrimination claims should not have been dismissed.Allegation: Pretrial detainee in Henderson County, Tex. is placed in housing with violent, dangerous men who threaten him. Guards refuse to move him, so he falsely claims to be suicidal. Guards tell him "you really fucked up now, bitch," and put him in a cell (for five days) where there is no bed or bedding and the lights are on 24/7. For a bathroom, there is only a small, grated drain in the middle of the cell, through which he has to push his feces using a paper cup. Guards taunt and threaten him, saying "you are not leaving this facility alive." Fifth Circuit (over a dissent): Well, he asked to be put in there, so.In 2014, plainclothes members of an FBI task force mistake an innocent Grand Rapids, Mich. college student for a fugitive and nearly beat him to death when he tries to escape what he thinks is a mugging. Sixth Circuit: It was attorney error or strategic miscalculation to waive his tort claims back in 2019. Dissent: His attorneys would have to be clairvoyant to have foreseen the 2021 Supreme Court decision that dinged his constitutional claims; he should be permitted to unwaive his tort claims. [Ed.: We are his attorneys, and we note this decision creates a hot new Rule 60(b)(6) circuit split!]In this case, the facts remind your summarist why Trusts & Estates was one of the most interesting classes in law school. The law is a Sixth Circuit tour de force on the critical distinction between standing and merits. And the outcome is an object lesson in raising your strongest defenses early, rather than hoping to contort them into a jurisdictional argument after losing.The Sixth Circuit's adventures through family inheritance feuds continues in this case, here with a healthy dose of copyright law. What comforting words can we give the effectively disinherited granddaughter? Que Sera, Sera.Allegation: In 2018, Louisville, Ky. officers arrest man with a little bit of weed and a lot of cash. Yikes! After he's been searched three times, officers "find" a small bag of meth. They also "find" a large bag of marijuana, the discovery of which is mysteriously not captured on bodycam. In 2020, the man's motion to suppress is granted: Officers had no business searching him in the first place. Sixth Circuit: His unlawful-search and false-arrest claims had to be filed while the criminal case was still ongoing to make the one-year statute of limitations, so those were filed too late. But fabrication-of-evidence claims don't accrue until a criminal case is over, so that was filed on time. And here, there's a "litany of evidence" that officers planted the drugs. Case undismissed.Under Texas's S.B. 8, any person can bring a bounty-hunter suit against a defendant, seeking statutory penalties for the defendant's having performed an abortion. Three such plaintiffs file three such suits against a single doctor. Doctor brings interpleader action in Illinois federal court (home jurisdiction of one of the plaintiffs). District court: No defendants raised this issue, but I'm going to sua sponte abstain from exercising federal jurisdiction under the Wilton-Brillhart doctrine. Seventh Circuit: No one's raised this issue either—not even the amicus appointed to argue for affirmance—but we're going to sua sponte affirm abstention under the Colorado River doctrine. But wait (you may be asking), even if Colorado River abstention can sometimes be raised sua sponte, isn't it a questionable and possibly unconstitutional practice to rule on that ground without first giving the plaintiff notice and a fair opportunity to respond? And since Colorado River abstention ordinarily rests in the discretion of the district court, does it really make conceptual sense for the appellate court to rule on that ground in the first instance? When the district court never had the opportunity to exercise its discretion one way or the other? And to those questions, dear reader, we say … you are an incisive interlocutor and we, your humble summarists, can but shrug in response.In 2021, Sunrise Beach, Mo. officer arrests pedestrian who took umbrage at the officer's demand for ID, later saying "I didn't want him walking down my highway" and asking colleagues "What can I get him on?" (No charges were filed.) After the officer is sued, he says the arrest was for walking on the wrong side of the road. Pedestrian: The real reason for the arrest—and by the way, the officer lied about me being drunk—was that I criticized him. Eighth Circuit (2023, unpublished): Case dismissed. There was probable cause to arrest for walking on the wrong side of the road. Eighth Circuit (2025, after an IJ cert petition and a GVR from the Supremes): If no one ever gets arrested for that, then it could have been an unconstitutional retaliatory arrest. To discovery this must go.In 2013, a Montreal Maine & Atlantic railroad engineer improperly sets the brakes on a train carrying crude oil. It rolls downhill for several miles until 63 railcars derail in Lac-Mégantic, Que., setting off a series of explosions that kill 47 people and destroy the downtown. MMA admits 100 percent fault, shuts down, and transfers all its assets to victims. Eighth Circuit: A different railroad company that had operated the train on the previous leg of its journey and was 0 percent at fault doesn't need to pay the victims.Over the course of a few weeks, a previously healthy, 20-year-old pretrial detainee vomits frequently, loses his hearing, can't stand, stops eating. He's offered Tylenol and told to quit faking. He dies in St. Louis county jail of acute, but treatable, leukemia. Eighth Circuit: And some of his mother's claims should have gotten past the pleading stage.In a case of nominative determinism, the Ninth Circuit must decide whether one Mr. Liberato—who was convicted of unlawful re-entry following removal from the United States—should be set free. Ninth Circuit: He was arrested just over the border fence, and there's no evidence he was ever free from official restraint, which is an element of the crime. Él está liberato. Dissent: ¡No! You're not viewing the evidence in the light most favorable to the gov't, which suggests he was free from official restraint—at least for a short time—before his arrest.California prohibits advertising firearm-related products "in a manner that is designed, intended, or reasonably appears to be attractive to minors." The publisher of Junior Shooters, a youth-oriented magazine focused on firearm-related activities and products, challenges the ban under the First Amendment. Ninth Circuit (2023): They're right, the law should be preliminarily enjoined. Ninth Circuit (2025; unpublished): Yes, district court, we meant the whole thing.Allegation: Arapahoe County, Colo. social worker (who's now in prison for lying in a different case) committed perjury at a custody hearing, testifying, for instance, that a minor gave her father baths when in fact the minor had described giving the family dog a bath. (The parents lose custody for 18 months.) Tenth Circuit: Officials who lie on the stand get absolute immunity. [For a deep, documentary-style dive on absolute testimonial immunity, give this podcast a listen.]The Tiger King, currently serving 21 years in prison for attempting to hire a hitman to kill an animal rights activist and for actually killing five of his tigers, seeks a new trial on the basis of purportedly new evidence indicating that several witnesses had lied and that the tigers were already ill when he killed them. Tenth Circuit: No new trial. He waived several of his arguments, but for those we address on the merits, he's just wrong.Black man is arrested (and spends three days in jail) for filming in entryway to Denver police station. There's a sign saying no videorecording is allowed in the station, but he didn't try to go past the sign and into the station. (A few days later, a white man films in the same place, and he's not arrested.) Tenth Circuit (unpublished): Even if it was unreasonable to arrest him, it wasn't unreasonably unreasonable. Denial of QI vacated.

New case! IJ clients Alex and Lynda Pepin want to build an accessory dwelling unit (ADU) in their backyard, and ADUs are perfectly legal in Blaine, Minn. But because of unfounded neighborhood opposition, officials rejected the Pepins' application, which is fully compliant with the city's strict rules about square footage, height, setbacks, parking, aesthetics, and much more. The Pepins intend to rent to a family that is transitioning out of homelessness (with support from and vetting by a local nonprofit), and neighbors spread false rumors that the ADU will be rented to criminals or become a homeless shelter. But the U.S. and Minnesota constitutions secure the Pepins' right to be treated the same as anyone else with a fully compliant permit application, and this week IJ and the Pepins filed suit in state court. Click here to learn more.

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[Jonathan H. Adler] Justice Jackson Wants People to Focus on "What Is Happening in Our Country and in Our Government" (Updated)

[Justice Jackson Sees Her Colleagues' Rulings As Threats to Democracy and the Rule of Law]

From the Washington Post:

Supreme Court Justice Ketanji Brown Jackson said Thursday that the "state of our democracy" keeps her up at night, echoing a theme that has animated some of her recent public appearances and fiery dissents from recent decisions.

"I'm really very interested to get people to focus, and to invest and to pay attention to what is happening in our country and in our government," Jackson said. . . .

On Saturday, at a different event in New Orleans, Jackson called the conservative bloc's decisions "an existential threat to the rule of law." . . .

On why she writes dissents as much as she does, Jackson commented:

"It's because I feel like I might have something to offer and add, and I'm not afraid to use my voice," said Jackson, noting that she's not offended by other justices taking issue with her opinions because she has a "thick skin."

Justice Jackson's comments echoed sentiments she has expressed in some of her opinions, including her dissent in Trump v. CASA, which drew a sharp response from Justice Barrett writing on behalf of the Court.

UPDATE: C-Span has posted video of the talk, and highlights this quote:

There are sometimes when, even after the principal dissent is written, I have a slightly different perspective or a different take on something or this is an issue of particular importance to me for whatever reason. Where I will say, 'Forgive me Justice Sotomayor, but I need to write on this case.' It's because I feel like I have something to offer, and something to add and I'm not afraid to use my voice.

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[Jonathan H. Adler] When Does a Regulation Become Final?

[The D.C. Circuit resolves a dispute over which set of visa regulations bind the public.]

Today, in National Council of Agricultural Employers v. U.S. Department of Labor, the U.S. Court of Appeals for the D.C. Circuit helped bring a little more clarity to the question of when a new regulation becomes binding upon the public. Senior Circuit Judge Ginsburg wrote for court, joined by Judges Katsas and Childs.

The introduction of Judge Ginsburg's opinion effectively summarizes the nature and significance of the dispute, and the court's conclusions.

This case presents a recurring question of administrative law: At what point does a substantive rule submitted by an agency to the Office of the Federal Register (OFR) for publication become final so that it cannot be withdrawn or amended without going through the notice-and-comment requirements of the Administrative Procedure Act? The answer to this question is particularly significant during transitions between one presidential administration and the next. Those periods are often marked by a flurry of rulemaking activity. Agency leaders of the departing administration work furiously to finalize and publish new regulations, then newly appointed leaders act expeditiously to withdraw unpublished rules that might be inconsistent with the new administration's priorities, while through it all the OFR beavers away trying to keep up with the changes.

Ambiguity regarding the legal significance of processing by the OFR can result in regulatory uncertainty that persists well past the presidential transition period, as this case illustrates. In 2019 the Department of Labor (DoL) issued a notice of proposed rulemaking (NPRM) to amend its 2010 regulations regarding a visa program. During the last days of the Trump Administration in 2021, the DoL announced to the public and submitted to the OFR for publication in the Federal Register what it characterized as a final rule. While the OFR was processing the rule, however, the DoL under President Biden withdrew it. Then, in 2022, the DoL issued a new rule based upon the 2019 NPRM.

The question here is which rule marked the culmination of the rulemaking process that began in 2019, the 2021 Trump rule or the 2022 Biden rule? Or, more generally, at what point does a substantive rule submitted to the OFR for publication become final so that a new round of notice and comment is required before the agency can change or withdraw the rule?

In this case, we hold the rulemaking process culminated in the 2022 Rule. A substantive rule is not ordinarily final until the OFR makes it available for public inspection. At that juncture the rule is "duly fixed," GPA Midstream Ass'n v. Dep't of Transp., 67 F.4th 1188, 1195 (D.C. Cir. 2023), and "becomes 'valid' against the public at large," Humane Soc'y v. USDA, 41 F.4th 564, 570 (D.C. Cir. 2022) (quoting 44 U.S.C. § 1507). Although an agency can "for good cause," 5 U.S.C. § 553(d)(3), make a rule final without processing by the OFR — by putting it into effect expeditiously and giving actual notice of the official rule to members of the public — the DoL did not do so here. Instead, the DoL made the 2021 Rule contingent upon processing by the OFR and then withdrew the rule before it became final.

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[Jonathan H. Adler] Would "Affirmative Action" for Conservatives in Academia "Backfire"?

[Universities should be wary of adopting practices or policies that "discourage curiosity and reward narrowness of thought."]

Should universities increase (initiate?) efforts to enhance viewpoint or ideological diversity among faculty? Some think so. Others are not so sure. And would such efforts necessarily require taking affirmative steps to increase the likelihood of hiring conservatives, such as creating special centers or faculty lines, or would it be enough to counteract bias against non-progressive views in the hiring process? On this there is active debate.

The New York Times published an op-ed this week on the subject by University of Pennsylvania philosophy professor Jennifer Morton, "Why Hiring Professors With Conservative Views Could Backfire on Conservatives." In the op-ed Professor Morton writes:

Certainly, there is not enough engagement with conservative ideas on college campuses. Schools can and should do more to ensure that students encounter a greater range of political perspectives in syllabuses and among speakers invited to give talks.

But a policy of hiring professors and admitting students because they have conservative views would actually endanger the open-minded intellectual environment that proponents of viewpoint diversity say they want. By creating incentives for professors and students to have and maintain certain political positions, such a policy would discourage curiosity and reward narrowness of thought.

Perhaps few would argue that universities should adopt policies or practices that "discourage curiosity and reward narrowness of thought." But if that is really the concern, it seems that potential, as-yet-unimplemented policies designed to increase viewpoint diversity would hardly top the list of things to be worried about.

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