Eugene Volokh's Blog, page 63

[Eugene Volokh] California General Ban on Nonresidents' Getting Concealed Carry Licenses Violates Second Amendment

From today's Hoffman v. Bonta, decided by Judge Cathy Ann Bencivengo (S.D. Cal.):

The sole issue in this case is whether the Constitution requires California to allow nonresidents to apply for a concealed carry weapons (CCW) license. Plaintiffs, who are not California residents, complain that they are prohibited from carrying a firearm for self-defense when they visit California. For standard two-year licenses, California imposes a residency requirement. An applicant who has his or her principal place of business or employment within the local permitting jurisdiction may receive a 90-day license. Unlike some states, California does not have a reciprocity policy for CCW licenses.

The State argues … that … the Second Amendment does not mandate that a traveler be allowed to use another state's license to carry in California. In effect, they argue that nonresidents do not qualify as "the people." The Supreme Court has not interpreted "the people" so narrowly. See Heller (the people "unambiguously refers to all members of the political community, not an unspecified subset")….

California [argues that its rule is justified by] historical analogues relating to various "locality-based licensing laws" from the mid-19th century…. The problem for the State is not the licensing laws themselves: Plaintiffs do not seek California's licensing scheme stricken in its entirety. Instead, the State must provide a historical analogue for licensing laws that did not allow nonresidents to apply. For that category of restriction, the State provides a series of state laws from the early 1900s that appear to impose residency requirements on licenses. Ignoring that these laws do not date to the Founding or Ratification Era, many laws from the same period explicitly allowed nonresidents to apply.

Earlier laws identified by the State also appear to support the Plaintiffs' position. For example, Connecticut in 1642 barred the sale of guns to those outside its jurisdiction unless the person possessed a license from a court or magistrate, without an explicit pre- application ban for nonresidents. The historical record also contains laws that provided "traveler exceptions" to carry laws. Sacramento law in 1876, cited by the State, specifically excepted "travelers" from a firearms licensing requirement that applied to residents….

[The state points to] Founding Era laws (from New Jersey and North Carolina) that barred nonresidents from hunting within their borders. Unlike the California law at issue in this case, the identified laws restricted only the activity of hunting, not bearing arms in general.

The State argues that the Court may extract a general principle that relevant regulations limited licenses to "acceptable" persons. But weighed against the guidance that a historical regulation must be "comparably justified," California cannot meet its burden with its proffered analogues. The State cannot point to a single law from the Founding or framing tradition that wholesale blocked nonresidents from participating in a general firearms licensing scheme….

Opening the application process to nonresidents does not limit California's ability to regulate who receives a CCW license based on other measured parameters. Nonresidents are simply afforded the same chance guaranteed to residents to exercise their Second Amendment rights. In reaching this conclusion, the Court agrees with its sister court in the Central District that the challenged statutory framework's exclusion of nonresidents violates the Second Amendment….

Nothing in this order should be construed to mandate that California provide the exact same requirements for a CCW license for residents and nonresidents—the historical record may well contravene such a proposition. [Spitzer Decl. ¶ 69 (identifying an 1899 Wyoming measure that imposed a fee forty times higher on nonresidents for a gun license).] Overburdening nonresidents in the application process may violate Plaintiffs' Second Amendment rights, but parity is not necessarily required….

Plaintiffs also seek a declaratory judgment as to whether California's enforcement of a nonresident ban violates the Privileges and Immunities Clause. U.S. Const., Art. IV, § 2, cl. 1. There is continuing debate on the scope of the Privileges and Immunities Clause. See generally William Baude, et al., General Law and the Fourteenth Amendment, 76 Stan.L. Rev. 1185, 1205–06 (2024).  Some courts have concluded that the Privileges and Immunities Clause has been cabined by precedent to economic rights. See, e.g., Culp v. Raoul (7th Cir. 2019).

Declaratory relief based on the Privileges and Immunities Clause would neither afford Plaintiffs additional remedies nor serve to clarify the contours of this constitutional provision. As such, the Court declines to rule on the requested relief.

Bradley Benbrook and Stephen Duvernay (Benbrook Law Group, PC) represent plaintiffs. One of the plaintiffs is the Firearms Policy Coalition, which also supported the litigation. I have consulted in the past for the FPC, but I wasn't involved in this case.

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[Eugene Volokh] Are Plaintiffs More Eligible to Be Pseudonymous in Lawsuits Against the Government? Less Eligible?

[Today's D.C. Circuit decision muddies the matter still further.]

Many courts list "whether the suit … challeng[es] the actions of the government or that of private parties" as one factor in deciding whether to allow pseudonymity. But which way does that factor cut?

[1.] Some courts conclude that pseudonymity is less available in suits against the government than in suits against private parties, see, e.g., Doe v. Megless (3d Cir. 2011):

Does the subject of the litigation heighten the public's interest? Here, interest "is heightened because Defendants are public officials and government bodies." This factor supports disclosure of Doe's identity.

Likewise, see M.M. v. Zavaras (10th Cir. 1998):

Plaintiff's claim to relief clearly involves the use of public funds, and the public certainly has a valid interest in knowing how state revenues are spent.

See also Femedeer v. Haun (10th Cir. 2000) ("the public has an important interest in access to legal proceedings, particularly those attacking … properly enacted legislation"). Or see Doe v. Pub. Citizen (4th Cir. 2014):

[T]he public interest in the underlying litigation is especially compelling given that Company Doe sued a federal agency.

[2.] Others, though, conclude that pseudonymity is less available in suits against private parties than in suits against the government, see, e.g., S. Methodist Univ. Ass'n of Women L. Students v. Wynne & Jaffe (5th Cir. 1979):

Furthermore, all of the plaintiffs previously allowed in other cases to proceed anonymously were challenging the constitutional, statutory or regulatory validity of government activity. While such suits involve no injury to the Government's "reputation," the mere filing of a civil action against other private parties may cause damage to their good names and reputation and may also result in economic harm.

Therefore, according to courts take this view (see, e.g., J.W. v. Dist. of Columbia (D.D.C. 2016), which is heavily cited by D.C. federal courts),

[A]nonymous litigation is more acceptable when the defendant is a governmental body because government defendants "do not share the concerns about 'reputation' that private individuals have when they are publicly charged with wrongdoing."

[3.] Now let's break down the lawsuits against the government into (a) facial challenges that seek primarily to strike down statutes or regulations (often on constitutional grounds) and (b) individualized challenges that focus on the circumstances of the particular plaintiff.

Some courts conclude that pseudonymity is more available in the individualized challenge cases than in the facial challenge cases, presumably because individualized challenges are less important to the public, e.g., Doe v. Blinken (D.D.C. 2025):

When a plaintiff requests individualized relief against a government defendant—as here, where Doe challenges a yearlong delay in adjudicating his [Special Immigrant Visa] application—the fourth factor favors pseudonymity.

[4.] But other courts conclude that pseudonymity is more available in the facial challenge cases than in the individualized challenge cases, because facial challenges don't turn as much on the identity and credibility of the particular plaintiff (e.g., Megless; Sealed Plaintiff v. Sealed Defendant (2d Cir. 2008))

The factors in favor of anonymity [have] included … whether, because of the purely legal nature of the issues presented or otherwise, there is an atypically weak public interest in knowing the litigant's identities.

Thus (see Doe v. Cristini (W.D. Pa. 2025)),

"Anonymity is favored when the case involves issues purely of law[,]" while "[a] highly fact-dependent case weighs against anonymity." … Plaintiff's claims are not purely legal claims. They turn on fact-intensive inquiries requiring the development of a significant factual record …. Consequently, this factor weighs against granting Plaintiff's motion to proceed anonymously.

[5.] Now, let's consider today's D.C. Circuit decision in Doe v. Hall:

[The inquiry into "whether the action is against a governmental or private party"] looks to the identity of the opposing party as a tool for measuring the public interest in transparent litigation. Reputational harm [as in SMU Ass'n] can be one relevant public interest because a lack of reputational reciprocity can create unfairness in litigation strategies, risks, and tactics.

But that is not the only relevant concern. The nature of the claim raised against a party can also affect the extent of the public interest in transparent litigation. For example, constitutional claims can only be pressed against a government or a close governmental affiliate, and yet they have much more far-reaching consequences for the public interest than most private litigation. On the other hand, class actions or private antitrust actions seeking broad or structural relief against private businesses could trigger a more significant interest in transparency than one person's claim for an individual monetary payment from the government.

In other words, [this inquiry] is not a binary factor that always tips one way or the other based on the identity of the nonmoving party.  Rather, depending on the nature of the claims raised and relief sought, the identity of a party can materially change the public interest in open and evenhandedly transparent litigation.

This seems to suggest that the question actually has to do with the public importance of the claim rather than with the identity of the defendant. But at the same time courts often conclude that the individualized nature of what the D.C. Circuit called "one person's claim for an individual monetary payment from the government" may cut against pseudonymity. See, e.g., Doe v. Cristini (quoted above in item 4).

[6.] Or perhaps all this means that this factor actually doesn't matter much, see Doe v. Frank (11th Cir. 1992)

Doe argues that his case for anonymity is supported by the fact that he is suing the government. While this factor may be significant, it must be viewed in the context that it was first articulated. "Challenging the … validity of government activity" was initially mentioned as a factor in SMU Ass'n. The case involved, inter alia, four female lawyers who wanted to proceed anonymously against two Dallas law firms in a sex discrimination suit….

[B]ecause the plaintiffs were suing private individuals rather than a government agency, the court found more reason not to grant the plaintiffs' request for anonymity. Wynne & Jaffe does not stand, however, for the proposition that there is more reason to grant a plaintiff's request for anonymity if the plaintiff is suing the government. Consequently, the fact that Doe is suing the Postal Service does not weigh in favor of granting Doe's request for anonymity.

Or maybe not. Very little is clear when it comes to the law of pseudonymous litigation.

The post Are Plaintiffs More Eligible to Be Pseudonymous in Lawsuits Against the Government? Less Eligible? appeared first on Reason.com.

[Eugene Volokh] No Pseudonymity for Would-Be FDIC Employee Challenging Ban on Employment of Felons

From Doe v. Hill, decided today by D.C. Circuit Judge Patricia Millett, joined by Judges Neomi Rao and Judith Rogers:

Dr. Doe challenges the constitutionality of the Federal Deposit Insurance Corporation's [statutory] ban on hiring those who have been convicted of a felony. {Dr. Doe was convicted of two Ohio felonies when he was a young man in the early 1990s. Since then, Dr. Doe has lived a law-abiding life, obtained a PhD, and become a federal public servant with a security clearance. In 2009, he applied for and received a pardon from the Ohio governor, and his felony convictions were sealed by an Ohio court.} …

Because federal court proceedings are presumptively open and transparent, proceeding under a pseudonym is rarely granted. {Civil complaints filed in federal court must "name all the parties[,]" Fed. R. Civ. P. 10(a), and the suit must be prosecuted in "the name of the real party in interest," id. 17(a)(1).} Although Dr. Doe has a legitimate privacy interest in his sealed felony convictions, that interest is insufficient in this case to overcome the strong presumption against pseudonymous litigation….

This presumption is grounded in "the 'customary and constitutionally-embedded presumption of openness in judicial proceedings.'" We generally require "parties to a lawsuit [to] openly identify themselves … to protect[] the public's legitimate interest in knowing all of the facts involved, including the identities of the parties."

Requiring parties to litigate under their real names serves important values. Accurate party names allow citizens to evaluate the nature of the claims raised and the interests at stake, to assess "the real-world aftermath of a suit," and to determine for themselves whether "justice was done." Knowing the identity of parties also makes it easier for citizens to investigate abuses of the judicial process like judicial conflicts of interest and ex parte contacts, and it promotes the appearance of fairness. "Secrecy breeds suspicion[,]" and so "[s]ome may believe that a party's name was masked as a means of suppressing inconvenient facts and that the court was either asleep at the wheel or complicit in the cover up."

{A byproduct of government transparency is that those who seek to alter public law by using the federal courts must, in all but truly exceptional cases, reveal their identity so that the public can understand the issues before the court, the consequences of the court's ruling, and the manner in which the court reached its decision. After all, secrecy in court proceedings was one of the evils of concern at the Founding. See Federal Farmer, Letter XV (Jan. 18, 1788), reprinted in The Complete Anti-Federalist (decrying "secret and arbitrary proceedings" and extolling public trials as "the means by which the people are let into the knowledge of public affairs—are enabled to stand as the guardians of each others' rights, and to restrain, by regular and legal measures, those who otherwise might infringe upon them")….

The court acknowledged that "the rare dispensation of pseudonymous status" may sometimes be provided, for instance in cases involving "matter[s] of [a] sensitive and highly personal nature," but concluded that this particular exception is limited to "intimate issues such as sexual activities, reproductive rights, bodily autonomy, medical concerns, or the identity of abused minors[]":

Felony convictions are not in that [intimate issues] category as they have long been a legitimate matter of inquiry for public employment and other positions of trust….

[T]he Ohio court's sealing of the record of Dr. Doe's convictions does not materially alter the privacy balance in this case. To be sure, sealed cases "raise[] greater privacy concerns than the disclosure of information regarding public convictions[.]" But not so here. Dr. Doe's sealing was based on an executive pardon. Applications for an executive pardon in Ohio are submitted to the Ohio parole board which must conduct and publish "a thorough investigation into the propriety of granting a pardon[.]" The Ohio Constitution also mandates that all granted pardons be publicly reported to the Ohio legislature.

This means that, in addition to the public court proceeding underlying the convictions, the very process that enabled Dr. Doe to seal his records resulted in at least two more public processes and records publicly disclosing his felony convictions—one from the parole board and one from the Governor. To be sure, these records may later have been sealed along with the underlying court records. But while Dr. Doe was seeking a court order sealing all records associated with his conviction, these new records were publicly available. At that time, information about Dr. Doe's convictions could have been accessed, preserved, or publicized by any member of the public. That, in fact, may have occurred in this case because the FDIC discovered Dr. Doe's criminal convictions using a "commercial investigative service."

{In reaching our conclusion, we need not (and so do not) decide that information in sealed criminal records is always insufficient for factor one to favor pseudonymity. For example, substantially different considerations could be at play if a record were sealed because of exoneration. The Supreme Court has indicated that there is a very strong privacy interest in criminal records where the individual's association with the record is due to "mere happenstance."}

The court went on to conclude that the exceptions for personal privacy under the Freedom of Information Act don't change the analysis:

FOIA vindicates the public interest in understanding only the operations and activities of the Executive Branch, and does so within the caveated and qualified disclosure requirements of the statute…. As a result of FOIA's numerous exceptions to disclosure and privacy protections, the withholding of information from public view, in whole or in part, is common under FOIA.

By contrast, exceptions to openness in judicial proceedings are "rare." Of course, FOIA and its protections against the disclosure of private citizens' information do not apply to the Judicial Branch at all. Instead, judicial proceedings traditionally start with a presumption of openness, transparency, and full disclosure of party filings and, unlike FOIA, there is no long list of exceptions. The public's historic and presumptive right to monitor whether federal courts are doing justice between parties, and how parties are using the courts to vindicate their own interests, have led courts to enforce across-the-board rules of disclosure concerning the parties' filings, including the parties' identities and facts about them that are salient to the resolution of their case.  Only limited exceptions are allowed.

Finally, the court also discussed the significance of this being a lawsuit against the government, and challenging the constitutionality of a federal statute. I have more to say about that in a separate post, since it's an important question that arises in many different contexts.

The post No Pseudonymity for Would-Be FDIC Employee Challenging Ban on Employment of Felons appeared first on Reason.com.

[Eugene Volokh] "Blanket Sealing Is Easy on the Filing Lawyer but Quite Hard on the Public's Access Rights …"

"and the First Amendment. Particularly on a key substantive motion, full sealing will rarely square with the governing standards." Wise words from Judge Robert E. Wier (E.D. Ky.) in U.S. v. Higgins, decided Jan. 2, 2024 but just posted on Westlaw.

The post "Blanket Sealing Is Easy on the Filing Lawyer but Quite Hard on the Public's Access Rights …" appeared first on Reason.com.

[Eugene Volokh] California Law Stops City from Flying World Flag Above U.S. and California Flag

[And the U.S. Constitution doesn't preclude this result.]

From City of Arcata v. Citizens in Support of Measure M, decided Friday by the California Court of Appeal (Justice Charles Smiley, joined by Justices Jim Humes and Monique Langhorne Wilson); seems quite right to me:

In November 2022, the City's voters passed Measure M, an initiative to enact an ordinance requiring the City to "fly the Earth Flag at the top of all city-owned flagpoles, above the flag of the United States of America and the California flag, and any other flags that the city may choose to display." Measure M passed with 3,051 votes in favor of the measure and 2,781 votes against it. The City subsequently adopted Measure M as an ordinance (the Ordinance), as required by Elections Code section 9217….

Under article XI, section 7 of the California Constitution, "[a] county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws." (Italics added.) Put another way, "[o]ur state's Constitution grants state laws enacted by our Legislature supremacy over nearly all ordinances adopted by the more local government entities such as counties and cities." …

[California Government Code] section 436 … provides, "Where the National and State Flags are used, they shall be of the same size. If only one flagpole is used, the National Flag shall be above the State Flag and the State Flag shall be hung in such manner as not to interfere with any part of the National Flag. At all times the National Flag shall be placed in the position of first honor." This mandate is absolute, barring a small carveout the Legislature provided in section 434.5, which states that entities such as cities and counties can impose "reasonable restrictions" on the time, placement, and manner of display of the National Flag, but only when "necessary for the preservation of the public's health, safety, or order." …

Against this scheme, the Ordinance seeks to regulate placement of the National Flag in a manner that directly contradicts state law on this same issue…. Applied here, we observe that section 436's reference to the National Flag occupying a "position of first honor" is preceded by the directive that where both the National Flag and State Flag are flown on one flagpole, "the National Flag shall be above the State Flag and the State Flag shall be hung in such manner as not to interfere with any part of the National Flag." We therefore conclude that, at the very least, to be in a "position of first honor" means that where more than one flag is flown on one flagpole, the National Flag must be placed above other flags and hung in such a way that other flags do not interfere with any part of it….

Citizens argue there has been an impingement on the voters' freedom of speech and right to express themselves through the manner in which the City flies its flags…. "The Free Speech Clause restricts government regulation of private speech; it does not regulate government speech." By requiring that the Earth Flag be flown at the top of all City-owned flagpoles, the Ordinance straightforwardly aims to control government speech.

And while the goal of the Ordinance may have been to cause the government to speak for and convey the values of the City's residents, private expression is not implicated because the flags affected by the Ordinance are on public property. A First Amendment analysis does not apply….

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[Josh Blackman] Comment to the Texas Supreme Court On Whether To "Reduce Or End" Reliance on the American Bar Association

["What is good for Texas is not necessarily good for the University of Texas, and vice versa."]

In April, the Supreme Court of Texas invited comments on whether Texas should "reduce or end" reliance on the American Bar Association's Section on Legal Education. A few weeks ago, the Civitas Institute organized a symposium on this important topic. I have now submitted a comment to the Court. In short, whether the Court keeps or abandons the ABA, there should be a recognition that the interests of law deans are not always consonant with the interests of the general public.

Here is my comment:

I submit this comment in my individual capacity, and not on behalf of my employer, the South Texas College of Law Houston. Admittedly, my views about the ABA are out of sync with those of most law professors and deans in Texas. I submit this minority report quite deliberately. The Supreme Court's order invited "comments on this topic from the Texas Board of Law Examiners, the Texas law school deans, the bar, and the public." With respect, I think this order lists the relevant constituencies backwards. The Supreme Court's authority to regulate the legal profession is premised on serving the public interest. And the interests of law school deans, in particular, are not always consonant with the public interest. 

A simple example illustrates this point. Were the Supreme Court to end its reliance on the American Bar Association, the most immediate practical effect would be on portability: Students who graduate from Texas law schools that are not ABA accredited may not be eligible to sit for bar exams in other states. To law school deans, this outcome would be an anathema. How can elite law schools thrive without recruiting top students who will not stay in Texas? Of course, Texas could still allow students who graduate from law schools in other states to sit for the Texas Bar exam. And nothing would prevent elite law schools from voluntarily undergoing ABA accreditation. The theoretical problem is limited to students who graduate from non-elite Texas law schools who seek to leave our state. 

I think the public would ask a reasonable question: Why should the state adopt rules to benefit people who have no interest in serving Texans? Herein lies the disconnect. Two decades ago, Justice Clarence Thomas lamented that the University of Michigan Law School was little more than "a waystation for the rest of the country's lawyers, rather than a training ground for those who will remain in Michigan." Thomas, as usual, was right. He questioned UM's "decision to be an elite institution [that] does little to advance the welfare of the people of Michigan or any cognizable interest of the State of Michigan." What is good for Texas is not necessarily good for the University of Texas, and vice versa.

In June, I helped to organize a symposium hosted by the Civitas Institute about Texas and the Future of Legal Education. This conversation advanced a range of criticisms about the ABA's role. I think each essay, which I've appended to this comment, is worth studying. But here, I urge the Court to consider the broader interest of the public, and not simply the concerns of entrenched regulated entities. There is no demonstrable connection between the ABA's onerous regulations and "promoting high-quality and cost-effective legal education." In the past decade, the Supreme Court of Texas erred by adopting the Uniform Bar Exam and joining the NextGen Bar Exam—decisions that were part of the conveyor belt towards nationwide portability. In that process, the Supreme Court has neglected the teaching of Texas law and flattened federalism. The time is now ripe for the Supreme Court to change course. If portability is so important, there are other ways to accomplish this end than through the ABA's byzantine regime. 

I do hope SCOTX changes course.

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[Eugene Volokh] Court Allows Breach of Contract Claim for Haverford's Allegedly Failing to Respond to Anti-Semitism Complaints—But Only for Nominal Damages

["So whatever hard to imagine rationalization Haverford might offer for obscuring the content of its actual bias policy—an artifice reminiscent of Dean Wormer's 'double secret probation'—I find the demarcation 'draft' to be of no legal import."]

In yesterday's Landau v. Corp. of Haverford College, Judge Gerard McHugh (E.D. Pa.) rejected plaintiffs' Title VI claims (see here for more), but allowed the breach of contract claim to go forward, albeit only for nominal damages:

Plaintiffs allege that although they filed complaints to Haverford about many of the instances [of alleged anti-Semitic behavior], they did not receive any response, violating the policies that Haverford represents as active on their website. The absence of demonstrable harm does not prohibit this claim, because Pennsylvania law permits contract claims for nominal damages. Plaintiffs allege that Haverford failed to evenhandedly enforce its "Anti-Discrimination, Harassment, and Bias Policy." To state a claim for breach of contract, a plaintiff must "set forth facts regarding (1) the existence of a contract, including its essential terms; (2) a breach of duty imposed by the contract; and (3) resultant damages." "Written guidelines, policies, and procedures" distributed to students over the course of enrollment may constitute the terms of such contracts.

[1.] Existence of a Valid Contract

Plaintiffs rely on a combination of two Haverford documents as the basis for their claim. They first allege that Haverford has breached its promise set forth in its Non-Discrimination Statement to provide an employment and educational environment free from all forms of unlawful discrimination on the basis of "religion, national origin, ancestry, citizenship … or any other characteristic protected by law." Plaintiffs then allege that this Non-Discrimination policy is enforceable through the College's Anti-Discrimination, Harassment, and Bias Policy ("Bias Policy"), which itself is a binding contract, and details a series of procedures that Haverford has failed to follow. Plaintiffs attach what they contend is an active and binding version of the Bias Policy that they downloaded from Haverford's website. Plaintiffs also plead that the policy is directly adjacent to the portal where students can, and did, submit "bias incidents."

Haverford disputes the validity of the contract, pointing to the fact that the attached PDF of the Bias Policy, the same Bias Policy that was linked on Haverford's website on the date of oral argument, is clearly labeled as a "draft." Haverford argues that because the Policy was designated as a draft, it was not in force during any of the incidents alleged. Notably, Haverford does not provide any alternative policy that was in place, further asserting that even if the Court finds that the Bias Policy was operative, Plaintiffs' allegations of breach are too vague to state a contract claim.

As a threshold matter, I take it as highly plausible that some bias policy existed at Haverford during the 2023-2024 academic year. Haverford offers no explanation as to why a non-operative Bias Policy would be hosted on Haverford's website, directly adjacent to a live portal to submit bias incidents. At a minimum, students would have reasonably believed that there was a policy under which complaints could be submitted. And surely whatever bias policy existed would allow recourse for instances of antisemitism, unless Haverford would have me infer that it had no concern for its Jewish students.

So whatever hard to imagine rationalization Haverford might offer for obscuring the content of its actual bias policy—an artifice reminiscent of Dean Wormer's "double secret probation"—I find the demarcation "draft" to be of no legal import. Moreover, I am obligated at this stage to accept Plaintiffs' allegation that a bias policy was operative (whether the posted draft policy or a different unspecified policy). Dismissal of the contract claim pre-discovery on this ground would be premature.

[2.] Terms of the Contract and its Breach

Turning to the terms of the contract and its alleged breach, Plaintiffs cannot state a contract claim based on the Non-Discrimination Statement alone, for it is purely aspirational language that lacks the specificity to constitute enforceable promises. But Plaintiffs plausibly allege that the Bias Policy contains clear contractual promises that Haverford has breached.

Under the Bias Policy, the College "is required to conduct a thorough inquiry and address all reports of bias incidents of which it becomes aware." Once a complaint is filed, a Bias Reporting Committee ("BRC"), including Vice President Young and Dean McKnight, performs an "initial screening process and determines whether the case will proceed." If the BRC determines that the incident "does not constitute an act of violation of the policy," the BRC "will communicate with the reporting individuals to inform them of the decision." If the BRC determines that "there is sufficient information in the report for potential violation of the policy," the matter is escalated to a Bias Incident Response Team ("BIRT"), who then determines whether there is a sufficient basis to launch a formal investigation. If a formal investigation is found warranted, the BIRT will inform the reporting individual with a written notice.

Plaintiffs contend that they filed reports through Haverford's bias incident portal about many of the instances discussed herein. Plaintiffs also contend that they did not receive any response or observe any remediation regarding any of their reported incidents. This would imply that no incidents were considered at the initial BRC stage, for even if a bias complaint is ultimately terminated at this stage, Haverford is still obligated under the Bias Policy to "communicate with the reporting individuals to inform them of their decision." At the very least, Plaintiffs were due notice that their investigations were terminated upon initial BRC review. But Plaintiffs aver that the complainants here never received such communication.

Discovery will shed light on how many complaints were in fact filed, and what happened to complaints received. If the College never communicated further with each individual complainant here, Plaintiffs cannot know whether their complaints were appropriately investigated, and allegations that complainants did not receive a response would support an inference that their complaints were not investigated. Failure to conduct an initial review and notify Plaintiffs of the outcome of that review would itself constitute a breach of the plain terms of the Bias Policy. Plaintiffs therefore plausibly allege that Haverford failed to honor its Bias Policy, and therein breached their contract.

[3.] Resultant Harm

Although Plaintiffs plausibly plead the existence of a contract and breach, none of Plaintiffs' allegations demonstrate resultant harm. To the extent that Plaintiffs seek compensatory damages for a diminution in the value of their education, there are insufficient facts pled to support such a theory. But under Pennsylvania law, a plaintiff may recover nominal damages where they have shown a breach of contract, even if they are unable to show damages flowing from the breach. Plaintiffs' breach of contract claim seeking nominal damages thus survives.

Jerome Marcus and Lori Lowenthal Marcus (The Deborah Project) represent plaintiffs.

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[Eugene Volokh] Court Rejects (Largely on First Amendment Grounds) Title VI Lawsuit Over Alleged Anti-Semitism at Haverford College

An excerpt from the 12K+-word opinion by Judge Gerard McHugh (E.D. Pa.) yesterday in Landau v. Corp. of Haverford College (for more, read the whole opinion, and I've also posted separately about the court's allowing the breach of contract claim to go forward, though only for nominal damages):

As recognized in my first opinion in this action [see here -EV], dismissing Plaintiffs' First Amended Complaint, antisemitism is a serious problem. Where antisemitism results in a deprivation of educational opportunities, federal law provides a remedy. And where the record supports it, some federal courts have permitted parties to proceed with such claims.

Here, without minimizing to any degree the extent to which Jewish students in the tumult of the current global and political climate might feel profound discomfort, Plaintiffs' Second Amended Complaint still struggles to meet the threshold of what is required to state a Title VI claim under federal law. While Plaintiffs paint a picture of a stressful campus climate for Jewish students, many of the incidents pled fall within the protection of the First Amendment.

In other instances where College officials appear vulnerable to criticism, their response to the situation cannot be deemed deliberate indifference…. I will therefore grant Defendant's Motion to Dismiss Plaintiffs' Title VI claim ….

[1.] Public, Political Speech is Protected by the First Amendment.

Higher education institutions are prototypical marketplaces of ideas. College campuses have served as historical sites of foment and the breeding grounds for progress. In periods of social unrest, emblematic of the American story, "intellectual advancement has traditionally progressed through discord and dissent, as a diversity of views ensures that ideas survive because they are correct, not because they are popular." Rodriguez v. Maricopa Cnty. Cmty. Coll. Dist. (9th Cir. 2010).

A court enforcing a federal statute must do so in a way that comports with the Constitution. Although both important, Title VI and the First Amendment are naturally in tension. "A disparaging comment directed at an individual's sex, race, or some other personal characteristic has the potential to create a 'hostile environment'—and thus comes within the ambit of anti- discrimination laws—precisely because of its sensitive subject matter and because of the odious viewpoint it expresses." Saxe v. State Coll. Area Sch. Dist. (3d Cir. 2001). But "speech on matters of 'public concern'—expression that 'can be fairly considered as relating to any matter of political, social, or other concern to the community'—is entitled to 'special protection' under the First Amendment' and generally 'cannot be restricted simply because it is upsetting or arousing contempt.'" Gartenberg v. Cooper Union (S.D.N.Y. 2025). However noble the objective of nondiscrimination, institutions cannot be threatened with civil liability for declining to censor First Amendment protected speech.

Not all speech is protected by the First Amendment. But there are no allegations here that constitute true threats, incitement, fighting words, obscenity, or any other category of unprotected speech. "Speech 'on matters of public concern, directed to the college community' will generally fail to 'constitute unlawful harassment.'" Gartenberg (citing Rodriguez). A reasonable person should understand that such public speech, "directed to the community at large through generally accepted methods of communication, is very different than targeted, personal harassment, aimed at a particular person." Only one allegation here involved speech targeted at a particular Plaintiff.

It would be a dangerous overreach for federal courts to referee the controversies sparked by campus speech. See Keyishian v. Bd. of Regents (1967) (the First Amendment "does not tolerate laws that cast a pall of orthodoxy over the classroom."); Eugene Volokh, Freedom of Speech and Workplace Harassment, 39 U.C.L.A. L. Rev. 1791, 1817 (1992) ("The government cannot escape First Amendment scrutiny for its speech restriction by forcing someone else, on pain of liability, to implement that restriction."). That responsibility instead belongs to college administrators, and perhaps more importantly, to students—who harness the immense power to talk with one another and change minds, even when doing so demands courage. But where Haverford declined to take action to suppress or regulate pure speech on matters of obvious public concern directed at the campus community, civil liability cannot be imposed, for a robust First Amendment remains the bedrock of a democratic society.

Many of Plaintiffs' allegations fall into the category of pure, protected speech. Although Plaintiffs may have found much of this speech reprehensible, there is no legal cause of action for upset feelings. The following incidents fall within this category.

[i.] The "Weaponization of Covid" Lecture

In March 2024, Haverford students advertised a lecture with the title "Mass Death on all Fronts: Israel's weaponization of Covid against Palestinians." Plaintiffs allege that there were "many complaints" from students, alumni, parents, and Jewish community members, who thought this lecture was a dog whistle to the age-old blood libel. {The blood libel is an antisemitic trope dating back to the second century BCE that accuses Jewish people of spreading disease and using the blood of Christian children to prepare their Passover matzah.} Haverford did not cancel the event but encouraged the event organizers to change its name. In response, the event organizers changed its title to "COVID in the time of Genocide: Teach-in on how Israel uses COVID as a tool for settler colonialism in Palestine," which Plaintiffs contend "was even more overtly antisemitic than the old one."

Even if offensive and received by some as antisemitic, the lecture was pure speech criticizing Israel directed at the general public—precisely the type of speech protected by the First Amendment, and therefore legally inactionable. See Gartenberg (concluding that a controversial talk hosted on campus about the "Uses and Misuses of Holocaust Memory" constituted "pure speech on matters of public concern."). No one was required to attend the lecture, and those who found it offensive could have simply looked away.

[ii.] Flags at the Spring Plenary

The student Plenary plays a central role in social and academic life at Haverford College. At this event, held twice per academic year, the student body gathers as a community to discuss and vote to ratify various policies. Plaintiffs allege that at the Spring 2024 Plenary, one student handed out Palestinian flags to all entering students. Peaceful distribution of political materials is a standard method of political expression directed at the public, whether it be leaflets, stickers, or in this case, flags.

There are no allegations that this student only handed flags to students she thought might be Jewish. Nor is it alleged that any student was forced to take a flag, because peer pressure, however strong, is not the same thing as coercion. Whatever discomfort any Plaintiff (understandably) felt, what the Second Amended Complaint describes is another instance of purely political expression protected by the First Amendment. See Gartenberg (classifying student distribution of flyers inviting members of the college community "to celebrate the anniversary of the first intifada" as "pure speech on matters of public concern.").

[iii.] Student Organization Supports the Liberation of Palestine "By All Means Necessary"

Plaintiffs also take issue with the name and mission of a student organization on campus. What was originally "Bi-Co Students for Peace" changed its name to "Bi-Co Students for the Liberation of Palestine." {"Bi-Co" refers to Bryn Mawr and Haverford Colleges.} At the same time, the organization announced that it supported "the liberation of Palestine through the complete dismantling of the apartheid settler colonial state of Israel, by all means necessary." From Plaintiffs' perspective, the phrase "by all means necessary" is an implicit threat of violence and an endorsement of Hamas' October 7th terror tactics. Although Plaintiffs may dislike the organization's new expressed mission, the organization's messaging directed at the entire college campus cannot, without more, be construed as a genuine threat targeting Jewish people….

[iv.] Social Media Posts on Non-Haverford Accounts

Plaintiffs raise several concerns about posts made on non-Haverford, private social media accounts. First, Plaintiffs allege that an anonymous member of Jews at Haverford was disappointed by his peers' personal Instagram stories in the wake of October 7th. This Plaintiff conveyed his reaction to these external posts in the Haverford Political Science messaging system. In his reflection, the Plaintiff included a screenshot of a graphic that, he alleges, many students posted immediately following the attacks, promoting Palestinian resistance and depicting the silhouette of a paraglider, reminiscent of the October 7th attackers..

Plaintiffs also discuss assorted social media posts made by Haverford Professors Gina Velasco, Guangtian Ha, and Tarik Aougab on their personal social media accounts. These posts all disparage those who continue to support Israel, but vary in tone, taste, and conviction. I begin with the observation the social media posts are leveled at the state of Israel, not people of Jewish descent. Consistent with my earlier opinion here and in Tannous v. Cabrini (E.D. Pa. 2023), I reject the proposition that criticism of Israel is invariably antisemitic. And although some of the posts could easily be conceived as offensive, none of the posts can be construed as anything other than protected political speech. Beyond that, Plaintiffs do not attempt to explain how Haverford could regulate students' and faculty's private social media content, offering no basis on which it could assert such invasive authority….

Certainly some speech can be proscribed, but such speech is not present in this case. The Third Circuit has cautioned that "when laws against harassment attempt to regulate oral or written expression … however detestable the views may be, we cannot turn a blind eye to the First Amendment implications." Saxe. And as Judge Cronan cogently observed in Gartenberg, "[r]egardless of whether this expression is better characterized as righteous protest in support of a noble cause, as the vulgar celebration of terrorism and antisemitism, or as something in-between, it is not a proper basis on which to impose civil liability." The allegations above are not legally actionable under Title VI.

[2.] Deliberate Indifference is an Exceedingly High Standard Not Met by the Allegations Here.

To establish liability for a hostile educational environment, the Third Circuit and many federal courts alike require plaintiffs to show that administrators were deliberately indifferent to alleged harassment…. The First Amendment again counsels in favor of limited judicial intervention when it comes to expressive activity on college campuses, demanding "'substantial deference to a college's decision not to take action against' students who engage in expressive activity on matters of public concern and requir[ing] courts to 'defer to colleges' decisions to err on the side of academic freedom." Gartenberg (citing Rodriguez). Institutions are not expected to be perfect or clairvoyant. Along these lines, government coercion of speech to adhere to a particular message tampers with First Amendment protections. Courts therefore may not compel administrators to make any specific statement on any particular topic.

The operative question is whether Haverford administrators acted, or failed to act, in a way that was "clearly unreasonable in light of known circumstances," and whether these known circumstances necessarily implicate First Amendment protections. I conclude that for a vast majority of Plaintiffs' allegations, Haverford acted with sufficient reason and thought to dispel a finding of threshold deliberate indifference. These allegations are as follows [some details omitted for space reasons, but are available here -EV].

[i.] Haverford's Post-October 7th Statements

Plaintiffs assert that Haverford's failure to issue an appropriate statement in the immediate aftermath of the October 7th attacks caused "hurt and dismay." They further contend that when Haverford did issue a responsive statement just two days later, it did not denounce the Hamas attacks as terrorism. But the statement identified the attack as one of "several tragedies across the globe," and however inadequate that may be in the eyes of Plaintiffs, matters of nuance and emphasis in the wording of a statement cannot serve to show deliberate indifference.

Plaintiffs also discuss several comments made by Haverford administrators that they found to be in poor taste. For example, Vice President Nikki Young purportedly spoke at a vigil for the Haverford student tragically shot while in Vermont for Thanksgiving, where she linked the shooting to the "genocide" Israel was committing against Palestinians. Plaintiffs describe this message as "divisive, misleading, and antisemitic," and express that they cannot trust Vice President Young "to take seriously their concerns about antisemitic harassment and discrimination."

At a meeting with Jewish community leaders to discuss the campus climate, Vice President Young also reportedly said that "Jewish students needed to condemn 'genocide' rather than report[] antisemitism." At a similar meeting with Jewish community leaders, Plaintiffs also aver that Dean McKnight posited that attacks against Jews who are committed to Israel are categorically different from attacks against other minorities. Plaintiffs finally contend that at a Chabad-hosted event, President Raymond stated that on October 7th, she saw "peaceful people" breaking free from their chains.

As a preliminary matter, none of these statements embrace Hamas. Plaintiffs can reasonably characterize them as focusing on the suffering of Palestinians without showing similar concern for the losses inflicted by Hamas or for the surge of antisemitic incidents making headlines. As a matter of campus leadership, there may be ample basis for criticism if such statements were made, but the statements remain pure speech about matters of public concern. A court cannot compel administrators' speech, nor insist that administrators should have conveyed a different message. The choice of message in the face of public controversy remains the province of college administrators, and unless clearly lacking in reason or overtly hostile cannot be deemed deliberate indifference.

[ii.] The Nova Movie Screening

In Spring 2024, at the behest of Jewish leadership and faculty members, Haverford played a movie for the campus community about the Nova Festival that was the site of the October 7th Hamas attacks. In reaction to this event, Haverford protestors demanded "an apology from President Raymond for her having the temerity to invite 'Zionists' to campus." But President Raymond never issued an apology. Remarkably, rather than credit Raymond for rejecting the protestors' demand, Plaintiffs instead argue that President Raymond showed deliberate indifference by not taking the opportunity to chastise the protestors.

Title VI is not a portal for students to litigate their general dissatisfaction with the conduct of administrators or to advance their view of how contentious issues should be handled on campus. It sets an exacting standard for what constitutes a sufficiently hostile environment to justify imposition of civil liability. There is no basis whatsoever, either under Title VI, nor within the confines of the First Amendment, for a court to hold a college administrator liable for failing to convey a specific message that students would have liked to see….

[vii.] The Spring 2024 Encampment and "Liberated Zone"

In Spring 2024, students set up their second encampment on the main college green, barring access to Founders Hall. The encampment consisted of tents, banners, and the declaration of a "Liberated Zone," where only those committed to the protests' objectives were "permitted" to enter. Plaintiffs do not indicate how those who supported the protest and those who did not were differentiated, making it unclear why students could not pass through, even if uncomfortably. Cf. Frankel v. Regents of Univ. of Cal. (C.D. Cal. 2024) (only students who voiced support for the protest were issued a wristband and permitted to cross the encampment); Felber v. Yudof (N.D. Cal. 2011) (event organizers set up "check points" where students dressed as soldiers carrying realistic-looking simulated assault weapons demanded passing students to state whether or not they were Jewish).

As with their sit-in allegations, Plaintiffs aver that "any person who walked by the Encampment and did not express support for this goal was shouted at and insulted while they were concluding their academic semester and preparing for final exams." Plaintiffs do not indicate that Jewish students were singled out or targeted for appearing to be Jewish. Beyond making studying more difficult in some amorphous way, Plaintiffs do not aver that these protests had any material impact on their education. Cf. Frankel ("some students missed finals because they were blocked from entering classrooms, and others were evacuated in the middle of finals.") (cleaned up).

The encampment lasted three days, a relatively short period compared to similar encampment activity on other college campuses. There are no allegations that the encampment escalated from chants and posters to physical aggression, nor are there allegations that Plaintiffs made any reports of serious resultant harm, beyond frustration with the protest itself and dissatisfaction with the College's response.

College administrators need not be perfect. They need not even be good. They just need to behave in a way that is not clearly unreasonable in light of the circumstances known at the time. Here, amidst a period of extreme unrest on college campuses across the country, it was not clearly unreasonable for administrators to allow protestors to freely express themselves for three days. It is also a defensible conclusion that intervention could have triggered an even larger and more disruptive backlash. Plaintiffs' dissatisfaction does not state a claim for violation of their civil rights….

Taking the facts pleaded as true, Haverford failed to amplify all student voices evenly, took too soft an approach to campus regulation, and failed to communicate as boldly and effectively as Plaintiffs would have liked. The question is not, however, whether Haverford could have handled each situation better. Under Title VI, the question is whether Haverford was so indifferent to known acts of harassment that it caused students to undergo harassment or made them more vulnerable to it, and thereby undermined the students' education. And even taking all these allegations as a whole, Plaintiffs' pleading does not plausibly support a finding of deliberate indifference, especially where countervailing First Amendment concerns are considered in evaluating the often-fragile balance college administrators must strike….

Antisemitism is ugly and persistently stubborn. But while judges may reflect on the broader world, they can only rule on the facts before them. For the reasons set forth above, Defendant's Motion to Dismiss will be granted [with prejudice] as to Plaintiffs' Title VI claim ….

Joshua W. B. Richards and Levi R. Schy (Saul Ewing LLP) represent Haverford.

The post Court Rejects (Largely on First Amendment Grounds) Title VI Lawsuit Over Alleged Anti-Semitism at Haverford College appeared first on Reason.com.

[Jonathan H. Adler] Returning to Virginia

[After twenty-four years, my time in Ohio comes to an end.]

Twenty-four years ago, I left my home in Virginia and moved to Ohio to join the faculty at the Case Western Reserve University School of Law. Several years later, I was tenured, became the inaugural holder of the Johan Verheij Memorial Professorship, and then the founding Director of the Coleman P. Burke Center for Environmental Law.

I have now moved back to Virginia as I am joining the faculty at the William & Mary Law School as the Tazewell Taylor Professor of Law. I am grateful to those who supported and enriched my academic career at CWRU, and to those at W&M who have given me this next opportunity. I am excited to begin this next chapter.

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[Ilya Somin] Federalist Society Webinar on the 20th Anniversary of Kelo v. City of New London

[The panelists included Peter Byrne (Georgetown), Wesley Horton (counsel for New London in the case), Timothy Sandefur (Goldwater Institute), and myself.]

Susette Kelo's famous "little pink house," which became a nationally known symbol of the case that bears her name. (Institute for Justice.)

 

Last week, on June 23, was the 20th anniversary of Kelo v. City of New London, perhaps the most controversial property rights decisions in the history of the Supreme Court. Although the Fifth Amendment only permits the taking of private property for "public use," the Court ruled that the transfer of condemned land to private parties for "economic development" is permitted by the Constitution.

The Federalist Society organized a webinar on the occasion. The participants were Peter Byrne (Georgetown), Wesley Horton (counsel for New London in the case), Timothy Sandefur (Goldwater Institute), and myself. My George Mason University colleague Prof. Eric Claeys - a leading property law scholar - moderated. Peter Byrne and Wesley Horton are generally sympathetic to the result the Court reached, while Tim Sandefur and I are opposed to it. Below is the video of the event:

Last week, I also an article at the Brennan Center State Court Report website asssessing the massive state response to Kelo, which saw 45 states enact eminent domain reform laws, and several state supreme courts repudiate Kelo as a guide to the interpretation of their state constitutions' public use clauses.

I also have a new article entitled "Public Use, Exclusionary Zoning, and Democracy,"  available for free download on SSRN. It is part of a forthcoming Yale Journal on Regulation symposium on the 20th anniversary of the case.

The article builds in part on my book about Kelo and its aftermath,  The Grasping Hand, and also on my recent article "The Constitutional Case Against Exclusionary Zoning," 103 Texas Law Review 1 (2024) (with Joshua Braver). It has already secured a much-coveted "highly recommended" rating on Prof. Larry Solum's Legal Theory Blog.

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