Category: law

Oberlin College sues its insurers for refusing to reimburse it for the damages levied in the Gibson’s Bakery case

August 8, 2023 • 11:00 am

Remember the fight between Gibson’s Bakery and Oberlin College in 2016? It seems so long ago, but it isn’t over yet.  You can read about it on the relevant Wikipedia page, or on the many posts I wrote about it at the time.  If you forget, here’s the summary from Wikipedia:

The case began in 2016 with an incident of shoplifting by a Black Oberlin College student at Gibson’s Bakery, and subsequent arrest of three Black students for assaulting a staff member. Students, faculty members and employees of Oberlin College protested against the bakery, alleging racism. Meredith Raimondo, the dean of students and vice-president at Oberlin College, took part in the protest, distributing a pamphlet falsely alleging racism on the part of the bakery. Oberlin initiated financial sanctions against the bakery and lent material support to protestors. The owners of the bakery sued Oberlin College and Raimondo for damages.

A jury found that the college had defamed the owner of Gibson’s Bakery and his family and awarded them $44 million in compensatory and punitive damages in 2019. The trial judge reduced the total award to $25 million due to Ohio state law capping punitive damages. The trial court also awarded the bakery $6 million for legal fees. The college appealed the decision. In 2022, the Ninth Ohio District Court of Appeals unanimously upheld the 2019 jury verdict which found that the college defamed, inflicted distress and illegally interfered with Gibson’s Bakery; the court also upheld the damages award. Oberlin College then sought review by the Supreme Court of Ohio, but that effort failed when the court declined to accept jurisdiction on August 30, 2022.

Oberlin behaved badly, defaming, lying about, and trying to damage Gibson’s Bakery, and the jury got angry, levying a huge fine.  With interest, the amount that Oberlin had to pay Gibson’s was precisely $36,590,572.48. That’s a big hit for a small school like Oberlin, and a windfall for Gibson’s (alas, two of the owners involved in the fight died during the legal proceedings).

But Oberlin had insurance through four companies:  Lexington Insurance Company of New York; United Educators Insurance of Bethesda, Maryland; Mount Hawley Insurance Company of Peoria, Illinois; and StarStone Specialty Insurance Company of Cincinnati. The College assumed that they could recoup that huge pile of damages from these insurance companies.

But not so fast: the companies are refusing to pay Oberlin, and so the College have had to take them to court. This case will go on forever! Click the screenshot below to read the National Review article about this suit, or  see a more complex post at Legal Insurrection. 

Why are the insurers refusing to pay? Because, they claim, Oberlin violated the conditions of the insurance policy. Not only are the companies balking at paying, but United Educators is refusing to renew its $25 million coverage of Oberlin, coverage that had lasted 34 years.

Here’s the basis of the lawsuit: the insurance companies claimed that Oberlin’s actions rendered reimbursement null and void. I’ve put the meat of the companies’ claims in bold:

William A. Jacobson previously noted at Legal Insurrection that a Motion to Intervene filed by Lexington in 2019 offered evidence that the company was likely planned to refuse to cover the judgement.

The company wrote in the filing that the policy at hand “potentially provides coverage in relation to ‘personal and advertising injury,’ defined to include defamation and/or disparagement in certain circumstances” but that it “excludes any such coverage if ‘personal and advertising injury’ is caused ‘with the knowledge that the act would violate the rights of another … ,’ or if the insured published material it knew to be false. Further, the Lexington policy provides coverage for punitive damages insurable by law, but only where the corresponding award of compensatory damages is also covered by the Lexington policy.”

The filing went on to note that the plaintiffs in the Oberlin case [JAC: Gibson’s Bakery] “allege that defendants Oberlin and Ms. Raimondo published material that falsely characterized the bakery owned by plaintiffs (“Gibson’s”) as being a racist establishment.”

“While such allegations potentially implicate ‘personal and advertising injury,’ plaintiffs also alleged that the statements were published with malice, were intended to injure plaintiffs’ business reputation, and were part of a purported campaign to harm plaintiffs,” the filing read. “If it is established that the defendants knew the alleged statements were false, or if the defendants knew their alleged acts would violate plaintiffs’ rights, the Lexington policy would exclude coverage for any resultant damage. Thus, Lexington seeks to intervene in order to submit jury interrogatories to determine the extent of the defendants’ knowledge in relation to the alleged publications.”

In other words, the College’s actions constituted “personal and advertising injury” that violated the rights of Gibson’s Bakery, and, in its pamphlets and handouts, published information that Oberlin knew to be false. That’s defamation that injured the bakery and was intended to do so.

Of course insurance companies don’t want to hand out such a large reimbursement, so I’m not sure if they’ll prevail in this case. But given Oberlin’s arrogant behavior and invidious actions against Gibson’s Bakery, which the jury saw as unforgivable, I can’t help but be glad that Oberlin hasn’t yet been able to recover the damages. And, in trying to do so, they’re going to have to pay even more money to lawyers.

Note too that Oberlin never issued an apology for defaming the bakery, calling it a racist establishment (not at all true), and trying to hurt Gibson’s business.

From The Oberlin Review. Photo: Talia Rose. 

h/t: DrBrydon, Michael

Trump indicted in third case

August 1, 2023 • 4:54 pm

What a sweet headline! Trump now faces four charges of trying to overthrow the election, making a grand total of 79 charges against him. Will it hurt him? Naah, but it doesn’t make him look good to rational people, either.

This is his second federal indictment, the other being the Mar-a-Lago documents case, and there’s another state indictment in NY about the hush money to Stormy Daniels. And. . . one more liable to be handed down as well: a state indictment in Georgia for interfering in the election. The DA there said she was “ready to go”.

Click to read from the NYT:

An excerpt:

Former President Donald J. Trump was indicted on Tuesday in connection with his widespread efforts to overturn the 2020 election following a sprawling federal investigation into his attempts to cling to power after losing the presidency to Joseph R. Biden Jr.

The indictment was filed by the special counsel Jack Smith in Federal District Court in Washington.

It accuses Mr. Trump of three conspiracies: one to defraud the United States, a second to obstruct an official government proceeding and a third to deprive people of civil rights provided by federal law or the Constitution.

“Each of these conspiracies — which built on the widespread mistrust the defendant was creating through pervasive and destabilizing lies about election fraud — targeted a bedrock function of the United States federal government: the nation’s process of collecting, counting and certifying the results of the presidential election,” the indictment said.

The indictment said Mr. Trump had six co-conspirators, but it did not name them.

The charges signify an extraordinary moment in United States history: a former president, in the midst of a campaign to return to the White House, being charged over attempts to use the levers of government power to subvert democracy and remain in office against the will of voters.

You can  read the indictment here.

This is an extraordinary moment in American political history. The only thing I can compare it to during my lifetime is the run-up to Richard Nixon’s resignation from the Presidency.

 

Supreme Court rules against affirmative action at Harvard and UNC

June 29, 2023 • 9:45 am

You didn’t have to be a genius to predict this one, especially if you paid attention to the Justice’s statements during the hearing. By a vote of 6-3, and strictly along political-spectrum lines, the Supreme Court struck down race-bace admissions at Harvard and the University of North Carolina. The three dissenting justices were Ketanji Brown Jackson, Elena Kagan, and Sonia Sotomayor, with the majority including Chief Justice John Roberts and associate justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.

Click to read, though I found a partial version of the article archived here. It’ll be interesting to read the full decision, to which there’s a link below.

The Supreme Court on Thursday ruled that the race-conscious admissions programs at Harvard and the University of North Carolina were unlawful, curtailing affirmative action at colleges and universities around the nation, a policy that has long been a pillar of higher education.

The vote was 6 to 3, with the court’s liberal members in dissent.

The decision was expected to set off a scramble as schools revisit their admissions practices, and it could complicate diversity efforts elsewhere, narrowing the pipeline of highly credentialed minority candidates and making it harder for employers to consider race in hiring.

More broadly, the decision was the latest illustration that the court’s conservative majority continues to move at a brisk pace to upend decades of jurisprudence and redefine aspects of American life on contentious issues like abortion, guns and now race — all in the space of a year.

The decisions, though coming down to the same thing, apparently differ in the methods that the judges saw as discriminatory.  UNC didn’t use the “holistic” admissions procedure at Harvard, which the school defended vehemently (as did two appellate courts), but which used bogus “likeability” scores to discriminate against Asian Americans. (That these were mendacious was revealed by showing that the lower scores of Asians were given only by admissions officers who hadn’t met the applicants, not by those who actually interviewed them in person.)

The two cases were not identical. As a public university, U.N.C. is bound by both the Constitution’s equal protection clause and Title VI of the Civil Rights Act of 1964, which bars race discrimination by institutions that receive federal money. Harvard, a private institution, is subject only to the statute.

In the North Carolina case, the plaintiffs said that the university discriminated against white and Asian applicants by giving preference to Black, Hispanic and Native American ones. The university responded that its admissions policies fostered educational diversity and were lawful under longstanding Supreme Court precedents.

The case against Harvard has an additional element, accusing the university of discriminating against Asian American students by using a subjective standard to gauge traits like likability, courage and kindness, and by effectively creating a ceiling for them in admissions.

From the Wall Street Journal:

“Eliminating racial discrimination means eliminating all of it,” Chief Justice John Roberts wrote for the court, joined by Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. “The student must be treated based on his or her experiences as an individual—not on the basis of race. Many universities have for too long done just the opposite,” he wrote.

The court’s three liberals dissented. Society “is not, and has never been, colorblind,” Justice Sonia Sotomayor wrote, joined by Justices Elena Kagan and Ketanji Brown Jackson. “The Court ignores the dangerous consequences of an America where its leadership does not reflect the diversity of the People.”

Lee Bollinger, Columbia University’s president, expects five years of chaos before higher education fully adjusts to the new legal landscape, as committees and task forces—already in place at many schools—explore ways to employ income levels, socioeconomic factors and other race-neutral factors to maintain diversity.

Although long expected, the decision still was a shock to academia. “Nobody really believes it’s going to happen, even though all the evidence is right in front of you,” Bollinger said in an interview this month.

. . .But at oral arguments, several justices focused on another passage in O’Connor’s 2003 opinion, where she noted that minority enrollment had increased in the 25 years since the Bakke case.

“We expect that 25 years from now, the use of racial preferences will no longer be necessary,” she wrote.

The majority opinion in that case from a generation ago, Grutter v. Bollinger, didn’t say preferences could continue until “you’re satisfied that diversity has been achieved or something vague like that,” Justice Brett Kavanaugh told UNC’s lawyer. “It said 25 years in there.”

The Harvard and UNC decisions, 237 pages long (and bundled), can be found by clicking on either of the screenshots below.  which go to one pdf:

A lot will have to change, and even though schools may be in shock, they should have expected that this would happen and prepared for it. For prepare they will, trying to find workarounds that are legal. What exactly is legal will require a close reading of the decision.

Your take?  One thing that nobody should be is surprised.

Schools are already issuing letters reassuring everyone. Here’s Harvard’s (I left off some of the signatures):

 

Glenn Loury praises Clarence Thomas

June 24, 2023 • 11:45 am

Well, here’s one case where I can’t agree with Glenn Loury, who heaps praise on Supreme Court Justice Clarence Thomas in Loury’s Substack post below. (There’s also a video.) A quote:

The vilification of Clarence Thomas needs to stop. Actually, I’ll go further than that. Clarence Thomas deserves permanent public recognition for his achievements and service to the country. Schools should be named after him. Whatever his past sins, he has served on the Supreme Court for three decades. He has risen from nothing to become one of the most powerful and influential public officials in the country. Yes, he is a conservative, and his views are unpopular in some quarters. But that should not blind us to the magnitude of his accomplishments.

There is no reason that a school or library or public park shouldn’t bear the name of Ruth Bader Ginsburg. Whatever you think of her opinions and ideological orientation, she was a significant figure on the Supreme Court, and so she is a significant historical figure. That’s undeniable. Equally undeniable is the significance and influence of Clarence Thomas. As John notes in the following excerpt from our most recent conversation, Thomas’s career before he ascended to the Court may not have merited a special place of honor. But he is now arguably the most influential justice currently serving. He may not have originated any school of legal thinking, but his opinions will remain consequential for decades after he retires.

Click to below to read more, or listen to the video below, which is embedded in Loury’s post (the post has a transcript of Loury’s discussion with McWhorter, which you can see in the video). They don’t really agree on this one!

I’m not down with a lot of the vilification of Thomas, as who knows what happened during the Anita Hill affair? If you believe Hill, as I did, he was a sexual harasser but not a sexual predator. But I am adamant that Thomas doesn’t deserve big kudos and plaudits.  He’s a so-so Justice whose decisions have, on the whole, been bad for America. His “due” is simply the respect afforded any human being, but beyond that. . . crickets from me.

But Loury apparently thinks that Thomas deserves big plaudits for four reasons:

a.) for getting to the position of Justice as a black man from a background of abject poverty—though of course he was appointed by George H. W. Bush largely because he was both conservative and black, a conservative-acceptable version of the much greater justice he replaced, Thurgood Marshall.  I disagree with many of Thomas’s decisions, though he has voted “properly” in favor of First-Amendment issues in some cases. I don’t deny he’s a smart man and has worked hard to get where he is, and I won’t dismiss him as a sexual predator. No, I dismiss him because I think his diehard conservatism and fabricated “originalism” have been bad for America. But listen to Loury below and make your own judgement.

b.) for being on the court a long time.

c.) to give a big a slap in the face to those people who have demonized him as a “sexual predator” for what Anita Hill said during Thomas’s confirmation hearings. It also repatriates him in the eyes of those who think he’s “politically obstreperous” and thinks for himself (Loury thinks that people who say that are racists.)

d.) for instantiating the American dream by achieving success through hard work, and even when he was held back by racism.

Race, hard work, and longevity on the bench are his “attributes”. But only “hard work” is something to be applauded.  “Longevity” isn’t always a virtue, for there’s a lot of perks you get (like free vacations!) by being one of the nation’s most powerful Justices.

McWhorter weighs in at 6:55, saying that “it’s hard talking about Clarence Thomas, for a million reasons.” But McWhorter wonders what positive accomplishments Thomas made. Unlike Marshall, who had a long record of civil rights activism before becoming a Justice, and even unlike Scalia, whom McWhorter consider the “father of originalism”, what did Thomas do that makes him stand out from other Justices? Loury admits that Thomas has been just a “yeoman contributor to the country” as a justice and doesn’t have “a great degree of accomplishment” comparable to that of other  justices.

And that, ladies and gentlemen, brothers and sisters, comrades and friends, is it. We should laud Thomas, says Loury” as being a “bright black man who made good in America”. Yes, that’s true, but did he DO good in America?

And a “yeoman contributor to the country” is not exactly high praise! I think Loury’s judgment slipped here, perhaps because they’re fellow black conservatives who are smart and accomplished, which gives them a kind of kinship.

A question: What is “gender-affirming care”?

May 20, 2023 • 1:00 pm

I have a serious question, and no, I’m not a Republican or a Nazi for asking it.  According to the Associated Press, 17 states have restricted or banned “gender-affirming care”:

At least 17 states have enacted laws restricting or banning gender-affirming care for transgender minors, though judges have temporarily blocked their enforcement in some, including Arkansas. An Associated Press analysis found that often those bills sprang not from grassroots or constituent demand, but from the pens of a handful of conservative interest groups.

Many of the proposals, as introduced or passed, are identical or very similar to some model legislation, the AP found. Those ready-made bills have been used in statehouses for decades, often with criticisms of carpetbagging by out-of-state interests. In the case of restrictions on gender-affirming care for youths, they allow a handful of far-right groups to spread a false narrative based on distorted science, critics say.

The “distorted science” appears to be mainly the claim that puberty blockers are unsafe. But in fact their safety is in question, and so that’s not “distorted science.”

We don’t know their long-term effects, we know they do have some inimical effects, and at any rate the lack of good long-term data has impelled several European countries to allow blockers to be used only in experimental clinical trials.

Below is what my understanding of “gender-affirming care” includes. I may be wrong, and I haven’t read the bills. but my understanding of the procedure doesn’t make me rush to assure everybody that it’s fine, and that only transphobes would support them.  To me this brand of care involves two primary ways of treating a gender-dysphoric child:

  1. My view was that “gender-affirming care” involved not a therapeutic probing of gender-dysphoric children to see if they may have been gay, and to generally explore their dysphoria—a rather long process of therapy—but rather a rush to affirm a child’s conclusion, or the conclusions of their parents, that the he or she feels as if they were in the wrong body. Instead, I thought “gender-affirming care” was what its name implied: not empathic but objective therapy, but rather a rush to affirm what the child or its parents had already concluded about gender.
  2. I also thought that “gender-affirming care” involved a willingness to use puberty blockers, and use them soon: in some cases they’ve been prescribed after just the first visit to a doctor or therapist.

It’s worth considering whether at least these two aspects of  gender-affirming care should indeed be banned for the time being.  No child’s word should be accepted without question by a therapist, especially when irrevocable medical changes can depend on whether that word is accepted uncritically. There is general agreement that gender dysphoria will resolve one way or the other (often the child becomes gay) without dangerous hormonal or surgical treatment, so why the rush??

Further, I agree with the Europeans that the use of long-term puberty blockers should be considered experimental, not just an off-label use, which is how they’re used in America.  They should not be prescribed except in clinical trials—something that the Europeans, more cautious than we in this matter—have decided.

Now there may be other aspects of these bills banning gender-affirming care that go beyond this, and to which I’d object. But the two behaviors above—banning “immediate acceptance therapy” and prescribing puberty blockers willy-nilly—are, in my view, worth halting pending further data.

Until we know that puberty blockers are safe for long-term use, and absolutely reversible, they should not be prescribed except in clinical trials, and not to the general public.  These are used either at the onset of puberty or before it begins, and a child is in no position to make a decision about its gender at that age. I’m not sure what age should be the cutoff, but surely no younger than 18. We can argue about that after the medical data are in.

And yes, I’m prepared to think that conservatives who propose these bills are doing so not solely out of medical and therapeutic considerations, but to go along with their tribe, perhaps out of a general dislike of transgender people. That is thoughtless and unempathic.

Nevertheless, I might be willing to go along with some aspects of these bans, not on political grounds, but rather on medical grounds and out of concern of the well-being of children and adolescents.

But my ignorance of these 17 bills is profound, so please enlighten me. What kind of “gender-affirming care” do they ban? Do they spell it out clearly?

In a punitive decision, two federal appellate-court judges decide to no longer hire clerks from Stanford Law School

April 3, 2023 • 9:15 am

James C. Ho is a Trump-appointed federal judge on the Fifth Circuit of the U.S. Court of Appeals. That means he’s a conservative judge on the most conservative federal appellate court; further, this story was reported by a conservative website, the Free Beacon.  If you want to ignore it because of that, that’s your problem, for what’s important is whether the issues adduced are worth discussing, not who raises them.

The other person mentioned here, who’s adhering to Ho’s decision, is Judge Elizabeth Branch. She’s Ho’s equivalent—and also appointed by Trump—for the Eleventh Circuit, a southern circuit court comprising Alabama, Florida, and Georgia.  Last year both Ho and Branch announced they were no longer hiring clerks from Yale Law School:

Ho and Branch, who introduced Ho at the Texas Review event, are 2 of 14 federal judges boycotting Yale Law School over a rash of high-profile free speech scandals, including an incident last March in which hundreds of students disrupted Kristen Waggoner, a religious liberty lawyer who has won several cases at the Supreme Court.

Why I’m presenting this is not because I agree with these Judges, even in the decision I’m mentioning, but to make the point that if a school creates and emphasizes a policy promoting free expression, and prohibits disruption of speech, then unless it penalizes the disruptions, the law is toothless. A policy without sanctions is not a policy at all.

And so, below, you can see Ho’s explanation for his decision:

The letter to which Ho refers below was one I highlighted recently; it was from Stanford Law School (SLS) Dean Jenny Martinez to the SLS community about the disruption that occurred when SLS students effectively deplatformed a visiting conservative judge, Kyle Duncan. You can read Martinez’s letter here. It highlighted Stanford’s commitment to free speech, said that “enforcement of university policies against disruption of speakers is necessary to ensure the expression of a wide range of viewpoints,” and announced that DEI Dean Tirien Steinbach, who contributed to the disruption in several ways, had been put on leave.

At the time I thought it was a good letter, and though the disruptive students should have been disciplined (as they would be at my university), Martinez didn’t do so because they couldn’t be easily identified. I let that go, but after reading Ho’s remarks, I do think that any student who violates a school’s free-speech policy in this way should be disciplined. At Chicago, I believe, they are first given a warning, and then expelled or suspended if they commit a second offense.

I’ll indent Ho’s words, taken from an address he gave on April 1 to the annual meeting of the Texas Review of Law & Politics

I’m a graduate of Stanford University and the University of Chicago. As we consider recent events, I wonder if my first alma mater has a lot to learn from my second.

The University of Chicago has long been a national leader when it comes to freedom of speech in higher education.

One former President of the University of Chicago put it this way: “Education is not intended to make people comfortable—it’s meant to make them think.”

But law schools today are turning this upside down. At some law schools, education is more about making students comfortable—at the expense of making them think.

 

. . .Here’s the good news. This problem should be easy to solve. Most universities already have rules in place ensuring freedom of speech and prohibiting disruptions.

The problem is that these rules aren’t enforced. Students disrupt without consequence. Administrators tolerate or even encourage the chaos.

It’s not because most students or faculty support these tactics. When I visit law schools, I’m always told it’s just a small fraction of students who practice intolerance. But the majority tolerates it, because faculty members don’t want to be controversial. And students just want to graduate, get a job, and move on with their lives.

But I want to draw a sharp distinction between students being afraid and faculty being afraid.

Students are just starting their lives. They don’t want to end their careers before they even begin.

We shouldn’t be putting it on the students to police other students. It should be on the grown-ups to lead, to teach, and, where necessary, to punish.

But the grown-ups are scared to do anything. We’re the opposite of the Greatest Generation. We’re leaving our country worse off, not better, for the next generation.

 

. . . .I go back to my alma mater, the University of Chicago. A few years ago, the law school held an event featuring a professor who favors anti-boycott laws to protect the State of Israel. Before the event, the law school reminded students of its free speech policy.

But one law student thought he found a clever loophole. Rather than disrupt the event himself, he recruited others to campus to disrupt the event.

Well, my law school was not impressed. Chicago suspended the law student for the rest of the year—and told him that he’d have to re-apply for admission if he ever wanted to come back.

And guess what: Chicago hasn’t experienced a disruption ever since.

Well, we have had at least two disruptions since, one is described here, and another forced the speaker to deliver her talk online instead of live.  But let’s go on with Judge Ho:

The point is that law schools know what their options are. They know they can suspend or expel students for engaging in disruptive tactics. They know they can issue a negative report on a student’s character and fitness to state bar officials. They know it because schools have done it.

Second, at a minimum, law schools should identify disruptive students, so that future employers will know who they’re hiring.

Schools issue grades and graduation honors to help employers separate wheat from chaff. Likewise, schools should inform employers if they’re at risk of injecting potentially disruptive forces into their organizations.

Without that information, employers won’t know if the person they’re hiring is in one category or another. Now, some employers may be okay with that. But others may not be. No one is required to hire students who aren’t taught to live under the rule of law.

Third, it’s not enough to just promise freedom of speech. The Soviet Constitution promised free speech, too. But it was just words on paper—what our Founders called a “parchment promise.”

Our Founders taught us that it’s not enough to just promise certain rights. You need to establish a structure of government to ensure that your rights will be protected.

And here’s Ho’s beef.  I’ve highlighted the money quote:

. . . .These three elements are plainly missing at Stanford Law School. Just look at the ten-page letter that was recently issued by the Dean. I know that letter has been praised by some people for standing up for free speech. I don’t share that view.

I’ll agree that there are some good words in that letter. But they’re just words. How do we know if those words are sincere—and not merely strategic? Because there’s good reason to be suspicious.

Remember, this wasn’t the Dean’s first reaction to recent events. Her first reaction was to defend the administrators as “well intentioned.”

So at best, this is a dramatic change of heart. Should we believe it?

Well, here’s the problem: The words in that letter are not accompanied by concrete actions. Because it imposes zero consequences on anyone. It doesn’t even say whether there will be consequences if there’s a disruption in the future.

Look, I get that no one wants to be vindictive. I believe in redemption and grace. But we’re not talking about good faith mistakes here.

Is it really that close of a call—whether it’s okay to call for someone to be raped? Do these future leaders really not have fair notice that they shouldn’t ridicule a judge’s sex life?

I’m all for second chances. But I’m not a schmuck.

This shouldn’t be difficult to understand. Rules need to be enforced. Violations must have consequences. You don’t need a fancy law degree to understand this. Anyone who’s ever been a parent understands this. Heck, anyone who’s ever been a kid understands this. Kids don’t obey parents who don’t back up their words with consequences.

 

. . .The real problem in the academy is not disruption—but discrimination. Rampant, blatant discrimination against disfavored viewpoints. Against students, faculty, and anyone else who dares to voice a view that may be mainstream across America—but contrary to the views of cultural elites.

Moreover, let’s just say it: The viewpoint discrimination we most often see in the academy today is discrimination against religious conservatives. Just look at which viewpoints are targeted most frequently at speaker events—and excluded most vigorously from faculty appointments.

Unless we take action to solve the real problem—discrimination, not disruption—all we’re doing is giving speeches.

 

. . .So what do we do about it? Well, ask yourself this: What do elite law schools do when they conclude that institutions are failing them? Yale recently called for a boycott of the U.S. News and World Report. And numerous schools have followed suit. Well, imagine that every judge who says they’re opposed to discrimination at Yale and Stanford takes the same path. Imagine they decide that, until the discrimination stops, they will no longer hire from those schools in the future. How quickly do we think those schools would stop discriminating then?

So Lisa and I have made a decision. We will not hire any student who chooses to attend Stanford Law School in the future.

And so Ho’s and Branch’s blacklist now include both Yale and Stanford.  Is it fair to refuse to hire clerks from either of those law schools?  I think this is a toss-up, but tend to come down against Ho and Branch. If a good student, and one without a record of disruption, applies to be a clerk, he or she shouldn’t be refused simply because they went to a woke law school. This is punishing the student for what the school does. (On the other hand, I can see that if this policy was exercised widely, it would give law schools an impetus to quell disruptions.)  Further, because SLS and Yale are liberal law schools, a few conservative judges refusing to take any students further punishes the conservative students and does nothing to change school policy.

But although the “not hiring” tactics are likely to be completely ineffectual, I agree with the general message Ho and Branch are conveying: students should not only be educated in First Amendment Principles, but also punished if they violate a school’s own free speech principles. And yes, it would be good if universities and law schools had greater ideological diversity. This is particularly true in law schools, for unless you hear arguments from the conservative side, how are you going to argue effectively before conservative judges in the future?

Finally, schools should punish students who violate free-speech principles by deplatforming or disrupting speeches. One offense is sufficient to call a student in and tell them, “don’t do it again.” If they do do it again, punish them more severely, and put it on their records. I’m all for second chances. But I’m not a schmuck.

h/t: T.m.

A court case against DEI and discriminatory hiring

February 13, 2023 • 9:15 am

Although I’ve always said I’m in favor of some affirmative action in college admissions and hiring (but haven’t figured out exactly it should be implemented), I’ve never been in favor of mandatory DEI (“Diversity, Equity, and Inclusion”) statements as required parts applications for admission to colleges, graduate schools, or especially academic jobs.

It should not be part of a job application to show how you can engage in social engineering. Further, DEI statements constitute compelled speech, similar to the loyalty oaths that California academics used to take, and thus is unconstitutional.

These mandatory statements also change the purpose of a university—normally to teach, to learn, to learn to think, and to do research—into a form of social activism that must adhere to specific tenets of DEI. The statements are judged on how closely they adhere to a school’s construal of Critical Race Theory, and are often read and rated before one’s academic credentials are assessed. If you don’t meet the right “rubric” for your statement, your application can be trashed.  Woe unto the applicant who says they “will treat all students equally” or “will adhere to Dr. King’s view that people should be judged by the content of their character [in this case, their academic achievement] and not the color of their skin”. Such candidates are considered unenlightened, and accrue the lowest ratings.

And if you don’t have a philosophy of DEI, a history of past DEI efforts, and a plan about how you can implement DEI in your university, then you stand little chance of getting a job. (There are usually three aspects to a DEI statement.)

Now not all schools require such statements. The University of Chicago, for instance, explicitly forbids them as per our Shils Report (full document here), which mandates that the criteria for academic appointments and promotion must comprise only research, teaching and training (grad students), contributions to the intellectual community, and service (this includes service to the University and your academic field, like giving seminars, editing academic journals, and so on.) The U of C has mandated that DEI statements are not included in this, and it’s forbidden for academic departments to require them for hiring and promoting faculty. I know of no other school that has such a prohibition, although there may be some.

In contrast, many schools not only require DEI statements, which can be and are used in race-based hiring—an attempt to secure equity among faculty—but even designate certain jobs only for candidates of certain ethnicities. Like DEI statements, hiring on the basis of ethnicity is against the law. But as the article below notes, schools know about this illegality but flout it anyway, because nobody ever penalizes them for doing so.  Lawsuits against such discrimination are nonexistent for three reasons:

a.) They’re bloody expensive.

b.) You have to have “standing” to sue: to prove that discriminatory hiring based on race injured you.  It’s hard to prove that.

c.) As the article below notes, if you sue a school because you were not hired or not considered because, say, you were Asian or white, you become academically radioactive: no liberal school (i.e. nearly all schools) will want to hire such a notorious person.

This is not a conservative point of view but a liberal one, as it is anti-discrimination and anti-compelled speech. The push to get rid of DEI statements is supported by all academic freedom organizations I can think of, including the Foundation for Individual Rights and Expression (FIRE). FIRE notes that while the Constitutional prohibition applies only at public schools and colleges, it should apply more widely than that. As they say:

The First Amendment prohibits public universities from compelling faculty to assent to specific ideological views or to embed those views in academic activities. While private universities are not bound by the First Amendment, they generally make commitments to free speech and academic freedom that similarly preclude enforcement of any political, moral, or ideological dogma. Such colleges and universities educate and employ the overwhelming majority of America’s students and faculty members, and this document is intended to address DEI policies at those institutions.

But one person—Richard Lowery, an associate professor of business and finance at the University of Texas—has filed such a lawsuit against Texas A&M University.  In his case, the “injury” consisted of the fact that (although he apparently has no interest in a job at Texas A&M, which isn’t as good as UT in his field), Lowery wouldn’t even be considered for a job because it was advertised as being open only to members of underrepresented minorities. Texas A&M is a public school, and thus violated the law by advertising a job open only to candidates of certain ethnic backgrounds.

Lowery’s gambit is a clever way to get standing, and apparently it’s worked so far (it also allowed other people to join in on a class action suit). Several law faculty at other schools are quoted as saying this is a pretty solid suit with a good chance of winning.

Click below to read:

Here’s the basis of the case as described above (remember, as a state school, Texas A&M must adhere to the First Amendment):

. . . the law may finally be coming for the overt employment discrimination practiced on most campuses today. The form of the destructor may be a test case filed on September 10: Lowery v. Texas A&M University System.

As described in the complaint:

8. The Texas A&M University System, along with nearly every university in the United States, discriminates on account of race and sex when hiring its faculty, by giving discriminatory preferences to female or non-Asian minorities at the expense of white and Asian men. This practice, popularly known as “affirmative action,” has led universities to hire and promote inferior faculty candidates over individuals with better scholarship, better credentials, and better teaching ability.

9. These race and sex preferences are patently illegal under Title VI and Title IX, which prohibit all forms of race and sex discrimination at universities that receive federal funds. But university administrators think they can flout these federal statutes with impunity because no one ever sues them over their discriminatory faculty-hiring practices and the Department of Education looks the other way.

10. These discriminatory, illegal, and anti-meritocratic practices have been egged on by woke ideologues who populate the so-called diversity, equity, and inclusion offices at public and private universities throughout the United States. The existence of these offices is subverting meritocracy and encouraging wholesale violations of civil-rights laws throughout our nation’s university system.

Specifically, the complaint avers that in July 2022, Texas A&M’s “office for diversity” announced a program for hiring professors that was limited to members of “underrepresented groups,” which it defined as “African Americans, Hispanic/Latino Americans, Native Americans, Alaskan Natives, and Native Hawaiians.” In other words, like many DEI initiatives that pervade most university campuses today, white and Asian men need not apply for this program. Texas A&M justified the program with the goal of establishing a faculty whose racial composition attains “parity with that of the State of Texas”—despite the fact that even Grutter recognized that such racial balancing was “patently unconstitutional.”

Part of Texas A&M’s efforts to achieve such racial balancing has also been to establish faculty hiring lines open only to members of “underrepresented groups.” One such hiring line was in the Department of Finance, where the head of the recruiting committee confirmed in writing that the position was indeed “reserved” for non-white, non-Asian candidates.

Richard Lowery is a finance professor at the University of Texas and is a vocal critic of DEI programs. (Disclosure: I know Rich and have written about him in the past, but I am not involved in his case and did not know of it until after it was filed.) There should be no serious question that he would be qualified for a teaching position in the finance department at Texas A&M; indeed, his qualifications easily exceed those of many current Texas A&M finance professors. Yet despite being “able and ready” to apply for the position, Texas A&M’s “reserving” the position for non-white, non-Asian candidates means that he is ineligible for it.

Lowery’s lawsuit sues Texas A&M and various officials for violations of Title VI and Title IX, seeking declaratory and injunctive relief prohibiting the university from discriminating on the basis of race and sex in hiring decisions. It also seeks redress for violations of 42 U.S.C. § 1981(a), which guarantees individuals the same right to make and enforce contracts without regard to race, and for violation of the Equal Protection clause of the Fourteenth Amendment.

The lawsuit also has another twist: it seeks certification as a class action, for the benefit of all white and Asian candidates who have been discriminated against by Texas A&M’s DEI employment initiatives.

Lowery is of course an opponent of DEI initiatives; why else would he put himself through the trouble of this lawsuit?

Given that the job was limited only to certain ethnic groups, it seems palpably unconstitutional, and I suspect Lowery’s suit will win—unless he is found not to have standing. But, to be sure, any Asian and white person who could have or would have applied for the job could in principle claim injury. Whether that’s upheld or dismissed solely on the grounds of standing, it’s only a matter of time before some brave soul brings a lawsuit on civil rights grounds and does have standing; and that person will win. That will bring the whole DEI-statement mishigas crashing down, and that’s to the good.

The article quotes three law professors who say Lowery’s case is strong. They may be conservatives (I don’t know), but they’re also at good schools: UC Berkeley, Cornell, and UC San Diego. I’ll give two of the statements, one from someone on the US Commission on Civil rights.

How does the case shape up legally? Asked for comment, University of California, Berkeley law professor John Yoo says:

This seems like a strong case. The Supreme Court’s diversity rationale for the use of race in university admissions for students is a limited exception to the general rule that the Constitution prohibits government from using skin color in its decisions and policies. Here, Texas A&M is flatly using race in considering the hiring and compensation of faculty. It is flatly unconstitutional and the university should lose in court.

. . . University of San Diego law professor Gail Heriot, who is also a commissioner on the United States Commission on Civil Rights, observes:

For a long time, faculty members and aspiring faculty members who have been discriminated against have been reluctant to sue—mainly out of fear that they will be ostracized. As a result, college and universities have gotten bolder and bolder in the ways they flout the law. But the tide appears to be turning. There will likely be more lawsuits of this type in the near future.”

I’m sure there will be. It’s only a matter of time.

The injurious ruling of the Supreme Court on guns

December 1, 2022 • 12:30 pm

I didn’t really follow the Supreme Court case of New York State Rifle & Pistol Association, Inc. v. Bruen, but the 2022 case was settled in favor of less restrictive gun laws—and by a vote of 6-3 (ruling here), with the dissenters being Breyer, Sotomayor, and Kagan.  Here’s the Wikipedia summary that brought me up to speed:

New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. ___ (2022), abbreviated NYSRPA v. Bruen and also known as NYSRPA II or Bruen to distinguish it from the 2020 case, is a landmark decision of the United States Supreme Court related to the Second Amendment to the United States Constitution. The case concerned the constitutionality of the 1911 Sullivan Act, a New York State law requiring applicants for an unrestricted license to carry a concealed pistol on their person to show “proper cause”, or a special need distinguishable from the general public, in their application.

In a 6–3 decision, the majority ruled that New York’s law was unconstitutional, and ruled that the ability to carry a pistol in public was a constitutional right under the Second Amendment. The majority ruled that states are allowed to enforce “shall-issue” permitting, where applicants for concealed carry permits must satisfy certain objective criteria, such as passing a background check, but that “may-issue” systems that utilize “arbitrary” evaluations of need made by local authorities are unconstitutional.

Clarence Thomas wrote the majority opinion, which rested a semi-“originalist” decision that the Sullivan Act violated on the Second and Fourteenth Amendments. First, the Amendments:

Second:

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

Relevant bits of the Fourteenth (section 1):

… No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Thomas interpreted these in two ways. The Second Amendment allows people to keep and bear arms, and the Fourteenth Amendment says that states can’t infringe on the Constitutional right to do so, i.e., it can’t make unreasonably restrictive gun laws. At least that’s what I get from this part of Thomas’s decision in the case.

The burden then falls on respondents to show that New York’s proper-cause requirement is consistent with this Nation’s historical tradition of firearm regulation. To do so, respondents appeal to a variety of historical sources from the late 1200s to the early 1900s. But when it comes to interpreting the Constitution, not all history is created equal. “Constitutional rights are enshrined with the scope they were understood to have when the people adopted them.” Heller, 554 U. S., at 634–635. The Second Amendment was adopted in 1791; the Fourteenth in 1868. Historical evidence that long predates or postdates either time may not illuminate the scope of the right. With these principles in mind, the Court concludes that respondents have failed to meet their burden to identify an American tradition justifying New York’s proper-cause requirement.

Steven Lubet, the Williams Memorial Professor Emeritus and Director Emeritus, Bartlit Center for Trial Advocacy at Northwestern University’s School of Law, has a new article in The Hill about this decision, which he claims is promoting a “homicide pact”. Click to read:

Thomas really does seem gun-crazy; as Lubet notes, he’s been pushing a decision like this for years. Here’s some of the fallout (quotes from Lubet indented):

It looks as though there will be no end to the fallout from Supreme Court Justice Clarence Thomas’s majority opinion in New York State Rifle & Pistol Association v. Bruen holding that gun control regulations are “presumptively” unconstitutional unless they are sufficiently “analogous” to a 19th century law. The Court’s requirement of a close historical comparator has turned out to be almost impossible to satisfy, causing lower courts to invalidate or question otherwise reasonable laws prohibiting the obliteration of guns’ serial numbers and firearm possession by convicted felons or domestic abusers.

Most recently, a judge held that the absence of a “historical tradition of sufficiently analogous regulations” limited New York’s ability to restrict bringing concealed weapons onto others’ private property.

Lubet brings up the issue of mass shootings, often with legally obtained guns, that now seem to happen a couple of times per week:

It did not have to be that way. In 2008, the Supreme Court held that the Second Amendment protects an “individual right” to possess firearms. Two years later, the Court made it clear that the right to “keep and bear arms for the purpose of self-defense” is applicable to the states as well as the federal government.

Those decisions still left the scope of the Second Amendment right to be determined. In other circumstances, even fundamental constitutional rights may be subject to valid limitations when the government can currently demonstrate a sufficiently “compelling interest” to survive “strict scrutiny.”

A similar approach to the Second Amendment would have allowed lower courts to at least consider the value of existing firearms laws in relation to the constraints they impose on gun owners. But even that modest evaluation has been foreclosed by the Supreme Court’s command, as one judge put it, “that a gun regulation’s constitutionality hinge solely on the historical inquiry [as the] only consideration.”

The Court’s embrace of an exclusively historical method of constitutional review represented an ideological triumph for Justice Thomas, who had been pushing for it in a series of dissenting opinions for years.

I’ve always disliked a hard-nosed kind of “originalism” as espoused by Scalia (and now by his right-wing pal Thomas), for times have changed so much since the late 18th century that it’s impossible to tell what those who wrote the Constitution and Bill of Rights would think about issues that didn’t exist then. For example, in 1995 Garry Wills made a convincing case (at least to me) that the Second Amendment was indeed there to allow militias but not private citizens like Lauren Boebert to pack heat in public, much less pack it concealed and without much scrutiny for a license.

Yes, cases have to be interpreted in light of the Constitution, but when cases arise that can’t be judged using those old standards, one has to rely on rationality and on more recent thinking. Because Thomas won’t do that, he has indeed signed onto a “homicide pact.” Lubet:

Thomas has ultimately succeeded at a long game, but his victory comes at a severe cost. Under Bruen’s holding, a gun regulation must be invalidated unless a court can locate “a well-established and representative historical analogue” dating to the 19th century. Reasoning from a silent record is perverse. The absence of an historical counterpart does not mean that a particular firearm limitation would have been considered unconstitutional by the framers, but only that they found it unnecessary, if they thought of it at all.

One judge has already ruled that domestic abusers cannot be prohibited from gun possession because there were no such laws in an age when domestic battery was regarded as an unprosecutable family matter. And high-capacity magazines were unknown, and would have been thought impossible, in the era of muzzle-loading muskets.

There is no logical, sensible or moral reason to confine today’s gun laws to the provisions favored by 19th century property owners, other than a dogmatic commitment to so-called originalism, no matter how much carnage follows. In 1949, Justice Robert Jackson famously cautioned, “there is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.” Justice Thomas has at last assembled a majority that now appears bent on turning the Second Amendment into a homicide pact.

I realize, of course, that the brief of the Supreme Court is to see if a recent law follows the Supreme Law—the stipulations of our Constitution and Bill of Rights. What I don’t know is how the Supreme Court should rule when there’s an issue (like abortion) that wasn’t envisioned by the Founders.  Usually they make in their decision on some trumped-up Constitutional issue like “right to privacy”. But for me, if the Second Amendment says the right to bear arms is there to allow a “well regulated militia,” then the reason for having guns is therefor all to see. And I know that Lauren Boebert is not a militia.

A congresswoman (oy!), not a militia

The American Bar Association decides to ditch law-school requirements for standardized tests

November 20, 2022 • 1:45 pm

Up until now, all accredited law schools in America required nearly every entering student to take the Law School Admission Test (LSAT), which, according to Wikipedia, “is designed to assess reading comprehension as well as logical and verbal reasoning proficiency.” In some cases, however, a student can take the Graduate Record Examination General Test (GRE), which covers verbal reasoning, quantitative reason, and writing (an essay). A recent Princeton Review site says this:

The current admission standards for ABA-accredited law schools state that no more than 10% of an entering class may be admitted without LSAT scores , and those students must meet specific academic requirements, be undergraduates at same institution as the law school, and/or be pursuing a dual degree in another discipline. Law schools may apply for a variance from these standards by demonstrating that another test (in this case, the GRE) is a valid predictor of law students’ performance at that institution. The ABA, however, is currently considering changes to the LSAT score admission standard.

And yes, the ABA has changed these standards: they’ve eliminated them. Click on the screenshot below to read the Reuters article about the deep-sixing of all mandatorytests:

Here’s the whole article, with the motivation bolded by me:

The arm of the American Bar Association that accredits U.S. law schools on Friday voted to eliminate the longstanding requirement that schools use the Law School Admission Test or other standardized test when admitting students.

But under a last-minute revision, the rule change will not go into effect until the fall of 2025—giving law schools time to plan for new ways to admit students.

The ABA’s Council of the Section of Legal Education and Admissions to the Bar overwhelmingly voted to do away with its testing mandate after years of debate and over the objections of nearly 60 law school deans who warned such a move could harm the goal of diversifying the legal profession.

The organizations that design both the LSAT and the GRE also urged the council on Friday not to drop the rule, warning that it could lead to law schools admitting students who are unlikely to succeed despite incurring debt to attend.

Councilmember Daniel Thies noted that no other professional school accreditors require the use of admissions test and that has not led to a “race to the bottom” to bring in unqualified students. Existing limits on student attrition and a requirement that at least 75% of a school’s graduates pass the bar exam offer further guardrails, he said.

“The goal is to open up innovation—finding other ways that might complement the current admissions processes to move us ahead in legal education on diversity and a host of other considerations,” Thies said.

The ABA standards currently require law schools to use a “valid and reliable test” in admissions decisions. For years, the only standardized test that automatically met that criteria was the LSAT, though the ABA in November 2021 added the GRE as an acceptable alternative.

In other words, law schools are going to a mushier “holistic” standard of evaluation in an effort to increase diversity, which apparently was too low when the GRE or LSAT were required. So much for the claim that diversity and merit (at least as judged by exams) are are absolutely compatible. That is a fiction, but an ideologically comforting fiction.

Now it’s possible that law schools may still require either test for admission, but it’s no longer a mandatory requirement for a law school to be accredited.

I wonder what they’ll replace the tests with? Essays? Assessments of “personality”? Is there any downside to using other standards but keeping the standardized tests as well?

All over the country we see the elimination of standardized tests for admission to colleges, graduate schools, or professional schools. Since it’s the one measure on which everybody competes with everybody else on the same set of questions, I don’t think doing away with such metrics is a good things. Next test circling the drain: the Medical College Admission Test (MCAT).

Elizabeth Holmes sentencing: livestream coverage

November 18, 2022 • 2:00 pm

Elizabeth Holmes is now in court, facing sentencing on four counts of wire fraud for the Theranos startup case. Both prosecution and defense are making long arguments about her sentence, and it has’t yet been pronounced. It will come down within a couple of hours.

Holmes faces up to 20 years in prison, but the prosecution has asked for 15 years and a fine of $800 million. The defense, however, has asked for 18 months, preferably served in home confinement. In such cases the judge usually pronounces a sentence close to what the prosecution recommends. My own prediction was ten years. It will undoubtedly be served in a cushy federal prison in California.

You can watch the livestream by clicking on the screenshot below, but since it’s a federal court, cameras aren’t permitted. What you’ll see is up-to-the-minute news.

Here’s a video of her arrival in court.