Category: reason

How Many Universities Built COVID Potemkin Villages To Lure Students Back To Campus?

Over the past six months, cash-strapped Universities have spent untold amounts of money preparing to bring students back to campus. Colleges established elaborate plans on how student would interact in “pods.” Classrooms were built on tennis courts to ensure there was enough space for learning. Modular housing units were constructed to ensure there was space for quarantining students. Labs dedicated critical resources for rapid-response testing. Intrusive “contact-tracing” apps were mandated, to ensure people did not socialize outside of their pods. Now, after barely a week on campus, COVID-19 outbreaks have come rampant. Campus after campus has shut down. None of these events should be surprising.

May I offer a cynical take? At some point last spring, universities recognized that if they shifted to an all-online model, they would see a drop in enrollment. And quite rationally, they recognized they could not afford that revenue cut. So the universities decided that they would have to prove to the students that there was a plan in place to safely open up campus. And they built these elaborate structures and implemented intricate plans to welcome back students. All of these efforts relied on overwhelmingly rosy assumptions about human behavior–assumptions that are inconsistent with everything we know about how 18-21-year-olds behave. Certainly, some of these universities recognized that if the students broke protocol, there would be a rash of positive tests. But they moved forward anyway.

In hindsight, these expensive efforts look like little more than Potemkin Villages. The universities crafted together fancy marketing plans to put students at ease, and prevent them from withdrawing. Now, students have paid their seat deposits. Tuition has been remitted. With the financials settled, it is far simpler to simply pull the trigger, and shift everyone online.

Last year we saw litigation over tuition rates. I suspect the litigation this term will be far more severe: How many colleges misled students into enrolling, knowing full well that there was no reasonable chance the semester would proceed in person? I would not be surprised if we see some RICO actions. One relevant piece of evidence will be the trigger for closure. That is, how many positive tests would the university be willing to tolerate before shutting down in-person instruction? If that number is non-existent, then the University’s plans were illusory. If that number is too high, then the University’s plan was unrealistic. If that number is too low, then the University never actually planned to keep students on campus for any reasonable period of time. Discovery here will be painful for universities.

In hindsight, perhaps all of that money spent on building Potemkin Villages would have been better used for tuition rebates.

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TANSTAAFL Appears for the First Time in a Court Opinion

From Pizza di Joey, LLC v. Mayor & City Council of Baltimore, decided yesterday by the high court of Maryland, in an opinion by Judge Jonathan Biran:

“There ain’t no such thing as a free lunch.”
– adage popularized as the acronym “TANSTAAFL” in The Moon Is a Harsh Mistress by Robert A. Heinlein (1966)

I leave it to others to decide whether Heinlein would have approved of the holding, which is,

Nobody disputes that mobile vendors add value to Baltimore City. However, the City acted rationally when it balanced the competing interests of mobile vendors and brick-and-mortar restaurants and enacted the 300-foot rule to further its legitimate interest in promoting the vibrancy of its commercial districts. It follows that the Rule does not deprive mobile vendors of their substantive due process and equal protection rights under [the Maryland Constitution]. The Food Trucks affirmatively waived a vagueness challenge to the 300-foot rule, and the circuit court erred in sua sponte enjoining the City from enforcing the Rule as impermissibly vague. In any event, the 300-foot rule is not void for vagueness.

(I’m not counting here a few opinions in which a party or other business entity was called Tanstaafl: a shooting club, a stock trading company, and a summer camp; I also can’t vouch for any opinions, likely state trial court opinions, that might not have made their way onto Westlaw.)

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Iowa State English Professor Forbids Papers “Against Gay Marriage, Abortion, Black Lives Matter,”

Here is the syllabus (drawn from the Young America’s Foundation story):

The key passage:

GIANT WARNING: any instances of othering that you participate in intentionally (racism, sexism, ableism, homophobia, sorophobia, transphobia, classism, mocking of mental health issues, body shaming, etc) in class are grounds for dismissal from the classroom. The same goes for any papers/projects: you cannot choose any topic that takes at its base that one side doesn’t deserve the same basic human rights as you do (ie: no arguments against gay marriage, abortion, Black Lives Matter, etc). I take this seriously.

Fortunately, Iowa State University takes student academic freedom seriously, too, at least to the point of issuing this statement (which I’ve confirmed with the University itself):

The syllabus statement as written was inconsistent with the university’s standards and its commitment to the First Amendment rights of students. After reviewing this issue with the faculty member, the syllabus has been corrected to ensure it is consistent with university policy. Moreover, the faculty member is being provided additional information regarding the First Amendment policies of the university.

Iowa State is firmly committed to protecting the First Amendment rights of its students, faculty, and staff. With respect to student expression in the classroom, including the completion of assignments, the university does not take disciplinary action against students based on the content or viewpoints expressed in their speech.

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The Supreme Court’s Refusal to Reinvigorate the Contract Clause

Last week I posted about two recent California Supreme Court decisions surprisingly upholding public-employee pension reform. To go with that post, I have another post elsewhere on the Reason site, about the Supreme Court’s 2018 Contract Clause decision in Sveen v. Melin. Here’s a snippet:

Today, the conservative Supreme Court majority seems even more entrenched than it previously had been. True, no Democratic appointee has been replaced by a Republican appointee in the past 29 years (in fact, the opposite has happened), but moderate Republican appointees have been replaced by arguably less moderate ones: Chief Justice John Roberts, and Justices Samuel Alito, Neil Gorsuch, and Brett Kavanaugh, as a whole, are probably more conservative than Justices William Rehnquist, Sandra Day O’Connor, Antonin Scalia, and Anthony Kennedy (though concepts like “conservative” are admittedly slippery when it comes to various aspects of judicial philosophy).

But, if we wanted to read the tea leaves as to whether a new revival of the Contract Clause was in the works, so far we wouldn’t find any indication of a substantial change. After decades of silence, the Supreme Court finally decided a Contract Clause case in 2018—Sveen v. Melin. And, by an 8–1 vote, the court rebuffed the Contract Clause claim. Sveen has nothing to do with public-employee pensions and isn’t even a case about state governments trying to abrogate their own contracts, but in the absence of better tea leaves, it’s the best clue we have to the current Supreme Court’s thinking about the Contract Clause.

. . .

What, if anything, does this tell us about public-employee pensions?

One might be tempted to discount the significance of this case because it involves entirely private contracts—the contract between the policyholder and his insurance company—and we know that the Supreme Court is more deferential (and thus far more likely to uphold the statute) when private contracts are at issue. But note that the question of deference doesn’t come in until the back end of the inquiry when the court asks whether the substantial impairment was reasonably necessary to advance the state’s legitimate purpose. Here, they didn’t even get to that step: the court dismissed the claim at step 1, the existence of a substantial impairment, where deference shouldn’t matter.

So if a state seeks to alter public-employee pensions, there seems to be substantial leeway for the Supreme Court to say that the alteration is valid because the impairment isn’t substantial. (That governs the federal Contract Clause; as noted above, state courts applying their own state constitutional contract clauses are free to take stricter views. California has long applied its own contract clause, under the “California Rule,” in an exceptionally strict way—but even California case law has its escape valves, which, as we saw in a recent post, recent California cases have shown a willingness to exploit.)

There may be some irony here: a strict interpretation of the Contract Clause, whether or not according to its original meaning (as Justice Gorsuch would have it), is often labeled a “conservative” outcome. But as I’ve noted above, these sorts of labels are slippery when it comes to jurisprudence. Who would benefit the most from this “conservative” reading? Public-employee unions, whose position in the pension cases is often labeled a “liberal” position.

It just goes to show that interpretive techniques, if applied fairly, can often help litigants on either side. Just earlier this year, in Bostock v. Clayton County, Justice Gorsuch himself showed how an apparently “conservative” methodology of interpreting Title VII of the Civil Rights Act of 1964—according to the original meaning (in 1964) of the phrase “discriminat[ion] . . . because of  . . . sex”—leads to the apparently “liberal” result of protecting gay and transgender employees. Ironic or not, the “liberal” current understanding of the Contract Clause is likely to help modern-day “fiscally conservative” pension reformers.

Read The Whole Thing.

You can find my other Reason.org articles on antitrust, privatization, and public-employee pensions here.

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Iowa State English Professor Forbids Papers “Against Gay Marriage, Abortion, Black Lives Matter,”

Here is the syllabus (drawn from the Young America’s Foundation story):

The key passage:

GIANT WARNING: any instances of othering that you participate in intentionally (racism, sexism, ableism, homophobia, sorophobia, transphobia, classism, mocking of mental health issues, body shaming, etc) in class are grounds for dismissal from the classroom. The same goes for any papers/projects: you cannot choose any topic that takes at its base that one side doesn’t deserve the same basic human rights as you do (ie: no arguments against gay marriage, abortion, Black Lives Matter, etc). I take this seriously.

Fortunately, Iowa State University takes student academic freedom seriously, too, at least to the point of issuing this statement (which I’ve confirmed with the University itself):

The syllabus statement as written was inconsistent with the university’s standards and its commitment to the First Amendment rights of students. After reviewing this issue with the faculty member, the syllabus has been corrected to ensure it is consistent with university policy. Moreover, the faculty member is being provided additional information regarding the First Amendment policies of the university.

Iowa State is firmly committed to protecting the First Amendment rights of its students, faculty, and staff. With respect to student expression in the classroom, including the completion of assignments, the university does not take disciplinary action against students based on the content or viewpoints expressed in their speech.

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The Supreme Court’s Refusal to Reinvigorate the Contract Clause

Last week I posted about two recent California Supreme Court decisions surprisingly upholding public-employee pension reform. To go with that post, I have another post elsewhere on the Reason site, about the Supreme Court’s 2018 Contract Clause decision in Sveen v. Melin. Here’s a snippet:

Today, the conservative Supreme Court majority seems even more entrenched than it previously had been. True, no Democratic appointee has been replaced by a Republican appointee in the past 29 years (in fact, the opposite has happened), but moderate Republican appointees have been replaced by arguably less moderate ones: Chief Justice John Roberts, and Justices Samuel Alito, Neil Gorsuch, and Brett Kavanaugh, as a whole, are probably more conservative than Justices William Rehnquist, Sandra Day O’Connor, Antonin Scalia, and Anthony Kennedy (though concepts like “conservative” are admittedly slippery when it comes to various aspects of judicial philosophy).

But, if we wanted to read the tea leaves as to whether a new revival of the Contract Clause was in the works, so far we wouldn’t find any indication of a substantial change. After decades of silence, the Supreme Court finally decided a Contract Clause case in 2018—Sveen v. Melin. And, by an 8–1 vote, the court rebuffed the Contract Clause claim. Sveen has nothing to do with public-employee pensions and isn’t even a case about state governments trying to abrogate their own contracts, but in the absence of better tea leaves, it’s the best clue we have to the current Supreme Court’s thinking about the Contract Clause.

. . .

What, if anything, does this tell us about public-employee pensions?

One might be tempted to discount the significance of this case because it involves entirely private contracts—the contract between the policyholder and his insurance company—and we know that the Supreme Court is more deferential (and thus far more likely to uphold the statute) when private contracts are at issue. But note that the question of deference doesn’t come in until the back end of the inquiry when the court asks whether the substantial impairment was reasonably necessary to advance the state’s legitimate purpose. Here, they didn’t even get to that step: the court dismissed the claim at step 1, the existence of a substantial impairment, where deference shouldn’t matter.

So if a state seeks to alter public-employee pensions, there seems to be substantial leeway for the Supreme Court to say that the alteration is valid because the impairment isn’t substantial. (That governs the federal Contract Clause; as noted above, state courts applying their own state constitutional contract clauses are free to take stricter views. California has long applied its own contract clause, under the “California Rule,” in an exceptionally strict way—but even California case law has its escape valves, which, as we saw in a recent post, recent California cases have shown a willingness to exploit.)

There may be some irony here: a strict interpretation of the Contract Clause, whether or not according to its original meaning (as Justice Gorsuch would have it), is often labeled a “conservative” outcome. But as I’ve noted above, these sorts of labels are slippery when it comes to jurisprudence. Who would benefit the most from this “conservative” reading? Public-employee unions, whose position in the pension cases is often labeled a “liberal” position.

It just goes to show that interpretive techniques, if applied fairly, can often help litigants on either side. Just earlier this year, in Bostock v. Clayton County, Justice Gorsuch himself showed how an apparently “conservative” methodology of interpreting Title VII of the Civil Rights Act of 1964—according to the original meaning (in 1964) of the phrase “discriminat[ion] . . . because of  . . . sex”—leads to the apparently “liberal” result of protecting gay and transgender employees. Ironic or not, the “liberal” current understanding of the Contract Clause is likely to help modern-day “fiscally conservative” pension reformers.

Read The Whole Thing.

You can find my other Reason.org articles on antitrust, privatization, and public-employee pensions here.

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Florida Inmates Serving Outdated Drug Sentences Released Early Following Reason Investigation

florida-lowell-prison

Calling it a “matter of fundamental fairness,” prosecutors in Broward County, Florida, have cut deals for the early releases of 23 inmates who were serving outdated mandatory minimum sentences for opioid trafficking, including two people whose cases were profiled by Reason in a 2017 investigation.

Among those released was Cynthia Powell, who received a 25-year mandatory minimum sentence for selling a bottle of pills to an undercover police officer in 2003. Powell, a 40-year-old grandmother with no criminal record, had been set up by a confidential informant. She was the main subject of Reason‘s investigation, which showed that Florida’s harsh opioid laws had more often than not been used to hammer low-level and first-time offenders rather than drug kingpins.

In 2014, the Florida legislature raised the thresholds to trigger mandatory minimum sentences for opioid trafficking, but those changes were not retroactive, meaning hundreds of Florida inmates like Powell and James Caruso were left in prison to serve out sentences far longer than those if they had been convicted under the current laws.

“Under the new law I would be subject to a seven-year prison term and [a] $100,000 fine,” Caruso wrote in a letter to Reason from prison in 2017. “I have served more than twice that and owe five-times the fine. A person in Florida could literally do the exact same thing today that I did in 2002 and still get out of prison before me…And if you believe the police reports, I was just a lookout.”

Both Powell and Caruso, whose case was not handled by the Broward State Attorney, were released early last month. The Miami New Times reports that the Broward State Attorney’s office reached out to the Innocence Project of Florida to help review the cases.

“We thought it was a matter of fundamental fairness to initiate a review of those cases and reduce the sentences where appropriate,” Broward County chief assistant state attorney Jeff Marcus told the New Times. “The problem with these sentences was that it did not take much for pill cases to reach mandatory levels. So you can have a couple of bottles of prescription pills and be up to 15 years in prison, and that is just too much. We follow the law, but sometimes the laws have been too tough, as they were in the past. This is an opportunity to correct that.”

Greg Newburn, the Florida policy director of FAMM, a criminal justice advocacy group that opposes mandatory minimum sentences and featured Powell’s case on its website, applauded the releases but said a legislative fix is still needed.

“We couldn’t be happier that Cynthia has been given the second chance she deserves. It should have come much sooner,” Newburn says. “Now, the legislature should make the 2014 sentencing reforms retroactive so other deserving people can be freed, as well.”

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Florida Inmates Serving Outdated Drug Sentences Released Early Following Reason Investigation

florida-lowell-prison

Calling it a “matter of fundamental fairness,” prosecutors in Broward County, Florida, have cut deals for the early releases of 23 inmates who were serving outdated mandatory minimum sentences for opioid trafficking, including two people whose cases were profiled by Reason in a 2017 investigation.

Among those released was Cynthia Powell, who received a 25-year mandatory minimum sentence for selling a bottle of pills to an undercover police officer in 2003. Powell, a 40-year-old grandmother with no criminal record, had been set up by a confidential informant. She was the main subject of Reason‘s investigation, which showed that Florida’s harsh opioid laws had more often than not been used to hammer low-level and first-time offenders rather than drug kingpins.

In 2014, the Florida legislature raised the thresholds to trigger mandatory minimum sentences for opioid trafficking, but those changes were not retroactive, meaning hundreds of Florida inmates like Powell and James Caruso were left in prison to serve out sentences far longer than those if they had been convicted under the current laws.

“Under the new law I would be subject to a seven-year prison term and [a] $100,000 fine,” Caruso wrote in a letter to Reason from prison in 2017. “I have served more than twice that and owe five-times the fine. A person in Florida could literally do the exact same thing today that I did in 2002 and still get out of prison before me…And if you believe the police reports, I was just a lookout.”

Both Powell and Caruso, whose case was not handled by the Broward State Attorney, were released early last month. The Miami New Times reports that the Broward State Attorney’s office reached out to the Innocence Project of Florida to help review the cases.

“We thought it was a matter of fundamental fairness to initiate a review of those cases and reduce the sentences where appropriate,” Broward County chief assistant state attorney Jeff Marcus told the New Times. “The problem with these sentences was that it did not take much for pill cases to reach mandatory levels. So you can have a couple of bottles of prescription pills and be up to 15 years in prison, and that is just too much. We follow the law, but sometimes the laws have been too tough, as they were in the past. This is an opportunity to correct that.”

Greg Newburn, the Florida policy director of FAMM, a criminal justice advocacy group that opposes mandatory minimum sentences and featured Powell’s case on its website, applauded the releases but said a legislative fix is still needed.

“We couldn’t be happier that Cynthia has been given the second chance she deserves. It should have come much sooner,” Newburn says. “Now, the legislature should make the 2014 sentencing reforms retroactive so other deserving people can be freed, as well.”

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A Florida Deputy Threatens To Show ‘What Fucking Freedom of Speech Is’ During an Arrest

Palm Beach deputy

A Florida deputy is on administrative leave, thanks to a video of him telling a teenager as he arrests him that he’ll show him “what fucking freedom of speech is.”

The exchange occurred between Charles Rhoads of the Palm Beach County Sheriff’s Office and 19-year-old Kevin Wygant.

Civil rights attorney Ben Crump tweeted a short clip of an exchange between Wygant and Rhoads.

The video begins in the middle of the encounter between Wygant and Rhoads, with Wygant saying, “Yes, I do have the freedom of speech,” while his hands and cuffed behind his back. (It’s unclear what this is in response to.)

Rhoads grabs the back of Wygant’s shirt, pushes him up against a wall, and says “I’ll show you what fucking freedom of speech is” against Wygant’s ear.

When the people recording the interview voice their opposition to Rhoads’ behavior, Rhoads turns and uses an expletive in an attempt to have them removed from the area.

According to the sheriff’s office, the incident began with a Wellington restaurant manager contacting the authorities to remove two individuals who refused to leave the establishment. Without providing any additional information, the statement states that Wygant was arrested for trespassing, disorderly intoxication, resisting without violence, and obstruction, while the second individual was arrested for trespassing. WPTV reports that deputies asked Wygant to leave the restaurant several times and that he was arrested after ignoring their warnings and returning.

Wygant, however, says there’s more to the story. In an interview with the South Florida Sun-Sentinel, he claimed that he was attempting to defuse a fight when the deputies arrived. According to Wygant, he was initially told that he was allowed to leave but the deputies changed their mind, and that’s when he was arrested for trespassing.

Rhoads has been placed on administrative leave pending an internal investigation. 

Sheriff Ric Bradshaw said of the incident, “I DO NOT condone this behavior and take this matter very seriously.” Though Bradshaw similarly did not name Rhoads in the statement, he reiterated that the deputy was placed on administrative leave pending an internal investigation.

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A Florida Deputy Threatens To Show ‘What Fucking Freedom of Speech Is’ During an Arrest

Palm Beach deputy

A Florida deputy is on administrative leave, thanks to a video of him telling a teenager as he arrests him that he’ll show him “what fucking freedom of speech is.”

The exchange occurred between Charles Rhoads of the Palm Beach County Sheriff’s Office and 19-year-old Kevin Wygant.

Civil rights attorney Ben Crump tweeted a short clip of an exchange between Wygant and Rhoads.

The video begins in the middle of the encounter between Wygant and Rhoads, with Wygant saying, “Yes, I do have the freedom of speech,” while his hands and cuffed behind his back. (It’s unclear what this is in response to.)

Rhoads grabs the back of Wygant’s shirt, pushes him up against a wall, and says “I’ll show you what fucking freedom of speech is” against Wygant’s ear.

When the people recording the interview voice their opposition to Rhoads’ behavior, Rhoads turns and uses an expletive in an attempt to have them removed from the area.

According to the sheriff’s office, the incident began with a Wellington restaurant manager contacting the authorities to remove two individuals who refused to leave the establishment. Without providing any additional information, the statement states that Wygant was arrested for trespassing, disorderly intoxication, resisting without violence, and obstruction, while the second individual was arrested for trespassing. WPTV reports that deputies asked Wygant to leave the restaurant several times and that he was arrested after ignoring their warnings and returning.

Wygant, however, says there’s more to the story. In an interview with the South Florida Sun-Sentinel, he claimed that he was attempting to defuse a fight when the deputies arrived. According to Wygant, he was initially told that he was allowed to leave but the deputies changed their mind, and that’s when he was arrested for trespassing.

Rhoads has been placed on administrative leave pending an internal investigation. 

Sheriff Ric Bradshaw said of the incident, “I DO NOT condone this behavior and take this matter very seriously.” Though Bradshaw similarly did not name Rhoads in the statement, he reiterated that the deputy was placed on administrative leave pending an internal investigation.

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