College Title IX Official Orders Student Newspaper To Turn Over Unpublished Videos

Journalists often use public records laws to compel public agencies to hand over information. But in California, a public community college is trying to use the records law to obtain information from student journalists.

On May 23, Gloria Chavez, Southwestern College’s Title IX director, instructed The Sun—the campus student newspaper—to surrender an unpublished video of a May 2 student government meeting.

The meeting in question was tense, according to The Sun‘s reporting. The Associated Student Organization has two political parties: “Team Elite,” which is comprised of black students, and “Team Green,” which is comprised of Latinx students. They do not get along; in fact, members of Team Elite had allegedly threatened in an Instagram post to “chop the heads off of the euro-centrist white supremacist mexicans of the campus.” Black students claim the post was fake, and engineered by Team Green to rally their supporters. University President Kindred Murillo ultimately decided to cancel the election.

Two weeks later, Chavez asked The Sun‘s faculty advisor to send her video footage allegedly recorded by Sun reporters.

The advisor, David Washburn, refused to do so. “I’ve been informed by an attorney specializing in open records law that these records are exempt from disclosure under California Government Code section 6254(k),” he wrote in a letter.

Not to be deterred, Chavez submitted a second request, this time arguing that The Sun was part of the college, and thus a government agency obligated to comply with the state’s public records law.

The Foundation for Individual Rights in Education strongly disagrees.

“Many organizations receive government support of some sort, whether through funding, tax credits, or other benefits, but that doesn’t make them government actors,” Adam Steinbaugh, an attorney at FIRE, told Reason. “Student journalists are journalists, and their outlets are supposed to serve as a check on—not an agent of—the college’s administration.”

In a letter to Chavez, Steinbaugh argued that The Sun is a separate entity from the college.

“Just as not every student is a state actor by virtue of being granted admission to a public college, not every entity within a college’s community is a state agency subject,” he wrote.

Chavez did not respond to a request for comment. My guess is that she thinks her job—investigating and preventing discrimination and harassment—obligates her to seek this potential evidence of students behaving badly. But being a Title IX official is not a trump card, and student journalists should generally be free from administrative imposition.

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College Title IX Official Orders Student Newspaper To Turn Over Unpublished Videos

Journalists often use public records laws to compel public agencies to hand over information. But in California, a public community college is trying to use the records law to obtain information from student journalists.

On May 23, Gloria Chavez, Southwestern College’s Title IX director, instructed The Sun—the campus student newspaper—to surrender an unpublished video of a May 2 student government meeting.

The meeting in question was tense, according to The Sun‘s reporting. The Associated Student Organization has two political parties: “Team Elite,” which is comprised of black students, and “Team Green,” which is comprised of Latinx students. They do not get along; in fact, members of Team Elite had allegedly threatened in an Instagram post to “chop the heads off of the euro-centrist white supremacist mexicans of the campus.” Black students claim the post was fake, and engineered by Team Green to rally their supporters. University President Kindred Murillo ultimately decided to cancel the election.

Two weeks later, Chavez asked The Sun‘s faculty advisor to send her video footage allegedly recorded by Sun reporters.

The advisor, David Washburn, refused to do so. “I’ve been informed by an attorney specializing in open records law that these records are exempt from disclosure under California Government Code section 6254(k),” he wrote in a letter.

Not to be deterred, Chavez submitted a second request, this time arguing that The Sun was part of the college, and thus a government agency obligated to comply with the state’s public records law.

The Foundation for Individual Rights in Education strongly disagrees.

“Many organizations receive government support of some sort, whether through funding, tax credits, or other benefits, but that doesn’t make them government actors,” Adam Steinbaugh, an attorney at FIRE, told Reason. “Student journalists are journalists, and their outlets are supposed to serve as a check on—not an agent of—the college’s administration.”

In a letter to Chavez, Steinbaugh argued that The Sun is a separate entity from the college.

“Just as not every student is a state actor by virtue of being granted admission to a public college, not every entity within a college’s community is a state agency subject,” he wrote.

Chavez did not respond to a request for comment. My guess is that she thinks her job—investigating and preventing discrimination and harassment—obligates her to seek this potential evidence of students behaving badly. But being a Title IX official is not a trump card, and student journalists should generally be free from administrative imposition.

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Utah Karaoke and Ax-Throwing Bars Are Using Pool Tables To Circumvent Stupid Liquor Laws

Utah businesses are adding a lot more pool tables these days, but it’s not to handle a sudden spike in pool sharks and billiards enthusiasts. Instead, resourceful business owners are trying to circumvent the state’s restrictive liquor laws.

A new Utah law that went into effect on May 14 allows only certain types of recreational facilities to serve alcohol on their premises. Neither karaoke bars nor ax-throwing joints made the cut.

As Deseret News reports, Utah law previously defined “a recreational amenity as a billiard parlor, bowling alley, golf course, miniature golf, golf driving range, tennis club, sports arena, concert venue or ‘substantially similar’ activity.” However, in the law that went into effect in May, the phrase “substantially similar” was removed. That means only establishments offering one of the listed recreations may be able to obtain a license to serve alcohol. 

In May, recreational ax-throwing company Social Axe added two pool tables and a billiards table on their premises to meet the requirements of the new law. 

Heart and Seoul, a Utah karaoke bar, hauled in two pool tables and added signs on doors to make customers aware of their existence. Brody Horton, co-owner of Heart and Seoul, told the Utah Department of Alcoholic Beverage Control in a meeting “we are now a karaoke and billiards hall.”

Both companies had applied for and been denied alcohol licenses in April. After seeing Social Axe’s solution, Heart and Seoul followed suit.

As The Salt Lake Tribune notes, Heart and Seoul had initially argued that karaoke was substantially similar to listed activities like mini golf, bowling, and billiards. When its alcohol license request was denied, Janelle Bauer, Heart and Seoul’s attorney, told the Tribune that the ruling was “arbitrary and capricious.”

Utah Department of Alcoholic Beverage Control Commissioner Jacquelyn Orton said at a May meeting that she believed Social Axe had, “gone above and beyond to show good faith to comply with the intent of the legislature.” 

But Commissioner Thomas Jacobsen worried about the precedent that would be set by allowing a karaoke bar to obtain an alcohol license, suggesting it may pave the way for alcoholic drinks to be served with“all kinds of other activity—like a reading club.” When Social Axe was granted its license, Jacobsen was the lone dissenting vote. 

Commissioner Amanda Smith, meanwhile, was worried about the consequences of nitpicking the statute and wants to broaden the requirements once again. “I hope there are people who are looking at redoing the statute and getting rid of the enumeration,” she said, “because who knows what recreation is going to look like in the future.”

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Utah Karaoke and Ax-Throwing Bars Are Using Pool Tables To Circumvent Stupid Liquor Laws

Utah businesses are adding a lot more pool tables these days, but it’s not to handle a sudden spike in pool sharks and billiards enthusiasts. Instead, resourceful business owners are trying to circumvent the state’s restrictive liquor laws.

A new Utah law that went into effect on May 14 allows only certain types of recreational facilities to serve alcohol on their premises. Neither karaoke bars nor ax-throwing joints made the cut.

As Deseret News reports, Utah law previously defined “a recreational amenity as a billiard parlor, bowling alley, golf course, miniature golf, golf driving range, tennis club, sports arena, concert venue or ‘substantially similar’ activity.” However, in the law that went into effect in May, the phrase “substantially similar” was removed. That means only establishments offering one of the listed recreations may be able to obtain a license to serve alcohol. 

In May, recreational ax-throwing company Social Axe added two pool tables and a billiards table on their premises to meet the requirements of the new law. 

Heart and Seoul, a Utah karaoke bar, hauled in two pool tables and added signs on doors to make customers aware of their existence. Brody Horton, co-owner of Heart and Seoul, told the Utah Department of Alcoholic Beverage Control in a meeting “we are now a karaoke and billiards hall.”

Both companies had applied for and been denied alcohol licenses in April. After seeing Social Axe’s solution, Heart and Seoul followed suit.

As The Salt Lake Tribune notes, Heart and Seoul had initially argued that karaoke was substantially similar to listed activities like mini golf, bowling, and billiards. When its alcohol license request was denied, Janelle Bauer, Heart and Seoul’s attorney, told the Tribune that the ruling was “arbitrary and capricious.”

Utah Department of Alcoholic Beverage Control Commissioner Jacquelyn Orton said at a May meeting that she believed Social Axe had, “gone above and beyond to show good faith to comply with the intent of the legislature.” 

But Commissioner Thomas Jacobsen worried about the precedent that would be set by allowing a karaoke bar to obtain an alcohol license, suggesting it may pave the way for alcoholic drinks to be served with“all kinds of other activity—like a reading club.” When Social Axe was granted its license, Jacobsen was the lone dissenting vote. 

Commissioner Amanda Smith, meanwhile, was worried about the consequences of nitpicking the statute and wants to broaden the requirements once again. “I hope there are people who are looking at redoing the statute and getting rid of the enumeration,” she said, “because who knows what recreation is going to look like in the future.”

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A Brief History of Kamala Harris’ Answers About Whether She Would Ban Private Health Insurance

Sen. Kamala Harris (D–Calif.) is definitely against abolishing private health insurance. Unless she’s for it. She’s probably against it, though. Maybe.

The Democratic presidential hopeful has a topsy-turvy history when it comes to her plan for government-run health care, having seemingly changed her mind more than once on whether private insurance companies would be permitted to operate under her version of a Medicare for All proposal.

During her time in the Senate, Harris co-sponsored the public option spearheaded by Sen. Brian Schatz (D–Hawaii), as well as the “Medicare X” plan championed by Sens. Tim Kaine (D–Va.) and Michael Bennet (D–Colo.)—all of whom would preserve the private insurance industry in some form. But she also put her weight behind the health care bill introduced by Sen. Bernie Sanders (I–Vt.)—who is seeking to eradicate for-profit insurers—casting doubt on what Harris herself would do if elected president.

As she told Jake Tapper in January during a CNN town hall:

The idea is that everyone gets access to medical care and you don’t have to go through the process of going through an insurance company, having them give you approval, going through all the paperwork, all of the delay that may require. Who of us have not had that situation where you have to wait for approval and the doctor says, ‘I don’t know if your insurance company is going to cover this.’

Let’s eliminate all of that. Let’s move on.

But the candidate walked back those comments the next day after a barrage of critics warned that such a move would throw the health care market—and her hopes for the presidency—into chaos. According to CNN, Harris’ national press secretary, Ian Sams, “signaled that the candidate would also be open to the more moderate health reform plans, which would preserve the industry, being floated by other congressional Democrats.”

But then Sams muddied the waters once more:

Medicare-for-all is the plan that she believes will solve the problem and get all Americans covered. Period. She has co-sponsored other pieces of legislation that she sees as a path to getting us there, but this is the plan she is running on.

At the second Democratic debate Thursday night, Harris was one of two candidates to raise her hand when asked if she would extinguish private insurers. She shared an anecdote:

We have to think about how this affects real people. And the reality of how this affects real people is captured in a story that many of us heard and I will paraphrase. There is on any night in America, a parent who has seen their child has a temperature that is out of control and calls 911, what should I do? Take the child to the emergency room. They get in their car and they drive and they are sitting in the parking lot outside of the emergency room looking at the sliding glass doors with their hand on the forehead of their child knowing if they walk through the sliding glass doors even though they have insurance, they will be out a $5,000 deductible when they walk through the doors. That’s what insurance companies are doing! Only in America today.

But Friday morning, she sought to clarify that position again on Morning Joe, telling viewers that she had misheard the question:

No, no, I do not [support that]. I am a proponent of Medicare for All. Private insurance will exist for supplemental coverage.

Glad we got that cleared up.

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A Brief History of Kamala Harris’ Answers About Whether She Would Ban Private Health Insurance

Sen. Kamala Harris (D–Calif.) is definitely against abolishing private health insurance. Unless she’s for it. She’s probably against it, though. Maybe.

The Democratic presidential hopeful has a topsy-turvy history when it comes to her plan for government-run health care, having seemingly changed her mind more than once on whether private insurance companies would be permitted to operate under her version of a Medicare for All proposal.

During her time in the Senate, Harris co-sponsored the public option spearheaded by Sen. Brian Schatz (D–Hawaii), as well as the “Medicare X” plan championed by Sens. Tim Kaine (D–Va.) and Michael Bennet (D–Colo.)—all of whom would preserve the private insurance industry in some form. But she also put her weight behind the health care bill introduced by Sen. Bernie Sanders (I–Vt.)—who is seeking to eradicate for-profit insurers—casting doubt on what Harris herself would do if elected president.

As she told Jake Tapper in January during a CNN town hall:

The idea is that everyone gets access to medical care and you don’t have to go through the process of going through an insurance company, having them give you approval, going through all the paperwork, all of the delay that may require. Who of us have not had that situation where you have to wait for approval and the doctor says, ‘I don’t know if your insurance company is going to cover this.’

Let’s eliminate all of that. Let’s move on.

But the candidate walked back those comments the next day after a barrage of critics warned that such a move would throw the health care market—and her hopes for the presidency—into chaos. According to CNN, Harris’ national press secretary, Ian Sams, “signaled that the candidate would also be open to the more moderate health reform plans, which would preserve the industry, being floated by other congressional Democrats.”

But then Sams muddied the waters once more:

Medicare-for-all is the plan that she believes will solve the problem and get all Americans covered. Period. She has co-sponsored other pieces of legislation that she sees as a path to getting us there, but this is the plan she is running on.

At the second Democratic debate Thursday night, Harris was one of two candidates to raise her hand when asked if she would extinguish private insurers. She shared an anecdote:

We have to think about how this affects real people. And the reality of how this affects real people is captured in a story that many of us heard and I will paraphrase. There is on any night in America, a parent who has seen their child has a temperature that is out of control and calls 911, what should I do? Take the child to the emergency room. They get in their car and they drive and they are sitting in the parking lot outside of the emergency room looking at the sliding glass doors with their hand on the forehead of their child knowing if they walk through the sliding glass doors even though they have insurance, they will be out a $5,000 deductible when they walk through the doors. That’s what insurance companies are doing! Only in America today.

But Friday morning, she sought to clarify that position again on Morning Joe, telling viewers that she had misheard the question:

No, no, I do not [support that]. I am a proponent of Medicare for All. Private insurance will exist for supplemental coverage.

Glad we got that cleared up.

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L.A.’s Bus Riders Are Suffering. Rail Spending Is to Blame.

While Democrats spar over busing policy from the 1970s on the debate stage, transit riders in contemporary America are seeing their bus service slashed to pay for light rail they don’t use. Yesterday, the Los Angeles Times ran a story on the transportation woes of transit users in Los Angeles County, who are spending more and more of their time riding or waiting for the bus.

“On the bus, I just can’t get from Point A to Point B whenever I need to go. I hate it,” said one 23-year-old commuter to the Times, saying she can spend up to five hours a day commuting by bus to and from school.

Another woman told the Times that she spends three hours a day on the bus getting to her job as a house cleaner. She says she and her husband are saving to buy a car.

L.A.’s bus problems are more than anecdotal. Over the past decade, ridership and service levels have dropped dramatically.

Since a recent 2007 peak, Los Angeles’ transit agency, Metro, has cut bus service by 21 percent (as measured by revenue-miles, the distance covered by buses while they’re out picking up passengers), while simultaneously raising fares, according to a report published by the Reason Foundation (the nonprofit that also publishes Reason). Trips taken on buses have fallen in the same period by 32 percent.

The Times, citing data analyzed by UCLA, reports that average bus speeds have fallen 12.5 percent over the last 25 years.

The reason for the decline is Metro’s prioritization of rail transit over buses, says Baruch Feigenbaum, a transportation policy expert with the Reason Foundation.

“The board members, who are political creatures, of L.A. Metro are very interested in building rail lines, and not particularly interested in building bus service,” says Feigenbaum. “Even though by many, many metrics, the bus service outperforms the rail, they are building rail and cutting bus service.”

Since 1985, Metro has spent $25 billion building a rail transit system that now performs 110 million trips a year. At the same time bus ridership has fallen by nearly 220 million trips a year, dragging down overall transit ridership by 21 percent since 1985.

As of last year, even rail ridership has been declining despite Metro continuing to open new rail line extensions. The aforementioned Reason Foundation report notes how Metro has consistently shuffled discretionary money it could have spent on its bus service to fund the construction of new rail lines.

Metro’s cutting of bus service and prioritization of rail is not new. Indeed, it was the subject of a major anti-discrimination lawsuit filed by aggrieved bus riders against the transit agency back in the 1990s.

The result of that lawsuit was a 1996 consent decree that required Metro to increase bus service and cut fares. Metro ridership increased 36 percent during the 11 years the consent decree was in effect. Nearly 60 percent of that increased ridership was on buses.

However, in 2007 the consent decree lapsed. Metro subsequently raised fares and bus cut service, resulting in the hellish commutes bus riders in yesterday’s Times must suffer through.

Metro’s preference for rail doesn’t just harm bus riders. Taxpayers are also being thrown under the late, overcrowded bus. It costs the transit agency $4.54 in subsidies for each unlinked trip taken on a bus, compared to the $25.74 Metro spends subsidizing each unlinked rail trip.

Far from learning from its past mistakes of prioritizing rail over bus service, Metro and Los Angeles politicians appear to be doubling down on this failed approach. Metro’s ’28 by 28′ plan to finish 28 transit projects by the start of the 2028 Olympics includes 13 rail transit expansions, compared to 5 bus-related projects.

Metro’s prioritization of new rail lines over old buses is even catching criticism from transit advocates.

“When Metro marshals its might to build shiny new capital projects, it sucks the remaining air out of the room. In turn, buses get older, less reliable, less frequent,” wrote Joe Linton of Streetsblog in reference to the 28 by 28 plan.

Unlike bus service, which is efficient but boring, rail offers politicians unbeatable ribbon-cutting opportunities, says Feigenbaum.

“A new light rail project is something sexy you can point to and say constituents I delivered this to you,” he says, adding that rail also dovetails with other policy objections officials might have, like attracting tech workers or spurring economic growth.

Randal O’Toole, a transportation scholar at the Cato Institute, has offered a more cynical explanation for politicians’ preference for expensive rail projects.

“For many politicians, of course, the cost is the benefit,” writes O’Toole in his 2018 book Romance of the Rails. “It means more money to hand out to contractors and suppliers.”

It’s not unheard of in Los Angeles—or any number of other cities—for engineering firms to donate generously to rail transit ballot initiatives, and then ink the contract to build the rail projects authorized by those ballot measures.

Regardless of motivations, the cost of taking money away from buses to subsidize rail is that transit works less well for those who need it the most.

“What this policy does it eliminates mobility for people who need it most,” says Feigenbaum. “Instead of spending resources on folks who have no other way of getting around, we’re spending resources who might like to live near a rail line but who are not going to take it.”

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L.A.’s Bus Riders Are Suffering. Rail Spending Is to Blame.

While Democrats spar over busing policy from the 1970s on the debate stage, transit riders in contemporary America are seeing their bus service slashed to pay for light rail they don’t use. Yesterday, the Los Angeles Times ran a story on the transportation woes of transit users in Los Angeles County, who are spending more and more of their time riding or waiting for the bus.

“On the bus, I just can’t get from Point A to Point B whenever I need to go. I hate it,” said one 23-year-old commuter to the Times, saying she can spend up to five hours a day commuting by bus to and from school.

Another woman told the Times that she spends three hours a day on the bus getting to her job as a house cleaner. She says she and her husband are saving to buy a car.

L.A.’s bus problems are more than anecdotal. Over the past decade, ridership and service levels have dropped dramatically.

Since a recent 2007 peak, Los Angeles’ transit agency, Metro, has cut bus service by 21 percent (as measured by revenue-miles, the distance covered by buses while they’re out picking up passengers), while simultaneously raising fares, according to a report published by the Reason Foundation (the nonprofit that also publishes Reason). Trips taken on buses have fallen in the same period by 32 percent.

The Times, citing data analyzed by UCLA, reports that average bus speeds have fallen 12.5 percent over the last 25 years.

The reason for the decline is Metro’s prioritization of rail transit over buses, says Baruch Feigenbaum, a transportation policy expert with the Reason Foundation.

“The board members, who are political creatures, of L.A. Metro are very interested in building rail lines, and not particularly interested in building bus service,” says Feigenbaum. “Even though by many, many metrics, the bus service outperforms the rail, they are building rail and cutting bus service.”

Since 1985, Metro has spent $25 billion building a rail transit system that now performs 110 million trips a year. At the same time bus ridership has fallen by nearly 220 million trips a year, dragging down overall transit ridership by 21 percent since 1985.

As of last year, even rail ridership has been declining despite Metro continuing to open new rail line extensions. The aforementioned Reason Foundation report notes how Metro has consistently shuffled discretionary money it could have spent on its bus service to fund the construction of new rail lines.

Metro’s cutting of bus service and prioritization of rail is not new. Indeed, it was the subject of a major anti-discrimination lawsuit filed by aggrieved bus riders against the transit agency back in the 1990s.

The result of that lawsuit was a 1996 consent decree that required Metro to increase bus service and cut fares. Metro ridership increased 36 percent during the 11 years the consent decree was in effect. Nearly 60 percent of that increased ridership was on buses.

However, in 2007 the consent decree lapsed. Metro subsequently raised fares and bus cut service, resulting in the hellish commutes bus riders in yesterday’s Times must suffer through.

Metro’s preference for rail doesn’t just harm bus riders. Taxpayers are also being thrown under the late, overcrowded bus. It costs the transit agency $4.54 in subsidies for each unlinked trip taken on a bus, compared to the $25.74 Metro spends subsidizing each unlinked rail trip.

Far from learning from its past mistakes of prioritizing rail over bus service, Metro and Los Angeles politicians appear to be doubling down on this failed approach. Metro’s ’28 by 28′ plan to finish 28 transit projects by the start of the 2028 Olympics includes 13 rail transit expansions, compared to 5 bus-related projects.

Metro’s prioritization of new rail lines over old buses is even catching criticism from transit advocates.

“When Metro marshals its might to build shiny new capital projects, it sucks the remaining air out of the room. In turn, buses get older, less reliable, less frequent,” wrote Joe Linton of Streetsblog in reference to the 28 by 28 plan.

Unlike bus service, which is efficient but boring, rail offers politicians unbeatable ribbon-cutting opportunities, says Feigenbaum.

“A new light rail project is something sexy you can point to and say constituents I delivered this to you,” he says, adding that rail also dovetails with other policy objections officials might have, like attracting tech workers or spurring economic growth.

Randal O’Toole, a transportation scholar at the Cato Institute, has offered a more cynical explanation for politicians’ preference for expensive rail projects.

“For many politicians, of course, the cost is the benefit,” writes O’Toole in his 2018 book Romance of the Rails. “It means more money to hand out to contractors and suppliers.”

It’s not unheard of in Los Angeles—or any number of other cities—for engineering firms to donate generously to rail transit ballot initiatives, and then ink the contract to build the rail projects authorized by those ballot measures.

Regardless of motivations, the cost of taking money away from buses to subsidize rail is that transit works less well for those who need it the most.

“What this policy does it eliminates mobility for people who need it most,” says Feigenbaum. “Instead of spending resources on folks who have no other way of getting around, we’re spending resources who might like to live near a rail line but who are not going to take it.”

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Short Circuit: A Roundup of Recent Federal Court Decisions

Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

This week, by a 7–2 margin, the Supreme Court struck down a Tennessee law that prohibited newcomers (like IJ clients Doug and Mary Ketchum) from obtaining a retail liquor license until they’d resided in the state for two years. Moreover, the law also barred newcomers from renewing their license (which must be done annually) until they’d resided in the state for 10 years. Yup, you could get a license after two years, but then it would lapse for seven years. Lame! The law served only to protect existing liquor stores from competition, and indeed a private association of liquor retailers, rather than the state AG, defended the law at the high court. Click here to read more.

  • 42 U.S.C. § 7545(a)(2) would be a run-of-the-mill subsection of the Energy Independence and Security Act of 2007. Except that it doesn’t exist. Which is a problem because Congress mandates that the EPA periodically review the Act’s mandates, including the requirements of the nonexistent section (a)(2). EPA (2017): Our legal opinion is we should just ignore that section. D.C. Circuit: We don’t have jurisdiction to review that mere legal opinion.
  • As winged pigs passed overhead, Satan pulled on a cardigan, grabbed a mug of hot cocoa, and settled in to read this First Circuit opinion, in which a prosecutor is denied absolute immunity for withholding exculpatory evidence.
  • Plaistow, N.H. man misses mortgage payment; following a loan servicing rep’s advice, he mails in a check. Alas, the company returns his checks, says it’ll foreclose. He calls the loan rep back, who instructs him to send a cashier’s check. He does so, but the company forecloses anyway. Can he sue Fannie Mae, who appointed the loan servicing company, for service so bad it was tortious? First Circuit: It’s pellucid that Fannie Mae (a sorta gov’t instrumentality) cannot be liable for the unauthorized misdeeds of its agents, so his case is defenestrated.
  • Does the label “Diet Coke” (and the use of fit models in advertising) mislead consumers (in violation of New York law) into thinking the drink will assist in weight loss or at least not cause weight gain? The Second Circuit says no (and same deal with the same attorneys’ recent claims against Pepsi and Dr. Pepper). “Diet” means contains fewer calories than non-diet, and Diet Coke doesn’t have any calories.
  • In a brief order Tuesday, the Fourth Circuit remanded a case about the inclusion of a citizenship question on the 2020 census back to district court in Maryland. The district court case will go forward because of newly discovered evidence about whether the citizenship question was unconstitutionally intended to shift political power to white voters. (On Thursday, the U.S. Supreme Court reached a compromise holding in a parallel case: Although the government has the authority to ask the question, it needs to better explain its decision to do so. The Maryland case should be able to continue after the Supreme Court’s ruling.)
  • Allegation: Memphis police don’t take the investigation of sex assaults as seriously as other violent crimes. Over several decades, police declined to test over 15,000 rape kits, resulting in spoliation. Sixth Circuit (over a dissent): The city unreasonably delayed discovery and didn’t produce evidence that could allow plaintiffs to succeed on their equal protection claim. The case should not have been dismissed.
  • Polk County, Wisc. corrections officer sexually assaults two female inmates over three years. (He’s sentenced to 30 years.) Jury: For which the county is liable. Pay each woman $2 mil. Seventh Circuit: Reversed. The officer went to some lengths to conceal his misconduct; no reasonable jury could believe corrections officials were deliberately indifferent to the risk of such assaults. Dissent: Officials didn’t punish prior sexually predatory behavior by a different officer; the jury’s verdict’s is not so unreasonable.
  • Despite taking 12 depositions, making 294 document requests, and filing three motions to compel, Illinois attorney has literally no admissible evidence with which to defend against summary judgment. Yet defend he does. Without complying with the local rules. With papers the district court deems “laden with disingenuous and misleading statements.” Seventh Circuit: $66k in sanctions is OK with us.
  • Police suspect man sitting in his car is watching kids in Monmouth, Ill. park and masturbating. A search of the car yields contraband. They get a search warrant for his phone, laptop, and camera, which yields child porn. State court: Suppress all the evidence. Officers lacked sufficient justification for ordering him out of the car, among other things. But wait! Three weeks later, the feds seek search warrant based on info from the state’s searches. The man is convicted, gets an 11-year sentence. Seventh Circuit: Conviction affirmed. There’s no evidence the feds knew the state’s evidence had been suppressed.
  • Des Moines, Iowa man films music video with alleged gang members in which a gun is toted, touted. The video is posted on Facebook. Other photos on the man’s Facebook page appear to show him posing with guns and smoking pot. Probable cause to get a warrant for more info from Facebook? Eighth Circuit: Yes, indeed. His conviction for possessing a firearm while being an unlawful user of a controlled substance stands.
  • Atlanta officers have search, arrest warrants for nightclub, but it’s closed when they show up, so they decide to “attack” other commercial properties nearby. Without knocking, they enter what turns out to be a private motorcycle clubhouse (Dirty South Slab Riders) at 4 a.m. and arrest its owner for failing to produce business and alcohol licenses. Georgia court: He didn’t need those licenses. District court: He can sue the officers. Eleventh Circuit: Reversed. The officers could have reasonably believed he did need the licenses. The owner’s claims against the city can still go though.
  • The Colorado Supreme Court has good news and bad news for corporations in the Centennial State. The good news is that corporations are entitled to the Eighth Amendment’s protection against excessive fines. The bad news is that, for fines that accrue daily, excessiveness is based on the amount of the daily fine and not the total amount of fines. Which is unfortunate for a motel owner who learned, after seven years, that he had racked up 1,698 daily fines totaling over $841k for letting his worker’s comp insurance lapse.
  • And in en banc news: Fifth grade teacher at Catholic school needs time off to undergo surgery, chemo for breast cancer. She’s fired. A violation of the Americans With Disabilities Act? District court: No need to answer that. The First Amendment’s ministerial exception excepts the school from the ADA. Ninth Circuit (2018): She’s not a minister. The case should not have been dismissed. Judge Nelson (2019, joined by eight others), dissenting from denial of en banc review: The panel decision exhibits “the very hostility toward religion our Founders prohibited and the Supreme Court has repeatedly instructed us to avoid.”
  • And in cert grant news: IJ is going back to the Big Show next term. In 2015, Montana legislators enacted a tax-credit scholarship program that enables low-income families to send their kids to private schools. (Individuals and businesses who donate to private scholarship organizations are eligible for a $150 tax credit. The scholarship organizations then give the donations to families.) But last year, relying on the state’s “Blaine Amendment” (a relic of 19th-century anti-Catholic bigotry (that 36 other states also still have in their constitutions)), the Montana Supreme Court invalidated the program because it allows families to send their kids to religious schools. Today, the U.S. Supreme Court agreed to consider whether that violates the Establishment Clause, the Free Exercise Clause, or the Equal Protection Clause. Read more here. And check out the cert petition here.

IJ is excited to announce a new opportunity to join the team as a Law and Liberty Fellow at our headquarters in Arlington, Virginia. If you are a rising 3L or recent law graduate and you are interested in a career in litigation and public interest law, this Fellowship is your opportunity to join IJ’s litigation team! IJ is accepting applications through July 15 and will notify all applicants of decisions by the end of August for two-year Fellowships beginning in August 2020. To learn more and apply, click here!

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Can Federal Partisan Gerrymandering Claims be Brought in State Court?

As most readers of this blog likely know, yesterday the Supreme Court held in Rucho v. Common Cause that constitutional claims of “partisan gerrymandering” are “nonjusticiable”—i.e., they are not “properly suited for resolution by the federal courts.” The opinion also notes the other potential legal instruments, such as federal legislation and state constitutions, that might be used to limit gerrymandering abuses.

One thing I have found myself wondering, though: After the Supreme Court’s decisions can state courts still hear federal constitutional claims about partisan gerrymandering? In other words, does Rucho apply to state courts, or only federal courts?

As a doctrinal matter, the question is whether the so-called “political question doctrine” governs state court interpretations of the federal constitution or only federal court interpretations. I was surprised not to find an easy answer to this. On one hand, Justice Rehnquist treated this question as obvious in a concurring opinion he wrote more than forty years ago, saying that “This Court, of course, may not prohibit state courts from deciding political questions, any more than it may prohibit them from deciding questions that are moot, so long as they do not trench upon exclusively federal questions of foreign policy.” Yet I don’t see a Supreme Court case that cleanly resolves this, though I certainly could have missed it and would be happy to know about it.

And on the other hand, the two best articles about the political question doctrine, one by Tara Grove and one by John Harrison, both seems to support application of the doctrine in state court. Grove notes that the predecessor to the modern political question doctrine did apply in state courts and that even now “it is not clear that the current doctrine should be an Article III jurisdictional device.” (N. 313) Harrison concludes more emphatically that “the political doctrine generally in state court.”

The Rucho opinion itself only mentions federal litigation in federal court (forbidden) and state litigation in state court (permitted). It just doesn’t discuss this possibility either way. There is obviously a lot of energy to litigate partisan gerrymandering claims, so after Rucho I wonder if at least some of those litigators will move to state courts and put this question more squarely on the table.

To be sure, it’s possible that there’s no real benefit in bringing federal constitutional claims in a state court. Maybe state constitutions provide just as much (or as little) hope of restraining gerrymandering, and their application would be largely immune from Supreme Court review. But the scope of the federal political question doctrine in state court seems like an important one in any event.

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