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From today’s Vermont Supreme Court majority opinion in Hinkson v. Stevens, written by Justice Beth Robinson and joined by Justices Harold Eaton and Marilyn Skoglund (retired):

Plaintiff [C. Paige Hinkson] lives in Stowe, Vermont with her husband C.D. and their teenage daughter. Plaintiff and C.D. co-founded a business, Transegy, LLC, that provides leadership development and executive coaching. Plaintiff’s office is in her home, and her personal cell phone number is listed as the contact number for the business. C.D. previously worked at a company called Inntopia.

Defendant [Stuart Stevens] lives in Stowe, Vermont. He is a writer, political strategist and media consultant who has a “reputation as an aggressive operator in his professional pursuits.” He is in a romantic relationship with L.S., who also lives in Stowe and has a teenage son who attends high school in the same class as plaintiff’s daughter.

In February 2017, plaintiff’s husband C.D. had a sexual encounter with defendant’s romantic partner L.S., who had been exploring potential employment opportunities with Inntopia. Whether this was a consensual encounter or an act of sexual assault is in dispute. Shortly after the incident, L.S. reported to defendant that C.D. sexually assaulted her. Defendant testified that it was “extraordinarily difficult” for him to see the pain L.S. was in. He saw a therapist to help him understand the experiences of victims of sexual violence and read many books addressing the subject. L.S. filed a sexual-harassment lawsuit against C.D. and Inntopia, which settled in May 2017. As part of the settlement, L.S. signed a nondisclosure agreement. Plaintiff was unaware of L.S.’s allegations and her husband’s infidelity until the lawsuit settled.

In April, before the settlement, plaintiff began receiving numerous calls from a number with no caller ID; the caller hung up if she answered the phone. She installed a program on her cell phone that can “unmask” telephone calls. The evidence at trial showed that between April 2017 and March 2018, defendant called her cell phone twenty-six times from a masked number. Defendant also called C.D.’s cell phone repeatedly during this period. In total, he called or texted plaintiff’s and C.D.’s cell phones a total of 151 times. Many of the phone calls took place in the evening, including calls after ten or eleven p.m….

In June 2017, defendant sent three shipments of books, addressed to C.D., to plaintiff and C.D.’s home address. The first shipment contained a book defendant had written about his father called The Last Season; Missoula: Rape and the Justice System in a College Town by Jon Krakauer; and I Never Called It Rape by Robin Warshaw. The second shipment contained Rape is Rape: How Denial, Distortion, and Victim Blaming Are Fueling a Hidden Acquaintance Rape Crisis by Jody Raphael and a note that read “Hi [C.D.], Enjoy your gift! From [defendant].” The third shipment contained Asking For It: The Alarming Rise of Rape Culture – and What We Can Do About It by Kate Harding.

Plaintiff opened the packages and was disturbed and upset to receive books on the topic of rape and with the word prominently displayed on the covers….

At some time during this period, plaintiff visited a coffee shop in Stowe to meet a friend who was running late. Plaintiff noticed defendant at the coffee shop with two to-go cups and a pastry bag. Rather than leaving, defendant remained in the store and sat two tables away, facing where she was sitting and staring at her. He did not drink the coffee or eat the food he had purchased. Plaintiff estimated that the encounter lasted for many minutes, presumably until her friend arrived.

Numerous articles were published about the sexual-assault allegations, including several by L.S. and defendant himself. In November 2017—when the masked calls to plaintiff’s phone were at their peak—defendant emailed plaintiff an article he had written for the Stowe Reporter entitled “What To Do With Bad Men: Shun Them.” The article was written in the wake of the #MeToo movement. Defendant wrote that he had “seen it in action recently where a man who prominently held himself out as a feminist and community leader has been quietly exposed as a serial assaulter of women.” He argued:

“[W]hat is the right way to react to a man in the community whom you know has hurt women? …

“My view is that the answer is a simple one: Shun these men. Do not allow them to return to normalcy, which is the great sanctuary they seek. Sadly, many spouses are drawn into this deception, used to try to gain sympathy or proof the man must not be ‘that bad.’ This is the path Bill Cosby’s wife has taken and it is not a rare one.”

Shortly after the third party filed the other sexual harassment lawsuit against Inntopia and C.D., L.S. published an article on the Daily Beast website entitled, “The NDA [Non-Disclosure Agreement] Protected Our Predator. I’m Breaking My Silence, Because Women Deserve Better.” The article discusses L.S.’s own lawsuit against C.D. and her support of the third party. Additional articles about both lawsuits followed. The Stowe Reporter has also published several articles about this stalking action.

On June 12, 2018, defendant sent an email to B.A., a friend of plaintiff’s family. The email questioned why B.A. continued to be friends with C.D. in light of the allegations against him. Defendant wrote that he was disappointed that B.A. was going to spend vacation time with C.D. over the summer. Defendant called C.D. a “master manipulator,” a “pathological liar,” and a “predator.” B.A. forwarded the email to plaintiff and C.D. Plaintiff filed the stalking complaint on June 21, 2018, shortly after receiving the forwarded email.

Based on plaintiff’s and B.A.’s testimony, as well as its own observations of plaintiff, the court found that “there can be little doubt as to the emotional distress experienced by [plaintiff]” as a result of defendant’s conduct. Plaintiff told B.A. that she did not feel safe in her home and community, and she testified that she did not eat or sleep well and that her routines had changed. She was emotionally distressed during the hearing and exhibited symptoms of panic during her deposition after being led to believe that defendant had moved closer to her home.

The trial court found defendant’s behavior to be stalking, defined by Vermont statute to mean

… engag[ing] purposefully in a course of conduct [defined as “two or more acts… in which a person follows, monitors, surveils, threatens, or makes threats about another person, or interferes with another person’s property”] directed at a specific person that the person engaging in the conduct knows or should know would cause a reasonable person to:

(A) fear for his or her safety or the safety of a family member; or

(B) suffer substantial emotional distress as evidenced by:

(i) a fear of unlawful sexual conduct, unlawful restraint, bodily injury, or death; or

(ii) significant modifications in the person’s actions or routines ….

The majority reversed, reasoning that,

1. The phone calls were not “monitoring” and thus didn’t count as elements of a stalking course of conduct. “We can imagine a case in which an individual monitors another through these kinds of phone calls—for instance by calling a landline for the purpose of determining whether someone is home. However, the trial court made no findings explaining why defendant’s admittedly obnoxious conduct amounted to ‘monitoring,’ and there is no evidence that this was such a case.” “Consistent with the rule of lenity, we will not expand the definition of monitoring to include other forms of contact with defendant—even forms of contact that were disturbing to plaintiff or to a reasonable person in her situation.”
2. The phone calls did not “constitute[] threats.” “Plaintiff testified that the phone calls made her feel afraid, but she did not testify that she understood defendant to be communicating a threat against her, or what the implied threat would be. Instead, she characterized the calls as ‘harassing’ her…. Although there may be contexts in which repeated masked calls could constitute threats, we conclude that plaintiff failed to show that these masked calls were threats under 12 V.S.A. § 5131(1).”
3. The shipments of books, “which [plaintiffs] refers to as ‘RAPE books,'” were not threats (which the court construed as “refer[ring] to only threats of physical harm”). “Defendant’s sending the books could reasonably be construed as threatening social retribution against C.D. and plaintiff based on C.D.’s alleged sexual misconduct. Such threats may be deeply (and reasonably) disturbing to plaintiff, but cannot constitute predicate acts establishing a course of conduct under the statute. Defendant’s conduct may have been intrusive and bullying, but was not a threat of physical harm.”
4. In particular, the books did not “constitute[] a threat to rape plaintiff.” “Plaintiff’s testimony regarding her fears after receiving the books was as follows: ‘It’s insane. I—I don’t know why he was sending books on rape to our house. I don’t know if it was like a, oh, you had sex with my girlfriend, guess what I’m going to do to your wife. Like, I had no idea. It freaked me out. I was really upset.'” “[T]he context of the deliveries makes that theory implausible…. The evidence … would support a finding that defendant’s aim was to shame and socially ostracize C.D. for his alleged sexual assault of defendant’s partner. It could even support a finding that defendant sought to shame plaintiff and harm her reputation in retaliation for her failing to ‘shun’ C.D. on account of the allegations. But it could not support a finding that the shipments of books expressed an intent to rape or otherwise physically harm plaintiff.”
5. The emails (“one to C.D., one to plaintiff and C.D.’s friend B.A., and one to plaintiff attaching defendant’s article ‘What To Do With Bad Men: Shun Them'”) were not threats of physical harm, either.
6. “Because we conclude that defendant’s emails, shipments of books, and phone calls could not be part of a course of conduct, only one instance of ‘monitoring’ remains—defendant’s act of sitting in a coffee shop and staring at plaintiff. We need not address the parties’ arguments regarding the coffee-shop incident, because a course of conduct must consist of ‘two or more acts.'”

Some state statutes also allow orders to be issued based on repeated unwanted contact with the plaintiff, but the Vermont statute doesn’t.

Chief Justice Paul Reiber, joined by Judge David Howard (retired), dissented, arguing that the stalking injunction statute should be read more broadly, but also arguing that the behavior was monitoring and threatening:

Defendant’s repeated “masked” phone calls, made late in the evening or at night, and within the context of defendant’s other conduct, can reasonably be considered as “monitoring” according to the plain language of the statute. As the majority notes, “monitor” may be defined as “watch[ing], keep[ing] track of, or check[ing] … for [a] special purpose.” Defendant’s actions fit within these definitions. “Monitoring” does not require that defendant effectively pinpointed plaintiff’s physical location, as the majority suggests, and no evidence or findings were necessary to show that defendant’s phone calls enabled him to “track plaintiff’s whereabouts.” …

The majority also holds that the shipments of books to plaintiff’s home were not a threat under the statute, stating that the “trial court did not find that the books were meant to communicate an intent to physically harm plaintiff.” I disagree. The court emphasized how defendant said he had studied “what it must be like to be a woman who had been the victim of sexual assault” and had been told that plaintiff was “going through a tough time” following allegations that her husband had sexually assaulted defendant’s partner. The trial court found that in that context, defendant “would have understood the implicit threat of potential retribution or retaliation that would have been perceived by a woman who received such books at her home.” Although the court’s language was not explicit, the court plainly found that the books were intended to communicate a threat to sexually assault plaintiff in the way that defendant’s partner had been allegedly assaulted….

I also disagree with the majority that only “true threats” are proscribed by the statute…. Regardless, in this case, I would hold that the trial court made a factual finding that defendant communicated a true threat here and that the finding is supported by the record….

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Two weeks ago, I blogged about the Louisiana Supreme Court’s decision that approved a modified diploma privilege. At the time, the Court only had six members. An ad hoc member was added. And the Court sharply divided 4-3. Now, we learn that one of the members of the majority had an obvious conflict of interest. Justice John Weimer’s daughter was a 2020 LSU graduate. Therefore, she is now eligible to receive the diploma privilege her father approved. Justice Weimer did not recuse, or disclose his conflict of interest.

From the Times-Picayune | The Advocate:

In response to written questions that The Times-Picayune | The Advocate sent to the Louisiana Supreme Court, Weimer did not explain directly whether he disclosed his daughter’s situation to his colleagues on the Supreme Court bench before the vote, and there’s no way for the public to know from court records whether he did.

The Supreme Court declined to provide details on any discussions that took place by videoconference among the seven justices that day. But in a statement, Weimer confirmed that his daughter did indeed benefit from the ruling, but said it didn’t matter.

“The July 22 Louisiana Supreme Court Announcement Regarding the 2020 Bar Examination addresses the factors which went into my decision about the bar examination,” Weimer wrote. “I would vote the same had my daughter not been a bar applicant because that was the most prudent decision during the escalating pandemic in Louisiana. I disclosed the fact my daughter is a law school graduate to anyone I spoke to regarding the exam.”

His statement did not say who he spoke to about his daughter, and a Supreme Court spokesman said they had no further comment when asked to clarify the meaning of his statement.

I find this situation very troubling. First, it is unclear whether Weimer asked his colleagues what they thought about his conflict of interest. If there was any doubt, he should have at least broached the issue. Second, I think it is a safe assumption that the other members of the Court would have known that Weimer’s daughter was graduating from law school. That milestone is a big deal, three years in the making. Even if Weimer did not bring up the issue, his colleagues should have recognized the conflict–and addressed it. Third, if the members of the majority knew about the conflict–either from their knowledge about the daughter, or Weimer’s disclosure–did they sign off on Weimer sitting? Keep in mind, the Court was already short-handed. There may have been a concern about adding yet another ad hoc judge. But this is not like the Supreme Court of the United States where it is impossible to add members. The process seems easy enough. Fourth, did Weimer’s colleagues rebuke him privately for failing to disclose that fact in conference? The published dissents did not mention this fact. Fifth, did Weimer’s colleagues rebuke him for failing to disclose the conflict in the written opinion?

Weimer messed up here.

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From Magistrate Judge Barbara D. Holmes’ case management order in a federal case in the Middle District of Tennessee; my guess is that this is becoming boilerplate in that district, and perhaps in others as well:

The Court encourages the parties to carefully consider resolution of this case prior to trial. In addition to all the standard reasons that a resolution is beneficial, the unpredictable impact on the Court’s operations from the coronavirus pandemic is another consideration. Consistent with local and national efforts, the Court has imposed restrictive measures to manage the spread of the virus and limit the potential for illness and death, including restricted, conditional access to the courthouse, postponement of criminal jury trials and other in-court proceedings, postponement of grand jury proceedings, and use of video or telephonic conferencing for critical proceedings. The Court has adopted a phased approach during the pandemic to continue and resume operations. The Court is unable to predict what long-term impact these necessary measures will ultimately have on operations.

The Court notes that it is now ready, willing, and able to hold civil jury trials, subject to changing conditions and with appropriate safety measures in place. However, once criminal trials resume, any scheduled civil jury trial could be forced to give way to a criminal trial.

In light of the uncertain duration of the ongoing COVID-19 pandemic, the number of jury trial that have had to be postponed, the legal imperative to prioritize criminal trials once the Court can hold criminal jury trials again, and the congestion of the Court’s calendar even prior to the pandemic, the Court strongly encourages litigants … in all pending civil cases to intensify their efforts at case resolution as a means by which they can ensure not only certainty of outcome and finality, but also the timing of resolution.

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Zoom University will soon be in session. I suspect many faculties are wrangling with an issue: should students be forced to turn their cameras on during class?

I can see several arguments in favor of requiring students to turn on their cameras. First, if students know they are being watched, they are more likely to stay in one place and pay attention. If cameras are off, students may “listen” to the class while moving around. Second, a professor is better able to gauge a student’s understanding by looking at his or her face. I think facial cues are generally overrated, but some students make it very, very obvious when they are confused. That look of frustration does not come through with an avatar.

Third, the camera helps to ensure integrity of attendance rules. You could imagine a student logs into class, then goes for a walk outside. The camera helps the professor know that the student was seated for the entire class. However, what happens if a student has to go to the bathroom for a minute? If the professor sees an empty chair, should the student be marked absent? I have never cared when students go to the bathroom, but some professors prohibit it, unless the student has a medical excuse. I suppose those same professors could ask a student to sit in front of the computer for the entire class, absent some accommodation.

There are several arguments against requiring students to turn on their cameras. First, and foremost, is privacy. There is no easy way to prevent a Zoom meeting from being recorded. And anything recorded on Zoom can immediately be posted on social media. Some students may not want their voice and image blasted on the internet, for a host of reasons. I suspect that such actions may violate FERPA. As I understand it, class recordings in which a student can be identified is considered an educational recording. Therefore, posting a recording from a class may very well violate federal law, as well as other possible state laws.

Second, students may not wish to have their backgrounds visible to others. I have heard the phrase “space-shaming” used. Some students may have to take a Zoom class from a closet, or in a bathroom, or other environment that is not suitable for sharing. They do not wish to be shamed by their classmates, or worse, a professor who asks “Why are you sitting on a toilet.” I think this concern is legitimate. Virtual backgrounds may help, but they are not perfect. When the student moves around, sometimes the real background pops up. Perhaps a green screen could help? But those are not always feasible to install. Students should be able to opt-out of being forced to turn on the camera.

Third, there is a technological problem. Generally, most internet connections have faster bandwidth for downloads than for uploads. That is, watching a streaming video is easier than streaming a video. When students have their cameras on, they are simultaneously uploading and downloading data. Last spring, many professors and students had to turn their cameras off so they would not be disconnected. That problem will likely recur. There is a way around this problem. Zoom lets you handle audio and video separately. You can listen and talk to the call over your regular phone line. That connection is stable, and does not depend on wifi. If for whatever reason, your internet connection drops, and the video cuts out, you can continue to listen and speak. I am going to recommend my students with bandwidth problems use this hybrid approach: dial the local phone number on your phone, and watch the video from your laptop.

I can see the pros and cons. I think the general policy should be that professors have the discretion to ask their students to turn on their cameras, but students can ask the professor to opt out. If there are concerns about attendance, a professor can drop an “easter egg” at a specific point to ensure the student watched the entire class.

Update: Here is a photo of the “green screen” I mentioned:

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Last week, I blogged about the Ohio State University. OSU asked members of the community to sign a “pledge” that acknowledges “Buckeye values.” I agree with co-blogger Keith Whittington: “Universities should not be in the business of requiring and enforcing such political pledges.” FIRE has asked Ohio State to rescind the pledge.

This issue is not isolated. The University of Southern Maine has asked all members of the community to sign a “Black Lives Matter Statement and Antiracism Pledge.” The pledge cites Ibram Kendi, who popularized the concept of “antiracism.”

We stand in solidarity with those who are working for justice and change. And we invite you to join us in pledging to be a practicing antiracist at the University of Southern Maine and in all aspects of your life. We believe, as Ibram Kendi writes, that “the only way to undo racism is to constantly identify it and describe it — and then dismantle it.”

The University will publish the list of antiracists. There very well may be retaliation against those who do not sign the pledge.

This pledge is unconstitutional, and a violation of academic freedom. I have little to add beyond my post about Ohio State. Universities cannot prescribe what shall be orthodox.

Brian Leiter offers a related argument:

You can’t call on members of the community to sign an “anti-racism pledge,” just like you can’t call on them to sign a loyalty oath to American capitalism.   Of course, this isn’t quite as bad as mandating as a condition of employment a profession of loyalty to the ideology of anti-racism (whatever that is:  “I won’t join the Klan,” “I won’t use racial epithets”?, “I won’t disagree with Black Lives Matter?”), but it comes to the same thing:  after all, the President has issued a public call for signatures, his staff has duly signed, so who would want to risk being branded a “racist” for failing to be counted?   But there are plenty of non-racist reasons not to sign:  e.g., doubts about what will count as “the conditions and structures” that allegedly support bigotry, doubts about who one is being asked to “stand in solidarity” with and doubts about their conceptions of “justice.”   No one, least of all this blowhard President (who sounds more like the former politician he is), knows what it means to be an “antiracist…in all aspects of your life.”   That the President goes on to quote the totalitarian wannabe Ibram Kendi certainly does not inspire confidence.

A brief note on antiracism. This phrase doesn’t mean you simply oppose racism. Kendi writes in his book, How To Be an Antiracist:

The only remedy to racist discrimination is antiracist discrimination. The only remedy to past discrimination is present discrimination. The only remedy to present discrimination is future discrimination.

This argument resembles the divide between Chief Justice Roberts and Justice Sotomayor. In Parents Involved, Roberts wrote “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” In Schuette, Justice Sotomayor wrote, “The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination.” Kendi wrote what Sotomayor was thinking.

The Antiracism pledge is especially problematic for state institutions. Kendi advances arguments in favor of affirmative action that the Supreme Court rejected three decades ago in City of Richmond v. J.A. Croson Company: past racial discrimination cannot justify rigid racial quotas. And Grutter v. Bollinger likewise held that universities cannot use affirmative action to remedy past discrimination. I have always thought that Justice Marshall’s Bakke dissent was the only intellectually honest position in favor of affirmative action. (Randy and I are adding Marshall’s dissent to our casebook). The diversity rationale was always window dressing for Marshall’s position.

This pledge is calling on state actors to take positions that are in violation of Supreme Court precedent. In many regards, antiracism is unconstitutional. For that reason, I was especially concerned that 150 Law School Deans (including my own) referenced anti-racism in a letter to the ABA.

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