Democracy Died in Darkness in Harvard Trial Sidebars

Recently, there was much consternation about Judge Kacsmaryk’s decision to delay posting notice of a hearing. Indeed, a coalition of media organizations actually argued that this decision could violate the First Amendment! Ultimately, the proceeding went as planned, with no disruptions or incidents. There were protests outside. And the event was widely covered by the press. Thankfully, democracy did not die in the darkness.

Throughout this entire process, I chuckled. People who had zero experience with federal district court litigation suddenly became experts. In reality, trial judges have vast discretion over their dockets and courtrooms. In any normal case, this sort of request would never have raised an eyebrow. And the information would have never leaked to the press. But, with the abortion ad-hoc nullification machine at maximum power, all the usual rules are ignored.

If you’d like some evidence of how much power judges have to keep their proceedings secret, consider the sidebar conference. Generally, everything a judge says is in open court. But the judge can ask the parties to “approach” the bench, at which point the judge and attorneys can have a private conversation that the witness, jury, and other parties cannot hear. Some courts have noice-cancelling devices that make it impossible to even hear anything. (The district court that I clerked in did not have that technology, and was very small, so the parties were asked to speak low, but not too low so that the court reporter could not hear them.) Generally, the court reporter transcribes these proceedings. But sidebars may be redacted from the public transcripts.

A particularly egregious exercise of sidebar-redaction came during the Harvard affirmative action trial in Boston federal district court. Jannie Suk Gersen, a professor at Harvard, writes about what happened in Judge Allison Burroughs courtroom. During the trial, the judge held lengthy sidebar discussions with counsel, and declined to release those matters in the public transcript. Indeed, those sidebars were not initially included in the record that was transmitted to the United States Supreme Court!

The secrecy would continue. Gersen filed a letter with the court, asking to unseal the sidebars. Judge Burroughs held two hearings about which sidebars to unseal. And the public was barred from those hearings! Only Suk and the other attorneys could attend. Lawyers for Harvard objected to release the information, even as the case was pending before the Supreme Court! Why?

… Harvard argued vigorously against unsealing certain sidebars, reminding the judge that concern about “the press gallery” was the reason she had sealed some discussions in the first place and maintaining that she should keep them sealed “because of the increased or the continuing public attention on this case.”

Imagine that. A district court limiting some access to the public in light of “continuing public attention.”

Apparently, the Supreme Court became concerned by the incomplete record, and asked for the sealed proceedings. Recently, the District Court sent the Supreme Court a “password protected and encrypted” thumb drive containing sealed materials. And what was Judge Burroughs trying to keep secret? A crass joke about Asian-American college applicants.

Thomas Hibino worked at the Boston location of the Department of Education, Office of Civil Rights. William Fitzsimmons is the Harvard Dean of Admissions. In 2012, Hibino emailed Fitzsimmons an attached memo:

On November 30, 2012, amid a friendly back-and-forth about lunch plans, Hibino e-mailed Fitzsimmons an attachment that he described as “really hilarious if I do say so myself!” Hibino explained, “I did it for the amusement of our team, and of course, you guys”—presumably Harvard admissions officers—”are the only others who can appreciate the humor.” The joke memo had been written on Harvard admissions-office stationery, during the earlier investigation. It was purportedly from an associate director of admissions and parodied the admissions officer downplaying an Asian American applicant’s achievements. The memo denigrated “José,” who was “the sole support of his family of 14 since his father, a Filipino farm worker, got run over by a tractor,” saying, “It can’t be that difficult on his part-time job as a senior cancer researcher.” It continued, “While he was California’s Class AAA Player of the Year,” with an offer from the Rams, “we just don’t need a 132 pound defensive lineman,” apparently referring to a slight Asian male physique. “I have to discount the Nobel Peace Prize he received. . . . After all, they gave one to Martin Luther King, too. No doubt just another example of giving preference to minorities.” The memo dismissed the fictional applicant as “just another AA CJer.” That was Harvard admissions shorthand for an Asian American applicant who intends to study biology and become a doctor, according to the trial transcript.

Fitzsimmons e-mailed Hibino back, “I’m stunned!” Fitzsimmons apparently believed that the admissions officer whose name was on the Harvard stationery had actually authored the memo. She “passed away a few years ago and I’d forgotten that she had such a sense of humor,” he wrote. “We’ll ‘de-construct’ at lunch. Where should we go?” Hibino wrote to clarify, “No, no! I did that from purloined stationery from your shop! Pretty convincing, huh?!!!!! I forget—are we getting together here or there?” (Through Harvard’s press office, Fitzsimmons declined to comment, and calls and messages to Hibino were not returned.)

It seems the Office of Civil Rights stole stationary from Harvard, which they used to put together this awful memo. The Dean of Admissions thought the memo was funny. Justice Kagan recently mused that maybe she has no sense of humor. Maybe I don’t have a sense of humor either. I’m not laughing.

And it also isn’t funny that the judge tried to keep this information out of the record:

The sidebars about the memo show that S.F.F.A. wanted to question Fitzsimmons, during his courtroom testimony, about his reaction to the memo’s “stereotypical comments about Asian Americans.” S.F.F.A. argued that the dean of admissions was “laughing along” with a joke including Asian stereotypes. Harvard objected that the memo and Fitzsimmons’s reaction should be excluded as “irrelevant,” because it was “so tangentially related to anybody’s credibility” or to a claim of Harvard’s “discriminatory animus” against Asian Americans. Furthermore, Harvard claimed that the move to introduce this evidence was “calculated to be handed to the press” and “intended to embarrass Dean Fitzsimmons.”

This information would seem to at least be relevant to the Supreme Court’s consideration. But the trial judge, apparently, thought it better to keep this matter out of the record. Gersen continues:

Judge Burroughs did not think that it was fair to assume that Fitzsimmons found the stereotypes in the memo funny, and she didn’t want what she saw as his “wholly ambiguous” comment to be public. “It has the potential to be explosively prejudicial, not to me because I take it for what it is, but in terms of the external world’s response to this,” she said. “At some point, I feel for the guy,” she added, asserting that asking him about the memo on the stand would be “designed for media consumption and not for any great search for the truth.” She ruled the memo and e-mails not relevant, and excluded them; if there were a jury, it would not have heard about them. And because she also sealed the sidebars, the press and the public knew nothing of them, either. . . .

But we also know that Judge Burroughs thought that the material could “explosively” affect how the public saw the facts. So, her decision was not just to exclude the evidence but also to seal it and attempt, even long after the trial ended, to prevent the public from knowing about a federal official’s allegedly anti-Asian remarks. An attorney familiar with the case told me, “Judge Burroughs mistakenly conflated admissibility under the rules with her own decision, as the fact finder, that this evidence would have no weight with her. And then, because it would have no weight, it would be sealed to prevent embarrassment to Harvard witnesses.”

Are judges allowed to make decisions based on concerns about media consumption?Back to Judge Kacsmaryk. He delayed posting the announcement of a hearing till the evening before. The public still would have been able to attend, and the press could have schlepped from Dallas. It would have been harder to bus in protestors. And there was not enough time to dry-clean their Gileadian bonnets. But Kacsmaryk’s position was a reasonable attempt to deal with an unknown security situation.

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FIRE Sues West Texas A&M Over Its Blocking of Student Group’s Drag Show

From the brief in support of motion for TRO in Spectrum WT v. Wendler (N.D. Tex.), filed Friday (see the brief for more factual details, and some further analysis); the argument seems correct to me:


West Texas A&M University’s President, Defendant Walter Wendler, has declared that he will not obey “the law of the land.” Instead, he insists on banning a recognized student group’s event from campus simply because he dislikes the event’s entirely lawful message. By moving for a temporary restraining order and preliminary injunction, Plaintiffs ask this Court to put a swift end to Wendler’s disdain for the First Amendment and prevent further irreparable harm to Plaintiffs’ constitutional freedoms.

On March 20, 2023, President Wendler announced to the campus community that he is forbidding Plaintiff Spectrum WT from holding its scheduled PG-13 charity drag show because he disagrees with the show’s viewpoint. Making matters worse, President Wendler has all but confessed that he is knowingly violating the Constitution: “A harmless drag show? Not possible. I will not appear to condone the diminishment of any group at the expense of impertinent gestures toward another group for any reason, even when the law of the land appears to require it.” (Dkt. 1, Verified Compl., Ex. A.) That is textbook viewpoint discrimination. And it violates the First Amendment.

The Supreme Court has concluded that even controversial live theater is protected First Amendment expression. Se. Promotions, Ltd. v. Conrad, 420 U.S. 546, 557–58 (1975). If officials in Tennessee could not exclude a group from presenting the provocative play Hair in a public theatre because they disagreed with Hair’s message, then surely President Wendler and the other Defendants cannot exclude students wanting to put on a PG-13 charity drag show in a campus space open to student groups for expressive activities, simply because the show does not match Wendler’s worldview. Id.

Indeed, the Constitution’s bar against viewpoint discrimination is vital to preserving freedom of speech at public colleges and universities. “[N]o matter how offensive to good taste” some may find it, expression “on a state university campus may not be shut off in the name alone of ‘conventions of decency.'” Papish v. Bd. of Curators of the Univ. of Mo., 410 U.S. 667, 670 (1973). So, whether students gather on campus to support a political candidate, talk about the Bible, or put on a drag show, public college administrators cannot censor student expression just because they find it disagreeable or offensive.

Yet that is exactly what President Wendler is doing by refusing to let the show go on. The result is ongoing irreparable harm to Spectrum WT and its student officers, Plaintiffs Barrett Bright and Lauren Stovall. Above all, the eleventh-hour cancelation of their March 31 charity drag show—and President Wendler’s moratorium on campus drag shows altogether—are depriving Spectrum WT’s members of their First Amendment rights, which is always an irreparable injury. Elrod v. Burns, 427 U.S. 347, 373 (1976). What’s more, Spectrum WT carefully followed West Texas A&M’s process for getting event approval—with the full backing of campus staff—only for Wendler to pull the rug out at the last minute. If Spectrum WT cannot hold its March 31 event on campus, or similar events it plans to hold in the future, it will suffer significant injury to its mission of advocating for the LGBTQ+ community at West Texas A&M….

[I.] Plaintiffs Are Substantially Likely to Succeed on the Merits Against the University’s Brazen Censorship of Protected Expression.

“The First Amendment is not an art critic,” and drag shows, like other forms of theatrical performance, are expressive conduct that the First Amendment prohibits President Wendler from censoring. Norma Kristie, Inc. v. City of Okla. City, 572 F. Supp. 88, 91 (W.D. Okla. 1983) (holding drag shows are protected First Amendment expression).

The freedom of expression enshrined in the First Amendment “does not end at the spoken or written word.” Texas v. Johnson, 491 U.S. 397, 404 (1989). Whatever the mode of expression, the First Amendment protects conduct “inten[ded] to convey a particularized message,” (id. at 404, 406), and it prohibits public university officials from suppressing student expression simply because they disagree with its viewpoint or find the message offensive. Papish, 410 U.S. at 670. If anything, whether speech is protected by the First Amendment is a legal, not moral, analysis. Dodds v. Childers, 933 F.2d 271, 273 (5th Cir. 1991). President Wendler imposing his morals at the expense of free expression violates the First Amendment.

The First Amendment also bars public university officials from denying student groups access to campus public forums because of the content or viewpoint of a group’s message. Widmar v. Vincent, 454 U.S. 263, 267–70 (1981); Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 828–29 (1995). And messaging within a broader genre—such as art, theater, and dancing—is also protected even if it does not convey a “narrow, succinctly articulable message.” Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp., 515 U.S. 557, 569 (1995). Indeed, “[e]ven crude street skits come within the First Amendment’s reach.” Iota Xi Chapter of Sigma Chi Fraternity v. George Mason Univ., 993 F.2d 386, 390 (4th Cir. 1993) (fraternity “ugly woman contest” is protected expression). See also Berger v. Battaglia, 779 F.2d 992, 999 (4th Cir. 1985) (holding a blackface performance is protected First Amendment expression, even when it is “sheer entertainment” without a political message).

Under core First Amendment principles, Defendants’ ongoing suppression of a peaceful charity drag show constitutes unlawful viewpoint and content discrimination. The Court should stop the ongoing injury to Plaintiffs’ First Amendment freedoms and restore constitutional order on West Texas A&M’s campus by issuing a temporary restraining order and preliminary injunction.

[A.] President Wendler’s Censorship of a Drag Show Based on Personal Disagreements with the Expression’s Message Is Textbook Viewpoint Discrimination.

President Wendler’s abuse of his powers to quash a PG-13 charity drag show because he disagrees with the show’s message—real or perceived—violates the First Amendment. It is “axiomatic that the government may not regulate speech based on its substantive content or the message it conveys.” Rosenberger, 515 U.S. at 828. “Viewpoint discrimination is censorship in its purest form,” and government action “that discriminates among viewpoints threatens the continued vitality of free speech.” Bible Believers v. Wayne Cnty., Mich., 805 F.3d 228, 248 (6th Cir. 2015) (en banc) (cleaned up). Indeed, government officials like college administrators are “inherently” incapable of making “principled distinctions” between offensive and inoffensive speech, and the state has “no right to cleanse” public expression such that it is “palatable to the most squeamish among us.” Cohen v. California, 403 U.S. 15, 25 (1971).

To that end, “state colleges and universities are not enclaves immune from the sweep of the First Amendment.” Healy v. James, 408 U.S. 169, 180 (1972). And that includes the First Amendment prohibition on viewpoint discrimination. Rosenberger, 515 U.S. at 835–36 (invalidating college’s denial of funding to Christian student newspaper). True, courts often employ “forum analysis” to determine when public university administrators “in regulating property in [their] charge, may place limitations on speech.” Christian Legal Soc’y Chapter of the Univ. of Cali, Hastings Coll. of Law v. Martinez, 561 U.S. 661, 679 (2010). But regardless of the forum’s classification, “any access barrier … must be viewpoint neutral.” Id. (citing Rosenberger, 515 U.S. at 829).

By picking and choosing which performances fit his moral tastes, President Wendler is engaging in viewpoint discrimination. Indeed, “the essence of viewpoint discrimination” is “the Government’s disapproval of … messages it finds offensive.” Iancu v. Brunetti, 139 S. Ct. 2294, 2299 (2019) (quoting Matal v. Tam, 582 U.S. 218, 248–49 (2017) (Kennedy, J., concurring)). And as President Wendler proclaims, he personally finds that “drag shows are derisive, divisive and demoralizing misogyny, no matter the stated intent.” (Verif. Compl., Ex. A.)

President Wendler’s stance mirrors that of the censorial officials in Southeastern Promotions. 420 U.S. 546. There, a group petitioned to use a city- operated municipal auditorium to present the rock musical “Hair.” Id. at 547. The auditorium directors denied the application, reasoning that allowing the play “was not in the best interest of the community” and the board would only “allow those productions which are clean and healthful and culturally uplifting, or words to that effect.” Id. at 549. The Supreme Court struck down the directors’ censorship as an unconstitutional prior restraint. To the same end, this Court should put a stop to Defendants’ ongoing viewpoint-based censorship of Plaintiffs’ PG-13 charity drag show.

The Fourth Circuit’s decision in Iota Xi also shows why the Court should enjoin Defendants’ censorship. 993 F.2d 386. There, George Mason University imposed sanctions on a fraternity for hosting an “ugly woman contest” riddled with “racist and sexist” overtones, including contestants “dressed as caricatures of different types of women[]” (i.e., in drag). Id. at 387–88. George Mason’s administrators cited many of the same concerns President Wendler relies on—that the event was degrading, amounted to harassment, and conflicted with the institution’s mission. Id. at 388; Verif. Compl., Ex. A.

The Fourth Circuit had no trouble brushing aside the administrators’ excuses. As the court explained, “First Amendment principles governing live entertainment are relatively clear: short of obscenity, it is generally protected.” Iota Xi, 993 F.2d at

389 (collecting cases). The court likewise held the fraternity’s drag skit was constitutionally protected, since it intended to convey a message, both through the mode of dress and use of a theatrical medium. Id. at 392. The court held GMU engaged in unconstitutional viewpoint discrimination by sanctioning the fraternity as the sanction arose from the fact that “the ‘ugly woman contest’ … ran counter to the views the University sought to communicate to its students and the community.” Id. at 393.

Even if President Wendler’s opinion were shared by all but the students here, he cannot justify stifling Plaintiffs’ expression on moral grounds. That argument lost in Southeastern Promotions. It lost in Iota Xi. And it must lose here. See also Gay Student Servs. v. Tex. A & M Univ., 737 F.2d 1317, 1322–27 (5th Cir. 1984) (holding Texas A&M violated the First Amendment by refusing to recognize a gay student organization when the official responsible for the denial justified the decision “based on his perception that the organization would attempt to convey ideas” he found morally repugnant).

This Court should refuse Wendler’s viewpoint-driven reasons for violating the First Amendment, grant Plaintiffs’ motion, and put a stop to Wendler and the other Defendants’ ongoing censorship of Plaintiffs’ protected expression.

  1. Excluding Plaintiffs’ Drag Show from Campus Public Forums Violates the First Amendment.

President Wendler’s denial of use of a campus public forum to Plaintiffs also violates the First Amendment, to their ongoing injury. Legacy Hall is a designated public forum for First Amendment purposes. West Texas A&M opens its facilities, like Legacy Hall, to West Texas A&M students and student organizations for exactly these expressive purposes: theatrical performances before a willing audience, music, dancing, and banter. (Verif. Compl. ¶¶ 31–32, 41–42.) Thus, because “the University has created a forum generally open for use by student groups,” “the University must therefore satisfy the standard of review appropriate to content-based exclusions.” Widmar, 454 U.S. at 270. See also Pro-Life Cougars v. Univ. of Houston, 259 F. Supp. 2d 575, 582 (S.D. Tex. 2003) (“When as here a University by policy and practice opens up an area for indiscriminate use … by some segment of the public, such as student organizations, such area may be deemed to be a designated public forum”).

Under the First Amendment, “a government … has no power to restrict expression because of its message, its ideas, its subject matter, or its content” unless it satisfies strict scrutiny. Reed v. Town of Gilbert, Ariz., 576 U.S. 155, 163 (2015) (cleaned up). To meet that high bar here, Defendants “must show that [their] regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.” Widmar, 454 U.S. at 270. They cannot meet that burden. See United States v. Playboy Ent. Grp., Inc., 529 U.S. 803, 816 (2000) (“When the Government restricts speech, the Government bears the burden of proving the constitutionality of its actions”).

For starters, a ban on drag shows is content-based (if not outright viewpoint- based, as shown above). It singles out a particular type of expression—drag—for differential treatment. That is textbook content discrimination. Reed, 576 U.S. at 169 (content discrimination exists when the government “singles out a specific subject matter for differential treatment”).

Defendants’ content-based ban of campus drag shows—including canceling Plaintiffs’ March 31 show—fails strict scrutiny. And Widmar shows why. In Widmar, the University of Missouri at Kansas City denied an evangelical Christian student group the use of university facilities otherwise “generally available for … registered student groups.” Id. at 264–65. The Supreme Court explained that such restrictions, which single out a particular subject for differential treatment, are subject to “the most exacting scrutiny.” Id. at 276. The Court held that the university unlawfully “discriminated against student groups and speakers based on their desire to use a generally open forum to engage in” protected expression and that the university’s stated goal, “achieving greater separation of church and State,” was not sufficiently “‘compelling’ to justify content-based discrimination against respondents’ religious speech.” Id. at 269, 278.

Here, advancing President Wendler’s belief that drag shows promote “misogyny” is not a compelling state interest. (Verif. Compl. Ex. A.) As a threshold matter, banning drag shows does not prevent tangible harm to women. Any women (or men) who might take offense from a drag show can simply opt to not attend. Likewise, those who agree with President Wendler’s estimation of the value of the students’ expression can exercise a time-honored means of “effectively avoid[ing] further bombardment of their sensibilities simply by averting their eyes.” Cohen, 403

U.S. at 21.

Rather, President Wendler, like the administrators in Iota Xi, seeks to suppress Plaintiffs’ speech “because it r[uns] counter to the views the University s[eeks] to communicate to its students and the community.” 993 F.2d at 393. That is not redressing a harm. It is big-brother government insisting it “knows what’s best” for women and that it can silence dissenting expression. But “[t]he state may not ordain preferred viewpoints [about women and femininity] in this way. The Constitution forbids the state to declare one perspective right and silence opponents.” Am. Booksellers Ass’n v. Hudnut, 771 F.2d 323, 325 (7th Cir. 1985).

Nor is Defendants’ ban on drag shows narrowly tailored or the least restrictive means of furthering their goals. See Playboy Ent. Grp., 529 U.S. at 813 (content regulation permissible only if the government “chooses the least restrictive means to further the articulated interest”) (cleaned up). Neither President Wendler nor the other Defendants have banned any other type of expression from campus which might tend to disparage or demean women. And a content-based law is not narrowly tailored if it leaves untouched a significant amount of expression causing the same problem. Reed, 576 U.S. at 172. Plus, the government’s objection to a speaker’s message is not even a legitimate government interest, let alone a compelling one.

America’s college campuses are no stranger to censorship, which is often visited upon students and faculty who find themselves among the minority viewpoint—including, in many cases, conservative and religious groups. See, e.g., Widmar, 454 U.S. at 265; Rosenberger, 515 U.S. at 830. From Central Washington University threatening to defund the College Republicans for protected speech, to Iowa State University threatening to punish the College Republicans for protected speech, to pro-life groups having to fight for recognition at the University of Arizona, censorship of expression on public campuses continues to fester. But students’ expressive rights should not, and do not, turn on the whims of college administrators. The First Amendment does not play favorites.

President Wendler’s censorship singles out one type of artistic expression out of many—drag shows—for differential treatment and censorship simply because he dislikes the message he perceives. It is unconstitutional viewpoint discrimination for the reasons explained. And putting aside President Wendler’s confessed motives, the ban is unlawful content discrimination. A temporary restraining order and preliminary injunction are necessary to secure Plaintiffs’ First Amendment rights….

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‘All the Parents Want Is a Chance To Make That Choice’


Brown v. Board of Education was never about black kids getting into a white school. It was always about ultimately a parent being able to decide where their children should attend school,” argues Virginia Lt. Gov. Winsome Earle-Sears. The African-American Republican is one of the driving forces behind a new bill that would create “backpack funding” for kids in Virginia, which would allow parents to use the state’s portion of per-pupil funding—somewhere between $4,000 and $6,000—at any public or private school, for tutoring, books, and other educational expenses. If the bill passes, Virginia would join eight other states (at press time) with education savings accounts (ESAs) that accomplish similar goals.

Earle-Sears was born in Jamaica in 1964 and grew up in New York City before joining the Marines and eventually settling in Virginia, where she has served in the House of Delegates and on the Virginia Board of Education. She was elected lieutenant governor in 2021 on the same ticket as Republican Glenn Youngkin, in an election where controversies over critical race theory, COVID-19 schooling, and other issues related to education played a significant role.

In January, Nick Gillespie sat down with Earle-Sears for The Reason Interview With Nick Gillespie to talk about the school choice movement in Virginia and how it shouldn’t be controversial for parents to decide how their children are educated.

Reason: Why is supporting education savings accounts a priority for you?

Winsome Earle-Sears: Because the scores are showing that our children aren’t learning. When we’re looking at 20 percent of black children only able to read by the time that they reach the third, fourth grade, that’s a travesty. And we have seen through the years that no matter what was tried, it’s not working. And so parents are saying it is time to do something differently, so that we can get different results. Nothing will do, I think, as much as these ESAs will do, because it will drive competition. Competition will raise all boats.

Why will ESAs spur better education outcomes?

When parents are able to choose where their children should attend school, that’s a whole game changer, because now the money follows the child instead of the brick building.

I don’t understand, frankly, how it can be controversial for a parent to make the decision on the child’s education and the child’s future. We know that as soon as anything else happens with a child, they call the parents. So why should this be any different? And by the way, there are people who say that this program helps the rich. Do you think rich parents are waiting on a government program to determine where to send their children to school? The answer is no. They have already made that choice. It is for the rest of us now to have that same opportunity.

Did you go to public or private school?

I went to public school in Jamaica as well as in New York. And my children also went to public school.

Did you feel like your parents had enough choice over where you went to school?

The intriguing thing is that when my father first brought me to America, when I was 6 years old and I entered the public school in New York, they discovered that I was not learning anything. And indeed in Jamaica, a Third World country in the 1960s, I had already had pre-K and I was starting to move into elementary school. And so I was sent back to Jamaica for school.

When I came back, I entered the ninth grade and I was told—even with my transcripts showing that I had had chemistry, physics, and biology—they said, “No, that was general science.” But no, in Jamaica, you actually have chemistry, physics, and bio. So guess what? I aced everything.

With my children, we moved from California, where [my husband and I] were both in the Marine Corps. We decided to come to Virginia. I think just by the grace of God, we were able to move into a neighborhood that had a wonderful school system. It was one of the “better neighborhoods.” We didn’t know that. And so they had access to this, that, and the other. My children were even learning Japanese, if you can imagine, in elementary school. So it turns out that we bought the cheapest house in one of the best neighborhoods. But what about those parents who don’t have that opportunity?

Critics say that ESAs divert public tax dollars from public schools. Is that a legitimate criticism?

To whom does the tax money belong to in the first place? Where did the money come from? Two-thirds of the funds stay with the public schools. One-third of the money will follow the child to whatever school, homeschool, tutoring, whatever the parent wants to do.

I would have loved it, when I had my business, if my customer said, “I’m leaving you,” and I could say, “Well, two-thirds of your money stays with me.” That’s what this is about. All the federal funding stays with the local schools. All the local money stays with the local schools. People say, “All we need to do is just give the schools more money.” Wait a minute. We’ve been doing that and doing that, and it’s still not working right now. For example, if a child is to attend Richmond Public Schools, the [per-pupil spending] is $16,000 per year, and the children are still failing.

The state of Virginia is willing to contribute between $4,000 and $6,000 for one child’s education. Can you explain how that works?

It’s not a voucher because it’s not direct money from the state to the parent for the child. It’s going to go to a third party, and they will make the decision once they receive the request to send the money on.

Some of the pushback is, “That’s not enough money.” If we took all of the money, then they would say we’re defunding the schools. You can’t please the naysayers. The naysayers already have that choice.

You have to ask yourself, finally, what is really behind all this? It’s about control, you know. This is about who will control the money. And let me tell you something. We must not fool ourselves. If we were to get ESAs through, I can tell you the teachers unions will come right to the private schools and say you all should unionize. They don’t really care. They’re following the money.

What are the similarities between today’s school choice movement and the civil rights movement in the 1950s and ’60s?

Brown v. Board of Education was never about black kids getting into a white school. It was always about, ultimately, a parent being able to decide where their children should attend school. It’s really that simple. But when you have redlining and zoning issues, then you have segregated schools, and it is mostly affecting black and brown children. Majority of the schools, when you look at them now, especially in the urban areas, they’re all black and most of them are failing.

When I sat on the Virginia State Board of Education, we were able to grade the schools. And if you’re failing, you don’t have access to the children anymore. We’re going to put the children elsewhere. Guess what? After I left the board, they lowered the standards to the point where they got rid of the ability to tell an “A” school from a “B” school. The children are in failing schools.

We have heard from so many parents from all income strata: public housing, middle-class, etc. And one mother said, “I am working two and three jobs,” just so her son can have the ability to go to this school. She wants a choice.

You and Gov. Youngkin were elected in some significant part due to parental outrage over K-12 curricula, including the way state history was being taught. Last fall, the Board of Education in Virginia rejected the Youngkin administration’s new history and social studies guidelines. How are the new guidelines, submitted recently, different?

I wouldn’t say that it was about the way that history was being taught. They were teaching critical race theory, which is a Marxist theory, which was trying to talk about equal outcomes. There is no such thing. It was also teaching that you’re privileged, for example, if you are white, if you are heterosexual, if you are male, if you’re married, if you’ve served in the armed forces, and silly things like that, because now it encompasses just about everybody. It really was sowing seeds of chaos because then you were creating a morale issue in the schools.

The white child was told that the white child is an oppressor and the black child was told, “You’re a victim. You’re the oppressed.” The children aren’t learning. I don’t send my child to school for you to indoctrinate. I send my child for you to educate. And that’s what we were finding was the problem.

So nothing actually changed. And in fact, for example, Martin Luther King Jr. would be mentioned in more places than he had been before. It’s just that, unfortunately, they collapsed everything and it appeared that we were taking him out in certain areas when we weren’t.

A drowning man, as they say, will clutch at a straw. And when people realize that things are going to change, they throw up every roadblock that they can. They did it in Florida. And now that Florida has all those charter schools and school choice, do you know who’s benefiting the most? Black children. Their scores have gone through the roof. In Virginia, with our ESAs, we’re learning from all the other states that have already implemented them. We’re learning from what other people have done. All the parents want is a chance to make that choice.

How has your personal experience informed how we should talk about history in schools in a country that is so vast and diverse?

My father came to America from Jamaica in 1963, 17 days before Martin Luther King Jr. gave his “I Have a Dream” speech. He came at the height of the civil rights movement. He knew what was happening in America, and yet he begged to get in, filled out the documents, and jumped through hoops and waited his turn. He came with $1.75, took any job he could find, used that money to put him through school, and now he’s comfortably retired. He came at a time when there were actual dog whistles, when we really couldn’t sit anywhere we wanted, and when we couldn’t live where we wanted.

My husband’s family, which is from Virginia—of the 15 children that his great-grandparents had, 13 of them have college degrees. They’re black. There was a time when things were really bad for us. I asked my father, “Why would you come?” And he said, “Because this is where the jobs and the opportunities were.” So now I would say to you, here I am. How could I say to my father that the reason why I did not succeed is because I am black? I have to make my own way in this world. And here I am. I am second in command in the former capital of the Confederate States. Do not tell me that times have not changed.

Now, is it utopia? Of course it’s not. There is no such nation. What we do know is that wherever you live, there is going to be some kind of “ism.” Racism. If it’s not that, it’s classism. If it’s not, it’s colorism. It’s some kind of “ism.” We people, not just Americans, know how to divide ourselves.

So what we have to say to our children is, “Look at us.” We have overcome. Every time an obstacle is thrown in our way, we have overcome it. The slaves in the fields did not die so that we could be here talking about how we are victims. No, we are overcomers.

We’re not going to deny history. Heavens, no. We must teach all of history. We must talk about the truth of history. We must talk about the Founders, some of which were, in fact, slaveholders. They were imperfect people. They left us the Constitution. They left us the Declaration of Independence, under which I was elected and under which Barack Obama was elected president, not just once, but twice. We have a saying in church, “I may not be what I’m supposed to be, but I ain’t what I used to be.” And that’s America. People are still dying to come into America. Just look at the Southern border.

Did the arbitrariness of COVID lockdowns in K-12 education pour gas on the fire of the school choice movement?

Our children weren’t learning even before COVID. For example, I went to a majority-black school and I visited the principal. She said to me, “Normally the children come to me two years behind.” But then she says, “Not only are they two years behind, but as a result of COVID policies shutting our schools down, the kids are now four years behind.” She threw her hands in the air. She asked me, “What am I supposed to do? How do I help these children?”

The beauty of ESAs is that it will reduce class size as well. So, yes, some children will not be there. Two-thirds of the money stays. But now we’ve also reduced class size. It’s a win-win.

What’s the likelihood that legislation that changes how Virginia funds education will pass?

As they say, Rome wasn’t built in a day. Slavery was not gone in a day. We are saying we’re not going back. And yes, it’s going to take a small miracle. It’s going to take a miracle because there are people who have nefarious agendas and they’re using the suffering of black people to further keep us apart and at each other’s throats.

I am hoping that it is God’s will that things change. It’s already started because there are so many black parents, for example, who came to the education subcommittee who begged and pleaded for change to happen so that they could have the money to send their children to school. And every single Democrat on that subcommittee looked them in the eye and voted no, including the ones who send their children to private school. So their eyes are opening.

It’s going to be a tough fight. It’s one worth having. We are going to keep in the fight until the parents get to make that choice.

This interview has been condensed and edited for style and clarity. For a podcast version, subscribe to The Reason Interview With Nick Gillespie.

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Zoom Workshopping Large Libel Models? Liability for AI Outputs

I have a very rough draft of this article; I’d love to hear comments on it, of course, but I’d also like to workshop it by Zoom, in case some people are interested. So if you want to set this up for some law people, or computer science people (academics, students, practitioners, or a mix), or others who can give useful feedback on it, please just e-mail me at volokh at

I’d like to get it out the door by mid-May, so sooner is better, if at all possible. I’ll also post some more excerpts from it here next week.

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Supreme Court Should Take and Reverse Fifth Circuit Decision that Creates a Catch-22 for Takings Claims Against State Government

Fifth Amendment

In its important decision in Knick v. Township of Scott (2019), the the Supreme Court reversed Williamson County Regional Planning Commission v. Hamilton Bank, a 1985 decision that made it almost impossible to bring takings cases against state and local governments in federal courts. Under Williamson County, a property owner who claimed the government has taken his property and therefore owed “just compensation” under the Fifth Amendment, could not file a case in federal court until he or she first secured a “final decision” from the relevant state regulatory agency and “exhausted” all possible state court remedies in state court. At that point, it was still usually impossible to bring a federal claim, because procedural rules preclude federal courts from reviewing most final decisions by state courts. In a forceful opinion for the Court, Chief Justice John Roberts denounced this “Catch-22” and emphasized that “[a] property owner has an actionable Fifth Amendment takings claim when the government takes his property without paying for it.” The owner does not have to first go to state court.

Access to federal court is crucial to protecting constitutional rights against violation by state and local governments. In some situations, state courts will not adequately protect those rights, and may even be part of the same political coalition as the state or local officials who violated those rights in the first place (a problem particularly likely to arise in the many states where judges are elected).

Unfortunately, a recent decision by the US Court of Appeals for the Fifth Circuit (which covers the states of Texas, Louisiana, and Mississippi) goes against the principles outlined in Knick and threatens to create a new Catch-22 keeping takings claims out of federal court.

In Devillier v. Texas, decided in November, a Fifth Circuit panel ruled that federal courts have no jurisdiction to hear takings claims against state governments because the Fifth Amendment doesn’t create such jurisdiction, and there is no federal statute establishing it either. Here is the entirety of the opinion (minus footnotes):

The State of Texas appeals the district court’s decision that Plaintiffs’ federal Taking Clause claims against the State may proceed in federal court. Because we hold that the Fifth Amendment Takings Clause as applied to the [S]tates through the Fourteenth Amendment does not provide a right of action for takings claims against a [S]tate, we VACATE the district court’s decision and REMAND for further proceedings. The Supreme Court of Texas recognizes takings claims under the federal and state constitutions, with differing remedies and constraints turning on the character and nature of the taking; nothing in this description of Texas law is intended to replace its role as the sole determinant of Texas state law. As such, this Court lacks jurisdiction to review these claims.

[the text above is slightly modified from the court’s original decision, as explained here (pg. 25)].

What the court says is simply false. The Fifth Amendment does indeed create a “direct cause of action” against state governments, no less than other provisions of the Bill of Rights do. Nothing in the text or original meaning of the Constitution suggests otherwise. In the footnotes, the panel cites Azul–Pacifico, Inc. v. City of Los Angeles, a 1992 Ninth Circuit reaching a similar conclusion. But Azul-Pacifico, a very short opinion that offers almost no analysis supporting its position, was decided prior to Knick, at a time when Williamson County was still in force and it was therefore permissible for courts to disfavor takings claims relative to other constitutional rights claims. Knick decisively rejected such theories, and the Fifth Circuit erred egregiously in failing even to cite Knick in its opinion.

Even worse, the Fifth Circuit ruling creates precisely the kind of Catch-22 that Knick forbids. Indeed, ir may be even worse! This case ended up in federal court in the first place, because—after the plaintiffs initially filed in state court—the state of Texas removed the case to federal court under 28 U.S. Code Section 1441, which allows defendants to remove to federal court “any civil action brought in a State court of which the district courts of the United States have original jurisdiction.”

Under the approach adopted here by the Fifth Circuit, takings claims against state governments cannot be brought in federal court. And if they are instead brought in state court, the defendant state can remove them to federal court and then force their dismissal! As Judge Andrew Oldham puts it in his dissent from the Fifth Circuit’s March 23 denial of the plaintiffs’ petition for an en banc rehearing (which, if granted, would have had the entire Fifth Circuit reconsider the panel decision), “[t]he panel decision renders federal takings claims non-cognizable in state or federal court.”

This is actually even worse than the Williamson County regime, under which takings claims could at least be litigated in state court (though some lower courts did permit the kinds of removal shenanigans the Fifth Circuit blessed here). The federal district court ruling that the Fifth Circuit reversed effectively highlighted this dangerous implication of ruling in favor of the state, and specifically cited Knick, as well:

In considering the State’s argument, it is important to think for a moment about the dramatic implications of such a rule. Under the State’s view, it can take property from a private citizen without paying just compensation and the private citizen would be left without a remedy. Take an example. Person A owns a 20-acre vacant parcel. While Person A is on a five-year trip around the world, the State commandeers the property, constructs a state office building on the property, and utilizes the building on the property—all without the permission of the property owner. When Person A returns home, the State tears down the building and returns the property to its original vacant state. This is a classic taking for which Person A is clearly entitled to be compensated. See Knick v. Township of Scott, 139 S.Ct. 2162, 2167 (2019) (“A property owner has an actionable Fifth Amendment takings claim when the government takes his property without paying for it.”)…. But not so fast. Amazingly, the State maintains that Person A would have no federal constitutional remedy against the State because a Fifth Amendment takings claim can never be brought against a State under [42 USC] § 1983. This thinking eviscerates hundreds of years of Constitutional law in one fell swoop, and flies in the face of commonsense. It is pretzel logic.

There is not, as the State suggests, some sort of “state exception” that excludes state governments from the reach of the Fifth Amendment’s Takings Clause. The complete opposite is true. “Historically, the United States Supreme Court has consistently applied the Takings Clause to the states, and in so doing recognized, at least tacitly, the right of a citizen to sue the state under the Takings Clause for just compensation.” Manning v. Mining & Minerals Div. of the Energy, Minerals & Nat. Res. Dep’t, 144 P.3d 87, 90 (N.M. 2006) (citing Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Plan. Agency, 535 U.S. 302, 306-09 (2002); Palazzolo v. Rhode Island, 533 U.S. 606, 614-15 (2001); Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1027-30 (1992)).

The plaintiffs have petitioned the Supreme Court to take the case. The Court should do exactly that. The justices need not even do much work, if they don’t want to. They can just summarily reverse the Fifth Circuit, and endorse, by reference, the reasoning of the district court (technically, a magistrate judge’s recommendation, which the district judge then adopted). If the Supreme Court lets this egregious decision stand, three state governments ruling over a total of some 36 million people, will be free to seize private property and then refuse to pay compensation, without fear of having their actions challenged in either state or federal court.

Two of the judges on the panel, Higginbotham and Higginson, filed concurring opinions to the Fifth Circuit’s denial of rehearing en banc, in which they defend the panel decision in much more detail than the ruling itself did. Judge Higginbotham argues that the reasoning of Knick only applies to cases brought under 42 U.S.C. Section 1983, which applies to  cases brought against “persons” who deprive the plaintiffs of their constitutional rights  (previous precedent holds, wrongly in my view, that local governments qualify as “persons” under Section 1983, but states do not). But Knick clearly makes the more general point that takings claims deserve access to federal court on par with other constitutional rights (“A property owner has an actionable Fifth Amendment takings claim when the government takes his property without paying for it”) and bars the creation of “Catch-22” rules that block such access. A Catch-22 rule that blocks access to both state and federal courts, as the Fifth Circuit decision does, is even more egregious, and even more obviously at odds with Knick.

Judge Higginbotham also advances various arguments to the effect that it is desirable to confine most takings cases to state courts, because of the latter’s special expertise in property law issues. These types of arguments were rejected by the Supreme Court in Knick, and for good reason. I criticize them in some detail in my article on Knick (also available here).

Judge Higginson argues that the special circumstances of the incorporation of the Takings Clause against state governments justify the kind of double standard created by the panel ruling. He argues that, even if the Takings Clause, generally, was incorporated against state governments, the right to a damages remedy for “compensation” was not, and therefore can only exist if Congress enacts a specific statute requiring it. But this makes no sense. The right to “just compensation” is right there in the Takings Clause, and there is zero evidence that the Fourteenth Amendment somehow incorporates the rest of the Fifth Amendment against the states, but excluded this part.

Judge Oldham’s dissent offers additional (mostly well-taken) criticisms of Judge Higginbotham’s and Judge Higginson’s opinions. He also outlines various procedural flaws of the original panel opinion. Among other things, the latter was surely wrong to dispense with so an important issue in such a cursory way.

The Oldham dissent does have a few flaws of its own. For example, Judge Oldham endorses the common, but fallacious, view that the Supreme Court incorporated the Takings Clause against the states in Chicago, Burlington & Quincy Railroad Company v. Chicago (1897). For reasons discussed in Chapter 2 of my book The Grasping Hand, this isn’t true. In reality, this was just one of a number of late-19th century cases where the Supreme Court allowed property owners to bring takings cases against states and localities under the Due Process Clause of the Fourteenth Amendment.

Regardless, Judge Oldham and the district court are surely right about the bottom line, and the Supreme Court would do well to adopt the main elements of their reasoning.

NOTE: The plaintiffs in this case are now represented by the Institute for Justice, a public interest law firm with which I have longstanding ties, and for which I have written pro-bono amicus briefs in other property rights cases. But I do not have any involvement in this case. Back in 2001-2002, I clerked for Judge Jerry E. Smith, who is one of four Fifth Circuit judges who joined Judge Oldham’s dissent from the denial of rehearing en banc. The litigation of this case began long after my clerkship ended.

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My Comment on the OMB’s Proposal to Turn “Hispanic” into a Race

The federal Office of Management and Budget has requested comments on several proposals to change the official federal racial and ethnic classifications. One proposal is to merge the ethnic question (are you Hispanic/Latino or not?) with the racial one (are you black/African American, white, Asian American, or Native Hawaiian/Pacific Islander?), so individiuals would now be asked whether they are Hispanic, black, whites, etc. in one question. The underlying problem is that many Americans check the Hispanic box, but then find that as “mestizos” (people of mixed European/Indigenous heritage) there is no appropriate race box for them to check.

So here’s what I wrote:

In this comment, I argue that the race and ethnicity classifications should not be combined into a single question. There is only one “ethnic” classification recognized by OMB, and that is “Hispanic/Latino.” Hispanic/Latino is much too diverse to be considered a true ethnicity to begin with, and, as a classification that includes people of any combination of Indigenous, European, African, and Asian origin, with classification members whose appearances reflect the broad range of human appearances, it’s absurd to treat it as akin to a race by placing it in the same category as “white,” “black,” etc.

Rather, to the address the problems of the inappropriate “race” choices for Latinos, which creates confusion among those of partial or full Indigenous origin, the government should abolish the Hispanic/Latino ethnic classification, and instead add a racial “Indigenous Latino/Mestizo” classification. White Hispanics would check the white box. Black Hispanics would check the black box. And Hispanics of Indigenous origin would check the Indigenous Latino/Mestizo box. People of mixed background could check whichever combination of boxes applied to their background.

In my book, Classified: The Untold Story of Racial Classification in America (Bombardier Press 2022), chapters 1 and 2 tell the story of how “Hispanic/Latino” became an official American minority classification. In brief, identification for federal statistical purposes, which started in the 1950s for federal contract compliance, was originally not self-identified, but instead relied on employers and others to identify members of minority groups by sight. Many Puerto Rican and Mexican Americans have dark complexions, revealing full or partial non-European ancestry. As a result, these individuals were both subject to racial discrimination, which meant that they were seen as needing federal protection, but also they could be identified as “nonwhite” by those in charge of classifying them.

Over the next two decades, various political forces, including Richard Nixon’s White House and certain activist groups, thought it useful to create an umbrella designation for all American with origins in Spanish-speaking countries. At the same time, in the early 1970s classification began a dramatic shift to self-identification.

Suddenly, millions of people who had always been considered, and considered themselves, to be white based on full or dominant European heritage, were now deemed to be members of a “Hispanic” minority. But recognizing the absurdity of considering the multi-racial Hispanic classification to be a separate race, Statistical Directive 15 instead dictated that “Hispanic” was an ethnic classification, the only official ethnic classification the federal government recognizes.

[Comment then continues with material on the history of the Hispanic classification from my book Classified, discussing the arbitrariness of the classification….]

That said, some Hispanics face discrimination based on being of the perception that they are members of a nonwhite race, because they have a substantial percentage of Asian, African, or (most often) Indigenous heritage. Hispanics who are of full or partial Asian or African descent currently can check off the “Hispanic” box, and then Asian or African. However, many Hispanics, likely including the vast majority of those who check off the other “some other race” box on forms when available, are of mixed European and Indigenous origin (known in much of Latin America as “Mestizos”), or fully of Indigenous origin.

Thanks to strong opposition from American Indian groups, the Directive 15 definition of American Indian excludes Indigenous Americans who do not descend from North American (excluding Mexico) tribes.

The solution to that problem is not to treat “Hispanicness” as a race, or the equivalent of a race. There is no logical reason why a self-identified white person of European descent from Argentina or Spain should be in a different “racial” classification than a white person from Greece, Italy, or France.

Rather, to give Hispanics an opportunity to self-identify by their racial background, the Hispanic/Latino category should be abolished entirely. White Hispanics would check the white box. Black Hispanics would check the black box. And Hispanics of Indigenous origin would check the box for a new category called something like Indigenous Latino/Mestizo. People of mixed background could check whichever combination of boxes applied to their background.

Like the barrier to including Indigenous-origin Latinos in the Native American classification, the barrier to creating an Indigenous Latino/Mestizo classification is primarily political; Latino groups and activists oppose such a classification because it would substantially reduce their constituent numbers.

If OMB chooses not to replace the Hispanic/Latino ethnic classification with a narrower Indigenous Latino racial classification, it should modify the current classification so that it is more akin to a true ethnic classification. Currently, the classification requires only that a person be of “Spanish origin or culture.” Instead, the classification should require “Spanish origin with significant ties to Spanish or Latino culture.” Currently, everyone from Sephardic Jews whose ancestors left Spain around 1492 to people with one distant Mexican American ancestor, with the rest European, may qualify as Hispanic, regardless of their lack of ties to Hispanic or Latino culture. An individual with distant Spanish-speaking ancestry and no ties to the Hispanic and Latino culture can hardly be said to belong to the same “ethnic group” as a recent immigrant from Guatemala, and including them in the same group drastically reduces any usefulness the classification may have.

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ChatGPT Provides Much More Balanced Responses Than Google Bard as to Good/Bad Things About Trump/Biden

Thursday, I blogged about how Google Bard responds to “What are some [good/bad] things about [Trump’s/Biden’s] presidency?” The short version (go to the post for screenshots that contain the full output):

  1. “What are some good things about Donald Trump’s presidency?” yielded a list of good things and bad things.
  2. “What are some good things about Joe Biden’s presidency?” yielded a list of just good things.
  3. “What are some bad things about Donald Trump’s presidency?” yielded a list of just bad things.
  4. “What are some bad things about Joe Biden’s presidency?” yielded a list of bad things and good things.

But when I ask OpenAI, the results are considerably more balanced, basically because the requests for good things just yield good things (for both) and the requests for bad things just yield bad things (for both):

[Prompt:] What are some good things about Donald Trump’s presidency?

While opinions on Donald Trump’s presidency vary significantly, there are several accomplishments and aspects of his tenure that some people view positively. Here are a few:

  1. Economic growth: The U.S. economy experienced growth during parts of Trump’s presidency, with low unemployment rates and a strong stock market before the COVID-19 pandemic.
  2. Tax reform: Trump signed the Tax Cuts and Jobs Act into law in 2017, which reduced corporate and individual tax rates for many Americans.
  3. Deregulation: The Trump administration rolled back numerous regulations in various industries, which some supporters argue encouraged business growth and innovation.
  4. Criminal justice reform: Trump signed the First Step Act in 2018, a bipartisan effort to reform the federal prison system and reduce recidivism rates.
  5. Foreign policy: Trump’s administration brokered the Abraham Accords, leading to normalized relations between Israel and several Arab nations. His administration also engaged in diplomacy with North Korea and applied pressure on NATO allies to increase defense spending.
  6. Judicial appointments: Trump appointed three Supreme Court justices and numerous federal judges, shaping the judiciary for decades to come.

It is essential to remember that perspectives on these aspects of his presidency are subjective and can vary depending on one’s political beliefs and values.

[Prompt:] What are some good things about Joe Biden’s presidency?

As of the knowledge cutoff date in September 2021, Joe Biden’s presidency had seen several accomplishments and policy initiatives that some people view positively. Here are a few:

  1. COVID-19 response: The Biden administration prioritized vaccination efforts and coordinated with states to improve vaccine distribution, contributing to a significant increase in vaccination rates.
  2. American Rescue Plan: Biden signed a $1.9 trillion COVID-19 relief package into law, which provided direct payments to many Americans, extended unemployment benefits, and allocated funding for vaccine distribution, among other measures.
  3. Infrastructure Investment and Jobs Act: The Biden administration negotiated and signed a bipartisan infrastructure bill, allocating $1.2 trillion to improve physical infrastructure, including transportation, broadband, and clean energy projects.
  4. Climate change and environmental policies: Biden rejoined the Paris Agreement and took executive actions to reverse several Trump-era environmental policies. His administration has also pushed for investment in clean energy and green jobs.
  5. Diplomacy and foreign policy: Biden has emphasized rebuilding relationships with traditional U.S. allies, reaffirming the U.S.’ commitment to NATO, and taking a more collaborative approach to global challenges like climate change and public health.
  6. Social and racial justice: The Biden administration has taken steps to address systemic racism, promote racial equity, and advance LGBTQ+ rights through various executive actions and policy proposals.

Please note that opinions on these aspects of Biden’s presidency are subjective and can vary depending on one’s political beliefs and values. Additionally, as this information is current as of September 2021, there may have been further developments in the months since.

[Prompt:] What are some bad things about Donald Trump’s presidency?

Critics of Donald Trump’s presidency often point to several issues and controversies during his tenure. Here are a few:

  1. COVID-19 response: Trump’s administration faced criticism for its handling of the COVID-19 pandemic, with detractors arguing that the response was slow, disorganized, and downplayed the severity of the virus.
  2. Impeachment trials: Trump was impeached twice by the House of Representatives, first on charges of abuse of power and obstruction of Congress related to the Ukraine scandal, and later on charges of incitement of insurrection following the January 6, 2021, attack on the U.S. Capitol. Although he was acquitted in both Senate trials, the impeachments were significant controversies during his presidency.
  3. Immigration policies: Trump’s administration implemented a number of hardline immigration policies, including the travel ban targeting predominantly Muslim countries, the zero-tolerance policy that led to family separations at the U.S.-Mexico border, and efforts to end the Deferred Action for Childhood Arrivals (DACA) program.
  4. Racial tensions: Critics argue that Trump’s rhetoric and actions, such as his response to the Unite the Right rally in Charlottesville, Virginia, and the Black Lives Matter protests, exacerbated racial tensions and divisions in the United States.
  5. Environmental policies: Trump’s administration rolled back numerous environmental regulations and withdrew the U.S. from the Paris Agreement, leading to concerns about the long-term impact on climate change and environmental protection.
  6. Relations with allies: Trump’s approach to foreign policy, including his criticisms of NATO and disagreements with traditional U.S. allies, was seen by some as damaging to international relations and global stability.

It is important to remember that perspectives on these aspects of his presidency are subjective and can vary depending on one’s political beliefs and values.

[Prompt:] What are some bad things about Joe Biden’s presidency?

As of the knowledge cutoff date in September 2021, there were several criticisms and controversies related to Joe Biden’s presidency. Here are a few:

  1. Afghanistan withdrawal: The Biden administration faced criticism for its handling of the U.S. withdrawal from Afghanistan, particularly in the chaotic final stages, which included a rushed evacuation effort and a deadly terrorist attack near the Kabul airport.
  2. Border crisis: Critics argue that the Biden administration’s immigration policies have led to an increase in migrants, including unaccompanied minors, at the U.S.-Mexico border, resulting in overcrowded facilities and humanitarian concerns.
  3. Inflation and economic concerns: Some critics have expressed concerns that the large-scale stimulus packages and government spending under the Biden administration could contribute to rising inflation and long-term economic challenges.
  4. COVID-19 vaccine hesitancy: While the Biden administration has made significant progress in vaccinating Americans, vaccine hesitancy remains an issue, with critics arguing that the administration’s messaging and strategies have not effectively addressed the problem.
  5. Partisanship and polarization: Biden pledged to work towards unity and bipartisanship; however, some critics argue that his administration has struggled to bridge the divide and achieve consensus on key issues, such as voting rights and police reform.
  6. Executive actions: Some argue that Biden’s use of executive orders to reverse Trump-era policies or advance his own agenda could contribute to a further concentration of power in the executive branch and set a precedent for future presidents.

Please note that opinions on these aspects of Biden’s presidency are subjective and can vary depending on one’s political beliefs and values. Additionally, as this information is current as of September 2021, there may have been further developments in the months since.

I don’t know if the differences stem from differences in the training data, in the Large Language Model algorithms, in any deliberate post-processing that is done to adjust the answers, or in something else (perhaps a mix of these things). But it struck me as potentially noteworthy.

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Oil Companies Fail to Convince the Eighth Circuit Climate Cases Should Be Removed to Federal Court

On Thursday, a unanimous panel of the U.S. Court of Appeals for the Eighth Circuit rejected arguments by fossil fuel companies that state-law-based tort claims concerning climate change should be heard in federal court. On this basis the panel in Minnesota v. American Petroleum Institute affirmed the district court’s remand of the case to state court.

Judge Kobes wrote for the court, joined by Judges Grasz and Stras, making quick work of the various arguments for removal. The arguments here are straight-forward, and align with the conclusions of the five other federal circuit courts to have considered such claims (the 1st, 3rd, 4th, 6th, and 9th Circuits). [This post is long, so the rest is below the jump.]

 Of particular interest (to me at least) the Court explained why the oil companies were mistaken to argue that state-law-based climate change claims are completely preempted by federal law. (Note that to justify removal, the defendant oil companies have to demonstrate complete preemption of the state law claims, not mere federal preemption, and this is a higher hurdle to clear.)

To determine whether a state-law claim is completely preempted, we ask whether Congress intended a federal statute to provide “the exclusive cause of action for the claim asserted and also set forth procedures and remedies governing that cause of action.” Beneficial Nat’l Bank, 539 U.S. at 8. Because “[t]he lack of a substitute federal [cause of] action would make it doubtful that Congress intended” to preempt state-law claims, “without a federal cause of action which in effect replaces a state law claim, there is an exceptionally strong presumption against complete preemption.” Johnson, 701 F.3d at 252. Complete preemption is very rare. The Supreme Court has applied it to only three statutes: § 301 of the Labor Management Relations Act, Avco Corp. v. Aero Lodge No. 735, 390 U.S. 557, 560–61 (1968); § 502(a) of ERISA, Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 66 (1987); and §§ 85 and 86 of the National Bank Act, Beneficial Nat’l Bank, 539 U.S. at 10–11.

Contrary to the Energy Companies’ insistence, federal common law on transboundary pollution does not completely preempt Minnesota’s claims. At several points in our nation’s history, courts have applied federal common law to public nuisance claims involving transboundary air or water pollution. Boulder III, 25 F.4th at 1258–61 (detailing the history of federal common law in pollution cases); City of New York v. Chevron Corp., 993 F.3d 81, 91 (2d Cir. 2021) (collecting cases). And the Second Circuit recently held that federal common law still provides a defense—ordinary preemption—to state-law public nuisance. New York, 993 F.3d at 94–95. Though, there is a serious question about whether, and to what extent, this area of federal common law survived subsequent federal environmental legislation.

Even if federal common law still exists in this space and provides a cause of action to govern transboundary pollution cases, that remedy doesn’t occupy the same substantive realm as state-law fraud, negligence, products liability, or consumer protection claims. There is no substitute federal cause of action for the state-law causes of action Minnesota brings, which means we apply the strong presumption against complete preemption. And more importantly, the federal law at issue is common law, not statutory. Because Congress has not acted, the presence of federal common law here does not express Congressional intent of any kind—much less intent to completely displace any particular state-law claim. Boulder III, 25 F.4th at 1262.

Because Congress has not acted to displace the state-law claims, and federal common law does not supply a substitute cause of action, the state-law claims are not completely preempted.

As Judge Kobes notes, the U.S. Court of Appeals for the Second Circuit concluded that similar claims were preempted by federal law. That court did not need to reach the question of  complete preemption, however, as that case had been filed in federal court and there was thus no need to context removal. Also, for what it’s worth, I believe the Second Circuit bollixed the preemption analysis for reasons I explain in this post and this article.

Judge Stras wrote separately to address the seemingly anomalous result that concerns about transboundary pollution are able to brought in state court rather than federal court. I agree with Judge Stras’s suggestion that this is odd, and that problems like climate change are better addressed at the federal level than the state level. Yet for reasons I explain below, fixing this qould require more than relaxing the standard for complete preemption or removal.

Here are some excerpts from Judge Stras’s opinion:

Artful pleading comes in many forms. This is one of them. Minnesota purports to bring state-law consumer-protection claims against a group of energy companies. But its lawsuit takes aim at the production and sale of fossil fuels worldwide. I agree with the court that, as the law stands now, the suit does not “aris[e] under” federal law. 28 U.S.C. § 1331. I write separately, however, to explain why it should. . . .

There is no hiding the obvious, and Minnesota does not even try: it seeks a global remedy for a global issue. According to the complaint, energy production has “caused a substantial portion of global atmospheric greenhouse-gas concentrations.” Those gases, the argument goes, have resulted in “climate change”—a label that appears in the complaint over 200 times. The relief sought is ambitious too: a far-reaching injunction, restitution, and disgorgement of “all profits made as a result of [the companies’] unlawful conduct.” . . .

Minnesota has strong views about how to deal with the issue. Other states do too. . . . This is, in effect, an interstate dispute.

Not surprisingly, disputes between states are as old as the country itself. . . . Interstate disputes were so common and complicated, in fact, that the Framers specifically vested original jurisdiction over them in the Supreme Court. . . . The rule of decision in these cases has always been “known and settled principles of national or municipal jurisprudence”—what we now know as the federal common law. . . .

State law is no substitute. . . . When it comes to “outside nuisances” like this one, courts have long looked to common-law principles like “considerations [of] equity,” “quasi-sovereign interests,” and the need for “caution.” Georgia v. Tenn. Copper Co., 206 U.S. 230, 237–38 (1907) (emphasis omitted); . . . Applying state law, by contrast, only raises the risk of conflict between states, which never “agree[d] to submit to whatever might be done” to their citizens. . . . For that reason, state law has never “st[oo]d in the way” of using “recognized” (federal) common-law principles. . . . see The Federalist No. 80 (Alexander Hamilton) (“Whatever practices may have a tendency to disturb the harmony between the States, are proper objects of federal superintendence and control.”).

The point is that federal law still reigns supreme in these types of disputes, notwithstanding Erie’s famous declaration that “[t]here is no federal general common law.” Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938); . . . The reason is the “‘overriding . . . need for a uniform rule of decision’ on matters influencing national energy and environmental policy.” City of New York, 993 F.3d at 91–92 (quoting Illinois v. City of Milwaukee, 406 U.S. 91, 105 n.6 (1972), superseded by statute, Federal Water Pollution Control Act Amendments of 1972, Pub. L. No. 92-500, 86 Stat. 816). As the Second Circuit has put it in circumstances like these, conflicts between states with different tolerances for greenhouse-gas emissions can only be resolved at the federal level because of the “unique[] federal interests” involved. . . .

Today’s lawsuit is as good an example as any. . . .

The problem, of course, is that the state’s attempt to set national energy policy through its own consumer-protection laws would “effectively override . . . the policy choices made by” the federal government and other states. Ouellette, 479 U.S. at 495. Regulating the production and sale of fossil fuels worldwide, in other words, is “simply beyond the limits of state law.” City of New York, 993 F.3d at 92. . . .

The complaint itself all but dares the companies to raise a federal-preemption defense. And no one doubts that they will or that it will be the focal point of the litigation. There is no reason for the removal rules to operate in such a confounding way.

And at one point, they didn’t. See Tennessee v. Union & Planters’ Bank, 152 U.S. 454, 460 (1894) (collecting cases). If there was a “real and substantial dispute or controversy which depend[ed] altogether upon the construction and effect of an act of Congress,” even if “the claim . . . might[] possibly be determined by reference alone to State enactments,” it was removable. R.R. Co. v. Mississippi, 102 U.S. 135, 140 (1880); see Union & Planters’ Bank, 152 U.S. at 460–62 (discussing the history). Perhaps for a “uniquely federal interest[]” like interstate pollution, it should still be that way. City of New York, 993 F.3d at 90; see Franchise Tax Bd., 463 U.S. at 11–12 (describing the well-pleaded complaint rule “as a quick rule of thumb” that “may produce awkward results”).

But only Congress or the Supreme Court gets to make that call. And we have our marching orders: even the strongest arguments for removal don’t work here.

I agree with Judge Stras that it is odd that these sorts of cases are being brought in state court under state law, and cannot be brought under federal law. The problem, however, is not that current removal jurisprudence is particularly stingy. The problem is that under current law — Milwaukee II and AEP v. Connecticut in particular, there is no federal law to govern the dispute, and thus no federal law to preempt the state law claims (a point I explain at greater length here).

Under Milwaukee II and AEP, the federal common law of interstate nuisance is displaced by the enactment of the Clean Water Act and Clean Air Act, leaving only state law to address such claims, a point the Supreme Court expressly affirmed in Ouellette. Put another way, even if the cases could be removed (and contrary to the conclusions of the Second Circuit in CIty of New York v. Chevron, there would still be no federal law to preempt the state law claims.

Federal common law can have preemptive effect, as Judge Stras notes, but that requires there to be federal common law, and the federal common law of interstate nuisance has been displaced. Further, neither the Clean Water Act nor the Clean Air Act preempts state-law claims of this sort. Indeed, contrary to the Second Circuit’s analysis, pollution control has historically been handled under state law (whether through common law causes of action or state and local regulation). Federal pollution control statutes were enacted against this background of state law, and only preempt state law in a few narrow instances (usually involving goods that are sold across state lines). Thus even if one were to adopt a broad notion of field or conflict preemption, it is still exceedingly difficult to argue that federal law—in this case, the Clean Air Act—was intended to preempt state-law-based claims arising out of climate change concerns.

Congress could change this state of affairs by enacting a federal climate change statute that preempts or constrains state law claims, but it has yet to do so. Indeed, other than the Infliation Reduction Act [sic], a spending bill, Congress has never enacted a statute for the purpose of controlling greenhouse gases or otherwise mitigating climate change. (It has enacted a few small statutes that have such effect, such as laws implementing international treaties concerning ozone-depleting substances, but the purpose of such laws was not to address greenhouse gases as such).

The Supreme Court could also address Judge Stras’s concern. Yet, as indicated above, a more permissive removal doctrine would not do the trick. Unless the justices are inclined to invent a good-for-climate-change-only carve out to existing doctrine, the only way for the Court to allow for the preemption of state law claims would be to resurrect the federal common law of interstate nuisance, and this would require overturning the doctrine of displacement announced in Milwaukee II and applied to air pollution in AEP.

Overturning Milwaukee II would be a dramatic step. Nonetheless, I would be okay with this result, as I believe the doctrine of displacement was invented to relieve the Court of having to consider interstate pollution disputes under its original jurisdiction. In my view, the displacement doctrine makes little sense in those contexts in which there needs to be federal law, such as in the context of interstate pollution, as it makes it too easy to eliminate federal common law causes of action, particularly where Congress has neither indicated its intention to displace such claims nor created a viable substitute.

A better approach would be to allow federal common law to operate unless preempted. The analysis here should be similar to what occurs under state law all the time. When states enact pollution control statutes (as they did long before the federal government got into the act), state courts would consider whether state legislatures expressly or necessarily barred state law claims from operating. The result is a test that it far more difficult to meet than under existing displacement doctrine, but a little bit more permissive than federal preemption doctrine under cases like Virginia Uranium (as the federalism concerns that may justify a presumption against preemption are not in play when a sovereign is preempting its own common law). It would also be perfectly fine for Congress to preempt all climate-based litigation in the process of enacting a meaningful climate policy, such as a carbon tax. (Indeed, I would support such a move.)

What would not be a satisfactory or justifiable outcome would be for the Supreme Court to hold that climate-related claims can be removed and preempted by a federal common law that otherwise does not exist for the purpose of bringing climate-based claims. Such overt policy-making is not the province of federal courts, and a Court holding to such effect, in the absence of such an instruction from Congress, would be lawless and unprincipled. And this is all the more reason why Congress needs to get off the climate policy sidelines.

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