Community members including transgender locals and trans allies have inundated the Seattle Public Library with calls and emails, asking the library system to cancel an upcoming event hosted by the Women’s Liberation Front— a self-described “radical feminist organization” that has publicly espoused what critics call anti-trans views.
The group’s event, titled “Fighting the New Misogyny: A Feminist Critique of Gender Identity,” is publicized as “a critical analysis of gender identity” that will “make powerful arguments for sex-based women’s rights,” according to the event page. The event, scheduled to be held Feb. 1 in the Microsoft Auditorium at the Seattle Public Library – Central Branch, has placed the library at the center of a firestorm over how it can maintain its commitment to evolving ideas of intellectual freedom, provide access to information for the entire community, and be an inclusive space where all patrons feel safe and welcome.
A nonprofit group called the Women’s Liberation Front made a booking last month for space at the Central Library to hold a private event labeled as a women’s rights talk and presentation. It appeared to be a very simple booking request that was processed like any other. Our Event Services staff followed Library protocol, as always. Per our Intellectual Freedom and Meeting Room Booking policies, any group can book meeting spaces; and any group that books a private event at the Central Library can charge for the event.
Library leadership became aware of this booking and its controversial nature just yesterday. Similar events held at two other public libraries this year have been met with significant community protest in relation to the group’s views on transgender rights. We have been working to get up to speed on the implications of this event as they relate to our legal responsibilities, our role as a public institution, and our role as a safe, socially conscious space.
We have heard from patrons who believe we should not let this event happen in a Library space due to the group’s views. We have heard from others who say that not allowing this event to happen will endanger the Library’s founding principle of intellectual freedom. As a library valuing intellectual freedom, inclusivity, and community respect, our leadership is considering every option to ensure we respond to concerns about this event thoughtfully and in line with our values.
Controversial groups like these can test our limits as democratic centers of free speech and intellectual freedom, as well as our limits as a united community and organization. I hope you can recognize the difficult situation this has created for us. We are exploring every option we have in response to this moment, talking to other libraries who have been through it, scheduling discussions with our transgender staff and community, and consulting with the City of Seattle’s legal department on our options.
The law here is clear: When a library opens space for private groups to meet, it creates a “limited public forum,” in which the library may “not discriminate against a speaker’s viewpoint.” Ninth Circuit precedent (Faith Center Church Evangelistic Ministries v. Glover (9th Cir. 2006)) so holds, dictated by the Supreme Court’s broader First Amendment law, which has dealt with such programs in public schools and universities.
Viewpoint-neutral content discrimination in such limited public fora may be constitutional; for instance, the Ninth Circuit controversially held that a library may decline to open up its property to “pure religious worship” (though it may not exclude religious viewpoints on topics on which secular viewpoints are allowed). But viewpoint-based discrimination, such as the exclusion of messages that convey supposedly hateful or offensive or dangerous ideas, is unconstitutional (see Matal v. Tam (2017), which makes clear that discrimination against supposedly disparaging ideas or language is viewpoint-discrimination).
There is a hot debate in America about how the law and society should deal with people who identify as a gender that doesn’t match their anatomical or chromosomal gender. Should there be antidiscrimination laws that bar discrimination against transgender people? Should existing laws be interpreted as already barring such discrimination? How should various single-sex policies, whether for single-sex bathrooms, single-sex locker and shower facilities, or single-sex sports teams be applied when a person’s self-identification, anatomy, and chromosomes don’t fully match (a topic that arises especially often for transgender people, but may arise for others as well)? One side shouldn’t be able to block the other side from speaking in places that the government has opened up to a wide variety of private views. And indeed First Amendment law forbids the government from engaging in such discriminatory exclusion of views that some communities may oppose.
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Yesterday’s report detailing problems with how the FBI requested and pursued warrants to secretly wiretap a former Donald Trump aide didn’t stop with just describing concerns. Justice Department Inspector General Michael Horowitz also announced in the report plans to conduct an additional audit to determine how well (or poorly) the FBI follows proper procedures when requesting permission from the secretive Foreign Intelligence Surveillance Act (FISA) Court to surveil American citizens.
Buried amid all the descriptions within the 400-plus pages that documented the many ways the FBI improperly omitted or inaccurately described the information they submitted in their warrant application, the Office of the Inspector General (OIG) warned:
“Given the extensive compliance failures we identified in this review, we believe that additional OIG oversight work is required to assess the FBI’s compliance with Department and FBI FISA-related policies that seek to protect the civil liberties of U.S. persons. Accordingly, we have today initiated an OIG audit that will further examine the FBI’s compliance with the Woods Procedures in FISA applications that target U.S. persons in both counterintelligence and counterterrorism investigations.”
(Hat tip to Patrick Eddington of the Cato Institute, who noticed the passage and pointed it out on Twitter Monday afternoon.)
The Woods procedures describe the lengthy process FBI officials are supposed to go through when submitting a request for a FISA application to make sure every factual piece of information has been properly vetted and verified. It is supposed to be a painstaking process of dotting every i and crossing every t to get permission to use the FISA court to secretly surveil an American citizen on American soil. Former FBI agent Asha Rangappa explained in 2017 how difficult it was supposed to be to get a FISA warrant to wiretap Carter Page, in the service of arguing the FBI didn’t just casually get permission and couldn’t just decide to snoop on Page for political purposes to dig up dirt.
But nevertheless, it turned out that the FBI failed on several occasions to properly follow the Woods procedures. And if this hadn’t happened in such a high-profile case involving the current president of the United States, would we have even known?
Speaking of Trump, the American Civil Liberties Union (ACLU) is no fan. It has been turning to the courts to challenge the administration left and right, fighting his harsh policies on immigration and deportations. The ACLU brags on its site that it has filed 140 lawsuits against the Trump administration.
Some of those lawsuits are also connected to unwarranted domestic surveillance of American citizens, like border searches of tech devices. And while the ACLU may loathe Trump as a president, they’re still deeply concerned about the potential privacy violations highlighted by the OIG report. Monday afternoon they released comments by Hina Shamsi, director of the ACLU’s National Security Project, that probably are not showing up in the Twitter feeds of #Resistance folks:
“When the Justice Department’s Inspector General finds significant concerns regarding flawed surveillance applications concerning the president’s campaign advisors, it is clear that this regime lacks basic safeguards and is in need of serious reform. While the report found that there wasn’t an improper purpose or initiation of the investigation, it also found significant problems that are alarming from a civil liberties perspective. For instance, the litany of problems with the Carter Page surveillance applications demonstrates how the secrecy shrouding the government’s one-sided FISA approval process breeds abuse. The concerns the Inspector General identifies apply to intrusive investigations of others, including especially Muslims, and far better safeguards against abuse are necessary.
The system requires fundamental reforms, and Congress can start by providing defendants subjected to FISA surveillance the opportunity to review the government’s secret submissions. The FBI must also adopt higher standards for investigations involving constitutionally protected sensitive activities, such as political campaigns.”
It’s good to see that the ACLU’s strong concerns about unwarranted surveillance are not affected by their opinions about who is affected. More people should take note of the ACLU’s concerns rather than, as Robby Soave noted Monday evening, mistakenly thinking that the OIG report somehow clears the FBI.
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From the Colville Tribal Court of Appeals in Antonie v. Marchand, 2019 WL 5419957 (decided Sept. 30 but just summarized in the Westlaw Bulletin):
On August 20, 2018 the Petitioner filed a Summons and Complaint and a [request for an emergency restraining order seeking] permission to enter the parties previously shared residence to retrieve her and her son’s personal property (including an attachment identifying the property). In the ex parte motion, the Petitioner requested the Respondent be ordered to vacate the premises so she could enter the home and collect all of the identified personal property. She disclosed that she had already removed some personal property from the home, but she did not specifically identify the property. Within an hour of the filing, the Court entered an order without the benefit of a hearing and without notice to the Respondent that:
Denied the Petitioner’s “motion for emergency restraining order”;
sua sponte, ordered “the non-requesting party is restrained from contacting Petitioner and her son in any way at any location”;
ordered that the “Petitioner is allowed to retrieve her personal property August 25, 2018 from 9:00 a.m. to 3:00 p.m.”; and
set a show cause hearing for September 4, 2018.
The record does not indicate how, when or if the Respondent received service of the Order or the Complaint, but on August 22, 2018 he filed a “Motion and Affidavit” requesting a continuance on the grounds he was unprepared and needed to go through the personal property in the shared residence. He also requested a hearing on the ex parte motion indicating that he contested the ownership of the personal property identified in the list attached to the Complaint. That same day, without a hearing, the Court denied the Respondent’s Motion for Continuance, and affirmed the Petitioner’s ability to enter the home on August 25, 2018.
On August 23, 2018 the Respondent filed a second motion, requesting a hearing before the Petitioner was allowed to enter the home to remove property. In this filing the Respondent informed the Court there was a criminal matter pending in federal court in which it was alleged the Petitioner assaulted the Respondent and the federal court entered a restraining order prohibiting the Petitioner from contacting him. It appears from the Trial Court’s order, issued the same day without hearing, the Court did not fully address the Respondent’s requests and simply allowed the previous order and denial of a hearing to stand without amendment.
On August 24, 2018 the Office of the Tribal Prosecutor brought a Motion to Intervene and on behalf of the Respondent seeking to have the civil standby order quashed. In support of the motion the prosecutor noted that (among other things);
there was no emergency warranting distribution of property;
the Petitioner was not candid with the court;
the Petitioner failed to inform the court that she was subject to a restraining order issued by a federal court;
The federal court’s order was subject to full faith and credit;
the Respondent was the alleged victim of a crime perpetrated by the Petitioner and he was contesting ownership of the personal property being sought by the Petitioner;
Due process required a hearing to allow the Respondent to offer testimony to the court;
The items requested by the Petitioner were not critical and could be distributed after a hearing; and
The Respondent’s property was subject to damage if the Petitioner was allowed entry to the home.
On the day the prosecutor’s motion was filed, the Court, without a hearing, denied the prosecutor’s motion on the grounds that the prosecutor was not a party to the case and “no application to Accept a foreign judgment was filed,” and that the Court “had no proof” of any restraining order entered against the Petitioner. A subsequent Motion to Reconsider was also denied.
The Petitioner did not enter the residence on August 25 as allowed by the prior order. On August 30 she filed another ex parte motion requesting the Respondent be ordered from the home on September 1 from 9-4 to allow her to remove the previously identified personal property. The request was immediately granted, again without a hearing. A civil standby was allowed “if available.” There is no affidavit that the Respondent was served the order, but he apparently received notice as he vacated his home the next day.
On September 1, 2018 the Petitioner entered the home with other private citizens and without a civil standby and removed personal property from the home. It appears from the record she removed at least everything on the list attached to her Complaint and the Respondent later asserted to the Court that she removed more than was identified in the Complaint and damaged property left in the home….
The procedure followed in this matter is troubling and shines a light on the vital importance of due process protections built into our law and procedures. Parties must have reasonable notice to any substantive hearing to allow the parties time to prepare their respective cases. In this case the Trial Court made many decisions and entered crucial orders without the benefit of a hearing and without affording the Respondent the opportunity to be heard before relief was granted to the Petitioner….
When a court is presented with an ex parte motion requesting emergency relief it is constrained by the accuracy and completeness of the information contained in the pleadings offered by a single party. Within reason, the court presumes the truth of what is presented and grants or denies relief based on that information and this presumption. Because the initial pleadings may not accurately convey the complete facts of the situation, the court must be cautious about any ex parte relief granted. The court may only grant relief that is aimed at preventing imminent and irreparable injury to the requesting party.
In this case … the Court granted ALL of the relief requested in the Complaint without conducting a single hearing or knowing if the Respondent even had notice of the proceedings…. This Court makes no findings as to the disputed facts, but there was sufficient credible evidence before the Trial Court to put it on notice that there was a dispute as to the events that occurred between the Petitioner and Respondent and as to the relief that should be granted. The Court should have been alerted to the need to protect the due process rights of everyone involved, yet the Court maintained the ex parte emergency order granting the Petitioner all of the relief she requested in her complaint without the benefit of any hearings.
It is common for a court to grant emergency relief to a party to recover clothing, medications, toiletries and other important personal items from a home they’ve been forced to vacate. The court may also enter temporary restraining orders preventing either party from transferring, removing, encumbering, or concealing or in any way disposing of any property. There is no way, however, to find that the Petitioner or her son would be irreparably injured if the Court denied her the right to collect most of the items identified in her attachment until after the Court heard from all the parties. Granting the Petitioner the ability to collect furniture, art, kitchen items, holiday decorations and the like without a hearing is clearly erroneous.
There were multiple requests made and ample opportunity for the Court to hear from the Respondent before allowing the Petitioner to remove property from the home. The only hearing scheduled by the court was for September 4, 2018, AFTER the Petitioner was to be permitted to enter the Respondent’s home on August 25. Any hearing giving the Respondent the ability to address the Complaint that occurs AFTER the Petitioner is granted the relief requested in the Complaint is meaningless….
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This morning, the Supreme Court released the first signed opinion of the term in an argued case in Rotkiske v. Klemm, a case concerning the statute of limitations under the Fair Debt Collection Practices Act. Although the subject matter of this case may not sound particularly exciting, there are several notable things about today’s opinion.
First, Justice Thomas wrote the opinion for the court. This is notable because Justice Ginsburg is often the first justice to issue a signed opinion in an argued case. Indeed, this is the first time since OT 2015 that the first opinion in an argued case was not written by RBG.
Second, Rotkiske was not unanimous. Rather, it was 8-1. Justice Sotomayor wrote a separate concurrence and Justice Ginsburg wrote an opinion dissenting-in-part and dissenting in the judgment. So while she didn’t have the first opinion for the Court, Justice Ginsburg did get write the term’s first dissent in an argued case.
The lack of unanimity in Rotkiske is interesting because early opinions are usually unanimous opinions. After all, it’s easier to finalize an opinion when the answer is clear and there’s no need for extensive back-and-forth among the justices. So it’s unusual for the first opinion to come in a case that splits the Court and produces multiple opinions. Early Per Curiam opinions are no surprise. Early divided opinions are.
Rotkiske was the only decision released today, but word is there could be more tomorrow.
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It began, unlike most epic love stories featuring two cosmically intertwined souls rediscovering their connection from some past life, in the printer room of the University of New Mexico’s Anderson School of Management.
It ended with a graduate student attempting to blackmail a professor into continuing their flirtatious banter, a sexual harassment investigation that treated the blackmailer as a victim, and, ultimately, a one-year unpaid suspension for the professor.
The professor made serious mistakes. He shouldn’t have let the conversation become romantic and sexual—an exchange he actively participated in. He shouldn’t have floated the possibility of hiring the student for a low-paid research position—an opportunity she initially expressed interest in taking, then turned down, and then used against him when he rebuffed her, according to documents obtained by Reason.
But the professor and the student never slept together. She never worked for him, and she never took one of his classes. They never even met in person, except for their initial five-minute introduction.
The Foundation for Individual Rights in Education (FIRE) has taken the professor’s case, and it is urging the university to reverse course.
“The university reached conclusions that defied reason and were completely at odds with all of the established facts of the case,” attorney Samantha Harris, a vice president of FIRE, tells Reason.
His name was Nick Flor. A tenured professor at the university, he had taught information systems and digital marketing for the past 17 years. He was in his 50s, married with kids.
Her name, for the purposes of this article, was Julia. (I have changed it to protect her anonymity.) She was a graduate student in her 30s. She was fond of hummingbirds, flowers, and astrology.
Julia knew someone who had taken one of Flor’s classes some years back, and when she saw him in the School of Management, she took the opportunity to introduce herself. It was a fleeting encounter that lasted all of five minutes, but Julia followed it up with an email to Flor the next day—May 10, 2018. She asked whether he was teaching any classes in the fall.
“I am glad we crossed paths the other day….” she wrote, ending the thought with ellipses, as was her habit. “It was likely meant to happen, as are most if not all things in the Universe…..”
Flor wrote back that he would not be teaching in the fall, but would be happy to chat with her about her academic interests.
Over the next two months, Julia sent Flor 3,258 emails and 174 text messages. Flor sent 2,218 emails in response—though his replies were usually shorter—and 11 text messages. Reason obtained and reviewed all of these messages.
The content of Julia and Flor’s correspondence became romantic, and then sexual. Julia sent Flor romantic songs, love horoscopes for their signs, and called him “babe.” She suggested cuddling, he suggested kissing, she expressed a desire for it to lead to something more, and so on.
Flor says he eventually realized what he was doing was wrong—among other issues, he was married—and tried to de-escalate matters. When he stopped responding to her messages as often as she would have liked, she threatened him. When he appealed to his department for help, he became the subject of an investigation. And after a procedure that he says violated his due process rights, he was found guilty of quid pro quo harassment.
Flor says he knows he shouldn’t have let the relationship develop the way it did. “I can’t excuse my behavior,” Flor tells Reason. “I exercised poor judgment.”
But he’s apoplectic at the idea that his conduct could be deemed sexual harassment, when the harassment—as evidenced by the full investigative file, which was obtained by Reason—went in the other direction.
“They’re treating me like I’m Harvey Weinstein,” he says.
Julia told the university’s investigators that she did not harass Flor, that it was he who pushed their conversation into sexually explicit territory, and that she felt compelled to keep it up because she worried not doing so would negatively impact her educational opportunities.
“I believe that Professor Flor should be fired,” Julia wrote in her victim impact statement. “Going through this process, and in particular, being the subject of retaliatory action and conduct by an instructor for exercising my civil rights has been nothing short of excruciating, daunting, and overwhelming. I have had to witness and endure, first-hand, the reality and influence of the power dynamic a faculty member inevitably and undeniably has over a student.”
Through her attorneys, she declined to comment for this article.
After the encounter in the printer room, Julia began earnestly conversing with Flor electronically. She was quick to stress that she believed their meeting was destiny and that it would be foolish to “take such synchronicity for granted.”
Flor’s initial responses were polite but curt. He provided answers to her questions about which classes she should take, whether she should go to law school, what the university’s Organization, Information and Learning Sciences program was like, and other things.
Within a few days, Julia had shared that she was nearly killed in a car accident years ago and that she possessed lingering pain because of it.
“I’m a licensed therapist, in my own healing journey, but yet still,” she wrote, “cannot find anyone to help me heal or feel better….”
Julia also expressed an interest in gossiping about other faculty members—hidden insights, she claimed, that Flor would find “hilarious, intriguing, and mysterious.” Flor suggested switching to their personal email addresses or Google Hangouts for such conversations. One of her first messages was a picture of a male faculty member and an attractive woman standing next to each other on a golf course. Julia had circled the woman’s breasts, and the man’s crotch area, suggesting there was something going on between them.
Soon Julia was drawing hidden connections everywhere. She found it interesting that Flor had tweeted about hummingbirds right after she had seen—and attempted to photograph—precisely such a creature. Flor replied that this was bewildering. “Wow, maybe it wasn’t chance that we met,” he wrote back, adding a “haha.”
But Julia seemed to think this was no laughing matter. “I really don’t think you know how synchronous this all really is,” she wrote, sending him a picture of a hummingbird landing on a yellow flower. Flor pointed out that his last name meant flower, which pleased her.
email from Julia
Next came love songs—”Past Lives” by the musician Borns was a favorite—and horoscopes. Julia indicated that she expected Flor to actively interpret and respond to them, and she did not appreciate it when he failed to take them seriously enough. She became distraught when he referred to a psychic she admired as crazy, though for the most part Flor passively agreed with Julia that a mounting pile of evidence suggested they were connected in some way. Julia informed him that although he was 20 years her senior, they were actually both ageless—possibly having lived many lives before their current one.
email from Julia
Over the course of May, the conversation became steadily more romantic. Julia frequently referenced her pains, both physical and spiritual. Discussions of coping techniques led to a proposed massage and escalated from there. These were followed by sexually explicit, graphic messages—sent by both Flor and Julia.
“I don’t even know what came over me,” Flor says. By early June, he had realized he was making a terrible mistake, and it was time to wind down their romantic conversations.
email from Nick Florresponse from Julia
Julia was routinely sending lengthy declarations of love and descriptions of the kinds of emotional, physical, and spiritual pain she wanted him to help her heal. But by the beginning of June, she had noticed that he was barely responding to her emails.
“So what do you have against chatting with me?” she wrote, adding “just curious.”
She accused him—in half a dozen separate emails—of killing the romance. He had broken her heart, she said, in this life and in her previous ones. She alternated sending messages contemplating suicide, and pictures of flowers.
During the month and a half of correspondence, Julia and Flor had briefly discussed the possibility of her working a few hours each week as his assistant doing data and analytics. As the messages make clear, he proposed using leftover money from a National Science Foundation grant, which came to a grand total of $703. That meant 35 total hours of work, spread out across 7 weeks.
They couldn’t quite work out the logistics, and Julia declined the offer in a June 9 email. But a few days later, she asked about it again. By this point, Flor had quite sensibly decided to spend the money elsewhere, on new equipment, and told her so.
It was on June 24 that Julia made her first threat. She referenced Flor’s boss, and asked what he would think if she sent the boss screenshots of their romantic correspondence. Flor stopped responding to her emails, so she began texting him.
“I’ll also unfortunately keep on this til it’s addressed,” she said, referencing Flor’s refusal to answer her. “I’m still relentless.”
She also began stalking him on social media, sending him screenshots of a tweet he had liked. This tweet belonged to another female student.
“That’s what made her go ballistic,” Flor recalls.
The texts came at all hours of the day. On June 29, Julia texted him every few minutes, from 5:20 a.m. until 8:30 a.m. Over and over again, she repeated her threat to embarrass him by making public their earlier conversations.
text from Julia
Flor says he realized he could no longer ignore her threats, and felt he had no choice but to inform the university administration. He told his boss that he was experiencing harassing behavior from Julia, and his boss reported the matter to the university’s Title IX office, which deals with gender and sex-based misconduct. Flor met with the university’s compliance specialist on July 2. According to the investigative file, he told the specialist that Julia was harassing him because he would not pursue a relationship with her.
When Julia learned she was the subject of a Title IX investigation, she filed her own complaint, accusing Flor of quid pro quo harassment and retaliation. The university referred the matter to an independent investigator, who interviewed both parties over the next few weeks.
Flor had to come clean to his wife, something he described as “the hardest part of all of this.” They talked about everything, and though his behavior damaged their relationship, Flor says they have stayed together.
“It’s so hard to recover from,” he says. “But I feel like our relationship is stronger now because we talk so much about it.”
At the end of November, the independent investigator issued his preliminary findings, subject to comment from both Flor and Julia. Flor says at that point his attorney was optimistic.
Two weeks later, Flor learned that the university had taken the independent investigator off the case and replaced him with a woman, the interim Title IX coordinator at the university’s Office of Equal Opportunity (OEO). The documents informing Flor of this development included no explanation for it.
The interim Title IX coordinator then ruled that Julia had not sexually harassed Flor. In fact, her threats to publish their correspondence was “good faith civil rights protected activity,” the coordinator wrote in her report. The coordinator went so far as to dismiss the idea that revenge played any part in Julia’s decision making: Rather, “she presents as a very hurt individual grasping for some sort, any sort, of communication from a former lover.” (Again, Flor and Julia had never had a physical relationship.)
Flor did not get off so easily. The report found him responsible for quid pro quo sexual harassment and retaliation. In the OEO’s view, Julia might have believed that she needed to send him sexual messages in order to get the research position—a classic example of quid pro quo harassment. Flor’s decision to report Julia’s threats constituted retaliation.
“They kept her retaliation complaint but threw away mine,” says Flor. “They found me guilty. I don’t see how.”
The case went on for several more months, as Flor filed a series of fruitless appeals. Finally, in October 2019, it was time for sentencing. I spoke to Flor a few days before the hearing. He told me he was expecting to get off lightly: a 30-day unpaid suspension, perhaps. That had been the punishment, Flor recalled, when the university disciplined a football coach.
“It seems like that’s the worst thing they do to you,” says Flor.
On October 17, I received a frantic email from Flor. “It is worse than I ever imagined,” he wrote. The university had suspended him without pay for a full year.
The university declined to comment about the case, replying instead with a boilerplate statement.”The University of New Mexico abides by [university] policies and state and federal laws relating to disciplinary matters,” a spokesperson wrote in an email to Reason. “It is our practice not to discuss individual personnel matters.”
Julia would have preferred an even stronger sanction, according to her victim impact statement.
“Submission to the sexual advances were the basis of Professor Flor’s offers of employment to me,” she wrote in calling for his dismissal. “I was forced to make a decision: either 1) tolerate the increasing misconduct, sexual advances, and harassment from a professor in order to receive a Graduate Assistant/Project Assistant position and advance in my field and school of study, or 2) report the misconduct and policy violations. When I decided I had to report Professor Flor’s conduct things went from bad to exponentially worse because he chose to use his might to fire numerous false and retaliatory statements and allegations against me.”
Samantha Harris of FIRE believes the university has violated Flor’s due process rights.
“This is one of the most egregious cases of university malfeasance that I have seen in my nearly 15 years with FIRE,” Harris says. “The university found Professor Flor responsible with zero due process—no hearing, no opportunity to question his accuser—in a case where credibility was of critical importance.”
It has become much more common over the last decade for universities to adjudicate misconduct—particularly sexual misconduct—in a manner that disregards due process. In 2011, the Obama administration’s Education Department released a “Dear Colleague” letter that contained new requirements for publicly funded educational institutions. The department’s Office for Civil Rights instructed colleges and universities to take sexual misconduct accusations much more seriously, and to investigate them using a framework that would minimize the possibility of retraumatizing the victim. This meant lowering the burden-of-proof threshold to a preponderance of the evidence, defining misconduct broadly as “any unwelcome conduct of a sexual nature,” and discouraging investigators from allowing cross-examination.
The result was that many schools stopped holding adjudicatory hearings altogether, and instead moved to a single-investigator model, in which one administrator would decide which witnesses to question, produce a report based on these interviews, and then recommend a finding. Such procedures give accused parties very little opportunity to present evidence on their behalf.
Last year, under the guidance of Sec. Betsy DeVos, the Education Department rescinded its previous guidance. But many universities have vowed to continue operating as if nothing has changed.
Flor’s case is emblematic of this widespread abuse of the rights of accused students and professors. In a letter to the university, Harris wrote that the OEO’s findings do not establish that Flor “implicitly or explicitly conditioned employment on submission to sexual conduct.”On the contrary, FIRE points out, Julia declined the position after Flor had ceased his overtures. She was not interested in working with him if they were going to be mere work associates. Flor did not condition Julia’s employment on a romantic relationship—Julia did.
FIRE’s letter notes that Flor never received so much as a hearing, let alone an opportunity to cross-examine his accuser. He was not able to pose questions that a panel might ask of Julia. He was not able to present witnesses on his behalf—even though he knew of another professor who had received similar correspondence from Julia and would have been willing to appear on his behalf.
Indeed, documents forwarded to Reason by Julia’s attorneys make reference to this other professor, Smith. (I have changed his name to protect his anonymity.) Julia had also accused of Smith of sexual misconduct following an email- and text-based relationship that failed to yield an employment offer for her, but OEO cleared Smith of wrongdoing. On October 8, Julia wrote to the university’s board of regents, urging them to reverse this decision and sanction Smith. According to Julia, Smith broke off contact with her after his wife demanded that he do so.
“Professors must not dangle promises of job and project opportunities in front of a student with whom they are communicating with in a personal nature and then use their wife as an excuse to retract the offer and all communication,” wrote Julia in her appeal. “This decision was based on sex/gender and directly violates University Policy.”
Smith did not respond to a request for comment.
On November 13, Flor inquired about the outcome of a separate investigation: The university had also sought to determine whether he had violated Policy 2215, which deals with consensual relationships and conflicts of interest. This investigation had determined that Flor “did not exercise authority over a subordinate,” since he had not been teaching, supervising, or evaluating Julia. In this case, he had been cleared.
But according to Flor, the university only belatedly informed him of this important fact after he asked about it. If he had been told in August, when the decision was reached, he could have cited the outcome in his appeals concerning the Title IX matter.
“I look at this as withholding exculpatory evidence,” says Flor.
In the meantime, Flor can’t even look for alternative long-term work. The University of New Mexico has a policy prohibiting employees from working at any other job for more than 39 days per year. Flor asked the administration if he still counted as an employee during the term of his suspension. He was informed that he did.
He’s also worried that he will never again receive any grant money, since the OEO reported his Title IX violation to the National Science Foundation.
Flor is currently waiting for the outcome of another appeal. This “peer review” appeal, permitted under university policy, gives faculty members the power to review the appropriateness of a colleague’s sanction. They could opt to lessen Flor’s punishment, though his suspension—which goes into effect on January 1—is likely to begin before the faculty reach any kind of decision.
“FIRE will not rest until Professor Flor gets some justice in this egregious case,” says Harris.
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Impeachment articles are here. Democratic leaders in the U.S. House of Representatives unveiled the charges today, officially accusing President Donald Trump of abuse of power and obstruction of Congress for his alleged “quid pro quo” with Ukraine and efforts to cover it up.
“President Trump solicited a foreign nation, Ukraine, to publicly announce an investigation into an opponent [Joe Biden] … to help his reelection campaign,” said Rep. Adam Schiff (D–Calif.) at a press conference this morning, calling the evidence of Trump’s guilt in this regard “overwhelming and uncontested.” And “when the President got caught, he committed his second impeachable act,” said Schiff.
House Speaker Nancy Pelosi’s (D–Calif.) schedule sends a bit of a confusing message, however:
Pelosi has literally scheduled back-to-back press conferences to announce articles of impeachment against Trump and then support for his trade deal.
The House Judiciary will vote on the impeachment articles Thursday, and if they get through (as expected), a full House vote will happen the following week.
FREE MINDS
The Inspector General report on the federal investigation into the 2016 Trump campaign speaks to the FBI’s corruption and incompetence, independent of any partisan angle. Democrats and Republicans are both spinning it to their benefit…
But at the heart of the matter lies the same old overreach and incompetence among America’s top law enforcement agency.
Initial reaction: The IG report is indeed incredibly bad for the FBI, though not for the reasons Trump & his defenders assert. Only against the backdrop of their exaggerated claims could anyone call this any sort of “vindication” of the Bureau.
Said Hina Shamsi of the American Civil Liberties Union in a statement yesterday:
While the report found that there wasn’t an improper purpose or initiation of the investigation, it also found significant problems that are alarming from a civil liberties perspective…. The system requires fundamental reforms, and Congress can start by providing defendants subjected to FISA surveillance the opportunity to review the government’s secret submissions. The FBI must also adopt higher standards for investigations involving constitutionally protected sensitive activities, such as political campaigns.
No shortage of news today, but House Ethics Committee report on Duncan Hunter includes this line itemization of campaign funds spent on personal trips, items. Included: "Flights for pet rabbit"- $625 pic.twitter.com/ZnIIjV4Vgq
DOJ has done it again. A handful of people from New Jersey were released last month after serving 19.5 years, thanks to the crack retroactivity provision in the First Step Act. Today, on the 30th day of their freedom, DOJ filed appeals to send them all back. Disgraceful.
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I haven’t been blogging much lately, but I thought I would chime in to say why I strongly disagree with my co-blogger Josh Blackman’s view that it is problematic to impeach a President for abuse of power based on a corrupt scheme. Josh suggests that such an impeachment is legally improper because it “fails to accord with any notions of fairness for the accused.” I find Josh’s view highly unpersuasive, and I thought I would explain why.
As Josh tells it, impeaching a President for an abuse of power based on a corrupt scheme is unfair because a President has no possible way to know what a corrupt scheme is ahead of time. As Josh presents it, a President could just be sitting there, minding his own business, when boom! he is suddenly impeached. Josh writes:
[I]mpeachment for an “abuse of power” based solely on “corrupt” intent gives Presidents no notice, whatsoever, of what is expected of them. There is a nearly infinite range of conduct that can fall within this category. The House report explains, “[t]here are at least as many ways to abuse power as there are powers vested in the President.” Virtually anything the President does can give rise to impeachment if a majority of Congress thinks he had an improper intent.
Here’s why I disagree.
First, I think Josh misrepresents the passage of the report to which he objects. Josh writes that the report “conceives” of this understanding of impeachment. Without any context, that makes it sounds like some sort of new theory cooked up just for Trump. But the House report’s passage was actually presenting and summarizing the teachings of the constitutional text, Framing-era history, and the precedents provided by prior impeachments. It is arguing that this is the Constitution’s preexisting impeachment standard, not that it should suddenly become the standard for Trump.
Here’s part of the report’s explanation, with footnotes omitted and a paragraph break added:
This understanding of impeachable abuse of power is rooted in the Constitution’s text, which commands the President to “faithfully execute” the law. At minimum, that duty requires Presidents “to exercise their power only when it is motivated in the public interest rather than in their private self-interest.” A President can thus be removed for exercising power with a corrupt purpose, even if his action would otherwise be permissible. As Iredell explained at the North Carolina ratifying convention, “the president would be liable to impeachments [if] he had … acted from some corrupt motive or other,” or if he was “willfully abusing his trust.”
Madison made a similar point at Virginia’s ratifying convention. There, he observed that the President could be impeached for abuse of the pardon power if there are “grounds to believe” he has used it to “shelter” persons with whom he is connected “in any suspicious manner.” Such a pardon would technically be within the President’s authority under Article II of the Constitution, but it would rank as an impeachable abuse of power because it arose from the forbidden purpose of obstructing justice. To the Framers, it was dangerous for officials to exceed their constitutional power, or to transgress legal limits, but it was equally dangerous (perhaps more so) for officials to conceal corrupt or illegitimate objectives behind superficially valid acts.
The report then discusses the Articles of Impeachment approved by the House Judiciary Committee before Nixon resigned:
Again, President Nixon’s case is instructive. After individuals associated with his campaign committee committed crimes to promote his reelection, he used the full powers of his office as part of a scheme to obstruct justice. Among many other wrongful acts, President Nixon dangled pardons to influence key witnesses, told a senior aide to have the CIA stop an FBI investigation into Watergate, meddled with Justice Department immunity decisions, and conveyed secret law enforcement information to suspects. Even if some of this conduct was formally within the scope of President Nixon’s authority as head of the Executive Branch, it was undertaken with illegitimate motives. The House Judiciary Committee therefore included it within an article of impeachment charging him with obstruction of justice.
Indeed, following President Nixon’s resignation and the discovery of additional evidence concerning obstruction, all eleven members of the Committee who had originally voted against that article joined a statement affirming that “we were prepared to vote for his impeachment on proposed Article I had he not resigned his office.”Of course, several decades later, obstruction of justice was also the basis for an article of impeachment against President Clinton, though his conduct did not involve official acts.
Yet obstruction of justice did not exhaust President Nixon’s corrupt abuse of power. He was also accused of manipulating federal agencies to injure his opponents, aid his friends, gain personal political benefits, and violate the constitutional rights of American citizens. For instance, President Nixon improperly attempted to cause income tax audits of his perceived political adversaries; directed the FBI and Secret Service to engage in targeted (and unlawful) surveillance; and formed a secret investigative unit within the White House—financed with campaign contributions—that utilized CIA resources in its illegal covert activities. In explaining this additional article of impeachment, the House Judiciary Committee stated that President Nixon’s conduct was “undertaken for his personal political advantage and not in furtherance of any valid national policy objective.”His abuses of executive power were thus “seriously incompatible with our system of constitutional government” and warranted removal from office.
This is not the entirety of the report’s passage, but you get the idea. This isn’t a new standard, the report is arguing, but the traditional one. From what I have read in books and chapters on impeachment from Frank Bowman and Philip Kurland, that sounds correct to me. And I think that makes Josh’s arguments about fair notice difficult to make.
Part of my disagreement with Josh may be based on how we read the report’s standard. Josh presents the House report as arguing in favor of an intent only standard, in which impeachment is proper only based on a President’s thoughts—”solely on ‘corrupt’ intent,” as Josh puts it. But here’s what the report says:
Abuse of power was no vague notion to the Framers and their contemporaries. It had a very particular meaning to them. Impeachable abuse of power can take two basic forms: (1) the exercise of official power in a way that, on its very face, grossly exceeds the President’s constitutional authority or violates legal limits on that authority; and (2) the exercise of official power to obtain an improper personal benefit, while ignoring or injuring the national interest. In other words, the President may commit an impeachable abuse of power in two different ways: by engaging in forbidden acts, or by engaging in potentially permissible acts but for forbidden reasons (e.g., with the corrupt motive of obtaining a personal political benefit).
As I read this language, and the explanation that follows, the report is not just saying that corrupt motive alone makes an act impeachable. Rather, it is saying that an impeachable abuse of power can be based on a corrupt scheme that misuses powers that the President had been given to faithfully exercise. That is, the fact that a corrupt scheme includes in part some power that President has been given to exercise faithfully doesn’t insulate the corrupt scheme from impeachment. Again, that sounds right to me.
A second way to construe Josh’s argument is more particular. Perhaps Josh is saying that a President would have no notice that something like what Trump actually did could lead to impeachment. I’m not sure if Josh is making that argument, but it’s worth pointing out why it is plainly wrong if he is. The facts about what Trump did and why he did it are remarkably clear, with most of the evidence coming directly from Trump himself, Trump’s White House, Trump’s appointees, and Trump’s lawyer. And what Trump did strikes me as pretty much the scenario you would have described if someone had asked you, before the Trump presidency, what kind of Presidential acts are impeachable.
Think about it. In an effort to falsely portray his likely 2020 opponent as being under criminal investigation, Trump sent his personal lawyer—not a government employee, but a person loyal solely to Trump in his personal capacity — to co-opt official government power to get a foreign country to issue a press release stating that Trump’s opponent was under investigation. Trump realized that if he could place his government power in private hands, to advance his private interests, that power could be used to get a press release that would let him portray Biden as under a cloud of criminal suspicion and help Trump in the 2020 election. So to get around the official channels that focused on the interest of the American people, Trump secretly placed that government power in a private hired gun with a duty of loyalty only to Trump personally to get the deed done.
This strikes me as pretty much the core of what the Constitution’s impeachment power is designed to address. And I should add, to the extent it is relevant, that I was against impeaching Trump before the Ukraine story broke. It was the astonishing facts of what happened with Ukraine that changed my mind, moving me from being against impeachment to being in favor of it.
One last thought. Even putting aside these points, I’m not persuaded by Josh’s major premise. Josh seems to be approaching impeachment from the standpoint of criminal law. The standard the House report describes is improper, he says, because it is inconsistent with “notions of fairness for the accused.” It sounds to me like a void-for-vagueness argument, where we say in criminal law that an accused’s right to freedom is wrongly violated if the criminal law does not state with some clarity what a person must do to avoid jail.
But I’m skeptical that the same standard of notice applies for impeachment. In the criminal law setting, we start from the premise that a person’s natural state is freedom. We demand high standards before that right to freedom is taken away by the State. But no one has a natural right to be President. The job of President is subject to all sorts of limits and caveats, and the check on the President imposed by the impeachment power is one of those longstanding limits.
Of course, we still must interpret the impeachment power correctly. But I don’t think our efforts to interpret the Constitution correctly should be unnaturally limited by importing criminal-law-based concepts of notice.
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A Greenville County, S.C., sheriff’s deputy accidentally shot the mother of a man she was trying to arrest for shoplifting from a convenience store. Bodycam video shows the deputy, identified by local media as Ashley Cure, confront Sean Theodore Kaiser outside his home. He went into the home and the deputy followed. She tried to put him in handcuffs, but Kaiser grabbed her. The deputy broke free and pulled her gun. The mother begged her to go outside and wait for backup, but the deputy refused. Kaiser then charged the deputy, who fired her gun, striking the mother. Seconds later, another deputy entered the home, kicked Kaiser so hard his shoe flew off, and arrested him. Sheriff’s office officials say Cure violated department arrest policies, and the incident is under investigation.
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