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From McLaughlin v. Bd. of Regents, decided yesterday by Judge Joe Heaton (W.D. Okla.):

According to the amended complaint, plaintiff [Kylee McLaughlin] was a premier volleyball player and scholarship student athlete who played on the University [of Oklahoma]’s intercollegiate women’s volleyball team. She also describes herself as a practicing Christian and conservative in her political beliefs. Defendant Lindsey Gray-Walton is the head women’s basketball coach. Defendant Kyle Walton is Gray-Walton’s husband and an assistant women’s volleyball coach….

The amended complaint broadly alleges a pattern of pressure and retaliation against plaintiff due to her political beliefs and her reactions to claims of racism by others. She alleges that during the period following the killing of George Floyd and of the COVID-19 pandemic, the focus of the coaches of the O.U. volleyball team shifted from volleyball to required discussions about “white privilege and social justice,” including watching documentaries about racism and slavery. The complaint alleges that, although her mandated comments about a required documentary were not racist, another team member suggested via a social media post that plaintiff’s comments were those of a racist.

The complaint alleges that, on June 12, 2020, plaintiff posted emojis (a laughing clown and a skull and crossbones) on an ESPN website to indicate her skepticism as to whether “The Eyes of Texas,” a song of some popularity in the State of Texas, was a racist song. According to the complaint, the posting triggered an immediate contact from Gray-Walton that same day, adverse comments from some of her teammates, and, on the following day, instructions from Gray-Walton for plaintiff to take down her posts and an extended discussion about “white allergies and white privilege” and plaintiff’s need to look into herself to identify those things.

The complaint further alleges that, a day or so after the ESPN posting, Gray-Walton and Kyle Walton, along with others, conducted a team meeting directed at plaintiff’s comments about the documentary and “The Eyes of Texas.” The meeting allegedly included a representative of “the Psychological Research Organization” and O.U.’s Office of “Diversity, Equity and Inclusion.” According to the complaint, plaintiff was called a racist and a homophobe during the meeting (apparently by other teammates). Allegedly, defendant Gray-Walton said something to the effect that “we can’t save you when you get into the real world” and defendant Kyle Walton said, “Not sure I can coach you anymore.”

The complaint alleges plaintiff attempted to apologize but the group rejected the apology because they viewed it as offered with insufficient feeling. Allegedly, due to pressure from Gray-Walton, plaintiff apologized to the coaches and players at the University of Texas the next day by phone and they were more accepting.

The complaint indicates the incident(s) and the accusations that plaintiff was a racist and a homophobe resulted in more meetings, eventually resulting in a zoom meeting (apparently with Gray-Walton and Toby Baldwin, identified as “O.U.’s compliance officer”) in which plaintiff was told she “did not fit the culture of the program” and could not be trusted based on her media posts and comments reported by her teammates. She was allegedly presented with an “ultimatum” as to her senior season and required to pick between three options: (1) keep her scholarship, redshirt, practice only with her coach but not the team, and undergo more diversity, equity, and inclusion training, (2) keep her scholarship but only as a student (apparently meaning off the team), or (3) transfer to some other school.

The complaint alleges plaintiff initially elected the first option but also attempted to transfer later. She indicates she, although a senior, was required to participate in the freshman athletic orientation over two days. She alleges she was later required to be in an individual “Growth Plan,” involving training about “homosexuality, unlearning ‘classism’, ‘ableism’, ‘trans and homosexual negativities’, and ‘sexism.'” … The
complaint generally alleges defendants’ actions were the result of their strongly held
political or social justice beliefs, including support for critical race theory, opposition to
President Trump, and a belief that white persons like plaintiff are privileged and racist…. The complaint alleges she was ultimately forced to transfer to another school because of the defendants’ actions….

The court concluded that McLaughlin had stated a First Amendment claim; it cited the high school speech precedents (Tinker, Fraser, Hazelwood, and Mahanoy)—I think it incorrectly, since I think they don’t generally apply to college students—but added that the “substantial public interest in protecting a student’s right to express unpopular opinions” is “[p]resumably … even more substantial in a university context than in a high school such as Mahanoy involved.” And it concluded (I think correctly) that, even applying the high school cases, McLaughlin could prevail, if the facts were as she described them to be:

[T]he complaint alleges plaintiff’s participation in constitutionally protected speech. If a student’s posting, via social media, of a direct and vulgar attack on her school and its coaches is protected speech (i.e., Mahanoy), it is difficult to see how posting a somewhat ambiguous emoji on a third-party website, apparently expressing skepticism that “The Eyes of Texas” is a racist song, could be otherwise.

Further, plaintiff’s alleged on-campus statements of her political views, although in the context of a school-sponsored activity, were also protected. There is nothing in the complaint to suggest that plaintiff presented her opinions in a disruptive manner or that they were vulgar or indecent. {Defendants’ responses suggest plaintiff said other things that were objectionable beyond those described in the complaint. That may well be, but the inquiry for present purposes is limited to the allegations of the complaint.} Further, it is less than obvious that the coach of the volleyball team has a legitimate pedagogical interest in policing the political opinions of the team’s members….  “Of course, players do not completely waive their rights when they join a team; a coach could not dismiss a player simply because the player had religious or political views that were unpopular with his teammates.” Lowery v. Euverard (6th Cir 2008)….

[T]he complaint [also] alleges facts sufficient to [show] {adverse action sufficiently severe as to “chill a person of ordinary firmness” from engaging in the speech}. It alleges that defendant Gray-Walton ordered her to take down the post about the “Eyes of Texas,” pressured her to apologize to UT personnel, initiated team meetings focused on plaintiff’s opinions as expressed about the required film viewing, involved the University’s diversity and inclusion office in the discussion (which apparently resulted in remedial attitude-adjustment sessions for plaintiff but not others), restricted plaintiff’s opportunity to practice with the team, ignored inquiries from plaintiff and her parents, and ultimately forced her to leave the program. The allegations as to Gray-Walton easily meet the “chill” standard.

The question is closer as to defendant Kyle Walton, who appears to have had less involvement in the various challenged actions. However, his alleged comment to plaintiff during a team meeting — “Not sure I can coach you anymore” — is subject to multiple interpretations. In the context of a motion to dismiss, the court views the alleged facts in the light most favorable to the non-moving party and the referenced comment could be viewed as suggesting an intent to remove plaintiff from the team. So viewed, it states the necessary threat of adverse action. {Defendants suggest that plaintiff did not have a constitutional right to participate in an extra-curricular activity like being on the volleyball team. However, that fact is not determinative in the First Amendment retaliation context.} …

And the court also concluded that the coaches weren’t entitled to qualified immunity:

[W]hen the qualified immunity defense is asserted, a plaintiff must show not only that her constitutional rights have been violated but that the pertinent constitutional right was “clearly established” so as to put a defendant on notice that his or her conduct was proscribed. Ordinarily, “clearly established” means that there must be a prior Supreme Court or Tenth Circuit case on point, or that the clear weight of authority elsewhere points only in a single direction….

Here, the qualified immunity issue arises at the motion to dismiss stage and, as noted above, the factual allegations of the complaint are viewed in the light most favorable to plaintiff. The court draws all reasonable inferences from them in plaintiff’s favor. Viewed in that light, she has alleged that substantial penalties were imposed on her simply for expressing, in a non-disruptive way, political opinions that the coaches and/or other team members disagreed with. The court concludes it was clearly established that such conduct would run afoul of constitutional prohibitions.

With respect to the off campus conduct on which plaintiff relies (i.e., the ESPN posting), the most instructive case is Seamons v. Snow (10th Cir. 2000). Seamons involved a high school football player who was kicked off the team for reporting to the authorities an assault on him by teammates in the locker room and refusing to apologize for the reporting. The Circuit reversed the district court’s grant of qualified immunity to the coach. In finding that the pertinent law was clearly established, the court, referring to its earlier opinion in the same case, said “… extensive case law in 1993 supported the proposition that school authorities may not penalize students when that speech is non-disruptive, non-obscene, and not school-sponsored.” Here, the complaint alleges nothing that could plausibly be viewed as disruptive, obscene, or otherwise objectionable.

With respect to the on-campus speech alleged by plaintiff (her comments after viewing the film, etc.), the court concludes the clearly established law precluded what the complaint alleges the defendants did — punishing plaintiff purely for her expression of political opinions they or others disagreed with. The complaint does not allege speech by plaintiff that was disruptive, lewd, or obscene. There is no suggestion that plaintiff’s statements were inartfully expressed, poorly researched, or not thought through. It does not allege a basis for concluding her statements were “inflammatory or divisive.” … [T]here is nothing in the alleged circumstances to take this case outside the long- established principle that a state actor cannot retaliate against someone just because they disagree with them…. The principle was sufficiently established and obvious that a university professor or coach should have known of it.

The court also allowed McLaughlin’s intentional interference with contractual relations cases to go ahead against the coaches:

Defendants do not challenge that plaintiff’s relationship with OU was at least partly contractual in nature. Rather, they suggest she did not have a property interest in being there and therefore no claim exists. The court is unpersuaded. The question for present purposes is not whether plaintiff had a property interest in attending OU or playing volleyball, such as might be pertinent in evaluating a Due Process claim. Rather, the claim is for interference with a contract, and the complaint sufficiently alleges interference with it. To the extent the argument focuses on plaintiff’s scholarship, the complaint does not allege that her scholarship was revoked directly but it does allege that she was forced to leave the university as a result of the defendants’ conduct, with a consequent impact on the scholarship….

And it also allowed the intentional infliction of emotional distress claim to proceed as well:

Here, plaintiff alleges that defendants intentionally and recklessly labeled her as, or portrayed her as, a racist and homophobe. The court concludes the alleged conduct is sufficiently serious, in light of the relationship of the parties, the current societal and political climate, and the fact it occurred in a university setting, to qualify as extreme and outrageous. The complaint also alleges that plaintiff suffered severe emotional distress, sleeplessness, anxiety, embarrassment, injury to her reputation, and humiliation, as a result. At the motion to dismiss stage, plaintiff has sufficiently alleged an intentional infliction of emotional distress claim….

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On Wednesday morning, S.B. 8 was in effect. On Wednesday evening, after the district court injunction, S.B. 8 was enjoined. On Friday evening, after an administrative stay, S.B. 8 went back into effect. But this stay is temporary. On Tuesday, the Department of Justice will file a brief arguing that a stay pending appeal should be denied.

This dispute presents a perennial question in constitutional litigation: what is the status quo? Or more precisely, what remedy should a court of appeal issue to preserve the status quo. There are three possible ways to understand the status quo in this case.

First, Texas will argue that S.B. 8 was in full effect from September 1 through October 7. The District Court injunction altered that status quo for a period of 48 hours. And during that period, some doctors performed abortions that were otherwise prohibited by S.B. 8. The Fifth Circuit entered a temporary administrative stay which restored the pre-injunction status quo. The ruling halted post-cardiac-activity abortions, at least till Tuesday. Therefore, Texas will argue, the Fifth Circuit should enter a stay pending appeal to maintain the pre-injunction status quo.

Second, the Department of Justice will argue that the District Court’s injunction created a new status quo. And during that 48 hour window, some doctors performed abortions that were otherwise prohibited by S.B. 8. The Fifth Circuit’s temporary administrative stay altered the post-injunction status quo. The ruling halted post-cardiac-activity abortions, at least till Tuesday. Therefore, the government will argue, the Fifth Circuit should decline to issue a stay pending appeal to maintain the post-injunction status quo.

There is a third option. For about five decades, Texas has not regulated abortions between the six-week mark and the point of viability. S.B. 8, which went into effect on September 1, altered that long-standing status quo. The District Court’s injunction restored the pre-S.B. 8 status quo. The Fifth Circuit’s temporary administration stay altered the pre-S.B. 8 status quo. And the Fifth Circuit should decline to issue a stay pending appeal to maintain the pre-S.B. 8 status quo.

Here, I see some parallels to the post-Windsor same-sex marriage litigation. Since time immemorial, marriage had been limited to opposite-sex couples. But starting in December 2014, District Courts throughout the country declared unconstitutional state bans on gay marriage. And many of those district courts refused to stay their rulings. Same-sex couples raced to city hall, and received marriage licenses. Some clerks began to issue licenses, even in the absence of a binding injunction. It became very unlikely that any court would retroactively nullify those marriage licenses. Thus, failing to issue a stay more-or-less settled the issue with finality. The longstanding status quo was irreparably altered.

Howard Wasserman and I wrote about this litigation in our article, The Process of Marriage Equality.

Following Windsor, federal district courts in more than two dozen states enjoined enforcement of bans on same-sex marriage. Judges then had to decide whether to stay those injunctions pending review. An injunction alters the status quo. A stay of an injunction suspends that alteration, while refusing to grant a stay allows that altered status quo to take immediate, and perhaps irreparable, effect. Here, the altered status quo meant issuance of hundreds or thousands of marriage licenses. In several cases, denial of stays triggered simultaneous races to the courts of appeals and to the altars, with couples trying to obtain marriage licenses before a higher court intervened. Many local licensing officials promptly (and eagerly) issued licenses, without waiting for an Article III-final judgment. State attorneys general frantically—and sometimes prematurely— sought emergency stays from the courts of appeals and the Supreme Court.

The analogy between same-sex marriage and S.B. 8 is not perfect. A marriage license could not realistically be nullified. But an abortion could give rise to liability up to four years later. Howard highlights a unique provision of S.B. 8 that potentially exposes abortion providers to liability, even if they relied on a then-valid district court injunction:

A provider can be liable for abortions performed in reliance on a “decision” that was reversed or overruled on appeal. It appears to allow a plaintiff to recover for abortions performed while enforcement is enjoined, if the injunction is reversed on appeal.* So the state does not lose enforcement, in that a plaintiff can recover later (four-year limitations period) on abortions performed pursuant to an injunction.

Still, I think the same-sex marriage litigation in the Fifth Circuit sheds some light on the path forward.

In November 2014, federal district court Judge Carlton Reeves issued an injunction against Mississippi’s marriage law. The court stayed its injunction for 14 days so the state could appeal. In December 2014, a motions panel (Prado, Owen, Graves) granted a stay pending appeal. Judge Graves wrote the majority opinion in Campaign for Southern Equality v. Bryant. At that point, the Fifth Circuit had already schedule oral argument concerning similar appeals from Texas and Louisiana. Judge Graves, writing for the majority, explained that the best way to maintain the status quo would be to (1) grant a stay, (2) expedite consideration of the Mississippi case, and (3) hear the Mississippi case alongside the Louisiana and Texas cases:

Finally, while we recognize that Plaintiffs are potentially harmed by a continued violation of their constitutional rights, this harm is attenuated by the imminent consideration of their case by a full oral argument panel of this court. The court is scheduled to hear challenges related to Louisiana’s and Texas’s marriage bans in one month and has recently issued an order granting Plaintiffs’ application to expedite their appeal and scheduled the case for oral argument before the same panel. Given that Plaintiffs’ claims will soon be heard in conjunction with these two other cases, a temporary maintenance of the status quo balances the possibility of this harm with the need to resolve Plaintiffs claims in a manner that is both expeditious and circumspect.

Judge Graves also cited the need for “intra-circuit uniformity” during the pendency of the appeals. It would be create “confusion” to allow the Mississippi injunction to go into effect, while same-sex marriages were not permitted in Texas and Louisiana.

Further, considerations of intra-circuit uniformity and the avoidance of confusion, should this court lift the stay that is currently in place only to shift gears after individuals have relied on this change in law, also militate in favor of granting the State’s motion.

The Fifth Circuit’s stay in Bryant remained in effect until a few days after Obergefell. This delay proved the point that the Supreme Court’s judgment in Obergefell was not self-executing to everyone, everywhere. The Supreme Court does not have the power of judicial universality. Indeed, LGBT groups agreed with this proposition, as they sought attorney’s fees for post-Obergefell  litigation.

I think the SSM litigation provides a path forward for the S.B. 8 litigation.

In December 2021, the Fifth Circuit will hear arguments in Whole Woman’s Health v. Jackson. That case presents many of the same issues that are present in DOJ’s appeal. It would be both “expeditious and circumspect” to resolve all of the issues in the same appeal. Moreover, denying a stay in DOJ’s case would effectively nullify the stay granted in WWH. In other words, allowing Judge Pitman’s ruling to go into effect would give WWH all of the relief they sought, and more. To promote “intra-circuit uniformity,” a stay would be warranted, and the DOJ case should be heard at the same time as WWH. The Fifth Circuit could render a judgement by the end of the year, teeing up Supreme Court review for the current term. Here, I think a rocket docket appeal would be far more desirable than a shadow docket decision.

Finally, I do not think DOJ has an equitable cause of action. Even if the federal government faces irreparable harm, if the court agrees with me on the jurisdictional issue, there is a 0% chance of success on the merits. A stay is warranted on these grounds alone.

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From C.B. v. D.B. (No. 308204/2019, N.Y. County), decided Thursday by N.Y. state judge Matthew Cooper:

Throughout most of modern medical history, the advent of a vaccine was almost universally embraced as a means of protecting ourselves and our children from deadly or debilitating disease. In my lifetime, I need only think of how polio was eradicated in this country as a result of the vaccine first developed by Jonas Salk, with other diseases, such as measles, rubella, and diphtheria, having been similarly eliminated.

Then came COVID-19. Fortunately, most people, heeding expert medical opinion, have availed themselves of vaccines that promise not only to protect them and others from the ravages of COVID-19, but ultimately to completely vanquish the virus. Unfortunately, and to my mind, incomprehensibly, a sizeable minority, seizing upon misinformation, conspiracy theories, and muddled notions of “individual liberty,” have refused all entreaties to be vaccinated.

In this ongoing divorce case involving a three-year-old child, the issue of COVID-19 vaccination is now before me. The issue is not one of whether the child should be vaccinated; she is still too young to receive any of the vaccines. Nor is it one of whether I can require an adult to be vaccinated; to do so would stretch the authority of a matrimonial court to unprecedented lengths.

Instead, the issue is whether the [mother], who has de facto custody of the child and is fully responsible for her care and upbringing, can condition the [father]’s access with the child, which is limited and supervised, on [father] and his supervisor being vaccinated, or at the very least, submitting to a testing regimen prior to each of the access periods….

[Mother], recounting [father]’s history of substance abuse and untreated mental health issues, as well as the significant periods where he had not seen the child at all, sought to have [father]’s access subject to supervision. Sharing [mother]’s concerns for the child’s safety and well-being while in [father]’s care, I directed, by an order dated May 13, 2021, that his parental access be supervised by Comprehensive Family Services, an independent parenting services agency. I later modified the order to permit supervision by [father]’s parents.

Although there has yet to be a final determination as to custody, [mother] is the residential parent, with the child living exclusively with her in Manhattan, where the parties lived prior to their separation in 2019 and where the child attends preschool. [Father] lives with his parents on Long Island. His parenting time with his daughter is limited to daytime access every other weekend and continues to be supervised by his parents, mainly his mother. The child is represented by a Guardian ad Litem (the “GAL”) appointed by the court….

On September 2, 2021, [mother], joined by the GAL, made an emergency oral application for [father] and any supervisor utilized for [father]’s access to be vaccinated against COVID-19. On that date, I issued a Temporary Restraining Order (TRO) suspending [father]’s in-person access on an interim basis until he was vaccinated…. [Two weeks later,] both [mother] and the GAL stipulated on the record that, in lieu of [father] showing proof of his being vaccinated, they would accept his agreeing to a regular protocol of COVID-19 testing as a condition for the resumption of in-person parenting time. [Father], for reasons that seemed more connected to his animosity to [mother] than anything else, refused this reasonable proposal.

Following the argument, I continued the TRO but amended it to provide that [father]’s in-person access with the child would remain suspended until he and any approved supervisor either received a first dose of a COVID-19 vaccine or submitted to a COVID-19 testing regimen that included a PCR test once per week and a COVID-19 antigen test (AKA “rapid test”) within 24 hours of any in-person visit. As with the original TRO, [father] was to continue to have liberal virtual and telephone access….

It is well-established that there is a “rebuttable presumption that visitation by a noncustodial parent is in the child’s best interest and should be denied only in exceptional circumstances” where “compelling reasons and substantial evidence show that visitation would be detrimental to the child” or is otherwise “inimical to the welfare of the child.” Further, “[t]he paramount concern when making a parental access determination is the best interests of the child, under the totality of the circumstances.”

Here, in-person parental access by [father] is not in the child’s best interests, and there are exceptional circumstances that support its suspension. The danger of voluntarily remaining unvaccinated during access with a child while the COVID-19 virus remains a threat to children’s health and safety cannot be understated. Although some children infected with the virus experience mild symptoms, others are subject to serious illness and long-term health effects. Children under the age of 12 have not yet been approved to receive COVID-19 vaccines, so they are dependent upon the vaccination and health status of the adults around them. The danger extends beyond this child and includes a risk of serious infection to any person with whom the child comes into contact, including [mother], the child’s classmates, and their families….

The widespread availability of three different no-cost COVID-19 vaccines, with their continued, proven efficacy in preventing the spread of the virus and the development of serious symptoms in those who contract it, has resulted in the expectation that one must be vaccinated in order to participate meaningfully in everyday society. As of August 17, 2021, New York City requires everyone over the age of 12 to provide proof of vaccination to enter bars, restaurants, indoor entertainment, and gyms. [Other examples omitted. -EV] …

Most relevant to this case, the child’s preschool requires that teachers, staff, and any parent who participates in pick-ups or drop-offs or is otherwise involved in any school activity all be vaccinated. [Father] professes to love his daughter with all his being, and he asserts that he wants nothing more than to play an active and meaningful role in her life, which, presumably, would include dropping her off and picking her up from school and being part of her school community. Nevertheless, he adamantly refuses to do what his daughter’s schoolmates’ parents have all been required to do—be vaccinated.

[Father]’s arguments against vaccination are unconvincing. In response to [mother]’s emergency oral application on September 2, 2021, [father] stated that because he already had COVID-19, he believed he carries sufficient antibodies to the virus. To this end, he asserted he would consult with his doctor and provide expert medical opinion as to if he should receive the vaccine, and if so, when.

In his affidavit in opposition, however, [father] abandoned that argument and seemingly never consulted with a medical professional about being vaccinated. Instead, he adopted the novel position that his “religious beliefs as a Roman Catholic” precluded him from receiving the vaccine. This justification rings hollow given that Pope Francis, the head of the Catholic Church, is vaccinated and has encouraged Catholics everywhere to be vaccinated for “the common good.”

[Father] also sought to depict any vaccination requirement as an unreasonable intrusion on his rights as an American citizen. In doing so, he failed to recognize that those rights are not absolute but are subject to his duty as a citizen to other citizens and his duty as a parent to his child.

It is not necessary to more fully address [father]’s reasons for not being vaccinated, be they medical, religious, or constitutional. This is because he was offered an alternative to vaccination: submit to regular COVID-19 testing. When presented with this option, [father] rejected it outright unless the [mother] was subject to the same testing regimen. Given that [mother] is fully vaccinated, and she has daily in-person contact with the child as her full-time residential parent, it is apparent that [father]’s ultimatum was motivated by a desire to burden the [mother] as opposed to a commitment to keeping his child safe.

In suspending [father]’s in-person access on an interim basis, I am, of course, cognizant of the pronouncement of our Court of Appeals … that even temporary custody determinations should generally be made only after a plenary hearing. The Court recognized, however, that the “‘general’ right to a hearing is not an absolute one.” There are multiple reasons here not to deprive [mother] and the GAL of the relief they seek without having to wait weeks or months for a plenary hearing. These include the exigency of the circumstances with the risk of imminent harm to the child, the already extensive experience I have with the parties and my familiarity with their issues involving [father]’s parental access, and the fact that, by necessity, matrimonial courts routinely determine temporary access schedules—unlike determining custody—on motion papers and argument alone….

In the final analysis, the fundamental question in this dispute between the child’s two parents is this: What matters more to each of them, his or her own interests or those of their child? On one hand, there is the [father], who is unable to offer any reasonable, let alone compelling, reason why he should not be vaccinated or even undergo testing, resisting both simply because he sees it as his “right” to do so. On the other hand, there is the [mother], who is fully vaccinated and observant of COVID-19 protocols, seeking the imposition of reasonable conditions on [father]’s access not because it somehow benefits her, but because it serves to protect the health, safety, and well-being of the child.

Inasmuch as I find that requiring [father] and anyone regularly supervising his access to be vaccinated against COVID-19 or else undergo regular testing to be in the child’s best interests, [mother]’s motion is granted. Accordingly, [father]’s in-person parental access with the child is suspended until such time as he complies with the terms of the amended Temporary Restraining Order. [Father] shall continue to enjoy liberal virtual and telephone access with the child.

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A group of farmers and ranchers has asked the U.S. Department of Agriculture to reform or end the agency’s moronic beef “checkoff” program, which raises the price everyone pays for beef so that we may be subjected to those “Beef, It’s What’s for Dinner” ads, the Associated Press reported last month. The petition, which was due to the USDA this week, asks the agency to put the checkoff to a vote of the producers subject to the program. 

The petition was organized by the group R-CALF, which represents the nation’s independent cattle producers. R-CALF complains that most of the funds from the checkoff program find their way to the National Cattlemen’s Beef Association (NCBA), which represents many of the nation’s largest beef producers.

“Today, when you buy a Big Mac or a T-bone, a portion of the cost is a tax on beef, the proceeds from which the government hands over to a private trade group called the National Cattlemen’s Beef Association (NCBA),” Washington Monthly reported in 2014. “The NCBA in turn uses this public money to buy ads encouraging you to eat more beef.”

R-CALF’s petition, which received more than 19,000 signatures, explains why the 35-year-old checkoff program doesn’t work for its members, including that those who administer the program are unaccountable, that the program has suffered from corruption, and that the program stifles farmers’ and ranchers’ ability to engage in “robust competition, liberty, and freedom to operate as they see fit.”

As I explain in my 2016 book Biting the Hands that Feed Us, USDA “checkoff” programs exist for not just beef, but also pork (“Pork. The other white meat.”), dairy (milk mustache), and other foods.

While the USDA claims the antiquated, mandatory collectivist marketing approach empowers businesses, as I explained in a 2017 column on legal challenges to the beef checkoff program, these programs cost farmers and ranchers around $750 million each year. That’s a lot of unwanted coin to drop in order for the government to “empower” you.

While meat prices have risen steadily since the start of the pandemic, most farmers and ranchers haven’t seen their share of that pot grow.  That’s one reason the Biden administration is blaming the nation’s so-called “Big Four” meat processors for the rising prices. It also explains, in part, why R-CALF is pushing the USDA to end the checkoff program.

But the group’s chief complaint with the program is that its members are paying for USDA promotion, the Associated Press reports, “at a time when imports are flooding the market and plant-based, ‘fake meat’ products are proliferating in grocery stores.”

Checkoff programs are an expensive, pointless, and unconstitutional imposition on the rights of farmers and ranchers to market their food as they see fit. Marketing beef, of course, is not a problem—no more than, say, marketing soap is a problem. If some ranchers choose to band together and buy ads touting the awesomeness of their meat on their own time and dime, there’d be no issue. But that’s not how the checkoff program works. Rather, the problem with the beef checkoff is that it’s a mandatory program that forces ranchers to participate and raises prices for consumers.

On top of that, they must participate whether or not they want or receive any benefits from the checkoff. Most don’t. Writing about a checkoff program in Biting the Hands that Feed Us, I note that “if there are any benefits to be had from [checkoffs], they aren’t likely to be enjoyed by you or your local farmer.” Indeed. R-CALF’s petition could be an important step toward ending the wasteful beef checkoff program, making beef what’s cost less for dinner.

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Hwang Dong-hyuk’s Squid Game is currently the most popular Netflix show on Earth and on track to be the most popular show the streaming service has ever produced. The nine-episode series tells the story of 456 heavily indebted South Korean men and women who agree to play six children’s games in exchange for a life-changing sum of money, only to realize once the first game starts that if they lose, they die. 

The show is bloody, horrifyingly cruel to its characters, cruel in a different way to the viewer, and yet my wife and I binged the series in four nights. I’m not sure if I enjoyed it more as a brilliantly paced battle royale, or as a dark and occasionally incoherent commentary on the wealth gap and the burden of consumer debt.

Hwang said in an interview that he drew his inspiration for the show from “Japanese survival comics.” For Americans who aren’t steeped in manga, Squid Game shares some DNA with the Hunger Games franchise, and the broader universe of stories where several people enter a place and most of them die (Aliens, And Then There Were None). Squid Game combines that story model with an eerily childish setting, a large ensemble cast whose members span the personality gamut, and an unorthodox approach to brutality, which is visited on characters either with no emotion whatsoever or in the angriest way possible. It’s also genuinely tough to predict who will die when.

All of this makes Squid Game a perfect suspense thriller, and probably explains most of its popularity. But the show also has some interesting things to say about consumer debt.

In the first episode, we meet an underemployed middle-aged man named Seong Gi-hun (Lee Jung-jae) who is both a deadbeat dad and a moocher son. Seong gambles away his mother’s money, dodges loan sharks, and humiliates himself for cash. He eventually wakes up inside a massive bunker wearing a numbered tracksuit. He and several hundred other contestants are soon informed that they all have large personal debts that can be erased by winning a series of games.

Like Bong Joon-ho did in 2019’s Parasite, Hwang invites us to recoil at the contestants before he allows us to like them. The ones who are not outright bad still seem cursed to do bad things. As a character says to Seong in a moment of frustration, he is someone who has “to get into trouble to know it’s trouble.” That kind of person is pitiable, but no one who knows Seong has any pity left for him.

Yet the first time they are led by armed men through a pastelized Escher scene, you get the sense that it is far worse to be most of these people than to be scammed or pestered by them. Their failure to provide for themselves in a socially acceptable way (and to accept whatever kind of life that amounts to) has made them a nuisance to their neighbors and family but deadly to themselves. South Korea’s upstanding citizens, even if they have to exert themselves to avoid scammers and crooks, have no need to play deadly games for debt relief.

Despite making explicit nods toward South Korea’s haves and have-nots, Squid Game is not a neat morality play. For starters, the villains are wealthy individuals, not ephemeral systems of inequality. And unlike in Bong’s film, the well-off in Squid Game are cautionary, not aspirational; all of these people have parasites.

That the contestants must slowly lose their humanity in order to win the game also muddies the subtext. Almost immediately, the average viewer should get the sense it would be better to spend the rest of your life in debt than live a comfortable life stained by this experience. And yet, Hwang’s characters choose to play, both before and after they know the stakes.

Are these contestants what Bong called “ordinary people who fall into an unavoidable commotion”? Or are they just caricatures of the average South Korean credit card user? We get a brief glimpse of that real-life background in one scene featuring a news report on South Korea’s total consumer debt, which is currently nearing the country’s gross domestic product.

While borrowing is a universal phenomenon, South Korea has a unique case of the IOUs. The country has offered a tax rebate for credit card use since 1999, and revoking the subsidy is a tough sell politically. As of 2019, South Koreans held an average of 3.9 credit cards, compared to 2.7 in the U.S. Reuters recently reported that lending limits imposed by the South Korean government have not deterred younger borrowers, who see taking out loans to invest in stocks and cryptocurrency “as the only way to outpace richer babyboomer parents” in a country where owning property is increasingly difficult. In August, The Korea Herald reported that South Korea became the first major Asian economy to raise interest rates since the beginning of the COVID-19 pandemic (from 0.5 percent to 0.75 percent) in order to “curb the country’s household debt and home prices, which soared in recent months.”

Squid Game will not provide viewers with all of the above political context, but it does make clear that our contestants will be hounded endlessly by creditors, cops, and familial obligations if they don’t give it the old college try.

That setup won’t please everyone (“Do they not have Financial Peace University in South Korea?” might be a thing I briefly wondered), but I suspect the show works more like a magic mirror than a tempered glass lens, the way White Lotus revealed different truths to different viewers and Parasite inspired debate about who we were supposed to dislike the most.

While Squid Game lacks a clear political message, it also doesn’t need one. 

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