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In Wednesday’s Danville Christian Academy, Inc. v. Beshear (E.D. Ky.), Judge Gregory F. Van Tatenhove’s granted a preliminary injunction that allowed religious schools to reopen in Kentucky; the governor’s closure order, the court concluded, violated the Free Exercise Clause. (The order was promptly appealed, and presumably Governor Beshear will ask the Sixth Circuit to hear the case on an expedited basis.)

[1.] The opinion concluded that there was sufficient evidence that the closure order burdened Danville Christian’s Free Exercise Clause rights:

To begin, the parties do not facially dispute that Danville Christian has a sincerely held religious belief in conducting in-person instruction. Nevertheless, the Governor argues that the fact Danville Christian halted in-person teaching earlier during the pandemic, when faced with an infected member of its community, seriously undermines the irreparable harm requirement of a preliminary injunction. By implication, this raises a challenge to the school’s sincerity. In response, Danville Christian argued that the halt in holding in-person instruction was a voluntary short-term act taken out of deference to the community, and now that more is known about the virus and other measures can be taken to allow classes to resume safely, it would violate Danville Christian’s First Amendment rights to force the school to hold virtual instead of in-person classes.

Exercising a judgment call to close for a short period of time when far less was known about the virus cannot now effectively counter its conviction. Danville Christian has presented evidence of the significance of in-person instruction, including the holding of weekly chapel services and corporate prayer throughout the day. The Court is also cognizant of the role of daily in-person mentorship of religious values that occur in religious schools that is simply not as feasible in a virtual setting. In extending the ministerial exception to private school teachers in Our Lady of Guadalupe School v. Morrissey-Berru, the Supreme Court expressed that in the First Amendment context, faith and education go hand in hand. “[E]ducating young people in their faith, inculcating its teachings, and training them to live their faith are responsibilities that lie at the very core of the mission of a private religious school.” Therefore, insofar as it relates to the irreparable harm prong, the Court finds this to be sufficient to demonstrate Danville Christian’s sincerely held belief.

[2.] The court then concluded that the closure order wasn’t neutral and generally applicable (and thus didn’t fall within Employment Division v. Smith) because it treated schools worse than preschools and universities:

There is ample scientific evidence that Covid-19 is exceptionally contagious. But evidence that the risk of contagion is heightened … in K-12 schools as opposed to preschools, universities, or colleges, is lacking. Dr. Steven Stack, the Commissioner of the Kentucky Department of Health, stated that Kentucky is particularly vulnerable to the spread of Covid-19 in schools because “an unusually high percentage of Kentucky children are cared for by their grandparents and older individuals are at higher risk of severe illness or death from Covid-19. He further stated, “[s]chools are high volume mixers of people” which can make reduction in the spread of Covid-19 difficult. Of course, that is true of many public settings. In spite of these factors, preschools, colleges, and universities will remain open so long as certain precautions are taken. Neither Dr. Stack nor the Governor have adequately explained why K-12 schools must close while these other institutions, where many children and young adults who live at home may still expose family members to Covid-19, can remain open.

The Governor’s executive order also seems to run counter to CDC recommendations. On November 19, 2020, CDC Director Robert Redford stated, “[t]he truth is, for kids K-12, one of the safest places they can be, from our perspective, is to remain in school,” and that it is “counterproductive … from a public health point of view, just in containing the epidemic, if there was an emotional response, to say, ‘Let’s close the schools.'”

If social distancing is good enough for offices, colleges, and universities within the Commonwealth, it is good enough for religious private K-12 schools that benefit from constitutional protection. Ultimately, “[t]he First Amendment protects the right of religious institutions ‘to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.'” …

“[R]estrictions on religious exercise that are not ‘neutral and of general applicability’ must survive strict scrutiny.” Although the efforts by Governor Beshear to prevent the spread of Covid-19 are commendable, the Executive Order bans all in-person instruction for K-12 schools, and this cannot be considered to be narrow tailoring as required under strict scrutiny.

{[A]lthough the Governor would like the Court to only compare schools in the context of the executive order and find the order to be one of general applicability, Maryville Baptist Church, Inc. v. Beshear (6th Cir. 2020)  instructs otherwise. In answering the general applicability question in Maryville, the Sixth Circuit questioned why law firms, laundromats, liquor stores, and gun shops could stay open while churches, despite following CDC-approved guidelines, could not. The restrictions which the Sixth Circuit criticized as “inexplicably applied to one group and exempted from another” are similar to those Danville Christian challenges today…. [P]reschools in the state remain open after this executive order, as do colleges and universities. The prohibition on in-person teaching is not narrowly tailored ….}

[3.] The court also concluded that the injunction here should apply to all religious schools in the state, and not just the Danville Christian Academy, largely because the lawsuit was also brought by the state Attorney General’s office:

Furthermore, the Supreme Court of Kentucky has indicated that the Attorney General has an obligation to serve all members of the Commonwealth. This obligation includes suing government actors on members’ behalf to protect constitutional rights. In the present case, the Executive Order at issue does not just affect Danville Christian. The Executive Order applies to all religious schools in Kentucky. Upon consideration of both judicial precedent and the expansive obligation of the Attorney General to serve all members of the Commonwealth, it becomes apparent that, because the violation established impacts all religious schools in Kentucky, the preliminary injunction must extend statewide.

[4.] Because the challenge here was brought under the Free Exercise Clause, it doesn’t apply to secular private schools. But secular private schools have Free Speech Clause rights, too, as well as rights stemming from the parental rights of the parents who send their children there (see Pierce v. Society of Sisters and Meyer v. Nebraska); and allowing religious institutions to keep teaching while barring secular institutions from doing so may well violate the Free Speech Clause and the Establishment Clause (see Texas Monthly, Inc. v. Bullock and Rosenberger v. Rector). I thus think that secular private schools would have an excellent argument if they wanted to go to court to ask to be treated the same as the religious schools.

Public schools, on the other hand, lack First Amendment rights that they can assert against the state legislature: “[A] political subdivision, ‘created by a state for the better ordering of government, has no privileges or immunities under the federal constitution which it may invoke in opposition to the will of its creator.'”

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When the Supreme Court blocked New York Gov. Andrew Cuomo’s restrictions on religious services this week, it was the first time the justices had enforced constitutional limits on government responses to the COVID-19 pandemic. The decision predictably provoked hyperbolic reactions from critics who seem to think politicians should be free to do whatever they consider appropriate during a public health crisis.

Describing the Court’s emergency injunction in Roman Catholic Diocese of Brooklyn v. Cuomo as “the first major decision from the Trump-packed court,” New York Times columnist Paul Krugman warned that “it will kill people.” He added: “The bad logic is obvious. Suppose I adhere to a religion whose rituals include dumping neurotoxins into public reservoirs. Does the principle of religious freedom give me the right to do that?” Krugman averred that “freedom of belief” does not include “the right to hurt other people in tangible ways—which large gatherings in a pandemic definitely do.”

There are several problems with Krugman’s gloss on the case, starting with his understanding of the constitutional right at stake. The Court was applying the First Amendment’s ban on laws “prohibiting the free exercise” of religion, which includes conduct as well as belief. Krugman, of course, is right that the Free Exercise Clause is not a license for “dumping neurotoxins into public reservoirs”—or, to take a more familiar example, conducting human sacrifices. But it is hard to take seriously his suggestion that holding a religious service during the COVID-19 pandemic, regardless of the safeguards observed, is tantamount to poisoning millions of people’s drinking water.

Under Cuomo’s rules, “houses of worship” in state-designated “red” zones were not allowed to admit more than 10 people; the cap in “orange” zones was 25. Those restrictions applied regardless of a building’s capacity. A 1,000-seat church, for example, would be limited to 1 percent of its capacity in a red zone and 2.5 percent of its capacity in an orange zone.

Cuomo’s restrictions on religious gatherings were much more onerous than the rules for myriad secular activities that pose similar risks of virus transmission. That point was crucial because the Court has held that laws are presumptively unconstitutional when they discriminate against religion. At the same time, it has said the Free Exercise Clause does not require religious exemptions from neutral, generally applicable laws, which obviously would include statutes that prohibit mass poisoning or murder.

It is undisputed that both the Brooklyn diocese and Agudath Israel, which sued Cuomo on behalf of the Orthodox synagogues it represents, were following strict COVID-19 safety protocols, including masks and physical distancing. It is also undisputed that no disease clusters have been tied to their institutions since they reopened. The plaintiffs were not asking to carry on as if COVID-19 did not exist. They were instead arguing that Cuomo’s policy singled out houses of worship for especially harsh treatment and was not “narrowly tailored” to serve the “compelling state interest” of curtailing the epidemic.

After these organizations filed their lawsuits but before the Supreme Court considered their request for an emergency injunction, Cuomo changed the color coding of the neighborhoods where their churches and synagogues are located. “None of the houses of worship identified in the applications is now subject to any fixed numerical restrictions,” Chief Justice John Roberts noted in his dissenting opinion. “At these locations, the applicants can hold services with up to 50% of capacity, which is at least as favorable as the relief they currently seek.”

In other words, Cuomo suddenly increased the effective occupancy cap for a 1,000- seat church 50-fold in formerly red zones and 20-fold in formerly orange zones. By Krugman’s logic, the governor is now allowing behavior as reckless as “dumping neurotoxins into public reservoirs.” Yet this is the same man whose judgment on these matters Krugman thinks we should trust without question.

“The scary thing is that 5 members of the court appear to think they’re living in the Fox cinematic universe, where actual facts about things like disease transmission don’t matter,” Krugman says. If so, Cuomo himself seems to have succumbed to the same propaganda, since he concluded that his original rules were far more restrictive than necessary.

New York Times reporter Adam Liptak suggests that the 5-to-4 decision in this case, which hinged on the replacement of Ruth Bader Ginsburg with the recently confirmed Amy Coney Barrett, reflects a new conservative majority driven by political considerations. “Chief Justice Roberts is fundamentally conservative, and his liberal votes have been rare,” Liptak writes. “But they reinforced his frequent statements that the court is not a political body. The court’s new and solid conservative majority may send a different message.”

Yet the six opinions issued on Wednesday night, no matter their conclusions, do not simply express policy preferences or partisan allegiances. They show the justices grappling with constitutional issues, as they are supposed to do.

Was Cuomo’s policy neutral and generally applicable? The five justices in the majority did not think so. Justices Sonia Sotomayor and Elena Kagan disagreed, arguing that houses of worship are not fundamentally similar to the many businesses that Cuomo allowed to operate without occupancy limits. Roberts, while arguing that an injunction was unnecessary in light of Cuomo’s sudden reclassification of the relevant neighborhoods, nevertheless conceded that “numerical capacity limits of 10 and 25 people, depending on the applicable zone, do seem unduly restrictive,” and “it may well be that such restrictions violate the Free Exercise Clause.”

Justice Stephen Breyer split the difference. “Whether, in present circumstances, those low numbers violate the Constitution’s Free Exercise Clause is far from clear,” he wrote, “and, in my view, the applicants must make such a showing here to show that they are entitled to ‘the extraordinary remedy of injunction.'”

In other words, while only five justices agreed that an emergency injunction was appropriate, seven were prepared to at least entertain the possibility that Cuomo’s restrictions were unconstitutional. Perhaps that proposition is not as outlandish as critics like Krugman think.

Leaving aside the specific legal issues raised by this case, the broader question is whether a public health emergency makes constitutional constraints optional. COVID-19 lockdowns that blocked access to abortion by classifying it as a nonessential medical service, for example, have been successfully challenged in several states. Does Krugman think those courts should have shown the same deference to politicians he believes is appropriate when restrictions on religious freedom are challenged?

In a Harvard Law Review Forum essay published last July, American University law professor Lindsay Wiley and University of Texas at Austin law professor Stephen Vladeck present a forceful argument against suspending the usual standards of constitutional review during a crisis like the COVID-19 epidemic. They note that “the suspension principle is inextricably linked with the idea that a crisis is of finite—and brief—duration”; it is therefore “ill-suited for long-term and open-ended emergencies like the one in which we currently find ourselves.” They add that “the suspension model is based upon the oft-unsubstantiated assertion that ‘ordinary’ judicial review will be too harsh on government actions in a crisis”—a notion that seems misguided given that “the principles of proportionality and balancing driving most modern constitutional standards permit greater incursions into civil liberties in times of greater communal need.”

Wiley and Vladeck emphasize “the importance of an independent judiciary in a crisis—’as perhaps the only institution that is in any structural position to push back against potential overreaching by the local, state, or federal political branches.'” They quote George Mason law professor (and Volokh Conspiracy blogger) Ilya Somin’s observation that “imposing normal judicial review on emergency measures can help reduce the risk that the emergency will be used as a pretext to undermine constitutional rights and weaken constraints on government power even in ways that are not really necessary to address the crisis.” Without such review, Wiley and Vladeck warn, “we risk ending up with decisions like Korematsu v. United States,” the notorious 1944 ruling that upheld the detention of Japanese Americans during World War II. The risk of excessive deference, they note, is that courts will “sustain gross violations of civil rights because they are either unwilling or unable to meaningfully look behind the government’s purported claims of exigency.”

Justice Neil Gorsuch’s concurring opinion in Roman Catholic Diocese of Brooklyn v. Cuomo amplifies that point. “Even if the Constitution has taken a holiday during this pandemic, it cannot become a sabbatical,” he writes. “We may not shelter in place when the Constitution is under attack. Things never go well when we do.”

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Imagine a debate about marijuana legalization. One participant avows that “I’m for legal marijuana. I’m only against the illegal kind.” Most people will readily see that he is evading the issue: the whole point under discussion is whether existing laws banning the sale and possession of marijuana should be liberalized, or perhaps abolished entirely.

Along the same lines, imagine a debate over racial segregation circa 1960. One participant says: “I’m for legal integration. But I’m against the illegal kind.” Here too, it’s obvious that the person who said that is missing the point. The question at issue was whether existing segregation laws should be abolished (or at least severely curtailed). If she wants to argue that segregation laws are fine in some states (those that had them at the time), but wrong in others (those that did not), she needs to provide some explanation for why segregation is right and just in the former locations, but wrong elsewhere.

The same goes for almost every other context where there is a debate about liberalizing laws restricting some activity. Everyone who follows such questions recognizes that “I’m for legal X” is an evasion of the real issue, one that does nothing to advance the discussion.

The big exception is immigration policy. There, we routinely hear variants of “I’m for legal immigration, but against the illegal kind.” And many see this is as a serious argument.

In reality, it is no more valid than similar statements in the context of segregation, the War on Drugs, or anything else. The whole point at issue in discussions of immigration policy is whether various types of immigration should be legal. Saying “I’m for legal immigration” does nothing to address that question.

If the idea is that you support currently legal immigration but oppose any that is not currently legal, than you need to explain how and why status quo policy draws the right line—much like the person who supported segregation in some states but not others in the example given above had to explain what the difference between the two types of states is. Saying “I’m for legal immigration” does nothing to refute arguments to the effect that current immigration restrictions are unjust, cause enormous economic harm, and threaten the liberty of natives as well as would-be immigrants.

If the claim here is that people have a moral duty to obey immigration restrictions until such time as they are properly repealed by Congress, that still isn’t a response to claims that some or all of those restrictions should be abolished. Indeed, the greater the obligation we might have to obey even unjust and harmful laws, the greater the moral imperative of repealing such laws as quickly as possible.

Even on its own terms, the duty-to-obey-the-law theory has to confront arguments to the effect that many immigration restrictions are so severely unjust that migrants do not have a duty to obey them. That challenge is especially hard to meet if you, like many Americans, accept the idea that it’s perfectly fine to routinely disobey a wide range of less onerous laws, such as speed limits and various petty economic regulations. Regardless, the issue of whether people have a duty to obey a given law is conceptually separate from the issue of whether that law should exist in the first place. Most debates over immigration policy are actually about the latter issue.

Similarly, if your objection to currently illegal immigration is that it undermines respect for the rule of law, then that’s a great justification for legalizing it! That would solve the problem far more thoroughly than any crackdown possibly could. If you think that illegal immigration undermines the rule of law in ways that the lawbreaking most of us engage in on a routine basis does not (most adult Americans have violated federal criminal law at some point in their lives), then you must explain what it is that makes immigration law special.

Finally, if you really do support all currently legal immigration, and oppose only the illegal kind, then you should oppose Donald Trump’s and some other Republicans’ efforts to severely truncate currently legal immigration. If you are indifferent to such plans or actually back them, then you are not for currently legal immigration. You’re for massively cutting it, and you should defend that position.

There are plenty of intellectually serious arguments for restricting immigration, including some for cutting it below current levels. I address a wide range of such claims in my recent book Free to Move: Foot Voting, Migration, and Political Freedom. But the “I’m for legal immigration” trope is not a serious contribution to the discussion. The sooner we can retire it, the sooner we can focus on the real issues at stake in debates over immigration policy.

 

 

 

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In a recent outburst at a reporter who asked a question he didn’t like, President Trump angrily insisted that “I’m the President of the United States! Don’t ever talk to the president that way!” This is far from the worst Trump temper tantrum. But it caught my eye because of the similarity to a famous scene in Season 3 of Game of Thrones where King Joffrey throws a very similar tantrum and insists “I am the king!” As Joffrey’s grandfather Lord Tywin points out in response, “any man who must say ‘I am the king’ is no true king.” He then makes Joffrey go to bed.

 

Joffrey’s cruelty and total lack of self-control have often been analogized to Trump’s similar qualities, including by George R.R. Martin, author of the books on which the TV series is based, who noted that “they have the same level of emotional maturity.”

Trump is not the only politician who inspires Game of Thrones analogies. Last year, I critiqued Sen. Elizabeth Warren’s article praising Daenerys Targaryen and trying to analogize parts of her own political agenda to that of the Dragon Queen. Warren’s attempt to claim the mantle of Dragon Queen became even more problematic after what the latter did in episodes that aired a few weeks after the article was published (though, in my view, this plot twist was badly flawed).

Sadly, life imitates Game of Thrones all too often. Though they differ in various other ways, one thing Joffrey, Trump, Daenerys, and Warren all have in common is an aversion to structural limits on government power—especially when they themselves are the ones wielding it.

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

Friends, Season 2 of Bound By Oath, “No Right Without a Remedy,” commenced this very week. It is a very excellent podcast. We know because we made it.

• Martin Van Buren, an employee of D.C.’s Metro transit system, grows angry after a fellow employee helps a customer operate a fare card machine in Arlington, Va.—and thus beats his colleague so badly he required hospitalization. Yes, you read that right. D.C. Circuit: The injured employee must look to Virginia’s workers compensation law for a remedy.
• Fifteen-year-old gang member participates in the execution-style killing of four teenage members of a rival gang. The district court, departing downwards from federal sentencing guidelines, sentences the juvenile to 55 years in prison with no possibility of parole. Second Circuit: We assume, without deciding, that the lengthy sentence here (which technically falls short of a life sentence) requires consideration of the factors the Supreme Court has identified as relevant when sentencing juveniles to life without parole. We also note that allowing eligibility for parole would encourage rehabilitation and facilitate prison discipline. Still, given the brutality of the offense, the sentence is affirmed.
• The Oneida Indian Nation once occupied over 6 million acres of land in an area that would later become New York State. The U.S. recognized 300k acres of that land as a reservation in the 1794 Treaty of Canandaigua. A series of treaties further selling and dividing the land followed, leading to an ownership dispute over a nearly 20-acre parcel between the Nation and a member of the Nation who has attempted to create a separate tribe on several occasions. The Second Circuit rules for the Nation, featuring a debate between the majority and concurrence over whether tribal sovereign immunity affects a federal court’s jurisdiction.
• After being denied Social Security disability benefits, two disappointed applicants take their cases to federal court. Yowzer! While their cases are pending, the Supreme Court decides that all of the Administrative Law Judges employed by the Securities Exchange Commission have been unconstitutionally appointed. Can the applicants raise the same argument against the ALJs at the Social Security Administration? Fourth Circuit: Indeed they can; no need to have raised it at the administrative level.
• Allegation: Unarmed, mentally ill man flees from Gretna, La. police, curls up into a fetal position. They pin him down, making it impossible to comply with their commands. They tase him repeatedly and strike him in face, back, scrotum, and testes as he pleads for his mother. He dies. Fifth Circuit: No qualified immunity for two officers who administered the beating, but several other officers who failed to intervene are off the hook.
• Following the release of secretly recorded videos showing abortion providers discussing making fetal tissue available to researchers, Texas deems several abortion providers “not qualified” to provide services, terminates them from participating in Medicaid. Overruling a 2017 panel decision, the en banc Fifth Circuit holds that people who received or sought services from the providers do not have standing to challenge the state’s determination that the providers are not qualified.
• Chicago man convicted of double murder receives a new trial, leading to his acquittal. He subsequently sues police and the city for fabricating evidence. After his first trial ends in a mistrial and his second ends with a verdict for $80k, he asks for and receives a third trial. The jury returns a verdict for $22 million. Seventh Circuit: Good for him. Dissent: There were no grounds for the third trial.
• Allegation: Seeking to question guest at Blaine, Wash. bed-and-breakfast, CBP agent enters the driveway, ignores the owner’s request that he leave, and then shoves the owner to the ground. (Turns out the guest is in the country legally.) When the owner complains to his superiors, the agent retaliates by, among other things, trying to get the IRS to investigate the owner. Ninth Circuit: It’s well-established that you can sue federal officers for excessive force. And, though there’s no precedent saying you can sue officers for retaliating as the agent did, there’s no reason not to allow that claim to proceed either. Case un-dismissed.
• Per court order, guards at Pelican Bay prison in California conduct welfare checks every half hour around the clock. Allegation: And create far more noise than necessary, depriving inmate of sleep at night. Ninth Circuit (over a dissent): It’s clearly established that sleep deprivation via constant illumination is unconstitutional, but there’s no precedent about excessive noise arising from compliance with court-ordered welfare checks. Nor do we establish it here.
• San Francisco police officer spies a car with no plates parked at a gas pump. Unable to approach the driver’s side, he walks up to the passenger’s side, opens the door, and leans in to talk to the driver. Upon discovering that the driver has a suspended license, the officer arrests the driver, and an inventory search of the car turns up a handgun. The driver is convicted of being a felon in possession. Ninth Circuit: But opening the door and leaning into the car violated the Fourth Amendment, so the evidence is excluded. And although we would normally consider this argument forfeited, having been raised only in a footnote before the trial court, the gov’t forfeited its forfeiture objection.
• And in en banc news, the Ninth Circuit will not revisit its earlier conclusion that a California resident—who is now the husband of a U.S. citizen—can seek to overturn a 1998 deportation order on the ground that the conviction on which it was based (involving facts that occurred in 1988, when the gentleman was 14 years old) was expunged over twenty years ago. Twelve judges dissent from denial, arguing that the decision gives rise to an 8-1 circuit split and is contrary to the unambiguous text of the statute.

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We are about to enter the ninth month of our COVID world. In many regards, time feels like it is standing still. Every day has a monotony like the one before. Yet, these past nine months have been a time of radical growth and transformation in ways that we really do not appreciate. Things that I thought were really important turned out to be unimportant. Things that I thought were impossible turned out to be quite easy. And things I thought I could never do have become old habit.

Perhaps my most profound lesson during this entire time is to never doubt the human capacity to evolve to meet new challenges. And I think this lesson has extended to higher education. At the outset of the pandemic, I was quite pessimistic about the ability of universities in general, and law schools in general, to cope with the pandemic. This skepticism was borne of my observations over the past decade: legal academia is a conservative (lowercase c) institution that evolves at a glacial pace. I did not think administrations and professors could move with enough agility to adapt to constantly-changing circumstances. I looked to elite institutions like Harvard Law School, which shut down entirely, as the canary in the kale mine: if HLS thinks it is too dangerous to stay open, how will less-prestigious schools stay open. And I also expected state and local governments to impose new draconian lockdown measures to shut down campuses.

I was wrong. Some universities preemptively shut down. In hindsight, those decisions may have been too rash. Other universities tried to open up, but failed miserably, and had to shut down. But the bulk of institutions opened up successfully, and stayed open throughout the semester.

Here, I can speak from personal experience. The South Texas College of Law Houston made it through the entire semester without any outbreaks. In a short period of time, we built several new classrooms to promote social distancing. We established elaborate protocols to ensure safety. And 1Ls were able to take the bulk of their classes in a “hybrid” model. We had very, very few positive cases, and almost all of them were off campus. I did not see any evidence of community spread in the building.  I commend my Dean, administration, colleagues, staff, and students for creating an entire online university in the span of months. It is truly remarkable what was accomplished in such a short time. For the spring, we are offering a larger number of upper-level classes on campus. And I suspect colleagues at other schools can tell similar success stories. There are also some colleagues who have some not-so-successful stories.

Moreover, the online model of learning became surprisingly normal–and effective. I have not yet graded exams, but my general sense is that students have roughly the same level of comprehension as in a normal semester. I feared there would be a huge disparity in retention, but that has not proven true. I also worried that there would be a serious burnout towards the end of the semester. I think concerns about “Zoom fatigue” are a bit exaggerated. Every year, I discern a drop in participation as the end of the semester nears. The late-term decline this year was no greater than usual. I resist the urge to blame the normal ebbs and flows of eduction on Zoom. The normal limitations of students exist, whether online or in person. Online education is not a perfect, or even a good substitute for in-person learning. But it has proven to be a far more effective substitute than I expected.

Yet, I recognize that online education has other costs. This year, I met with each of my students to review their midterms (over Zoom, of course). I would hold office hours on Saturdays and Sundays for much of October and November. In total, I spent about 20-30 minutes with each of my 100+ students. I found this time very effective, as it allowed me to forge a personal connection with a virtual student. I asked each student the same question: How is online education treating you? Consistently, students felt the lack of human connection. Chatting with classmates before class. Hanging out in the student lounge. Walking with a professor back to his office after class. These are interactions that Zoom can never, ever replace. Many students–especially those who lived alone–felt isolated and alone. (Students with families expressed the exact opposite problem, and worried that they could never get alone time!)

Eventually, law schools will be able to resume classes without social distancing requirements. A lecture hall that was built for 90 students will once again be able to seat 90 students. Will everything suddenly go back to “normal”? For many students, the answer is “YES!” Some of our students would be happy to never log onto Zoom ever again. Good luck with that. I think the legal practice will be forever transformed. Client meetings and court hearings will stay on Zoom, even after the pandemic passes.

For other students, however, the answer is not so clear. Part-time students, as well as commuter students, could benefit from having at least part of their education structured in a hybrid model. For example, I have some students that work from 9-5, then drive an hour downtown in rush hour, to begin four hours of class sessions. Other full-time students can have a 2+ hour commute each way. Perhaps, these students would be given the option to attend class in person two days a week, and attend hybrid classes two days a week.

I don’t see any reason to simply abandon all of the hard work done to improve hybrid education, given that there would be a serious demand. Students who want in-person learning only would get it. And students who want hybrid learning, and are willing to sacrifice the in-person interaction, would get it as well.

At the end of the spring 2020 semester (the infernal semester that would never end), I was pessimistic about the fall 2020 semester. But at the end of the fall 2020 semester, I am cautiously, and guardedly optimistic about the spring 2021 semester.

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