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In Australia, federal transportation officials along with those of the various states have agreed to ban vehicles with sexist, obscene or offensive slogans and images. Several states already have such bans. The move is specifically aimed at Wicked Campers, a van rental company whose services are aimed at young people. The company’s vans have spray painted designs with pop culture references that some consider to be offensive.
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In Australia, federal transportation officials along with those of the various states have agreed to ban vehicles with sexist, obscene or offensive slogans and images. Several states already have such bans. The move is specifically aimed at Wicked Campers, a van rental company whose services are aimed at young people. The company’s vans have spray painted designs with pop culture references that some consider to be offensive.
from Latest – Reason.com https://ift.tt/33lHTdZ
via IFTTT
“Fake news!” shouts the president. His supporters cheer.
That drives my colleagues into a frenzy of self-absorbed handwringing: “Threats to press freedom…press persecution!”
It’s silly. American reporters are hardly less safe because of President Donald Trump’s hyperbole.
(Trump is reckless when he uses the term in other countries. Authoritarians in Russia, China, the Philippines, Saudi Arabia, etc., now cite “fake news” while they jail or kill reporters. He should shut up about “fake news” when he’s overseas.)
But I smiled when I first heard him use the phrase, not because news stories are “fake”—they typically aren’t (reporters who make things up are usually caught and fired)—but because so much of what people call “news” is press releases and breathless exaggerations of isolated problems.
It’s stupid news.
This spring, I attended my 50th college reunion. Alumni officials asked me to join a panel titled “Free Speech and Fake News.”
It made me ask myself, “What were the biggest life-changing events in the 50 years since I graduated?”
My selections:
Only one of those giant changes (the fall of the Soviet Union) led the news!
Instead, “big” headlines of my previous reunion years (five-year periods when I might show up for the celebration) were topics like:
(I chose those stories from “biggest stories of the year!” reports in mainstream media like MSN and ABC News.)
Those events were worth covering, but why do media mostly ignore more important events like the creation of cellphones and Google or how millions have lifted themselves out of poverty?
One reason is because they happen gradually. When Facebook was being invented, few reporters noticed.
Another is because the big stories happen in more than one place. We reporters are good at covering plane crashes and murder. We can easily interview the official in charge.
But the biggest news, like changing attitudes about gender, happens all over the place.
When I graduated, 60 percent of the world’s population lived in extreme poverty. Now, fewer than 9 percent do. Globally, that’s probably the most life-changing event over the past 50 years—a great victory, made possible by freer markets.
But most reporters don’t like free markets, and politicians rarely talk about change they don’t control.
The “Band-Aid” concert meant well, but journalists hardly covered the big cause of famine in Ethiopia. It wasn’t African drought; it was Marxist governments that were happy to starve their enemies.
In 1989, the Berlin Wall coming down was too beautiful an image to ignore, but it would have been nice if journalists had spent time analyzing how wrong they’d been to call capitalism unjust and communism sustainable.
Instead, images of the Exxon Valdez oil spill dominated the news that year, helping spark a decade of exaggerated environmental fears.
In 1994, the Rwandan genocide did get news coverage, as it should have, but Americans heard much more about O.J. Simpson.
In 2004, coverage of the Iraq and Afghan wars was plentiful, which was good. But now that the Afghanistan War is America’s longest war, it gets very little coverage. It’s harder to report on long-term political problems that aren’t solved by U.S. military intervention.
During my previous reunion, in 2014, one of the biggest stories was hysteria about an Ebola virus outbreak. But only one American died from Ebola that year.
My fellow Princeton panelists sneered at me when I said that. They said that thousands died in Africa. That was true, but if that’s the measure of a news story, why aren’t millions of deaths from malaria and diarrhea in Africa front-page news? Because “Ebola!” scares reporters and makes for better clickbait headlines.
The news is stupid and shallow.
COPYRIGHT 2019 BY JFS PRODUCTIONS INC.
DISTRIBUTED BY CREATORS.COM
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Responding to the mass shootings that took 22 lives in El Paso and nine in Dayton over the weekend, President Donald Trump said it should be easier to confiscate people’s guns when they are deemed a threat to others. That prescription may or may not prevent any murders, but it will certainly hurt many innocent Americans by depriving them of their Second Amendment rights.
“We must make sure that those judged to pose a grave risk to public safety do not have access to firearms, and that, if they do, those firearms can be taken through rapid due process,” the president said on Monday. “That is why I have called for red flag laws, also known as extreme risk protection orders.”
Seventeen states and the District of Columbia have adopted such laws, most of them since the February 2018 massacre at a high school in Parkland, Florida. Although preventing mass shootings is the goal emphasized by advocates of red flag laws, data from Indiana and Connecticut, the first two states to enact them, show they are mainly used to protect people from their own suicidal impulses.
The evidence on whether they succeed in doing that is mixed, and so far there’s no firm evidence that red flag laws prevent homicide. One thing is clear: Taking away people’s guns based on predictions of what they might do with them raises thorny due process issues.
Despite the talk of “extreme” or “grave” risks, red flag laws typically refer to a “significant” risk—what that means is anybody’s guess. Given the imagined stakes, judges tend to err on the side of granting orders that bar people from possessing guns.
In Florida and Maryland, both of which enacted red flag laws soon after the Parkland shooting, initial orders, which are issued before the “respondent” has a chance to respond, are almost never denied. They last up to two weeks in Florida and up to a week in Maryland, where they can be extended for up to six months.
At the next stage, when the respondent finally gets a hearing, renewable orders lasting up to a year are issued 62 percent of the time in Maryland and 95 percent of the time in Florida. The difference in approval rates may have something to do with the fact that Florida allows petitions only by law enforcement agencies, while Maryland opens the door to relatives, intimates, cohabitants, physicians, and mental health specialists.
Florida nevertheless allows judges to consider any evidence they deem relevant, and its “significant danger” test is inherently vague, notwithstanding its “clear and convincing” standard of proof. Some states are even looser, requiring only “a preponderance of the evidence,” meaning any likelihood greater than 50 percent that the respondent poses a “significant” risk.
The upshot is that people can be stripped of the constitutional right to armed self-defense even when they almost certainly would not have used a gun to harm themselves or anyone else. “All the pressure is on the other side,” says Orlando attorney Kendra Parris. “There’s absolutely no downside to just going ahead and issuing the order.”
Parris has represented a college student who did not own any guns, had no history of violence, and had never threatened anyone but who nevertheless was an early target of Florida’s red flag law because he said some stupid things about mass shootings on Reddit. Another client was slapped with a gun confiscation order because he criticized teenaged gun control activists online and posted a photo of an AR-15 rifle he had built.
David Kopel, a gun policy expert at the Independence Institute in Denver, thinks properly designed red flag laws can have a positive impact. But he emphasizes the importance of procedural safeguards that states have largely failed to adopt.
“It’s a great idea on paper,” says Dave Workman, senior editor at the Second Amendment Foundation in Bellevue, Washington. In practice, however, “you’re guilty until you prove yourself innocent.”
© Copyright 2019 by Creators Syndicate Inc.
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“Fake news!” shouts the president. His supporters cheer.
That drives my colleagues into a frenzy of self-absorbed handwringing: “Threats to press freedom…press persecution!”
It’s silly. American reporters are hardly less safe because of President Donald Trump’s hyperbole.
(Trump is reckless when he uses the term in other countries. Authoritarians in Russia, China, the Philippines, Saudi Arabia, etc., now cite “fake news” while they jail or kill reporters. He should shut up about “fake news” when he’s overseas.)
But I smiled when I first heard him use the phrase, not because news stories are “fake”—they typically aren’t (reporters who make things up are usually caught and fired)—but because so much of what people call “news” is press releases and breathless exaggerations of isolated problems.
It’s stupid news.
This spring, I attended my 50th college reunion. Alumni officials asked me to join a panel titled “Free Speech and Fake News.”
It made me ask myself, “What were the biggest life-changing events in the 50 years since I graduated?”
My selections:
Only one of those giant changes (the fall of the Soviet Union) led the news!
Instead, “big” headlines of my previous reunion years (five-year periods when I might show up for the celebration) were topics like:
(I chose those stories from “biggest stories of the year!” reports in mainstream media like MSN and ABC News.)
Those events were worth covering, but why do media mostly ignore more important events like the creation of cellphones and Google or how millions have lifted themselves out of poverty?
One reason is because they happen gradually. When Facebook was being invented, few reporters noticed.
Another is because the big stories happen in more than one place. We reporters are good at covering plane crashes and murder. We can easily interview the official in charge.
But the biggest news, like changing attitudes about gender, happens all over the place.
When I graduated, 60 percent of the world’s population lived in extreme poverty. Now, fewer than 9 percent do. Globally, that’s probably the most life-changing event over the past 50 years—a great victory, made possible by freer markets.
But most reporters don’t like free markets, and politicians rarely talk about change they don’t control.
The “Band-Aid” concert meant well, but journalists hardly covered the big cause of famine in Ethiopia. It wasn’t African drought; it was Marxist governments that were happy to starve their enemies.
In 1989, the Berlin Wall coming down was too beautiful an image to ignore, but it would have been nice if journalists had spent time analyzing how wrong they’d been to call capitalism unjust and communism sustainable.
Instead, images of the Exxon Valdez oil spill dominated the news that year, helping spark a decade of exaggerated environmental fears.
In 1994, the Rwandan genocide did get news coverage, as it should have, but Americans heard much more about O.J. Simpson.
In 2004, coverage of the Iraq and Afghan wars was plentiful, which was good. But now that the Afghanistan War is America’s longest war, it gets very little coverage. It’s harder to report on long-term political problems that aren’t solved by U.S. military intervention.
During my previous reunion, in 2014, one of the biggest stories was hysteria about an Ebola virus outbreak. But only one American died from Ebola that year.
My fellow Princeton panelists sneered at me when I said that. They said that thousands died in Africa. That was true, but if that’s the measure of a news story, why aren’t millions of deaths from malaria and diarrhea in Africa front-page news? Because “Ebola!” scares reporters and makes for better clickbait headlines.
The news is stupid and shallow.
COPYRIGHT 2019 BY JFS PRODUCTIONS INC.
DISTRIBUTED BY CREATORS.COM
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via IFTTT
Responding to the mass shootings that took 22 lives in El Paso and nine in Dayton over the weekend, President Donald Trump said it should be easier to confiscate people’s guns when they are deemed a threat to others. That prescription may or may not prevent any murders, but it will certainly hurt many innocent Americans by depriving them of their Second Amendment rights.
“We must make sure that those judged to pose a grave risk to public safety do not have access to firearms, and that, if they do, those firearms can be taken through rapid due process,” the president said on Monday. “That is why I have called for red flag laws, also known as extreme risk protection orders.”
Seventeen states and the District of Columbia have adopted such laws, most of them since the February 2018 massacre at a high school in Parkland, Florida. Although preventing mass shootings is the goal emphasized by advocates of red flag laws, data from Indiana and Connecticut, the first two states to enact them, show they are mainly used to protect people from their own suicidal impulses.
The evidence on whether they succeed in doing that is mixed, and so far there’s no firm evidence that red flag laws prevent homicide. One thing is clear: Taking away people’s guns based on predictions of what they might do with them raises thorny due process issues.
Despite the talk of “extreme” or “grave” risks, red flag laws typically refer to a “significant” risk—what that means is anybody’s guess. Given the imagined stakes, judges tend to err on the side of granting orders that bar people from possessing guns.
In Florida and Maryland, both of which enacted red flag laws soon after the Parkland shooting, initial orders, which are issued before the “respondent” has a chance to respond, are almost never denied. They last up to two weeks in Florida and up to a week in Maryland, where they can be extended for up to six months.
At the next stage, when the respondent finally gets a hearing, renewable orders lasting up to a year are issued 62 percent of the time in Maryland and 95 percent of the time in Florida. The difference in approval rates may have something to do with the fact that Florida allows petitions only by law enforcement agencies, while Maryland opens the door to relatives, intimates, cohabitants, physicians, and mental health specialists.
Florida nevertheless allows judges to consider any evidence they deem relevant, and its “significant danger” test is inherently vague, notwithstanding its “clear and convincing” standard of proof. Some states are even looser, requiring only “a preponderance of the evidence,” meaning any likelihood greater than 50 percent that the respondent poses a “significant” risk.
The upshot is that people can be stripped of the constitutional right to armed self-defense even when they almost certainly would not have used a gun to harm themselves or anyone else. “All the pressure is on the other side,” says Orlando attorney Kendra Parris. “There’s absolutely no downside to just going ahead and issuing the order.”
Parris has represented a college student who did not own any guns, had no history of violence, and had never threatened anyone but who nevertheless was an early target of Florida’s red flag law because he said some stupid things about mass shootings on Reddit. Another client was slapped with a gun confiscation order because he criticized teenaged gun control activists online and posted a photo of an AR-15 rifle he had built.
David Kopel, a gun policy expert at the Independence Institute in Denver, thinks properly designed red flag laws can have a positive impact. But he emphasizes the importance of procedural safeguards that states have largely failed to adopt.
“It’s a great idea on paper,” says Dave Workman, senior editor at the Second Amendment Foundation in Bellevue, Washington. In practice, however, “you’re guilty until you prove yourself innocent.”
© Copyright 2019 by Creators Syndicate Inc.
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In Awad v. Fordham University, 2019 WL 3550713, dated last Monday but apparently just made public, several Fordham undergraduates asked the school to recognize “Students for Justice in Palestine at Fordham University” as a student group. Their proposal said the group aimed “to build support in the Fordham community among people of all ethnic and religious backgrounds for the promotion of justice, human rights, liberation, and self-determination for the indigenous Palestinian people,” and “is organized around the principles of the call by Palestinian civil society for Boycott, Divestment and Sanctions of Israel.”
Fordham’s published rules include Section 2(a) of the Fordham University Lincoln Center Campus United Student Government Operations Committee Club Guidelines (“the Guidelines”), which provides that a club’s purpose, as set forth in the club’s constitution, must state “how th[e] Club will benefit the Fordham community.” Section 2(e) requires a “[s]tatement that the Club will not restrict membership based upon national origin, race, religion, creed, gender, sexual orientation, age, or physical handicap.” Section 8(h) of the Guidelines provides that the Dean of Students has a right to veto any new club, but the Guidelines do not articulate or enumerate any grounds on which the Dean may exercise such a veto. Moreover, the Guidelines themselves are unclear as to whether that veto must be exercised prior to a vote by the USG [United Student Government] Executive Board and Senate.
However, Section I of the 2016-2017 Fordham University Lincoln Center Campus United Student Government Operations Committee Club Registration Process provides, in relevant part, that:
“The Operations Committee will work with you in editing your constitution. After all revisions to the constitution have been made in accordance with constitutional guidelines, the packet will be submitted to the Director of the Office for Student Involvement and then to the Dean of Students.
“Once a club’s constitution is approved by the Director of the Office for Student Involvement and the Dean of Students, the packet is to be forwarded to the USG Senate for their recommendations and final approval.
“Upon approval by above-mentioned parties, the club is considered a registered organization of F[ordham] C[ollege] L[incoln] C[enter] and G[abelli] S[chool of] B[usiness].”
Despite this, after the USG approved the SJP chapter, Dean of Students Keith Eldredge rejected the application, saying,
“After consultation with numerous faculty, staff and students and my own deliberation, I have decided to deny the request to form a club known as Students for Justice in Palestine at Fordham University. While students are encouraged to promote diverse political points of view, and we encourage conversation and debate on all topics, I cannot support an organization whose sole purpose is advocating political goals of a specific group, and against a specific country, when these goals clearly conflict with and run contrary to the mission and values of the University.
“There is perhaps no more complex topic than the Israeli-Palestinian conflict, and it is a topic that often leads to polarization rather than dialogue. The purpose of the organization as stated in the proposed club constitution points toward that polarization. Specifically, the call for Boycott, Divestment and Sanctions of Israel presents a barrier to open dialogue and mutual learning and understanding.” …
New York state court Nancy M. Bannon held that this violated Fordham’s own rules:
“Courts have a restricted role in reviewing determinations of colleges and universities. A determination will not be disturbed unless a school acts arbitrarily and not in the exercise of its honest discretion, [or] it fails to abide by its own rules.”… As long as the petition alleges specific facts “giving rise to a fair inference” that the determination was arbitrary and capricious, dismissal for failure to state a cause of action is not warranted.
The petition here more than satisfies that standard, as it clearly alleges that Fordham procedurally violated its own rules concerning the recognition of student clubs by permitting a dean to overrule a vote of the USG, and imposed a newly identified factor in considering whether approval is warranted or not, namely whether a group may add to the “polarization” of persons with differing opinions on contested topics of the day….
Generally, the denial of a motion to dismiss the petition in a CPLR article 78 proceeding is followed by the service and filing of an answer and administrative record, or return. However, where “it is clear that no dispute as to the facts exists and no prejudice will result” a court, upon a respondent’s motion to dismiss, may decide the petition on the merits.
Under the circumstances presented here, service of an answer is not necessary, as the facts have been fully presented in the parties’ papers, and no factual dispute remains….
A determination is arbitrary and capricious where is not rationally based, or has no support in the record. A determination may also be annulled as arbitrary and capricious where the decision maker considers inappropriate factors in coming to his or her decision. In addition, a determination of a university, acting in its administrative capacity, may be set aside where the university does not abide by its own rules….
Here, Fordham did not abide by its own published rules governing the approval and recognition of student clubs, inasmuch as it seemingly imposed an additional tier of review, by a dean, of an approval already rendered by the USG. This deviation from usual practice is particularly notable here, since the USG was only empowered to vote for approval of a club in the first instance where prior approval has already been granted by the Director of the Office for Student Involvement and the Dean of Students. Indeed, the Dean’s abrupt change from preliminary approval to rejection was made without a rational explanation or any change in circumstances. In the context of administrative determinations, “[a] change in something from yesterday to today creates doubt. When the anticipated explanation is not given, doubt turns to disbelief,” and such an unexplained change necessarily requires the conclusion that the ultimate determination was arbitrary.
Moreover, the ground for overruling the USG, as articulated by Dean Eldredge, was the potential “polarization” of the Fordham community were SJP to be formally recognized. Although the Dean, in determining whether to veto any new club, has discretion to evaluate whether the club will promote Fordham’s mission, this discretion is neither unlimited nor unfettered. The issue of whether a club’s political message may be polarizing is not enumerated or identified as a relevant factor in any governing or operating rules, regulations, or guidelines issued Joy Fordham, and appears to have been arbitrarily considered by Dean Eldredge after input from others who are critical of SJP’s political beliefs. Importantly, consideration of whether a group’s message may be polarizing is contrary to the notion that universities should be centers of discussion of contested issues.
“The classroom is peculiarly the marketplace of ideas. The Nation’s future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth out of a multitude of tongues, [rather] than through any kind of authoritative selection.” Keyishian v Board of Regents 385 US 589, 603 (1967).
Contrary to Fordham’s contention, its status as a private university does not mandate dismissal of the petition. Although Fordham is not a public university, and thus not expressly subject to First Amendment limitations on its right to restrict opinions that might be controversial or unpopular, Fordham’s own rules, regulations, and guidelines do not empower the Dean of Students to restrict the university’s recognition of a student club based on its potential for raising issues or taking political position’s that might be controversial or unpopular with a segment of the university community. Indeed, Fordham’s 2005 mission statement, in relevant part, provides that:
“Fordham strives for excellence in research and teaching, and guarantees the freedom of inquiry required by rigorous thinking and the quest for truth.
“Fordham affirms the value of a core curriculum rooted in the liberal arts and sciences. The University seeks to foster in all its students life-long habits of careful observation, critical thinking, creativity, moral reflection and articulate expression. “In order to prepare citizens for an increasingly multicultural and multinational society, Fordham seeks to develop in its students an understanding of and reverence for cultures and ways of life other than their own.”
In other words, the consideration and discussion of differing views is actually part of Fordham’s mission, regardless of whether that consideration and discussion might discomfit some and polarize others.
In his determination, Dean Eldredge does not provide a rational basis for concluding that SJP might encourage violence, disruption of the university, suppression of speech, or any sort of discrimination against any member of the Fordham community based on religion, race, sex, or ethnicity. His only articulated concern was that SJP singled out one particular country for criticism and boycott. Again, this is not an established ground for denying recognition to a student club. To the extent that Dean Eldredge claims authority to reject any club that criticizes a particular country, that same rule could be applied to students protesting or criticizing China’s occupation and annexation of Tibet, Russia’s occupation of the Crimea, or Iraq’s one-time occupation of Kuwait.
Since there is nothing in the record of Dean Eldredge’s determination supporting his authority to reject an application of a student club because it criticized the policies of only one nation, the determination must be annulled as arbitrary and capricious. Even if he had such authority, there is nothing in the record of his determination requiring Fordham to apply such a rule consistently. Therefore, it must be concluded that his disapproval of SJP was made in large part because the subject of SJP’s criticism is the State of Israel, rather than some other nation, in spite of the fact that SJP advocates only legal, nonviolent tactics aimed at changing Israel’s policies. This also renders his determination arbitrary and capricious, since the defense of a particular nation is not a factor countenanced by Fordham’s rules, regulations, and guidelines for the approval of student clubs….
In light of the foregoing, it is … ORDERED and ADJUDGED that … the determination of Dean Keith Eldredge dated December 22, 2016, disapproving the application of Students For Justice in Palestine at Fordham University to be recognized as a student club is annulled, and Fordham University is directed to recognize Students For Justice in Palestine at Fordham University as a university-sanctioned club in accordance with the approval of the United Student Government Executive Board and Senate dated November 17, 2016 ….
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In Awad v. Fordham University, 2019 WL 3550713, dated last Monday but apparently just made public, several Fordham undergraduates asked the school to recognize “Students for Justice in Palestine at Fordham University” as a student group. Their proposal said the group aimed “to build support in the Fordham community among people of all ethnic and religious backgrounds for the promotion of justice, human rights, liberation, and self-determination for the indigenous Palestinian people,” and “is organized around the principles of the call by Palestinian civil society for Boycott, Divestment and Sanctions of Israel.”
Fordham’s published rules include Section 2(a) of the Fordham University Lincoln Center Campus United Student Government Operations Committee Club Guidelines (“the Guidelines”), which provides that a club’s purpose, as set forth in the club’s constitution, must state “how th[e] Club will benefit the Fordham community.” Section 2(e) requires a “[s]tatement that the Club will not restrict membership based upon national origin, race, religion, creed, gender, sexual orientation, age, or physical handicap.” Section 8(h) of the Guidelines provides that the Dean of Students has a right to veto any new club, but the Guidelines do not articulate or enumerate any grounds on which the Dean may exercise such a veto. Moreover, the Guidelines themselves are unclear as to whether that veto must be exercised prior to a vote by the USG [United Student Government] Executive Board and Senate.
However, Section I of the 2016-2017 Fordham University Lincoln Center Campus United Student Government Operations Committee Club Registration Process provides, in relevant part, that:
“The Operations Committee will work with you in editing your constitution. After all revisions to the constitution have been made in accordance with constitutional guidelines, the packet will be submitted to the Director of the Office for Student Involvement and then to the Dean of Students.
“Once a club’s constitution is approved by the Director of the Office for Student Involvement and the Dean of Students, the packet is to be forwarded to the USG Senate for their recommendations and final approval.
“Upon approval by above-mentioned parties, the club is considered a registered organization of F[ordham] C[ollege] L[incoln] C[enter] and G[abelli] S[chool of] B[usiness].”
Despite this, after the USG approved the SJP chapter, Dean of Students Keith Eldredge rejected the application, saying,
“After consultation with numerous faculty, staff and students and my own deliberation, I have decided to deny the request to form a club known as Students for Justice in Palestine at Fordham University. While students are encouraged to promote diverse political points of view, and we encourage conversation and debate on all topics, I cannot support an organization whose sole purpose is advocating political goals of a specific group, and against a specific country, when these goals clearly conflict with and run contrary to the mission and values of the University.
“There is perhaps no more complex topic than the Israeli-Palestinian conflict, and it is a topic that often leads to polarization rather than dialogue. The purpose of the organization as stated in the proposed club constitution points toward that polarization. Specifically, the call for Boycott, Divestment and Sanctions of Israel presents a barrier to open dialogue and mutual learning and understanding.” …
New York state court Nancy M. Bannon held that this violated Fordham’s own rules:
“Courts have a restricted role in reviewing determinations of colleges and universities. A determination will not be disturbed unless a school acts arbitrarily and not in the exercise of its honest discretion, [or] it fails to abide by its own rules.”… As long as the petition alleges specific facts “giving rise to a fair inference” that the determination was arbitrary and capricious, dismissal for failure to state a cause of action is not warranted.
The petition here more than satisfies that standard, as it clearly alleges that Fordham procedurally violated its own rules concerning the recognition of student clubs by permitting a dean to overrule a vote of the USG, and imposed a newly identified factor in considering whether approval is warranted or not, namely whether a group may add to the “polarization” of persons with differing opinions on contested topics of the day….
Generally, the denial of a motion to dismiss the petition in a CPLR article 78 proceeding is followed by the service and filing of an answer and administrative record, or return. However, where “it is clear that no dispute as to the facts exists and no prejudice will result” a court, upon a respondent’s motion to dismiss, may decide the petition on the merits.
Under the circumstances presented here, service of an answer is not necessary, as the facts have been fully presented in the parties’ papers, and no factual dispute remains….
A determination is arbitrary and capricious where is not rationally based, or has no support in the record. A determination may also be annulled as arbitrary and capricious where the decision maker considers inappropriate factors in coming to his or her decision. In addition, a determination of a university, acting in its administrative capacity, may be set aside where the university does not abide by its own rules….
Here, Fordham did not abide by its own published rules governing the approval and recognition of student clubs, inasmuch as it seemingly imposed an additional tier of review, by a dean, of an approval already rendered by the USG. This deviation from usual practice is particularly notable here, since the USG was only empowered to vote for approval of a club in the first instance where prior approval has already been granted by the Director of the Office for Student Involvement and the Dean of Students. Indeed, the Dean’s abrupt change from preliminary approval to rejection was made without a rational explanation or any change in circumstances. In the context of administrative determinations, “[a] change in something from yesterday to today creates doubt. When the anticipated explanation is not given, doubt turns to disbelief,” and such an unexplained change necessarily requires the conclusion that the ultimate determination was arbitrary.
Moreover, the ground for overruling the USG, as articulated by Dean Eldredge, was the potential “polarization” of the Fordham community were SJP to be formally recognized. Although the Dean, in determining whether to veto any new club, has discretion to evaluate whether the club will promote Fordham’s mission, this discretion is neither unlimited nor unfettered. The issue of whether a club’s political message may be polarizing is not enumerated or identified as a relevant factor in any governing or operating rules, regulations, or guidelines issued Joy Fordham, and appears to have been arbitrarily considered by Dean Eldredge after input from others who are critical of SJP’s political beliefs. Importantly, consideration of whether a group’s message may be polarizing is contrary to the notion that universities should be centers of discussion of contested issues.
“The classroom is peculiarly the marketplace of ideas. The Nation’s future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth out of a multitude of tongues, [rather] than through any kind of authoritative selection.” Keyishian v Board of Regents 385 US 589, 603 (1967).
Contrary to Fordham’s contention, its status as a private university does not mandate dismissal of the petition. Although Fordham is not a public university, and thus not expressly subject to First Amendment limitations on its right to restrict opinions that might be controversial or unpopular, Fordham’s own rules, regulations, and guidelines do not empower the Dean of Students to restrict the university’s recognition of a student club based on its potential for raising issues or taking political position’s that might be controversial or unpopular with a segment of the university community. Indeed, Fordham’s 2005 mission statement, in relevant part, provides that:
“Fordham strives for excellence in research and teaching, and guarantees the freedom of inquiry required by rigorous thinking and the quest for truth.
“Fordham affirms the value of a core curriculum rooted in the liberal arts and sciences. The University seeks to foster in all its students life-long habits of careful observation, critical thinking, creativity, moral reflection and articulate expression. “In order to prepare citizens for an increasingly multicultural and multinational society, Fordham seeks to develop in its students an understanding of and reverence for cultures and ways of life other than their own.”
In other words, the consideration and discussion of differing views is actually part of Fordham’s mission, regardless of whether that consideration and discussion might discomfit some and polarize others.
In his determination, Dean Eldredge does not provide a rational basis for concluding that SJP might encourage violence, disruption of the university, suppression of speech, or any sort of discrimination against any member of the Fordham community based on religion, race, sex, or ethnicity. His only articulated concern was that SJP singled out one particular country for criticism and boycott. Again, this is not an established ground for denying recognition to a student club. To the extent that Dean Eldredge claims authority to reject any club that criticizes a particular country, that same rule could be applied to students protesting or criticizing China’s occupation and annexation of Tibet, Russia’s occupation of the Crimea, or Iraq’s one-time occupation of Kuwait.
Since there is nothing in the record of Dean Eldredge’s determination supporting his authority to reject an application of a student club because it criticized the policies of only one nation, the determination must be annulled as arbitrary and capricious. Even if he had such authority, there is nothing in the record of his determination requiring Fordham to apply such a rule consistently. Therefore, it must be concluded that his disapproval of SJP was made in large part because the subject of SJP’s criticism is the State of Israel, rather than some other nation, in spite of the fact that SJP advocates only legal, nonviolent tactics aimed at changing Israel’s policies. This also renders his determination arbitrary and capricious, since the defense of a particular nation is not a factor countenanced by Fordham’s rules, regulations, and guidelines for the approval of student clubs….
In light of the foregoing, it is … ORDERED and ADJUDGED that … the determination of Dean Keith Eldredge dated December 22, 2016, disapproving the application of Students For Justice in Palestine at Fordham University to be recognized as a student club is annulled, and Fordham University is directed to recognize Students For Justice in Palestine at Fordham University as a university-sanctioned club in accordance with the approval of the United Student Government Executive Board and Senate dated November 17, 2016 ….
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New York City business owners are eliminating jobs, cutting hours, and raising prices in the wake of a $15 minimum wage hike implemented at the end of last year.
According to The Wall Street Journal, entrepreneurs across the city are having to make tough choices to the detriment of their employees in order to stay solvent. Thomas Grech, the president of the Queens Chamber of Commerce, told the Journal that small businesses have been shuttering over the last six to nine months, which he blamed on the minimum wage legislation.
“They’re cutting their staff. They’re cutting their hours. They’re shutting down,” he said. “It’s not just the rent.” Businesses with 11 or more employees were required to raise the minimum wage to $15 on December 31, 2018, while businesses with 10 or fewer workers will have to do so at the close of this year.
As I’ve previously written, those pay increases disproportionately impact the restaurant industry, which operates on snug profit margins. Waitstaff in New York City currently collect a tipped wage, which sits below the mandatory minimum and allows workers to make up the rest—and sometimes much more—in tips. If the hourly average falls below the minimum wage with tips included, employers are required to make up the difference.
Federally, the tipped base pay is $2.13 per hour. New York upped it to $10 per hour at the end of 2018, with restaurants fending off efforts to eliminate the tipped wage entirely. The Restaurant Opportunities Center (ROC), a group which advocates for “One Fair Wage” among restaurant workers, is at the front lines of that fight. If successful, their plan would force restaurants to pay everyone the higher minimum.
In Washington, D.C., for instance, ROC was the driving force behind Initiative 77. Although it passed at the ballot box in June of last year, the D.C. City Council overturned the measure after an outcry from service industry professionals, many of whom said the raise would backfire, as is happening in New York.
Susannah Koteen, who owns Lido Restaurant in New York’s Harlem neighborhood, told CBS News in January that she was consolidating employee positions to save money, putting the lowest-skilled workers in danger. “A server can bus their own table,” she said, “but you can’t ask a busboy to open a bottle of wine and talk about what it can be paired with.” She recently told the Journal that she has been able to avoid layoffs, but is slashing hours and is hawkish about overtime, as she can no longer afford to keep an excess of employees on the clock.
“What it really forces you to do is make sure that nobody works more than 40 hours,” Koteen said. “You can only cut back so many people before the service starts to suffer.” She is also raising prices with regularity, and has demurred on her plans to open a new restaurant at a larger location.
Koteen’s experience comports with a study released by the New York Hospitality Alliance earlier this year. According to the 574 restaurants surveyed, 75 percent of full-service dining establishments plan to cut hours and 47 percent forecast eliminating some positions entirely in response to the minimum wage increase. What’s more, 87 percent said they would need to raise prices to stay above water.
Anthony Advincula, a spokesman for the ROC, has argued that such negative effects need not happen in tandem with the city-mandated wage hikes. “Increasing to $15 would reduce income inequality, and the number of individuals living in poverty now is ridiculously high,” he told The Wall Street Journal. “This is not just a business issue, this is a race, gender, pay-equality issue.” But if New York City is any example, the measures pushed by Advincula will only serve to make those issues worse.
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New York City business owners are eliminating jobs, cutting hours, and raising prices in the wake of a $15 minimum wage hike implemented at the end of last year.
According to The Wall Street Journal, entrepreneurs across the city are having to make tough choices to the detriment of their employees in order to stay solvent. Thomas Grech, the president of the Queens Chamber of Commerce, told the Journal that small businesses have been shuttering over the last six to nine months, which he blamed on the minimum wage legislation.
“They’re cutting their staff. They’re cutting their hours. They’re shutting down,” he said. “It’s not just the rent.” Businesses with 11 or more employees were required to raise the minimum wage to $15 on December 31, 2018, while businesses with 10 or fewer workers will have to do so at the close of this year.
As I’ve previously written, those pay increases disproportionately impact the restaurant industry, which operates on snug profit margins. Waitstaff in New York City currently collect a tipped wage, which sits below the mandatory minimum and allows workers to make up the rest—and sometimes much more—in tips. If the hourly average falls below the minimum wage with tips included, employers are required to make up the difference.
Federally, the tipped base pay is $2.13 per hour. New York upped it to $10 per hour at the start of the year, with restaurants fending off efforts to eliminate the tipped wage entirely. The Restaurant Opportunities Center (ROC), a group which advocates for “One Fair Wage” among restaurant workers, is at the front lines of that fight. If successful, their plan would force restaurants to do away with the tipped wage in favor of the higher minimum.
In Washington, D.C., ROC was the driving force behind Initiative 77. Although it passed at the ballot box in June of last year, the D.C. City Council overturned the measure after an outcry from service industry professionals, many of whom said the raise would backfire, as is happening in New York.
Susannah Koteen, who owns Lido Restaurant in New York’s Harlem neighborhood, told CBS News in January that she was consolidating employee positions to save money, putting the lowest-skilled workers in danger. “A server can bus their own table,” she said, “but you can’t ask a busboy to open a bottle of wine and talk about what it can be paired with.” She recently told the Journal that she has been able to avoid layoffs, but is slashing hours and is hawkish about overtime, as she can no longer afford to keep an excess of employees on the clock.
“What it really forces you to do is make sure that nobody works more than 40 hours,” Koteen said. “You can only cut back so many people before the service starts to suffer.” She is also raising prices with regularity, and has demurred on her plans to open a new restaurant at a larger location.
Koteen’s experience comports with a study released by the New York Hospitality Alliance earlier this year. According to the 574 restaurants surveyed, 75 percent of full-service dining establishments plan to cut hours and 47 percent forecast eliminating some positions entirely in response to the minimum wage increase. What’s more, 87 percent said they would need to raise prices to stay above water.
Anthony Advincula, a spokesman for the ROC, has argued that such negative effects need not happen in tandem with the city-mandated wage hikes. “Increasing to $15 would reduce income inequality, and the number of individuals living in poverty now is ridiculously high,” he told The Wall Street Journal. “This is not just a business issue, this is a race, gender, pay-equality issue.” But if New York City is any example, the measures pushed by Advincula will only serve to make those issues worse.
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