Month: August 2022

Last week, a Bay Area principal called the cops on a 4-year-old student who tried to attend Theuerkauf Elementary School without a mask on, in violation of Mountain View Whisman School District’s policy.

“I’m going to have to have him removed from campus if you don’t leave at this time,” the principal, Michelle Williams, can be seen telling the student’s father, Shawn, who has asked media organizations to withhold his last name for privacy. The school then called an officer to intervene. In another clip, the school resource officer seems sympathetic to both parties but must do the school district’s bidding. Though there is no statewide mandate in place, and many area school districts have different policies, this district had decided that all students must mask in order to attend for the fall.

Shawn had anticipated that his family’s decision not to mask would be a problem and contacted school officials in advance of the fall term starting.

“I was looking for accessibility options,” Shawn told Fox & Friends First. “The only thing I got back from the principal was a cut-and-paste response.” Other school district officials told him that schooling is compulsory in the state starting at age 6; since Shawn’s son is 4, he doesn’t need to attend.

“This parent worked with an advocacy group outside Mountain View to create a professional video in order to nationally shame a public servant doing her job while maintaining a safe and orderly school,” Superintendent Ayindé Rudolph said in a statement sent to parents, not acknowledging that masking 4-year-olds may do more harm than good.

After this incident went viral last week, the school district on Thursday revoked their policy, admitting no wrongdoing and instead cloaking their call in language about how local COVID transmission rates have for now declined enough to put an end to the mandate. Shawn’s son was allowed to attend school.

Major Update: After this incident went viral, the school found a reason to quickly lift their mask mandate.

However, the district states they “may reinstate mandatory indoor masking” if their county moves back into the CDC’s high tier. pic.twitter.com/FgXGBQOz5e

— Reopen California Schools (@ReopenCASchools) August 19, 2022

This mandate reversal has echoes of a similar situation that just transpired in Los Angeles County. In mid-July, L.A. County’s Barbara Ferrer, the director of the Department of Public Health, announced that universal indoor masking might need to be mandated if COVID transmission rates rise to a “high” level, determined by the authorities as 10 new weekly hospital admissions per 10,000 residents. L.A. County entered this “high” transmission level on July 14, but the Beverley Hills City Council immediately voted not to enforce any mandates if imposed from on high, and Ferrer quickly cooled her jets.

The unpopular mandate had been slated to go into effect on July 29. “It’s reasonable to assume that the recent decline we have seen in cases will lead to continued decreases in hospital admissions over the next couple of weeks,” Ferrer said July 28, suddenly optimistic, having recently dropped plans for the mandate. (L.A. County technically remained at a “high” transmission level until August 11.)

In both Mountain View and Los Angeles, the mask enforcers won’t simply admit that there’s little public will to follow these mandates, that they look weak and ineffective if people refuse to obey.

When dropping plans to institute mandates, Ferrer, Rudolph, and other decision makers rarely admit that they were wrong to impose coercive mandates on a largely vaccinated and low-risk general public. They instead claim it’s the case counts that have gone down. Since the situation has changed, they say, the mandate is no longer necessary, leaving themselves a little bit of room to reimpose masking at a later date if they deem it appropriate.

Given what we know about how COVID works more than 30 months into this pandemic, armed with vaccines, Paxlovid, and an understanding that this virus does not do much harm to our very youngest, many parents might say kid-masking is never appropriate, contra California’s insistent health enforcement apparatus.

The post Elementary School Calls Cops on 4-Year-Old For Violating Mask Mandate appeared first on Reason.com.

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Homeless shelters destroyed “to ensure the safety and welfare” of homeless people. North Las Vegas authorities demolished a community of tiny homes that sheltered the homeless because the 50-square-foot structures didn’t meet the minimum home size required by law or conform to other strict housing regulations. The situation showcases how government often thwarts private solutions to homelessness and poverty.

The tiny homes were built on private property owned by the nonprofit New Leaf Building Community. New Leaf’s structures are small and basic, featuring four walls, one window, and a front door that locks. But despite their small size and lack of amenities, they could be life-changing for people previously living on the streets.

“Now I sleep on the damn sidewalk because of this!” a man who had been living in a New Leaf home told KTNV Las Vegas. A woman named Angela said her New Leaf home made her feel “like, yes, I can do this. I can stay clean and sober. I can create. Draw. I can become anything I want to be at that moment.”

The New Leaf homes were built on private land by volunteers. The idea was to provide homeless people with “a place to call home,” said New Leaf leader Joseph Lankowski. “They had a tiny home where they could lock the door, so then they could actually go out and get services without having to worry about getting your things stolen or anything like that.”

Lankowski raised funds to buy the land after other options failed. In November 2020, the government destroyed 28 tiny homes New Leaf built on public land that had for years housed a homeless encampment. New Leaf then tried building tiny homes on trailers that could be parked in public parking spaces, but police started towing these. “And because their whole argument was property, you know, ‘This is our property. It’s not your property.’ And we said, ‘Okay. We’ll buy our own property,'” he told KNTV.

The North Las Vegas land Lankowski built on is zoned for single-family homes, which must be a minimum size of 1,200 square feet. But because there was no existing zoning for this type of project, Lankowski decided to build first and deal with bureaucracy later.

“If code enforcement’s whole premise is safety, what’s safer?” he asked. “Being in a tiny home on private property or being out on the streets?”

A bill passed by Nevada in 2021—SB 150—says large cities and counties must legalize tiny home communities by creating new building and zoning rules that pertain to them. But these rules needn’t be in place until 2024.

“Our homelessness crisis is urgent and can not wait for ‘codes’ to catch up,” New Leaf posted on Instagram in July. The post said “the city of North Las Vegas did not give us due process before bulldozing. They are not playing by their own rules. This is private property. ”

The city said New Leaf housing was in violation of Uniform Housing Code and Municipal Code regulations. “Since December 2021, the City has attempted to work with the property owner to correct violations on the property,” it said in a statement to KTNV. “Rather than correct the violations, the property owner increased the pace of non-permitted construction and brought individuals to live on the property without access to fresh water, heating, cooling or adequate sewage disposal, all of which are required by SB150.”

“On multiple occasions, the City served formal notices of violations and abatement on the property and issued civil and criminal citations to the property owner,” the city added. “The owner never completed any appeals within the timeframes outlined in the various notices.”

The Nevada Department of Transportation told KTNV:

“The decision to pursue this abatement was intended to ensure the safety and welfare of both the homeless and surrounding community due to significant biohazard concerns, including bodily waste, debris and intravenous drug paraphernalia accumulating inside drainage channels that feed into the Las Vegas Wash. Other concerns included potential pedestrian-vehicle hazards from crossing the interstate, walking alongside the shoulder and/or encamping within the Union Pacific Railroad corridor, as well as obstructed driver sightlines.”

Lankowski said that New Leaf had been working to fix or appeal any violations.

“We had first aid kits. We had water. They were going to install showers,” Angela, one of the residents, told KTNV.

The situation raises questions about the ethical housing of the homeless. Some—including the city of North Las Vegas, apparently—say it’s wrong to build the homeless tiny shelters that don’t contain things like indoor plumbing, heat, or air conditioning. But is some protection from the elements better than none at all? Doesn’t having a dedicated place to sleep and store possessions matter, even if that’s all it is?

The government seems to be making the perfect the enemy of the good here.

Alas, North Las Vegas isn’t alone in seizing or destroying tiny homes built to house homeless people. City officials in Los Angeles and Denver have engaged in similar crackdowns.

Zoning rules have also been used to stop the building of homeless shelters around the country, and to prevent churches from providing beds to the homeless. Meanwhile, city attempts to build new housing for the homeless are often slow, ridiculously expensive, and inadequate.

For what it’s worth, New Leaf seems to still be building. “We can’t be stopped!” it posted to Instagram last week, in a call for volunteers to help build more tiny homes. 

FOLLOWUP

Trump sues over seized documents. Former President Donald Trump is asking a judge to appoint a special master to review the documents the Justice Department seized from his Mar-a-Lago club. As part of the lawsuit, filed Monday, Trump “asked a judge to order investigators to immediately stop examining the items,” reports the Wall Street Journal. “A special master is a third party, usually a retired judge, who reviews evidence to determine whether it is protected by attorney-client privilege, executive privilege, or similar legal doctrines.”

“The government has recovered more than 300 documents with classified markings from Mr. Trump since he left office,” notes The New York Times. This includes more than 150 documents he returned to the National Archives in January and documents seized by the FBI in a recent raid.

FREE MINDS

The power of projection? People vote for democracy-destroying measures because they’re afraid “their opponents will dismantle democracy first,” according to new research. In the U.S., “partisans who most fear the other party’s willingness to subvert democracy are also those most willing to support subverting democracy.” In an experimental environment, the researchers performed interventions meant to reduce these fears; their findings suggest that with reduced fears of the other party, people “become more committed to upholding democratic norms” and “may also become more willing to vote against candidates of their own party who break these norms.” You can find the full pre-print study (“The Subversion Dilemma: Why Voters Who Cherish Democracy Participate in Democratic Backsliding”) here.

FREE MARKETS

Ireland gets a lesson in unintended consequences:

Ireland launched a campaign against greedy landlords with rent control, 52% tax, no deductions, no evictions.

They succeeded & landlords left the market in droves

Now there are 716 homes available to rent in the entire country and 150 queued for this one bed yesterday. #VanRe pic.twitter.com/T8Np0hjthB

— Conor ???????? (@conorsvan1) August 18, 2022

QUICK HITS

• The White House is reportedly getting closer to canceling some student loan debt.

• Pfizer is asking the Food and Drug Administration to authorize a COVID-19 booster vaccine that specifically targets omicron subvariants.

• Even stricter restrictions on abortion are set to take effect this week in Texas, Tennessee, and Idaho.

• Liz Truss—a limited government conservative who is friendly to free markets—looks poised to become Britain’s next prime minister, writes Dan Hannan at the Washington Examiner.

• California Democratic Gov. Gavin Newsom has vetoed legislation that would have allowed some cities to operate safe injection sites, where people could use drugs in a supervised manner, with medical professionals around to help prevent fatal overdose. (San Francisco says it will do it anyway.)

Gov. Newsom vetoed our legislation to authorize SF, Oakland & LA to implement safe consumption sites.

The veto is tragic & a huge lost opportunity. These sites are proven to save lives & connect people to treatment. Sad day for CA’s fight against overdose deaths.

My statement: pic.twitter.com/YYrnZTlEss

— Senator Scott Wiener (@Scott_Wiener) August 22, 2022

• An anti-drug group has filed a lawsuit trying to stop Missourians from voting on whether to legalize recreational marijuana.

• Efforts to get marijuana on the ballot in Nevada have failed.

• Zvi Mowshowitz looks at a paper on car seats and fertility rates and argues that America should eliminate car seat requirements for older children.

• Americans increasingly see political polarization overtaking public education—and that’s why we need school choice now, writes Reason‘s J.D. Tucille.

• “Would you believe the American Civil Liberties Union (ACLU) and Republican Florida Gov. Ron DeSantis have something in common?” asks Reason‘s Scott Shackford. “They both believe that the state should be able to force web companies to host content that these platforms disagree with or find morally objectionable in some fashion.”

The post Tiny Homes for Las Vegas Homeless Demolished Over Code Violations appeared first on Reason.com.

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This new article of mine will be coming out next year in the Journal of Law and Religion, and I thought I’d serialize it here; there’s still plenty of time for editing, so I’d love to hear people’s feedback. Here’s the Introduction:

[* * *]

Debates about religious exemptions often involve a religious community seeking protection against secular law. But what should be done when religious community members seek protection against their own community, or at least against parts of that community? In particular, when should the legal system take steps to help such members conceal actions—actions that for the rest of us would have to be public—precisely to avoid the religious community learning about those actions?

Many legal rules require that people be identified in public documents. Litigants must generally litigate under their own names, not pseudonymously (or anonymously, two terms that are generally used interchangeably in these contexts[1]). Firearms licenses and license applications are public records in many states; so are liquor license applications. Public records laws sometimes require disclosing the names of people who have been involved in government actions.

Some of these laws provide for exceptions, for instance when requiring a litigant’s “disclosure of his identity in the public record would reveal highly sensitive and personal information that would result in a social stigma.”[2] And some courts have read this as authorizing confidentiality for people who might otherwise face special stigma in their religious community.[3]

Considering the possible reactions of a litigant’s or applicant’s religious community does make some sense, since it helps accurately estimate the social stigma this person is likely to face. And the interest in shielding people from such stigma isn’t just individual but also social: For instance, we want to encourage victims of tortious misconduct to come forward, so that the civil liability system can better deter such misconduct. If we know some victims won’t sue if they must be named, because they fear being ostracized by friends and family, we might want to allow them to sue pseudonymously.

At the same time, note the premise of the analysis: The claimants are entitled to protection not just from the operation of the secular legal disclosure rule, but from what is seen as the oppressive or backward view of their religious community. The community is viewed as unfairly judgmental of (for instance) sex assault victims, of people who engage in premarital sex, of people who sue fellow community members, or perhaps of drinkers and gamblers and gun owners. After all, this perceived unfairness is what gives the claimant’s confidentiality argument a special edge in the request for pseudonymity—an edge that claimants who belong to other religious communities (or to no religious community) lack.

And of course, many members of the religious group might disagree with the claimant’s characterization of the group. They might, for instance, argue that their group members are more loving and forgiving than most people, and thus less likely to stigmatize (for instance) the sex assault victim or erotic dancer than the public at large would be. Such questions are of course hard to decide objectively. But a court decision allowing pseudonymity on these grounds sends a clear message: The legal system doesn’t approve of the community’s attitudes.

Relatedly, the purpose of confidentiality in such cases—to allow a person to sue or get a permit or conceal certain records without fear of ostracism by coreligionists[4]—means that the legal system is deliberately denying the coreligionists information that they allegedly think is important to their judgments about fellow group members. If a group, for instance, thinks that erotic dancing or contraceptive use or premarital sex or extramarital sex is sinful, they have the constitutional right to think less of those who engage in such behavior, or even to shun or excommunicate them.

Group members who nonetheless want to engage in such behavior of course also have the right to try to hide it from others’ censorious eyes. But should the legal system deliberately favor one group’s interests over the other’s, by giving those group members an extra edge in the confidentiality analysis that ordinary litigants don’t get? And should the analysis be different when the legal system is keeping confidential the dissenting group members’ voluntary behavior (such as consensual premarital sex or alcohol use or gambling), as opposed to dissenting group members’ having been involuntarily victimized (for instance, by having been raped)?

This essay will try to lay out these matters, chiefly for the benefit of judges, lawyers, litigants, and academics who are interested in the law of pseudonymous litigation and of public records. (Most of the focus will be on pseudonymous litigation, just because that’s where the cases have been so far.) But it also aims at informing the broader questions: How should the law reconcile the competing claims of religious community members?[5] And, in particular, when should the law give some people legal exemptions precisely so they can conceal their actions from religious group members who might want to react to those actions?

[1] Eugene Volokh, The Law of Pseudonymous Litigation, 73 Hastings Law Journal 1353 (2022)

[2] Raiser v. Brigham Young Univ., 127 F. App’x 409, 411 (10th Cir. 2005)

[3] See infra Part I.A.

[4] I use “coreligionists” and “religious group members” somewhat loosely to mean members of a religious community whose opinions are especially important to a person. The usage is imprecise, because someone who no longer believes in a religion might still be connected with the religious community, either directly or through family, and might therefore care a great deal about what that community thinks of her; but it might make sense to trade off precision for the simplicity of just being able to say “coreligionist.”

[5] This question of course also prominently arises with regard to “get statutes,” which are aimed at pressuring husbands (generally Orthodox Jews) to give their wives a religious divorce (called a “get” in Hebrew) once a secular divorce has been entered: The reason the law intervenes is precisely because, among many Orthodox Jews, wives who aren’t given such religious divorces are viewed as still married, and thus any later remarriages are seen as void and the children of the remarriages are viewed as illegitimate. Those laws pose their own constitutional problems, especially to the extent they are seen as coercing the husbands into engaging in religious actions. See, e.g., Megibow v. Megibow, 612 N.Y.S.2d 758 (1994); Aflalo v. Aflalo, 295 N.J. Super. 527 (1996). See generally Lisa Zornberg, Beyond the Constitution: Is the New York Get Legislation Good Law?, 15 Pace Law Review 703 (1995). But while such laws burden one of the divorcing spouses, they don’t aim at constraining the religious community’s actions: Once the religious divorce is given, including under compulsion of the law, the religious community generally has no further objection to the ex-wife’s later remarriage.

The question has also arisen with regard to attempts to limit religious communities from excommunicating or “shunning” members, but there the law refuses to interfere with the communities’ and community leaders’ decisions, treating group membership as a voluntary matter that either the individual or the group may terminate without legal constraint. See, e.g., Paul v. Watchtower Bible & Tract Soc’y of N.Y., Inc., 819 F.2d 875 (9th Cir. 1987) (shunning); Hubbard v. J Message Grp. Corp., 325 F. Supp. 3d 1198, 1216 (D.N.M. 2018) (shunning); Thomas v. Fuerst, 345 Ill. App. 3d 929 (2004) (excommunication); Decker ex rel. Decker v. Tschetter Hutterian Brethren, Inc., 1999 S.D. 62 (excommunication). And while of course this very voluntariness is protected by generally applicable laws, such as laws preventing battery, false imprisonment, and the like, those laws are indeed generally applicable: They don’t specially exempt religious community members precisely because they are religious community members.

The post Protecting People from Their Own Religious Communities: Jane Doe in Church and State appeared first on Reason.com.

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Going back to the 2020 campaign trail, President Joe Biden has endorsed the idea of using federal dollars to encourage states and localities to remove regulations and red tape on new housing construction.

In May, the White House seemingly put some money where its mouth was when it released its wide-ranging Housing Supply Action Plan. The plan included an announcement that jurisdictions that had adopted policies promoting density and zoning reforms would be looked on more favorably for $6 billion in transportation grants.

Then, earlier this month, the U.S. Department of Transportation (DOT) announced the recipients of $2.2 billion of that zoning reform-linked grant money from the Rebuilding American Infrastructure with Sustainability and Equity (RAISE) program.

The results were disappointing.

“I didn’t see any evidence that localities’ zoning policies or housing market outcomes were determining where these grants were going,” says Emily Hamilton, a senior research fellow at George Mason University’s Mercatus Center.

The RAISE program has its origins in the post-Great Recession stimulus bill passed under the Obama administration. It gives the executive branch a huge amount of discretion to set criteria for who gets awards. Successive presidential administrations have largely used it as an alternative for earmarks, showering money on local projects with little national relevance in swing districts and favored constituencies.

The program got a $7.5 billion funding boost in the $1.2 trillion infrastructure law that Biden signed into law in November 2021.

In January, the administration released a call for grant applications that asked applicants to describe how their proposed project would support “location efficient housing,” “fiscally responsible land use,” “locally driven density restrictions,” and other factors that could plausibly be interpreted as asks about local zoning policies. But those were pretty vague asks. They also came sandwiched between a bunch of other non–land use factors applicants’ projects would be evaluated on.

The result is that it appears few if any grants were awarded to applicants who adopted, or promised to adopt, zoning reforms. The word “zoning” doesn’t get a mention in the DOT’s summary of each of the 166 projects that received grant awards.

A few do seem marginally connected to the kinds of development urbanist zoning reformers would like to see more of.

The DOT says that a $14 million award for a highway redesign project in Dunlap, Tennessee, will encourage “concentrated, higher-density development” in the small city’s downtown. A $2 million award to the Chittenden County Regional Planning Commission in Vermont will pay for a comprehensive transit-oriented development plan in the state’s rural northwest. Transportation improvements connected to the redevelopment of Baltimore’s Penn Station—which includes plans for 1.6 million square feet of mixed-use residential, retail, and office space—also received a $6 million RAISE grant.

Nevertheless, federal funds have long supported various mixed-use development projects. That’s distinct from supporting local governments who’ve adopted reforms that make private development easier and less regulated.

Worse still, jurisdictions that have done everything in their power to make development more difficult also managed to receive RAISE grants.

San Francisco is currently being investigated by the state for its willful strangling of new development. That didn’t stop the DOT from giving the city’s transit agency a $23 million RAISE grant for a road diet and safety improvements along the city’s Howard Street. (The maximum allowable grant is $25 million.)

If the nation’s NIMBY (not in my backyard) capital can still receive one of the largest RAISE awards, one has to wonder how much of an incentive the program really offers to localities to reform their zoning codes.

On the flip side, a concern I’ve raised about the potential for the zoning reform language inserted into the RAISE program to encourage localities to adopt counterproductive inclusionary zoning policies—which can require developers to include below-market-rate units in their projects—also appears overblown.

Instead, it appears the inclusion of zoning reform in the RAISE grant program hasn’t had much of an effect at all on which jurisdictions receive money from the program. Like past years, RAISE grants have instead gone to a smattering of port improvements, complete street projects, multimodal improvements, and more.

In short, it’s the same old pork.

Hamilton suggests the best possible way to structure a zoning reform program would be to reward jurisdictions based on housing market outcomes. Cities that permit a lot of housing and see housing costs stay relatively affordable as a result would be the ones receiving federal grants.

The Trump administration flirted with doing something along those lines as part of its rewrite of fair housing regulations governing Community Development Block Grants. It ultimately dropped those plans as part of Donald Trump’s campaign-trail embrace of NIMBY rhetoric and policies.

Hamilton says that creating a truly effective program that incentives local zoning reform is going to require action from Congress.

There are a number of other proposed grant programs and reforms that would use federal money to incentivize local zoning reform. As part of its budget request for the Department of Housing and Urban Development (HUD), the White House has proposed creating a $10 billion program that would both cover the costs of adopting zoning reforms and reward jurisdictions that implement said reforms.

Senate Democrats, as part of their FY 2023 appropriations bill, have similarly proposed creating a $200 million Yes in my Backyard (YIMBY) incentive program that would, per the National Low Income Housing Coalition’s analysis, “reward jurisdictions that make reforms to remove barriers to affordable housing production.”

Restrictions on new housing construction are a primary contributor to America’s growing housing shortage. Getting rid of those restrictions would return rights to property owners and lower housing costs.

The idea that the federal government should encourage deregulation at the state and local level is gaining currency among both Republicans and Democrats, free marketers and progressives. Some libertarians could reasonably oppose the idea on the grounds that the federal government already spends way too much money period.

If these programs are going to exist, you’d want them to be effective at least. Thus far, it appears the zoning strings attached to RAISE grants haven’t been.

The post Joe Biden's Use of Transportation Dollars To Incentivize Zoning Reform Is a Big Flop appeared first on Reason.com.

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