Month: September 2022

From Judge Amos Mazzant’s decision Monday in Phillips v. Collin Community College Dist. (E.D. Tex.):

This case arises from a series of statements—a newspaper publication, an interview, class discussions, and social media posts—made by Phillips during the time he was a professor at Collin College. According to Phillips, Defendants “violat[ed] his constitutional rights by retaliating against him for speaking as a private citizen about public issues” in each of the enumerated instances. Specifically, Phillips complains that Defendants placed a prior restraint on his speech through a number of policies and directives, all of which Phillips claims were “attempt[s] to silence College faculty” from speaking “as private citizens on matters of public concern.”

Phillips asserts that the conflict between Phillips and Defendants began in 2017 when Phillips co-authored an open letter published in the Dallas Morning News advocating for the removal of Confederate memorials. In the letter, Phillips identified himself as a professor at Collin College and listed his faculty email as a point of contact. According to Phillips, he co-authored the letter as a private citizen. Nonetheless, after the letter was published, two Collin College administrators met with Phillips and reminded him of Collin College’s policy that requires faculty to “‘exercise appropriate restraint, exhibit tolerance for differing opinions, and indicate clearly that they are not an official spokesperson for the College’ when they speak or act as private citizens.”

Later, in 2019, Phillips granted the Washington Post an interview wherein he discussed race relations and the then-recent shooting at an El Paso, Texas grocery store. The shooter was a former Collin College student but was not a former student of Phillips’s. Prior to Phillips’s interview, Collin College’s President, H. Neil Matkin, sent out a directive via email to the Collin College campus:

Friends,

The press has reached out to multiple campus administrators and district personnel regarding the El Paso shooting. At this time, it is believed that the shooter was a college student as late as spring 2019.I have issued a statement as follows (forgive the size—working from home): [attached]

Please refer all press inquiries you may receive to Marisela Codena-Smith at mcsmith@.collin.edu or by phone to the president’s office (972-758-3800). Any law enforcement personnel should be referred to Chief Bill Taylor at wtavlor@collin.edu or by phone to the president’s office.

Please keep the El Paso (and also the Ohio) victims and their [families] in your thoughts and prayers.

Thank you all,

Neil

Ten days after the directive was sent out and five days after the interview was published, Defendants required that Phillips meet with Associate Dean Kristin Streater … to discuss his violation of the directive. Nearly a month later, on September 3, 2019, Defendants provided Phillips with an “Employee Coaching Form” related to the interview, informing Phillips that “[e]xpectations moving forward are to follow the President’s directives when approached by the media.”

In June of 2020, shortly after the start of the global COVID-19 pandemic, Phillips commented on Collin College’s response to the pandemic in a post to his personal Facebook account. Following his post, Defendants called Phillips into a meeting with Streat and then-Dean Mary Barnes-Tilley … to discuss the Facebook post. During the meeting, Barnes-Tilley asked Phillips “do you still want to work here?” and told him that his post violated the Collin College Employee Standards of Conduct’s. According to Phillips’s, he interpreted Barnes-Tilley’s comments during the meeting “as a threat to terminate his employment if he continued to speak out.”

On August 11, 2021, Phillips posted a photo of a slide from a faculty meeting on his personal Facebook and Twitter accounts. The slide in the photo indicated that faculty were forbidden from requesting, requiring, or recommending masks be worn. Defendants offered Executive Order GA-38 as the basis for this policy. Following these posts, on August 27, 2022, Streater issued Phillips a “Level I Warning” for insubordination and failing to use internal communication channels to address his concerns. The warning referenced the two latest posts, continuous failure of Phillips to bring his concerns in an appropriate manner, the 2019 interview, and the 2020 Facebook post.

At the beginning of the Fall 2021 semester, Phillips assigned his students an essay on the history of pandemics and epidemics from the time of Columbus to the current COVID-19 crisis. During the class discussions pertaining to pandemics, Phillips voiced his annoyance with wearing masks, but commented that resistance to similar policies in the past had hindered societies from combatting the spread of other viruses in an attempt to engage his class in discussion on the issue. Due to these class discussions, Defendants asked Phillips to meet with Chaelle O’Quin …. During the meeting, O’Quin informed Phillips that “in order to make sure no one mandates masks, it is best to never discuss them at all” and then placed Phillips on a “Performance Improvement Plan.”

Following these incidents, Barnes-Tilley informed Phillips that his contract would not be renewed. Despite attempts to appeal the decision not to renew his contract, Phillips was terminated from his position once his current contract expired….

Defendants moved to dismiss, but the court disagreed:

Moving Defendants allege that their policies and directives do not amount to a prior restraint on speech because they do not expressly forbid certain speech or require prior approval to speak. Rather, Moving Defendants contend that the issue in the case at hand relates entirely to punishments placed on Phillips subsequent to his speech. Phillips, on the other hand, maintains that the policies and directives put forward and enforced by Defendants were meant to, and did, chill potential speech before it happened. The Court, accepting as true all well-pleaded facts in the complaint and viewing those facts in the light most favorable to Phillips, agrees with Phillips….

Moving Defendants are correct that “[t]he term ‘prior restraint’ is used to describe administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur.” Moving Defendants’ narrow interpretation of the word “forbidding,” however, does not comport with well-established caselaw on the matter. See United States v. Nat’l Treasury Emps. Union (1995) (holding that a ban which did not expressly prohibit any particular kind of speech was nonetheless a ban that abridged the First Amendment because it induced employees to “curtail their expression if they wish[ed] to continue working for the Government.”); Baker v. City of Fort Worth (N.D. Tex. 2020) (holding that a city council permission scheme requiring the city council approve all posters is a prior restraint on speech despite no specific kind of poster being banned).

Accordingly, after reviewing the current complaint, and the arguments presented in the briefing, the Court finds that Phillips has stated plausible claims for relief in his fifth cause of action….

Congratulations to Greg Rebuel, Joshua Bleisch, JT Morris, and Katlyn Patton of the Foundation for Individual Rights and Expression, as well as Robert Wayne Schmidt of the Crews Law Firm PC, who represent Phillips. (Note that I’ve consulting for FIRE on various matters, but not on this case, and no-one asked me to blog about it.)

The post Professor's Prior Restraint Lawsuit Against Collin College Can Go Forward appeared first on Reason.com.

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On Wednesday, Department of Homeland Security Secretary Alejandro Mayorkas announced that the federal government would approve a “temporary and targeted” waiver of the Jones Act to allow a single foreign ship laden with diesel oil to dock there.

As Florida is getting battered by Hurricane Ian, Puerto Rico is still reeling from the effects of Hurricane Fiona. Ten days after that hurricane’s passage, hundreds of thousands of Puerto Ricans are still without power.

Complicating Puerto Rico’s ability to recover is the Jones Act, also known as the Merchant Marine Act of 1920. This deliberately protectionist federal law requires that any ships that transport goods between U.S. ports be American-made from an American-owned company and crewed by Americans. There are fewer than 100 such ships. It shields American domestic maritime shippers from foreign competition. By its very nature, it also drives up the prices of goods in far-flung parts of America like Puerto Rico, Alaska, and Hawaii. It also makes a crisis situation like a natural disaster worse because it limits who is legally permitted to assist these areas.

And so, a BP ship full of fuel to supply the country with power could not legally dock in Puerto Rico because it had already previously stopped in a Texas port. Many public officials and even some members of Congress had been asking DHS to provide blanket waivers allowing foreign ships to assist in resupplying the country. But as Reason noted on Tuesday, the Jones Act was recently amended to actually make it even harder for the federal government to give blanket permission for foreign ships to travel from port to port, even in a time of great crisis. DHS had to analyze the situation and determine that Jones Act–approved vessels were not sufficient to meet current needs and provide limited targeted waivers for specific ships.

That’s what happened Wednesday. “In response to urgent and immediate needs of the Puerto Rican people in the aftermath of Hurricane Fiona, I have approved a temporary and targeted Jones Act waiver to ensure that the people of Puerto Rico have sufficient diesel to run generators needed for electricity and the functioning of critical facilities as they recover from Hurricane Fiona,” Mayorkas announced.

He then insisted that the Jones Act is “vital to maintaining the strength of the American shipbuilding and maritime industries,” the company line in the Biden administration, which implies that it’s apparently government policy to drive up prices of goods for American consumers in order to benefit a much smaller number of people in the maritime industry. It’s anti-competitive cronyism, plain and simple.

Remarkably, the maritime industry loudly resisted even this single ship getting a waiver. The American Maritime Partnership (AMP) put out a press release Wednesday claiming to “debunk” the need for a waiver and that Puerto Rico’s shipping needs were being met, despite the governor of Puerto Rico begging the federal government to provide waivers.

The release contains this remarkable and completely shameless quote from AMP President Ku’uhaku Park that is worthy of some fisking: “This stunt by a foreign oil company showing up unannounced in Puerto Rico while on its way overseas hoping to sell its fuel at a premium to Puerto Ricans in need, and thereby triggering a public and political rush to judgment, is bad precedent, a circumvention of U.S. law, and should never be tolerated. American Maritime is dedicated to Puerto Rico and while foreign oil traders seek to line their pockets at the expense of the Puerto Rican people, we will always be committed to our fellow citizens, including our own employees and their families, in Puerto Rico.”

So, according to AMP, there is no shipping crisis in Puerto Rico that justifies Jones Act waivers. The release is full of quotes insisting that goods from Jones Act ships are getting to Puerto Rico just fine and that supply chain problems are happening due to land transportation issues. While there’s no doubt that there are all sorts of supply chain logistics problems in responding to the hurricane, AMP’s insistence that there isn’t a shipping problem is contradicted by Park’s own words, claiming that this foreign company is attempting to “sell its fuel at a premium to Puerto Ricans in need.” He amazingly goes on to complain about the foreign oil traders who “seek to line their pockets at the expense of the Puerto Rican people” by, you know, selling them fuel they need to turn their lights back on.

How is this at the expense of the Puerto Rican people? It’s complete gibberish attempting to deflect attention away from the cruelty of the anti-competitive practices that financially benefit Park (who is an executive at American shipping company Matson). This ship can’t be “taking advantage” of Puerto Ricans unless there is a shortage of available fuel that would drive up prices. And if that’s the case, then AMP’s insistence that the island is already getting shipped what it needs is not accurate.

This concept that certain companies should be able to control whether their competition is allowed to operate is reminiscent of the loathsome, anti-competitive “Certificate of Need” license regulations that plague the health care industry and drive up prices.

Eric Boehm and others have critiqued these laws here at Reason. Certificate of Need programs put government-mandated limits on health services and equipment by essentially giving health industry incumbents the power to prevent competitors from expanding what they provide. In Virginia, the state’s Certificate of Public Need law was used to stop a hospital in Salem from building specialized neonatal care facilities that just so happen to be offered by a nearby hospital in Roanoke. Despite support by the citizens of Salem, the state balked due to objections by representatives of the nearby hospital. Officials decided that the care unit simply wasn’t “needed” and rejected the license. What the people of Salem wanted and what the marketplace could support was irrelevant to the decision.

And, of course, it gave the other hospital a local monopoly on certain health services, just as the Jones Act gives a small number of shipping firms a monopoly on domestic shipping between U.S. ports. Park is telling the government and the people to ignore market signals, ignore what people in Puerto Rico say they need, and trust him and his buddies to decide whether the island truly needs other ships to come.

It’s like if Pizza Hut had the legal power to decide what companies can deliver food to your house. Perhaps instead of being allowed to enjoy Kung Pao chicken in the comfort of your home, Pizza Hut would decide that what you really “need” is more pizza.

Mayorkas was right to give the ship a waiver. The Jones Act is a plague on the marketplace that really needs to be purged.

The post Feds Allow Single Foreign Ship To Deliver Fuel to Hurricane-Ravaged Puerto Rico appeared first on Reason.com.

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Is the Food and Drug Administration (FDA) changing its tune on electronic cigarettes?

In May, Brian King was appointed head of the FDA’s Center for Tobacco Products. King is not known for championing e-cigarettes or reduced-risk alternatives to cigarettes. But after a few months on the job, he’s out on the media and conference circuit giving a clearer idea of how he envisions the future of nicotine regulation.

In an interview with the Associated Press on Monday, King was asked about surveys showing most people think e-cigarettes are just as dangerous as traditional cigarettes and whether that was a problem. “I’m fully aware of the misperceptions that are out there and aren’t consistent with the known science,” King replied. “We do know that e-cigarettes — as a general class — have markedly less risk than a combustible cigarette product.” King went on to say that communication campaigns must use science and evidence and be careful to avoid unintended consequences.

Earlier this year, Clive Bates, a tobacco harm reduction advocate and former chief of the anti-smoking charity Action on Smoking and Health, called the public misperceptions of vaping an “American crime scene.” Bates was referencing the 2020 Health Information National Trends Survey showing just 2.6 percent of Americans accurately believed e-cigarettes were “much less harmful than combustible cigarettes.”

Harm reduction advocates such as Bates believe these misperceptions about the risks of vaping are holding back many smokers from switching to a safer product and causing a rash of bad public policy decisions. These include bans on nontobacco flavors in e-cigarettes, capping nicotine levels, and taxes that make vapes just as expensive as cigarettes.

King’s acknowledgment that much of the public is wrong on the “known science” and that we “know that e-cigarettes — as a general class — have markedly less risk than a combustible cigarette product” is more straightforward than anything you’ll find on the FDA’s website.

“Many studies suggest e-cigarettes and noncombustible tobacco products may be less harmful than combustible cigarettes,” reads the FDA’s main page on e-cigarettes. “However, there is not yet enough evidence to support claims that e-cigarettes and other ENDS [Electronic Nicotine Delivery Systems] are effective tools for quitting smoking.”

After King’s statement Monday, many were hoping to elicit further detail in a speech he gave two days later at the Global Tobacco & Nicotine Forum (GTNF), an annual conference that bills itself as a “global exchange for views and ideas between public health experts, government representatives, the industry, and investors.” The conference’s sponsors and most attendees are drawn from the tobacco and e-cigarette industries.

Those looking for an expansion on King’s remarks to the A.P. were left disappointed. King told attendees that he believes in the “continuum of risk” regarding nicotine products. The idea is that combustible cigarettes are the most dangerous form of nicotine consumption and nicotine replacement therapies are the safest. Toward the safer end of the spectrum are products like e-cigarettes that offer smokers a satisfying nicotine product but without the smoke that may kill them.

But King didn’t mention the public’s misperceptions about the relative risks of e-cigarettes. Instead, King highlighted that the FDA had denied more than 99 percent of e-cigarette applications to stay on the market, and e-cigarettes still present a danger for youth.

When asked by Reason whether the FDA is going to commit any resources to correct misperceptions about e-cigarettes, King simply responded with “I can’t commit to any specific actions.”

When asked for further comment, an FDA spokesperson responded said the “FDA continues to explore how best to communicate with the public about the continuum of risk related to tobacco products. We cannot comment on or commit to any specific actions at this time. However, we do note that it is critical that the development and implementation of public health education campaigns are evidence based to best achieve intended effects on the target population while minimizing adverse consequences for the population as a whole.”

In other words, the FDA has no plan to correct any of the widespread misinformation about e-cigarettes anytime soon. If you want to know the real risks of e-cigarettes vs. combustible cigarettes, you’ll have to look to the U.K. government for that.

The post FDA Admits Vaping Is Safer Than Smoking But Refuses To Correct the Record appeared first on Reason.com.

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Six months before the COVID-19 pandemic prompted mass school closures nationwide, a K-12 district in Brooklyn became the vanguard of a citywide, nationally watched push to combat “desegregation” through scrapping selective admissions criteria and instituting the algorithmic lottery system of “controlled choice.” Meaning, families would rank their choices for middle school, and the Department of Education (DOE) would feed those preferences into a complicated sorting process through which government can better control the racial and socioeconomic distribution among the schools.

These admissions changes, which affected incoming middle schoolers the year my eldest daughter was entering sixth grade in that very same district, was prematurely declared a success upon arrival by the progressive Democrats who had pushed them through. It was “the white flight that wasn’t,” declared the Daily News headline on a 2019 op-ed co-bylined by the relevant city councilman (now comptroller for the whole city) Brad Lander, and equity activists Nyah Berg and David Tipson from the advocacy group New York Appleseed. “New data reveal that Brooklyn school integration is working.”

Well, about that.

The pandemic, an asteroid-level event that permanently altered the landscape for public education in the U.S., is the Big Bang when it comes to plummeting enrollment numbers and catastrophic learning loss in government-run K-12. And the big-city systems that were most likely to be closed or to impose onerous COVID-19 restrictions from the fall of 2020 onward were the ones that suffered the most bleed along both measures.

But they are also, as in New York, the most likely districts to adopt such “equity“-driven policy changes as controlled choice for admissions, ending specialized schools and Gifted & Talented programs, and adopting “restorative justice” approaches to student discipline. Some of those policies were already correlating with unforeseen enrollment declines before the pandemic; others became political flashpoints during the COVID years as newly involved public school parents noticed with bewilderment that even shuttered systems were focusing to an obsessive degree on policies related to diversity, equity, and inclusion (DEI).

At the time Brad Lander et al. wrote their triumphant op-ed, the first-year enrollment results of Brooklyn’s District 15 indeed showed no significant difference in the districtwide proportions of the ethnic/racial categories the DOE tracks (white, Hispanic, black, Asian). But as I detailed back then, the overall enrollment of new middle schoolers declined for the first time in at least a half-decade, in part because the lottery/algorithm produced a disproportionately large number of choices that parents did not want for their kids. Sneered Lander & Co.:

Many observers prophesied that this long-overdue correction would cause many white and affluent families, including those in neighborhoods like Park Slope, to exit the public school system altogether.

We have predicted otherwise—both because the new plan hardly lays such a burden on these families as to cause anything so drastic, and, more fundamentally, because we have more faith in our community….

While we may have lost a handful of families who were not interested in building diverse and supportive school communities, we may be gaining some who are.

Or not. District 15, which indeed has some of the most traditionally sought-after middle schools in the city (particularly Park Slope’s M.S. 51, where both Lander and former Mayor Bill de Blasio had already graduated their kids, and where they chose to announce the district’s trailblazing equity policies), has seen since changing the admissions policy the number of enrolled sixth graders plummet by 17.6 percent, compared to a 9.6 percent decline for the rest of the city. (Those data go through the 2021–22 school year; we’re still waiting on the figures from this fall.)

Who bolted? White students and others whose family incomes did not qualify them for Free and Reduced Price Lunches (FRPL). Using income as a proxy for race (K-12 schools have been barred since 2007 by the Supreme Court from taking race as a direct consideration in enrollment), the district reserved spots in desirable schools for poorer kids while removing screens that had disproportionately kept them out, thus doubly decreasing the odds of the nonpoor being assigned their preferred choices.

“[The plan] resulted in a large increase in the shares of White students and non-FRPL students enrolling outside the public school system,” concluded researcher Clémence Idoux in a June 2021 MIT paper. Why? “Because they were assigned on average to schools with lower achieving potential peers after the integration plans….Compared to previous years, White applicants and non-FRPL applicants were offered on average a choice ranked…1.4 position[s] lower in their list.”

The admissions changes by Districts 15 and 3 (the latter of which, on the west side of Manhattan, ushered in a similar system the same year) did succeed in reducing both economic and racial segregation, Idoux concluded. But: “As a result of these white student and high income students enrollment losses, the integration plans’ effects on racial and economic segregation were halved in both districts.”

Keep in mind those were the results after the first year of the admissions change; the district and the city have been bleeding students ever since. New York’s DOE, which temporarily copied District 15’s removal of middle-school admissions screens for the past two years due to the pandemic, has seen K-12 enrollment shrink by 10 percent since the onset of COVID-19. “We have a massive hemorrhaging of students—massive hemorrhaging,” Mayor Eric Adams said in July. “We’re in a very dangerous place in the number of students that we are dropping.”

What’s happening in New York is happening across the country. Big city districts that were disproportionately closed and adopted more stringent COVID restrictions have faced the largest enrollment drops, suffered the worst learning loss, and seen the most unequal results among racial and socioeconomic groups. With funding dollars typically pegged to enrollment numbers, and with federal bailout money coming to an end, districts are sounding bewildered in the face of the enormity of change.

“We’ve never seen anything like this,” Marguerite Roza, the director of the Edunomics Lab at Georgetown University, recently told Education Week. The EdWeek Research Center last month published the results of a study examining enrollment trends in the nation’s 25 largest metropolitan areas from 2019–2020 to 2020–21, concluding in the headline: “Suburban Schools Saw Huge Drops in White Enrollment During the Pandemic.”

Suburban schools that first COVID year lost 5 percent of their white population, compared to 2 percent each for black and Latino kids, and 1 percent of Asians. The overall share of white students in those schools declined by two percentage points in three years, and 14 percentage points since the 2006–2007 school year.

I will admit here to a certain discomfort in using such crude and broad racial/ethnic classifications to sort populations. Race is a dodgy and ever-malleable construct at best, and we have too much experience with the worst, including and especially in schools. But also, these are the categories being measured by government (try as I personally might to opt out), and those categories’ distribution within various systems and outcomes are the object of tangible government policy, which has direct impact on the 50 million–plus K-12 students and their families nationwide, and indirect impact on everyone else, whether taxpayer or resident anywhere near a school.

The most widespread school-integration policy of my childhood—busing—led directly to families evacuating public education and high-tailing out of cities, which then experienced dysfunction and decline. Busing’s contemporary successor of controlled choice is producing a similar result, while failing to deliver measurable improvements in schools or measurable closures in the achievement gaps between racial/ethnic and socioeconomic populations.

And now, with the Big Bang of pandemic policies still fresh in parental minds, public educators are waking up to find their workplace landscape almost unrecognizable from even a few years ago.

“Some of them are scratching their heads, saying ‘This is something we didn’t expect,'” Suzanne Speck, executive vice president of School Services of California, recently told The 74 Million.

A new national survey of 3,100 K-12 parents by the consulting group Tyton Partners showed a one-year, 9 percent drop in the number of parents who said their kids were enrolled in government-run schools. From 2019–2022, the study estimated, private school enrollment increased from 5.7 million to 7.3 million, charter schools jumped from 3.5 million to 5.5 million, and homeschooling more than doubled from 1.9 million to 4.3 million. “This post-pandemic decline in K-12 public school enrollment,” the Tyton researchers concluded, “suggests that this is no temporary anomaly but may instead reflect a tipping point.”

New York City is now trying to tip the point back. This morning, school Chancellor David Banks announced that the citywide two-year suspension of middle-school admissions screening is over, while laying out new admissions criteria for high schools. “We do believe in high standards,” Banks said. Whether parents believe in that belief remains to be seen.

Bonus video: Here’s me at the beginning of 2020 talking about controlled choice.

The post Public Schools Experiencing 'White Flight' appeared first on Reason.com.

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