Constitutional Law Prof Blog

South Carolina Supremes Strike Six-Week Abortion Ban Under State Constitution

The South Carolina Supreme Court ruled yesterday that the state's ban on abortion after six weeks of pregnancy violated the state constitution's right to privacy.

In doing so, the court broke with the historical approach that the Supreme Court used last summer in Dobbs v. Jackson Women's Health Organization, when it overturned Roe v. Wade. The Court in Dobbs used only history before and leading up to the adoption of the Fourteenth Amendment in concluding that the Fourteenth Amendment didn't protect a right to abortion, whereas the South Carolina Supreme Court also considered the place of women in political society at the time of the adoption of the provision at issue and events that have "transpired since the amendment was adopted."

The court based the ruling on Article I, Section 10, of the South Carolina Constitution, which says: "The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures and unreasonable invasions of privacy shall not be violated." The provision sounds like the Fourth Amendment, with the addition of a specific right to privacy. But the court rejected a reading that would've limited the privacy part to government searches and seizures; it said that the privacy part wouldn't be doing any work if it were so limited, and that it therefore must grant a more general right to privacy.

The court also rejected a reading of the provision that depended on what the provision's framers thought at the time of adoption in the mid-1960s, given that women weren't included in the framing committee and given that the state "had neither permitted women to serve on juries in this state nor ratified the Nineteenth Amendment."

The court then wrote that "[w]e cannot relegate our role of declaring whether a legislative act is constitutional by blinding ourselves to everything that has transpired since the amendment was adopted." It said the Court specifically "declined to do so in the context of 'separate but equal' education in Brown v. Board of Education, then quoted this passage:

[W]e cannot turn the clock back to 1868 when the Amendment was adopted, or even to 1896 when Plessy v. Ferguson was written. We must consider public education in the light of its full development and its present place in American life throughout the Nation. Only in this way can it be determined if segregation in public schools deprives these plaintiffs of the equal protection of the laws.

The approach is a notable break from the Supreme Court's historical approach in Dobbs, when it considered history only before and leading up to the Fourteenth Amendment, and certainly not "everything that has transpired since the amendment was adopted." The South Carolina Supreme Court put a fine point on this break by noting that the Court itself didn't limit its historical assessment to pre-Fourteenth Amendment history in other unenumerated-fundamental-rights cases like Loving, Griswold, Lawrence, and Obergefell.

SCOTUS Stays District Court Title 42 Ruling, Sets State Intervention for Argument

The Supreme Court stayed a district court ruling that vacated the Trump Administration's Title 42 policy and set states' motion for intervention in the case for oral argument in the February sitting.

The ruling means that the Title 42 policy can stay in place, and that the Court will rule later this year whether twelve states led by Republican attorneys general can intervene in the case on the merits.

We last posted here.

The case arises out of the Trump Administration's Title 42 policy, which turned away immigrants--including immigrants who were entitled to apply for asylum--because the Administration determined under federal law that immigration posed a "serious danger" of "introduc[ing]" a "communicable disease." A district court ruled the policy invalid, however, and halted it. States then moved to intervene, arguing that the Biden Administration wouldn't sufficiently defend it on appeal. (The Biden Administration, in fact, is appealing the district court ruling. But it also moved to halt the policy earlier this year, saying that it's no longer justified. In other words, the government is saying that the Trump Administration had authority to implement Title 42 in the first place, and that it has authority to revoke it now that it's no longer necessary and justified. The states take all this as evidence that the Biden Administration won't sufficient defend the policy on appeal.) But they moved quite late, and the D.C. Circuit rejected their motion. They then applied to the Supreme Court for expedited review of the D.C. Circuit's denial, and a stay of the district court's ruling striking the policy.

The Court granted both requests. It stayed the district court's ruling (which allows Title 42 to remain in place) and set the states' motion for intervention for oral argument in its February sitting. The Court ordered the parties to brief this single question: Whether the State applicants may intervene to challenge the District Court's summary judgment order.

Justices Sotomayor and Kagan noted without comment that they'd deny the application. Justice Gorsuch dissented, joined by Justice Jackson, arguing that the Court need not, and should not, get involved in this dispute, at least on an expedited basis. He wrote that there's no rush to determine whether the states can intervene in this dispute over a policy that everyone agrees has "outlived its shelf life" (because it's no longer justified by COVID).

The Court's ruling specifically says that it "does not prevent the federal government from taking any action with respect to [the Title 42 policy]." But another case does, at least for now: A different federal district court ruled in an entirely different case that the Biden Administration's revocation of the Title 42 policy was unlawful. The Administration appealed that ruling to the Fifth Circuit (where the case is pending). In the meantime, the Administration considers itself barred from revoking Title 42.

All this means that Title 42 remains in place, even though everyone seems to agree that it's no longer justified by COVID.

Kentucky Supremes Strike State Private-School Funding Program

The Kentucky Supreme Court ruled this week that a state private-school funding program violated the state constitution. The ruling ends the program, unless and until state voters approve it in a ballot initiative.

The program created a nearly dollar-for-dollar tax credit for Kentucky taxpayers (individuals and corporations) who contribute to account-granting organizations (AGOs). AGOs then allocate taxpayer contributions to education opportunity accounts (EOAs) for eligible students. Students can use EOAs for qualifying educational expenses, including public school tuition, tutoring services, textbooks and instructional materials, and the like. In the eight state counties with more than 90,000 residents, students can use EOAs for private-school tuition. The court described the program more simply:

In simple terms, taxpayers, whether individuals or business entities, who otherwise owe state income tax can instead send that money to nonpublic schools via an AGO, reducing their tax liability and the state coffers by a corresponding amount. As the circuit court correctly observed, the legislation "allows this favored group of taxpayers to re-direct the income taxes they owe to the state to private AGOs, and thereby eliminate their income tax liability." This diversion of owed tax liability monies is made possible by the significant amount of state resources employed to create and operate the EOA program.

Kentucky's high court ruled that the program violated Section 184 of the state constitution. That provision says that state public-school (or "common school") funds can be used only for public-school education, unless Kentuckians vote otherwise. It reads,

The interest and dividends of said [common school] fund, together with any sum which may be produced by taxation or otherwise for purposes of common school education, shall be appropriated to the common schools, and to no other purpose. No sum shall be raised or collected for education other than in common schools until the question of taxation is submitted to the legal voters, and the majority of the votes cast at said election shall be in favor of such taxation. . . .

The court said that the program violated the plain terms of the Section by diverting public funds to private-school education.

The court noted that state voters could approve the program, pursuant to the terms of Section 184. If so, the program could come back. For now, though, the ruling ends the program.

 

 

 

No Bivens Cause of Action for "Systemwide" Conditions-of-Confinement Claim, Fourth Circuit Says

The Fourth Circuit ruled that a federal prisoner did not have a Bivens cause of action for a conditions-of-confinement claim under the Eighth Amendment. The ruling means that the prisoner can't sue federal officers for monetary damages for the Eighth Amendment violations that the prisoner alleged.

The ruling specifically follows, and is consistent with, the Supreme Court's hyper-narrowing and all-but-overruling Bivens in recent Terms.

The court in Tate v. Harmon said that the prisoner's claims arose in a "new context," and that "special factors" counseled hesitation in extending Bivens. Following the Supreme Court, the Fourth Circuit acknowledged the overlap in the two questions, and summarized them together:

In explaining above why Tate's claim arises in a "new context," we noted that his claim seeks to impose liability on prison officials on a systemic level, implicating the day-to-day operations of prisons, affecting the scope of the officials' responsibilities and duties, and implicating policy, administrative, and economic decisions. Determinations about the temperature at which to keep cells, the level of cleanliness at which prison employees or inmates themselves are to maintain cells, the adequacy of toilet paper and toothbrushes, and the length and thickness of mattresses are usually the subject of systemwide executive regulations. Moreover, providing a damages remedy for such inadequacies would involve not only decisions of acceptable human needs but also judgments regarding prison staffing levels, economic considerations, and the most efficient procedures for addressing the inadequacies. . . . We conclude that in this context, the political branches are indeed "better equipped to decide whether existing remedies should be augmented by the creation of a new judicial remedy." This is especially so because we are ill-suited to "predict the systemwide consequences of recognizing a cause of action under Bivens," and even our "uncertainty" on that question "forecloses relief."

Ninth Circuit Rules for Student who Sought to Wear Feather at Graduation

The Ninth Circuit last week ruled in favor of a member of the Sisseton Wahpeton Oyate tribe and graduating high-school student who sought to wear a feather on her cap during graduation ceremonies. The ruling reverses a district court's dismissal of the case and allows it to move forward.

The case, Waln v. Dysart School District, arose when the student asked permission to wear an eagle feather on her graduation cap in honor of her religious beliefs and to pay respect to her ancestors. The district denied permission, pointing to a policy that prohibits students from adding any decoration to their cap or gown. The student showed up at graduation with a feather, and school officials denied her entry. She sued, arguing that the district violated her free speech and free exercise rights, given that other students appeared at the ceremony with secular decorations on their caps.

The district court dismissed the case, but the Ninth Circuit reversed.

The court held that the student plausibly pleaded that school officials treated her differently than other students who decorated their caps with secular messages. The court said that this rendered the policy not generally applicable (under free exercise) and viewpoint based (under free speech).

The court then rejected the district's claim that compliance with the Establishment Clause justified its actions. "[T]he District has not sufficiently met its burden, at this stage, to show that accommodating religious dress for an individual student would have any effect on other students' rights."

Ninth Circuit Affirms District Court Abstention Pending State-Court Eminent Domain Action

The Ninth Circuit ruled last week that a federal district court was right to abstain from proceeding on the plaintiffs' regulatory takings claim when a state court was considering an eminent domain action on the property.

The court in Gearing v. City of Half Moon Bay rejected the plaintiffs' claim that federal court Pullman abstention amounted to a state-forum exhaustion requirement, rejected by the Supreme Court.

In English: The Supreme Court ruled in Knick v. Township of Scott and Pakdel v. City and County of San Francisco that a plaintiff need not exhaust state-forum proceedings before lodging a Takings Clause challenge in federal court. This means that a plaintiff can bring a case in federal court to challenge a taking, even as any state-forum proceeding is still pending.

At the same time, on a different front, federal courts can abstain from ruling on a constitutional question when there's a pending state-court challenge, if the case touches on a sensitive area of social policy, the state proceeding could narrow or eliminate the federal constitutional question, and state law is uncertain. That's Pullman abstention.

In this case, the plaintiffs filed a claim in federal court arguing that the City's rejection of the plaintiffs' development plan amounted to a regulatory taking. The City then filed an eminent domain action in state court. The City also filed a motion to abstain in the federal case. The district court granted the motion.

On appeal, the plaintiffs argued that abstention would force them to litigate their federal takings claim in state court, which would functionally require them to exhaust state-forum proceedings in violation of Knick and Pakdel.

The Ninth Circuit disagreed. The court said that those cases addressed exhaustion, not abstention. The court said that even if they preclude abstention in some other case, they don't preclude abstention in this case. That's because the state court could adjudicate the eminent domain action without reaching the plaintiffs' regulatory takings claim--because eminent domain and regulatory takings suits lead to different compensation for different injuries. Finally, the court ruled that the requirements of Pullman abstention were satisfied in this case.

Digital Millennium Copyright Act Doesn't Violate Free Speech, D.C. Circuit Rules

Steven D. Schwinn, University of Illinois Chicago School of Law

The D.C. Circuit ruled this week that the DMCA doesn't violate the First Amendment rights of an inventor who wanted to create and sell a device that would circumvent technological protection measures for copyrighted digital content.

The case, Green v. U.S. Department of Justice, tests the DMCA's prohibition on "circumvent[ing] a technological measure that effectively controls access to a [copyrighted work]," or trafficking in technology, product, or service that "is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a [copyrighted] work."

Andrew "bunnie" Huang said that he wanted to create and sell a device that would so circumvent, and that he also wanted to publish his computer code to share with others. He brought a pre-enforcement challenge to the DMCA under the First Amendment.

The D.C. Circuit ruled that he's unlikely to succeed on the merits. (The case came to the court on Huang's appeal of the district court's denial of a preliminary injunction.) The court held that Huang's code was, indeed, speech, but that the DMCA was a content-neutral regulation, because the statute "cares about the expressive message in the code 'only to the extent that it informs' the code's function." (Quoting City of Austin v. Reagan National Advertising (2022)). The court then held that the DMCA easily passed intermediate scrutiny: it furthers an important or substantial government interest in protecting copyrighted work; the government interest is unrelated to the suppression of free expression; and the incidental restriction on free speech is no greater than necessary to advance that interest.

Supreme Court to Test Free Speech Against Anti-Discrimination

Steven D. Schwinn, University of Illinois Chicago School of Law

The Supreme Court will hear arguments on Monday in 303 Creative v. Elenis, the case testing whether a website designer's free-speech claim trumps a state's anti-discrimination law. Here's my Preview, from the ABA Preview of United States Supreme Court Cases, with permission:

INTRODUCTION

The First Amendment prohibits government from compelling speech, and from regulating speech based on its content and viewpoint. But on the other hand, the First Amendment allows the government to regulate conduct, even if the regulation has an incidental effect on speech, so long as the regulation is unrelated to the expression of ideas. And it allows the government more freedom to regulate commercial speech. This case pits these First Amendment principles against each other.

ISSUE

Can a website designer refuse to create a website for a same-sex wedding, even though state law prohibits discrimination by sexual orientation?

FACTS

Lorie Smith is a graphic artist and website designer. She is the sole owner of 303 Creative, her custom design studio, where she provides website and graphic design, branding, marketing strategy, and social-media management services to her clients.

Smith will serve any client, regardless of race, creed, sexual orientation, or gender. But she will not create content that contradicts her Christian beliefs. So, for example, she “will decline any request—no matter who makes it—to create content that contradicts the truths of the Bible, demeans or disparages someone, promotes atheism or gambling, endorses the taking of unborn life, incites violence, or promotes a concept of marriage that is not solely the union of one man and one woman.”

Smith expanded her portfolio to include custom wedding content and websites. According to Smith, “[e]very one of [her] wedding websites will not only express messages about the beauty and eternal commitment of the couples, but will also express approval of the couple’s marriage.” Smith designed a sample of a wedding website that includes a Bible passage, but the website doesn’t otherwise reflect the content of potential future websites. Smith says that her websites will bear a notice that reads, “Designed by 303Creative.com.”

Smith also designed a 303 Creative website page that announced her new wedding services. The design includes a statement that God is calling Smith “to explain His true story about marriage, and to use the talents and business He gave [Smith] to publicly proclaim and celebrate His design for marriage as a life-long union between one man and one woman.” The statement goes on:

These same religious convictions that motivate me also prevent me from creating websites promoting and celebrating ideas or messages that violate my beliefs. So I will not be able to create websites for same-sex marriages or any other marriage that is not between one man and one woman. Doing that would compromise my Christian witness and tell a story about marriage that contradicts God’s true story of marriage—the very story He is calling me to promote.

Smith says that she “cannot yet share that message,” however, because “Colorado forbids it on pain of investigation, fines, and re-education.” Smith is referring to two provisions in the Colorado Anti-Discrimination Act, or CADA. The first, the Accommodations Clause, prohibits businesses that sell or offer services “to the public” from discriminating based on “disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry.” The second, the Communications Clause, prohibits businesses from “display[ing]” a “notice” that “indicates that the full and equal enjoyment of the goods [or] services . . . will be refused, withheld from, or denied an individual or that an individual’s patronage or presence at a place of public accommodation is unwelcome, objectionable, unacceptable, or undesirable” based on a protected characteristic.

Smith brought a pre-enforcement challenge to CADA and sought an injunction halting its enforcements. She alleged that the two provisions violated her free-speech rights because they would require her to create websites for same-sex weddings. The district court ruled against Smith, and the United States Court of Appeals for the Tenth Circuit affirmed. This appeal followed.

CASE ANALYSIS

This case involves several different free-speech doctrines, and pits them against each other. On the one hand, the compelled-speech doctrine says that the government cannot require individuals to communicate a message they do not wish to communicate. In addition, the general rule against content- and viewpoint-based restrictions says that any government regulation of speech based on the content or the viewpoint of the speech must be narrowly tailored to meet a compelling government interest. (That test is called “strict scrutiny.”)

On the other hand, the conduct-as-speech doctrine allows the government to regulate speech that is incidental to conduct at a lower level of scrutiny (“intermediate scrutiny”), so long as the regulation is not related to the expression of ideas. Moreover, the commercial-speech doctrine allows the government to regulate speech promoting a commercial exchange also at a lower level of scrutiny.

The parties frame their arguments around these competing doctrines.

Smith argues first that CADA compels her to speak in violation of the First Amendment. She says that her wedding websites amount to “pure speech,” and that CADA, by requiring her to create websites for weddings that contradict her beliefs, impermissibly compels her to speak in violation of her free-speech rights.

Smith points to Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995), in support of her claim. The Court in that case ruled that the First Amendment allowed the organizers of a public parade celebrating Irish heritage to exclude an LGBTQ+ group, even though anti-discrimination law prohibited the organizers from discriminating on the basis of sexual orientation. Smith says that under Hurley when an anti-discrimination law “makes ‘speech itself . . . the public accommodation,’ and forces someone to ‘alter’ their ‘expressive content,’ the government must satisfy strict scrutiny,” which it cannot do here. According to Smith, Hurley applies squarely to her case: “CADA makes an artist’s speech the accommodation, and Colorado’s application of the law to an artist like Smith forces her to alter her expressive content in untenable ways.”

Smith contends that she does not lose her free-speech rights just because she creates speech as part of her business. She says that CADA’s application to her speech is not “incidental” to her conduct; instead, CADA directly regulates her “pure speech.” Moreover, she claims that she is not a “passive conduit” for her client’s messages; instead, she creates the messages herself, and “retains final editorial control over them.” Smith claims this is “[her] speech and her message.”

Smith argues next that CADA’s two provisions impermissibly regulate her speech based on its content and its viewpoint. She says that both provisions require her to promote content and a viewpoint that she finds objectionable—any marriage other than one between one man and one woman. Smith claims that CADA does not serve a compelling interest in enforcing the two provisions, because, while a state may have a general interest in protecting equal access to the marketplace, it has no compelling interest in “ensuring [general] access to a particular person’s unique, artistic product.” Moreover, she contends that CADA is not narrowly tailored, because the state “has numerous, less burdensome alternatives to achieve any legitimate interests it might articulate.” For example, Smith says that “Colorado could interpret CADA to allow speakers who serve all people to decline specific projects based on their message,” it could “enact[] textual exemptions for artists who decline projects based on their messages,” it could exempt services for the “wedding industry,” or it could limit CADA’s reach to “physical spaces.” 

Finally, Smith argues that neither the anti-discrimination context nor the topic of marriage “justifies an exception to th[e] cardinal rule” that government cannot “violate artists’ freedom of conscience or compel them to ‘mouth support for views they find objectionable.’”

The state counters that CADA regulates Smith’s business, not her speech. The state says that a business like 303 Creative can decide for itself what it would like to sell. A business can even define its services quite narrowly, for example, “only websites that include biblical quotes describing marriage as the union of one man and one woman.” But the state contends that once a business decides what to sell, CADA requires the business to sell “to all without regard to a customer’s protected characteristic.” In other words, according to the state, CADA regulates sales, not the services or products sold. And “it does not prohibit or compel the speech of any business.”

Moreover, the state says that CADA does not regulate expressive conduct. According to the state, “[r]outine commercial transactions do not become expressive conduct just because the business believes a sale would convey approval of the buyer.” But to the extent that the Court “needs to consider the content of the Company’s websites to determine whether the Company will deny equal access to its services,” the state says that the case is not yet ripe for judicial review. According to the state, that’s because nobody has asked Smith to create a website for a same-sex marriage (although Smith claims that she received an inquiry), and the state has not required her to create such a website.

The state argues next that even if the Accommodations Clause burdens Smith’s speech, the burden is “incidental,” that is, not related to the expression of Smith’s ideas. As such, the state says that the Clause is subject to a lower level of review, intermediate scrutiny, and easily passes.

But even if the Court were to apply strict scrutiny, the state argues that the Accommodations Clause passes muster. The state claims that it has a compelling interest “in ensuring equal access to publicly available goods and services”—an interest that is “rooted in this nation’s history and traditions, which has long recognized both the material and dignitary harms of the denial of service.” Moreover, the state contends that the Accommodations Clause is narrowly tailored to meet this interest, because “[i]t targets only specific commercial conduct: the discriminatory sale of products and services by businesses open to the public.” The state contends that Smith’s proposed exemptions (which purport to show why CADA is not narrowly tailored) “would upend antidiscrimination law—and other laws too”—by “depart[ing] from this Court’s doctrine and creat[ing] an enforcement regime riddled with uncertainty and inconsistency.”

Finally, as to the Communications Clause, the state argues that “[i]t prohibits only commercial speech that facilitates illegal conduct—expression that receives no free speech protection.” The state says that the Communications Clause does not prohibit Smith from expressing her views; it only prohibits her from advertising that she will deny equal access to her services.

The government weighed in as amicus to support the state. It makes substantially similar arguments.

SIGNIFICANCE

If this case seems familiar, that’s because it is. Ever since states started to recognize same-sex marriages, wedding-service providers have challenged state anti-discrimination laws as violating their rights to free exercise of religion and free speech. The Court famously ruled in one of these cases just four years ago. In Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 584 (U.S.)__ (2018), the Court ruled that the Colorado Civil Rights Commission’s application of CADA—the same CADA that’s at issue in this case—violated a cakebaker’s free-exercise right to refuse to bake a cake for a same-sex wedding. The Court held that some of the commissioners’ statements reflected anti-religious animus against the cakebaker, and therefore the Commission’s ruling against the cakebaker violated the Free Exercise Clause.

This case is the fully anticipated follow-up to Masterpiece. But unlike Masterpiece, this case comes to the Court as a free-speech case. (The cake-baker in Masterpiece also raised a free-speech claim, but the Court did not take it up.) It thus gives the Court yet another chance to test individual constitutional rights against a state’s anti-discrimination laws, albeit under a different doctrine.

As a free-speech case, 303 Creative will force the Court to navigate some distinctive landmines with roundly discredited historical antecedents. For example, Smith’s proposed statement echoes and amplifies earlier statements by many commercial establishments that they will not serve individuals of a particular race, ethnicity, or nationality. Similarly, Smith’s proposed exception from anti-discrimination laws echoes and amplifies earlier statements by many commercial establishments and individuals that they have a free-speech or free-association right to discriminate, anti-discrimination laws notwithstanding.

Smith tries to provide the Court with a roadmap through these landmines. She does this by focusing narrowly on her work as an “artist” with a creative message (and not just an ordinary business), who proposes to work in a particular area, weddings, where views can be strong and mixed. It’s not at all clear that Smith’s roadmap actually dodges the landmines, though. As the state contends, her efforts to narrow her case and distinguish her work may simply create confusion and uncertainty as to the application of anti-discrimination law.

This could mean that any ruling for Smith would open the door wide for other exemptions from anti-discrimination laws. For example, even a narrow ruling for Smith could invite other individuals and businesses to cast themselves as “artists,” or define their work as serving a particular market that is inextricably tied up with speech. (It’s easy to see how any variety of individuals and businesses could lodge these claims.) It could also invite individuals and businesses to seek exemptions from anti-discrimination laws for those discredited historical practices, mentioned above. Given the nature of this case (in contrast to Masterpiece, where there was a record of enforcement), there may be no obvious way for the Court to rule for Smith while not effectively drilling a tunnel through anti-discrimination laws.

One final observation. The Court’s jurisprudence in this area—testing First Amendment rights against anti-discrimination laws—seems to treat laws protecting against LGBTQ+ discrimination less favorably than it treats laws protecting against other kinds of discrimination. The Court doesn’t specifically acknowledge this, however, much less provide a principled reason for the difference.

If the Court rules for Smith, it may have to say that quiet part out loud. In other words, it may have to explain why free speech protects Smith’s statements that she won’t create websites for same-sex weddings, even if free speech would not protect her statements that she won’t create websites for, say, Black weddings. Any attempt to explain this difference could prove exceedingly embarrassing (and uncomfortably revealing) for the Court. Yet a ruling for Smith without this explanation will simply invite the next inevitable case, testing whether free-speech protects a business’s announcement that they will not serve Black people.

 

Ninth Circuit Upholds California's Recall Process

Steven D. Schwinn, University of Illinois Chicago School of Law

The Ninth Circuit this week rebuffed a challenge to California's recall process. The ruling means that the process stays in place.

The case, Clark v. Weber, arose when a voter who opposed the recall of Governor Newsom argued that the state's recall process violated the Constitution. Under the process, voters first vote whether to recall the official. If a majority votes to recall, the official is recalled. Voters next vote for a replacement (in case the first vote results in a recall). Any candidate for replacement who gets a plurality wins (again, assuming that the first vote results in a recall). The incumbent cannot run as a candidate in that second vote.

Clark argued that the process violated one-person-one-vote, because, as a Newsom supporter, he only had one vote (in the first part of the process), whereas voters who opposed Newsom had two votes. He also argued that an incumbent must receive a majority to stay in office, whereas a challenger needs to get only a plurality.

The court rejected both theories. The court said that California's process is really two separate elections run together, and that everyone gets a vote in both. To the extent that Clark's choices don't include the incumbent in the second election, the court said that this wasn't a severe restriction on the right to vote. (The court analogized the exclusion of the incumbent to term-limit laws, which the courts have upheld). The court said that the state easily justified this restriction based on its important interest in maintaining the efficacy of its recall procedure.

Second Circuit Says University Officials Get QI for Revoking Scholarship

Steven D. Schwinn, University of Illinois Chicago School of Law

The Second Circuit ruled this week that University of Connecticut officials enjoyed qualified immunity from a UConn soccer player's free-speech and due process claims after the officials terminated the player's scholarship for raising her middle finger on camera after a nationally broadcast game. At the same time, the court ruled that there was sufficient evidence to allow the player's Title IX claim to move forward.

The case, Radwan v. Manuel, arose when Noriana Radwan, a UConn soccer player, raised her middle finger on camera after a nationally televised game. UConn officials suspended her from further tournament play and later revoked her one-year scholarship. Radwan sued, arguing that the move violated the First Amendment, due process, and Title IX.

The Second Circuit ruled that UConn officials enjoyed qualified immunity against the free-speech claim, because "the right of a student-athlete at a university, while in public and on the playing field, to make a vulgar or offensive comment or gesture without suffering disciplinary consequences" wasn't clearly established. The court explained:

Although we agree that the Supreme Court has suggested that its analyses in addressing the First Amendment in the public elementary and high school settings (including Hazelwood and Fraser) may not apply equally to the university setting, neither the Supreme Court nor any circuit court has yet provided an alternative legal standard or framework to help university administrators discern the precise constitutional line in such circumstances, especially when the student engages in speech while wearing the university's uniform as part of an extracurricular activity.

As to the due process claim, the court held that a fixed-term athletic scholarship terminable only for cause gave rise to a constitutionally protected property right. But it said that this right wasn't clearly established when officials revoked Radwan's scholarship.

The court ruled for Radwan on her Title IX claim, however, saying that "taken as a whole and construed most favorably to Radwan as the non-moving party, [the evidence] is sufficient to create genuine issues of material fact as to whether Radwan received a more serious disciplinary sanction at UConn because of her gender." That's not a final ruling on the Title IX claim; it only allows the claim to move forward.

Jail Policy for Foreign-Born Detainees Violates Equal Protection

Steven D. Schwinn, University of Illinois Chicago School of Law

The Eighth Circuit ruled this week that a county jail's policy of holding otherwise releasable detainees based on their nation of birth violated equal protection.

The case, Parada v. Anoka County, tested the county jail's policy of holding every otherwise releasable detainee born outside the United States until jail authorities contacted ICE. The wait could last between 20 minutes and 6 hours.

The Eighth Circuit said the policy violated equal protection. That's because it discriminates based on nation of birth, far too rough a cut to satisfy the strict scrutiny standard that applies when government discriminates by national origin. The court noted that the county could have detained persons based on citizenship, instead, a classification that's both neutral with regard to national origin and a closer fit to the county's objectives.

While the court assumed for the purpose of analysis that the county's interest in its policy was "compelling," the court also expressed "doubts about it." It wrote, "Anoka County makes no suggestion it has an interest in stemming the tide of illegal immigration. It instead frames its interest as giving 'ICE an opportunity to investigate the legal status of individuals who [are] already in custody' without 'overburden[ing]' the agency by passing along too many false positives."

SCOTUS to Hear Biden Loan Forgiveness Case

The Supreme Court today agreed to hear a case challenging the Biden Administration's federal student loan forgiveness program. The case comes to the Court on the government's application to vacate the injunction halting the program entered by the Eighth Circuit. We last posted here.

The Court will hear oral argument on the program in February. In the meantime, the Eighth Circuit's injunction stays in place. The Court gave no clue as to its thinking on the merits in its brief order.

No Absolute Immunity for Trump for January 6 Activities

Steven D. Schwinn, University of Illinois Chicago School of Law

Judge Emmet G. Sullivan (D.D.C.) ruled this week that former President Donald Trump does not have absolute immunity from a civil-damage lawsuit for his behavior related to the insurrection on January 6. The ruling came in an order granting the plaintiffs' motion to file a second amended complaint in a lawsuit against Trump and others for interfering with the electoral count. In other words, it's not a final ruling on the merits; it just means that portions of the case against Trump can move forward.

The court held that Trump's activities leading up to and on January 6 in an effort to disrupt the electoral count were not within the "outer perimeter" of his official duties as president, and therefore, under Nixon v. Fitzgerald, he did not enjoy absolute immunity from civil-damage claims based upon those activities. The court held that Trump's activities were political, not official, because they "entirely concern his efforts to remain in office for a second term."

The this is now the third time that the D.C. district held that Trump's January 6-related activities were outside the scope of his official duties. See Thompson v. Trump (also denying absolute immunity) and United States v. Chrestman (rejecting a defense in a criminal case against a January 6 insurrectionist).

Eighth Circuit Halts Education Debt Forgiveness Program Pending Appeal

Steven D. Schwinn, University of Illinois Chicago School of Law

The Eighth Circuit granted a motion to stop the Biden Administration from implementing its student-debt forgiveness program pending appeal. The court just a few weeks ago granted an emergency motion for an administrative stay, to the same effect.

The ruling halts implementation of the program nationwide during the state's appeal. It's another setback for the loan-forgiveness program in the courts.

The court said, contrary to the district court, that the Missouri Higher Education Loan Authority had standing as a state agency, or, if not, because of "MOHELA's financial obligations to the State treasury, the challenged student loan debt cancellation presents a threatened financial harm to the State of Missouri." Moreover, "the equities strongly favor an injunction considering the irreversible impact the Secretary's debt forgiveness action would have as compared to the lack of harm an injunction would presently impose."

The court said that it couldn't limit an injunction to the plaintiff states, however, because MOHELA services loans nationwide, and because "tailoring an injunction to address the alleged harms to the remaining States would entail delving into complex issues and contested facts that would make any limits uncertain in their application and effectiveness."

Justice Sotomayor Declines to Halt NYC Public Employee Vaccine Mandate

Steven D. Schwinn, University of Illinois Chicago School of Law

Justice Sotomayor, as Second Circuit justice, denied an emergency application to halt New York City's vaccine mandate for public employees, pending appeal.

The denial came without explanation. That's not unusual for this kind of thing.

A group called New Yorkers for Religious Liberty filed the application. It argued that the City's enforcement of the vaccine mandate violate the Free Exercise Clause. In particular, the group maintained that the City had too much discretion in granting religious exemptions, that the City "play[ed] denominational favorites" and made other arbitrary decisions regarding exemptions, and that "[t]he City uses its executive discretion to prefer secular conduct that undermines the government's asserted interest in similar ways as non-exempted religious conduct."

The arguments looked to exploit holes in the Smith test, which applies rational basis review to government actions that are neutral with regard to religion and generally applicable. The Court in Masterpiece Cakeshop v. Colorado Civil Rights Commission held that statements by commissioners reflected anti-religious animus, and therefore the Commission failed to apply Colorado's anti-discrimination law in a way that was neutral with regard to religion. More recently, in Fulton v. City of Philadelphia, the Court ruled that the City's discretion in enforcing anti-discrimination law made it not generally applicable. The two rulings significantly chipped away at Smith, even if the Court (so far) has declined to outright overrule Smith.

The group's arguments in its emergency application are in the same spirit--that the City enforces the otherwise neutral and generally applicable vaccine mandate in a way that discriminates against certain religious beliefs, or leaves too much discretion in the hands of City officials who can grant exemptions.

Justice Sotomayor's denial follows two Court rulings earlier this year, one rejecting a Biden Administration effort to impose a vaccine mandate on employees of large employers and another one upholding a Biden Administration move to require facilities that receive Medicare or Medicaid funding to ensure that their employees are vaccinated. Those rulings turned on the Administration's authority to adopt those rules, however, and not the Free Exercise Clause.

Judge Strikes Biden Student Loan Forgiveness

Steven D. Schwinn, University of Illinois Chicago School of Law

Judge Mark T. Pittman (N.D. Tex.) ruled that the Biden Administration's student-loan forgiveness program is unconstitutional. The Administration already said that it'd appeal.

Recall that the Eighth Circuit previously temporarily halted the program pending an appeal. At the same time, the Supreme Court declined to temporarily halt the program in a different case.

Judge Pittman's ruling is different than these, in that it isn't temporary. Instead, it "vacates" the program in its entirety.

The court ruled that the program violated the newly discovered major questions doctrine. The court said that the program involved a matter of "vast 'economic and political significance'" (because it'll "cost more than $400 billion"), yet Congress hadn't clearly authorized it in the HEROES Act. Under West Virginia v. EPA's major questions doctrine, the court said that the program is therefore unconstitutional.

That's striking, given that the HEROES Act plainly authorizes the Secretary of Education to "waive or modify" federal student loans "as the Secretary deems necessary in connection with a war or other military operation or national emergency." ("The term 'national emergency' means a national emergency declared by the President of the United States.") It's striking, too, because, unlike the West Virginia case, the Administration's action here doesn't impose a regulatory scheme. If the major questions doctrine reaches this program, it'll likely reach a whole lot of other programs that we might not necessarily have expected under West Virginia, too--programs where the president has statutory authority to declare an "emergency," or where an administration takes non-regulatory action. (And remember: the Court hasn't defined "economic and political significance." So we don't know how or whether that limiting principle would apply.)

The ruling is striking at an even more basic level, on standing. Under the standing rule, a plaintiff, in order to get into federal court, has to plausibly plead (1) that they've suffered a harm, (2) that the defendant's action caused the harm, and (3) that the plaintiff's requested relief will redress the harm. Here, the plaintiffs in the case didn't qualify for the full forgiveness. That was their "harm" for standing purposes. And they connected that harm to the forgiveness program, demonstrating causation.

Yet they asked the court to vacate the entire program (as opposed to remand to the Department to fix it so that they'd qualify). The court obliged, and, as a result, they (still) don't get forgiveness (and neither does anyone else). This seems counterproductive, at best, as a practical matter. But it also seems to play fast and loose with the third standing requirement, that the requested relief must redress the harm.

Second Circuit Sends Measles Vaccine Mandate Case Back for Trial

Steven D. Schwinn, University of Illinois Chicago School of Law

The Second Circuit ruled that a district court improperly granted summary judgment to the Rockland County Department of Health (NY) and its officials in a claim by parents of minor children that the Department's order excluding unvaccinated children from school violated their right to free exercise of religion.

The ruling means that the district court must hold a trial to resolve disputed facts surrounding the claim before ruling on the free exercise issue.

The case, M.A. v. Rockland County Department of Health, arose when the Department excluded children who were not vaccinated against measles from attending school. The Department issued the order in response to a measles outbreak.

Parents sued, arguing that the order violated free exercise, among other things. The district court ruled that the order was neutral with regard to religion and generally applicable. It applied Smith's rational basis review and granted summary judgment to the district.

The Second Circuit reversed. The court said there were facts in dispute as to the order's neutrality and general applicability that made the case inappropriate for summary judgment.

While a reasonable juror could conclude that [a Department official's] statements [about individuals who oppose vaccines] evinced religious animus, rendering the Declaration not neutral, a reasonable juror could also conclude the opposite. Similarly, there are disputes of fact regarding whether the Declaration, in practice, primarily affected children of religious objectors or whether there was a sizable population of children who were unvaccinated for a variety of non-medical and non-religious reasons. There are also disputes as to whether the County's purpose in issuing the Declaration was to stop the spread of measles or to encourage vaccination. Given these fact-intensive issues, the district court's grant of summary judgment on the Plaintiffs' Free Exercise Claim was erroneous.

The case now goes back to the district court for a trial on these questions.

Sixth Circuit Says No Right to Record Police Misconduct Investigations

Steven D. Schwinn, University of Illinois Chicago School of Law

The Sixth Circuit ruled this week that the First Amendment doesn't protect a right to record police misconduct investigations.

The case, Hils v. Davis, arose when the president of the police union sought to record Citizen Complaint Authority interviews of an officer in a police-misconduct investigation. The union president alleged that the Authority wasn't recording the entire interviews, so he sought to fill the gaps. The Authority prevented him from recording, and he sued.

The court examined the "many potential ways to think about this claim," including text and history of the First Amendment, precedent involving press access to public proceedings, government-employee speech, and forum analysis. It rejected the claims under them all. The fundamental problem according to the court: Authority interviews are part of non-public government investigations. The court said that the Authority has a legitimate interest in keeping the interviews under wraps while the investigation is pending, and that interviewees have other ways of voicing their concerns that the Authority is selectively recording the interviews: Say so.

Fifth Circuit Rebuffs Tanning Business Case Against COVID Shutdown

Steven D. Schwinn, University of Illinois Chicago School of Law

The Fifth Circuit rejected claims by a tanning business that COVID shutdowns violated its equal protection rights and amounted to an uncompensated taking.

The case, Golden Glow Tanning Salon v. City of Columbus, Mississippi, arose when Columbus ordered a seven-week shutdown of certain businesses in the early days of the COVID pandemic. Golden Glow sued, arguing that the shutdown violated equal protection and constituted an uncompensated taking.

The Fifth Circuit rejected both claims. The court applied rational basis review to Golden Glow's equal protection claim, and concluded that Columbus's action was reasonable, even if a little both over- and underinclusive. As to takings, the court rejected Golden Glow's claim that the shutdown effected a per se taking, because Golden Glow failed to demonstrate that the shutdown "rendered the entire property 'valueless.'"

Judge Ho concurred, and pitched a case for the right to earn a living as a fundamental right. Judge Ho argued that the right "to pursue callings" has even better historical foundations than other unenumerated fundamental rights.

Eleventh Circuit Writes Final Chapter in Marjorie Taylor Greene Candidacy Challenge

Steven D. Schwinn, University of Illinois Chicago School of Law

The Eleventh Circuit yesterday ruled that Representative Marjorie Taylor Greene's federal lawsuit seeking to halt a state-level challenge to her candidacy was moot. The court said that the state process ran its course in her favor, and so there was nothing left for the federal courts to enjoin.

The case started when a group of Georgia voters filed a claim under Georgia's "Challenge Statute" that Marjorie Taylor Greene was ineligible for election to the House under Section 3 of the Fourteenth Amendment. That provision says that a person can't be candidate for office if they took an oath as an officer to support the Constitution of the United States and subsequently "shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof."

Greene sued in federal court to halt the state-level challenge, arguing that it violated her First Amendment right to run for public office; the Due Process Clause; Article I, Section 5, insofar as it exceeded the state's power to regulate election procedures and usurped the House's role as judge of the qualifications of its members; and the 1872 Amnesty Act (which she claimed removed the "disability" imposed by Section 3 prospectively to all members of Congress).

The federal district court ruled against Greene, and Greene appealed to the Eleventh Circuit.

Meanwhile, in the state challenge, a Georgia administrative law judge ruled that Greene's challengers failed to show that she fit within Section 3. Georgia Secretary of State Brad Raffensperger adopted the ALJ's conclusion, and the state courts affirmed.

Given that the state challenge ran its course, the Eleventh Circuit yesterday dismissed Greene's federal case as moot. The court said nothing about the merits of the challengers' Section 3 claim against Greene.

But Judge Branch, in a concurring opinion, argued that Greene was likely to prevail on her claim that the state process would have violated Article I, Sections 4 and 5 by imposing an additional qualification on her--that she defend herself against a Section 3 challenge in a state process:

[I]n purporting to assess Rep. Greene's eligibility under the rubric of Section 3 of the Fourteenth Amendment to the U.S. Constitution, Georgia imposed a substantive qualification on her. The State was not merely, as the district court incorrectly concluded, enforcing the preexisting constitutional disability in Section 3. Instead, the State Defendants, acting under the Challenge Statute, forced Rep. Greene to defend her eligibility under Section 3 to even appear on the ballot pursuant to a voter challenge to her candidacy--thereby imposing a qualification for office that conflicts with the constitutional mechanism contained in Section 3. In other words, by requiring Rep. Greene to adjudicate her eligibility under Section 3 to run for office through a state administrative process without a chance of congressional override, the State imposed a qualification in direct conflict with the procedure in Section 3--which provides a prohibition on being a Representative and an escape hatch.