Advisory Opinions - Thomas Jefferson Admissions Can Remain For Now

Episode Date: April 5, 2022

David and Sarah have much to discuss in today's podcast. They walk through a troubling 4th Circuit decision on race-motivated changes to a Virginia school's admissions policy, discuss a huge defamation verdict against Oberlin College, dive into the Disney wars in Florida, and finish with a quick (fake) legal battle over the titanic Duke/UNC clash at the Final Four.   Show Notes: -Coalition for TJ v. Fairfax County School Board -Gibson's Bakery v. Oberlin College -UNC law students got results Learn more about your ad choices. Visit megaphone.fm/adchoices

You ready? I was born ready. Welcome to the Advisory Opinions Podcast. I'm David French with Sarah Isger. And my goodness, Sarah, between yesterday morning when you slacked, quote, hmm, what do we have for tomorrow? And now, turns out we got a lot. Yeah. We've got a lot of really interesting things to cover. Kind of an interesting potpourri that's going to hit a few different things, but there's going to be some commonalities.

So we're going to deal with a Fourth Circuit opinion that was just entered late last week, that if you followed the ins and outs of the Thomas Jefferson litigation. This is the school in Fairfax County or in Northern Virginia that has been subject to a race discrimination lawsuit because of changes in admissions policies that have resulted in an extraordinary burden on Asian American applicants. District court judge ruled for the plaintiffs in that case. The Fourth Circuit has stayed that ruling. It was ruled for the school board, and there's a lot to unpack there. Also, we have an Ohio Court of Appeals. Now, we don't typically deal with state court of appeals decisions because they don't typically rise to the level of importance of this Ohio court of appeals decision that upheld a multi-million dollar, 31 million total, including attorney's fees, against Oberlin. Against Oberlin for its role in student protests against a bakery.

I wrote about this a bunch a few years ago when I was still at National Review. against Oberlin for its role in student protests against a bakery. I wrote about this a bunch a few years ago when I was still at National Review. We also have what looks like the first legal challenge to the Florida, and again, I'm going to use the phrase, don't say gay, Bill, just because everybody uses that phrase, and we know that that's a misleading phrase, but that's what everybody knows it by, but it's a challenge to the Florida don't Say Gay bill that is very interesting. Also, we're going to talk about the conservative jihad against Disney and its legal limits, an update about Yale. And then,

Sarah, if we still have time, we've got a fun story out of the Duke-UNC clash that happened on Saturday. Whew, I'm already tired. It's not just a legal angle. It is a law story about the Duke-UNC game. Yes, absolutely. So that's a lot. Do you want to kick us off with Thomas Jefferson? Yeah, so first of all, this is the first opinion we have from this Biden judge, Toby Haytens.

Yeah, so first of all, this is the first opinion we have from this Biden judge, Toby Haytens. He was the former Virginia Solicitor General nominated to the Fourth Circuit by Biden sitting there now. He is going to write the majority opinion, concurring opinion in this case. And then Judge Allison Jones Rushing, a Trump appointee, is going to write the dissenting opinion in this case. And you know what, David? We've talked a lot about the Fifth Circuit and the Ninth Circuit and sort of the side eye and the snark and the humor and all of the other things. But the high emotion that has been involved in some of the dissenting opinions on high profile cases, not here. And I just want to give both judges a lot of credit for writing just very cogent, well-reasoned, I think, opinions on why this is actually a little

bit of a hard case moving forward and why I think the Supreme Court will take it even given the Harvard litigation. I've talked about this case several times before and said that I wish this case were going first ahead of Harvard, but you know, um, if wishes were unicorns and all of that. Uh, so let's dive in. I'm going to talk mostly about the majority opinion because in some ways it's the outlier. Um, so first of all, I think he makes a very good point about why this is different from Harvard. Harvard admissions is about how and when a school can use race-conscious policies in admissions. And we have a lot of cases leading up to Harvard. We'll have the arguments in the fall, table all of that. The reason this is different is because it's about race neutral policies in

admission that have racial impact. And that's what's fascinating about this case, because nobody's disputing that these are race neutral policies on their face. The question is, when they changed the admissions policy, did they, and anytime you're going to change admissions policy, obviously it may probably will have some impact on different racial groups. The question is, did you change it because of what those impacts would be or in spite of those impacts? And again, I think that that's a really interesting question in this case. The district judge, though, however, found that it was very much because of the impact it would have on Asian-American applicants.

But Judge Hayton's saying that he disagrees. So as you mentioned, David, this is coming in a stay posture. So the only question before the Fourth Circuit at this stage is whether the school can use the new policy that the district court found was unconstitutional and violated the Equal Protection Clause, or whether they have to go back and use the old policy, even though admissions decisions are due in April. And so we've talked about stay factors before, likelihood of success on the merits, and irreparable injury are really the two that are going to be most important today. So Judge Hightons is saying like, look, I just

don't think they're going to win in the end. If this comes back to me as a Fourth Circuit judge, don't think they're going to win in the end. If this comes back to me as a Fourth Circuit judge, then I'm going to reverse the district court opinion. And we'll get to irreparable injury later because I also think that's an interesting disagreement that they have between Judge Haytens and Judge Rushing. Okay. So David, let's remember the two policies. And it's hard to remember because they're kind of complicated. They are. So here's the old policy. A prospective student must reside in one of five participating school districts, be enrolled in eighth grade, have completed or be enrolled in Algebra 1, GPA of 3, 3.0, and an application fee of $100. Once you meet that criteria, then you take three standardized tests.

You have to achieve a minimum percentile ranking on those tests. Then you take three writing prompts and a problem-solving essay, and you need two teacher recommendations. Then they say they look at the holistic review of the application materials and decide who to take. Okay, that's the old policy. New policy. The five districts, eighth grade, algebra one. But instead of a 3.0 GPA, you now have to have a 3.5 GPA, and you have to be in certain honors courses. And then otherwise, holistic answer to essay questions and experience factors, free or reduced-priced meals, English as a second language, an individualized education plan, meaning you have an educational disability of some kind probably, plan, meaning you have an educational disability of some kind probably, and attends a historically underrepresented middle school, meaning in this case, not Asian majority middle school.

Okay, so these are the new admissions criteria. Now, important, evaluators are not told the race, ethnicity, gender, or even names of the applicants before them. So it is race neutral in that sense. Okay, so because we have one year under this new policy, we have some statistics. Half of the applicants self-identified as Asian under the new policy. 54% of the offers went to Asian students. So Asian students got more as a percentage offers than applicants. Previously, however, 65 to 70% of the offers went to Asian students.

So it's a decrease in the number of offers, but still overrepresented based on the applicant pool. And Judge Hayden's point is that means there's no disparate impact. If you are overrepresented from the applicant pool, you can't have a disparate impact claim. And you can't, the district court used the previous applicant offer, you know, the 70% number down to the 54% number and said, there's your disparate impact. And he said, the judge Hayden said, well, that's not reasonable because what if it were, you know, racially discriminatory before, and you're trying to fix it. You could never change an admissions policy because something will always have a disparate impact, which by the way, conservatives around the country, when it comes to voting rights, are like, yes, that, uh-huh. But the problem is,

let me use a slightly different example. And in this example, I am only trying to make the point of what the baseline should be when determining disparate impact. I'm not trying to come up with a perfect match for our current admissions standards. Okay. I'm just, you know, going to simplify for these purposes. So in my hypothetical, David, it's a track meet. A hundred students apply for the track meet, but they're only going to take 10 students. Now in the old policy, 10 of the students who apply for the track meet are black. All of them ran the prelims in under a minute. 90 of the students are white applicants, but only one white student ran it in under a minute. So in this application scenario, in the previous year, they took nine black students and one white student. So 10% applicant pool, 90% offer. But this year under the new policy, they've accepted four black students and six white students so 10 applicant pool 40 offer pool

according to judge heightens that could be that is not evidence of disparate impact even though at no point are we taking into account the fact that all 10 of the students ran their prelims in under a minute and only one of the white students did he's saying like in his version of this, that's not the issue. You just look at the applicant pool and if they're overrepresented in the offer pool, that clearly can't be right based on the hypothetical that I just gave you, which would show pretty clear disparate impact on black students who all ran the track meet much faster just because there were more white applicants,

the white applicants were clearly less qualified. Okay, that's one version. Go ahead, David. I was just going to say, and this, it felt obtuse to me as I was reading it, because we remember the debate around this when these policies were being changed. this when these policies were being changed. And the debate around this was not about the applicant pool. The debate was about the student body. Correct. Because the applicant pool is arbitrary and out of like no one's control. A whole bunch of unqualified people could apply. Only really, really qualified people could apply. It just doesn't tell you much. So David, though, let me give you the other baseline problem though. Because remember the Asian students are trying to argue the baseline point that you can't change then the student body makeup, the offer group. So a hundred students at the track meet,

they're going to take 10 students, 10 are black and they all ran the prelims in under one minute. 90 are white, but only one of them ran it under a minute. In the previous year, they took nine white students and one black student. But this year, they're going to take four black students and six white students. Do the white students now have a disparate impact claim because they've changed the baseline of how many white students are going to be in the class?

It used to be a 90% white track meet, and now it's only going to be a 60% white track meet. No, clearly not, because once again, the admissions criteria, it matters how those students did. So to me, both of these are the wrong way to look at disparate impact claims. You have to get to the merits question as well. The percentages simply are not going to help you enough because it's not telling you what you need to know. case or an admissions case, they're going to throw a bunch of percentages at you and show you, ah, but this number went down to this number. Those percentages are simply not going to be nearly as helpful as either side's plan. And what's really important here is the intent piece because what we said when we initially analyzed the district court opinion was that if you took admissions plan A and you took admissions plan B, and if admissions plan B was admissions plan A, in other words, this was

the original plan. It doesn't matter which direction it goes. it would have been constitutional if that was the original. But admissions plan B is facially neutral, but was enacted for a discriminatory purpose. And that's a fact-finding issue, by the way, for which there is typically some deference paid, especially in a motion to stay. And so that's what I had a real problem when we're talking about the majority or the concurrence in the majority here was really paying short shrift to the intent element. And that was what made this so- Yeah, so let me skip- Go ahead.

So in the dissent she says she notes specifically the district court determined that the board the admissions deciding board acted with an impermissible racial purpose when it sought to decrease enrollment of quote overrepresented asian american students at tj to better quote reflect the racial composition of the surrounding area. As the court explained, board members' discussions were permeated with racial balancing, as were its stated aims and its use of racial data to model proposed outcomes. Now, in response to this, I think, and this is the example that everyone gives, it's the Texas 10% rule. Now, Judge Hayden's point is under the district court's analysis, it is difficult to see why policies such as Texas's

famous top 10% law, which grants automatic admission to any public state college to all students in the top 10% of their class at high school in Texas, and was plainly intended, at least in part, to ensure that Texas's public universities retained some measure of racial diversity after the Fifth Circuit's decision in Hopwood versus Texas, in which the Fifth Circuit said that you couldn't use racial quotas in university admissions policies. And so Texas was like, okay, then we're just going to do the top 10% of every high school. But the difference, David, goes back to those admissions criteria and again, the intent saying, well, okay, if we can't use racial quotas, we're just going to take the top 10% from every high school. Again, there's that because of versus in spite of the impact it's going to have analysis.

And I think if you go back and look at the reasons the top 10% rule were implemented, it was just sort of like, hey, you know what? This actually fixes, it gets to the point we were trying to get to, but in a better way for everyone. In other words, the 10% rule was enacted to overcome a specifically racially directed admissions practice. So this is race neutral policy A. That's right. So here, remember, one of the plus factors that you get is if you attend a historically underrepresented middle school. So they've tried to do something actually interestingly like the top 10% rule, but almost in reverse. So what they've said is every school has a guaranteed admission slot of 1.5%

of their students will automatically get admitted. And then there's a hundred floating spots. If that were their policy, it would actually look incredibly similar to the Texas top 10% rule. It's that under represented middle school policy that ruins the Texas top 10% rule because you're saying, okay, we're going to take 1.5% of every middle school. But if you're not an Asian middle school, because those are the ones that have been overrepresented, so all of the other ones are underrepresented, then you get a plus up. And that's where I think the district court found a lot of the discriminatory purpose. David, one last thing on the factors. I mentioned the irreparable harm factor,

and they also had a fascinating disagreement kind of in the margins of these two opinions. Judge Haytens is looking at whether the board, so here's the stay factors. I agree the board is entitled to a stay pending appeal under the traditional Nickens standard. That is, the board has made a strong showing that it is likely to succeed on the merits, that it will be irreparably injured absent a stay, and that issuance of a stay will not substantially injure the other parties interested in the proceeding, and that a stay is in the public interest. So the board will be irreparably injured, he says, because preventing elected representatives from carrying out a duly enacted

policy always constitutes irreparable harm. With an interesting, it says Maryland v. King, citing a 2012 Supreme Court opinion, but Roberts, comma, in chambers. So he's not referring to the opinion. He's referring to the statement that Roberts gave when they announced the opinion. Yeah. Fascinating. Fascinating. But anyway, he says that because the coalition of parents only includes two students who were eligible this time around, and we don't know whether those students will get in, we don't know whether they're irreparably injured. And he basically just like what he's like in the public interest stuff, meh, other parties, meh. Whereas Allison Jones rushing the judge in dissent spends a lot of

time talking about how the district court found that this violates the equal protection clause. That has to be irreparable injury to all of those Asian students if they're being unconstitutionally discriminated against versus the board, which could simply delay their admissions decision like they did last year for the exact same reason during this litigation. And that's not irreparable. And looking at those two was fascinating as they really disagreed on that. And it gets, I think, David, to an issue we have with the Supreme Court shadow docket as well. There's just not a lot of agreement, frankly, on how to balance these factors when they're all so different. Is it likelihood of success on the merits because it's first? Does that make it more important? Who's irreparable injury? How irreparable? What

is irreparable? If the chief justice believes that it's always irreparable when a duly enacted policy can't go into effect, but it's also always irreparable when someone is having their equal protection violated, well, then it's a reparable injury on either side of the stay. How are we supposed to balance that? Yeah, that is an interesting little, that's an interesting little dispute there. And for me, you know, when you're talking about the irreparable harm in the dissent, the violation of constitutional rights for even minimal periods of time unquestionably constitutes irreparable harm. That quote, that quote from L. Rod v. Burns, which is also quoted in various Fourth Circuit cases, that might be the single sentence of law, Sarah, that I have written more in my life. I mean, I've not written any other single sentence of law more than that in my entire life because I filed countless motions for preliminary injunction on constitutional liberties. saw the argument that there was irreparable harm suffered by the governing body, by the government,

if their policy that I claimed was unconstitutional was struck down or enjoined for a period of time. And it's wild. The violation of constitutional rights, quote, for even minimal periods of time unquestionably constitutes irreparable harm. And that, by the way, is it has like that has been quoted so many times in so many Supreme Court opinions versus Roberts, C.J. in chambers. To me, that doesn't seem like a close call on the balance, except, of course, you have to remember to remember judge heightens also doesn't think that they'll win on the merits and that's where like people are not being particularly honest about these stay factors if you think they're gonna lose based on your somewhat cursory and i mean cursory in the sense you haven't done oral argument in full briefing you're just on a stay posture um then yeah of course you think that that factor is more important than the irreparable harm if you believe what the district court found. But you don't believe what the district court found.

Yeah. It is a mess. It's a mess, David. It is a mess. It is a mess. Yeah. From the beginning on this case, it stands or falls on the intent prong. It just absolutely stands or falls. And I felt like the concurring opinion with the majority really was diving into the math in a way that completely missed the entire object of the policy change. The expressed object of the policy change, the goal of the policy change that was articulated at length and with feeling. So with much feeling. In fact, at one point, he doesn't attack most of that discussion, but there's a footnote. And he says the coalition of parents points to a presentation and various text messages between board members discussing how certain proposed policies might reduce Asian American representation at TJ. As the board explains, though, both the presentation and the messages were about different potential policies that the board rejected. Yeah, but that's not the point. The point was they were trying to find a policy that got to the racial balancing

they wanted. So they considered a lot of policies and all of the racial balancing that each policy would result in. The fact that those specific text messages were about a policy that was rejected, if it was rejected because it didn't get rid of enough Asian students and so they adopted this other policy, how is that possibly then not relevant to their motivation? Right. It's fascinating. It's an absolutely fascinating stay order. Seems to be writing about an entirely different set of facts than what was witnessed in real time. So I'm going to be fascinated to see what happens going forward

because it's just, it's taking a intent-based, applying a statistical analysis to an intent-based legal argument with evidence of intent vocalized frequently. I'll put my marker down now. This case goes to SCOTUS. No problem. Cert granted. And not the stay, by the way. I just mean on the merits. I do think they may ask, well, the problem with the stay issue is, as they said, the admissions decisions are now going to go out. And so the stay issue may be mooted.

are now going to go out. And so the stay issue may be mooted. I'll be curious if they appeal the state of the Supreme Court arguing that they want to stay back in place for the next year's admissions because otherwise this will undoubtedly then be in place for the following year's admissions.

But that gets into some messy, capable of repetition, yet evading review because they've technically only asked for the stay, I believe, on this year's admissions. Interesting. Okay.

Well, we're going to keep monitoring it like we've been doing from minute one now to a case. We were monitoring this case, by the way, before there was even a lawsuit. I remember highlighting it to you saying, this is going to be a lawsuit. Look at what these admissions board people are saying out loud. Exactly. Oh, yeah. This is one of those issues. And it's interesting because what we're seeing around the country, when school boards are messing with some of these sort of gifted and talented schools or gifted and talented programs, it's creating a very broad-based backlash. it's there it we saw this in san francisco with the san francisco recall um i think people are forgetting how much that it's not just sort of the kids of the elite that are going to schools like this that these schools are engines of upward mobility for kids of a lot of different backgrounds a lot of different backgrounds and messing with this formula, which is really a way that, you know, a lot of kids of immigrants or kids who are immigrants themselves are able to really get a leg up. It touches a pretty deep vein for people. I'm very sympathetic to the idea that TJ itself has become so prestigious and so unrepresentative of even the smart kids in the district, but I don't understand why they wouldn't open a second

magnet school for the smart kids. Keep TJ what it is with its flaws and then create a top 1.5% magnet school for the whole district. And it's just the top 1.5%, basically a gifted and talented school. TJ was a STEM school, STEM specific. That's why those standardized tests, those three standardized tests that they mentioned in the minimum scores. And by the way, on the stay problem, there is a bit of a problem because I guess two of those three tests aren't offered. None of the current applicants, of course, took them. And so how they would offer admissions based on tests and could apply either admissions policy. But the state basically chose to only have the ability to apply the admissions policy they wanted by having students only use that admissions criteria and not having them take those tests. All right. Are we ready for the next case? Oh, man. Yes. This one is wild. If you've not heard about this before, it was news. There was a first wave of news about this.

There were kind of three waves of news. One was very small and local. One was national for nerds. And this one is national for maybe a bigger group of nerds and this one is national for a maybe a bigger grief a bitter group of nerds so so this the facts here are kind of crazy so this involves a bakery outside of Oberlin College so essentially what happened is that there's this a bakery that has been in the town outside of Oberlin, outside of the college for a long, long time. And there was an incident that occurred, not that unusual, involving shoplifting, apparently suspected shoplifting by a student. So in November 9th, 2016, a bakery employee thought that there was an African-American student who he thought he was stealing wine.

So the employee chased the student and then got into a physical altercation with the student and two other Oberlin students. So the police arrested the three students. So the police arrested the three students. And several months later, they pled guilty to, one of them pled guilty to attempted theft, to aggravated trespass, underage consumption. And then the two female students, they pled guilty to attempted theft and aggravated trespass. So the people had committed the crimes. I mean, there was an attempted theft. There was an altercation. Nobody here, none of the defendants here were innocent. But almost immediately after

the incident, students began organizing the protest of the bakery. They printed flyers that said that it was a racist establishment with racist in all caps with a long account of racial profiling and discrimination. They claimed that a member of the Oberlin community was assaulted by the owner. Um, now as this began to unfold, what happened is some of the administration began to participate to some degree in the protest. And so, and this is a case where boy, howdy, you, when you really opened up into discovery, it looked, it started to look pretty rough for the college, at least for the intent of the college. So there was evidence that an administrator and maybe even more than one employee of the college distributed this flyer. There was an employee of the college who ended a business relationship with the bakery, at least for a time.

The dean of students was one of the main actors here that was found to have distributed flyers. The student senate published a resolution that contained some of the same underlying claims that were later found to be false. This was published using university resources. And eventually, the bakery, the family sued for defamation. And they sued saying there was no assault. A lot of this was just not protected opinion. There were allegations that were fact based allegations that were essentially decisively rebutted at trial. In other words, there was no racial profiling. There was no history of racial discrimination. The facts are incredibly favorable for the bakery, even down to sort of

the percentage of people who were arrested or accused of shoplifting at the bakery versus the racial composition of the underlying community. I mean, there was no evidence of racial profiling. And they sued the dean and they sued the college and they won and they won a giant verdict. It's about $25 million plus several million in attorney's fees. And the case made waves. This verdict made waves back in June of 2019 when it was delivered. But a lot of people are waiting to see what would happen at the Ohio Court of Appeals. And the Ohio Court of Appeals, and the Ohio Court of Appeals upheld the judgment. And so this is sending some shockwaves, Sarah, in part because this is an interesting linkage to some of the stuff that of participate in the activism?

or some elements of the school sort of participate in the activism. And really, they were undone by a few key facts. They were undone by the fact that the dean of students, there was evidence the dean of students handed out this flyer that contained false statement after false statement. They were undone, I think, as a matter of sort of, when you're talking about punitive damages, how there was internal communication that absolutely indicated that they wanted to that that Oberlin officials were contemplating and intentionally inflicting harm on the bakery. They were undone by the supervisory role and the participatory role that the university had in the actions of publishing student Senate resolutions.

In other words, this was Yale, except imagine if one of the deans was outside pounding on the door with the students. So really interesting case. And by the way, this is not necessarily all that super unusual that administrators or university officials will participate with students in protests. going back, gosh, 17, 18 years now was a case where there were a series of disruptions to a student-performed play. And guess who had planned the disruptions? The administration. Even down to helping plan some of the language used in the disruption and how it would be sequenced. So I've sort of laid it out there. It's a fascinating case. Now, what makes this different from some of the other defamation cases that we've talked about is that these bakery owners, they're regular folks. They're not public figures like Sarah Palin or public figures, like some of the people involved in some of the defamation litigation around the election contest.

These are private citizens. They are not public figures. I mean, public figures are private citizens too. But they're not public figures. So that was a factor in their favor. And so I'm just really fascinated, Sarah, to hear your thoughts on this. So there were two things that I thought were interesting. One is the what is opinion versus

what is fact. And so here's the relevant portion of the resolution that the administration helped with that they claimed was opinion and therefore not subject to any defamation law. A black student was chased and assaulted at Gibson's after being accused of stealing. Several other students attempting to prevent the assaulted student from receiving further injury were arrested and held by the Oberlin police. In the midst of all this, Gibson's employees were never detained and were given preferential treatment by police officers. Gibson's has a history of racial profiling and discriminatory treatment of students and residents alike. So David, everything like ahead of that last sentence

about the facts of what occurred on the ground, even that they were claiming was opinion. I don't think that's a close call. No, no, that's not a close call. But the last sentence, Gibson's has a history of racial profiling and discriminatory treatment of students and residents alike. They also found that that was a factual statement.

And I think that's interesting. Their argument, of course, is like, well, you are stating as fact a history of racial profiling implying that you are aware of something about racial profiling, facts that you can point to in the past that would bolster that claim, and in fact, they didn't have any, I think that's actually an interesting legal question of whether that's opinion or fact, especially when you look at some of the quote unquote opinions of what Rachel Maddow has said on television, what Tucker Carlson has said on television in both of those lawsuits, what they said seemed a lot more facty than this, than that last sentence.

So I question that sentence and the opinion versus fact. Now, A, there's a difference because one is live television. And we've said repeatedly, we, like the country has said repeatedly in law, that there's a little bit more leeway in terms of how you phrase things versus taking the time to write something down and passing as a Senate resolution at Oberlin. That's going to be treated differently. Also, of course, I think it's a big factor in this that Gibson's was not found to be a public figure. And while that should only factor into whether they need to show actual malice, I think maybe it creeped into the opinion versus fact analysis here a little bit as well. By the way, the second part that I found super interesting was one of their

claims on appeal for Oberlin was that, in fact, there was a discrepancy between two jury verdicts. So Oberlin asked for the case to be bifurcated, meaning they wanted two separate jury findings, two separate juries. One jury just looked at compensatory damages. That's like what it actually costs you. You have to show that it costs you X amount with like receipts and whatever. During the compensatory phase, the jury found that Oberlin had not acted with actual malice. It didn't matter, of course, because Gibsons were private figures and they only needed to prove negligence. No big deal. But then they had the separate trial on the punitive phase. Now they bifurcated it. Oberlin

wanted it bifurcated for a reason. They didn't want all the punitive, all the evidence that they would introduce in the punitive phase to be introduced in the compensatory phase and like basically run up the compensatory damages and the punitive damages by having all of this evidence. That's why they wanted it bifurcated. But in the punitive phase, when they did then introduce all of that evidence for punitive damages, that jury found that in fact, they had acted with actual malice. And Oberlin said, see, look, they're inconsistent jury verdicts. And so you have to throw it out and we have to do it again. And I just appreciated that this court was like, no, no, you wanted it bifurcated for the very reason that they couldn't bring in a lot of their actual malice evidence in the compensatory stage.

And then when they did bring it in and the jury found that there was actual malice, you're saying that that's now inconsistent. Either you get to bring in all your evidence together or you get this bifurcated trial, but, and then you don't get to benefit from not having that evidence in the first trial. I just found that fascinating and a good little civil litigation tip. Be careful what you wish for on those bifurcated damages. Yeah, and there's other couple of things about this that are interesting as well. So I mentioned earlier

that there were some internal communications that were pretty bad. Oh, yes. So after the students pled guilty, so they pled guilty, which, you know, and the evidence of their guilt was pretty darn overwhelming. So they plead guilty and an administrator sent a text to the dean of students saying this is the most egregious process and, quote, I hope we rain fire and brimstone on that store. Yeah, okay. So then another, when there's a retired professor who sent an email or published a letter

in the local, in the college newspaper, critical of how the college handled the Gibson matter, this same dean of students said, F him, I'd say we unleash the students if I wasn't convinced this needs to be put behind us. So all of that sort of really gives the lie to the idea that it's just students doing stuff, right? It's just students doing stuff. When you've got people saying, I hope we rain fire and brimstone and saying, I'd say we, I'd say unleash the students. Um, and so that, how shall I put this? The atmospherics of that are

quite bad. And then there's something else here that is interesting. So this wasn't just a defamation case. Now, if you are in commercial litigation now, or let's say you're a law student, or you're just somebody, one of our beloved nerd listeners who's interested in commercial litigation, even if you're never going to darken the door of a courtroom, there were some interesting additional causes of action here. One was torturous interference in contractual relations. I actually filed it. I'm so old, Sarah. I've actually even filed cases like that before my constitutional law days. In other words, that if party A and party B have a business relationship, there are legal limits to the extent to which I can interfere in your contractual relationships with somebody else. And then there was another claim here called intentional infliction of emotional distress,

which is, again, not something that we deal with very often when it comes to public figures. But in private relationships with private citizens, and by that I mean non-public figures, there are actual limits to the way in which you can engage, use even words to inflict emotional distress on somebody else. And so the court didn't just find, there wasn't just defamation here. It found violation of these common law torts, which illustrates when you're not a public figure, there's, there are actually quite a few defenses that you have available to you when people try to visit a reign of terror upon you. And the evidence is pretty overwhelming that the school worked with the students to visit a

reign of terror on this family on the basis of completely made up facts. And on that opinion piece, Sarah, I think if the case was only around that, if it was only around that sort of they have a history of discrimination, I think the bakery loses. I think the bakery loses. I think that was pulled into the rest of the underlying account in an interesting way. It was also helpful for the school, I mean, for the bakery, that they could demonstrate a factual, total factual rebuttal of any sort of inherent fact-based element of that claim against it. But I feel like that got pulled into everything else. And the difference with Maddow and Tucker, Maddow and Tucker, as they've argued in court papers papers are opinion journalists prone to hyperbole right deans of students are not in that category uh educational institutions not in that category yeah I think it'll be fascinating for future universities now this was a state case not a

federal case so there's lots of caveats for other universities. But the big picture is, you know, there are ways to push back on some of these university actions. And universities would be wise to think that through before getting carried away with their students. Yeah. One last thing, because you know what? Almost every single university in the United States, where one of them is located? In a state. In a located? In a state. In a state. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win

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Okay, Florida. Okay, so lots going on. This is sort of the thing on Twitter now. And a couple of developments. Shall we go lawsuit first or state reprisals first? Ooh, I mean, we got to do both pretty quickly here. Yeah. Okay. All right. Lawsuit. Lawsuit fast. All right. So a lawsuit has been filed against the Florida Don't Say Gay bill. It's been filed by Equality Florida, including by a mixture of plaintiffs, some anonymous, some not, who are LGBT kids, parents of kids, and teachers.

And the case is interesting to me because, Sarah, it's as if they listened to our podcast. It's as if they listened to our podcast. Because the core of it isn't really challenging the ability of Florida to set curriculum. This idea that can a state set curriculum is about as well established as you're going to find. But the core of it is related exactly to what we talked to or talked about the most, which was, is this vague? Is this overbroad? So count one is under due process clause of the 14th Amendment to the United States Constitution, vagueness.

And as the lawsuit quotes, a law is void for vagueness if its prohibitions are not clearly defined. If they don't give a person of ordinary intelligence a reasonable opportunity and fair notice to understand what the law prohibits. not just at this prong of the law that talks about classroom instruction on gender identity and sexual orientation, but also this much more vague term that prohibits instruction that is not, quote unquote, age and develop age appropriate or developmentally appropriate in accordance with state standards that happen to be unspecified. And that's where I think, that's what we spend a lot of time talking about, not on can a school set curriculum? Yep, it can set curriculum, but on does the law provide fair notice of what is prohibited and not prohibited?

and not prohibited. And the other aspect about this, which is interesting, is they also include a couple of other causes of action. One is a right to receive information cause of action, which we've talked about before. My goodness, we just covered all. We covered all on this podcast, which is rooted somewhat in this case called PICO that we've talked about regarding the ability of school boards

to remove library books that we all agree is not a case that would be decided that way today. But they have a right to receive information, cause of action, and they also still have a First Amendment cause of action related to the ability of the teachers to speak. Now, this is very interesting because there's also a First Amendment case filed last month also by a teacher in Kansas talking about their right to speak when it comes to not using preferred pronouns. So here we have two separate cases, both trying to stretch out and outline a right of teachers

to speak. One from the right saying, don't make me use preferred pronouns. One from the left saying, don't make me use preferred pronouns. One from the left saying, don't prohibit me from engaging instruction regarding sexual orientation and gender identity. And both of them have long odds. But anyway, that's the suit. Any thoughts on it? Yeah, I mean, this stuff isn't going away.

Parents, I think, have genuine beef in some of these cases. I will say I'm not particularly sympathetic to some of the teachers that have come out and said, but how am I supposed to talk about paddleboarding with my husband this weekend? Right. What? Why are you talking about paddleboarding with your husband? That line of reasoning doesn't get very far. I don't remember talking with my elementary school teachers about any of their personal life whatsoever. Now, what I did find to be interesting is the sarcastic letter that one teacher publicly posted that said that she would no longer be able

to read books in her classroom that had mommy and daddy, those words in it, because those are obviously about sexual orientation and gender identity. And she would no longer be able to have books about boys and girls with words like that, because that would have gender identity, be discussing things about gender identity by using words that identify someone by their gender. Again, it's sarcastic. I understand the pushback and all of that. But there is a point there, which is if you write a vague law, as one of my friends says,

play stupid games, win stupid prizes. It is actually a little difficult legally to explain why you can use a book that has mommies and daddies featured in it, but not use a book that has two mommies featured in it based only on the text of the law as written. Right. Right. And again, I agree with you completely. The rhetoric around this has been just, as we've said before, has just been unbelievable. If you look at the right side of Twitter, the right side of Twitter acts as if the law

only applies to very young kids and only prohibits grooming behavior, which, no, no, the law does not apply only to very young kids, and it certainly is not limited only to quote-unquote grooming behavior. It applies K through 12. It's just that the part involving young kids is a little bit more specifically

identified. And the part that applies all the way through 12th grade is this age appropriate or developmentally appropriate according to standards that allegedly don't exist. So... But David, I will say the flip side of this is what we're about to get to, which is the recordings

of Disney executives talking about what they are doing in Disney programming to try to, I don't know what the right verb is, not grooming, but model to kids and showcase different lifestyles, gender orientation and sexual orientation,

to make sure those kids are exposed to those lifestyles at younger and younger ages. And that's what these parents think is happening in the schools, whether it's happening at their specific school or not. It does become increasingly hard to say that these parents are out of their minds, totally acting insane, when then there's a video from a Disney executive saying she's trying to put queer characters in every single place she can. Not that there's necessarily something wrong with that, but the pushback then can't be nobody's trying to indoctrinate your kids into, you know, understanding queer lifestyles. Well, you can't have it both ways.

Either you are or you aren't. And if you are, you have to argue that it's okay. Right, right. Yeah. I mean, so you've got the school issue, which is a curricular issue involving governing agents of the state and how they conduct their education. And as I said before, it's got a number of provisions, but the two most relevant are one that's more specified involving young kids and sort of more general involving K through 12. young children are being exposed to, I mean, as you were saying, like the paddleboarding with your husband stuff, probably the most benign sort of form of this conversation. Of course. But why are you talking about my weekend with my husband with second graders, first graders, whatever? I mean, it's a super optional, non-necessary aspect of education.

And it becomes even weirder if it's your dating life, and it becomes even weirder if it gets more explicit. Right. And one of my thoughts is, when you're talking about really young kids, young kids, introducing sexual themes at all, at all, is a really, I think that's a super valid curricular concern. When you're talking about these very young kids, introducing sexual themes at all is a super valid curricular concern. I agree with that. As you get older and older and older, then you're talking about health class, sex ed, all kinds of curricular issues that begin to open up. And as the kids get older, they get more mature, which is again why, Sarah, I keep going back to this notion that the answer here, if you're worried about what your kids are being taught at school, is to dive into the details of the curriculum.

Yes, but that gets to the transparency point, which not all schools are in favor of. And that in a lot of these cases, transparency alone doesn't do it. I mean, I just had a friend and there's a book that wasn't on the curriculum that they then read in class. You know, like this is a young,

very small young kids class. And so like they're reading a book book that wasn't on the curriculum that they then read in class you know like this is a young very small um young kids class and so like they're reading a book sort of in a circle or whatever right well does that need to be every possible book they're going to read in small circle need to be sent home to parents with five days notice and like at some point right that's silliness um and at the same time david this gets to something we've talked about before. Public schools and not having any choice of what public school you send your kid to is just coming to a head culturally in this country at this point. Whereas if people would simply agree that you should be able to pick which public school you send your kid to, it would solve so many of these problems. This is what school choice could actually be really helpful, frankly, for both sides. But you can't mandate that people send their kids

to school, to a public school, unless they can pay for a private school or pay basically themselves to homeschool their children, therefore not have a job. And if they go to public school, then we get to teach them whatever we want, including things that have nothing to do with math, reading, arithmetic, science, et cetera. This is the problem, David, is that schools are filling in all of these gaps for home life and the parents can't pick the school.

Yeah. Now, can I even add one additional layer of complexity here? One additional layer of complexity here is that what we're dealing with is a situation where, truth be told, most parents don't actually have a problem with what is being taught in their own schools, but they have a broader degree of dissatisfaction with schooling in general. Okay. So it's remind you of, and there's some interesting Gallup numbers on this. So remind you of, you know, how Congress always has super low opinion ratings. Congress is an institution, but then people keep sending their congressmen back

and their congressman often has a much higher approval rating. So for example, if you're looking at sort of Gallup numbers, even running into late 2021, K through 12 parents are somewhat or completely satisfied at an overwhelming majority with their own school, 73%, even in August 2021 with all of this, you know, the coronavirus shutdowns. But then if you go over and you say, what about the state of education students receive in America? People are, instead of 73% satisfied, somewhat or completely, they're down to 46% satisfied

and 58% dissatisfied. And so I think what you're beginning to see, that's been a challenge. And if you talk to school choice advocates, that's sort of been a challenge in making school choice a matter of urgency because you have this sort of abstract for every sort of education is bad in the abstract, but my education for my kids, I like. And so what that ends up doing, I think, is it puts that school choice piece in people's sort of lived experiences, to use that phrase, pretty low on the priority list, even though they have sort of large-scale dissatisfaction with education in general. Now, I do think these laws are being passed by large scale.

This might be a little bit of a turning point. Wish we could move more constructively towards school choice. Because one of the things you find when these laws are being passed is very little specific testimony involving the people, people, schools in their district or in their state that include the exact kind of instruction that they're trying to ban. So there's very little my school is doing this terrible thing that I want you legislature to ban versus I know there are schools that are doing this terrible thing that I want the legislature to ban. So I think you have a specific versus general dichotomy that's held back school choice, doesn't hold back these laws, but I wish would be channeled into the school choice movement. All right, David, we are basically out of time. Do you want to table Disney or do you have real quick Disney thoughts?

Real quick Disney thoughts. Okay. Real quick. Okay. Real quick. Okay. So the real quick Disney thoughts are triggered by the, so as you said, Sarah, there was a, there were a series of videos leaked that made it really clear that there are

Disney executives who are wanting to include more LGBT characters, more LGBT expression in show in Disney shows. And Disney came out pretty hard against this Florida law. So a lot of people got really mad at Disney. And so that has led to this argument that, well, wait a minute, the government gives a lot of breaks to Disney. In other words, Disney has a lot of special provisions in California law, including one DeSantis signed himself, if we remember. You mean Florida. But yes, Disney got carved out of the social media bill.

It applied to tech companies, except if you ran an amusement park in the state of Florida, I believe. Yeah. So DeSantis' newfound backbone against Disney is a little new. But anyway, so there's been a lot of discussion about these special legal provisions. You can't list them all, but Disney enjoys some legal special status

in the state of Florida. And should, as a result of Disney's activism, should the government start repealing and revoking all of Disney's sort of goodies, including changing laws that provide goodies to other companies? And I think this is a really interesting discussion, Sarah, on two grounds. One, I dislike crony capitalism. Okay, so I dislike goodie-based legal incentives for corporations to locate in various states. It's a long-held tradition, especially in the South, to sort of say to corporations that are maybe in union states or foreign corporations that we're going to outbid, Kentucky's going to outbid Tennessee and the goodie package that you're going to get to move here. The term for that is used in

libertarianist circles as crony capitalism. I'm not a big fan. At the same time capitalism i'm not a big fan at the same time i'm not a fan of yanking and changing the law and yanking benefits from companies on the basis of their political expression and their political point of view which raises the question of a concept called that we've talked about before called first amendment retaliation. Um, and what first amendment retaliation is, is that the doctrine that says, even if I don't necessarily have an underlying, one aspect of the doctrine is even if I don't necessarily have an underlying first amendment right to the state benefit to take a case that I, um, litigated a couple litigated several years ago. Even if I don't have a right to be promoted to full professor,

I do have a right not to be penalized by the state for my constitutionally expressed view, and that unlawful penalty can include being denied a benefit that I don't otherwise have an underlying right to. Does that make sense? Yeah. And that's what I'm concerned that we're seeing in some parts of conservative media is urging a campaign of First Amendment retaliation against corporations on the basis of their viewpoint. Look, if you violate antitrust laws, you violate antitrust laws, but don't initiate an antitrust

action because you don't like Disney, is a good way of putting it. Well, here's the problem, with the crony capitalism aspect. When you're giving very specific special favors to one company in particular, then it becomes really hard to ever take away those favors without being able to raise some retaliation claim because there's some reason you're getting rid of it. And that's why you shouldn't do it in the first place. Well said. Well said. All right, David, we're going to table our Yale discussion because that's going to be a little longer. And instead, two quick announcements. One, we just had a big judicial wedding over the weekend. Chief Judge of the

Fifth Circuit, Priscilla Owen, married Chief Justice of the Texas Supreme Court, Nathan Heact. So Chief marries Chief in the state of Texas. And by the way, great quote from Judge Willett. This is a beautiful courtship decades in the making. The Chiefs are a formidable legal duo, to be sure, but also two of the kindest people I know. They're adorable together, and I wish them a life sentence of love and happiness. Oh, my gosh. Worth noting, by the way, this isn't even the first Fifth Circuit marriage. Judge King married Judge Reveley in 2004 on the Fifth Circuit. They had also both been chiefs as well. And last note on this, Judge Owen is going to change her name, her last name, to Judge Richmond rather than Hecht, because having two chief judge and chief justice Hechts was going to get quite confusing, I think, if there was any state litigation that made it

into the federal courts. So congratulations to the two lovebirds. Really adorably cute. And to all of the judicial marriages out there. And there are actually quite a few. The Fourth Circuit has one. California has a couple. California Supreme Court, Northern District of California.

So lots out there, but none that are Chief Mary's chief that I'm aware of. That's like the union of two Lords of Westeros. Oh, David. Okay. What's the second thing? The last thing is Duke versus UNC. We can't table that obviously. So UNC law students had a big legal assignment and their legal writing class due the day after the big game. Yeah. So David, this was worth 65% of their grade. They, of course, filed a motion for extension of time. It was beautifully done, said their professor. By the way, interestingly, their professor, Rachel Gervich, was on HLS parody with me.

So awesome to see her name again. And congrats, Rachel, on being an awesome, fun professor. The student motion for time read as follows. Plaintiffs individually and on behalf of others similarly situated pro se respectfully request an order granting plaintiffs pro se an additional 24 hours to file their motion for summary judgment in the matter of case number, et cetera. And in the highly likely event of UNC's victory over Duke parentheses D O O K in the NCAA final for an additional 24 hours to be automatically granted for a cumulative 48 hour extension. There was an amicus filed, David. The amicus brief was in total two pictures a meme from the tv show mad men the one guy says big weekend plans and the josh draper guy was sort of a

incredulous look says huge i'm watching the historic unc UNC Duke final four matchup. That was amicus. So then the professors posted their Slack chain back and forth as they all agreed to this and order in consolidated cases, the court upon its own motion. And in the interest of judicial economy, hereby consolidates the individual petitioners cases for the limited purpose of considering the various pending motions for extension of deadlines. Upon consideration of the petitioner's motions and for good cause shown, the court hereby extends the deadline for the spring 2022 final motion memo as follows. It shall now be due 1159 p.m. Eastern Standard Time, Tuesday, April 5th.

The court hereby directs the individual professors to communicate any change in their plans for class on April 5th to their respective students within a reasonable time so ordered this 30th day of March, 2022, per curiam. Congratulations, UNC students, on your extension of time, mostly, but also, I guess, on making it into the championship game. Yeah, but what's funny about that is they extended it

until the day after the championship game. Well, you know what? That's what they asked for. That's true. That's true. They must not have had that much confidence, actually, that they would beat Duke. Because it's going to be be if North Carolina wins, there's going to be a host of hung over law students desperately finishing that assignment. But hey. You know, you are allowed to write it not just the night before. You could write it

before before. It suddenly lapsed into a foreign language. I didn't quite understand what you were saying there. All right. On Thursday, we're going to give you the larger update on Yale. We have a professor who has weighed in on the matter, and she disagrees with the dean. Oh, yeah. So as the world turns, it never ends over there. So come back on Thursday.

We'll also have some more stuff to chat about. In the meantime, please subscribe on all platforms that you receive this podcast. Please rate us and please check out thedispatch.com. Bye.