Advisory Opinions - Vaccine Mandate Reaches Supreme Court

Episode Date: December 20, 2021

On today’s podcast, David and Sarah dive back into vaccine mandates, as the CMS mandate for health care workers and the OSHA guidelines for private businesses head to the Supreme Court. Then it’s First Amendment and compelled speech time at the 5th circuit with a student from Sarah’s rival high school from back in her football orchestra days. This case has it all: free speech, communists, and Bruce Springsteen. It's also a conversation about the similarities— and differences—with one of David’s long-time favorite cases: West Virginia v. Barnette.   Show Notes: -6th Circuit upholds vaccine mandate -Reason: “Biden Administration Imposes Vaccine Mandate on Health Care Facilities that Participate in Medicare or Medicaid” -Reason: “Health Care Worker Vaccine Mandate Reaches the Supreme Court” -Oliver v. Arnold -Born in the U.S.A. lyrics Learn more about your ad choices. Visit megaphone.fm/adchoices

Sasquatch here. You know, I get a lot of attention wherever I go. Hey Sasquatch, over here! So, when I need a judgment-free zone, I go to Planet Fitness. Get started for $1 down and then only $15 a month. Offer ends April 12th. $49 annual fee applies. See home club for details. That's the sound of unaged whiskey transforming into Jack Daniel's Tennessee Whiskey in Lynchburg, Tennessee. Welcome to the Adv Opinions Podcast. This is David French with Sarah Isger, and we've got a great podcast this morning. We're going to be talking about the vaccine mandate cases that are on their way to the Supreme Court's emergency

docket, and we're going to have a fun conversation about the First Amendment in a classroom based on a pretty wild case, a really interesting case. So stay tuned for that. We're not going to start with it because it's so interesting. We're going to make you wait till the end of the podcast to listen to it. But before that, some housekeeping. You guys might not be aware of this, but it's almost Christmas and I've got a gift idea for you. It is a gift of the dispatch, a gift subscription to the dispatch. Super easy to do.

Go to the dispatch.com slash gift. Is that a slash or a backslash, Sarah? What's the technical when it leans to the right? I feel like there's so many jokes there, but I have no idea is the answer. I think, so if it leans to the right, then it's a slash. If it leans to the left, yeah. Okay, LPC legendary producer Caleb

has said it's a slash so it's the dispatch.com right-leaning slash gift okay the dispatch.com slash gift and the prices are just so reasonable one year for $100 one month for $10 a gift a notification is emailed to the recipient you can include a custom message. We can do email delivery that can be scheduled at a specific date and time.

And I would really encourage you to do this and please do this because this is how the advisory opinions podcast that you know and love so much stays on the airwaves. If you can call what you're, how you're listening to it, the airwaves. So we can call how you're listening to it the airwaves. So we would really appreciate it if you do this. And I love our most common compliment. Our most common positive feedback that we get is, you've helped keep me sane or you've helped keep us sane. And I love that.

So please send a gift to the dispatch or gift the dispatch to a friend or family member. It would be fantastic if you did. The other thing is just a brief update on our long running counterinsurgency war on the comments section or the feedback with against the remnant. So Jonah's marvelous, marvelous podcast that is not quite the flagship of the Dispatch Podcast Network. We're catching up. So, I would ask you to go ahead and go to Apple Podcasts, rate us five stars, please, and help us catch the remnant to finally demonstrate once and for all that we are the flagship. Okay. Housekeeping out of the way, Sarah.

for all that we are the flagship. Okay. Housekeeping out of the way, Sarah. We've had a lot of action, legal action since our last podcast. We've got the CMS. This is the entity that regulates Medicare and Medicaid. Its regulation mandating the vaccine for healthcare workers is now heading up to the Supreme Court after a circuit split. Two different circuits have come out differently on the legality of the CMS vaccine mandate. And we also have a really big, long Sixth Circuit opinion. And now remember, the Sixth Circuit is the circuit that won the lottery to be the circuit that handles the OSHA vaccine mandate, well, what's really a test and mask mandate with a vaccine opt-out, a majority, two out of three members of the panel

upheld the OSHA vaccine mandate, and now that's on its way to the Supreme Court. So that's where we are. CMS, OSHA. Sarah, how do you want to start? All right. Well, we had some inklings about how the OSHA mandate was going to go, at least at the Sixth Circuit. A couple housekeeping notes.

One, husband of the pod is involved in this case. So let me just put out there that conflict of interest that I have. He represents, I think, 26 business associations. NFIB is one of them. I think American Trucking Association is one of them. So I don't know, and like 24 others or something. We don't have a ton of pillow talk about this case. So while I am conflicted unquestionably, I actually don't have a lot of inside information to share with anyone about litigation strategy. But I wanted to tell everyone that at the outset. Second, let's remember how this happened, right? So the Fifth Circuit stays the implementation of the OSHA vaccine mandate

before the lottery commences. And the Sixth Circuit wins the lottery, or loses, depending on how you want to look at that. And then we've all been waiting to see what the Sixth Circuit would do. There was a petition for this to go en banc right off the bat, basically, to have the whole Sixth Circuit decide it.

Weirdly, we got the en banc denial first with a dissent from Judge Sutton. That dissent made very clear how the panel was going to turn out because Judge Sutton was like, we need to take this because obviously this shouldn't go into effect. And it's like, oh, well, wait, if, huh? So not surprisingly, then a couple of days later,

we get the panel worth doing just a couple seconds on who the judges are. Judge Stranch wrote the opinion. If that name sounds familiar, it's because that's the judge that our most recent guest, the Solicitor General of Virginia, clerked for. Kind of fun. She's a Obama appointee, Judge Strach. Also in the majority, Judge Gibbons, a Bush appointee, W. Bush. In dissent, Joan Larson, a Trump appointee. Fun fact, David, this was an all-female panel. Oh, interesting. It doesn't happen that often, and I thought I'd point it out. It's happening more often, and I like it.

Okay, so here's why I'm pointing out the judges. Because, as I mentioned, Judge Larson is in the dissent here, two to one, and she was on the short list for the Supreme Court, especially for that Barrett seat. She was confirmed with Barrett. They did their hearing together. She clerked for Justice Scalia, is often described as sort of the, I don't know, the most Scalia of his former clerks. And I say all that, by the way, she served as deputy assistant attorney general in the office of legal counsel during the W administration. She looks a lot like many of the justices on the supreme court and she's in the dissent right that is pretty pretty relevant as in without ever having read

this thing i kind of already feel like i know where it's going because Judge Larson, I think, shares her judicial philosophy with, including but not limited to, Justice Alito, Justice Gorsuch, probably Justice Kavanaugh, almost certainly a little Justice Barrett thrown in there, maybe some Thomas. I mean, the list goes on. So I think that there's a pretty good chance that the Supreme Court agrees with Judge Larson. The question then is, do they take it in this emergency posture? And as we talked about last week, David, we have two votes, Judge Kavanaugh and Barrett, who are nod-dogging emergencyging emergency posture cases. And then we have Roberts, Kagan, Breyer, and Sotomayor, who are gnaw-dogging the cases themselves. So there's basically these three

votes on this emergency basis. So that's why they may not take it, even though I think that there's plenty of votes to reinstate the Fifth Circuit stay on the merits, if that makes sense. Yeah, yeah. This is a really interesting case and decision on a couple of levels. One is, I think the Biden administration has done itself some favors on the facts in this way. It isn't quite the mandate that you think it is. So it actually has some flexibility to it. Yes and no. Explain the flexibility, but I'm not sure I agree how flexible that is. So here's a key paragraph from the factual, the statement of facts and the opinion.

The ETS does not, this is the emergency temporary rule, does not require anyone to be vaccinated. Rather, the ETS allows covered employers, employers with 100 or more employees, to determine for themselves how best to minimize the risk of contracting COVID-19 at their workplaces. Employers have the option

to require unvaccinated workers to wear a mask on the job and test weekly. They can also require those workers to do their jobs exclusively from home and workers who work exclusively outdoors are exempt. The employer, not OSHA, can require that its workers get vaccinated, something that countless employers across the country have already done. So in other words, there is a home work option. If you're working outside, you're not going to be covered in the mask in testing slash vaccine requirement. So it is it is objectively more flexible than, say, for example, the CMS rule that we're

going to be dealing with in a bit here in the podcast. So there is some flexibility there. But here's why I think legally it's irrelevant. Okay. Legally, I think that flexibility is irrelevant because I think you could take out the vaccine portion. Assume there was no vaccine in existence. And OSHA promulgating an ETS that requires masking and weekly testing, I think suffers from actually

most, if not all, I'm trying to think here in my head of like those like sort of six reasons we were giving. Yeah, I think all of the same problems. Walmart has roughly 1.6 million employees. Amazon has roughly 1.5 million employees in the United States. It's a lot. Do you know what it looks like to set up a weekly testing regime across the country? If you're Walmart or Amazon, Apple, of course, number three, I think, in employees on the fortune list, although I know the fortune list isn't by employees. So when you are talking about whether OSHA has this regulatory authority, you run into the same problems. Is this a grave danger? Do they have congressional authorization? The vaccine makes this sort of a culture war issue, but legally, I don't think it's relevant.

Oh, I agree with you that I think that on the fundamental core issues of does OSHA have the authority to take measures to control the spread of COVID-19 in the workplace or to require employers to take measures to control the spread of COVID-19 in the workplace. That is really the ultimate question at the top level. Now, if you're going to say, for example, that Congress has the power to, say, require exactly this kind of mandate, it delegated that power to OSHA properly. OSHA then has lawfully exercised that power. If you're getting through the top sort of questions that we talk about,

where the flexibility of this comes in, comes in in sort of the more standard administrative law review of it all. Yeah, is it reasonable, basically? Is it reasonable? Is there a rational basis, et cetera, et cetera? That's where the Biden administration, I think, helped itself. Well, look, Omicron is helping the Biden administration from a very practical sense, because as we've said repeatedly on this podcast, judges are people too. And judges live in

communities and go to the grocery store and, you know, have their kids schools being closed again, go to the grocery store and, you know, have their kids schools being closed again, etc. I, you know, I just think this idea that the or testing that I've heard out there, it's like, well, it's not a vaccine mandate. True. But and that's a very important political talking point. It's just not that impressive of a legal talking point. Also, I've dug into the data the best I can, David, and the data is not great on this for all the reasons that I've gone off on issue polling. Footnote, if you want to see why I've gone off on issue polling, please subscribe to my newsletter, The Sweep, at thedispatch.com. Issue polling is exactly bad on something like this. You're asking people sort of their feelings about something that could or could not happen in the future. It's just really

hard to get good data. I preface all of this. I've read a lot of polling on this about how many people are really going to refuse to get the vaccine, refuse weekly testing, and quit their jobs over this to go work for an employer who's under 100 people or however else, an outside job, whatever. The number is clearly small. I mean, 70 plus percent of American adults at this point are vaccinated to some extent. But I think the number might be up to 5%. And again, think back to that Walmart big number or the Amazon big number, 5% of their employees quitting suddenly, and you don't got no Amazon Prime. There's no two-hour delivery to your home. It would be a huge disruption

to the American economy if 5% of Walmart employees quit over the course of a two-week period. Well, absolutely. Absolutely. It would. But you're exactly right about that. That might be part

of the judges are people too equation. As I mentioned, You're exactly right about that. And that might be part of the judges are people too. For sure. Equation. As I mentioned, my husband represents the American Trucking Association. Imagine losing any real chunk of our truckers out there. We need more truckers, not fewer. Thank you, truckers.

Well, that is absolutely the case. Now, we have had employer mandates in many employers, and I don't believe, and this is a good assignment for our listeners. What has been the general opt-out or quit? What has been the rate of employees quitting over vaccine mandates in private employers and government employers that have implemented the mandate? I don't think it's been 5%. I don't think any of them have actually hit the deadline yet. The federal government extended the deadline,

and all of the private employers I know have not actually made it a do this or be fired of the large employers. I'm talking about, you know, I'm sure there are small employers who have done that. But of these sort of large economy-sh shifting American companies, I don't think we've had the or quit moment. I think the military has gotten very close. And I think its percentage is well above 95% on compliance in the military, but that's the military. So yeah, this is going to be a very interesting, it's a very interesting question. I believe some big, some of the big health providers in the Northeast have had their deadlines hit.

Oh, perhaps. Well, and also, I mean, again, imagine with 1.6 million employees, having any way to sort through religious objections. Oh, gosh. Yeah. It's a lot. It's a lot. It's a lot. It's putting a lot on employers that are making up a large part of the American economy, not only to all of us who use them, but just from a workforce standpoint. Which is why it's always been the best course

of action that people choose to be vaccinated. And to be clear, a lot of these companies have vaccine mandates, might be the wrong word, vaccine incentives. They want their employees to be vaccinated. They're offering money for these employees to go get vaccinated. They're having people come to their facilities to jab people in the arm, but they don't want to have to fire their employees. They don't want to have to set up testing facilities weekly, yada, yada. So on the legal merits of this, it's a really interesting majority opinion because if you're a true student of this podcast,

if you are somebody who can remember all of our extended discussions from months, weeks and months ago, you will remember our discussion of the vaccine mandate going something like this. And we'll just call it the vaccine mandate. And essentially it's going like this, that where commerce clause and non-delegate, if you're talking about where in a commerce clause, a commerce clause precedent has been and where non-delegation doctrine has been for a while, OSHA has a pretty strong case. If you're thinking about where commerce clause and non-delegation doctrine is likely to go with this court, the case seems to get weaker. to go with this court, the case seems to get weaker.

So in other words, if you're talking about how broadly the Commerce Clause has been read for generations now, OSHA's case looks stronger and stronger. If you're talking about how non-delegation doctrine has been read for generations, OSHA's case looks stronger. If you're talking about the judicial philosophy of the specific justices on the court and where they have been pushing the law, OSHA's case starts to get weaker. And I'll give you one of the better illustrations of that is in the majority opinion's brief discussion or its discussion of the non-delegation doctrine. And it's this sentence. The Supreme Court has only twice invoked the non-delegation doctrine to strike down a statute. When were those cases?

Panama Refining Company versus Ryan, 1935. Schechter Poultry Corporation versus United States, 1935. So that's kind of the dynamic of this case. And it's a dynamic that we've identified from the beginning here, which is for a long time, the Supreme Court has granted these executive branch agencies, granted Congress enormous authority over the economy through the Commerce Clause, granted Congress the ability to delegate that authority to these executive branch agencies. But there's ample evidence that the current court isn't so in love with that anymore. And so I feel like that's our dynamic right now, Sarah, is the court going to continue to push in the direction that it has been pushing? If so, I don't see this vaccine mandate surviving.

If it sort of rests where the law has been for a long time, then the mandate will go down on other grounds, perhaps the most narrow possible grounds that we've talked about before. You know, was this truly an emergency, et cetera, et cetera. But that's the overall, that's sort of the global takeaway I took from the opinion. So the appeal's obviously heading to the Supreme Court, and then we wait. It'll sit on the emergency docket. In the meantime, merits-wise, it will continue in the Sixth Circuit.

And in the meantime, if you're not vaccinated with Omicron out there, please go get vaccinated. Some of the charts that I'm seeing about what's happening, for example, in New York on the contrast in medical outcomes between those who have been vaccinated and those who've not been vaccinated, it's very, very stark. It's very stark. So regardless of how this OSHA case comes out, if you haven't done it, now would be a great time to do it. if you haven't done it, now would be a great time to do it. Yeah. And look, get boosted too. DC. So I feel like I knew people who had COVID over the course of the last 20 months, but they weren't in my core inner circle of people I see all the time. Everyone in my core inner circle of people I see all the time appears to have COVID suddenly of the people who were vaccinated, but not boosted. Now they're all

doing fine. Nobody has severe illness at all. It's as one friend described it, bad, cold, weak flu, who was double vaccinated. So definitely worth getting double vaccinated for sure. But let me make a plug for being boosted because so far this boosted household is doing okay. Yes. So far this boosted household is doing okay. We have not had the Omicron wave hit us yet much in Tennessee. It seems to be coming. It's coming. Oh, I know. Oh, I know. All right. CMS is a little bit different. CMS is, this is a mandate that is tied to funding. It's tied to Medicare and Medicaid funding. And the issues are a little bit different here. This one, this is a mandate that is much less flexible than the OSHA mandate. It's also dealing directly with medical professionals and it is tied to federal funding. So my own view of this case is it has fewer top-line problems than the OSHA case. Like none of them in a lot of ways. I mean, this is how you could argue this is how OSHA is

supposed to function. And the private business vaccine mandate is an example of how you end up losing your case. Like they're actually perfect to contrast each other with. If you were giving a law school exam of something that's would be closer to a core OSHA ETS power, not OSHA CMS, sorry. Um, versus OSHA's example of like, ooh, I don't think so. Yeah. I mean, let's just make this really super basic. The OSHA rule is going to reach you if you have 100 or more employees, no matter if you have no contacts with the government at all, or if your only contact with the government is calling the fire department if your building is on fire or driving on the roads to get to the

workplace. So in other words, you're sitting there and you've created Libertarian Inc. And Libertarian Inc. is 105 employees and you don't have any contact with the government. You're in fact deeply opposed to any kind of government funding at all, ever. You will never take a government contract at all. This is as close as you're going to get to almost like a police power type exercise of power that's run through the Commerce Clause here. And so that's why the OSHA rule is fundamentally different in so many ways from the CMS rule. The CMS rule is, here's a big pile of federal money, and you don't get this federal money unless you're going to do X, Y, and Z, which is the conditions placed on federal dollars, there is a long history of placing Boku conditions on federal dollars.

The most famous of which, South Dakota v. Dole, that is the drinking age tied to federal highway funds. Right. Don't get me wrong. I see the connection, but barely. And that was a constitutional condition right that was held to be constitutional so i think the question the cms case is not going to be you're not going to have the big top line constitutional questions like you have in osha what you will have are the standard administrative procedure administrative law type questions um Was this promulgated properly?

It's just a different and simpler case. And so let me put it this way. If the Supreme Court upholds OSHA, it would shock me if it didn't uphold CMS. But it could uphold CMS without upholding the OSHA vaccine mandate. And that could still make a lot of sense legally because they're located in different sources of power. That is a good way to phrase it. They are located in different sources of power. And Libertarian Inc., which grows its own wheat for only its own consumption with its 105 employees, just has a much, much stronger case.

Yes. Libertarian Inc. Yeah, absolutely. But the instant that Libertarian Inc. opens up a clinic and takes Medicare dollars, it's in. Also, they need to change their name. They would need to change their name. Exactly. Exactly.

This ad for Fizz is only 25 seconds long, but we need to change their name at phys.ca. If you need some time to think it over, here's five seconds. Certain conditions apply. Details at phys.ca. So, shall we move on to our fun discussion of First Amendment rights in the classroom? Yes! I've been looking forward to this. Do you want to set up this case in the discussion? I would love to. So we're back in the fifth circuit. Come on down to Texas. In fact,

come on down to Klein Oaks High School. And we're just going to have a fine time defecating, as Jonah would say. Defecating. Defecating on Klein Oaks High School. Why, you ask? Obviously, we're going to get into some of the absurdity happening in their classrooms. But perhaps more importantly, it's because I, as the president of the Memorial High School Orchestra, beat Klein Oaks Orchestra. I mean, just like a drum badly year after year.

Yes. So they are in our football orchestra divisions, et cetera. And you laugh, listeners, but those orchestra rivalries in Texas, they're- They're intense. It's like they haven't made Friday night lights because our orchestra concerts were generally on Thursdays, but it's coming to a screen near you. I mean, there was even, correct me if I'm wrong, but I think there'd be some debate as to whether those football stadiums were really football stadiums

or were they orchestra stadiums used for football the following day. So true. I have so many memories of taking the bus out to Klein Oaks. So suck it, Klein Oaks. Here we go. So in Klein Oaks High School, Oliver is a young black woman who was enrolled as a student.

She objects to the Pledge of Allegiance because she feels that the portion declaring America to be a nation, quote, under God, fails to recognize many religions and does not match her personal religious beliefs. She further believes that, contrary to the words of the pledge, there is not freedom and justice for all in America because she and other Black people continue to experience widespread racial persecution. Therefore, she declines to stand for or recite the pledge. Let's just stop right there, David. Black letter, textbook, First Amendment law. This is the black armband case. This is Tinker. Right, or West Virginia v. Barnett. Well, I mean, it's literally West

Virginia v. Barnett. West Virginia v. Barnett is about the Pledge of Allegiance and not standing for it. Done. Tinkers wearing the black armband. Done. I think I mentioned this before, but there was a student in my school who was a year below me, refused to stand for the Pledge of Allegiance. They tried to expel him. And me, being the First Amendment lawyer that I was at 16 years old was like, oh, hell no.

And he was allowed to sit for the Pledge of Allegiance because I really liked. I wouldn't say actually that I like constitutional law, except to the extent constitutional law could be used as a cudgel against authority figures, particularly within a public school. For some reason, that did bring me so much joy, warmed my heart. Okay. In 2017, Oliver took Mr. Arnold's sociology class. The Klein-Oaks principal held a meeting with Oliver's teachers, including Arnold, and instructed them that Arnold was not required to participate in the pledge. Nonetheless, a month later, Arnold gave the class an assignment to transcribe the words of the Pledge of Allegiance. Although Arnold claims that the assignment had a pedagogical

purpose, the district court found that his intentions were genuinely disputed. So he also said some things. Okay. During class the next day, Arnold told his students that anyone who did not complete the pledge assignment would receive a grade of zero. He then engaged in an extended diatribe, which they assume for the purpose of this case was aimed at Oliver. He lamented his views that the decline, sorry, he lamented what he viewed as the decline of American values, decried a variety of people whose attitudes he deemed to be un-American, including communists, supporters of Sharia law, foreigners who refuse to assimilate into American culture, to assimilate into American culture,

sex offenders, and those that argue for their rehabilitation. That's a large list, David. It's a lot. Can we just read some of the quote here? Yeah. This is the teacher, by the way. To be clear, the adult in the room. To be clear, this is the teacher. Yeah. This is the teacher, by the way. To be clear, the adult in the room. To be clear, this is the teacher. Yeah. If you tell me two countries you'd rather go to, I will pay your

way there if they're communist or socialist. Most of Europe is socialist and it's crumbling or it's communism. News to Europe, by the way. But if you ever come back, you have to pay me twice what it cost me to send you there you know there's a lot of things i complain about so when it comes time in november i go vote or i protest in writing in legal there are ways we do it in america where a country will crumble is when people coming into a country do not assimilate to that country that doesn't mean you forget day of the dead and whatever cultures or link you maintain your language that doesn't mean you forget Day of the Dead and whatever cultures you maintain your language. That doesn't mean that.

But you're not going to drive on the left side of the road. You're not going to impose Sharia law because it's not this country. But what is happening, and I can say it a lot more than you because I've lived longer, it's almost as if America is assimilating to those countries. Ruh-roh. So the assignment was you had to transcribe the words of the Pledge of Allegiance and contemplate Bruce Springsteen's Born in the USA in class. The purpose, the stated pedagogical purpose from, as Arnold put it, is that sometimes people recite things every day

out of habit and without thinking about what they are actually saying. things every day out of habit and without thinking about what they are actually saying. David, when I first read that, I read that part before I read any of the other stuff he was saying, and I assumed this would be a conservative student objecting to a born in the USA, Bruce Springsteen, dog in America, and how maybe the Pledge of Allegiance, maybe we're not living up to our stated values in the Pledge of Allegiance as Bruce Springsteen is pointing out in Born in the USA. But that's not the case. The teacher appears not to know what Born in the USA is about. Yeah.

Not a poetry about. Yeah. Not a poetry teacher. Yeah. It's actually pretty common misunderstanding about Born in the USA. Born in the USA is not a America, heck yeah, anthem. It is not. Okay, this case, Sarah, is really interesting. It is very, very interesting. And here's how I

have tried to... Wait, I'm sorry. I just pulled up the lyrics to Born in the USA. And if you're like singing along with this song and you think this is a pro-USA, got in a little hometown jam. a pro-USA, got in a little hometown jam. So they put a rifle in my hand, sent me off to a foreign land to go and kill the yellow man. Yeah, America! F yeah! No!

What? How can you get confused by that? Yeah, amazing. Amazing. Now, here's what's interesting about this case, Sarah. You can actually, in classrooms, you can compel student speech. Of course you can. Because otherwise, how would you complete any assignment?

So, for instance, if this were a handwriting assignment in third grade and you use the Pledge of Allegiance as your handwriting assignment so that everyone is writing the same thing and you're judging whether their E's are facing the correct way. That's not compelled speech. There's a pedagogical purpose. You have to have them write something down. You've chosen the Pledge of Allegiance.

No big deal. You could, I would say, if you're teaching civics, you might could require people to memorize the Pledge of Allegiance or the National Anthem. Gettysburg Address. Gettysburg Address. All of these things. And so, in fact, you can also ask people to make arguments or require people to make arguments they don't believe in.

So I'll give you a good example. This wasn't a state school, but when I was teaching at law school, one of the things we had to do was we had, so I'm teaching a class on legal methods and advocacy. So we had to have students squaring off against each other in a particular case. And so I put together a fact pattern, this was going to be our case for the semester. And students chose their sides, but it had to be balanced. And so some folks, I had to say, you're on this side of the case. I'm so sorry if you don't necessarily agree with this side, but you're on this side of the case. So you can actually ask people to play or require people to play devil's advocate as a classroom exercise. You can require people to make the other side's argument as a classroom exercise. So why isn't she losing, Sarah?

Why isn't she losing? Well, because we're talking about things that are clearly on one side or the other, but it starts to mingle mingle in the middle. I think, again, I think the two examples we gave, very constitutional. But what about an economics class telling your students that they are encouraged to believe that supply and demand curves are a fact of economics. Oh, okay. Encouraging people to believe. Yeah, right. I mean, not just encouraging, right? You're requiring them to believe in supply and demand curves, really, because the assignment is how you know, how much butter versus guns can this country make? And the person's like, I don't believe that capitalism

is actually correct as an economic theory. I don't believe that supply and demand curves work that way. And you are forcing me to believe in that as a fact. I mean, obviously, that's one that I think is less culturally divisive, but take climate change, take evolution and biology. There's all sorts of things that students have to write down as being scientifically, factually true that some minority of students may not agree with. We have decided that's pretty constitutional. Yeah. If it's widely accepted. At the very least, of course, you can say you're going to have to demonstrate that you understand the argument. Yes. You have to demonstrate that you understand the concept of the supply and

demand curve. But on the other hand, we don't. While you may need to demonstrate that you understand the arguments that Joe Biden is making to run for president or Donald Trump is making to run for president on your government exam, we absolutely do not make you say Donald Trump will be the best president, has been the best president that has ever existed in the United States. That's unconstitutional. Right. So I think what's happening here, I think the line here, this blurry fuzzy, I mean, this is blurry and fuzzy. I think the, I think the line here is if you, you, all of what we just said is true as a general proposition,

but let's go back to my, let's go back to my classroom. Sarah, you're a student in my classroom and I have to assign devil's advocate positions. And I intentionally choose you to make the devil's advocate position because I don't like your politics and I want you. So in other words, if I'm targeting you for negative treatment because of your political point of view even if it would be otherwise a lawful exercise of my authority then it starts to look more like retaliation um and in entire and in fact the entire concept of retaliation is a way that a lawful exercise of authority becomes unlawful. But. When it is. Yes, but.

But, for instance, Travis Fletcher, if you're listening to this podcast, I did, in fact, have a crush on you in seventh grade when we did that debate together about euthanasia. Regardless. You missed your chance, Travis. You missed your chance. You missed it. It's over. No, Travis is wonderful. I walked by your house the other day at Thanksgiving.

That wasn't creepy. That sounded really creepy the way I just said that. It's on the way to our old elementary school. It's over. No, Travis is wonderful. I walked by your house the other day, Thanksgiving. That wasn't creepy. That sounded really creepy the way I just said that. It's on the way to our old elementary school. It's not. Sorry. And Caleb, leave it in. Leave it in. Sarah being creepy. Travis sent me a mix CD when I was in law school to help me study for finals. And it transformed my musical taste and really helped me through 1L finals. So thank you, Travis, for that. Okay. So Travis and I were the most opinionated people in our seventh grade class. I know it'll be hard to believe that I was there.

And so the teacher assigned us in this debating assignment the opposite positions from the ones we held because she knew what positions we held. That is not retaliation. That's pedagogical. And so you see the line can be, I mean, that's very motive based. What's in the mind of the teacher? Is she assigning me the opposite of my stated position as a learning exercise or because she wants to show me the facts. That's, I mean, my goodness. How is a judge, how is a court supposed to litigate that? It's hard. It's hard.

And I can tell you from personal experience litigating classroom type issues, you better bring the proof. You better bring some serious proof that there is a politically motivated targeting, that there is politically motivated targeting here. And in my cases, I brought the proof. I brought the proof.

Here is one of my favorites. A Los Angeles Community College speech and debate teacher gives a student an assignment. Now, if you want to talk about a lame assignment, this is it, Sarah. Give a 10 minute or 10 or 15 minutes, whatever it was. Give a speech on the topic of your choice. So whatever it is, whatever you want to talk about, you can talk about it for 10 or 15 minutes.

Parameters, guys, parameters would be helpful. So anyway, this student who's a brand new Christian, he just became a Christian, decides to give about a 10 or 15 minute talk, however long it was, about his Christian faith. At which point after it's over, the professor calls him a fascist bastard yes and then refuses to grade his paper and writes on the grading sheet ask god what your grade is okay that was a case why do people go into teaching if they feel like this towards students i I know. It makes me sad. Oh, it's awful. That's awful. We won that case.

Here's another one. Here's another one. A student in Missouri State University is given an assignment where she is going to be required to write her state legislator to advocate for a position she did not agree with. Okay, yep, that one's obvious.

That's obvious. That's a compelled speech. Yep, that's a no-no. That's compelled speech. And when she refused, Sarah, she was brought up in charges for an insufficient commitment to diversity and brought into a hearing where she wasn't even allowed to have her own mother in the room to support her, much less anyone else, and queried about her religious beliefs at length and then told she had to change

her beliefs before she could graduate. So that's over the line. Cool. Yeah. So, the bottom line here, the bottom line here is if you're going to be making an argument based on an assignment that you don't like,

you better be bringing some real evidence of political targeting, some very substantial evidence of political targeting. And interesting, you know, that the teacher's little tirade there appears to have been really the thing that tipped it over. And because that's the evidence, again, you can have your students memorize the pledge, write down the pledge, all of that thing. It's going to go to motive. That's going to be the

difference between constitutional compelled speech and unconstitutional compelled speech. And so the tirade against foreigners goes to the motivation of why he created this assignment as flawed as it was. But at least the kids maybe got to listen to some Bruce Springsteen. So, OK, so here's how this case is turning out. Weinstein. So, okay. So here's how this case is turning out. Uh, it was a panel at the fifth circuit and an unusual panel, uh, because normally the fifth circuit is, you know, obviously quite conservative, but in this case, the panel was Wiener, Dennis, and Duncan all male panel, I will note. Wiener and Dennis considered two of, well, no, they are the two most liberal judges on the Fifth Circuit. Duncan may be the most or one of the most conservative. Wiener and Dennis say that the case can go to trial, that there are factual issues to be resolved, qualified immunity doesn't attach, all of this stuff.

factual issues to be resolved. Qualified immunity doesn't attach. All of this stuff. Duncan dissents. So it goes up on a petition for rehearing on Bonk to be heard by the whole Fifth Circuit. And quite the breakdown. So seven judges voted in favor of rehearing, as in presumably voting against this case going to trial, as in the student loses. Those judges are a who's who of Federalist Society members. Jones, Smith, Elrod, Duncan, Englehart, Oldham, and Wilson. And the 10 voting against rehearing, so the student at least wins to get to go to court, though she has to prove her case at court and prove that that quote actually happened and all sorts of other stuff. We presume at this stage that her factual allegations are true. 10 against Owen, conservative. Stewart, pretty liberal. Dennis, pretty liberal pretty liberal southwick kind of in the middle haynes in the

middle grace higginson costa which who as friend of the pod greg costa and then david willett and ho now remember we're finding that qualified immunity doesn't attach if you're voting against rehearing on box. So we know why Willett's up in there. Well, and also Willett likes free speech, Sarah. But I wanted to read you some of Judge Ho's denial because he is a Trump appointee, undoubtedly one of the most conservative judges on the Fifth Circuit, friend of the pod, even though he's never been on the pod. And I hope he's not mad at me for saying he's a friend of the pod. He's certainly a friend of the Keller household. So let me read you some of this. Viewing the evidence in the light most favorable to the

plaintiff, a public school teacher punished a student for refusing to embrace certain views on America, religion, and race. And there are countless other examples nationwide. Some teachers require students to view themselves and others differently because of their race, notwithstanding our nation's commitment to racial equality and colorblindness. Others forbid students from using biological pronouns and other terms that, quote, invalidate a person's gender identity, notwithstanding the widely held view that biological pronouns invalidate no one but are dictated by science, faith, grammar, or tradition. Some teachers force students to express views deeply offensive to their faith, and still others compel students to endorse certain political

positions. And in this case, these stories are allegations not proven in a court of law, but they are allegations of constitutional violations that plaintiffs are entitled to pursue. They deserve their day in court, not summary dismissal under a misguided application of qualified immunity. It should go without saying that forcing a public school student to embrace a particular political view serves no legitimate pedagogical function and is forbidden by the First Amendment. This is a very conservative argument, even though the student in this case is having a liberal objection to the assignment. Judge Ho is making the conservative case that like, look, most of the kids that are going to run into problems at this point are holding conservative viewpoints running into problems. Well, what he's very cleverly doing is showing that when you're evaluating a First Amendment case, you should not view it entirely through the prism of the politics of the person asserting the right.

Because there is an underlying principle at stake that can apply across the spectrum. an underlying principle at stake that can apply across the spectrum. So, you know, one day, today it might be a student objecting to the Pledge of Allegiance. Tomorrow it might be a student objecting to some sort of privilege walk. And so these First Amendment doctrines apply to all of us. And it's a very, I think it's a very important and smart way of stating that fact in a case that would be otherwise be seen by an awful lot of political conservatives as opposed to sort of judicial conservatives. But political conservatives is quite explosive.

And let me try to draw a line, a distinction here. Wait, wait, sorry. I want you to, I want you to draw that distinction, but I want to read from the dissenters, the ones who wanted to take it on Bonk, where the student might not get to go to court, pro-qualified immunity, because it's not really. And I just want to state their case, because this is Judge Duncan, the judge who dissented on the panel, writing the now dissent from denial to rehear and vindicate his dissent. And it's just, it's a great two paragraphs. In our circuit, public school teachers can make students pledge allegiance to Mexico,

but can't make students write down our own pledge. The first assignment is a cultural and educational exercise, citing a 2017 Fifth Circuit opinion. But the second is a compelled patriotic statement forbidden by the First Amendment, citing this, a teacher who gives the first assignment merits qualified immunity, but a teacher who gives the second will have to convince a jury that he had a, quote, pedagogical purpose. I assume the reverse is also true. So a teacher can make students pledge allegiance to the American flag as a cultural and educational exercise, but can't make students write down the Mexican pledge if he wants to promote

el patriotismo. Our law in this area is, in other words, a dumpster fire. We should have taken this case on Bach to put it out. Then we could have addressed in a more coherent way how the First Amendment applies to student speech and public school curricula, an important and developing field. For reasons that baffle me, a majority of my colleagues declined the opportunity. Those are some good paragraphs right there, I've got to say. Dumpster fire in a Fifth Circuit opinion.

I mean, what's not to love about the Fifth Circuit these days? But I don't read those paragraphs as necessarily him saying she loses. I totally agree. That's why I wanted to read it, because in explaining what hearing a petition for en banque would mean versus denying it, I was sort of putting words that actually were not in their mouth.

But I would say overall, the tone of the dissent in this case is that like teachers have to be able to assign stuff, and we can't have every student walking into court every time they don't like an assignment and claiming it's because it violates their all of 15 years thought out ideology. No, it's just high school, guys. Just do the work. You're not going to agree with every assignment, whether it's climate change or my supply and demand curve or whatever else, we just can't litigate all of these things. Yeah. I think the line that Ho is getting at is something like this. I do not want teachers using their pedagogical authority to force people

to assert the truth of the matter as opposed to an understanding of the matter. Yes, although I think in this case, even the facts as she alleged them, I'll show my cards here, I think she loses at trial. Even the facts as she alleges them, she had to write down the pledge

and contemplate in class what the pledge means. She refused to write down the pledge. That's it. Right. Right. It's going to be very interesting to me the extent of what, because there's other evidence here

that is, you know, other evidence of retaliation that's discussed. So my view would be, as a philosophical matter, I am with Ho on this, with this caveat. I understand the distinction between truth of the matter asserted versus understanding of the matter asserted. But if you're going to be saying that a teacher is backdooring me into truth as opposed to understanding, you got to bring it. As I said earlier, you just got to bring the evidence. So you're going to have an overwhelming sort of, you're going to have a rebuttable, strong presumption, but rebuttable, a very strong presumption of legitimate pedagogical purpose, but it's rebuttable.

But it's rebuttable. It's just, and I don't know that that's quite enough. There's a, you know, if the teacher was kind of clever, what he'd say is the combination, any amount of clever, Any amount of clever. If the teacher had any amount of clever, he would say, no, no, no, you've misunderstood the assignment. That's right. Here are contrasting visions. And I want you to sit in class and contemplate how those two interact. Yes. I mean, this actually was a good assignment. I can see any number of teachers because it's fun. You read the Pledge of Allegiance, you rock out to Bruce Springsteen, and then you ask yourself what it means to have both of these represent the United States of America, a vision of the United States of America.

Totally constitutional to write an essay about that. Totally constitutional to even assign students which side of that argument they are on, BT dubs. But, you know, this reminds me of one of the great quotes in all of film, Sarah.

And it comes from the movie, This is Spinal Tap, which is, have you seen it, by the way? It's more like my generation movie. Like only maybe 24 times. Okay. Okay. Fantastic.

Well, then you know this line. There's such a fine line between clever and stupid. And so I feel like we might be right around that line here in this case, because if you are trying to get people to compare and contrast sort of the principles and the ideas and sort of the tension inherent, or is there a tension between like the saying the pledge and then absolutely sort of ripping a particular period in American history, which I think there's nothing at all inconsistent between those two things, but it's a fascinating kind of discussion. That is, that's one thing. It's another thing to say, you won't stand for the pledge. You won't, huh?

You don't like America? Well, here, you write the pledge. You write it. And that's a different thing. I mean, and if it's a, you're writing this pledge because you're not standing for this pledge, that's, I mean, you're in West Virginia v. Barnett territory, and I'm rallying to your aid. So to me, that's the difference here. Here's where I come down, David.

I'm curious. Juror David or Judge David, whichever you want to be in this case. As judge, I would let this go to trial. So I would be with Judge Ho and Willett here because I think this is a bad teacher. And like, you shouldn't be rewarded with qualified immunity when you're clearly a bad teacher, at least according to the facts alleged.

And I'm just, I'm so, I want that thumb so firmly on the scale of the First Amendment in high schools, even if then you're going to lose a trial, which, look, her name's Marie. Marie, I'm sorry you had a bad teacher for sociology class in high school. I had a really bad teacher for government at Memorial High School. If you went to Memorial High School from let's call it 1992, maybe even a little bit earlier to like 2012, 2015,

you know which government teacher I'm talking about. She was legit horrible. Yeah, that's what high school is about, Marie. And sometimes you have to write down the Pledge of Allegiance. On the flip side, I will say in my government class, I refused to do several assignments, also got a zero. And it is what, in fact, kept me out of the top 10% of my high school,

which in Texas is a huge deal because it meant I basically could not go to the University of Texas. The principal of my high school actually asked if I wanted her to intervene and change my grade in that course because I was clearly being retaliated against. And I declined because, you know what? I'm going to wear that 89.4 that Killer Miller gave me with pride so that I can talk about it 20 years later on a podcast. So Marie, don't worry. Life turns out just fine for those who got a zero on an assignment from a teacher who is a flawed human just like the rest of us. So my message to Marie is, I think you're on the way to proving that this teacher tried to get around West Virginia v. Barnett.

And if you can get just a little bit further, I'm with you. I'm with you as a juror. I'm completely with Ho on the opinion. I'm open to being persuaded as a juror, as a matter of fact. But you know what we don't have? We don't have the deposition of the teacher. We don't have the testimony of the other students before us. There's a lot that we don't have, which is why a trial is a really good thing at developing facts. And so we have

just a tiny little snapshot here of the facts. But my message to Marie is if somebody's trying to get around West Virginia v. Barnett, which is maybe my favorite First Amendment precedent of all time. Yeah. I sometimes just quote it. I used to just quote it in brief. In the shower? Just, oh. Nancy, late at night, you're like, hey, Nancy, did you know?

If there is any fixed star in our constitutional constellation, Nancy, it is that no official, high or petty. Yeah, I mean, every now and then I'm writing a brief. I've got writer's block. West Virginia v. Barnett. Here we go. So it's one of my favorite cases, and I think it's one that is, we have talked about cases where the Supreme Court has covered itself in shame because that has happened.

This is where the Supreme Court covered itself in glory because here we upheld a foundational First Amendment principle in the middle of World War II. So this was in the middle of World War II where we said that students did not have to stand and salute the flag, could not be commanded to stand and salute the flag. In the middle of World War II, when national unity was vital, the Supreme Court said, no, these American principles still apply. So that's one where the Supreme Court

really covered itself in glory. And I am vigilant in defense of that precedent, Sarah. And so I'd be struck from the juror pool. You would be. That precedent was written by Justice Jackson, a justice that we haven't talked about enough on this podcast. Look, he's not Harlan because he didn't have really, frankly, Harlan cases coming before him, but just a fantastic human being. He was one of the prosecutors at the Nuremberg trial and goes on to become, he was solicitor general, he was U.S. attorney general,

goes on to the Supreme Court, writes West Virginia v. Barnett, and is then replaced on the court by Justice Marshall Harlan II, John Marshall Harlan's grandson. So that's pretty cool. And guess what? He also dissented in Korematsu.

Oh, so I mean, really, we should be talking about him more. He is Harlan-esque. David, can I just leave you with, so that teacher that I told you about, her bestie she picked as a substitute teacher for us one day, she clearly briefed the bestie on me. And so the substitute teacher asked me to step outside in the hallway with her, which I guess I appreciated. She didn't do it in front of the whole class.

And I'll never forget this because it was such a, I'm proud of myself, I guess. And I look back and wonder how this all happened in my little brain at 16 years old. And she said, just because some guy slaps you on the ass doesn't mean you should be able to get him fired from his job. And I said, uh, you have no clue what you are talking about in this classroom or in this hallway. And if it's all the same to you, I'd rather hear the nonsense in the classroom. And I walked back into the classroom. All the same to you, I'd rather hear the nonsense in the classroom. And I walked back into the classroom.

Wow. So there's a little 1999 Me Too moment for you. Yeah. My goodness. This is a female teacher telling me that, yeah, a complaint that I brought against a male teacher should get me a lower grade in this totally unrelated class. So good. Oh my goodness. That is unbelievable. Yeah. Well, gosh, um, the stories that could be told about high school's hard, man. Not all teachers are perfect. They're flawed people. The students are flawed people. We're all just trying to find our way in this world. And isn't that the spirit of Christmas? My goodness. Well, on a lighter note,

I was just sort of playing out in my mind what would happen if I was summoned for jury duty in this case, where I would be asked at voir dire something about compelled student speech maybe. I mean, you don't want to lie, but you want to get on that jury. I want to get on that jury, but I could probably find myself saying, hell hath no furor. Hell hath no fury.

Like a first amendment attorney seeing Barnett scorned. And then I might be stricken. Might be. I've tried to get on juries. I might be stricken. I've tried to get on juries. I've failed every time. I've never been on a jury. I'd love to be on a jury. Alright, well that's it. Alright, this is our last live pod for the year. Correct.

The last live pod of the year. We're going to have a very special pod coming up on Thursday. Very special pod. You're really going to enjoy this. So please make time in your holiday schedule for our very special pod. And on our last live pod, we just wish you a very Merry Christmas, a very Happy New Year, Happy Holidays. Thank you for listening. Thank you for your feedback. Thank you for listening. Thank you for your feedback.

Thank you for your comments. I really feel like we've kind of got a real AO community here, Sarah. We really have. And we really appreciate you guys. We really appreciate your comments, especially some of your critiques. We are very open to critique as we walk through a lot of different issues and really appreciate them.

And as you know, we've you know, we've made modifications and corrections multiple times as a result of really thoughtful feedback. So we appreciate that. We appreciate you have a very, very happy new year and we will come back live in 2022. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family?

Give the moms in your life an Aura digital picture frame preloaded with decades of family photos. She'll love looking back on your childhood memories and seeing what you're up to today. Even better, with unlimited storage and an easy to use app, you can keep updating mom's frame with new photos. So it's the gift that keeps on giving. And to be clear, every mom in my life has this frame. Every mom I've ever heard of has this frame. This is my go to gift. My parents love it. I upload photos all the time. I'm just like bored watching TV at the end of the night. I'll hop on the app and put up the photos from the day. It's really easy. Right now, Aura has a great deal for Mother's Day. Listeners can save on the perfect gift by visiting auraframes.com to get $30 off plus free shipping on their best

selling frame. That's auraframes.com. Use code advisory at checkout to save. Terms and conditions apply.