Verdict Legal Analysis and Commentary from Justia Fri, 22 Aug 2014 17:29:06 +0000 en-US hourly 1 Copyright © Verdict 2013 (Verdict) (Verdict) 1440 Verdict 144 144 Legal Analysis and Commentary from Justia Verdict Verdict no no Who Is Abusing Power: Rick Perry or Michael McCrum, His Special Prosecutor? Fri, 22 Aug 2014 04:01:13 +0000 Continue reading →]]> Texas CapitolTexas Governor Rick Perry was indicted on August 15, 2014, by a Travis County grand jury under the direction of an appointed special prosecutor: San Antonio attorney and former federal prosecutor who is now active as a criminal defense attorney, Michael McCrum. At issue is whether Texas Governor Rick Perry broke state law when he threatened to withhold funding, and then did withhold funding, from the Travis County District Attorney’s Office unless the head of that office, Rosemary Lehmberg, who had been arrested and pleaded guilty to a DWI, resigned. She refused, so Perry vetoed the appropriations for the Public Integrity Unit of the office.

Charges Filed Against Perry

According to the indictment, Governor Perry violated two Texas statutes. The first statute, Abuse of Official Capacity, states: “(a) A public servant commits an offense if, with intent to obtain a benefit or with intent to harm or defraud another, he intentionally or knowingly … (2) misuses government property, services, personnel, or any other thing of value belonging to the government that has come into the public servant’s custody or possession by virtue of the public servant’s office or employment.”

In count one of the indictment, the grand jury and McCrum concluded, in essence, that Perry acted with intent to harm Rosemary Lehmberg and the Public Integrity Unit of the Travis County District Attorney’s office by misusing his veto in blocking the funding to the Public Integrity Unit when Lehmberg refused to resign. It is not clear if those appropriated funds were in Perry’s “custody or possession by virtue of the public servant’s office” because no court has ruled on such a circumstance.

Under the second count, the grand jury (and McCrum) charged that Perry violated the Coercion of Public Servant statute, which states: “(a) A person commits an offense if by means of coercion he: (1) influences or attempts to influence a public servant in a specific exercise of his official power or a specific performance of his official duty or influences or attempts to influence a public servant to violate the public servant’s known legal duty.” And this statute notes as subsection “(c) It is an exception to the application of Subsection (a) (1) of this section that the person who influences or attempts to influence the public servant is a member of the governing body of a governmental entity, and that the action that influences or attempts to influence the public servant is an official action taken by the member of the governing body. For the purposes of this subsection, the term ‘official action’ includes deliberations by the governing body of a governmental entity.”

The grand jury and McCrum also charged that Perry coerced Lehmberg by trying to force her to resign, noting that the exception to this statutory provision was not applicable because Lehmberg and Perry “were not members of the same governing body of a governmental entity.”

Both counts of the indictment are felonies.

Ridicule of Charges Filed Against Perry

Not surprisingly, Governor Perry quickly responded that the indictment was politically motivated, and “a farce.” Soon Perry’s PAC issued an ad attacking Rosemary Lehmberg, casting her behavior as the reason for his actions. The governor topped off his disdain and dismissal of the charges by posing for his mug shot as if it were a campaign poster photo and treated his booking by law enforcement as a mere campaign stop.

Similarly, Perry’s supporters have not blinked; rather they seem to believe the charges provide an opportunity to bolster his presidential ambitions. More surprisingly, many prominent Democrats think the indictment is flimsy and a political stunt by Texas Democrats who have overstepped in attacking their Republican governor. For example, Barack Obama’s adviser David Axelrod tweeted that the charge seemed “sketchy,” (from which he has slightly retreated) while Jonathan Chait at New York Magazine, wrote the indictment was “unbelievably ridiculous.” Attorney and progressive MSNBC anchor Ari Melber wrote that he found the indictment “fishy,” since it criminalized Perry’s action under the Texas constitution of threatening, and then vetoing, the appropriation for the office of a prosecutor who refused to resign.

A bevy of law professors have in varying degrees attacked and ridiculed the indictment of Perry. For example, the blog Above the Law headlined “Law Profs Say Rick Perry Indictment Is Dumbest Thing Since Rick Perry,” setting forth reasons many had reached their conclusions. Their arguments were not unpersuasive either.

But given the early stage of this case, the broad language of the indictment, and the broad language of the statutes involved, it is anything but clear these first impressions are valid, and those who think Perry will not be successfully prosecuted have been surprisingly dismissive of the facts. It strikes me that calling these actions political overreach may be baseless, and Governor Perry is facing a serious problem.

The Truth of Perry’s Prosecution

Perry and his advisers get a lot of credit for framing his prosecution as pure politics. He has done a wonderful job of creating amnesia about how it all happened, and why he was indicted. It is true this case is about politics, but a reader who examines both sides will soon discover it is about Perry’s politics. He has been the governor of Texas since Bush II handed him the job, almost a decade and a half ago. And it is well known in Texas he is more than a bit of a bully, politically. The grand jurors have now publicly stated their indictment was not a political action, rather one called for by their oath of service.

Take Perry’s demand that Travis County DA Rosemary Lehmberg resign or else have the funding for her office cut off. Ms. Lehmberg is the elected head of that office, and Perry had no control over her office—not to mention she is a Democrat who had been a thorn in the side of many Republicans who control the state. Tellingly, as reported by the Dallas Morning News, when two other Republican district attorneys were convicted of drunk driving, convicted and jailed in not dissimilar situations from Ms. Lehmberg, there was not a peep from Perry.

As the Dallas paper pointed out, Lehmberg’s Public Integrity Unit has been actively investigating Perry’s biggest accomplishment in Texas, the Texas Cancer Research and Prevention Institute, which just happened to give millions in un-reviewed state money to a big Perry contributor. And had Lehmberg resigned as demanded, Perry would have appointed a Republican to replace her, which would have removed the problem he is having because of her investigation. Now he eliminated the problem by defunding the unit investigating his contributor.

To figure out what is really happening in Texas, I spoke with a couple well-connected attorneys in Texas (one of whom frequently writes about legal matters, and had taken a close look at these proceedings). The insider view appears to be that this prosecution is anything but a partisan overreach, as balanced accounts report. The special prosecutor, Michael McCrum, is a careful, non-political and experienced criminal law attorney, who was selected by a Republican judge. McCrum appears very straight talking, not the type to risk his career with a worthless case.

According to knowledgeable Texas criminal lawyers (who have spoken with current and retired Texas judges), the first count of the indictment will be more difficult, but not impossible, to sustain because it is untested. So the first count will involve legal issues while the second count will involve factual issues, and if—as many believe the situation—the prosecutor shows past efforts by Perry to coerce Ms. Lehmberg, he will be convicted.

In brief, while Perry may play his indictment politically, the prosecutor cannot do that. The only person who may have abused his power is Governor Perry, for Special Prosecutor McCrum is doing it by the book. It will be Texas judges—and possibly a jury—not law professors and political pundits who decide this matter.

John W. Dean, a Justia columnist, is a former counsel to the president.
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Who Will Protect New York’s Children from Preventable Death and Permanent Disability? Thu, 21 Aug 2014 04:01:23 +0000 Continue reading →]]> JudaismFor millennia, Orthodox Jews have been celebrating the birth of a boy with a ceremony called a “bris” at which the boy is named and circumcised by a rabbi. Typically, it occurs within days of the birth. One of the ancient practices, which has been abandoned by most rabbis, has the rabbi, or mohel, engage in oral suction of the blood from the wound following the circumcision; it’s called metzitzah b’peh, orMBP. There are some remaining ultra-Orthodox Jewish rabbis, however, who do still engage in oral suction.

That is not good news, because, according to the Jewish Daily Forward, “since 2000, 16 infants in New York City are suspected of contracting herpes following MBP. Two of those babies died and at least two others suffered brain damage.” The most recent cases were announced last month.

The Medical Science Is Solid: Oral Suction Poses an Unreasonable and Preventable Risk and How New York City and State Have Failed to Protect Infants

Here is the problem: infants with an open wound, like a brand new circumcision, are susceptible to infection from oral suction and in particular herpes. Many people in the United States have some form of herpes. It is not a serious health risk for most, but for an infant, it can be catastrophic, leading to death and/or permanent disability.

The medical science is quite clear: if an infant has an open sore exposed to the saliva of an adult with active herpes, that infant has an increased risk of death or permanent disability. Leading health organizations, like the American Academy of Pediatrics, Infectious Diseases Society of America, Pediatric Infectious Diseases Society, and American Sexually Transmitted Diseases Association as well as many others, including Jews and rabbis, have weighed in against the practice as an unnecessary and unreasonable risk to infants. The easy solution would have been for the remaining rabbis who practice oral suction to desist. That did not happen.

The next best thing was to educate parents of infants undergoing oral suction that their infants were at risk. Pamphlets were distributed, with the New York City Department of Health and Mental Hygiene urging parents to decline the practice for the health of their children. There was no guarantee, however, that the information was being disseminated, as at least one family whose infant contracted herpes following the ceremony said that they were unaware of the risk.

So the Department went a tiny step farther and issued a requirement that the rabbi, or mohel, obtain informed consent from the parents. He must inform them of the health risks and obtain their signature before conducting the ceremony. I suppose the idea was that at least some of the parents might decline oral suction when they learned of the risk to their infants.

The informed consent requirement, though, did not make the mohels happy, and they claimed that it is a violation of their religious freedom to inform parents that the religious practice they are about to perform could kill or disable the infant boy.

Recent Litigation Over the Informed Consent Requirement

Enter the courts. Last week, the U.S. Court of Appeals for the Second Circuit ruled in Central Rabbinical Congress v. New York City Dept of Health & Mental Hygiene that the informed consent regulation is specific to the ultra-Orthodox and therefore, must be subject to strict scrutiny under the Free Exercise Clause. Interestingly, the court, however, did not enter an injunction on the requirement, but rather sent the case back to the district court to determine whether the law serves a compelling interest and is narrowly tailored.

In my view, the Second Circuit erred in two ways. First, it skipped over any serious consideration of whether the law imposes a substantial burden on the mohels. What belief is being burdened by the requirement that the mohel tell the parents the practice is dangerous to infants? Do they have a belief that parents must be ignorant of potential medical harm to their infant? Are they saying that rabbis have a right to impose religious practices without full disclosure where the potential result is the death of a child? Really? The burden here is incidental, not substantial, and never should have triggered further free exercise review.

The second error was in the Second Circuit’s consideration of the universe of regulations for purposes of determining whether this requirement was neutral and generally applicable. Informed consent is always required when a doctor performs a circumcision. Why should rabbis be absolved of the same obligation during the same procedure that involves creating a wound on an infant? The regulation was needed because the rabbis are non-medical personnel engaging in a form of surgery in a way that raises the infants’ health risk and, therefore, they were the only ones performing circumcisions whose practices were not covered by informed consent.

If the lower court were to hold that the law is unconstitutional, the next step should be a state law that requires informed consent from the parents for all circumcisions, whether performed by medical or non-medical personnel, and that informed consent must be explicit about the actual health risks attendant upon that practitioner’s procedure. That is as neutral and generally applicable as it gets.

The court did not, as it should not, enter an injunction on the regulation, but merely sent the case back to the district court for further findings on compelling interest and whether the law was narrowly tailored. That is when the person whose life is at stake will be at the forefront of consideration, as it is obvious that finding some means of deterring these risks to infants serves a compelling interest and that the law is narrowly tailored to the single practice during the circumcision ritual that puts the infants most at risk.

This Is All a Distraction From What Truly Matters: The Protection of Children

The informed consent rule and this recent decision are really a sideshow. The truth is that New York City and State have been dithering while the lives of infants are at risk. When an infant contracts herpes following oral suction, the authorities should criminally charge parents and the participating rabbis with child neglect for subjecting these infants to the unreasonable health risk of the practice. A line must be drawn to prevent adults, even religious believers, from causing a child’s death and/or permanent disability. This practice easily crosses that line. There does not even need to be a regulation specific to the practice. The neglect laws are neutral, generally applicable laws that apply to all parents who medically neglect their children.

From the perspective of the infant looking up at the adults during the bris, it doesn’t matter whether mom and dad were told by the rabbi that he might die or be permanently disabled. He should have the right, under the laws of every state, to be protected from death and disability from avoidable risks, regardless of his parents’ religious beliefs.

The First Amendment is not a license to endanger children, and a child’s life is no less valuable simply because his parents are religious.

Marci A. Hamilton is the Paul R. Verkuil Chair in Public Law at the Benjamin N. Cardozo School of Law, Yeshiva University, and the author of God vs. the Gavel: The Perils of Extreme Religious Liberty and Justice Denied: What America Must Do to Protect Its Children. She also runs two active websites covering her areas of expertise, the Religious Freedom Restoration Acts,, and statutes of limitations for child sex abuse, Professor Hamilton blogs at Hamilton and Griffin on Rights. Her email address is
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Mommy and Momma: Determining Parentage in the New Family Wed, 20 Aug 2014 04:01:32 +0000 Continue reading →]]> New FamiliesA woman has recently filed a lawsuit claiming that she gave birth to Beyonce and Jay-Z’s daughter, Blue Ivy Carter, and should be recognized as the child’s legal mother. There were rumors that Beyonce’s baby bump was fake, and that she had relied on a surrogate to carry a child, but it seems unlikely that this suit will go anywhere (or be proven to be based on true facts).

The suit is unusual, however, because challenges to legal maternity are relatively rare; our parentage rules are premised on the fact that we generally know who gave birth to a child, and, outside of an enforceable surrogacy arrangement, the woman who gave birth to a child is that child’s mother. Challenges to legal paternity are much more common. But all questions about parentage—who are a child’s legal parents—have become increasingly complicated with the rise of non-marital childbearing, parenting by same-sex couples, and reproductive technology.

Among the recurring parentage questions that arise in the new American family is whether a woman who jointly plans for and co-parents a child born to her lesbian partner should be recognized as a legal parent with the same rights and responsibilities as the biological mother. In a recent ruling, In re Madelyn B., the Supreme Court of New Hampshire said yes, under a state statute that grants parental status to a person who has held out a child as her own.

This ruling joins many others that have recognized the rights of a lesbian co-parent in recent years, although there is substantial variation among states in the legal theories that countenance this result. But regardless of the specific theory, parentage is most likely to be recognized when the biological mother clearly consents to the sharing of parental rights, and the co-parent both lives with the child and acts as a genuine co-parent. These criteria have become the focal point as the emphasis has shifted away from identifying a child’s biological relationship and towards recognizing the social, economic, and emotional ties that arise from living in a family unit together.

The Facts, and the Claim at Issue in Madelyn B.

Susan and Melissa met and became romantically involved in 1997. Although New Hampshire now permits same-sex couples to marry, it did not then, and the two women participated in a commitment ceremony in 1998. Melissa took Susan’s surname, and they “considered [them]selves to be as fully committed to one another as any married couple.” (This case reached the supreme court on a motion to dismiss, which requires the court to view the facts in the light most favorable to the complainant—here, Susan.)

The two women decided to begin a family together, and, toward that end, they jointly bought a house and began the process of identifying a sperm donor for use in artificially inseminating Melissa. They selected a donor who shared Susan’s Irish heritage so that she, too, would share some identifiable traits with the baby. In 2002, Melissa gave birth to Madelyn, who was given Susan’s middle and last names.

The baby was presented to the world as belonging to both of them—in a birth announcement sent to family and friends and printed in the local newspaper; in a religious “dedication” ceremony; in preschool paperwork; and in medical records.

Susan and Melissa co-parented in every sense of the word for the first six years of Madelyn’s life. During that time, they were advised by a lawyer that Susan could not legally adopt Madelyn, but that her relationship to the child could be protected through a guardianship.

After the end of the adult relationship, Susan and Melissa continued to co-parent Madelyn. Susan saw Madelyn every weekend and had overnight visits every other week. She paid weekly child support and helped with additional expenses; she also provided her in-kind support like food and clothing. Meanwhile, Melissa had moved in with a man, Eugene, whom she later married.

Five years after the break-up, when Madelyn was 11, Melissa stopped cashing the child support checks and blocked visitation as well as any Internet contact between Susan and Madelyn. Melissa then moved to terminate Susan’s guardianship, claiming that it was no longer necessary because Madelyn no longer wanted to have a relationship with Susan. The trial court terminated the guardianship on the theory that Melissa’s husband was now the logical choice to step in to care for Madelyn if Melissa could not for any reason. Melissa also began proceedings to allow her husband to adopt Madelyn.

Susan responded by intervening in the adoption proceeding and filing her own petition to establish parentage. The trial court ruled against Susan in both matters. All these competing proceedings turn on the same issue: whether Susan is a legal parent to Madelyn. If she is, she has rights that cannot be unilaterally terminated by Melissa, and she is not “adoptable” since she already has two legal parents. (Departing from the rule in most states, California changed its law in 2013 to allow for recognition of more than two legal parents in appropriate cases.)

Is Susan a Parent? And, if so, Why?

Susan’s parentage petition was premised on a New Hampshire statute, RSA § 168-B:3, which presumes a man to be a father if he is married or has attempted to marry the child’s mother or if he “receives the child into his home and openly holds out the child as his child.” This statute, which is based on the Uniform Parentage Act and is similar to statutes in many other states, is designed to identify a child’s legal father. These statutes were drafted and enacted in most states after the U.S. Supreme Court ruled in a series of cases in the 1970s and 1980s that unwed fathers had constitutionally protected parental rights, which could not be categorically disregarded by state parentage and custody laws.

Susan argued that she should be treated as a legal parent of Madelyn because she received Madelyn into the couple’s joint home and openly held out the child as her own.

Now the most obvious potential problem in applying this statute to Susan is that she is neither a man, nor a father. And, indeed, Melissa claimed that the statute could not be used to identify a child’s second mother (or first, for that matter).

The Supreme Court of New Hampshire decided, however, that the parentage statute could be applied in a gender-neutral manner, which means it can be used to assign maternity as well as paternity. Most courts have reached the same conclusion on this question, although some were interpreting parentage statutes that included a provision directing the gender-neutral application of statutes where appropriate. New Hampshire’s parentage code does not include such a provision. However, the underlying statutory purpose is to identify a child’s true parents—those adults who have committed themselves fully to the child’s welfare and can provide both legitimacy and support.

The court concluded that since the statute allowed paternity to be established based on conduct rather than a biological connection—it is well established in New Hampshire as in other states that a non-biological father can seek rights, or be subjected to obligations, based on a holding-out provision—the legislature would want all adults who meet the criteria to be recognized as parents. It is the state’s interest in the child’s welfare and the integrity of the family that must be protected, especially when a non-biological parent and child lived together for years and developed a true familial relationship. Thus, Susan was not barred from seeking status as a presumed parent—nor would other women be in future cases, despite the language of “men,” “fathers,” and “paternity.”

The question, then, is whether Susan met the criteria as a presumed parent. Again, because of the procedural posture of the case, the court had to construe the facts most favorably to Susan. In that posture, the court had no trouble concluding that she had held out Madelyn as her own child and received her into her home. Susan and Melissa lived together with Madelyn for the first six years of Madelyn’s life, and Susan was integrally involved in the decision to conceive a child and the preparation for parenting. Melissa was “Mommy,” and Susan was “Momma.” As discussed above, she was held out to the world as the child of both women, including in such symbolic ways as on a family tree showing her relatives on Susan’s and Melissa’s sides of the family. She also participated in every aspect of parenting—from the tedium of feeding, clothing, bathing, and diaper changing, to the loftier decision-making that is also essential to parenting.

Although the holding-out provision focuses on the conduct of the non-biological parent, it must be applied in a way that respects the constitutionally protected parental rights of the biological parent (here, Melissa). But when the biological mother has actively sought to create and encourage a parent-child relationship between her child and her partner, and they began the process of becoming parents with intent to share parenting and parental rights, it is fair to recognize them both as legal parents, with co-equal rights.

Given the court’s conclusion that the holding-out provision can be applied to women and that Susan has made a colorable claim of parentage, the case was remanded for a hearing to adjudicate any disputed facts and, assuming she is still eligible for parental status, to make appropriate orders regarding custody and visitation.

Other Paths to Lesbian Co-Parentage

Women in other states have also successfully used holding-out provisions to establish legal parentage. In California, for example, the state’s highest court, in Elisa B. v. Superior Court (2005), applied a similar provision to recognize a lesbian co-parent who, like Susan in the New Hampshire case, had participated in every aspect of the child’s conception, birth, and rearing and lived in a joint home with the child’s biological mother. As these two cases illustrate, when two people together decide to have a child, bring about its birth, and carry out the plan to co-parent, courts have been willing to recognize them as equal stakeholders in the child’s upbringing.

Depending on state law, there may be other ways for a lesbian co-parent to obtain recognition as a legal parent.

In some states, the lesbian co-parent can gain full or quasi-parental rights based on the doctrine of de facto parentage, which allows courts to recognize and protect the social and emotional tie between a non-biological parent and a child. This doctrine functions similarly to statutory holding-out provisions, but the standards vary more from state to state depending on the cases in which the theory has been developed and applied. Central to recognition of de facto parentage, however, is the active consent and fostering of the established legal parent and the true and full participation in caretaking by the de facto parent. (Some discussion of this doctrine can be found here and here.)

In some states, the lesbian co-parent can gain full “legal parent” status, by virtue of a so-called “second-parent adoption.” (A handful of states expressly disallow such adoptions, however, and, in many others, courts have simply never considered the question.) This is the most secure way to seek recognition, since adoption decrees are given full faith and credit across state lines, and the formal decree eliminates expensive, fact-intensive litigation about the non-biological parent’s parenting and the biological parent’s consent to the sharing of parental rights.

In an increasingly large number of states that allow same-sex couples to marry (nearing 20), a lesbian co-parent can gain legal parent status by virtue of being married to a child’s biological mother. She is, at least presumptively, the legal parent of children born to her spouse or civil union partner—in the same way that a husband is often considered to be the legal father of children born to his wife during their marriage, regardless of whether he possesses or lacks a genetic tie to them. Those presumptions are either unrebuttable by statute or rebuttable only in narrow circumstances (and typically not based solely on proof that the spouse and child lack a genetic tie).

In a smaller group of states, courts have recognized lesbian co-parents based on a co-parenting agreement with the biological mother. These rulings often avoid the parentage question altogether and simply hold that a sufficient agreement between the parties can result in enforceable custody and visitation rights, even if the second parent is not fully recognized as a legal parent. The Supreme Court of Ohio, for example, in In re Mullen (2011) held that a “parent may voluntarily share with a nonparent the care, custody, and control of his or her child through a valid shared-parenting agreement,” the crux of which “is the purposeful relinquishment of some portion of the parent’s right to exclusive custody of the child.” The court imposed relatively strict requirements (the agreement must be in writing, serve the child’s best interests, and the person with whom parenting is being shared must be up to the task), which protect both the child and the parental rights of the established legal parent. (This case is discussed in more detail here.)

The Supreme Court of North Carolina issued a similar ruling in Boseman v. Jarrell (2010), in which it overturned a second-parent adoption by a lesbian co-parent as unauthorized by statute, but nonetheless enforced her rights as a co-parent by agreement. Likewise, the Kansas Supreme Court recently reached the same conclusion in Frazier v. Goudschaal (2013), holding that a biological mother could effectively waive her paramount parental status by entering into a co-parenting agreement with her partner to share parental rights. (This case is discussed in more detail here.)


While these various statutory and doctrinal parentage rules may seem at odds with one another, they tend to produce similar results in many cases. They all represent a quest to broaden our definition of parentage, without sacrificing the interests of children or the adults who actively participate in their conception, birth, and upbringing. The New Hampshire court is just one more voice in the chorus of change.

Joanna L. Grossman, a Justia columnist, is the Sidney and Walter Siben Distinguished Professor of Family law at Hofstra University. She is the coauthor of Inside the Castle: Law and the Family in 20th Century America (Princeton University Press 2011), co-winner of the 2011 David J. Langum, Sr. Prize for Best Book in American Legal History, and the coeditor of Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press 2009). Her columns focus on family law, trusts and estates, and sex discrimination.
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The Fifth Circuit Blocks Mississippi Law From Closing the Last Abortion Clinic Tue, 19 Aug 2014 04:01:32 +0000 Continue reading →]]> HospitalLast month, in Jackson Women’s Health Organization v. Currier, the U.S. Court of Appeals for the Fifth Circuit sustained an as-applied constitutional challenge to a Mississippi law requiring that “[a]ll physicians associated with [an] abortion facility must have admitting privileges at a local hospital and staff privileges to replace local hospital on-staff physicians” (“admitting privileges”).  The court of appeals concluded that applying this law in Mississippi would have the effect of closing the state’s one existing abortion clinic and would therefore impose an undue burden on women seeking to exercise their constitutional right to terminate a pregnancy.  This column will consider the unusual—and fact-sensitive—approach that the Fifth Circuit here took to reviewing the admitting privileges law.

The Factual and Legal Background in Jackson Women’s Health Organization v. Currier

Over the last few years, at least nine states have passed admitting privileges legislation, aimed at making it more difficult for women to obtain an abortion.  Demanding that abortion providers have admitting privileges at local hospitals presents difficulties for abortion clinics because many hospitals are hostile to the practice of abortion, whether for religious or other reasons (including, perhaps, a fear of anti-abortion protesters).  When an abortion provider asks a local hospital for admitting privileges, he or she may accordingly face some of the same resistance that led the hospital not to offer abortion services itself.

When the abortion providers in the one remaining abortion clinic in the state of Mississippi sought admitting privileges at seven of the Jackson-area hospitals, no hospital was willing to grant either of the doctors these privileges.  With admirable candor, the hospitals explained that the denial resulted from the doctors’ provision of abortion services.

This case was not the first time that the Fifth Circuit had occasion to review a law requiring that abortion providers have admitting privileges at local hospitals.  Texas, for example, passed a virtually identical law, and the Fifth Circuit reviewed its constitutionality in March of this year.  At that time, in Planned Parenthood v. Abbott, the three-judge panel unanimously upheld the Texas statute.  The Fifth Circuit found that even though the law could result in women having to embark on several hours of travel (of up to 150 miles) in an effort to obtain an abortion, such travel requirements did not amount to an undue burden.

This earlier ruling was significant to the Fifth Circuit’s process of resolving Jackson Women’s Health Organization v. Currier, because it took some of the arguments against the Mississippi law off the table.  Bound by the earlier ruling, the three-judge panel could not hold that the Mississippi law imposed an unconstitutional undue burden by virtue of forcing some women to travel to distant clinics, since the earlier decision in Planned Parenthood v. Abbott had already rejected the argument.  The court also could not rule that admitting privileges requirements are necessarily, on their face, unconstitutional, since such a ruling would plainly be at odds with the earlier decision.

To rule in favor of the plaintiffs-appellees, then, the Fifth Circuit panel had to identify some feature of the Mississippi law that distinguished it from the already-approved Texas law.  It found such a feature by referencing the striking reality that in Mississippi, because there is only one abortion clinic in the state and because its providers already tried unsuccessfully to obtain admitting privileges at local hospitals, the enforcement of the statute in question would effectively eliminate access to legal abortion in Mississippi.  For this reason, a divided court concluded, the Mississippi statute, as applied, imposed an unconstitutional undue burden on women seeking an abortion.  This ruling gave rise to two objections from the dissenting judge, Emilio Garza.

How to Assess the Relevant Burden for Undue Burden Analysis

In the earlier Fifth Circuit case, Planned Parenthood v. Abbott, the court acknowledged that some women seeking abortion would, as a result of the statute, have to travel up to 150 miles, but it concluded that this burden was constitutionally permissible (since 90% of women seeking abortion would only have to travel under 100 miles for the procedure).  This accordingly made it difficult for the court in the Mississippi case to find that the virtually identical Mississippi law would impose an undue burden because of travel.  The court therefore avoided this argument and found instead that in the state of Mississippi, the impact of the law is to eliminate abortion clinics from the state altogether and that such elimination constitutes an undue burden, regardless of the distances women might travel to reach an out-of-state clinic.

The court in this case thus focused on the state of Mississippi rather than on the trip that might be involved in traveling to an open clinic.  The dissent took strong issue with this focus and said that women in Mississippi, like women in Texas, can still obtain an abortion, notwithstanding the law in question.  Even assuming that the law in Mississippi makes getting an abortion more difficult, the dissent reasoned, it does so in exactly the same way as the law in Texas does: by increasing the distance involved in traveling to the nearest clinic.  That is, whether the nearest clinic is in the state itself (but far away) or in a nearby state (like Tennessee, Louisiana, or Alabama), the burden on women seeking abortion is the same:  some increased travel time that does not—under binding Fifth Circuit precedent—amount to an unconstitutional undue burden.

At first glance, this argument seems compelling.  The majority, in other words, appears to be in denial about just how boxed in it is in virtue of the earlier decision regarding the Texas law.  Upon closer inspection, however, the majority’s state-specific analysis is quite powerful and makes a lot of sense.

To see the power of the argument, consider, by analogy, a hypothetical Mississippi law providing that abortion is impermissible absent spousal notification.  Under Planned Parenthood v. Casey, such a law would impose an unconstitutional undue burden on married women seeking an abortion.  As the Fifth Circuit points out, moreover, the Supreme Court does not consider relevant the fact that a married woman could avoid having to notify her spouse simply by traveling to a different state, where abortion requires no spousal notification.  Following the decision in Casey, the Fifth Circuit would thus presumably strike down a spousal notification law in Mississippi, notwithstanding the availability of abortion in other states.

The Fifth Circuit convincingly reasons that each state has an obligation to refrain from violating constitutional rights, and none can evade that obligation by relying on other states to supply the constitutional protection that it denies.  If a state could offload its constitutional obligations to other states, then abortion could effectively (if not explicitly) become illegal in every state without violating the Constitution, on the theory that women could still travel to Canada or Japan to obtain an abortion.

This approach—the logical culmination of the dissent’s position regarding neighboring states—has to be wrong.  Each jurisdiction is bound to respect the Constitution within its boundaries, the only area over which it has legislative authority.  If Mississippi has effectively prohibited abortion within its territorial boundaries, then it has imposed an undue burden upon women seeking an abortion, regardless of whether women could obtain an abortion elsewhere.  To assess whether a state has created an undue burden, then, it makes eminent sense to examine the state’s actions vis-à-vis the area that the state actually controls, rather than the impact of its actions in areas outside of its jurisdiction and control.

How to Assess the Impact of the Law for State Action Purposes

In addition to invoking the availability of abortion in neighboring states, the dissent in the Mississippi case contends that it is simply inaccurate to describe the Mississippi law in question as having the legal effect of closing the last abortion clinic in the state:  “[t]he direct, legal effect of House Bill 1390 [the Mississippi law] is only to mandate [admitting privileges].”

Even if it were appropriate to look only to the state of Mississippi in evaluating the effect of the law, in other words, a premise with which Judge Garza disagrees, it is still important to figure out who is responsible for eliminating access to abortion in Mississippi before holding the state accountable for that elimination.  The state action doctrine requires as much.

Judge Garza’s point is a very interesting one, because the right to abortion does necessarily implicate the state action doctrine, since the abortion entitlement is a right against active state interference.  Proximate causation is a feature of the state action doctrine.  To understand how the relation between state action doctrine and proximate causation works, consider the case of DeShaney v. Winnebago County.

DeShaney involved a decision by a county department of social services not to remove an abused child from his father, despite complaints.  Remaining in his father’s custody, the boy suffered a beating from his father that rendered him brain damaged and profoundly intellectually disabled.  Joshua DeShaney and his mother subsequently brought a lawsuit under 42 U.S.C. § 1983 against the Department of Social Services, arguing that by failing to intervene to protect the boy from his father’s violence, the Department denied the boy his rights under the Due Process Clause of the Fourteenth Amendment.  The Supreme Court rejected the claim, finding that the Constitution governs only state action—that is, action by a government entity—and DeShaney’s injuries resulted from private action by his father, not action by the state.

As a matter of factual causation—whether the government’s failure in fact resulted in the boy’s injuries—the state’s failure did lead to those injuries.  It is plain, then, that the causation requirement implicit in state action doctrine is a matter of legal causation—something beyond factual causation that makes it fair and proper to blame the harm experienced on the conduct of the state entity.  The Court then reasoned that the Due Process Clause generally imposes no affirmative duties upon the government, and the government in DeShaney merely failed to act but did nothing affirmatively harmful to cause the boy’s injuries.  There was accordingly no state action in DeShaney, where the government was guilty only of inaction.

Returning to the Mississippi abortion case, Judge Garza contended in his dissent that Mississippi state law did not close the last remaining abortion clinic in the state.  It simply required that providers obtain admitting privileges at a local hospital.  It was the local hospitals—private, non-state actors—that made the decision to refuse the providers’ requests for admitting privileges, and it was accordingly a non-state actor’s behavior—not the conduct of the state—that eliminated women’s access to abortion procedures in the state of Mississippi.

As a matter of factual causation, both the statute and the conduct of private hospitals resulted in the elimination of abortion access in Mississippi.  Had either Mississippi or the relevant hospitals behaved differently, then the one remaining clinic could have continued to operate without violating state law.  Judge Garza’s argument is accordingly a proximate cause argument.  He believes that one ought to attribute the closure of the last clinic to the private hospital’s refusal to grant admitting privileges rather than to the state law requiring that abortion providers acquire such admitting privileges.

Responding to this objection is difficult, given the apparent unwillingness of the Fifth Circuit to acknowledge that the purpose of admitting privileges requirements is to restrict access to abortion.  I mention this unwillingness because Casey explicitly says—as the Fifth Circuit quotes in its opinion—that “[u]nnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right” (emphasis added).  Had the Fifth Circuit in the earlier Texas decision taken the purpose prong of this test seriously, it would not have had to closely examine the impact of such laws.  And if the court did decide to examine their impact, it would have been clear that such laws proximately cause the burdens on access to abortion.  When the state intentionally brings about a result in precisely the manner contemplated, then we have proximate cause.

Once we are operating, however, in a world in which we pretend that admitting privileges laws only incidentally and unintentionally block access to abortion but have some independent health purpose, it becomes fair to ask whether we can appropriately attribute the “incidental” effect of the law on abortion access to the legislation itself or to the private conduct empowered and enabled by that legislation.  Nonetheless, even given this imagined world in which admitting privileges abortion legislation is about something other than limiting access to abortion, it seems the answer to the proximate cause question remains yes.

When only one clinic in the entire state offers abortion services and the surrounding hospitals are hostile to such services, the admitting privileges requirement has the foreseeable consequence of closing the clinic and is therefore the proximate cause of that consequence.  Unlike in DeShaney, a finding to this effect is not tantamount to demanding action from the state:  had the state done nothing to regulate abortion practice in the first place, the clinic would be able to operate without legal obstacle.  All the state had to do, to comply with the Constitution, was refrain from interfering with abortion services willingly provided by private actors.

For the reasons I describe, I think the Fifth Circuit’s opinion—bound as it is by prior precedent—is generally sound, and its state-focused analysis is even elegant and compelling.  It is worth noting, however, that prior precedent minimizing the burdensome nature of added travel time to the project of obtaining an abortion is unfortunate.  Having to travel long distances and take time off from work is prohibitive for many women.  This reality may explain why most people seek medical care (of all sorts) at local hospitals rather than traveling to the best medical centers in the nation.

Women who elect to have an abortion, for the many reasons that women do, truly face an undue burden when they have to travel many miles for the procedure, especially if they need to visit a clinic more than once (either for follow-up care or to satisfy a 24-hour waiting period) and/or do not get paid for time taken off from work.  If courts were able and willing either to recognize the impermissible purpose of such legislation or to frankly consider the insurmountable burdens that travel can pose, the court might not have needed to rely on a creative (albeit convincing) argument that focuses on the (un)availability of abortion within the state of Mississippi.

Sherry F. Colb, a Justia columnist, is Professor of Law and Charles Evans Hughes Scholar at Cornell Law School. Her most recent book, Mind If I Order the Cheeseburger?: And Other Questions People Ask Vegans, is currently available on Amazon.
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Suing the President Mon, 18 Aug 2014 04:01:50 +0000 United States v. Windsor, the case in which the Court struck down Section 3 of the Defense of Marriage Act, as supporting standing for the new case against the President. Continue reading →]]> The White HouseWhat if the President of the United States simply refuses to follow the law?  For example, assume a tax statute says that the rate on capital gains is 20%.  The President, who has been unsuccessful in urging Congress to reduce that tax rate to 10%, simply announces that he has instructed the IRS not to tax gains in excess of the 10% rate.  Those who benefit by the reduction in the tax rate have no “standing” to sue — that is, the presidential waiver does not harm them; it simply reduces their tax liability.  They have no particularized injury that a court can redress by injunctive or declaratory relief or by money damages.  If those benefitted by the law do not like the presidential waiver, they can always pay the statutory rate of 20%.   Later, a new President may revoke that Executive Order, but those who have benefitted by the prior order have saved a lot of money. It will be hard for the government to collect money from people who relied on the president’s order, for courts do not favor bait and switch tactics by the government.

Those who feel hurt by this Executive Order (the rest of the taxpayers) also have no particularized injury, so we cannot sue as taxpayers. The U.S. Supreme Court has made clear for many decades that the only taxpayer suits it allows will be those where the taxpayer objects to expenditures that establish a church.

The Authority (and Limitations) of the President to Issue Executive Orders

Sometimes federal statute will authorize the president to issue an Executive Order if he makes certain findings.  For example, in 1936, the Supreme Court upheld a law that made it a crime to sell munitions to Bolivia (then engaged in an armed conflict) if the President made certain findings. The President, rather than decreeing legislation or ignoring it, was following the legislation.  However, that line of cases does not authorize the President to “waive” provisions of the law that do not provide for a waiver.

At other times, the Constitution itself gives the President unilateral powers, such as the power to decide which foreign countries to recognize, or the power to grant a presidential pardon, even before a trial or conviction. The President may decide not to prosecute an individual criminally.

Still, the President has no general power to issue decrees that have the force of law. Thus, Youngstown Sheet & Tube Co. v. Sawyer (1952) rejected the argument that the President’s power to “faithfully execute” the laws gives him a power to create law.  As the Office of Legal Counsel (part of the Justice Department) concluded in one of its Opinions, “The President has no ‘dispensing power.’”  The President and his subordinates “may not lawfully defy an Act of Congress if the Act is constitutional.”

The President does not have the authority to issue “waivers” that amount to an amendment in the law.  Yet, President Obama has issued over 20 unilateral amendments (“waivers”) of the Affordable Care Act (ACA)—so many that the nonpartisan Congressional Budget Office recently concluded that in 2016, almost 90% of uninsured will pay no penalty because of various “waivers.”

Those who argue that President Obama has issued fewer Executive Orders than prior presidents miss the point.  The issue is not the number of Executive Orders; instead, the question is whether any statute authorizes them.  In the case of the ACA, there are a few instances where the law authorizes the President or another official to make some findings and issue rules, but there is no general power to amend the law or relieve some businesses or individuals from the insurance mandate.

The Issue of Judicial Standing

Who can challenge these “benign” waivers, which exempt the favored few from the law?  Recently, Wisconsin Senator Ron Johnson sued claiming that the Obama administration has no power to grant members of Congress and their staff subsidies to help pay for health insurance under the ACA. He argued that the Office of Personnel Management issued a regulation that makes members of Congress and their staffs eligible for employer-subsidized health insurance, but this regulation directly contradicts a provision of the ACA that requires that members of Congress and their staffs purchase their insurance on the individual exchanges set up under the ACA.  Congress enacted this provision because of voters who thought that chefs should eat their own cooking.  The district court rejected his lawsuit because of lack of standing.

If the Executive Branch gives Congress subsidies that the ACA forbids, who would have standing to sue?  Similarly, if the President rewrites the tax code to grant benefits to a favored few, who has standing?  At first look, the precedents suggest no standing.  We start with Raines v. Byrd (1997).  Raines held that an ad hoc group of Congress members does not have standing to file suit to declare a law unconstitutional simply because they voted against the bill and it became law anyway. In that case, a group of Congress members opposed the Line Item Veto, which Congress had enacted.  First, the Court reasoned, neither House of Congress “authorized [them] to represent their respective Houses of Congress in this action, and indeed both Houses actively oppose this suit.”  In addition, the Court explained, there are other possible plaintiffs waiting in the wings who would have standing.  In fact, the Court found standing and invalidated the line item veto in Clinton v. New York (1998), when such a plaintiff sued.

However, while Raines held that there was no standing in that case, its rationale indicated that a House of Congress does have standing if its claim is that presidential action has nullified the legislative power of Congress, particularly if (1) no other plaintiff has suffered the injury and (2) either or both Houses authorize the lawsuit.

That is what happened in United States v. Windsor (2013).  President Obama announced that he would not enforce a portion of the tax code that did not extend favorable estate tax treatment to the spouse of a same-sex married couple, after the Government lost the case at the trial court level.  The spouse benefitted because she received favorable tax treatment. The President instructed the IRS to extend the favorable tax treatment, and he instructed the Department of Justice to refuse to defend the relevant federal law on the appellate or Supreme Court level.  The Court held that the Bipartisan Legal Advisory Group (BLAG) had standing to defend the law.  First, House rules authorized this specific lawsuit. Second, there was no one else who defended the federal statute.  Finally, if the Court refused to recognize the injury to Congress as an institution, it would pose “grave challenges to the separation of powers for the Executive at a particular moment to be able to nullify Congress’ enactment solely on its own initiative and without any determination from the Court.”

Lower courts, both before and after Windsor understood that in a few cases, there is legislative standing: if (1) at least one House must authorize the lawsuit; (2) there is no obvious private party to bring suit (because the President has benefitted the private party by announcing that he has “suspended” or amended the law); and (3) the President’s action has nullified the legislative power of Congress.

For example, in 2008, D.C. District Court Judge John Bates found standing in the case before him (the House suit to enforce a subpoena against the Executive Branch). He specifically rejected the Executive Branch argument that “the Committee has not suffered a cognizable personal injury that is required for Article III standing.”  The court acknowledged that the litigants are “co-equal branches of the federal government.” Nonetheless, “at bottom this lawsuit involves a basic judicial task—subpoena enforcement—with which federal courts are very familiar.” There was no appeal because, after the elections of 2008, the D.C. Circuit granted the motion of petitioners to dismiss their appeals, voluntarily.

More recently, the Tenth Circuit, in Kerr v. Hickenlooper, held that Colorado state legislators have standing to claim that a state Taxpayer’s Bill of Rights, TABOR, violates the Guarantee Clause.  Whether the state legislators are right on the merits is, of course, a separate question.  The important point is that they have standing as legislators. In 1939, in Coleman v. Miller, the Supreme Court granted standing to Kansas state senators who argued that the state Lieutenant Governor could not cast a tiebreaking vote supporting a U.S. constitutional amendment, and that vote nullified the Senate’s will.


The rationale of Windsor supports standing for the new case that seeks to determine whether the President has the power to amend, change, “suspend,” or effectively repeal parts of the ACA.   There is no one else to bring this suit, unlike the case in Raines.  Moreover, the House has specifically authorized this suit (as in Windsor). The House’s complaint is that the President is nullifying the legislative power of Congress, similar to the complaint in Coleman. As Kerr pointed out, “plaintiffs have suffered a particularized injury not widely shared by the general populace that entitles them to have their case heard by the federal courts.”

We will have to wait until the Department of Justice files briefs to find out what legal defenses it will argue. Thus far, the President’s reaction is to belittle the lawsuit as a “political stunt.”  However the Court rules, this case should be a watershed in American Constitutional Law.  Can the President issue valid unilateral waivers?  If so, the next President could repeal all of the ACA simply by issuing waivers to everyone.

Ronald D. Rotunda is The Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence, Chapman University, The Dale E. Fowler School of Law. He is coauthor of six-volume Treatise on Constitutional Law: Substance and Procedure (5th ed., Thomson-West, St. Paul, Minn. 2012-2013), and Legal Ethics: The Lawyer's Deskbook on Professional Responsibility (ABA Thomson-West & ABA, 11th ed. 2013), a one-volume treatise on Legal Ethics.
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Is the University of California Wrong For Admitting More Non-Californians? Fri, 15 Aug 2014 04:01:23 +0000 Continue reading →]]> UC BerkeleyAs the fall semester approaches and college freshmen prepare to start school, there is renewed criticism of the University of California’s decision, implemented over the last few years at all or nearly all of the system’s campuses, to increase the number and percentage of out-of-state and international college students. The harshest criticism comes from those California students (and their parents) who are finding it increasingly hard to be admitted to UC campuses, especially the most competitive ones like UC Berkeley. Many of these students and parents worry that the University system, motivated by a desire to obtain out-of-state tuition monies, is admitting lesser qualified people from outside California in such a way as to displace more highly qualified California applicants who otherwise might be admitted. Critics feel this is a betrayal of the University’s basic purpose, which is to serve the needs of the State. After all, it was California citizens and taxpayers who created the UC and built it up into the best public higher education system in the world. In the space below, I try to debunk some of the myths and misstatements concerning this controversy, and to shed light on the crux of the problem.

The Factual Realities and Myths Underlying the Criticism

Let us begin with the basic factual claims critics often make. Some of these assertions are verifiably true. It is certainly the case that the UC seems intent on yielding more out-of-state and international undergraduate students at its campuses than it did years ago. For example, the system (according to reports in the Los Angeles Times and the San Francisco Chronicle) admitted around 3,000 more out-of-state freshmen in 2014 than in 2013, and in 2013 the number was higher than in 2012 by about another 1,000. Moreover, even as the number of admittees from outside the State is increasing, the number of admitted applicants who come from within California is holding steady or, at many campuses, dropping; only three campuses admitted more California residents in spring of 2014 than in 2013 (although some other campuses, like Berkeley, might have admitted additional in-state students off the wait list over the past few months.) And the percentage (as distinguished from the absolute number) of out-of-state and international students is also on the rise; the share of non-Californian undergraduates within the system nearly tripled from the 2007-2008 year (4.6%) to the 2013-2014 year (11.4%). Finally, it seems true that the additional revenue that students from outside California generate explains part of recent trends. Base tuition for in-state students is around $13,000/year, whereas out-of-state and international students are charged more than $35,000, and UC officials have themselves said that the additional revenue is helping the system.

But many of the key factual assertions made by critics are simply false. UC spokespersons have vehemently and repeatedly said that out-of-state admittees are more, not less, qualified (as judged by SAT scores, high school GPAs and other numerical metrics) than in-state admittees. That doesn’t mean that every non-Californian who was admitted had higher grades and test scores than every in-state applicant who was denied (because admissions decisions take account of other, non-numerical, qualitative factors like artistic or musical talent, etc.), but it does mean that, in the aggregate, the numerical credential bar is higher for applicants outside the State.

On top of that, non-Californians bring one credential that in-staters generally can’t: geographical diversity. Great universities pride themselves on drawing students from (and having name recognition and alumni contacts throughout) the entire nation and world. Such diversity adds to the mix of distinct outlooks on campus, and increases the range of opportunities for folks when they graduate. As UC spokesperson Diane Klein is quoted as saying: “Undergraduate and graduate students from throughout the United States and the world bring fresh perspectives and, in an increasingly interconnected world, help California students better prepare to operate in the global economy.” So (even granting that UC exists largely to serve the State) having more non-Californians may offer benefits to the Californians who are there. (The high quality and geographic diversity that out-of-staters bring may partially explain why many states that aren’t as large and diverse as California, like Michigan and Virginia, have for decades enrolled high percentages of out-of-state students in their flagship public universities.)

The Key Question of Whether More Non-Californians Means Fewer Californians

But perhaps the biggest mistake that critics make is to assume that having more out-of-state and international students means that fewer in-state applicants can be admitted. Precisely the opposite is often the case. The question isn’t whether the number of in-state admittees has been stagnant over time (that may very well be the case because of decreased funding by the State legislature); the question is whether the number of in-state admittees would be smaller still if non-Californians weren’t being admitted. Why might admitting non-Californians allow more Californians to be admitted? Because every non-Californian is charged an extra $23,000 in tuition beyond what in-staters are charged. And that money may more than pay for the out-of-stater, creating a surplus that can be used to subsidize an in-stater.

The UC has fixed costs (physical plant, tenured faculty, etc.) that it must pay no matter what, and variable costs (relating to non-tenured faculty and staff, utility expenses, healthcare and security obligations, insurance, etc.) that increase as the number of enrolled students rises. Because of fixed costs, the expense the University incurs, on the margin, in educating additional students may be somewhat smaller than its average cost-per-student. Of course, there may be an upper limit on how many students can fit within a campus. But there are also points on the spectrum where more students could be accommodated without major long-term infrastructural investment, provided we could find money to pay for the marginal (variable) costs of adding them.

For example, suppose that, at some point on the cost curve, the marginal cost of educating an additional student is about $24,000. Enrolling an additional in-state student alone at that point would not be feasible; she would cost UC another $24,000 but she would pay only $13,000 in tuition, yielding a deficit of around $11,000. But if an out-of-state student were enrolled, he would pay $35,000, which is enough to pay for his own marginal cost ($24,000) as well as the deficit created by the additional in-state student. So, in this simplified example, adding an extra out-of-stater increases the aggregate number (and perhaps also the percentage) of non-California enrollees, but does so in such a way as to allow for the enrollment of an additional in-state student who otherwise could not be admitted. Again, the relevant question (even for the critics) shouldn’t be how many in-staters and out-of-staters are being enrolled. Instead, it should be how many in-staters could be enrolled if we cut back on out-of-staters. And the answer is likely going to be: fewer than we have now.

Should In-Staters Be Given the Option of Paying Higher Tuition?

So it is clear that admitting persons who are are willing and able to pay a higher tuition can permit the University to accommodate additional persons who pay the lower tuition rate. All of this brings up the question: Why not offer admission to some of the in-state applicants who are currently being denied if these applicants are willing to pay the higher tuition rate? After all, if the problem is simply a lack of revenue (owing largely to reduced allocations from the legislature), why shouldn’t we give in-staters (whose parents and ancestors paid for the University) the first option to pay additional tuition, rather than offering those higher-priced slots to non-Californians?

Imagine, for example, that we said to the 500 in-state applicants who were denied admission to UC Berkeley but whose application files were the closest to making the cut (the first “500 out,” to use a March Madness Bracketology term): “You can come to Berkeley, but only if you are willing to pay a tuition rate higher than that being charged to other in-state admittees, who are slightly more worthy of admission than you are.” How would that go over? I have a few (preliminary) thoughts.

First, some might object to this approach because, as noted earlier, admitting in-staters who are willing to pay more instead of out-of-staters deprives the University of the ultra-high-quality students and geographical diversity that non-California enrollees are currently providing. But put these factors to one side. Imagine that out-of-state enrollees had the same grades and test scores as the “first 500 out” group I described above. And assume that, because California is almost a nation state unto itself, we already had sufficient geographic diversity without importing out-of-staters.

Even then, I suspect many folks would reject the approach I describe simply because it seems wrong to “sell” UC seats to Californians who have the money to pay for them. Among those “first 500 out,” only those families who can afford the higher tuition would be able to accept the offer, such that ability to pay would formally and openly become a criterion of admission. And that is in conflict with the notion that access to a slot in the UC is supposed to be based on your talent, your hard work and your performance, not on your parents’ bank account. (Charging out-of-staters higher tuition doesn’t quite raise this conflict, because their higher tuition is justified not by their lesser qualifications but rather by their lack of investment in the system—a perfectly reasonable factor to use in setting tuition—and thus need not be thought of as “selling” seats to lesser qualified folks the way charging more to some in-state enrollees than to other in-staters, based on the strength of their admissions files, would.)

Notice that there are some public areas, such as toll roads and (now) security lines at airports, where we have allowed people to gain special access if they are willing and able to pay for it. But we may tolerate such commodification in these settings because we don’t think of allocating resources in these arenas as involving a meritocratic assessment the way we conceive of college admissions. We also don’t think of roads and airports as gateways to economic mobility the way higher education has been billed. As a result, letting people buy their way out of car traffic and long boarding lines doesn’t require that we confront—and grapple with the inaccuracy of—deeply held and desirable societal values such as the notion that college ought to be equally available to anyone who has the talent and work ethic to pursue it.

A generation ago, Guido Calabresi (who was a professor and then Dean of Yale Law School and who now is a federal appellate Judge) and Phillip Bobbit (a law professor at The University of Texas School of Law) wrote a book called “Tragic Choices,” in which they discussed how difficult it is for society to move from a bureaucratic or professionalized allocation of scarce resources (the way university admissions typically operate) to a market-based approach, when doing so starkly exposes the frailty or falsity of important societal ideals (like equal educational access). We all know that at some important level family wealth makes access to college easier (and lack of wealth makes college for many quite difficult), but explicitly selling off UC slots to wealthy in-staters would require us to confront unpleasant truths in a way that we may not simply be able to handle.

Private universities can (and sometimes do) take a student’s ability to pay into account at the admissions stage, and many such universities do admit less qualified yet wealthy applicants. But these institutions get to make their decisions outside the public view. Importantly, because of transparency requirements concerning public college admissions and tuition-setting processes (which reflect another deeply held societal norm—that public institution operations should be visible), there is no easy way to sell UC seats without everybody seeing exactly what is being done. That may be why (as far as I am aware) no high-level policy-makers in California have seriously floated the approach I discuss here.

Notice also that selling off some UC seats to wealthy in-staters might allow significant numbers of additional poor or middle class Californians to attend (so long as the sales price exceeds the marginal cost of educating the wealthy student.) Indeed, one could imagine a scenario in which UC seats would be auctioned so that a few mega-wealthy but less qualified applicants would end up subsidizing large numbers of lower or middle class enrollees. So if our focus were merely on increasing the absolute number of highly qualified lower or middle class Californians who could be accommodated within UC, a regime in which the University sold or auctioned off seats might have some upside. But that regime would do major damage to important societal ideals.

Finally, notice that these tradeoffs between the accomplishment of pragmatic goals and the preservation of (sometimes unrealistic but nonetheless attractive) societal values are not always static. During the Civil War, for example, draftees were able to buy their way out of military service by hiring people to take their places. Today, we would (rightly) find such a practice abhorrent; we would not permit it because it would expose too starkly the (persistent) reality that it is the poor who are ultimately forced (by economic distress) to bear the brunt of fighting our wars. In suggesting that things change over time, I am not predicting that UC seats will be formally commercialized anytime soon. But I will point out that many folks, myself included, did not fully foresee all the changes in public higher education funding (especially as to professional schools) that have taken place over the last two decades. And I could imagine ways of possibly moving toward the approach I describe above without seeming to sell seats so explicitly—for example, charging all in-state admittees a higher tuition but giving all but the last 500 admitted a “merit” scholarship so that the net price for almost everyone remains unchanged. Indeed, many public law schools—whose state subsidies were cut earlier and more deeply than those at the corresponding public undergraduate institutions—have moved to this kind of model. Some public colleges may end up following suit to address their revenue problems, even though many of us would favor restoration of legislative funding even more. So never say never.

Vikram David Amar, a Justia columnist, is the Associate Dean for Academic Affairs and Professor of Law at the University of California, Davis School of Law. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.
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College Sports Should Be Treated as a Source of Funding for Nonprofit Universities, Not as a For-Profit Business Thu, 14 Aug 2014 04:01:59 +0000 Continue reading →]]> Football ScholarshipWithin the last few weeks, the world of college sports has been rocked by two major developments, one internal and one external. First, the NCAA, the governing body for college sports, changed its rules to allow the members of the five biggest athletic conferences to spend more money on their football programs than the smaller and poorer universities are allowed to spend. Then, before that decision could even be digested, a judge issued a ruling in the O’Bannon case, invalidating the NCAA’s rule that prohibits players from receiving compensation for the use of their images in video games.

The O’Bannon decision is creating great consternation, because the judge’s ruling opened up a large number of important questions, while providing only vague hints as to how to answer them. Everyone involved in the case, and commentators across the country, were left scratching their heads. And while the NCAA’s new internal rules are at least clear on their face, no one seems to agree on the implications for college sports going forward. All of this, moreover, is happening only a few months after a federal ruling that has raised the possibility that college football (and maybe basketball) players could form and join labor unions.

Rather than try to parse the nuances of those recent developments—as important as they are—in this column I will instead focus on a broader issue. There is a continuing misunderstanding about the very nature of college sports, with a presumption that the ever-larger amounts of money involved automatically make college football and basketball professional sports in all but name.

However, when people unthinkingly apply a for-profit approach to college athletics, I think they have made a serious mistake, a mistake that causes considerable confusion in thinking about the many issues facing college sports. That confusion begins, in large part, with a simple misunderstanding of two basic financial terms: revenues and profits.

Revenues and Profits: How Can a Billion-Dollar Business Not Be All About Making Money?

As I have perused the discussions of the NCAA’s recent developments, cynical comments are often preceded by the claim that college football and basketball are “money makers,” with the universities greedily refusing to share their “profits” with the players. From there, the claim is that the players are being exploited, while someone else earns all of those profits.

For example, a friend recently asked whether it bothered me that universities are “making money” from the efforts of supposedly unpaid athletes. I have to admit that, although I am certainly worried about the wellbeing of college athletes, I found it strange indeed to hear the situation described as a matter of economic exploitation, with evil universities purportedly making money at the expense of exploited laborers.

People are understandably impressed by the large amounts of revenues that universities receive from television networks, merchandise sales, and so on. But there is a huge difference between profits and revenues. If a person were to take a look at the amount of money flowing through, say, the United Way, the numbers would make her eyes pop. Millions upon millions of dollars show up in the accounts of nonprofit organizations every year, and something close to the same amount of money flows out again. That is what makes them nonprofit organizations. The whole point is to collect money and then to use that money for tax-exempt purposes, such as supporting educational, charitable, and cultural endeavors.

The institutions involved in college sports are, with one unimportant exception noted below, legally organized as nonprofits, and for good reason. To take two prominent examples, neither UCLA (a public university) nor Stanford (a private university) is “in business,” even though much of what they do generates huge cash flows that those universities then use to fund their various activities. Both universities field football teams that are highly competitive (both of them playing in the Pac-12 Conference, which is one of the elite 5 conferences that will now play under different rules). But neither university exists to earn profits for a set of owner/shareholders. (The sole exception to the general rule that institutions involved in college sports are nonprofit organizations is Grand Canyon University, which announced in 2012 that it would join the Western Athletic Conference, making it the first for-profit university to compete in Division I.)

This means that commentators are generally thinking about college football through the wrong lens. The right question is not, “Why are universities allowed to earn profits from sports?” but “What rules should apply when a nonprofit university collects revenues from its athletic programs?” The framing of the question can fundamentally alter the answers that we might reach.

The Nonprofit Model and the Modern College Sports Colossus

Upon hearing a claim that college football and basketball programs are “nonprofit,” skeptics will inevitably object that this cannot possibly be accurate. Surely, these skeptics will insist, there are people getting rich from college sports, but it is not the players. Just look at all the money sloshing around!

Other than the general suspicion that money equals corruption, the two most common complaints are that the coaches and the university presidents are the ones who are “jealously guarding their profits.” But both of these groups of people should be covered by the rules governing nonprofits, which limit the compensation of highly compensated members of an organization. If they are not, or if those rules are not being enforced, then the answer is not to increase the costs of running football programs but to treat these individuals correctly under the nonprofit model.

Even if there are some highly compensated people at the top of the pyramid, moreover, this is not a reason to abandon the nonprofit approach. There are plenty of nonprofits that rely on volunteer workers, but that also have fairly well paid executives (as well as some paid staff). There is nothing inherently wrong with running a nonprofit organization by relying on largely uncompensated effort that is managed by some fairly well-paid professionals.

If a university is using its revenues (net of reasonable administrative costs) to support its core mission of education, then that is an entirely appropriate way for a nonprofit organization to run any revenue-generating activity. If it is not, then the answer is to tighten those rules and their enforcement, not to treat nonprofit universities as if they are for-profit corporations, merely because a lot of money is flowing into and out of their bursars’ offices.

The Compensation of College Athletes: Cynicism and Reality

To be clear, it is ever more important to remind ourselves that college players are, in fact, compensated. As I wrote in a Verdict column in December 2013, there is a strange tendency even among the most respected sources to call college athletes “unpaid,” because the NCAA does not allow players to receive cash wages or salaries. What they do receive, however, is potentially much more important: cost-free access to a college education.

As I argued in that earlier column, the belief that full-ride scholarships—covering tuition, room and board, and expenses, the aggregate of which can be worth as much at a quarter of a million dollars over four years—are somehow not “compensation” seems to betray a certain anti-intellectualism. Yeah, we seem to say, education is good, but cold hard cash is better.

But perhaps there is a further explanation for people’s cynicism. After all, there is plenty of anecdotal evidence that some college players are not receiving a real education. The football players at Northwestern University who won the preliminary ruling allowing them to unionize complained that the amount of time spent on football made it impossible for them to be real college students. Although the evidence shows that Northwestern has one of the highest graduation rates in all of college football every year, a former starting quarterback complained that he was forced to change majors, preventing him from achieving his dream of becoming a physician.

Even worse, there are periodic scandals involving players who take fake courses, or whose papers are written by graduate assistants, or who are given inflated grades when coaches put pressure on professors to allow athletes to slide through on little or no work.

Let there be no mistake, none of these things is acceptable. The question, however, is whether these problems somehow support the argument that the players fundamentally deserve to be paid in money, because the value of the non-pecuniary educational benefits are (at least for some) not as large as we would hope. That would not be the appropriate conclusion to draw.

Let us imagine, completely against all of the evidence, that no college football or basketball players received any value at all from the education that they are supposed to be receiving as student-athletes. Even so, they are still given free room and board, and in almost every university in the country, those accommodations are spectacularly comfortable.

Moreover, the athletes are being given the chance to audition for a career in professional sports. Although only a tiny fraction of college athletes ever cash a professional paycheck, the simple opportunity to try to make it at the highest level is priceless, in the eyes of many of these young athletes.

The other complaint about universities’ use of revenues, after all, is that they have become engaged in an arms’ race, trying to outdo each other with ever more lavish training facilities. As a matter of running a nonprofit operation, this is actually a bad practice, and it should be reined in. But it also sheds quite a different light on the idea that universities are somehow “profiting” at the expense of the athletes. These gilt-edged facilities make the four years of athletic eligibility even more appealing and comfortable to the athletes, and they also maximize players’ abilities to audition for the professional leagues.

Again, the nonprofit model does not require compensation for “work,” but universities are in fact offering compensation in various forms, at the very least allowing a tiny cadre of student-athletes to experience four years of college in ways that no one else will ever know.

And although it is not even required that universities provide adequate health and disability insurance for “workers” who generate revenues through these dangerous activities, I am pleased to see that some “football factories” are finally seeing the wisdom and humanity of providing better insurance coverage. If the other students at the university are going to benefit from the revenues generated from the big-time sports programs, it at least seems only fair that the young adults whose bodies are being broken and beaten should be able to walk and think when the last whistle is blown.

The Myth of Big Profits in Athletic Programs

Finally, one must go back to the basic question of just how much money is being generated to support the nonprofit enterprise at the heart of a university. The discussion above implicitly presumed that the athletic programs are bringing in so much revenue that they are subsidizing the rest of the universities’ activities. This is not, in fact, true.

In 2012, only 23 out of 228 public universities had athletic departments that avoided being revenue drains to their universities as a whole. Even if it made sense to think of these universities as profit-seeking enterprises, therefore, they would be among the worst capitalists ever.

Indeed, the psychic benefits that citizens and state legislators receive from big-time sports programs must be rather substantial, because universities are getting taxpayers to spend extra money to support even mediocre sports programs. At Rutgers, for example, the people of New Jersey (and the students who pay millions of dollars in extra fees to support the athletic department) regularly pay millions of extra dollars above and beyond whatever money the football and basketball teams are taking in from TV, ticket sales, and so on.

In short, the presumption that large revenues automatically lead to large surpluses is simply wrong. And even where it is true, there need be no reason to condemn a system in which one part of the nonprofit enterprise generates money for the rest of the nonprofit enterprise.

The recent developments in college sports, which I noted at the beginning of this column, are pushing universities further and further into a spending race in which a wages-and-profits model is displacing a revenues-for-nonprofits model.

Some people argue that there is now too much money involved in big-time college sports for us to indulge in the quaint fantasy of amateurism. In fact, there is too much money involved for us not to insist that the system truly lives by the rules of nonprofit organizations. When universities actually use sports-generated funds to support higher education, that is to be applauded, not dismissed as either cynical exploitation or misplaced idealism.

Neil H. Buchanan, a Justia columnist, is an economist and legal scholar, a Professor of Law at The George Washington University, and a Senior Fellow at the Taxation Law and Policy Research Institute, Monash University (Melbourne, Australia). He blogs at, and he is the author of The Debt Ceiling Disasters: How the Republicans Created an Unnecessary Constitutional Crisis and How the Democrats Can Fight Back.
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Academic Freedom in the Salaita Case Wed, 13 Aug 2014 04:01:49 +0000 Continue reading →]]> TwitterA recent decision by the University of Illinois at Urbana-Champaign to revoke the offer to Steven G. Salaita of a tenured faculty appointment raises important questions of academic freedom. Although Salaita had been told that final approval of his appointment by the university’s board of trustees was essentially a foregone conclusion, the university refused to finalize the appointment—apparently in response to Salaita’s strongly worded tweets criticizing Israel’s conduct of military operations in Gaza.

The case is rich in irony and apparent hypocrisy on both sides. Less than a year ago, Illinois Chancellor Phyllis Wise reaffirmed the university’s commitment to academic freedom as a “core principle” in touting “the critical importance of the ability of faculty to pursue learning, discovery and engagement without regard to political considerations.” That statement was issued to explain why the university opposed an academic boycott of Israeli institutions. Salaita, for his part, has been an outspoken supporter of that boycott.

Nonetheless, Salaita’s case is—or should be—relatively easy. Academic freedom and freedom of speech protect all viewpoints, even those that are hostile to academic freedom or freedom of speech. Moreover, as I explain below, none of the peculiarities of Salaita’s case justifies the university’s revocation of its offer.

Failure to Hire Versus Firing

Some​ supporters of the university’s decision point to the often-important distinction between firing and not hiring. Academic freedom, they point out, is mostly a matter of contract law, and because Salaita had not yet been formally hired by the University of Illinois, he was not entitled to the same protection as someone who was already a member of the faculty.

But that view appears to be false as a matter of contract law. Like many other states, Illinois law offers protection to people who, in reasonable reliance on an offer that falls short of a fully enforceable contract, take actions to their detriment. The Illinois Supreme Court affirmed this principle of “promissory estoppel” as recently as 2009, in the case of Newton Tractor Sales v. Kubota Tractor Corp.

Salaita has an almost-classic case of promissory estoppel. He was told by Illinois that trustee approval was essentially a rubber stamp, and in reliance on that representation he resigned from his prior position on the faculty of Virginia Tech.

To be sure, a party who sues for promissory estoppel rather than suing under a formal contract typically only recovers to the extent of his reliance, rather than in strict accordance with what he expected to gain under the contract. But here, there is no real difference between what contract law calls the reliance interest and the expectancy interest: By giving up his position at Virginia Tech, Salaita gave up a job in which he had academic freedom; thus, recognition of his promissory estoppel claim should mean that Illinois must afford him academic freedom.

There is a further wrinkle, however. I have assumed that Illinois law governs this dispute over whether an Illinois university breached its obligations, and under standard choice-of-law principles that is very probably correct. Still, it is conceivable that Virginia law governs, as Salaita’s act in reliance on the representation of a tenured offer occurred in Virginia. And pursuant to a 1997 ruling of the Virginia Supreme Court, that state does not recognize liability for promissory estoppel.

The First Amendment

Yet even in the unlikely event that Virginia rather than Illinois law governs the contractual issues, Salaita could still have a valid claim, under federal constitutional law.

Academic freedom in private colleges and universities is entirely a matter of contract law, but state institutions—like the University of Illinois—are also bound by the First Amendment. And as the Supreme Court explained in the 1967 case of Keyishian v. Board of Regents, academic freedom is “a special concern of the First Amendment.”Whether the university violated the federal First Amendment by, in essence, punishing Salaita for his speech on a matter of public concern, should not simply depend on whether state contract law happens to recognize the doctrine of promissory estoppel.

Furthermore, even apart from its protection of academic freedom, the First Amendment also limits the ability of public employers to make hiring decisions based on hostility to a particular viewpoint. As the Supreme Court explained in the 1990 case of Rutan v. Republican Party of Illinois, “conditioning hiring decisions on political belief and association plainly constitutes an unconstitutional condition, unless the government has a vital interest in doing so.”

The government does have vital interests in ensuring that high-ranking policy officials stick to the party line. Thus, if Salaita had been under consideration for a position as a diplomat in the State Department, his outspoken views on the Israeli/Palestinian conflict could be disqualifying. But professors are not spokespeople for the government. Thus, even without the contractual protection of tenure and apart from considerations of academic freedom, a university may not choose to deny a job to a professor based on political disagreements, as the Supreme Court ruled in the 1972 case of Perry v. Sindermann.

Accordingly, it appears likely that either as a matter of state law or the federal Constitution, Salaita was entitled to keep his position at the University of Illinois.

Extracurricular Statements

Does that conclusion make sense? Putting aside the freestanding First Amendment issues, one might think that academic freedom should only extend to a faculty member’s speech in an academic capacity. After all, the point of academic freedom is to encourage free inquiry within the academic environment.

But in fact academic freedom has generally been seen to be much broader. The American Association of University Professors (AAUP) 1940 Statement of Principles of Academic Freedom and Tenure sets out the general understanding of academic freedom. It proclaims that when professors “speak or write as citizens, they should be free from institutional censorship or discipline.”

And for good reason. As the Illinois AAUP recently noted in connection with the Salaita controversy, “the virtual classroom today has no limits.” Universities benefit from their faculty playing the role of public intellectuals, which now frequently means using social media like Twitter.

Profanity, Restraint, and Respect

The 1940 Statement also says that in speaking to the public, faculty “should at all times be accurate, should exercise appropriate restraint, [and] should show respect for the opinions of others.” Salaita pretty clearly did not heed this warning.

For example, in one tweet, he admonished: “Zionists, take responsibility: if your dream of an ethnocratic Israel is worth the murder of children, just fucking own it already.” He also wrote that “by eagerly conflating Jewishness and Israel, Zionists are partly responsible when people say antisemitic shit in response to Israeli terror.”

At the very least, the use of profanity demonstrates a lack of restraint, and the tone of Salaita’s tweets is hardly respectful of those who hold different views. But it is hard to believe that Salaita’s offer was revoked solely because of the profane language or tone of his tweets, without any regard to the viewpoint they expressed.

Moreover, the 1940 Statement does not say—and no one seriously argues—that a professor’s academic freedom is contingent on university administrators’ determination whether he exercises restraint and speaks respectfully. These obligations are so vague that they must be understood to be subject only to self-monitoring. Any effort by university officials to police them would inevitably risk censorship and chill robust expression of controversial views.

Concern for Student Sensitivities

Some people have suggested that Illinois acted legitimately out of concern for the sensitivities of the students who would take Salaita’s classes or otherwise encounter him on campus. This strikes me as the best justification for the university’s action, but it too falls short.

Let me begin, however, by acknowledging that extracurricular statements are relevant to an evaluation of a university professor’s fitness. It could be argued that because Salaita’s tweets occur outside of the classroom, they are not relevant to an evaluation of his impact on students. Yet that approach would allow Salaita to have his cake and eat it too. If academic freedom protects statements on social media because the virtual classroom has no barriers, then conversely, such statements make their way into the classroom as well, even if an instructor makes no overt reference to them while teaching.

Thus, it is possible in an extreme case for a faculty member’s external statements to render him or her unfit to teach. Overtly insensitive and repeated racist, sexist, or homophobic statements might fall into this category. But in order for the concern for student sensitivities not to swallow up academic freedom, the threshold must be very high.

Did Salaita cross that threshold? In short, no.

For example, in blaming Israel for contributing to antisemitism, Salaita pretty clearly disavows antisemitism himself: Someone making overtly antisemitic remarks would not refer to such views as “antisemitic shit.” One can disagree with Salaita’s causal claim, just as one can disagree with the structurally similar causal claim by some opponents of race-based affirmative action that it entrenches racism. However, that does not convert a statement about the causes of antisemitism or racism into a statement that is overtly racist or antisemitic.

Likewise, some of Salaita’s other statements merely use provocative language to make points that others have made more prosaically. For example, by referring to Israel’s “murder of children,” Salaita ignores the evidence that, by contrast with Hamas, Israel does not deliberately target civilians. But so what? Salaita can readily be understood to be making the point that there is no real moral difference between foreseeably causing large numbers of collateral civilian casualties and intending those civilian casualties. Again, one can disagree, but then we are in the realm of legitimate debate. And indeed, although I see the Israel/Palestine conflict as substantially more complicated than Salaita does, I myself have considered an analogy between Israel’s use of force in Gaza and homicide in domestic law.

Thus, even if one were to conclude that Salaita’s tweets are “loathsome,” “sophomoric,” and “irresponsible,” they remain an exercise of academic freedom, notwithstanding how they might be received by students and others. The characterizations I have just quoted come from Cary Nelson, an English professor at Illinois and a recent past president of the AAUP. Nelson argues that Illinois was justified in revoking its offer to Salaita, but his argument turns entirely on the assumption that Salaita was not entitled to be treated as already a de facto member of the Illinois faculty with academic freedom. Yet, as we have seen, that assumption is probably false. If Salaita is treated as a de facto faculty member, then even Nelson acknowledges that his tweets would be protected by academic freedom.

Finally, although it should go without saying, let me be clear that in criticizing the university’s decision to revoke Salaita’s offer, I am not endorsing either the content of his views or the manner in which he expressed them. That basic premise of free speech and academic freedom should go without saying, but in light of the university’s treatment of Salaita, apparently it needs to be said.

Michael C. Dorf, a Justia columnist, is the Robert S. Stevens Professor of Law at Cornell University Law School and the principal author of The Oxford Introductions to U.S. Law: Constitutional Law. He blogs at
]]> 29 0:11:58 Cornell University law professor Michael Dorf discusses a recent decision by the University of Illinois at Urbana-Champaign to revoke an offer to Steven G. Salaita of a tenured faculty appointment after Salaita tweeted strong criticism of Israel’s c[...] Cornell University law professor Michael Dorf discusses a recent decision by the University of Illinois at Urbana-Champaign to revoke an offer to Steven G. Salaita of a tenured faculty appointment after Salaita tweeted strong criticism of Israel’s conduct in Gaza. Dorf explains why the University’s decision presents serious issues of academic freedom and free speech, and even contract law. no no
Thoughts On Nixon’s Resignation Sun, 10 Aug 2014 04:01:48 +0000 The Nixon Defense: What He Knew and When He Knew It. As Dean explains in this adapted preface to the book, the narrative is based on actual White House recordings of Watergate-related activities, which Dean himself listened to and transcribed. Continue reading →]]> Forty years ago yesterday, August 9, Richard Nixon resigned as President of the United States. As I was working on my regular bi-weekly column the day before yesterday, flying at 35,000 feet from Dallas to Los Angeles on a nine city book tour, I thought I would write about the man for whom I worked from over a thousand days, since it was my testimony about his criminal activities that led to that resignation.

About halfway through the column it occurred to me that since I had spent the last four years researching exactly what Nixon had done, and why, a book that has been described by presidential historian Robert Dalleck as “the definitive historical record” of this scandal, a book that Washington Post reporter Bob Woodward, who has been writing and talking about this subject for 42 years, called a “generally dispassionate” and “microscopic” examination of the events that brought down the president, I had another thought.

There is nothing I can say that tops what I set forth in The Nixon Defense: What He Knew and When He Knew It. Accordingly, I decided to condense the book’s Preface for this column. I wrote this book for two audiences: Those who lived through these events but did not get the answers to the key questions about Richard Nixon’s role in Watergate, and those to whom this is ancient history, and who may be wondering why the national media has made the note they have made of Nixon’s resignation. This material that follows will not answer those questions but the book it introduces will do so. Needless to say I was pleased to learn that five days after publication the book has made national bestseller status.


The Nixon DefenseThe report of the arrests in the early morning hours of June 17, 1972, of five men who had broken into the Watergate complex offices of the Democratic National Committee (DNC), wearing business suits and surgical gloves, their pockets stuffed with hundred-dollar bills, was something like a scene from a circa 1940s low-budget black-and-white gangsters B movie. This caught-in-the-act stupidity seemed too dumb to be ours, since the undertaking was so conspicuously illegal and inexplicably risky, not to mention obviously bungled. But this political surveillance debacle did turn out to be ours, the work of a ham-fisted team of amateurs assembled by G. Gordon Liddy, a former Nixon White House staff member who was then serving as general counsel of the finance operation of the Committee to Re-elect the President (CRP). This was, in fact, the opening scene of the worst political scandal of the twentieth century and the beginning of the end of the Nixon presidency. It was the start of Watergate, a story that has been told and retold, but never as I am going to tell it in the pages that follow.

The central character in Watergate was, of course, the President of the United States, Richard Nixon. From beginning to end Nixon sought to defend himself and his presidency from the political and legal consequences that followed the arrests at the DNC on June 17, 1972. This is the story of Nixon’s defense, the story I found when trying to understand how someone as politically savvy and intelligent as Richard Nixon, a man who surrounded himself with those he thought the best and brightest, allowed this “third-rate,” bungled burglary to destroy his presidency. The story of the Nixon defense is Richard Nixon’s Watergate story.

Most of Nixon’s Watergate-related activities were secretly self-recorded. These surreptitious recordings eventually revealed that his public Watergatedefenses were colossal deceptions, patent lies that eventually forced his resignation. Nixon’s secret recordings provided much of the overwhelming evidence that sent his former top advisers to prison, not to mention forced his own early retirement. So some of this story has been around for several decades. Investigators and prosecutors, however, were not interested in the context and circumstances of Nixon’s ill-conceived defensive efforts; rather, they focused only on select portions of conversations that could provide evidence establishing wrongdoing beyond a reasonable doubt, so as to end any malfeasance and punish malefactors. Historians, in recounting the Watergate story, have relied largely and almost exclusively on the information gathered by the Watergate investigators and prosecutors. Remarkably, historians and other students of the Nixon presidency have chosen to ignore the full collection of secretly recorded White House conversations relating to Watergate, which slowly but surely have become almost fully available over the past four decades.

Before now, no one has attempted to catalog and transcribe all of Nixon’s Watergate conversations, and to examine and reconstruct this history based on this primary source material, the likes of which has never before existed. The account in the pages that follow is based on this unique collection, and it is presented not as transcripts but rather as narrative and dialogue drawn from and based on them. The story that follows is a first-person account of what I found in this unique historical record. In telling this story I have only edited the transcripts to make them readable and understandable, correcting the obvious anomalies that inevitably occur in spontaneous conversations and often compressing material to report its essence. (Footnote omitted.) Almost all the conversations from which this account is drawn are now available online. (Citations omitted.)

The Nixon defense—both legal and political, because they were inseparable—was assembled behind closed doors in a process that began in the days following the arrests at the Watergate headquarters of the Democratic Party. The first public statement of a defense was made by Nixon on June 22, 1972—that nobody in his White House was involved in this bizarre incident—and Nixon’s final firewall explanation of his defense was issued eleven months later, on May 22, 1973; the latter followed the firing of his top aides, including your author, who had become the centerpiece of his defense. Because I was deeply involved in and later the focus of the Nixon defense, I always hoped someone else would tell this story. I also understood such an undertaking meant the not easily accomplished task of transcribing all of Richard Nixon’s Watergate conversations. Of course, we knew the broad outlines of his activities that led to his resignation, and he did provide some additional details in his memoir. But he, too, relied primarily on conversations that had been transcribed by investigators and prosecutors, leaving most of the historical facts buried in his secretly recorded conversations. Having now transcribed all those conversations, and grasping the content of the newly transcribed material, I understand why he wanted no more information than was already easily available made public, for while this additional information explains many of the activities he was responsible for, those rationales do not redound to Richard Nixon’s glory.

The National Archives and Records Administration (NARA), which Congress charged with the preservation of this historical Nixon material, has prepared, and continues to update and refine as it has released more of the Nixon recordings, a detailed “subject log” highlighting all the content of all the recorded conversations. This can be used to identify topics and the persons addressed, along with times and dates. No one has ever bothered to identify all the Watergate conversations that can be located with these subject logs. Today that can be done digitally. When I did it in 2009, I had to do it manually, which took several months, although given the volume of material, even today it would take almost as long. Depending on how you count them—as it is not always clear when one conversation ends and another begins—there are approximately one thousand Watergate-related conversations. Some of them run only minutes while others run many hours.

In summary, I found (roughly) 447 Watergate conversations had been transcribed. Most were only partials, but a few were of complete conversations, plus the material used in Nixon’s memoir. (More specifically, I found 80 Watergate conversations transcribed by WSPF; 47 by the White House, including those re-transcribed by the House Judiciary Committee; and 320 by Stanley Kutler.) Based on my list of all Watergate conversations, this meant that 634 conversations had never been transcribed by anyone, nor likely even listened to by anyone outside the NARA staff involved in processing them for public release (i.e., removing information that is classified for national security or designated personal/private, such as most of the conversations between the president and his wife or daughters). Because all these transcripts were prepared from analog recordings, and most are only partials, I realized I needed to start from scratch and prepare transcripts of all the conversations myself to really be sure I understood what had occurred. There are good reasons no one had done this. Not only was it not easy to obtain digital copies of it all, but even with them, it is challenging work.

The conversations fall into four general categories, which give form to this story. While not every conversation is quoted, they were all reviewed to write the following: Part I, Covering Up, is based on 35 conversations that occurred between June 20 and July 1, 1972; Part II, Containing, on 158 conversations held from July 2, 1972, through December 1972; Part III, Unraveling, on 110 conversations from January 1973 to March 23, 1973; and Part IV, The Nixon Defense, on 669 conversations from March 23, 1973, to July 16, 1973, when the recording system was dismantled. To give a full picture, other information relevant to the break-in is reported in the Prologue. The Epilogue summarizes events after the recording system was disconnected, on July 16, 1973, when Watergate became Nixon’s fight to prevent the disclosure of his tapes, among other battles. In telling this story, 01which has much new information with which I certainly was never familiar, as a general rule I have not tried to highlight it as such; rather, I have allowed the story to unfold as it happened, only occasionally noting extraordinary new material.

These recordings also largely answer the questions regarding what was known by the White House about the reasons for the break-in and bugging at the Democratic National Committee headquarters, as well as what was erased during the infamous 18 1⁄2-minute gap during the June 20, 1972, conversation and why. Because these questions have had enduring public interest, they are addressed in Appendices A and B. (Appendix C is a listing of Nixon’s Watergate-related recorded conversations, as well as other data. Citation omitted.)

Finally, in assembling this story I have not, except in a few instances, recounted my own involvement in these events, as I already have, first in testimony (in 1973 and 1974) and later in my autobiographical account, Blind Ambition: The White House Years, which was published in 1976. However, when listening to these secretly recorded conversations, or in reading the transcripts, I have recalled countless facts and actions I had forgotten, for the recordings provide information that was not previously available to me. Accordingly, I have, from time to time, flushed out some autobiographical details, usually in endnotes or footnotes, but occasionally in the narrative as well.

John W. Dean, a Justia columnist, is a former counsel to the president.
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The Circle Starts to Close: The Religious Freedom Restoration Act, Abortion, the Catholic Bishops, and the Satanic Temple Thu, 07 Aug 2014 04:01:00 +0000 Burwell v. Hobby Lobby Stores Inc. Hamilton describes the Catholic bishops’ apprehension toward the Religious Freedom Restoration Act (RFRA) when it was being considered over twenty years ago and how quickly they got behind it after it passed. Finally, Hamilton describes how clear it is now that RFRA cuts both ways. Continue reading →]]> Sword of JusticeWhen the Religious Freedom Restoration Act (“RFRA”) was first being considered over twenty years ago, the Catholic bishops did not jump in to support it with both feet. They were concerned it would be invoked by some believers to create an avenue to obtain abortion on demand.

The General Counsel to the United States Catholic Conference at the time, Mark Chopko, testified before the House Committee on the Judiciary a year before RFRA was first enacted in 1993 that the bishops were concerned that RFRA might “be used to promote access to abortion.” He predicted that abortion rights claims would be made under RFRA and worried aloud: “Even if only a few claims to obtain abortions do succeed under [RFRA], what restraint will remain on district and state attorneys to deny abortions to others who offer affidavits conforming their claims, beliefs, and motions to the prior successful claims? These claims will be numerous and far-reaching in their impact.”

For the bishops at the time, the “lives of the unborn [were] too important to put at risk under [RFRA].” In other words, regardless of all the other religious agendas to defeat certain laws, like fair housing laws, the bishops were intent on opposing RFRA unless it contained an exception for the abortion laws. Before the Senate Subcommittee on the Judiciary, he added that he was concerned “whether RFRA can be used to upset even moderate abortion regulation.”

Obviously, they did not succeed on this score. No abortion law exception was inserted into RFRA. Nor did the bishops wait long following RFRA’s enactment to invoke its advantages when it suited its interests. It was the Catholic bishop of San Antonio, Texas, who brought the early RFRA lawsuit to overcome the historic preservation laws of Boerne, Texas, that eventually rendered it unconstitutional in Boerne v. [Archbishop] Flores.

Their enthusiasm for RFRA is at an all-time high now as the bishops and Catholic institutions generally are sinking who-knows-how-much money into lawsuits invoking RFRA to prevent all of their employees and students from receiving cost-free contraception coverage.

The bishops may now be ruing the day they lost the legislative battle to keep abortion laws from being subject to RFRA, and the evangelicals, who were on board RFRA from day one, may now wonder what they have wrought with RFRA. Their problem is that RFRA does not and cannot (consistent with the Constitution) provide its extreme standard solely to some religious believers and not others.

Enter the Satanic Temple

The Satanic Temple is famous for its offer to install a statue of Satan to join the Ten Commandments monument on the Oklahoma state house grounds. The ACLU is litigating the Ten Commandments monument, though, which put the application for Satan on hold, but a sculptor is at work nonetheless.

Now it has entered the picture following Burwell v. Hobby Lobby, arguing state informed consent restrictions on abortion—which can include misleading health information in addition to advocating for the woman to make any other choice—violate its religious beliefs. As I have explained elsewhere, it was inevitable that believers could and would raise arguments under RFRA that undermine the agendas of many of those behind it. Now it is worth examining closely how the evangelical Green family of Hobby Lobby paved the way for the Satanic Temple.

Hobby Lobby and the Satanic Temple on Abortion

The RFRA doctrine raises four issues: (1) is the entity protected by RFRA; (2) is the believer sincere; (3) does the law impose a substantial burden on the believer; and (4) can the government prove that the law serves a compelling interest (5) in the least restrictive means?

There is a federal RFRA applicable to federal law and the District of Columbia, which was at play in Hobby Lobby, and some states also have state RFRAs, that have similar features.  The federal RFRA could be invoked by pro-choice believers against the Partial-Birth Abortion Act, which was based on unreliable medical science and disregarded women’s health, as Justice Ginsburg’s dissent in Gonzales v. Carhart established.   State informed consent laws could also be attacked through a state RFRA.   The following focuses on the Satanic Temple’s reference to informed consent laws, but the reasoning applies equally well to the Partial-birth Abortion Act and other federal laws that burden access to abortion as well.

Is the Satanic Temple protected by RFRA? Check. In Hobby Lobby, the Supreme Court held that a for-profit, nonreligious corporation could assert rights under RFRA. That issue is does not arise here, because the Satanic Temple is a religious organization clearly intended to be covered by RFRA.

Is the Satanic Temple sincere about its belief against coercive informed consent laws? Check. The next issue that could arise in a RFRA case is whether the believer is sincere. There were and are many reasons to question the sincerity of the Greens, who covered contraception before the Affordable Care Act mandated it and whose company is heavily invested in the companies that make the contraceptives to which they object, but the federal government failed in Hobby Lobby to pursue this legitimate tack, likely for political reasons. In any event, there can be no question that the Satanic Temple is sincere about its beliefs regarding the coercive informed consent abortion laws to which it objects.

Here are their beliefs relevant to abortion: “The Satanic Temple believes that the body is inviolable—subject to one’s own will alone.” Further, “we strive to make all decisions regarding personal health based on the best scientific understanding of the world, regardless of the religious or political beliefs of others.” These beliefs were not concocted recently, and there is no evidence of hypocrisy.

Do the coercive informed consent abortion laws substantially burden these beliefs? Check, after Hobby Lobby. Before Hobby Lobby, this would have been harder for the Satanic Temple, because “substantial” meant substantial, and it had never meant that a believer could point to the practices of others to prove the substantial burden on them. Now, “substantial” can also mean attenuated. Hobby Lobby’s “substantial burden” was that some dollars from its billions in annual revenues would pay for some types of contraception that their employees might use. In other words, the burden arose from their fungible funds entering a stream of fungible healthcare funds and then being used by some of their female employees in ways they will never know.

A Satanic Temple adherent believes that people have an “inviolable” right to control their own bodies and that medical care should be delivered on the basis of the best medical science and not others’ “religious or political” beliefs. When a coercive informed consent law is contrary to the wishes of the woman demanding an abortion or includes untrue medical statements, e.g., abortion causes breast cancer or that there is a “post-abortion syndrome,” these beliefs are burdened. They actually have a better argument on “substantial burden” than did Hobby Lobby, because the burden is direct.

Can the government show that a coercive informed consent abortion law serves a compelling interest? In Hobby Lobby, the Court did not even bother to consider this issue, but rather simply assumed it. So we will assume it here. What is the interest we are assuming is compelling? Let’s say it is providing as much information—true or false—as possible so the woman will consider all of the options before obtaining the early term abortion that is her right under Roe v. Wade and Planned Parenthood v. Casey.

Can the government show that the coercive informed consent abortion law is the least restrictive means to serve that compelling interest? The Hobby Lobby majority reasoned that if there was any way the government could fill the gap by other means, its chosen way was not the “least” restrictive. How else could the government fulfill its goal of providing full information without substantially burdening the Satanic Temple believer? That’s easy! Delete all of the medically unsound verbiage from the informed consent materials and let the woman make her own decision about obtaining an abortion. Better yet, since the majority went out on a limb in Hobby Lobby for the insubstantially burdened believer there, let’s throw in here that the government should also have to pay for the Satanic Temple believer’s abortion, because the faith requires no burdens on the woman’s decision whether to have an abortion.

The Satanic Temple wins, and who loses? All of the evangelicals and Catholic bishops who lobbied like crazy to put such coercive and insulting conditions on women’s choices over their own bodies in the first place. The bishops were correct in 1992: RFRA cuts both ways. It turns our laws into legal Swiss cheese.

The Need for Protestants and Jews and Others to Flip the Priorities: Integrity Over Image

The truth is that many Protestants and Jews also believe that women should be able to make their own choices about abortion and contraception and that many current abortion restrictions are immoral, insulting, and draconian. They view women in a non-patriarchal and respectful way, and they believe that medical science can legitimately be a limit on abortion, but not mean-spirited politics or religion. In short, they should get on the Satanic Temple train.

Of course, it is unlikely they will, because they may shy away from the optics of joining forces with a religious group that is, well, a bunch of Satanists. Notice that the Satanic groups were not included in the Coalition for the Free Exercise of Religion to whom we owe a debt of gratitude for inflicting RFRA on the United States. Nor were a wide range of other groups that aren’t as pleasing to the public eye, either. Why? Because RFRA was sold as a benign law and religion has been sold for decades in the United States as a benign force. Both can be, but not by necessity.

It would be so refreshing for mainstream Protestant and Jewish organizations and believers to stand up and say, yes, we will join forces with whoever will stand for women’s right to choose, even if it is the Satanic Temple. Time for integrity to trump image.

Just because women and the United States as a whole lost the Hobby Lobby battle does not mean they must lose the war.

Marci A. Hamilton is the Paul R. Verkuil Chair in Public Law at the Benjamin N. Cardozo School of Law, Yeshiva University, and the author of God vs. the Gavel: The Perils of Extreme Religious Liberty and Justice Denied: What America Must Do to Protect Its Children. She also runs two active websites covering her areas of expertise, the Religious Freedom Restoration Acts,, and statutes of limitations for child sex abuse, Professor Hamilton blogs at Hamilton and Griffin on Rights. Her email address is
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