Hans Bader

New Jersey’s anti-bullying law, which applies to the state’s schools and universities, is so overly broad that a fourth-grader was punished just for noting, in response to a question, that a classmate had suffered from head lice. A civil-liberties group called the Rutherford Institute is now representing that student in a First Amendment challenge to the law, notes the Newark Star-Ledger in an article titled, “Civil liberties organization asks federal court to declare NJ’s anti-bullying law unconstitutional.” Another civil-liberties group, FIRE, has also concluded that the law violates the First Amendment.

The Rutherford Institute explains:

Attorneys for The Rutherford Institute have asked a federal court to declare a New Jersey anti-bullying law unconstitutional in light of its chilling effect on students’ free speech rights. The Institute’s latest brief, which counters a move by the New Jersey Commissioner of Education to have the lawsuit dismissed, argues that the state’s enforcement of the anti-bullying act represents a violation of students’ rights under the First and Fourteenth Amendments to the U.S. Constitution and the New Jersey state constitution. Institute attorneys filed the First Amendment lawsuit in Lim v. Board of Education of the Borough of Tenafly in December 2013 on behalf of a 4th grade boy who was punished under the act for truthfully stating that a fellow student had head lice.

“What school officials conveniently seem to keep forgetting is that students do not shed their constitutional rights at the schoolhouse gate,” said John W. Whitehead, president of The Rutherford Institute and author of A Government of Wolves: The Emerging American Police State. . . Rutherford Institute attorneys argue that while the purpose of the law is admirable, the law’s scope is unconstitutionally broad and the language is too vague to give parents or students adequate notice about what statements will or will not be prohibited.

Highlighting the potential absurd applications of the law, Institute attorneys draw attention to an incident that took place in September 2011, when a 4th grade boy was punished under the act for correctly stating that a fellow student had head lice. A few days after a note was sent home to the parents of a class of 4th grade students, warning them that one of the students had head lice, several students were sitting at a group table completing an assignment together. During the discussion, one student asked a female student why she had dyed her hair. After she failed to respond to the question, one young boy, L.L., correctly replied that she had done so because she was the student who had head lice. The female student complained to the teacher who in turn instructed L.L. to apologize, and the class lesson continued uninterrupted. The teacher then reported the incident to the school’s “Anti-Bullying Specialist,” who filled out a bullying report and informed the Superintendent about the incident. As a result of the finding, the student was forced to undergo a special sensitivity assignment, and the entire class was reminded about the need to be kind to each other, which further embarrassed the fourth grader. L.L.’s parents appealed the bullying determination first with the local school board, and then with the state Board of Education, both of which affirmed the decision.

Arguing that the statute punishes any speech deemed “hurtful,” even if factually true and non-disruptive, attorneys for The Rutherford Institute filed a First Amendment lawsuit in federal court, asking that the statute be struck down, and that students like L.L. not be penalized in accordance with the statute for exercising their constitutional rights.

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“In this case the EEOC sued the defendants for using the same type of background check that the EEOC itself uses.” So began a 3-to-0 ruling Wednesday by the Sixth Circuit Court of Appeals in EEOC v. Kaplan Higher Education Corp. (Apr. 9, 2014). CEI joined the Pacific Legal Foundation’s amicus brief in support of the employer sued by the EEOC, the federal civil-rights agency. (EEOC stands for Equal Employment Opportunity Commission.) As former assistant attorney general Roger Clegg (now at the Center for Equal Opportunity) notes,

The Obama Administration sued Kaplan for running credit checks on employee applicants – similar, by the way, to the ones the EEOC itself uses. Kaplan had learned that some of its employees had misappropriated student payments and, to provide safeguards against this behavior, it began screening its applicants for major red flags in their credit history. The EEOC sued Kaplan, arguing that it cannot use credit checks, because use of credit checks has a disparate impact on black applicants.

Anyway, putting aside the inherent dubiousness of the whole lawsuit, there were also severe methodological problems with the Obama Administration’s evidence, which relied on “race raters” to determine, by scrutinizing driver’s license photos, the race of the applicants. So the trial judge threw out the case. Today, I’m happy to report, the court of appeals affirmed that decision – and in no uncertain terms, I might add, much I’m sure to the Obama administration’s chagrin.

At the Washington Post, UCLA Law Professor Eugene Volokh provides these excerpts from the court’s ruling:

The EEOC’s personnel handbook recites that “[o]verdue just debts increase temptation to commit illegal or unethical acts as a means of gaining funds to meet financial obligations.” Because of that concern, the EEOC runs credit checks on applicants for 84 of the agency’s 97 positions. The defendants (collectively, “Kaplan”) have the same concern; and thus Kaplan runs credit checks on applicants for positions that provide access to students’ financial-loan information, among other positions. For that practice, the EEOC sued Kaplan. Specifically, the EEOC alleges that Kaplan’s use of credit checks causes it to screen out more African-American applicants than white applicants, creating a disparate impact in violation of Title VII of the federal Civil Rights Act. See 42 U.S.C. § 2000e-2(a)(1), (a)(2), (k). Proof of disparate impact is usually statistical proof in the form of expert testimony; and here the EEOC relied solely on statistical data compiled by Kevin Murphy, who holds a doctorate in industrial and organizational psychology. For two reasons, however, the district court excluded Murphy’s testimony on grounds that it was unreliable. First, the EEOC presented “no evidence” that Murphy’s methodology satisfied any of the factors that courts typically consider in determining reliability under Federal Rule of Evidence 702; and second, as Murphy himself admitted, his sample was not representative of Kaplan’s applicant pool as a whole. The district court therefore granted summary judgment to Kaplan. The EEOC now argues that the district court “erred” — a telling, oft-repeated, and mistaken choice of word here — when it excluded Murphy’s testimony. We reject the EEOC’s arguments and affirm.

  . . . . . . . .

The EEOC brought this case on the basis of a homemade methodology, crafted by a witness with no particular expertise to craft it, administered by persons with no particular expertise to administer it, tested by no one, and accepted only by the witness himself. The district court did not abuse its discretion in excluding Murphy’s testimony.

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Earlier, we wrote about a Wisconsin town whose ordinance holds parents liable for bullying by their children, including certain speech. We and law professor Eugene Volokh noted that this raised serious First Amendment issues. Now, a New Jersey judge has done the same thing by judicial construction, by allowing New Jersey school districts to drag students and their parents into lawsuits brought against school districts by alleged victims of bullying or discriminatory harassment. (New Jersey’s anti-bullying law is so broad that it violates the First Amendment by banning non-violent speech, notes the civil-liberties group Foundation for Individual Rights in Education.)

On March 12, a New Jersey Superior Court Judge ruled in V.B. v. Flemington-Raritan Regional School District that that school district, and the Hunterdon Central Regional High School, “could name 13 students and their parents as third-party defendants in a bullying suit,” dragging them into a lawsuit against the school districts, and potentially forcing them to share the massive cost of paying any damages awarded by a judge or jury against the school district. Judge Yolanda Ciccone allowed the parents to be sued based on conduct and offensive comments both in school (where teachers and schools officials, not parents, were in charge) and outside of school. She based this ruling partly on speech that is protected by the First Amendment outside the schoolhouse, such as unkind remarks on Facebook, writing that “Plaintiff’s complaint includes several allegations of that acts of bullying and harassment took place on Facebook, and that plaintiff had to contact Facebook directly to have to [sic] offending statements removed.”

Never mind that federal judges have ruled that the First Amendment applies with added force to students’ speech outside of school, meaning that vulgar speech that is banned in school may be protected speech when it occurs away from school, as cases like Klein v. Smith (1986) illustrate. Similarly, the federal appeals court in New Jersey has issued two First Amendment rulings in favor of students disciplined for creating fake web profiles lampooning their principals, holding that the speech was protected outside of school even if it would be unprotected in school, in Layshock v. Hermitage School District (2010) and J.S. v. Blue Mountain School District (2011).

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Earlier, I wrote about how Obama administration officials have been very “tight-lipped in response to FOIA requests” about their “government shutdown shenanigans,” such as closing private businesses and non-profit tourist attractions out of spite, and blocking access to private homes and tourism sites within or merely next to public land. I have now appealed the National Forest Service’s very scanty response to my FOIA request about the planning and implementation of those closures both before and after the shutdown, in an administrative appeal you can view at this link.

Although I submitted FOIA requests about the October 2013 government shutdown to both the National Park Service and the National Forest Service, the Park Service hasn’t produced any documents at all, while the Forest Service produced only emails for the period after the shutdown ended (and nothing from the email accounts of Forest Service employees who were discussing with the press the very issues covered by my FOIA request). The National Park Service has also apparently stonewalled other FOIA requestors.

The Forest Service has not explained how it could only have emails sent after, but not before or during, the shutdown, a suspicious fact that indicates that it did not comply with FOIA. Under FOIA, the agency has to show that it has conducted a thorough search; it is not my burden as the requester to prove the opposite. (See, e.g., Carney v. U.S. Dep’t of Justice, 19 F.3d 807, 812 (2d Cir.1994) (citing 5 U.S.C. § 552(a)(4)(B)).

Under FOIA, an agency must demonstrate that “each document that falls within the class requested either has been produced,” or is “exempt from” FOIA. (See Goland v. C.I.A., 607 F.2d 339, 352 (D.C. Cir. 1978)). The Forest Service has not done so, as I explained earlier.

Under FOIA, a search must be “reasonably calculated to uncover all relevant documents.” (See, e.g., Nation Magazine v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995)).

A reasonable search means that “all files likely to contain responsive materials . . . were searched.”  See Cuban v. SEC, 795 F.Supp.2d 43, 48 (D.D.C. 2011); see also Landmark Legal Foundation v. E.P.A., 2013 WL 4083285, *6 (D.D.C. Aug. 14, 2013) (rejecting agency’s attempt to dismiss FOIA lawsuit against it, and finding inadequate search, where “EPA did not search the personal email accounts of the Administrator, the Deputy Administrator, or the Chief of Staff,” but rather only searched only “accounts that were in its possession and control,” despite the existence of “evidence that upper-level EPA officials conducted official business from their personal email accounts”); Yonemoto v. Department of Veterans Affairs, 686 F.3d 681, 689 (9th Cir. 2012) (Freedom of Information Act lawsuit against agency should not be dismissed if additional emails could be uncovered through a more thorough search; dismissal is inappropriate where “the agency produces what it maintains is all the responsive documents, but the plaintiff challenges ‘whether the [agency's] search for records was adequate,’” quoting Nw. Univ. v. Dep’t of Agric., 403 F.Supp.2d 83, 85–86 (D.D.C.2005).

Post image for Agencies Withhold Documents about Closures of Private Businesses in Government Shutdown

In last October’s government shutdown, the Obama administration closed down, or blocked access to, many private businesses that had been allowed to operate in earlier shutdowns, such as during the Clinton administration.  After lawyers and legal commentators suggested that these closures of private businesses were illegal, and pointed out that they were an unexplained departure from past agency practice, I filed a series of Freedom of Information Act (FOIA) requests with the agencies that carried out these closures — the National Forest Service, the National Park Service, and the Department of the Interiors — seeking to find out which officials were responsible for these improper closures, and how the decision to close them was made.

(Testimony by CEI’s Myron Ebell suggests that the National Park Service was probably the worst offender among all the agencies. A judge later ruled in favor of parents’ legal challenge to the National Park Service’s closure of a state park used by their children, and other judges apparently issued temporary restraining orders against things like the suspension of timber operations. A Federal judge was apparently about to issue an injunction against the closure of private concessions in National Forest Recreation Association v. Tidwell when the shutdown finally came to an end on October 17.)

In FOIA requests submitted on October 9 and 10, I sought information about the orders closing down these businesses, how the targeted private businesses were selected (some politically connected businesses were spared being closed), and about the policies the government relied upon in shutting them down. Months later, long after the legal deadline for responding to my FOIA request, the National Park Service and the Department of the Interior still have not produced any documents at all, even though they were legally required to respond within 20 working days after I made my request.

In March, the Forest Service did finally respond, but its response — producing only agency communications that occurred after the shutdown ended – suggests that it has withheld, or failed to search for, the most interesting (and potentially incriminating) documents.

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Legislators impose all sorts of misguided or costly mandates on colleges and schools that harm young people directly or indirectly. California activists are now seeking to redefine most campus sex as sexual assault, by requiring verbal permission before any sex or sexual activity (never mind that most happily married couples have engaged in consensual sex without any verbal discussion). The first step towards this goal is Senate Bill 967, a pending California bill that would require “affirmative consent” for sexual activity on public and private college campuses (although it does not expressly rule out non-verbal consent), and would require colleges to enforce such rules. I discuss the bill, and related policies at the University of California, at this link.

The bill, SB 967, also contains various provisions that impose unfunded mandates on colleges. It authorizes funding for these mandates for public colleges, but nothing for private colleges burdened by the bill’s requirements. I also discuss in the Sacramento Bee how the bill would undermine due process and privacy on campus.

Occasionally, you hear people oppose school vouchers because they think it will lead to private schools losing their autonomy due to the strings attached. But this objection assumes that the government won’t regulate private schools if they don’t accept government funds. But state governments often will anyway.

In fact, as any educational lobbyist or trade association could tell you, state governments will regulate you whether or not you get a penny in state funds, and even if no voucher program exists. And state legislatures are now passing all sorts of politically correct legislation that encroaches on private colleges’ academic freedom and curricular autonomy, like provisions requiring them to create programs to “promote cultural diversity.”

Post image for CEI Files Comments against IRS Proposed Rules That Would Illegally Restrict 501(C)(4) Speech

Today, CEI filed comments against the IRS’s proposed rules restricting speech by 501(c)(4) groups (which the IRS has suggested could be expanded in the future to also restrict speech by 501(c)(3) groups like think-tanks).  Our comments focus on the Treasury Department’s improper attempt to redefine non-partisan criticism of non-elected government officials, including communications with lawmakers about executive-branch and judicial nominations, as “candidate-related political activity,” in order to restrict such activity by 501(c)(4) groups. We also discuss how the proposed rule would also unconstitutionally restrict non-profits’ advice to the executive branch about nominations. CEI also agrees with the Heritage Foundation that the Treasury Department lacks statutory authority to impose the proposed rules.

As I earlier noted in The Wall Street Journal,

Those rules restrict even truthful, nonpartisan criticism of IRS and bureaucratic wrongdoing by classifying it as “candidate-related political activity.” For example, if an IRS official subjects citizens to incredibly burdensome demands for irrelevant information just to harass them for their political or religious beliefs, no 501(c)(4) group could later criticize that official’s nomination to be IRS commissioner, without engaging in restricted activity. That’s because the IRS’s proposed regulation defines even unelected government officials, like agency heads and judges, as “candidates” if they have been nominated for a position requiring Senate confirmation. The IRS’s proposed rules are an attack on the First Amendment that will make it easier for the government to get away with harassing political dissenters and whistleblowers in the future.

The proposed rules are even more dangerous than they appear, since the IRS notice containing the proposed rules expressly raised the possibility that these speech restrictions will later be expanded, in two disturbing ways, as we described earlier. First, the IRS suggests that this broad definition of the restricted category of speech (“candidate-related political activity”) in its proposed rule may later be applied to 501(c)(3) groups (which are not permitted to engage in candidate-related political activity at all, unlike 501(c)(4)’s, which can currently engage in it as a minority of their overall activity). That would effectively gag 501(c)(3) groups from discussing a wide range of judicial and executive nominations or speaking out about wrongdoing by nominees for such posts. Second, the IRS suggests that it may curb 501(c)(4)s’ ability to engage in such expressive “activity” even a minority of the time, by not just broadly defining such activity as inimical to social welfare, but also requiring them to “exclusively” promote this narrow IRS definition of “social welfare.”

We earlier discussed how the IRS violated the First Amendment by targeting Tea Party and other groups for costly and burdensome investigations, and demanding lots of burdensome and irrelevant information from those groups that had nothing to do with whether they actually were eligible for 501(c)(4) status. As we explained, such investigative harassment would have violated federal appeals court rulings like White v. Lee, 227 F.3d 1214 (9th Cir. 2000), even if it had not been aimed at conservative groups, but rather at both conservative and liberal groups alike. (Note that donations to 501(c)(4) groups are not tax-deductible, unlike donations to 501(c)(3) groups).

CEI’s comments can be found here.

Yesterday, Arizona Governor Jan Brewer vetoed a bill that would have made clear that the state’s Religious Freedom Restoration Act (RFRA) applied not just as a defense to a lawsuit brought by a government entity, but also as a defense to lawsuits brought by a private party under a state statute, or using a cause of action created by state law. Under RFRA, no government action (including a damage award in a lawsuit) can “substantially burden” religious freedom unless it is “the least restrictive means” to further a “compelling interest.” The bill hardly seems like a radical change, since damage awards in private lawsuits already constitute “state action” for purposes of the First Amendment, under the Supreme Court’s decisions in Snyder v. Phelps and New York Times v. Sullivan. The bill just applies the same principle to RFRA, and, indeed, the bill’s enactment might merely have given the state’s RFRA the same meaning that other jurisdictions’ RFRA’s already have by judicial construction. The bill did not even mention sexual orientation, did not single out gays, and probably would have had its greatest effect in other areas.

The media, including the Washington Post and the New York Times, have fundamentally distorted what that bill, SB 1062, vetoed by Gov. Brewer, would have done, by claiming that it would have “allowed” a broad range of discrimination. It was written narrowly enough (and did not even mention gays) that it conceivably might not have legalized any additional discrimination against gays at all. It might have had more effect as to refusals to serve other groups disapproved of by religious fundamentalists, like cohabiting unmarried couples, although even that is not guaranteed. (Disclosure: I support both gay marriage and religious liberty, and CEI did not take any position on the bill.)

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“Boosting the federal minimum wage as President Barack Obama and congressional Democrats are proposing” would “cut employment by roughly 500,000 jobs, Congress’ nonpartisan budget analyst said Tuesday”; the Congressional Budget Office predicts that a minimum wage increase will result in “fewer jobs, especially for low-income workers; higher costs for business owners and higher prices for consumers. The study was unveiled as the Senate prepares for a March debate on a plan by Sen. Tom Harkin, D-Iowa, ramping up the minimum in three steps to $10.10 by 2016.” (Source: Associated Press).

Raising the minimum wage also drives up unemployment among young people and unskilled workers. This CBO report comes on the heels of an earlier CBO report that predicts a fall in employment of about 2 percent over the next decade due to work disincentives contained in the 2010 healthcare law. Obamacare has caused layoffs in the medical device industry, and will wipe out many jobs. It is also replacing full-time jobs with meager part-time jobs in community colleges, restaurants, and other sectors.

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“The Wandering Dago food truck wants to park and sell food at various events on New York State property. The state says no, because the name is offensive. Does that violate the First Amendment?” The answer is probably yes, says UCLA law professor Eugene Volokh at this link. He recently discussed the free-speech issue in a pending court case called Wandering Dago Inc. v. N.Y. State Office of General Services. The mere fact that a business’s name is politically incorrect, or offends some patrons, is not reason enough to ban it, as an appeals court ruled in holding the name “Sambo’s” protected in Sambo’s Restaurants Inc. v. City of Ann Arbor (1981). Of course, if it is offensive, the business may lose customers as a result, especially if its name does not appeal to patrons’ sense of humor.

Commercial speech is not the only speech that government officials seek to restrict when it offends certain listeners. Such restrictions are common in universities, even though the Supreme Court has indicated that free speech is nearly as broad on campus as in society at large (in its decisions in Papish v. University of Missouri Curators, Healy v. James, and Rosenberger v. University of Virginia).

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