- “Louisiana Police Chief: Resisting Arrest is Now a Hate Crime Under State Law” [C.J. Ciamarella, earlier on so-called Blue Lives Matter laws here, here, etc.]
- Agency interpretive letters are the wrong way to enact new federal law [Ilya Shapiro and David McDonald on Cato amicus in school bathroom case, Gloucester County School Board v. G.G.]
- “Thousands of business threatened by ADA lawsuits” [Justin Boggs, Scripps/NBC26]
- “Reforming The Administrative State — And Reining It In” Hoover Institution panel with Adam White, Oren Cass, and Kevin Kosar, moderated by Yuval Levin [video, related Adam White paper, “Reforming Administrative Law to Reflect Administrative Reality”].
- New Hampshire: “Wal-Mart told to pay pharmacist $16 million for gender bias” [Reuters]
- Congress seldom has acted as if it believed strongly in D.C. home rule and it’s unlikely to start now [Ryan McDermott, Washington Times, thanks for quotes]
The Obama administration has ambitiously asserted, as an application of Title IX, that schools nationwide must make available to transgender students the general bathroom facilities that correspond to their gender identity. To resolve a case now up for Supreme Court review, it is not necessary to reach the merits of this policy; the promulgation of the new policy by guidance letter, without advance notice, chance for public comment and other protections for regulated parties, is enough of a defect to strike it down. [Ilya Shapiro and David McDonald on Cato Institute amicus brief, with law professors Jonathan Adler, Richard Epstein, and Michael McConnell, supporting certiorari review in Gloucester County School Board v. G.G.]
[The Education Department] seeks to change federal law not through notice-and-comment rulemaking as required by the Administrative Procedure Act, but through an informal, unpublished letter written by a low-level bureaucrat. …We call on the Court to take this opportunity to overrule Auer and declare that the judiciary will no longer blindly accept self-serving agency interpretations, but make their own independent determinations based on a searching and reasoned reading of the regulations at issue. Should the Court choose not to overrule Auer, we suggest that—at minimum—it hold that only agency interpretations that have received the public scrutiny of notice-and-comment rulemaking merit judicial deference.
More on Auer deference here, etc.
- How litigation-averse Western universities’ human-subjects-research protocols ignored cultural sensitivities and set back the study of native languages in Bhutan and the Himalayas [Zachary Schrag, IRB Blog]
- Judge to feds: not so fast on regulating school bathrooms [Jonathan Adler; Scott Shackford/Reason]
- California Supreme Court won’t hear Vergara constitutional challenge to teacher tenure law [Daniel Fisher, earlier]
- “Roommate drama lands Penn State sorority sisters in federal court” [Jeremy Roebuck, Philadelphia Daily News]
- “Is the walk to school really so terrifying?” [Lenore Skenazy, Tulsa World] “Mom Arrested for Leaving Kids Alone in the House While She Went Out for Food” [same]
- Feds are rolling out web accessibility settlements with local school systems and state education departments [Department of Education press release; our web accessibility tag]
- No, the “government can’t make you use ‘zhir’ or ‘ze’ in place of ‘she’ and ‘he'” [Josh Blackman, Washington Post; earlier on NYC human relations commission guidelines; Hans Bader/CEI on new D.C. rules along similar lines]
- Matt Welch on New York Attorney General Eric Schneiderman and the “casually authoritarian” movement to harass and legally penalize climate deniers [Reason] While styled as fraud probe, AGs’ climate denial investigation is essentially a SLAPP suit meant to silence advocacy [Ronald Bailey; letter from 13 attorneys general critical of probe] As one skirmish ends, expect wider war to continue, as Virgin Islands AG withdraws widely flayed subpoena against our friends at Competitive Enterprise Institute [John Sexton] Massachusetts Attorney General Maura Healey now chasing “right-leaning groups that have never received a penny from Exxon” including local political foe Beacon Hill Institute [Hans Bader/CEI] We’re the ones asking questions around here: AGs dodge public record/FOIA requests on probe [Chris Horner/Fox News]
- “N.Y. Senate passes bill banning funding for university student groups that ‘encourage’ ‘hate speech'” [Eugene Volokh]
- Licensing and other laws often restrict what members of professions and occupations can say, a problem that deserves more and better First Amendment scrutiny than it’s gotten [Timothy Sandefur, Regulation]
- Ninth Circuit will review ruling striking down Idaho ag-gag law [Baylen Linnekin on appellate amicus, Idaho Statesman, NPR last year]
- Ken White on why it’s okay to loathe Gawker and its actions but still see the danger in Thiel/Hogan episode [L.A. Times, related Dan McLaughlin, earlier]
We earlier this year noted the New York City Human Rights Commission guidance directing that businesses may be fined if they do not use customers’ desired pronouns in relation to questions of gender, including preferred usages such as “ze” and “hir.” Now Eugene Volokh, who wrote about the earlier story, points out a recent Oregon settlement in which pronoun issues (the employee prefers to be called “they”) appeared to play an important part:
The school district agreed to settle the claim for $60,000 “as compensation for actual damages, emotional distress and attorney fees,” and with the district promising to “develop official guidance documents for administrators/staff that address working with transgender staff”; the documents, to be developed together with “TransActive and the District equity team,” will address, among other things, “pronoun usage.” “[V]iolations of the guidance will be grounds for discipline.”
But it is not at all clear, as Volokh notes, that it is respectful of co-workers’ rights to require them on pain of official discipline to employ “highly conspicuous, nonstandard usage.” Should instances of not doing so be defined as “harassment” or “discrimination,” they can bring with them serious legal consequences. Public employers such as school districts do have some legitimate managerial interests which can call for, e.g., standardizing forms of address in their workplace. On the other hand, novel pronoun coinages relating to gender are often praised as a way “to convey an idea about language and how language should be” — put more sharply, to convey particular ideological stances about issues of gender identity. We already know that under current interpretations of First Amendment law, government cannot require ordinary non-political employees on pain of dismissal to affirm propositions such as “Live Free Or Die” or the Pledge of Allegiance. A similar principle might extend — or? — to rules exacting affirmative ideological avowals of other sorts. More: Hans Bader, CEI.
- Not the theater’s fault, says a Colorado jury, rejecting Aurora massacre suit [ABA Journal, earlier here, here, and here, related here, etc.]
- Senate GOP could have cut off funds for HUD’s social-engineer-the-suburbs power grab, AFFH. So why’d they arrange instead to spare it? [Paul Mirengoff/PowerLine, more, earlier] Related: federal judge Denise Cote denies motion to challenge supposed speech obligations of Westchester County Executive Rob Astorino under consent decree with HUD [Center for Individual Rights; earlier here, here, etc.]
- “Earnhardt Family Fighting Over Whether One Earnhardt Son Can Use His Own Last Name” [Timothy Geigner, TechDirt]
- Freddie Gray charges, bad new laws on pay, the state’s stake in world trade, armored vehicles for cops, bar chart baselines that don’t start at zero, and more in my latest Maryland policy roundup [Free State Notes]
- “You can be fined for not calling people ‘ze’ or ‘hir,’ if that’s the pronoun they demand that you use” [Eugene Volokh on NYC human rights commission guidance]
- Despite potential for schadenfreude, please refrain from taxing university endowments [John McGinnis]
I was hoping/waiting to hear what eminent economist Deirdre McCloskey, born Donald, would have to say about the transgender bathroom flap. Wish granted, thanks to Warren Coats and his blog:
Before I “passed” (surgery, working at it) I was frightened to go into a ladies’ room, but I could hardly go into a men’s room in a dress. You can imagine how dangerous that would be! I was allowed to put Female on my driver’s license in tolerant Iowa in 1995. But you are right that it is unwise in such matters if nothing much is going wrong to stir things up. I’ll bet now that Iowa has rules from the state. Then it was left to Iowans’ ample common sense. My passport F was tougher—I wept to the woman at the New Hampshire passport office, and she relented and sent my passport the day before I was boarding a flight to go to Holland to teach for a year, in January 1996. So the State Department unofficially was cool. A year later I tried to get Harvard to change my degree from Harvard College class of ’64 to the women’s college, Radcliffe. The male dean I spoke to thought not. I whined, “But the State Department had no problem giving me an F passport.” With a smile in his voice he replies, “But Harvard is older than the State Department!”
“There’s more on all this in my memoir of my transition, Crossing: A Memoir (1999 University of Chicago Press).
“The bathroom “issue” is entirely phony. It has never been a problem. Anyway, if men wanted to sneak in (they don’t), they could always have done so, with or without North Carolina’s law. How is it to be enforced? DNA testing by the TSA at every bathroom door? Anyway, your house has a unisex bathroom, I presume, and in Europe they are not entirely uncommon—after all, the stalls have doors. Etc, etc. On both sides it is just a club to beat up the other side in the silly Cultural Wars, and to make people hate and disdain each other. Adam Smith would not have approved.”
Meanwhile, Hans Bader argues that the Obama administration stands on very shaky ground both legally and prudentially in trying to impose a single nationwide set of practices by way of Title IX and funding cutoffs, aside from whether that set of practices is in fact the right one. More: Richard Epstein/Hoover, Roger Pilon/Cato, Robby Soave/Reason, Neal McCluskey (no relation)/Daily Caller, and earlier here and here on the North Carolina law.
Enough already with the bans on so-called inessential travel: short of an impending civil war, boycotts, sanctions, and embargos against U.S. states by the governments of other U.S. states and cities are a truly bad idea [Nathan Christensen, Washington Post]
Relatedly, Gillian White quotes me in the Atlantic on North Carolina’s HB 2 controversy, the latest in a series of battles over discrimination law, religion, business, and LGBT persons, at this point almost entirely symbolic to large publics on both sides, with the considerable differences between particular enactments (Georgia, Mississippi, Indiana, etc.) seeming to matter relatively little. Finding accurate reporting on what the employment provisions of North Carolina’s HB 2 would do is not easy, as Robin Shea discovered [Employment and Labor Insider]
Sen. Ligon misstates the scope of North Carolina’s new law when he writes that “the new law simply prevents local governments from forcing business owners to adopt” policies on transgender bathroom use. As a libertarian, I would be fine with the new law if that were all it did, but in fact Sen. Ligon is describing only Part III of the bill. Part I of the bill imposes affirmative, uniform new duties of exclusion on North Carolina government entities such as schools, town halls, courthouses, state agencies and the state university system, taking away what had generally been at local discretion. This not only will inflict needless burdens on a small and vulnerable sector of the public, but presumes to micromanage local governments and districts in an area where they had not been shown to be misusing their discretion. Whatever the merits of the rest of the bill, the provisions on state-furnished bathrooms are a good example of how legislation in haste from the top down can create new problems of its own.
New York City issues its regulations on how employers, retailers, and other businesses covered by discrimination law must handle gender identity. “The NYCHRL requires [businesses] to use an individual’s preferred [pronoun] …such as they/them/theirs or ze/hir.”