Saturday, August 19, 2023

Are Red State Universities Starting to Feel the Pressure? An Anecdotal Account

As a member of academia, I periodically get inquiries from other law schools asking if I'm interested in lateraling. This is quite flattering, though I know full well that such messages aren't only being sent to me and that there is a long road from "email of interest" to actually getting a job offer.

Recently, though, I've noticed that the schools making such inquiries of me are disproportionately located in deep red, southern states. It could be a statistical artifact, of course -- I don't get so many solicitations so as to negate the possibility of random clustering. But it does make me wonder if the decaying political climate in those states means that these schools are experiencing more pressure in terms of faculty outflow, which they're trying to replace via laterals.* 

Both the specific anti-academia initiatives (crusades against "controversial topics"; attacks on tenure), and the broader threat to political and civil rights (abortion bans, threats to democracy) that are characteristic of these states make working there -- and to be clear, I hold the universities in question in the highest esteem -- a far less attractive proposition. And from the other side of the fence, serving on our school's appointments committee this year it did seem to me like we were getting an uptick in "red state refugee" lateral applications -- though again, that's just an impression, and I have no data to back it up. For another bit of anecdotal evidence, see Sapna Kumar's recent interview explaining why she elected to leave Houston Law for the University of Minnesota.

I'm curious, though, if others are noticing this pattern as well. Other junior law professors -- are you getting disproportionate interest from "red state" schools? Any other sense that these schools are indeed facing faculty outflow pressure?

For what it's worth, I'm very happy in Portland and at Lewis & Clark, and have no interest in decamping anywhere. My wife and I have bought a house, we've settled down, I like my students and my colleagues, I've got the course package I want -- life is good and I see no need to mess with a happy status quo.** But my wife and I have also decided that, even beyond any generic inertial resistance, we're in particular not interested in moving to schools in places where our basic rights don't feel secure. We're at the phase of life where we're thinking of starting a family, and doing that in a place where pregnancy turns my wife into a vessel for the state would be horribly unfair to her. And for my part, I teach constitutional law -- a course that, rumor has it, sometimes veers into "controversial topics". I don't want to go to jail because some yahoo right-wing prosecutor decides I'm teaching Roe and Dobbs wrong.

* It might say something about my professional self-esteem that I assume the only reason these schools would be interested in the likes of me is that they're in the midst of a political crisis.

** All that said, I want to be very clear that if Harvard Law School wanted to entice me to move to Cambridge by tripling my salary, they can feel free to mess away.

Thursday, August 17, 2023

The Sunset of Women's Rights

Going off my post from yesterday, I'm quoted in today's Bloomsburg Law article about Judge Ho's wild opinion in the mifepristone case -- particularly his ruminations on the "aesthetic injury" pro-life doctors endure from women being allowed to control their own reproduction.

“I absolutely get and agree with the idea that there is something degrading about treating women as, you know, akin to kind of the natural splendor of a sunset,” David Schraub, an constitutional law professor at Lewis & Clark Law School, said noting the criticism Ho’s argument has gotten on social media.


Schraub said Ho is “a standard-bearer for a new generation of conservative jurists” who recognize and believe in the judiciary as a vanguard for right-wing social change. This generation, he said, isn’t afraid to attack in bold language anyone who’s advocating for a more constrained, traditional view of the judicial role.

Ho “likes the bombast and it’s a very, very common feature of the opinions he writes,” Schraub said. 

Not quite sure how I became the mifepristone guy, but here we are. 

Wednesday, August 16, 2023

Scientists Aren't Gods. Fifth Circuit Judges Are Gods

The Fifth Circuit has released its decision in the mifepristone case. In essence (and I read this quickly, so take with a grain of salt), the court did not overturn the initial FDA approval of mifepristone or the approval of generic variants (the former because the claim was time-barred; the latter because the plaintiffs showed no specific evidence that they were additionally injured by generic approvals). However, it upheld the district court's stay on subsequent FDA decisions which made mifepristone more readily accessible (e.g., allowing it to be prescribed by telemedicine). The new FDA regulations were, the court concluded, "arbitrary and capricious" primarily because while the agency did analyze the risks latent in the individual alterations it was making to the regulatory schema and found them to be negligible, the FDA did not specifically analyze how all these changes might interact when aggregated together.

The decision is, as the panel took pains to repeatedly note, stayed until the Supreme Court has an opportunity to act.

In May, I proffered three possibilities of what the Fifth Circuit would do in this case. The first was that they would take the Supreme Court's hint and reverse the district court. The second was that they would largely affirm the district court but try to file off the "rougher edges" to make it more likely the Supreme Court would uphold the ruling. And the third would be to let their freak flag fly and go all in on defending the extremity of the district court ruling.

What we got was mostly in that middle camp. The court didn't accept the most extreme iterations of the district court's ruling which would have completely taken mifepristone off the shelves nationwide. And its analysis, for the most part, styles itself as sober review of the administrative record and standing doctrine. But the end result was still the court stretching the law to force a substantial rollback in its accessibility. The hope, I think it is clear, is to present this ruling as the "reasonable" conservative position that doesn't go as far as the district court and so one that liberals can't really complain about if it is upheld (spoiler: we can and should).

Judge Ho concurred in part and dissented in part because he would have upheld the district court's decision in its entirety, and in contrast to the majority his opinion was squarely in the realm of possibility number three. He went whole hog on every possible avenue for showing his right-wing culture warrior bona fides, including florid discussions of the importance of the doctor's "conscience rights" to be mad that they have to treat patients who are suffering from medical emergencies they disapprove of and a full-scale defense of the applicability of the Comstock Act to block any sort of approval for abortion medication.

There is stiff competition for who is the worst federal appellate judge. But I'm not sure there's any competition for who the most arrogant federal appellate judge is (and it's no surprise, perhaps, that it's a University of Chicago Law alum taking the crown). In that vein, one passage of Judge Ho's opinion especially stood out to me -- his strident defense of the judiciary refusing to accord deference to the scientists at the FDA.

In this appeal, neither the FDA nor Danco is content to simply argue that the district court erred. They disparage the ruling as “an unprecedented judicial assault on a careful regulatory process.” The “non-expert” district court issued an “unprecedented order countermanding the scientific judgment of the Food and Drug Administration.” 

Their message is simple: The scientists at the FDA can do no wrong. So courts have no business reviewing their actions. 

That’s mistaken on multiple levels.  


Scientists have contributed an enormous amount to improving our lives. But scientists are human beings just like the rest of us. They’re not perfect. See, e.g., Whole Woman’s Health v. Paxton, 10 F.4th 430, 464–70 (5th Cir. 2021) (en banc) (Ho, J., concurring). None of us are. We all make mistakes.

And the FDA has made plenty....

The scientists at the FDA deserve our respect and our gratitude, but not our blind deference. That would defy Congress’s clear directive that courts conduct independent legal review of FDA action under the APA. 

Of course it is true that scientists can make mistakes. Judges can make mistakes too (this case is replete with them). And since "we all make mistakes," the actual germane question is who is more likely -- scientific experts or generalist judges -- to make a mistake when it comes to assessing highly technical medical and scientific decisions on drug approval. And the answer there is obvious: judges are far more likely to be mistaken. Hence why the standard of review is "arbitrary and capricious". The agency doesn't get blind deference, but it still gets regular deference. Absent blatant, smack-you-in-the-face mistakes -- the sort that go beyond disputes about best practices or disagreements on matters of judgment and slide all the way into "arbitrary" or "capricious" conduct -- judges defer to the scientists because judges know that in normal circumstances they're more likely to cause a mistake than to correct one.

In this case, the FDA analyzed the risks of its new regulations enhancing public access to mifepristone and found that they were negligible. Would it have been better if it is specifically analyzed how these risks might change when all the regulatory changes were aggregated? I have no idea (since again, I'm not a scientific expert, and I'm modest enough not to venture a guess). But it is hard to argue that the decision to rely on the individual negligibility of the risks is either "arbitrary" or "capricious". That sort of pot-shot second-guessing of scientific judgment is exactly what normal judicial modesty and deference should foreclose. 

But Judge Ho's eagerness to emphasize the fallibility of the FDA's scientists is quite predictably paired with a blind refusal to recognize his own parallel status as a mere mortal. In our constitutional system, it seems, scientists aren't gods; only Fifth Circuit judges are.

Tuesday, August 15, 2023

The Conservative Experiment at New College is Failing on Easy Mode

I'll admit: when Ron DeSantis and Christopher Rufo announced their intention to convert the New College of Florida into a conservative indoctrination camp, I thought they might succeed. Not just in the enshrining conservative orthodoxy part, but in doing so while maintaining or increasing New College's numbers along traditional metrics of academic excellence.

Simply put, the New College is a small place (fewer than 700 students). And so my logic was straight-forward: are there 700 young conservatives with reasonably good test scores who are eager to devote their college experience to a crusade in owning the libs? Probably! Especially given the largesse that undoubtedly would be funneled to them by the DeSantis administration in support! And given the high profile of DeSantis' and Rufo's machinations, it would be easy to attract that sort of young right-wing zealot to the New College campus. Any right-wing culture warrior who would find this sort of endeavor appealing no doubt would have heard of the New College and what's being done there, and would quickly put it at the top of their application list.

The problem, I thought, was always going to be one of scalability. Sure there may be 700 such students who could make the New College experiment into a "success". But are there 10,000? 100,000? The factors which would make the New College experiment work could not be replicated across the education sector as a whole. Try this at the University of Florida and you'd just have the academic wrecking ball of mass faculty departures and an enraged student body, and nothing to show for it. So my prediction would be that some of the "cream of the crop" currently going to Liberty or Patrick Henry might redirect themselves to the New College, thus giving a false impression that there was untapped demand for the product Rufo was selling, and then we'd have to explain that redistributing the small set of baby conservative crusaders is not actually evidence of a plan that can work at scale.

But it turns out I was still giving Rufo and DeSantis too much credit. Because the early returns are in, and while they've certainly done a number in terms of destroying the New College's academic reputation and standing (over a third of the faculty have departed, alongside dozens of transferring students), the new crop of students coming in are actually less impressive than those the college attracted before the takeover.

Rufo speaks a lot about academic excellence and the virtues of a classical liberal education. But as Steven Walker of The Sarasota Herald-Tribune reported in a damning July story, the incoming class recruited by the new administration has lower average grades, SAT scores and ACT scores than last year’s class. “Much of the drop in average scores can be attributed to incoming student-athletes who, despite scoring worse on average, have earned a disproportionate number of the school’s $10,000-per-year merit-based scholarships,” wrote Walker.

With all the publicity, and all the conservative cheerleading, and all the momentum of the right's latest culture war, the New College couldn't even attract a few hundred talented right-wing youth to create the impression of a successful reform? Hilarious.

And it gets better. Rufo defends the recruitment of underperforming athletes on the grounds that -- wait for it -- there are too many ladies at the New College.

Rather than reviving some traditional model of academic excellence, then, it looks as though New College leaders are simply trying to replace a culture they find politically hostile with one meant to be more congenial. The end of gender studies and the special treatment given to incoming athletes are part of the same project, masculinizing a place that had been heavily feminist, artsy and queer. When I spoke to Rufo last weekend, he offered several explanations for New College’s new emphasis on sports, including the classical idea that a healthy body sustains a healthy mind. But an important part of the investment in athletics, he said, is that it is a way to make New College more male and, by extension, less left wing.

In the past, about two-thirds of New College’s students were women. “This is a wildly out-of-balance student population, and it caused all sorts of cultural problems,” said Rufo. Having so many more women than men, he said, turned New College into “what many have called a social justice ghetto.” The new leadership, he said, is “rebalancing the ratio of students” in the hopes of ultimately achieving gender parity.

But gender parity is not necessarily compatible with a pure academic meritocracy, which Rufo claims to prize. Women are outpacing men in education in many parts of the world, including Saudi Arabia and Iran. In Hungary, nearly 55 percent of university students are women, leading the government to warn about the “feminization” of higher education. Selective American colleges tend to have more female than male applicants; to maintain something approaching a gender balance, some have adopted lower standards for men. In other words, it often takes deliberate intervention — one might call it affirmative action — to create a student body in which women don’t predominate. New College isn’t jettisoning gender ideology. It’s just adopting a different one.

Oh buddy, I hope upon hope someone sues the New College for sex discrimination based on these passages. 

It's entirely appropriate to call Rufo's endeavors an affirmative action program for men. And while the SFFA opinion is about race-based affirmative action, even before that case conservative lower courts had been reflexively applying their affirmative action skepticism to sex-based programs (for example, in Vitolo v. Guzman, the 6th Circuit struck down preferences for women in COVID relief programs using essentially identical analysis to why it struck down race-based preferences). The logic of SFFA should, if fairly applied (I know, I know: that's one hell of a caveat), cover a case like this as well.

But even absent SFFA, the sex discrimination here is worse than a standard affirmative action case. Not only does the quoted language from Rufo suggest that the New College's decisions were taken "because of, not in spite of", the effect they'd have on women, they also demonstrate that explicit hostility to women -- a belief that too many women leads to "a social justice ghetto" and creates "cultural problems" -- was a motivating factor in the decision. This is far more powerful evidence of discriminatory intent than one would find in, say, the Thomas Jefferson High School for Science & Technology case (where race-neutral changes to admissions policies were alleged to be motivated by discriminatory animus against Asians). Even defenders of affirmative action have never agreed that an affirmative action program could be justified by disdain for the overrepresented class. And one would struggle to find a more overt admission of misogynistic motivations than what one has here -- all in the service of further degrading the New College's academic quality in service of an ideological indoctrination effort.

There's still time for Rufo to, er, "right ship". If you dump enough money and resources into the New College, it will attract students no matter how bad its academic reputation gets. A lavishly funded subsidy program for right-wing kids really should be able to find an audience even if it's being run by incompetents.

But for now, this is just delightfully embarrassing. What a joke.

UPDATE: I believe it's paywalled, but this article has a lot more detail on the utter chaos that's overtaken the New College as it prepares for the next academic year.

Forcing Child Rape Victims To Give Birth Is Exactly What the Dobbs Justices Hoped Would Happen

This is a picture of a twelve-year old girl.

(I assume. It's from an article titled "Awesome Things About Raising 12 Year Olds." For obvious reasons I didn't want to spend too much time Google Image searching "12 year old girl").

This is an article about a different twelve year old girl.

Ashley just had a baby. She’s sitting on the couch in a relative’s apartment in Clarksdale, Miss., wearing camo-print leggings and fiddling with the plastic hospital bracelets still on her wrists. It’s August and pushing 90 degrees, which means the brown patterned curtains are drawn, the air conditioner is on high, and the room feels like a hiding place. Peanut, the baby boy she delivered two days earlier, is asleep in a car seat at her feet, dressed in a little blue outfit. Ashley is surrounded by family, but nobody is smiling. One relative silently eats lunch in the kitchen, her two siblings stare glumly at their phones, and her mother, Regina, watches from across the room. Ashley was discharged from the hospital only hours ago, but there are no baby presents or toys in the room, no visible diapers or ointments or bottles. Almost nobody knows that Peanut exists, because almost nobody knew that Ashley was pregnant. She is 13 years old. Soon she’ll start seventh grade.

In the fall of 2022, Ashley was raped by a stranger in the yard outside her home, her mother says. For weeks, she didn’t tell anybody what happened, not even her mom....

[Ashley's mother] Regina tentatively asked [Dr.] Balthrop if there was any way to terminate Ashley’s pregnancy. Seven months earlier, Balthrop could have directed Ashley to abortion clinics in Memphis, 90 minutes north, or in Jackson, Miss., two and a half hours south. But today, Ashley lives in the heart of abortion-ban America.... Within weeks [of the Dobbs decision], Mississippi and every state that borders it banned abortion in almost all circumstances.

Balthrop told Regina that the closest abortion provider for Ashley would be in Chicago. At first, Regina thought she and Ashley could drive there. But it’s a nine-hour trip, and Regina would have to take off work. She’d have to pay for gas, food, and a place to stay for a couple of nights, not to mention the cost of the abortion itself. “I don’t have the funds for all this,” she says. 

So Ashley did what girls with no other options do: she did nothing. 

It bears repeating what Scott Lemieux said: the very consistent Republican position on cases like Ashley's is that states should have more latitude to force child rape victims to give birth compared to the average women (and they very much believe the average women shouldn't have much in the way of rights either). Ashley's situation isn't a case of unintended consequences; it's the Dobbs ruling doing exactly what its proponents intended and wanted it to do.