Judge Barrett a reformer for higher education

Conservatives greeted the nomination of Judge Amy Coney Barrett to the Supreme Court with enthusiasm for her originalist interpretation of the law, but all students who care about civil liberties, regardless of political persuasion, should welcome her nomination for the decidedly positive effect it will have in restoring sanity on America’s college campuses.



a person standing in front of a mirror posing for the camera: Supreme Court nominee Amy Coney Barrett testifies during the third day of her confirmation hearings before the Senate Judiciary Committee on Capitol Hill in Washington, Wednesday, Oct. 14, 2020. (Anna Moneymaker/The New York Times via AP, Pool)


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Supreme Court nominee Amy Coney Barrett testifies during the third day of her confirmation hearings before the Senate Judiciary Committee on Capitol Hill in Washington, Wednesday, Oct. 14, 2020. (Anna Moneymaker/The New York Times via AP, Pool)

Over the last several decades, liberals on college campuses have enacted racial preferences in admissions, clamped down on the free speech rights of campus conservatives, imposed strict ideological tests on students, and eliminated any pretense of due process for students unfairly accused of sexual assault.

In particular, under President Obama, universities were provided guidance in 2011 and 2014 that led to the creation of “kangaroo courts,” where students facing sexual misconduct charges were punished without being afforded a hearing or the right to cross-examine their accuser. This led to a wave of cases that were invalidated by courts nationwide.

Last year, Judge Barrett authored a unanimous opinion for the U.S. Court of Appeals for the Seventh Circuit that restored the rights of a student, named “John Doe,” who alleged his university violated both the Due Process Clause of the Fourteenth Amendment and Title IX when investigating and adjudicating an allegation of sexual misconduct brought forward by another student, referred to as “Jane Doe.”

In her ruling in Doe v. Purdue University, Judge Barrett said Purdue’s procedures fell far short of fair, just and impartial treatment.

“John received notice of Jane’s allegations and denied them, but Purdue did not disclose its evidence to John. Withholding the evidence on which it relied in adjudicating his guilt was sufficient to render the process fundamentally unfair,” Barrett wrote.

Judge Barrett went on to cite some of the problems with Purdue’s grossly unfair rush to judgment.

“At John’s meeting with the Advisory Committee, two of the three panel members candidly admitted that they had not read the investigative report, which suggests that they decided that John was guilty based on the accusation rather than the evidence. And in a case that boiled down to a ‘he said/she said,’ it is particularly concerning that … the committee concluded that Jane was the more credible witness — in fact, that she was credible at all — without ever speaking to her in person. Indeed, they did not even receive a statement written by Jane herself, much less a sworn statement,” Barrett noted.

A shift to a more originalist-minded Supreme Court is coming at a time when the spotlight is on higher education, as race-based admissions and the stifling of campus free speech have become controversial flash points.

While Judge Barrett’s views on campus free speech and racial preferences are less documented, she drew clear lines between herself and the late Justice

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Federal judge rules students have no constitutional right to civics education — but warns that ‘American democracy is in peril’

In an extraordinary decision that referenced President Trump’s tweets to postpone the November presidential elections, U.S. District Court Judge William Smith said the public school students who filed the lawsuit were not on a “wild-eyed effort to expand the reach of substantive due process.” Rather, he said, they were issuing “a cry for help from a generation of young people who are destined to inherit a country which we — the generation currently in charge — are not stewarding well.”

“What these young people seem to recognize is that American democracy is in peril,” he wrote (see opinion in full below). “Its survival, and their ability to reap the benefit of living in a country with robust freedoms and rights, a strong economy, and a moral center protected by the rule of law is something that citizens must cherish, protect, and constantly work for. We would do well to pay attention to their plea.”

The class-action lawsuit filed two years ago by 14 named students and their parents said that Rhode Island Gov. Gina Raimondo (D) and state education and legislative leaders had failed to provide them with an “education that is adequate to prepare them to function productively as civic participants capable of voting, serving on a jury, understanding economic, social, and political systems sufficiently to make informed choices, and to participate effectively in civic activities.”

That failure, the lawsuit said, violated their constitutional rights under different parts of the Constitution that they said guaranteed them the right to an education that prepares them to be active citizens. The lawsuit said the defendants had “downgraded the teaching of social studies and civics, focusing in recent decades on basic reading and math instruction” and “neglected professional development of teachers in civics education.”

But Smith said in his ruling last week that in regard to the contention by students that their constitutional rights included a right to civics education, “The answer to that question is, regrettably, no.” He said, however, that the students “should be commended for bringing this case,” believed to be the first of its kind in a U.S. court.

“It highlights a deep flaw in our national education priorities and policies,” Smith wrote. “The court cannot provide the remedy plaintiffs seek, but in denying that relief, the court adds its voice to plaintiffs’ in calling attention to their plea. Hopefully, others who have the power to address this need will respond appropriately.”

Derek Black, a professor at the University of South Carolina’s School of Law and an expert on constitutional law and education law, criticized the ruling, saying: “State courts across the country routinely answer these types of questions. The notion that a federal court cannot act, when states have otherwise failed to do so, is inconsistent with the history of public education.”

There has long been concern about the lack of comprehensive civics education in America’s schools, especially during the past few decades when education reform policy was focused on raising standardized test scores in math and

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94% of requests for student loan forgiveness rejected; judge slams Education Department

Months after vowing to process a backlog of 160,000 requests for loan forgiveness from students who say they were defrauded by their schools, the U.S. Education Department has rejected 94% of claims it has reviewed, according to a federal judge who is demanding justification for the “blistering pace” of denials.

In a biting decision issued Monday in California, U.S. District Judge William Alsup said the department has been denying claims using template letters that are “alarmingly curt.” Alsup threatened to suspend the agency from rejecting further requests, saying its approach “hangs borrowers out to dry.”

He said that although Education Secretary Betsy DeVos blamed the backlog on the hard work that goes into processing claims, she has now “charged out of the gate, issuing perfunctory denial notices utterly devoid of meaningful explanation at a blistering pace.”

The Education Department said it is studying the ruling. Spokesperson Angela Morabito said many claims were submitted by borrowers who attended ineligible programs or who failed to make a valid claim for loan forgiveness.

“Just because a claim was filed does not make it valid and eligible for taxpayer-funded relief,” she said in a statement. “The Department is following the publicly available process for resolving claims as quickly as possible, so those students who are eligible and were harmed get the relief they deserve.”

The dispute stems from a 2019 lawsuit brought by 160,000 borrowers who say the Education Department illegally stalled their claims for loan relief. The claims were filed through a program known as borrower defense, which forgives federal student loans for borrowers who are cheated by their colleges. It’s most often used by students who attended for-profit colleges.

In a proposed settlement in April, the Education Department agreed to process the backlog of claims within 18 months. But Alsup scrapped the deal Monday, saying it was undermined by the recent spate of rejections. Instead, he called on the lawsuit to proceed and he authorized the deposition of up to five department officials to explain the denials.

“We need to know what is really going on,” wrote Alsup, who was appointed to the court by President Bill Clinton. He said DeVos will not be required to appear for deposition “at this time,” but he suggested it may be necessary later.

DeVos set out to overhaul the loan forgiveness program in 2017 and last year released new rules making it more difficult for borrowers to get loans erased. In the meantime, claims were piling up. When the lawsuit was filed, it had been a year since the department issued a final decision on any claim.

The program had been expanded by President Barack Obama to erase loans for students who attended the Corinthian Colleges chain and other for-profit colleges found to have lied about the success of their graduates. DeVos opposed the expansion, saying it made it too easy for students to get their loans erased at the expense of taxpayers.

Alsup’s decision was based on the department’s latest update on its work

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Giants’ Joe Judge doesn’t commit to Andrew Thomas at left tackle after Matt Peart’s solid first career start

Giants head coach Joe Judge reiterated that Andrew Thomas’ benching to start the game against Washington on Sunday was a disciplinary benching, not performance related.

But after Matt Peart put together a solid game while splitting time with Thomas, is there any doubt that Thomas – the Giants’ fourth overall pick in this year’s draft — will be the starting at left tackle this Thursday against the Eagles?

It’s a legitimate question for Judge to consider, as Peart performed well in his 26 snaps at left tackle. In fact, Pro Football Focus graded him the highest of any Giants offensive player that was in for more than 25 snaps on Sunday. He had an 89.7 overall grade with a 93.4 run block grade. He also allowed one pressure in 11 pass block attempts.

When asked about the position for this upcoming game, Judge didn’t commit to Thomas returning to his normal starting job at left tackle.

“Yeah, we’ll go through practice this week and see how everything shakes out right now,” Thomas told reporters via Zoom. “But I was pleased with the way both he and Matt played along with Cam [Fleming]. We have multiple guys that can play the positions.”

That is typical Judge speak – not committing to anyone being a starter and earning it through practice and hard work. So maybe these couple of practices before the game will show Judge whether or not Thomas deserves another start over Peart. He did mention that every tackle gets reps on both sides of the offensive line to make sure they’re ready for anything.

It would be pretty telling, though, if Thomas was benched yet again for Peart to start at left tackle considering Thomas’ draft status and $32 million rookie deal. In the second half, Thomas was actually taken out of the game after allowing Montez Sweat to get around him quickly on a third-and-short run attempt that was a poor attempt at setting the edge and ended with Devonta Freeman not picking up the first down.

In Thomas’ defense, he has been going up against some of the best edge rushers in the league in the past few weeks like Bud Dupress, Demarcus Lawrence and Khalil Mack. Peart hasn’t had such luxury to battle with those NFL studs, but at the end of the day, this is the NFL and that’s the competition both players will be seeing on a weekly basis. 

Derek Barnett and Brandon Graham, two first-round pick themselves, are this week’s challenge. They have 7.5 total sacks between them in the last five weeks.

Still, Peart was drafted out of UConn in the third round and was considered a developmental player that had the potential to play a tackle position in the future. But his teammates are noticing during practice that he hasn’t been performing that way nor does he even seem like a rookie at all. His game against the Football Team further justified that thinking.

“He’s definitely a

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Education Of A Tax Court Judge

In a recent interview Judge Albert Lauber of the United States Tax Court told me that he is a textualist. And you may find what in his education influences his textualism surprising. It was the study of classical languages, particularly Greek. So every time a CPA looks at a Code Section and says “It is all Greek to me”, Judge Lauber probably smiles.

Textualism In The News

We have been hearing about textualism in the hearings on the nomination of Amy Coney Barrett to the Supreme Court, which makes Reading Law: The Interpretation of Legal Texts by Antonin Scalia and Byran Garner timely:

We look for meaning in the governing text, ascribe to that text the meaning it has borne from inception, and reject judicial speculation about both the drafters’ extratextually derived purposes and the desirability of the fair reading’s consequences.

It reminds me just a bit of Reilly’s First Law of Tax Planning – It is what it is. Deal with it.

The late Justice Scalia is seen as something of the apostle of textualism and like Barrett was noted as being a devout Catholic. But at the end of the day, that is not what textualism is about. Judge Lauber is a gay atheist. He does however have something else in common with Scalia besides textualism, as we will see.

Education – Lawyers Versus Accountants

When I started blogging I thought of the Tax Court as kind of an abstraction, not paying any attention to the idea that the judges were individuals. Lew Taishoff, who blogs the Tax Court with incredible intensity taught me better. Mr. Taishoff gives the judges nicknames. James Halpern is “Big Jim”. Diana Leyden is “The Taxpayer’s Friend”. Maurice Foley is “Mighty Mo”. Lauber is “Scholar Al”.

I noticed Judge Lauber in the Susan Crile decision. Crile was a professor at Hunter College and a renowned artist. Her activity as an artist independent of her professorship was challenged as not being profit-oriented enough to pass muster under Section 183.

 Judge Lauber’s assessment of her artistic career made me reflect on how much better-educated lawyers generally tend to be in comparison to accountants. Judge Lauber seemed to be even above and beyond there and it shows up in his CV. He has a BA and a JD from Yale, but squeezed in between those is an MA in classics from Clare College in Cambridge. Clare College was already over 300 years old when Elihu Yale was born in 1649.

So between his bachelor’s and law school, Judge Lauber spent three years studying literature in ancient Greek and Latin. Judge Lauber told me that the study of Greek, in particular, is what helped make him a textualist. 

And

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Judge rules against students seeking better civics education

A federal judge has dismissed a lawsuit brought by a group of Rhode Island school children demanding a better civics education in the nation’s public schools, but in the same decision praised the students for bringing attention to the issue and lamented the delicate state of American democracy.

The class-action lawsuit filed in November 2018 by 18 plaintiffs asked the court to confirm the constitutional right of all public school students to a civics education that prepares them adequately to vote, exercise free speech, petition the government and actively engage in civic life in a democratic society.

U.S. District Court Judge William Smith in his 55-page ruling released Tuesday said that right has not been recognized by the U.S. Supreme Court.

But, he also warned of a “democracy in peril” and referenced the global coronavirus pandemic, the killing of George Floyd and media reports about tweets from President Donald Trump that suggested the upcoming election should be postponed because of perceived voter fraud.

“This case does not represent a wild-eyed effort to expand the reach of substantive due process, but rather a cry for help from a generation of young people who are destined to inherit a country which we — the generation currently in charge — are not stewarding well,” he wrote. “What these young people seem to recognize is that American democracy is in peril.”

Michael Rebell, a professor at Teachers College, Columbia University, and lead attorney for the students, said the decision would be appealed to a higher court.

“Judge Smith has written the most eloquent and forceful justification I’ve ever read for why American democracy is in peril and why America may not ‘survive as a country’ if our students don’t obtain a civic education adequate to allow them to meet that challenge,” he said in a statement.

The defendants in the case were several state political leaders, including Gov. Gina Raimondo, as well as former state Education Commissioner Ken Wagner.

Current Commissioner Angelica Infante-Greene also praised the students for bringing the suit, but defended the state’s civics education.

The suit “did not fairly depict the state of civics education in the state,” she said in a statement.

“However, I join Judge Smith in commending the plaintiffs for bringing the suit and calling attention to a critical issue and challenging all of us working in the field to do better,” she said.

Smith, in his conclusion, called on the country to address the students’ concerns.

“Plaintiffs should be commended for bringing this case,” he said. “It highlights a deep flaw in our national education priorities and policies. The court cannot provide the remedy plaintiffs seek, but in denying that relief, the court adds its voice to plaintiffs in calling attention to their plea. Hopefully, others who have the power to address this need will respond appropriately.”

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