Student prevails in part in UMass Amherst due process disciplinary case in First Circuit

Last week the First Circuit held in favor of a student accused of a violent assault; however, the court largely upheld as constitutional the due process provided to the student in campus adjudication.

The case adds to federal appellate precedent on the requirements of procedural due process on campus.  The First Circuit's conclusions on these facts are not new water marks.  At the same time, observers predict that the multitude of circuit disagreements in this area will lead inevitably to a U.S. Supreme Court ruling.

In the instant case, a male student was accused of a violent assault on a female student, his romantic partner, while studying abroad in Spain under the purview of the University of Massachusetts, Amherst.  The First Circuit ruled that the university failed to provide adequate notice and hearing prior to imposing a five-month suspension on the student, after the allegations but well before the adjudication.  Authored by Rhode-Island-born U.S. Circuit Judge William J. Kayatta Jr., the court's holding came from a unanimous three-judge panel that included retired U.S. Supreme Court Justice David Souter.

The court affirmed judgment for the university as to the adequacy of the campus adjudication and consequent expulsion of the accused.  The student had challenged the adjudication for the exclusion of some evidence and the lack of opportunity to confront his accuser.  Constitutional rights in the context of the campus administrative process were not offended by those omissions, the court held, applying the flexible procedural due process test of Mathews v. Eldridge (U.S. 1976). It's the latter point, confrontation, that especially vexes critics and marks arguable disagreement with other circuit courts. 

The case arises against the backdrop of a heated national debate over higher education reform.  To my consternation, Title IX has become an area in which serious cases of sexual harassment and physical assault are lumped together on the nations' campuses with gross abuses of the rights of students and faculty.  Legitimate disciplinary processes have been perverted, and therefore caused to undermine civil rights law, by overzealous bureaucrats seeking to enforce politically correct group-think on students and to undermine academic freedom and faculty governance.  Purely in my personal capacity, I filed my own observations with the Department of Education in March.

The instant case is Haidak v. University of Massachusetts-Amherst, No. 18-1248 (1st Cir. Aug. 6, 2019).

Profs talk pop culture at law school conference

At the annual meeting of the Southeastern Association of Law Schools in the last week of July, colleagues and I had the opportunity to share ideas about teaching law with popular culture. I learned a great deal at that session (and others).  I was able to share about my own use of audiovisual content as it's changed over the years.  I'll say more as we near publication of our book project, The Media Method.  Meanwhile, this teaser ....

Carolina Academic Press mocked up a display copy of the forthcoming Media Method.

Contributors to The Media Method include Professor DeLeith Duke Gossett at Texas Tech School of Law. Presenting at center here, DeLeith is a former student of mine. Teachers will understand the giddy pride induced by collaborating with such a colleague.

Save 25% if you order The Media Method in 2019!
Use the Code TEACH19 when ordering online at caplaw.com. 

'Lights, Camera, Execution!': Political scientist Helen Knowles co-authors new book on capital punishment and popular culture

A new book by poli sci prof and legal researcher extraordinaire Dr. Helen Knowles, SUNY Oswego, has hit the shelf.  It explores the dark edge of the border where popular culture and criminal justice meet.  In this sense it is partly reminiscent of John D. Bessler's unsettling Death in the Dark: Midnight Executions in America (Northeastern 1997) (Amazon).  Supreme Court followers will remember Dr. Knowles for her landmark study of Justice Kennedy in The Tie Goes to Freedom (2009 & updated 2018) (Amazon).

In Lights!, Camera!, Execution!: Cinematic Portrayals of Capital Punishment (Lexington Books 2019) (Amazon), Knowles and co-authors Bruce E. Altschuler and Jaclyn Schildkraut explore the interplay of popular portrayal of the death penalty with the real thing, considering the implications of mass media for policy-making when, literally, lives are on the line.  Here is the publisher's abstract:
 

Lights, Camera, Execution!: Cinematic Portrayals of Capital Punishment fills a prominent void in the existing film studies and death penalty literature. Each chapter focuses on a particular cinematic portrayal of the death penalty in the United States. Some of the analyzed films are well-known Hollywood blockbusters, such as Dead Man Walking (1995); others are more obscure, such as the made-for-television movie Murder in Coweta County (1983). By contrasting different portrayals where appropriate and identifying themes common to many of the studied films – such as the concept of dignity and the role of race (and racial discrimination) – the volume strengthens the reader’s ability to engage in comparative analysis of topics, stories, and cinematic techniques.Written by three professors with extensive experience teaching, and writing about the death penalty, film studies, and criminal justice, Lights, Camera, Execution! is deliberately designed for both classroom use and general readership.

State FOIA critical in practice, not so much in law school, law student observes

Connor Gillen, UMass Law '21 and a thriving alum of my 1L Torts class, was featured in the local Cape Cod Times during his summer internship with the general counsel of the Barnstable County Sheriff's Office.  Connor's a good bloke, "now considering working in the public sector after graduation."  I was intrigued to read, amid his report:

While interning at the Sheriff’s Office I also learned about the Massachusetts Public Record Laws and the Massachusetts Statewide Records Retention Schedule. These are areas that I would not have learned about in my law school classes, and the information I was taught will give me an advantage once I graduate and become a practicing attorney.

He's no doubt right about that.  Somebody ought to write a casebook about multistate access norms, maybe teach a seminar.  Probably wouldn't sell well, though.

Polish court enjoins Facebook 'private censorship': just one sign of new norms in digital rights

Much worry about censorship today focuses on the private sector, specifically and especially the large tech companies--Google, Facebook, Twitter--who have so much power over what we read, hear, and see.  When I was in journalism school, in ethics class in the early 1990s, a student once mentioned the possibility of a news organization withholding a sensitive story and worried that that would be "censorship."  Professor Lou Hodges--a great teacher, great person, since deceased--vigorously corrected the student, saying that censorship by definition must be governmental action. 

Louis Hodges, W&L

Well denotational niceties aside, and with the great respect due to Professor Hodges, I'm not sure the distinction remains salient.  I've been worried about the private sector in the free speech realm for a long while.  I've already posited in print that the greatest looming threat to the freedom of information around the world today is not government, but private corporations, and I've started writing about what can be done (what already is being done in Africa, relative to: the United States, India, and Europe, forthcoming).  Indeed, even the classical distinction between freedom of expression and the freedom of information has lost much salience in the information age.

In the United States, for good historical reasons, our constitutional law draws a sharp line between the freedom of speech and the freedom of information, and also between state action, "censorship," and private action, so-called "private censorship."  Both of those lines have eroded in the real world, while our law stubbornly insists on them.

Foreign constitutional systems, such as the European and African human rights regimes, do not come with the historical baggage that carved these lines in U.S. constitutional law.  These younger systems are proving more adept at navigating the problem of private action that would suppress speech and information.  That flexibility has meant full employment for lawyers in the counsel offices of Big Tech.

It also means that the law of the internet and the law of digital rights is no longer being authored in the United States.

In Poland, a digital rights organization called the Panoptykon Foundation--I assume named for the legendary imaginings of English philosopher Jeremy Bentham--is litigating without shame against Big Tech, Google and Facebook included.  In a suit against Facebook, Panoptykon has taken up for "SIN," an (acronymed appropriately if coincidentally?) anti-drug NGO in Poland.  SIN apparently suffered content-based take-downs and blocks on Facebook.  It's not clear why Facebook (algorithms? censors?) targeted SIN, though TechCrunch speculated that it might have to do with SIN's strategy on drug counseling: more of a "use responsibly" approach than an abstention-only approach.

The action is based on Polish statute, which guarantees freedom of speech and does not get hung up on any American-style state-action limitation.  In June, a Warsaw court ex parte ordered (in Polish, via Panoptykon) Facebook to stop blocking or removing any online SIN content, pending litigation.  Technically the respondent in the case is Facebook Ireland.  But one can imagine that American Facebook execs are on alert, as foreign courts fuss ever less over the public-private distinction.

Professor Hodges might roll over in his grave to hear me say it, but I am confident that "private censorship" will be the free speech story of the 21st century.  America will be dragged into a new world of legal norms in digital rights, willingly or not.  I would rather see us embrace this new world order and confront the problem of a runaway private sector than see our civil rights law relegated to legal anachronism.

Read about SIN v. Facebook at Panoptykon.  Hat tip @ Observacom.

Tragic legacy of conquest renders astonishing diversity on South America's northern coast today

The Guianas (ArnoldPlaton, CC BY-SA 3.0)

I spent time this summer exploring the Guianas--Guyana, Suriname, and French Guiana, on South America's northern coast--and Trinidad and Tobago, an island nation just off the coast of Venezuela.  This is a lesser visited part of the world, to be sure, though it boasts a rapidly developing touristic infrastructure that might be the envy of Caribbean and Brazilian neighbors in the decades to come.

As guides and new friends patiently explained across a mind-blowing array of geographic and historical sub-contexts, the story of this southern basin of the Caribbean is a tragedy of colonial conquest, yet yields today a triumphant range of blended cultural traditions.  Mixed ethnic backgrounds deriving identities from dramatically different parts of the globe informed the experience of the people I met more often than not, rendering a picture of diversity--and moreover of peaceful co-existence--like none I have seen elsewhere in the world.

Ruela Goedewacht is head of the Johannes Arabi primary school in Nieuw
Aurora, Suriname (CC BY-SA 4.0). The Peace Corps painted this world map,
and the school features many beautiful murals for the kids to enjoy.

European possession of these lands was itself a shifting game of Old World thrones, with the British, Dutch, French, and Spanish variously laying claims.  The Europeans then sought to exploit their possessions on the backs of slaves and indentured servants, who arrived in waves from China, India, and Africa.  All of these newcomers mixed violently and not, as usual in the Americas, with the people who now identify as Amerindians, themselves a diverse array of nations to begin with.  Later, in the twentieth century, America found ways to insert its cultural and political presence with the avowed aim of regional security, jumbling cultural allegiances yet again.

Anthony Luces of Trinidad Food Tours at left (CC BY-SA 4.0). At center
is my security officer and virtual nephew, Casey Bius.

As a result:  Churches, mosques, and temples of various kinds take up residence adjacently to one another.  Public calendars are speckled with holidays and cultural traditions, whether Ramadan, Christmas, Holi, or the solstice, which enjoy a surprising embrace of mutual observance--not to mention the universally beloved Carnival.  Many people are fluent in multiple dissimilar languages, from Marroon and Amerindian tongues traceable to African and indigenous tribes, to the curving script renderings of the Far East, as well as unique Creole blends of native and European tongues.  And to my mouthwatering delight, the food traditions have produced unprecedented and delectable blends, such as South American-cultivated beef (Western) in a cumin-rich sauce (Indian/Hindu), or pork ribs (Eastern) upon flatbread (Indian/Muslim).

Dino Ramlal of Travel the Guianas, center. At left is one of my steadfast
travel companions, Debby Merickel, who blogs at the Aging Adventurer
(CC BY-SA 4.0).

Ordinarily I travel independently.  But that's not easy in the Guianas.  Developing infrastructure makes local knowledge and a network on the ground essential, unless you have ample time to burn with missed connections.  If you wish to explore the Guianas, I cannot say enough about Dinesh "Dino" Ramlal and his team at Travel the Guianas.  Sign up before Dino realizes how much more he should be charging for his hard work.  Also, I am especially indebted to Anthony Luces, owner and guide of Trinidad Food Tours, for his mind- and  mouth-enriching street food tour of Port of Spain, Trinidad.  To tell you more would spoil the surprises.

Charcoal ice cream on the streets of Port of Spain (CC BY-SA 4.0).

OK, three words:  Charcoal ice cream.

I've said too much.

Torte-spotting

Not savory. Not a tort. Possibly not actual food. And yet my interest is piqued.

Spotted at Rummy Mini Mart, Factory Road, Port of Spain, Trinidad.