Mirror of Justice

Approaching Equilibrium in Free Exercise of Religion Decisions in the Federal Courts

This is the second of three postings about the empirical studies that Michael Heise and I have conducted on religious liberty decisions in the lower federal courts. Today, I am sharing our findings about our most recent study of Free Exercise of Religion decisions. We have good news to share here, which is that equilibrium or equality is within reach for Free Exercise claimants from different religious backgrounds.

This article is titled Approaching Equilibrium in Free Exercise of Religion Cases? Empirical Evidence from the Federal Courts, was published in the Arizona Law Review, and is available in full (link here).

Our dataset for 2006-2015 religious liberty decisions consisted of 2,847 judicial participations (773 by district court judges and 2,074 by court of appeals judges). This dataset of these religious liberty decisions is unprecedented in its size and its inclusive­ness of judicial actors from multiple Article III courts. In addition to including multiple decisions from every one of the 13 federal courts of appeals, our dataset includes decisions from district judges in 90 of the 94 federal districts.

Before multivariate regression analysis, the religious liberty claim was favorably received by the ruling judge 37.7% of the time. In the 30 years of decisions in our studies, this success rate has remained remarkably stable, consistently falling within a two percen­tage point band. For the 1986–1995 period, that positive ruling rate was 35.6%; for 1996–2005, it was 35.5%.

The chart accompanying this post sets out the religious identities represented in this study, by percentage of observations.

Unfortunately, as scholars and observers have long noted, America’s history of religious tolerance has been blemished by inequality and intolerance, with certain religions favored by political and judicial recognition, while other religions have been disadvantaged and left unprotected by the courts against majoritarian demands. Indeed, in our prior study for 1996–2005—during the period leading up to and following 9/11—we found that Muslims were experiencing a dramatic deficit of success in free exercise claims, succeeding at only about half the rate of other religious claimants.

But the past need not predict the future. For the most recent period we studied, 2006–2015, things appear to be moving toward that aspirational point where claimants from most religious backgrounds across the spectrum of religious experience in American life suffer no systematic disadvantage in seeking accommodations for religious exercise. With shrinking exceptions, judges of the federal courts of appeals and district courts appear to be adjudicating constitutional and statutory religious exercise claims with even-handed impartiality. Claims by Catholics, Mainline Protestants, Baptists, Seventh-day Adven­tists, Mormons, Muslims, and others did not achieve success or experience failure at a significantly different rate than for claims of the same type made by others.

The Brittanica Dictionary defines “equilibrium” as “a state in which opposing forces or actions are balanced so that one is not stronger or greater than the other.” The followers of one religion should neither enjoy a greater probability to prevail nor suffer a disadvantage in seeking state recognition of religious practices, when such unequal results are based on religious identity of the follower or the cultural dominance of that religious tradition. If religious liberty in America is to be genuinely available in practice, as well as in theory, it must mean that every person of every faith may expect equal consideration when presenting a demand for accommodation of religious exercise against governmental restrictions.

What prompted religious liberty adjudication to move in this encouraging direction? As with last week’s posting on Establishment Clause decisions, we find that Supreme Court clarification of the law appears to have made a substantial difference.

For example, the Supreme Court’s 2006 decision in Gonzales v. O Centro Espirita Beneficiente Uniao do Vegetal, 546 U.S. 418 (2006), provided the tools for loosening the grip of stereotypes. This decision held that the government could not preclude a religious sect from sacramental use of a hallucinogenic substance by the “mere invocation” of a general prohibition on nonmedical use of narcotics. By requiring an individualized case-specific scrutiny that focuses on the religious claimant’s particular attributes, the O Centro decision encourages the judge to abandon stereotypical generalizations and engage in a differentiated and individualized treatment of each claim.”

In this way, a court instead may better appreciate the character of the claimant’s religious practice and the nature of the requested accommodation. To undertake that examination, the judge should learn about each claimant’s faith perspective objectively and rigorously, but also sympathetically, thereby substituting new information and understanding for implicit beliefs. See also Holt v. Hobbs, 574 U.S. 352, 361–62 (2015) (directing courts to evaluate on whether the government has substantially burdened a particular religious exercise rather than other forms of religious exercise in which the claimant might engage, thus requiring courts to focus on the specific nature of a particular religious exercise).

Additional evidence in our study supports this analysis. The independent variables in our study that do achieve statistical significance strongly and comprehensively—Case-Type variables—are precisely those that should correlate with the outcome of religious liberty disputes. Not every free exercise or related claim is positioned to be positively affirmed in every context. And we find that the likelihood of success does vary by case category. Indeed, of our 12 Case-Type variables, 8 are significant, namely Public Secondary and Higher Education, Private Education, Religious Meetings, Religious Expression, Zoning, Prisoner, Exemption from Anti-Discrimination Laws, and Criminal Defense.

The remarkably comprehensive and robust signifi­cance of our Case-Type variables dovetails with doctrine to advance the equilibrium of religious liberty for diverse religions. Rather than the case turning on noncontextual and perhaps implicitly biased views of a particular religious claim, the contextual approach demands a deeper dive into the nature of the religious claim and a fine-tuned assessment of the government’s claim of an overriding public interest. We would expect, then, that some contexts are more likely to pose particularly troubling invasions of the government into private religious behavior, while others are more likely to implicate a compelling public interest in preventing harmful behavior.

Although the promised land may be in sight, we are not yet there. Significant advantages (for Native Americans and Budd­hists) and disadvantages (for Orthodox Jews and Rasta_­farians) for a small number of claimants demonstrate that work remains to be done. And the troubling indication that judges may look more favorably on claims by coreligionists belies any pretense that impartial adjudication has been fully achieved.

Through the rise of cultural tolerance, a deepening understanding of the sincere beliefs of others, and conscientious judicial attention to religious claims and countering implicit bias, the courts may be moving us closer to that ideal of robust and widely enjoyed religious liberty.

Empirical study of religious liberty decision in the federal courts: The Establishment Clause cases

One of the scholarly hats that I wear is that of an empirical researcher on religious liberty decisions in the lower federal courts. I have been greatly blessed over the past couple of decades to collaborate with Michael Heise of Cornell on this work. We have now published our most recent findings through three successive decades of religious liberty decisions, in three journal articles that have been published within the past several months.

I’ve been encouraged to share some of what we’ve found here on Mirror of Justice. I’m planning to post separately on each of our three works in the coming week or so.

I begin today with our study of Establishment clause decisions in the federal district courts and courts of appeals from 2006 through 2015. This article is titled Cracks in the Wall: The Persistent Influence of Ideology in Establishment Clause Decisions, was published in the Arizona State Law Journal, and is available in full (link here).

What has been most distinctive – and not in a good way – about our observations of Establishment Clause cases over multiple decades has been the sometimes dramatic and still persistent partisan divide among the judges, based on the party of the appointing president.

Now in our other empirical work and based on my study of the literature, let me emphasize that I do not share the view that the evidence supports a general critique of the federal courts on partisan grounds. To the contrary, only a few types of cases have shown both a statistically significant and a substantial size discrepancy in how judges appointed by presidents of different parties resolve disputes.

Indeed, we begin our most recent article by noting that the last wall of the judiciary held during the partisan political storm following the 2020 presidential election. In the federal courts, Donald Trump faced defeat after defeat, dozens of times. An impartial and non-partisan federal judiciary was having none of his unsupported claims of election fraud or his extreme requests to disenfranchise millions of voters. Judges appointed by the presidents of his own party, including judges appointed by President Trump himself, rejected in scathing terms the claims that he and his supporters raised.

As we say in the article, however, now having been reminded that a non-partisan judiciary is essential to preserve the rule of law, we should be all the more distressed when we observe federal judges returning to partisan corners on another matter.

In our most recent iteration of our empirical examination of religious liberty decisions in the lower federal courts, we found persisting evidence of a partisan divide. Holding all other variables constant, Democratic-appointed judges were predicted to uphold claims challenging government conduct on Establishment Clause grounds at a 45.1 percent rate, while the predicted probability of success fell to 33.0 percent before Republican-appointed judges.

Importantly, however, this was a substantial narrowing of the partisan gap from our study of the preceding period of 1996-2005, in which we had found that a Republican-appointed judge would accept an Establishment Clause claim only 25.4 percent of the time, while a Democratic-appointed judge would accept the claim at the significantly higher rate of 57.3 percent. Thus, for the earlier period of study, an Establishment Clause claimant’s chances for success were approximately 2.25 times higher before a judge appointed by a Democratic President than one appointed by a Republican President. By the next ten-year period, the Establishment Clause claimant advantage before a Democratic-appointed judge had fallen to about one-third higher than before a Republican-appointed judge.

So what accounts for this? We have suggested that the source of a partisan divide may be found in the absence of constraining legal doctrine that leaves judges without clear guideposts in resolving Establishment Clause disputes. But the Supreme Court has been modifying that doctrine in recent decades. And those stronger legal controls are making a difference. When the Supreme Court sets forth clearer rules for Establishment Clause disputes with less ambiguous standards, greater stability in decisions with less subjectivity followed.

For our most recent study of the 2006-2015 period, we explored the influence of the Supreme Court’s decision in Arizona Christian School Tuition Organization v. Winn, 563 U.S. 125 (2012). In Winn, the Supreme Court employed a narrowed test for judicial standing to deflect Establishment Clause challenges by a group of taxpayers against a state program allowing tax credits for contributions to qualifying non-profit organizations including religiously-affiliated schools. Observing that any funds received by the religious schools was because of the decisions of a taxpayer to contribute to the organization, the Court majority ruled that the case involved private action rather than state activity

The Supreme Court’s 2011 decision in Winn decision narrowed standing and thus reduced the occasions for a judicial finding of an Establishment Clause violation. Winn is a landmark decision that meaningfully redirects Establishment Clause juris­prudence.

And, looking at the lower federal courts in deciding Establishment Clause challenges, our variable for Winn was significant at the 99 percent confidence level and substantial in effect. For the 2006-2015 period, holding all other independent variables constant in our Party-of-Appointing-President model, our best estimate was that the success rate for Establishment Clause claimants fell from 59.7 percent to 15.8 percent after the Supreme Court decided Winn. The impact was quite dramatic, a decline of more than 40 points or nearly three-quarters.

In sum, the Supreme Court’s change of doctrinal course in Winn appears likewise to have changed the outcome course of Establishment Clause decisions in the lower federal courts. No other factor that we have explored has produced such a marked change in predicted like­lihood. This single precedent may have been a game-changer for Establishment Clause decisions in the lower federal courts.

In other words, yes, the law does matter.

Next post will be on the Free Exercise cases, where the news is good, although that must be tempered with fears of changes on the horizon.

"The Rise of the Nones"

I had the distinct pleasure of traveling to St. John's University School of Law a couple of weeks ago to participate in the spring symposium sponsored by the Center for Law & Religion, the St. John's Law Review, and the Journal of Catholic Legal Studies. The topic was the role of the so-called "Nones," that is, those without a religious affiliation, in religious liberty cases and debates.

Together with Michael Heise at Cornell, our empirical study of religious liberty decisions, including decisions by judges without a religious affiliation on Establishment Clause cases, will later be published in the St. John's Law Review (for which an earlier draft is now available on SSRN here.)

For those who could not attend and are interested, the Center at St. John's has now published a podcast with Mark Movsesian, Steve Collis, and I. You can access it below:

https://lawandreligionforum.org/2023/04/04/legal-spirits-048-the-rise-of-the-nones-and-american-law/

Cross-Post From Pioneer Press: When They Talk About Abortion, They’re Talking About Me

Today’s Sunday edition of the St. Paul Pi0neer Press includes a guest editorial I wrote, with a less commonly heard narrative on the subject of abortion:

https://www.twincities.com/2022/05/22/gregory-sisk-when-they-talk-about-abortion-theyre-talking-about-me/

Religious Tests for Public Office

We can all well recall the infamous moment when Senator Dianne Feinstein scolded Amy Coney Barrett, then a nominee for a judgeship on the U.S. Court of Appeals, that "the dogma lives loudly within you."

Many of us took the opportunity to applaud a person's faithful commitment, and, indeed, I still have my own t-shirt that reads: "The Dogma Lives Loudly Within Me."

But we also more soberly recognized this as an expression of anti-Catholic bias and an improper attempt to invoke religiosity as a disqualification for judicial office.

It is just a wrong when it comes from another direction, trying to evaluate whether a person is religious enough for judicial office.

Judge Ketanji Brown Jackson has proven herself to be a person of strong character and patient generosity, illustrating and saying that her faith has been a source of strength for her.

But that apparently was not enough for Senator Lindsey Graham who had the temerity to ask her: "On a scale of 1 to 10, how faithful would you say you are in terms of religion?" (Whether Graham meant the question or instead was posing a negative parallel to the Justice Barrett incident, the question remained way, way out of bounds.)

Judge Jackson answered appropriately in this way: "I am reluctant to talk about my faith in this way... I want to be mindful of the need for the public to have confidence in my ability to separate out my personal views."

I was thinking of the answer of Saint Joan of Arc to a similar hostile question and how apt it would have been here: "If I be not in a state of grace, I pray God place me in it; if I be in it, I pray God keep me so."

Remembering the Most Important Thing

From the first time that my University of St. Thomas offered a special Christmas Eve Mass at the Chapel of St. Thomas Aquinas, my wife, Mindy, and I have faithfully attended — other than last year during the depths of the pandemic. We were blessed to return last evening. Above is a photo I took last night of the wonderful Nativity Scene at the front of the chapel. Having seen hundreds of Nativity Scenes through the years, this is my favorite.

 

Last night, in looking at that depiction of the birth of Jesus, I was reminded of a story that the late Justice Antonin Scalia shared with a group of my faculty at the University of St. Thomas shortly before his death. As Justice Scalia had told this story to many others, including those on this list, I’m sure they could point out minor errors or omissions in my telling. But I’ll do my best and be true to my own recollection. And, as imperfect as it may be, I think it will serve the main point.

 

Justice Scalia was talking with us about how the University of St. Thomas School of Law took its Catholic identity seriously, as integrating the profession of law into the whole person of the faithful lawyer. He said the same had been true of Georgetown University, when he was an undergraduate student there.

 

As he approached graduation from Georgetown, the young Scalia had to pass an oral examination before a panel of professors in the history department. They peppered him with questions about historical events. And, as Scalia recalled it to us, “I was hitting the questions out of the park. I knew I was doing a great job.”

 

Finally, the chair of the department, a senior faculty member and Catholic priest, said, “we have one last question for you, Mr. Scalia. What was the most important event in human history?”

 

Scalia told us his thinking was, “I’ve got this. There is simply no wrong answer to this question. Any answer I give will be fine, as long as I provide a good argument for why the event I choose had a major impact on history.” He then proceeded to discuss the Battle of Waterloo and the dramatic effect that the defeat of Napoleon had on European history.

 

When he was finished, the chair of the department said, “No, Mr. Scalia, that is the wrong answer.”

 

The reverend chair continued: ”The most important event in human history was the birth of our Lord and Savior Jesus Christ in Bethlehem.”

 

And Scalia knew of course that he had been wrong. So wrapped had he been in showing his intellectual prowess on history that he had forgotten the most important thing of all. And, of course, we in the legal profession are particularly likely to mistakenly begin to think that what we are doing and saying about the law is the most important thing. It may well be an important thing. And it may be what God is calling us to do as professionals.  But it is not the most important thing.

 

So my prayer for all of us today on Christmas is that we not only remember but truly feel the love of God in this season that should be joyful. Know that God cared so deeply for us that he sent his only Son to be incarnated into a human body, born of a poor family in a stable of animals and laid in a feeding trough. God bless us all today! Merry Christmas!

Scholarly Impact and Catholic Legal Education (Part Three)

A few days ago, after reporting the 2021 update to the Scholarly Impact Ranking of law faculties (here), I began a short series of posts on why scholarly work and scholarly impact are especially important to Catholic legal education, which I conclude today.

The first point, made here, was that a meaningfully Catholic law school must be an intellectually engaged law school, which is not possible without a faculty also engaged in the quintessential intellectual activity of scholarly research and writing.

My second point, made here, was that through scholarly excellence and law school scholarly prominence, we witness to society the vibrancy of intellectual discourse by persons of faith and counter the anti-intellectual stereotype often assigned to religiously-affiliated law schools.

My third point today is that, as Catholic Christians, we have been called to share the Gospel, both directly and indirectly.  The central role of scholarly research in our academic vocation is affirmed by no less a Catholic authority than Saint John Paul II in the apostolic constitution for Catholic universities, Ex Code Ecclesiae:   “The basic mission of a University is a continuous quest for truth through its research, and the preservation and communication of knowledge for the good of society.”

For some of us on law school faculties, that directive means writing on Catholic legal theory and applying Christian-grounded principles to the legal and social issues of the day.  For all of us, it means conducting the search for the truth with integrity and dedication.  The search for the truth is hard work — and for Catholic academics that hard work requires scholarly engagement.

Turning again to the words of Ex Corde, for a Catholic university

Included among its research activities, therefore, will be a study of serious contemporary problems in areas such as the dignity of human life, the promotion of justice for all, the quality of personal and family life, the protection of nature, the search for peace and political stability, a more just sharing in the world's resources, and a new economic and political order that will better serve the human community at a national and international level. University research will seek to discover the roots and causes of the serious problems of our time, paying special attention to their ethical and religious dimensions.

Through our work — through the excellent quality, regular production, and integrity of our work (comporting with the standards of our discipline) — we may have a significant influence on the development of the law and of the legal culture.  As my Dean Rob Vischer has written (here), “a fundamental mission of law schools is to advance knowledge and thereby contribute to human flourishing.”  For religiously-affiliated law schools, Vischer says, our mission includes “producing scholarship aimed at bringing a more just world into view.”  And this scholarly mission can resonate with and be integrated into our teaching and collaborative work with students.  To again quote Rob Vischer, we should not neglect “the formative potential of inviting students to be active participants in a law school's scholarly culture.”

On the call to challenge and inform the culture, Ex Corde speaks as well to the vital importance of scholarly work:

By its very nature, a University develops culture through its research, helps to transmit the local culture to each succeeding generation through its teaching, and assists cultural activities through its educational services. It is open to all human experience and is ready to dialogue with and learn from any culture. A Catholic University shares in this, offering the rich experience of the Church's own culture. In addition, a Catholic University, aware that human culture is open to Revelation and transcendence, is also a primary and privileged place for a fruitful dialogue between the Gospel and culture.

We cannot fully participate as academics in the search for the truth without also contributing to the scholarly literature, which reaches audiences both within and beyond the walls of our own institution and which is preserved in medium so that we can affect the scholarly discourse long after we have departed.

What a tremendous privilege — and a grave responsibility.

Scholarly Impact and Catholic Legal Education (Part Two)

Last week, I reported the 2021 update to the Scholarly Impact Ranking of law faculties that I and my team at the University of St. Thomas had just concluded: here.

Three years ago, I posted a series on the importance of scholarly activity and scholarly impact for Catholic legal education.  I am revising and re-posting those, as they remain just as salient today.  This is the second in the series of three.

The first point, which I made in a post last week, is that a meaningfully Catholic law school must be an intellectually engaged law school.  Intellectual excitement and depth cannot be sustained without a faculty also engaged in the quintessential intellectual activity of scholarly research and writing.

My second point goes not only to Catholic legal education, but Catholic higher education in general:  Through our scholarly excellence and prominence, we witness to society the vibrancy of intellectual discourse by persons of faith.

Throughout American history — and with increasing tendency today — persons of devout religious faith have often been discounted in academic and other elite cultural circles, sometimes regarded as intellectually inferior.  As but one pertinent example, those who study reputational-based rankings of law schools (such as the U.S. News ranking which gives considerable weight to reputational surveys) have observed a “religious law school discount.”  See Monte N. Stewart & H. Dennis Tolley, Investigating Possible Bias:  The American Legal Academy’s View of Religious Affiliated Law Schools, 54 J. Legal Educ. 136 (2004). A law school that is religiously affiliated is likely to be downgraded an ordinal ranking level or more — due to poorer survey scoring by academic peers — when compared to otherwise equivalent law schools on objective measures such as student profile, employment statistics, faculty scholarly impact, etc.  The strongest counterpoint to this "religious law school discount" is to prove the falsity of the anti-intellectual stereotype by encouraging our colleagues to perform even better than scholars at our peer institutions without a religious affiliation.

If Catholic legal education (or Catholic education in general) is to be acknowledged as intellectually fit, then faculty at Catholic institutions must be intellectually engaged.  By producing excellent and well-written legal research, sharing our legal scholarship with others, and receiving deserved accolades for our work, we thereby enhance the intellectual reputation of Catholic legal education.

A half century ago, Monsignor Tracy Ellis provoked Catholic higher education through a speech and monograph titled, “American Catholics and the Intellectual Life.”  Monsignor Ellis indicted Catholic colleges for failing to build a strong scholarly culture, leading to the disrepute of Catholic higher education.

Tom Mengler — who is President at St. Mary’s University in San Antonio and previously was dean at the University of St. Thomas School of Law and the University of Illinois College of Law — wrote thoughtfully about Monsignor Ellis in a piece published several years ago in the Journal of Catholic Social Thought titled “Why Should a Catholic Law School Be Catholic?” (here)

Monsignor Ellis blasted away at the anti-intellectualism of the American Catholic and the mediocrity —- especially the scholarly mediocrity — of American Catholic colleges and universities. Ellis wrote that the lack of an intellectual and scholarly tradition within Catholic higher education [was] a kind of self-imposed ghetto mentality * * *.  [In the early twentieth century, Catholic colleges] emphasize[d] what Ellis called a narrow vocationalism and anti-intellectualism.

* * * By all accounts, Ellis’s tiny book had enormous impact on Catholic higher education. Just a few years after Ellis‟s book was published, Father John Cavanaugh, formerly Notre Dame’s president, credited Monsignor Ellis with upgrading scholarship at Catholic universities across the country.  At most of the major Catholic universities — throughout their academic departments, including within the law schools — scholarship suddenly became a more important focus.

In our Catholic law schools, we are the heirs of Monsignor Ellis’s intellectual legacy.  And the need for a vibrant scholarly culture in Catholic higher education remains as compelling.  As I’ll turn to with the third point later this week, the additional challenge today is to ensure that our scholarly excellence includes a critical mass of distinctly Catholic or Catholic-inspired work to influence the larger society for the good.

Ranking the Scholarly Impact of Law Faculties in 2021

Every three years, I lead a team at the University of St. Thomas to study the scholarly citations of thousands of tenured law professors (involving nearly half-a-million citations) to measure the scholarly impact of American law faculties, that is, whether other scholars are actually relying on their written works of scholarship.  Using the basic methodology pioneered by Professor Brian Leiter at the University of Chicago, we rank approximately the top third of law schools.

With the full study available here, I am pasting the Top 50 below.  Notably, five Catholic law schools appear in or near the Top 25: Georgetown, Fordham, the University of St. Thomas (Minnesota), the University of San Diego, and Notre Dame.

I am delighted that my own school, the University of St. Thomas, has remained inside the Top 25 again (at #23), far above its U.S. News ranking.

Fordham has been a remarkable success story on scholarly impact over the past decade, having debuted in our 2021 ranking at #43 and moving subsequently through #35 and #29 to arrive in the Top 25 at #23 for 2021.  While not suggesting it is anything miraculous, they do seem to be changing the water into scholarly wine at Fordham Law.

The University of San Diego continues to rank considerably higher for its faculty’s scholarly impact than the questionable U.S. News ranking. For 2021, The University of San Diego places #30 in the Scholarly Impact ranking, but is remarkably under appreciated when U.S. News drops it to #86.

Over the next few days, as I do every three years, I will follow-up with a three-part series on the importance of scholarly activity and scholarly impact for Catholic legal education.

Table 1:  Summary of Scholarly Impact Ranking of Law Faculties, 2021

Rank	Law School	Weighted Score
1	Yale	1345
2	Chicago	1110
3	Harvard	940
4	NYU	921
5	Columbia	814
6	Stanford	752
6	Cal-Berkeley	749
8	Pennsylvania	663
9	Virginia	646
9	Vanderbilt	644
11	UCLA	605
12	Duke	597
13	Michigan	545
14	Cal-Irvine	537
15	Northwestern	528
15	Cornell	527
17	Georgetown	514
18	George Washington	472
18	Texas	471
18	Minnesota	468
21	Washington U	440
22	Cal-Davis	435
23	George Mason	420
23	Fordham	414
23	Boston U	411
23	U. St. Thomas (MN)	410
27	Arizona	387
27	William & Mary	384
29	USC	382
30	U. San Diego	367
31	Notre Dame	346
31	Illinois	344
33	Cardozo	340
33	Brooklyn	338
33	Colorado	336
36	Case Western	325
36	Utah	326
36	North Carolina	323
36	Emory	317
40	Kansas	311
40	Hastings	305
40	Chicago-Kent	304
43	Ohio State	300
43	Alabama	293
43	Georgia	289
46	American	287
46	Florida State	278
46	Maryland	278
49	Temple	275
49	BYU	268
49	Wake Forest	265

Note:  Original post updated to include discussion of the University of San Diego.

Police Reform and Support for Police

Of all the divisions currently plaguing American society, one of the saddest and most self-destructive has been the tendency of too many who rightly demand accountability for police misconduct to then travel down the negative path toward outright hostility to the police.  That hostility tends to be expressed along with foolish proposals to undermine law enforcement in its essential duties.

I have been a visible and active advocate for police reform:

In my scholarly work, I have highlighted the lack of accountability for public officers for egregious wrongdoing, including sexual violence.

I have been a party to amicus briefs before the Supreme Court emphasizing the vital need for a Bivens claim for federal unconstitutional behavior when no other remedy is available.  That a federal border patrol agent may shoot an unarmed Mexican teenager in the head with no consequences and no remedy is an injustice that besmirches America.  The crucial difference between a republican democracy and tyranny is that we reject arbitrary official killing.

I have successfully represented a client who won damages for excessive use of force by law enforcement officers.

I have testified before the state legislature for the end to qualified immunity and have taken on cases pro bono to challenge application of qualified immunity.

And I just recently lost a case in the U.S. Court of Appeals that well-illustrates everything that is wrong with qualified immunity.  The prison officials involved had violated the state statute and regulation guaranteeing confidentiality for prisoner calls to attorneys; they had deliberately bypassed telephone technology and protocols within the prison that were designed to prevent eavesdropping while simultaneously preventing abuse by call-forwarding; and yet a divided appellate court still granted qualified immunity because, in the court’s view, no prior court had ruled on those precise facts.  When a rogue operation in violation of protocols and state law violates the constitutional rights of another, no qualified immunity excuse should be accepted.  And when qualified immunity cloaks such officials wrongdoing, the result is to encourage officers who push the envelope.  This in turn further undermines public trust.

But one can be strongly supportive of essential police reforms and still recognize that the vast majority of police officers are good men and women serving an essential public safety role in a dangerous climate.  The grave error is to take the righteous demands for justice to the victims of police brutality and new rules to weed out miscreant police officers and translate that into an outright hostility to the police.  We must resist the delusional belief that defunding the police does anything other than embolden criminals and increase violent crime and multiply the number of victims of trauma.  Indeed, one of the causes of police misconduct is that many police departments are severely understaffed, which makes it harder to separate those officers who are unfit and more likely that officers will be over-stressed and fatigued to the point of making poor judgments.  The empirical evidence is solid that better paid and more professional police do a better job and that more police present in the community save lives and deter a surge in violent crime (see here).

So, yes, let’s speak up clearly to denounce official misconduct.  Let’s stand up and demand transparency when police use of force has occurred to ensure that abuses are detected.  Let’s never again ignore the subcultures of racism, a warrior mentality, and anti-professional behavior that exists within many police departments.

But let us also honor the heroes on our police departments who under the most trying circumstances today still report to the job and protect us.  When I see a police officer on the job, I try to say thank you and thereby remind them that the vast majority of us are not among the shrill voices of the anti-police haters.  Let’s take every opportunity to let the brave men and women who are persevering in police protection that we are proud of them.  They became cops to help people, and the people need to honor that when appropriate.

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