Confession by Stand-Up

The border crisis is not a pandemic crisis.

By and

In this first episode of the new year, Sarah and David bring a smorgasbord of topics to the table. They cut through the confusion in the legal battle over Title 42 and the question of lingering pandemic law. Also: Comedian Jeff Ross makes headlines by unwittingly getting involved in a death penalty case, and the 11th circuit court of appeals hears a heated case involving a Florida school’s transgender bathroom ban.

Oh and yes… David makes a bittersweet announcement.

Show Notes:

Supreme Court Ruling over Title 42

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  1. Lodomojo

    I am impressed with the content knowledge of David & Sarah, and I also appreciate their camaraderie and efforts to make technical legal minutiae accessible to those of us who do not have legal backgrounds. I like that this podcast is engaging rather than “stuffy.” Having said that, at times the pod becomes a bit too chatty, with chuckles and banter feeling more like filler rather than actually moving the conversation forward. These pods could easily be shorter than an hour + with less unnecessary talk show banter.

    One specific example from this pod: when David had difficulty using the term “genitalia” during the segment about trans bathrooms in the Florida school and the ensuing chuckles from Sarah. I might expect such a moment if the pod were hosted by high school students, but not from adults. A pinch more professionalism and sharper focus in the discussion would help make this good podcast great.

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    Leo

    If David is going to the NYT can he fix their terrible reporting on UK (🇬🇧) legal issues?

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  3. Tom Johnson

    "[Title IX] is a very short statute that has a lot of knock-on ramifications that get very, very complicated." - D.F.

    That's for sure! A pending federal case in Michigan (Eastern District; 1:22-cv-11818-TLL-PTM DOE v. ROE et al) invokes Title IX regarding an issue that probably few would have expected: birthday spankings.

    The essential facts are not in dispute. Last year on the occasion of her eighth birthday, an elementary student in the town of Hemmeter ("Minor Doe") was taken into a bathroom and received a non-disciplinary spanking from the school custodian, who also pinched her bottom ("a pinch to grow an inch"), apparently having done likewise to other students prior to this.

    A lawsuit by the girl's parents, in which the custodian, principal, school district and superintendent are named as defendants, contends that the spanking and the pinch constituted "employee-on-student harassment" and that "said sexual harassment and assault was based on sex [i.e., gender]."

    The reasoning for the claim of sex discrimination is not spelled out in the complaint, so I'm wondering if the female custodian ("Defendant Roe") had reserved such treatment for female students. Especially if her M.O. was to take the child into a bathroom, an opposite-sex victim would arguably compound the transgression of social norms. Were boys ever subjected to "birthday spankings" from Defendant Roe or from other school employees? What exactly made Minor Doe a target for this behavior (apart from her date of birth)?

    The case is liable to open a can of worms with regard to school spanking of a more official and physically painful nature, i.e., corporal punishment, which is still legal in 19 states--although not in Michigan. Consider this excerpt from the 1999 book "Dangerous Schools: What We Can Do About the Physical and Emotional Abuse of Our Children," by Irwin Hyman and Pamela Snook:

    *** "When the Rose family called me and detailed the events, I could not help but think about Shelly [Gaspersohn's] case and the change in the law regarding sexual harassment since 1982. Bria [Rose's] trauma, like Shelly's, was similar to that of a rape victim. The major difference is that Bria was assaulted after the passage of Title IX. When I talked to Phyllis Schiff, Bria's attorney, it was difficult to contain my excitement. Could this be the case that would end all paddling of female students? Then, if that occurred, would it not be sexual discrimination to paddle only males? Ideally, this case would go to trial and Bria would win." ***

    She didn't win, which IMO was a travesty; however, Title IX was not invoked in her claim with respect to the very practice of paddling. Hyman rather anticipated the anti-discrimination law becoming an issue in the event schools decided to exempt female students. While a Title IX challenge to corporal punishment itself on the grounds of *inherent* gender-disparate impact (e.g., due to female-specific medical vulnerabilities) has yet to be tested, few would dispute that students have a right to be disciplined in a way on which their gender has no bearing.

    Yale law professor Justin Driver in his 2018 book "The Schoolhouse Gate" hints at a Title IX challenge based rather on the sexual connotations of male educators spanking older female students. These concerns are no doubt heightened in the #MeToo era. Notably, many school districts that allow corporal punishment require that whoever administers it be of the same gender as the student. School officials almost never state a reason for this rule (which was violated then repealed in a widely publicized 2012 case from Springtown, TX), but the probable effect in any case is to create a gross disparity in the disciplinary treatment of boys versus girls. Given that men on average have greater upper body strength than women, it's reasonable to expect that paddlings administered by men will tend to be more forceful—and thus more severe—than those given by women. As much as men might aim to strike no harder than their female colleagues or, conversely, women may strive to match the force of their male colleagues, it's unrealistic to suppose that male and female paddlers will be consistently close to equal in the velocity of their swing. As a result, under the policy of same-sex paddling, the typical severity of punishment for any given misbehavior is apt to depend on whether the student in question is a boy or a girl, given that boys are likely to receive harder swats.

    Paddling is an impact-based and imprecise method of inflicting pain, with many significant variables in addition to the paddler's strength—size of the paddle, mood of the paddler, etc.—which are also apt to produce a great deal of unevenness in the degree of pain intensity that one student receiving a certain number of blows might experience compared to another receiving the same number. However, these other variables are randomly distributed among all students and not particularly divided along lines of gender, race, or any other characteristic subject to Title IX protection. The same cannot be said for a requirement that boys be struck exclusively by men and girls be struck exclusively by women.

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  4. Helbock

    The pandemic may be over in the USA but it does not seem to be over everywhere. If that is true then T-42 is helping protect us from unscreened immigrants coming from multiple places and is therefore consistent with its original intention.

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  5. Lovell.Eugene

    Good luck at the New York Times. I will see you there (though I will continue to prefer the Dispatch). At 66, I largely agree that every year (or decade) gets better. Absolutely adore time with my grandkids now, and love the time with my adult children. I could almost take a pass on my children’s teenage years. Mostly good, but …. Whew!

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    Bill Dyer (aka Beldar)

    The standup comic case will not be touched by the SCOTUS, assuming (as I do, with confidence) that Mr. French's & Ms. Isgur's descriptions of it are accurate. In fact, it sounds to be close to, or perhaps across, the borderline of frivolous. If the petitioner's advocate made it seem more substantial by generating a wave of support ON TWITTER, I emphatically disagree with Ms. Isgur that that would constitute commendably "zealous advocacy" of one's clients within the bounds of the law. Twitter is not the law. Twitter is a corrosive force that cheapens our national discourse and, apparently, seduces lawyers who otherwise are capable of good judgment into abandoning that good judgment for the sake of re-tweets and other social media ephemera.

    This case wasn't worth discussing, and I encourage Mr. French and Ms. Isgur to ask yourselves: Would you have brought it to your audience here but for the Twitterati who were apparently misled into thinking it was something of a big deal?

    Twitter delenda est.

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  7. MathewA

    David, you and Jonah were the reason I joined The Dispatch. I'm very sorry to see you go.

    That being said, I won't be following to the NY Times. They seem to have a mission directly in contrast to The Dispatch. Shoddy biased journalism that you can't trust. Combined with a toxic work environment (see Bari Weiss etc). Good luck

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    Tele

    Sarah,

    I remember in junior high thinking that as adults all the petty clique stuff would disappear and life would be lived via merit.

    One of my great disappointments in life is how much of it still feels like a junior high lunchroom.

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  9. Joe1776

    Harmless error:
    The defendant likely objected to the video at the sentencing hearing (since the error objection was preserved) and the prosecutor argued it was relevant and should be informative for the jury. The trial judge agreed with that assessment at the sentencing hearing. I always consider it a hit on the credibility of the court for the appellate court to then say oh you know what? This evidence was clearly irrelevant to sentencing and therefore violating this defendant's constitutional rights was harmless error. Now if the evidence was entered for some other reason like to prove he was guilty at the underlying trial then I think that is different. But if it was at the sentencing hearing I think it is a real cop out and courts abuse the harmless error doctrine to take these contradictory stances. (Its also contradictory for the prosecutors - who I think should be estopped from making that argument - but that is my opinion and clearly not the law.) The law allows appellees to take all sorts of contradictory positions in order to uphold trial courts.

    As to the comedian being a state actor I agree though. It all sounds a bit weird. Was he there to try to entertain the inmates or there to use the inmates as a sort of prop for his show or something? Captive audience.

    But even so it is clearly much different than the twitter situation where the FBI and now apparently the senate majority leader was, directly telling private companies to censor constitutionally protected speech and members of the press. It is depressing to think these constitutional violations and corruption would have remained entirely hidden if it were not for an eccentric billionaire deciding he wanted to buy the whole thing at an inflated price.

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    1. Indy Tim

      The admission of irrelevant evidence doesn't violate the constitution. It violates the rules of evidence. But when you're moving a case from the state courts to the federal courts via a habeas petition, a violation of an evidentiary rule rarely affords relief.

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      1. Joe1776

        By pushing for the admission of the evidence the court and prosecutor at the very least implicitly affirm it is relevant to sentencing - assuming it was entered at the sentencing stage. (if it wasn't entered at the sentencing stage/for that purpose then I agree harmless error is a legitimate argument). So you have the prosecutor arguing that a fact finder should find this video relevant for the purpose of increasing the sentence and the trial court agreeing with rational since he allowed the evidence over the defense objection. And then suddenly at the appellate level the prosecutor is arguing no reasonable fact finder would think this video is a good reason to increase this person's sentence - flatly contradicting what he alleged earlier.

        The harmless error doctrine says even if we assume admitting the evidence is a violation of the constitution it was harmless. If they find it was not a violation of the constitution (which David, Sarah, and I think will happen) then harmless error plays no role. It is *only* if they find it does violate the constitution that the harmless error doctrine will be *dispositive.*

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  10. Mary Stine

    I wish you well at the NY Times, David, but I will sorely miss your Sunday epistles. I hope the Times staff and readership appreciate your unique and much needed voice.
    I should also note that as a more center left, old fashioned liberal, there are areas we may never agree on. I'm okay with that, as my faith tells me that God can heal anything. The most important thing, however, is that your writing has illuminated so many things in modern life that have abraded my spirit and soul.
    Thank you and may God continue to bless and protect you and your family.

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