The Volokh Conspiracy

My coblogger David Bernstein wrote, in a comment to my preference-for-agnostic-parent hypothetical,

It strikes me that if there is uncontested evidence that the parents agreed to raise their children in a certain, nonabusive way when they got married, the parent that follows through on the deal SHOULD be favored, whether the agreement was atheism, or religion, or whatever.

Here's my thinking on this. I'm generally a believer in enforcing contracts, even when a party changes his mind about them. The power to enter into binding contracts is an important power.

1. Nonetheless, precisely because contracts are binding, the legal system has to distinguish contracts that the parties intend to be legally binding from plans or tentative agreements that express a party's current views but that don't purport to legally bind the party in the future. "I will always love you" said to a lover is a classic example: If you want to make it legally binding (even to the limited extent that marriages are legally binding these days), you have to go through some pretty significant formalities. Without those formalities the agreement is understood as expressing a desire, a hope, or a plan, not a legally binding commitment.

Likewise with "[Christianity / objectivism / music lessons] are an important factor to me, and I feel strongly about raising our daughter this way." One can be entirely sincere about this, and in fact plan to stick by this, without intending to make a binding commitment. In fact, many people -- knowing how time and experience leads us to change our views on many subjects -- would rightly balk at making such binding commitments (just as they often, though not always, balk at turning "I will always love [my boyfriend/girlfriend]" into a binding commitment).

So if there is evidence that the parents agreed to make a binding commitment to raise their children in a certain, nonabusive way, there would be at least a serious argument in favor of enforcing the contract (though one would need to know to what extent the best-interests test can be displaced under state law by such contracts). But it seems to me a mistake to infer such a binding, long-term commitment simply from an agreement in principle, as to matters on which people's attitudes often change with time.

2. It's also important that contracts, especially contracts about religion, are clear enough that courts can sensibly enforce them. An agreement's vagueness is often a sign that the parties didn't intend it to be binding. But given the Establishment Clause constraints on theological judgments by courts (even when the courts are interpreting contracts or wills that expressly call for such judgments), it's especially important that the contract be clearly applicable using the court's strictly secular interpretive approach.

My sense is that many casual agreements about religion or the importance of religion are not sufficiently clear. "I agree that we should raise our child Jewish," for instance, leaves a great deal uncertain. Obviously, the particular strain of Judaism isn't mentioned. Neither is the intensity of the raising -- does it mean that Judaism (whether Orthodox or Reform) would be a pervasive part of the child's life, just that the child would be exposed to some of the most important aspects of Judaism (i.e., become a High Holidays Jew, though perhaps with a bit more intensity around Bar Mitzvah time), or something in between? Neither is the specific degree to which the raising would involve organized religion, rather than just individualized study. Neither is the degree to which the child would be exposed to rival views (which may become important if the parents divorce and one converts to a different religion, and exposes the child to that religion without otherwise interfering with the child's religious rituals).

Now each of us can have a sense of which side is complying more closely with even a vague agreement. There might even be a good deal of consensus on the subject. But in such cases, I don't think this sort of consensus is an adequate basis for courts to decide, because it involves too much subjective judgment about what are the "true" rules of certain religions, and which of those are "central" -- something courts are barred by the Establishment Clause from doing.

For instance, is an agreement to raise the kids Jewish violated by a parent who tries to raise them as Jews for Jesus? I know that many Jews believe it would be, and in some sense they might be right. But I don't think that a secular American court is allowed to decide whether or not Jews for Jesus is "really Jewish," whether Reconstructionist Judaism is "really Jewish," whether Reform Judaism is "really Jewish," or for that matter whether Mormonism is "really Christian."

So it seems to me that even if the parties are intending to create a legally binding agreement (which they often won't be), many kinds of religious agreements would still be unenforceable by secular courts. Perhaps some might be, for instance an express agreement that the child would be sent at least twice a month to churches of a particular organization, or an agreement that the religious terms of the agreement are to be subjected to binding arbitration through some private religious body (such as a Jewish Beth Din). But they would have to be drafted in such a way as to avoid the need for religious decisionmaking by a secular court.

3. Finally, I should note that if one thinks the court making a custody decision should mostly focus on the best interests of the child (subject to whatever constitutional constraints there may be), then it's not clear to me to what extent the court can consider the parties' contract, which need not be aimed at the child's secular best interests. (Sometimes departing from such a contract would be against the child's best interests, but not always and not necessarily even most of the time.) But one could certainly argue that state family law should sometimes subordinate the best interests standard to reasonable agreements between the parties -- setting aside the other objections I raised above -- especially when enforcing such agreements can often yield more certainty, quicker and cheaper resolution, and decreased acrimony.

Here's an excerpt from a recent Michigan court decision:

The Plaintiff [father] testified that agnosticism and scientific rationalism were important factors to both parties when they were first married and both felt strongly about not raising their daughter in organized religion. The Plaintiff remains consistent in not attending any religious services with the daughter. The Plaintiff's testimony and actions appear to be sincere in raising the daughter outside any organized religion.

The Defendant [mother] testified that she was more firm in avoiding religious organizations during the summer, but during the winter months she found herself drawn to church, both because of the friendly environment and community feeling it provides, and because her earlier opposition to religion has been softening. The Defendant testified that she has allowed the daughter to make the decision as to whether or not she attends church. However, the court agrees with the Plaintiff that this is not a decision which should be left up to a young child who was 3½ at the time of the decision. The Plaintiff testified that the Defendant has admitted to him that she takes daughter to church occasionally and does not feel that it will make a difference.

The Plaintiff appears to be more consistent in avoiding organized religion with the daughter on a regular basis now that the parties have separated. The court must remain neutral with respect to each of the parties' religious beliefs, however, both parties agreed that agnosticism and scientific rationalism was an important factor when they were first married and when they started their family. Since the parties have separated, the Plaintiff is the parent who has actively participated in the daughter's agnostic, rationalistic upbringing while the Defendant has allowed the daughter to make the decision on whether she attends church....

As to raising the daughter in her absence of religion, the Court concludes that this factor favors the Plaintiff.

Of course, this isn't a real decision -- it's a recasting of the decision I blogged about yesterday, in which the court preferred the more religiously observant parent over a parent who has moved towards having less interest in exposing her daughter to organized religion. But I think it's a useful way of looking at the problem.

It seems to me that this hypothetical decision would be a First Amendment violation. Remember that the judge wouldn't be finding any specific secular harm to the child from the change; there'd be no evidence that the child is finding the change to be disruptive (in fact, the child seems to prefer it), and no evidence that the religious services somehow involve some physical danger to the child. Nor would the judge be finding any binding contract to raise the child irreligious; there's no evidence of a willingness to be so bound, and no legal hook for the court to consider the contract between the parties in making a decision that's supposed to be about the best interest of the child.

The judge would simply be saying that a parent who had moved towards greater religiosity since when the child was born should be disfavored. And secular courts are not supposed to make such judgments.

But if I'm right, then how could the actual child custody decision (quite commonplace in Michigan courts, and some other courts, or so my research suggests) be constitutional? If a court can't hold against a parent the fact that she has moved away from agnosticism and towards religiosity, how can it hold against a parent the fact that she has moved away from organized religion and towards less church attendance?

Just got it in my mailbox:

hellow nonsense person u know we r all the creature of God and we go to die one day then y u insult any other religion for the sake of just some people or temporatry popularity..... o stupid its a big sin for everyperson..... so u should try to appologise ur sin bu God and never try again this kind of mistake whenever ............

just go to hell disguesting guy......

Uh, OK.

The San Francisco Chronicle reports:

Marianne Kearney-Brown, a Quaker and graduate student who began teaching remedial math to [California State University East Bay] undergrads Jan. 7, lost her $700-a-month part-time job after refusing to sign an 87-word Oath of Allegiance to the Constitution that the state requires of elected officials and public employees....

[W]hen asked to "swear (or affirm)" that she would "support and defend" the U.S. and state Constitutions "against all enemies, foreign and domestic," Kearney-Brown inserted revisions: She wrote "nonviolently" in front of the word "support," crossed out "swear," and circled "affirm." All were to conform with her Quaker beliefs, she said....

Modifying the oath "is very clearly not permissible," the university's attorney, Eunice Chan, said, citing various laws. "It's an unfortunate situation. If she'd just signed the oath, the campus would have been more than willing to continue her employment." ...

"Based on the advice of counsel, we cannot permit attachments or addenda that are incompatible and inconsistent with the oath," the campus' human resources manager, JoAnne Hill, wrote ....

Hill said Kearney-Brown could sign the oath and add a separate note to her personal file that expressed her views. Kearney-Brown declined. "To me it just wasn't the same. I take the oath seriously, and if I'm going to sign it, I'm going to do it nonviolently." ...

Now I appreciate Cal State's desire to follow the law; the California Constitution does prescribe the text of the oath, and says "all public ... employees, ... except such inferior officers and employees as may be by law exempted, shall, before they enter upon the duties of their respective offices, take and subscribe the following oath or affirmation." But surely there are times to interpret laws as requiring substantial compliance rather than strict literalism. Even the precedent that Ms. Hill cites as supposedly requiring the exact text of the oath (see the article for more on that) seems to take this view: It rejected the applicant's modified oath only after stressing that the modifications were not "surplusage" or "innocuous or merely expository," but rather "ma[d]e equivocal the essential oath preceding [the applicant's personal statement]." Likewise, the venerable principle that laws should be interpreted in a way that minimizes possible constitutional problems (here chiefly First Amendment problems related to compelled speech) counsels in favor of reading the law to provide some flexibility. In light of this, letting Ms. Kearney-Brown sign the entire oath, simply with the addition of a term, seems sufficiently consistent with the state mandate.

True, the Supreme Court has held that it doesn't violate the First Amendment to require certain narrow loyalty oaths, including support-and-defend oaths, for government employees. But the Court's justification was precisely that these oaths "do[] not require specific action in some hypothetical or actual situation"; they embody "simply a commitment to abide by our constitutional system ... [and] a commitment not to use illegal and constitutionally unprotected force to change the constitutional system."

Adding "nonviolently" to the oath (or affirmation) thus doesn't change its legal meaning: As the Supreme Court pointed out, the original oath has never been understood to require violent action. Draft laws and other laws may sometimes require such action, but they generally don't require it of women, and in any event it is those laws -- not the oaths required of a wide range of nonmilitary government employees -- that require the action.

So it looks like the state is losing a valuable employee, and has to spend time, money, and effort hiring a new employee. And people who (for religious reasons or other reasons) oppose violence and are especially scrupulous about not promising what they can't deliver lose the opportunity to work in state jobs. As I said, I agree the government should follow the law. But surely the law has enough flexibility in it to avoid this sort of pointless result.

Thanks to Joel Sogol for the pointer.

bissextile?

I just got the trial court opinion in Kik v. Kik, the latest Michigan appellate case that counted a parent's greater religious observance as a factor in favor of the parent's custody claim. Here's what the trial judge wrote about this:

As far as religion, the testimony indicates that the child was baptized at Saint Paul's in Big Rapids which is where the parties were married. The Plaintiff testified that religion was an important factor to both parties when they were first married and both felt strongly about raising [their daughter] in the church. The Plaintiff also admitted that after they were married it was a struggle for them to attend church, however, since the separation the Plaintiff has been more consistent with attending church and taking [the daughter] with him on a regular basis. The Plaintiff attends church every week at Saint Mary's of the Woods Catholic Church in Kalkaska and takes [the daughter] with him to church on a regular basis. The Plaintiff's testimony and actions appear to be sincere in raising [the daughter] in the church.

The Defendant testifies that she also attends church at Saint Paul's in Big Rapids which is where [the daughter] was baptized. The Defendant testified that she was more regular in attending church during the summer, however, has not been regular in attendance during the winter months. The Defendant testified that she has allowed [the daughter] to make the decision as to whether or not she attends church. However, the court agrees with the Plaintiff that this is not a decision which should be left up to a young child [who was 3½ at the time of the decision]. The Plaintiff testified that the Defendant has admitted to him that she does not take [daughter] to church on a regular basis and does not feel that it will make a difference.

Although the parties struggled to attend church while they were married, the Plaintiff appears to be more consistent in attending church with [the daughter] on a regular basis now that the parties have separated. The court must remain neutral with respect to each of the parties['] religious beliefs, however, both parties agreed that religion was an important factor when they were first married and when they started their family. Since the parties have separated, the Plaintiff is the parent who has actively participated in [the daughter]'s religious upbringing while the Defendant has allowed [the daughter] to make the decision on whether she attends church....

As to raising [the daughter] in her religion, the Court concludes that this factor favors the Plaintiff.

Now I realize that the judge said she was remaining neutral with respect to the parties' religious beliefs — but I think that this decision was not neutral, and was based on favoritism (which, I think, violates the Establishment Clause) for the more religious parent.

To begin with, note that this is not a case where continuity of religious upbringing is valued simply because it prevents disruption for the child. I can imagine why a child who is closely involved with her church would be hurt by being separated from church activities and from her church friends. But here there's no evidence to controvert the mother's claim that the daughter prefers not to go to church often, and no evidence to suggest that this reduced churchgoing is causing disruption in the daughter's life.

Also, this is not a case where the court is enforcing a contract providing for the religious upbringing of the child. True, the parents apparently "agreed that religion was an important factor ... when they started their family." But there's no evidence that the parents entered into what they reasonably saw as a binding contract. Not every understanding or plan is seen by the parties as a binding contract, and that's good; we can value lots of things and plan lots of things without surrendering our rights to change our minds.

And this right to change one's mind is especially important for religion, a subject on which people do often change their minds. One's religiosity, and one's perception of the importance of religiosity to one's children, may well change. The divorce itself may shake one's faith in God (especially if one is Catholic). Seeing one's child grow may deepen one's religious beliefs or weaken them. Seeing how one's child behaves may change one's view about whether the child is getting something valuable out of organized religion. The pressures of everyday life may change one's perception of how much of one's scarce parenting time and energy one should devote to organized religion. And of course sometimes people may have religious epiphanies. One should not lightly infer a promise to maintain one's religious practices (or the nature of the upbringing one plans to give one's child) from a past general agreement that religion is an important factor.

What's more, note that the judge wasn't purporting here to enforce a contract between the parties. She was just deciding what was in the child's best interests. Even if explicit contracts to raise a child in a particular religious manner should be upheld (and I'm inclined to say they can be, if this can be done with a minimum of entanglement with theological questions, but that's a matter for another day), there's no reason to think any such enforcement was taking place here.

So what we have here is a judgment that, once two parents generally agree to raise a child religiously, it's in the child's best interests to continue that upbringing — even when one parent changes her views about religion, or about the importance of organized religious observance, and even when there's no particularized evidence that this child is seeing the change as disruptive. On other matters, I take it, a court wouldn't take the same view: One wouldn't hold it against a parent that she acceded to the 3½-year-old's request to stop taking ballet lessons. But as to religious practice, the one area where governmental coercion poses the greatest constitutional problems, the judge was holding a parent's change in attitude and behavior against that parent.

Once a child is being exposed to organized religion, the reasoning seems to go, it's in the child's best interests to continue this exposure, even when the child isn't interested, when stopping the exposure isn't causing disruption, when one parent thinks the exposure is unnecessary, and when the other parent would be free to expose the child himself during his time with the child. I can't see how that is consistent with the Establishment Clause principles that the government generally may not prefer religious behavior over secular behavior, and that the government may not coerce people into engaging in religious practice.

Perhaps the decision wasn't this particular trial judge's fault, given what seems to be the Michigan state legal principles that push in this direction. But it seems to me unconstitutional nonetheless.

UPDATE: Several commenters suggest that the mother was properly faulted for not living up to her supposed values, because she has supposedly been saying one thing (church is very important) and doing another (not taking the child to church regularly). I'm not sure that this would be a sensible position for the court to take, but before we can evaluate that, wouldn't we need to see some specific evidence that the mother is being inconsistent?

I see no such evidence in the trial court opinion. There's evidence that mother once thought church attendance was important. But now it seems that she "does not feel that it will make a difference" to the child, and in fact doesn't attend church regularly. Sounds like someone who has changed her views about organized religion, and no longer finds church attendance to be as important as she once did. That's hardly evidence of inconsistency, hypocrisy, or failure to live up to claimed values.

I'm turning it today. Yow. I guess I can't be an enfant terrible any more, so I'm working on becoming an eminence grise instead.

I'm not an expert on this, but I'm pretty sure that Sen. McCain is a "natural-born citizen" and thus eligible to be President: He was a citizen from birth, having been born to citizen parents (his father was stationed in the Canal Zone). My sense is that "natural-born citizen" is most plausibly interpreted as being a citizen from birth.

Nonetheless, I'm pretty sure that the Senator erred when he said,

Barry Goldwater was born in Arizona when it was a territory, Arizona was a territory, and it went all the way to the Supreme Court.

Unless I'm mistaken, the Supreme Court has never decided the issue, nor have lower courts. They certainly didn't do it in Goldwater's case. On the bottom line, Sen. McCain is right, but not because of any Supreme Court precedent.

Many thanks to Prof. William Funk for pointing this out.

I just noticed a remarkable lawsuit, Wright v. Islamic Center; the plaintiffs were trying to enjoin the construction of a mosque. The theory? Construction of the mosque would be a "public nuisance," because the mosque would "spread radical Islam throughout the United States," would help make the county even more of "a haven for terrorists" than it was before, and thus create "a clear and present danger to the ... community." (The complaint also raises objections to the supposed extra traffic that the mosque's presence would cause, but that's not the core of the allegations.)

A creative tort law theory, and in my view entirely misplaced, both as a matter of substantive tort law and the First Amendment. If some people associated with the mosque have been engaged in speech that fits within some narrow exception to First Amendment protection, it should be punished for that speech. If they have committed some other crime, then they can be punished for committing that crime. But you can't enjoin a political or religious organization from erecting a building based on the organization's supposed past bad speech, just as it can't enjoin the publication of a newspaper based on the newspaper's supposed past libelous articles.

Fortunately, the plaintiffs have dropped the lawsuit, at least for now. Let's hope it stays dropped. Again, if the mosque founders have done something illegal, punish them for that; don't try to use the courts to shut up their religious teachings or block their religious buildings because they supposedly "spread radical Islam."

A commenter writes, on the campaign finance speech restrictions post,

Although suppression of speech has become a liberal monopoly, John McCain is one with the liberals on this, and he would readily appoint judges who would extend the range of suppressed political speech.

Let me say it again: Conservatives and liberals are both willing to restrict a considerable amount of speech (sometimes quite correctly, I might add). Neither side has a monopoly on speech restrictions. Consider, for instance, my study of how the Justices voted on free speech cases, 1994-2002, which counted their pro-speech-claimant votes, with some adjustments that I explain there (the cases since 2002 wouldn't, I think, affect the bottom line much):

Some conservatives have broad views of free speech protections, some don't; likewise for some liberals. My sense is that the same true for politicians and academics as well.

What if one limits this just to expression that is generally seen as being on core political, religious, and social matters, and excludes, for instance, pornography and commercial advertising? I don't have the numbers on that, but I can talk about the big picture:

1. Conservative Justices tend to be more willing to protect some sorts of such speech, for instance paid-for speech in campaigns, speech by judicial candidates, religious speech within generally available government funding programs, or antiabortion picketing (though note that on this last one, even Chief Justice Rehnquist supported restrictions).
2. Liberal Justices tend to be more willing to protect some other sorts of such speech, for instance speech by government employees, speech that reports on the contents of intercepted telephone communications, and anonymous political speech (though note that on this last one, even Justice Thomas supported protection).
3. On other matters, the views tend to be split, for instance on flagburning (and before you say that flagburning isn't literally speech, remember that contributing money to candidates isn't literally speech, either).

So as to some kinds of speech, left-right generalizations are in large measure accurate, especially when one focuses on Supreme Court Justices. But if we're speaking of speech more broadly, or even just political speech, one can't claim that speech restrictions are the special preserve of either side.

A question to the law professors among our readers -- what are your school's maternity leave policies (or parental leave policies, if you have them)? Inquiring minds (though neither mine nor my wife's) want to know. Many thanks!

Jay Brown (The Race to the Bottom) has finished his posts on the subject. The most recent is Faculty Blogs and Influence: The Top 50 Most Influential Law Blogs; previous ones are related to US News rankings, increasing influence, SSRN downloads, court citations, and law review citations.

I think many (though by no means all) restrictions on the use of money for campaign speech violate the First Amendment. I'm one of the few people who thinks Buckley v. Valeo is basically right, and contributions can generally be capped but expenditures (including corporate expenditures, a matter on which I disagree with the Court's Austin v. Michigan Chamber of Commerce precedent) cannot be. This means I'm not as critical of Sen. McCain's views as some of my conservative and libertarian friends are, but I certainly find much to disagree with in his views.

Still, let's be realistic: On the Court today, the liberal Justices are the ones who are most likely to uphold a wide range of campaign finance speech restrictions; Stevens, Ginsburg, and Breyer have even suggested that they would uphold limits on independent expenditures, which in my view would violate the core of the First Amendment. And the conservative Justices, including the moderate conservative Kennedy, are the ones who are most likely to strike down a wide range of such restrictions.

Perhaps McCain will appoint Justices who will end up being more likely to uphold such restrictions. But I'm pretty sure that he won't be a single-issue appointer on this matter. He's likely to appoint noted figures from the conservative legal movement, who are culturally and ideologically predisposed to be at least mildly skeptical of such restrictions, and likely to be (at worst) in the middle on this issue -- where O'Connor and Rehnquist mostly were -- and more likely where Kennedy, Alito, Roberts, and perhaps even Scalia and Thomas are.

On the other hand, I suspect that either Clinton or Obama would likely appoint noted figures from the liberal legal movement, who are culturally and ideologically predisposed to be open to such restrictions, and be where Stevens, Ginsburg, and Breyer are, or (at best) in the middle of this issue, where Souter has generally been. So my hesitation about many campaign finance speech restrictions is a reason to support McCain (despite my disagreement with him) rather than to oppose him. He's surely not perfect in my book, certainly not on this issue. But I think he'll be better than the alternatives, and to me elections -- especially general elections -- are all about the best option, not the perfect one.

Apropos Orin's post, and the news story it refers to, I thought I'd remind readers about Bernard Harcourt's guest-blogging last year on how looking at the fraction of people incarcerated in prison or mental institutions offers a useful perspective. Here's the key graph from Harcourt's work:

Unless, I'm mistaken, this graph includes prisons but not jails.

Very funny. Thanks to Steve Kurtz for the pointer.

This blog displays lots of them, including my favorite, the color contrast illusion:

Would you believe that the seemingly blue tiles on top of the left cube and the seemingly yellow tiles on top of the right cube are actually identical? For proof, and more on this, see color the site. Check out the archives as well (linked to in the left margin, a few pages down).

UPDATE: Visitor Again wins.

Arnold Zwicky (Language Log) has many wise thoughts on the subject. Here's one, though you should read the whole post:

[T]he assumption that non-standard variants are unclear and therefore impede communication ... is mostly just taken for granted, without any kind of defense -- in what way is "between you and I" less clear than "between you and me"? in what way is "all shook up" less clear than "all shaken up"? they're non-standard, certainly, but LESS CLEAR? -- and the occasional explanations of how particular non-standard usages are unclear don't survive scrutiny. Instead, it's just an article of faith that non-standard variants (and conversational, informal, and innovative variants, and variants restricted to certain geographic regions or social groups) are unclear, vague, sloppy, or lazy ....

The L.A. Times reports that the Exxon Valdez punitive damages case might yield a 4-4 division — with no precedent being set, and the lower court decision being affirmed — because "Justice Samuel A. Alito Jr. withdrew because he holds Exxon stock." And indeed important cases have in the past yielded 4-4 deadlocks because one Justice owned stock in one of the companies.

This is a pretty bad result, it seems to me: An important issue will be unresolved, the Justices' time will be wasted, the parties' money will be wasted, and all over what is likely just a few thousand dollars' worth of investment.

Isn't there some better solution, even if we insist that a judge may not own even a small stake in one of the parties? For instance, if the problem is indeed just that the Justice owns actual stock (as opposed to owning a share in some fund that owns the stock), wouldn't it be much better for the Justice simply to sell the stock if certiorari is granted? This would presumably be little loss for the Justice, who could sell at market rates and lose just the commission (plus perhaps have some taxable capital gain that he might rather have deferred). Nor would the Justice have any enduring bias in favor of the company — it's not like the past stock ownership created or reflected an emotional relationship that persists even when the stock is sold. Or am I missing something here?

UPDATE: My colleague and corporations law maven Stephen Bainbridge has more. Also, to respond to some general comments: (1) I'd try to make this divestment-instead-of-recusal something of a rule, whether strictly binding or just followed as a matter of practice and precedent. (2) If there are insider trading objections to this (a matter discussed in the comments), I think the law should be amended to remove such objections; the minor insider-trading costs created by such behavior seem to me to be greatly outweighed by the benefits of letting Justices do their jobs.

(3) I realize that litigants generally aren't entitled to their day in the Supreme Court; but it still strikes me as unfair to litigants to cause them to spend a lot of money litigating the matter there, and then have the case end up 4-4 just because of happenstance. It's not a horrible unfairness, but it's something of an unfairness. And, more importantly, it also creates costs to the legal system -- generally, the grant of certiorari is triggered by the Court's judgment that there is uncertainty (say, a circuit split) that should be resolved for the benefit of future litigants and prospective litigants. If resolving that uncertainty is (all else being equal) a benefit, failing to resolve it tends to be a cost.

The North Carolina State Technician newspaper reports:

"No Blacks allowed White Room Only, Blacks next door," a sign on the door of an Avent Ferry Complex apartment read last Thursday [Feb. 14] ....

"It was referred to the University for disorderly conduct and racial harassment," [Chief of Campus Police Tom] Younce said....

The reporter told me (in response to my e-mail) that the sign was put up by the apartment's three residents. The apartment is in a school-run dorm.

The sign is repulsive (unless it's some joke that all the neighbors grasped as such, but that the administration somehow overreacted to), but it is constitutionally protected by the First Amendment against administrative punishment, whether on a "disorderly conduct" theory (which would presumably focus on the sign's general offensiveness and tendency to lead to hostility and possible fights) or on a "racial harassment" theory. The university could ban all signs on the outside of dorm room doors (though see this contrary view), but even in a "nonpublic forum" such as dorm room doors, it can't impose viewpoint-based bans that forbid racist speech but allow other speech. Nor does the narrow "fighting words" exception apply to speech like this, which isn't focused on a particular person.

One justification I heard for a possible ban on such signs is that the university can ban discrimination in housing, and therefore can ban signs that announce to students that they will be so discriminated against. But I'm not sure that a university could, even in its capacity as landlord, interfere with tenants' "intimate association" right to choose whom to allow into their living rooms (or bedrooms). And even if it constitutionally could have, I highly doubt that North Carolina State would impose such a shocking constraint on people's freedom of choice in whom to socialize with. If you don't want blacks, white, Scientologists, men, or anyone else in your home, it seems to me you should be free to make that choice. So if the university wants to defend the restriction on the grounds that they ban discrimination in choice of guests, I'd like to hear them do that — that would be even more scandalous than the punishment of the speech.

UPDATE: I inadvertently originally cast the last paragraph as if the university had already found the sign to be punishable; I've corrected this to reflect the fact that right now there's just a question whether the sign is punishable.