WEBVTT - Can School Discipline Student for Profane Snapchat? 0:00:03.200 --> 0:00:07.960 This is Bloomberg Law with June Brussel from Bloomberg Radio. 0:00:09.080 --> 0:00:11.720 What happens when a high school student gets kicked off 0:00:11.760 --> 0:00:16.119 the cheerleading squad over a profane snapchat post. Well, in 0:00:16.160 --> 0:00:18.639 the case of the teenager known as b L, the 0:00:18.720 --> 0:00:22.000 Supreme Court will disside whether the school violated her First 0:00:22.040 --> 0:00:25.439 Amendment rights. B L and her father, Larry Levy, told 0:00:25.560 --> 0:00:28.320 CNN that the school had no right to punish her 0:00:28.600 --> 0:00:31.800 for expressing her anger at not making the varsity squad 0:00:32.159 --> 0:00:35.400 by cursing at the school in a Snapchat post, along 0:00:35.440 --> 0:00:37.519 with a picture of her and a friend with their 0:00:37.560 --> 0:00:41.360 middle fingers raised. In the rules, it did not have 0:00:41.440 --> 0:00:43.760 anything about what I can and can't stay out of 0:00:43.800 --> 0:00:48.400 school and out of my uniform. I wasn't proud of 0:00:48.400 --> 0:00:52.199 her expression. However, I felt that at that situation that 0:00:52.360 --> 0:00:55.720 the the school overstepped their boundaries and it was my 0:00:55.920 --> 0:00:58.520 decision to punish her, at which time I did take 0:00:58.600 --> 0:01:01.880 the appropriate steps that I felt necessary for the what 0:01:02.040 --> 0:01:04.840 she had done. The Jeice Department has filed a brief 0:01:04.959 --> 0:01:07.720 telling the Justice is that the Federal Appeals Court got 0:01:07.800 --> 0:01:10.520 it wrong when it ruled for the student. Joining me 0:01:10.640 --> 0:01:13.959 is noted First Amendment expert Eugene fall A, professor at 0:01:14.080 --> 0:01:16.680 u c l A Law School. Eugene tell us about 0:01:16.680 --> 0:01:19.959 the Third Circuit's opinion, So let's just step back a 0:01:19.959 --> 0:01:22.840 little bit. The Supreme Court in the Tinker case said 0:01:23.000 --> 0:01:26.720 that students free speech rights don't stop at the schoolhouse gate. 0:01:27.120 --> 0:01:29.800 But what if the students speaking outside the schoolhouse gate 0:01:30.040 --> 0:01:32.360 and outside any school programs. That's not to be a 0:01:32.480 --> 0:01:35.560 zoomed to school or anything like that. She's just speaking 0:01:35.920 --> 0:01:39.440 by herself on her social media page, or maybe writing 0:01:39.440 --> 0:01:41.840 a letter to the editor of a newspaper, or talking 0:01:41.880 --> 0:01:45.200 at church, or talking at the political rally. Can the 0:01:45.280 --> 0:01:47.760 student be disciplined, she says to say, Can the students 0:01:47.840 --> 0:01:50.920 be kicked off the team or expelled from school or 0:01:50.960 --> 0:01:54.160 suspended from school on the grounds that the effects of 0:01:54.200 --> 0:01:59.279 her speech are disruptive at the school? And lower courts 0:01:59.280 --> 0:02:02.880 have split on the subject. The Third Circuit says, no 0:02:03.840 --> 0:02:08.200 student speech outside school is generally speaking protected from school 0:02:08.240 --> 0:02:12.000 retaliation and others. I could say, well, no, if the 0:02:12.080 --> 0:02:16.440 speech seems likely to be seen at school, or be 0:02:16.560 --> 0:02:20.440 seen by students and others, then it may have effects 0:02:20.440 --> 0:02:22.600 that are disruptive at school, and that could be just 0:02:22.720 --> 0:02:26.560 as bad as disruptive speech at school. And that's the 0:02:27.000 --> 0:02:28.920 question that the Supreme Court is going to have to 0:02:28.919 --> 0:02:32.919 be resolving to what extent can off campus speech leads 0:02:33.000 --> 0:02:36.680 to discipline because of it's on campuses. The Justice Department 0:02:36.840 --> 0:02:41.280 says the Third Circuit, this red tinker. Is the Justice 0:02:41.280 --> 0:02:46.800 Department taking that position because of the categorical rule that 0:02:46.919 --> 0:02:50.919 the Third Circuit took. Well, so the Justice Department is 0:02:50.919 --> 0:02:54.440 trying to chart something of a middle course. On one hand, 0:02:55.000 --> 0:02:59.320 it acknowledges that off campus speech should generally be protected 0:02:59.760 --> 0:03:03.120 for retaliation by the school, and I think that's I 0:03:03.120 --> 0:03:06.200 think that's got to be right. I mean, imagine somebody 0:03:06.280 --> 0:03:09.440 is involved in some political movement outside school, or some 0:03:09.560 --> 0:03:12.720 religious campaign or something like that, and it's very offensive 0:03:12.760 --> 0:03:15.280 to other people at schools. They may view it as blasphems, 0:03:15.280 --> 0:03:17.760 and they may view it as racists on patriotic or 0:03:17.760 --> 0:03:21.120 whatever else. You can't have the school have twenty four 0:03:21.240 --> 0:03:24.360 seven control essentially of a student speech and threatened to 0:03:24.400 --> 0:03:27.280 expel the student because of what he's saying in the 0:03:27.320 --> 0:03:29.880 context of this political movement. It doesn't have to be 0:03:29.960 --> 0:03:31.840 a big picture political movement. It could just be this 0:03:31.960 --> 0:03:35.840 person expressing his views on his Instagram account or on 0:03:35.880 --> 0:03:38.560 a Twitter feed or something like that. So I think 0:03:38.600 --> 0:03:42.800 the Justice Department acknowledges that indeed, allowing the school to 0:03:42.840 --> 0:03:45.440 punish this wide range of out of school speech just 0:03:45.520 --> 0:03:48.520 because it may be disruptive at school would be going 0:03:48.560 --> 0:03:52.600 too far. But the Justice Department says there are three 0:03:52.680 --> 0:03:56.880 situations in which that school authorities do have to have 0:03:57.120 --> 0:04:00.240 some authority to punish off school speech. Why is that 0:04:00.320 --> 0:04:04.240 the speech threatens the school community. That's talk of bombing 0:04:04.240 --> 0:04:07.080 the school or shooting up the school or something like that. Now, 0:04:07.120 --> 0:04:09.120 of course, if that's a true threat of violence, it 0:04:09.200 --> 0:04:11.480 could be punished, even if it's not a student saying 0:04:11.480 --> 0:04:13.840 If that anybody saying it, they could go to jail 0:04:13.880 --> 0:04:16.400 for it. But there are some borderline things which are 0:04:16.720 --> 0:04:20.160 kind of menacing, maybe implicitly threatening, maybe not enough to 0:04:20.200 --> 0:04:23.000 be criminally punishable, but the school has to be able 0:04:23.040 --> 0:04:25.560 to maybe expel a students, suspend a student, just to 0:04:25.640 --> 0:04:28.240 get them out of the place where other people think 0:04:28.360 --> 0:04:31.440 they might be trying to mount an attack. A second 0:04:31.520 --> 0:04:35.719 category that the government points to is speech that intentionally 0:04:35.760 --> 0:04:40.080 targets specific individuals or groups in the school community, so 0:04:40.240 --> 0:04:43.720 that might be personal insults of classmates and maybe a 0:04:43.839 --> 0:04:47.359 teachers or administrators, and that the school needs to be 0:04:47.440 --> 0:04:50.400 able to restrict that in order to prevent kind of 0:04:50.480 --> 0:04:53.200 undue distraction and her feelings at school. But at the 0:04:53.240 --> 0:04:56.360 same time, such a restriction would leave students free to 0:04:56.400 --> 0:05:00.000 express whatever views they want in a broader sense political 0:05:00.000 --> 0:05:02.640 cold views, religious views, moral views in the life. And 0:05:02.680 --> 0:05:05.719 then the third category is the one that the Justice 0:05:05.720 --> 0:05:08.920 Department suggests applies here, but it's actually hardest to figure 0:05:08.920 --> 0:05:14.120 out if it intentionally targets specific school functions or programs 0:05:14.560 --> 0:05:18.599 regardings matters essential to or inherent in the functions or 0:05:18.640 --> 0:05:23.240 programs themselves. As the government and it suggests to hear 0:05:23.279 --> 0:05:27.280 what was happening is she was intentionally targeting her cheerleading 0:05:27.320 --> 0:05:32.120 team by essentially expressing contempt for the project. And that 0:05:32.839 --> 0:05:37.200 is this intentional targeting regarding matters essential to the function, 0:05:37.279 --> 0:05:39.080 which may have to do with kind of moral and 0:05:39.120 --> 0:05:43.279 its creative. So the government is trying to chart this 0:05:43.360 --> 0:05:47.600 middle course protect students rights to talk broadly about kind 0:05:47.600 --> 0:05:52.159 of big picture social, moral, political, religious issues, but allow 0:05:52.279 --> 0:05:55.719 restrictions for various kinds of speech. And I think the 0:05:55.839 --> 0:05:58.120 third one, the one that they view is applicable here 0:05:58.160 --> 0:06:00.279 is probably the most troublesome one, just to it's so 0:06:00.400 --> 0:06:04.160 hard to figure out what kant is intentionally targeting school 0:06:04.160 --> 0:06:06.760 functions or programs. What if somebody were to say, you know, 0:06:06.880 --> 0:06:09.800 I think our history program has become too woke and 0:06:09.920 --> 0:06:14.200 become too critical race theory, and I think it's awful. Well, 0:06:14.279 --> 0:06:18.160 is that intentional targeting regarding matters essential to or inherent 0:06:18.160 --> 0:06:20.279 in the functions or programs that a student can be 0:06:20.760 --> 0:06:23.320 disciplined in school for that? I don't think that can 0:06:23.360 --> 0:06:27.159 be right. But again, the boundaries of what the what 0:06:27.240 --> 0:06:29.280 the government is trying to do especialist to this third 0:06:29.320 --> 0:06:32.320 category are hard to figure out. It also seems like 0:06:32.360 --> 0:06:35.960 that third category covers a lot of comment that the 0:06:36.040 --> 0:06:41.240 students may make about school programs right exactly, and not 0:06:41.440 --> 0:06:44.880 just comments by students who are on a team, because 0:06:44.880 --> 0:06:48.280 in principle, it could apply to somebody else condemning the 0:06:48.360 --> 0:06:52.200 cheerleading UH program, because it would still be targeting specific 0:06:52.240 --> 0:06:57.240 school functions or programs regarding matters essential to the programs themselves. 0:06:57.440 --> 0:07:03.120 Now you can imagine the a court saying, look um, 0:07:03.240 --> 0:07:06.520 there needs to be a different rule for removal from 0:07:06.560 --> 0:07:11.240 an optional program, especially one that is not fundamentally academic, 0:07:11.760 --> 0:07:15.800 from expulsion or suspension. So you may say, look, cheerleading 0:07:15.880 --> 0:07:19.360 or even being on a basketball team, um might be 0:07:19.440 --> 0:07:22.000 seen as almost a kind of job. It's a combination 0:07:22.240 --> 0:07:27.160 of being a student but also doing a particular task 0:07:27.320 --> 0:07:31.120 for the school or presenting the school in some sports. 0:07:31.240 --> 0:07:34.400 And maybe if you say something that undermines your ability 0:07:34.440 --> 0:07:37.000 to do that job, you could be in this inspired 0:07:37.040 --> 0:07:40.560 from that job, removed from the team. But you're still 0:07:40.600 --> 0:07:43.040 a student in good standing and still graduate. You're not 0:07:43.280 --> 0:07:47.000 being suspended from academics or anything like that. You're just 0:07:47.000 --> 0:07:50.680 just being removed from the place that you've been undermining 0:07:50.720 --> 0:07:54.880 with that place, removed from the particular program that you're 0:07:54.960 --> 0:08:00.080 undermining with with your speech. So you can imagine a 0:08:00.120 --> 0:08:03.440 court saying that. So it's not a matter of whether 0:08:03.560 --> 0:08:08.480 it is somehow targeted at a school function. It's a 0:08:08.520 --> 0:08:12.680 matter of whether the whether the school is just removing 0:08:12.720 --> 0:08:16.320 you from some such team, as opposed to expelling you 0:08:16.440 --> 0:08:20.760 or suspending you from school at large. So, however, the 0:08:20.880 --> 0:08:24.040 question presented before the Supreme Court, at least officially, if 0:08:24.040 --> 0:08:26.800 you look at the petition and the question presented there 0:08:27.240 --> 0:08:34.160 is whether, um, the Tinker test for restricting disruptive speech 0:08:34.360 --> 0:08:38.480 applies to out of school speech. So that so maybe 0:08:38.480 --> 0:08:41.000 that a court says, look, we agreed to hear this 0:08:41.080 --> 0:08:45.080 case about out of school speech at large, but especially 0:08:45.080 --> 0:08:47.240 this question about whether it should be a special rule 0:08:47.400 --> 0:08:51.760 for athletic teams in similar similar programs. That's something that 0:08:52.120 --> 0:08:55.320 we can leave for lower courts to reconsider. How have 0:08:55.720 --> 0:08:59.000 the other circuits come out on this? Do they have 0:08:59.080 --> 0:09:03.600 a categorical rule when we or the other They generally say, 0:09:03.679 --> 0:09:07.400 and I oversimplify here, but they generally say that even 0:09:07.400 --> 0:09:09.720 off campus speech can lead to discipline, and again not 0:09:09.800 --> 0:09:13.040 just removal from a team, but suspension from school, even 0:09:13.040 --> 0:09:19.240 expulsion from school if the speech kind of foreseeably causes 0:09:20.400 --> 0:09:24.280 disruption on campus. So they say, well, it needs to 0:09:24.320 --> 0:09:26.959 be speech that can be perhaps seen on campus or 0:09:27.160 --> 0:09:29.440 will be paid attention to on campus. But of course, 0:09:29.600 --> 0:09:34.000 if that's anything right, anything that you say off campus 0:09:34.440 --> 0:09:37.320 on Twitter or Instagram or whatever else can be read 0:09:37.360 --> 0:09:40.680 on campus, can be read by classmates with then remember 0:09:40.720 --> 0:09:43.079 it and talk about it on campus. But even if 0:09:43.080 --> 0:09:45.000 you write a letter to the editor, it's going to 0:09:45.040 --> 0:09:47.520 be posted online. It can be read on campus. If 0:09:47.559 --> 0:09:50.439 you give us speech at our political rally, chances are 0:09:50.640 --> 0:09:53.440 that it's going to be live streamed or recorded and 0:09:53.679 --> 0:09:56.839 put on YouTube and can be seen on campus. Or again, 0:09:57.040 --> 0:09:59.640 even if it's not right on campus or viewed on campus, 0:10:00.400 --> 0:10:03.640 other students will see it at home and then come 0:10:03.720 --> 0:10:06.520 to campus and may be upset by it on campus. 0:10:06.559 --> 0:10:11.200 So in practice, the other circuits basically say, if something 0:10:11.280 --> 0:10:15.280 you say, even if it's off campus, causes disruption, causes 0:10:15.320 --> 0:10:19.640 possible fights on campus, or distraction or really grave upset, 0:10:19.880 --> 0:10:21.480 then in that case you can be punished for. And 0:10:21.480 --> 0:10:25.720 that's what I'm referring to. This seven control over everything 0:10:25.800 --> 0:10:29.520 that a student may say, including against political speech, religious 0:10:29.520 --> 0:10:32.120 speech which had moral issues. And the luck how the 0:10:32.240 --> 0:10:38.440 Supreme Court cut back on students First Amendment rights, Well, 0:10:38.679 --> 0:10:42.320 it all depends compared to what inscre to win. So 0:10:42.920 --> 0:10:46.559 in the Tinker case in nine, I think it's generally 0:10:46.559 --> 0:10:50.240 thought of the court really broad students right. It used 0:10:50.240 --> 0:10:53.280 to be that the schools had very broad authority, but 0:10:53.440 --> 0:10:56.640 then starting with Tinker, the theory was that schools could 0:10:56.640 --> 0:11:00.680 only restrict speech if it is disruptive or not. And 0:11:00.720 --> 0:11:03.880 then in a few cases after that the court did. 0:11:04.920 --> 0:11:06.880 You could say cut back on that, or you could 0:11:06.880 --> 0:11:09.680 say kind of established the limits of that principle. So, 0:11:09.760 --> 0:11:12.360 for example, in the Bessel School District case, the court said, look, 0:11:13.160 --> 0:11:17.840 vulgar speech, whether it's vulgarities or just kind of sexual innuendo, 0:11:18.120 --> 0:11:22.079 can be punished once at at school because unlike in Tinker, 0:11:22.080 --> 0:11:25.840 whereas involved anti war protests, here nobody was going after 0:11:25.920 --> 0:11:29.280 the viewpoint of the speech. It wasn't political speech. It 0:11:29.440 --> 0:11:32.480 was just the school teaching kids how to behave including 0:11:32.480 --> 0:11:35.840 how to speak in kind of polite way. So that 0:11:35.960 --> 0:11:38.319 might be seen as cutting back on the Tinker principle 0:11:38.400 --> 0:11:42.000 or maybe establishing the boundaries. Another case called the Morseley 0:11:42.040 --> 0:11:47.000 Frederick said that speech non political speech that can be 0:11:47.040 --> 0:11:51.240 reasonably seen as promoting drugs or advocating in favor of 0:11:51.280 --> 0:11:55.240 drug use can be restricted again at school functions. That 0:11:55.320 --> 0:11:57.360 could also be seen as cutting back in Tinker or 0:11:57.400 --> 0:12:01.360 again establishing the boundaries of it. The Tinker applies only 0:12:01.400 --> 0:12:05.680 to political adficacy and not just that the general talk 0:12:05.760 --> 0:12:07.920 about drugs ben good or something like that. That was 0:12:08.200 --> 0:12:11.040 sort of the courts theory in some measures there. And 0:12:11.080 --> 0:12:15.280 then one other case called Hazelwood School District versus kill 0:12:15.360 --> 0:12:19.760 Meyer involved a speech in a student newspaper and made 0:12:19.800 --> 0:12:23.839 clear that the principle or the administration could restrict speech 0:12:23.840 --> 0:12:25.880 and student newspaper. So I think that has less to 0:12:25.880 --> 0:12:28.000 do with students and more to do with the fact 0:12:28.000 --> 0:12:32.160 that a government entity can control its own publications. So 0:12:32.240 --> 0:12:36.800 for example, um government employer might have an internal newsletter 0:12:36.880 --> 0:12:41.079 for for its emplees, but the editorial control would be 0:12:41.240 --> 0:12:43.440 in the hands of the management and not whoever happens 0:12:43.480 --> 0:12:46.040 to be the writer. So there have been these cases 0:12:46.080 --> 0:12:49.560 that there might be seen as cutting back on students protection. 0:12:49.920 --> 0:12:52.040 But interestingly, I don't think they've cut back as much 0:12:52.080 --> 0:12:56.160 as lower courts have. Interpreting Tinker in saying that yes, 0:12:56.280 --> 0:12:59.640 out of school speech can be can be restricted. That 0:12:59.840 --> 0:13:04.559 is really very substantial restraint on student speech. And the 0:13:04.640 --> 0:13:07.200 question is whether the court will at least walk at 0:13:07.240 --> 0:13:11.920 that and say that no, generally speaking with whatever exceptions, 0:13:11.920 --> 0:13:14.520 but generally speaking out of school speech has to be 0:13:14.559 --> 0:13:18.680 protective against the school retaliation. Is that what you think 0:13:18.720 --> 0:13:21.160 the court will do, well, I'm not sure what it 0:13:21.200 --> 0:13:23.640 will do. I'm going to be filing an amicus brief 0:13:23.720 --> 0:13:28.160 quite likely underhaling, some law professors arguing that that's what 0:13:28.240 --> 0:13:30.839 the court should do, that the court should make clear 0:13:30.840 --> 0:13:34.080 that at least generally speaking, with some exceptions off campus 0:13:34.120 --> 0:13:38.760 students speech can't lead to UH school discipline. But what 0:13:38.880 --> 0:13:42.319 the court will do I can't really tell. Just generally 0:13:42.800 --> 0:13:47.199 have free speech issues become more difficult in the light 0:13:47.280 --> 0:13:52.640 of social media? Well, I'm not sure more difficult. Uh. 0:13:52.679 --> 0:13:55.840 There's certainly have been some controversies that before would likely 0:13:55.920 --> 0:13:59.920 not have been as controversial. So UH, this issue could 0:14:00.040 --> 0:14:03.360 coolly come up when if she were saying that at 0:14:03.400 --> 0:14:06.800 a restaurant where teammates would over could overhear, or if 0:14:06.800 --> 0:14:09.920 she were saying that at some political event where it 0:14:10.000 --> 0:14:12.880 was captured on a on a hot mic or something 0:14:12.960 --> 0:14:17.400 like that. But but in practice it would be much 0:14:17.480 --> 0:14:20.960 less likely that it would that it would be noticed 0:14:21.040 --> 0:14:24.480 by the school authorities. So one thing about social media 0:14:24.560 --> 0:14:27.440 is it takes what otherwise would have been just kind 0:14:27.440 --> 0:14:31.800 of casual chatter that is largely ignored and quickly forgotten, 0:14:32.240 --> 0:14:35.400 and makes it much more noticeable and much more likely 0:14:35.480 --> 0:14:39.320 to lead to UH two disciplinary measures and then from 0:14:39.360 --> 0:14:41.800 there likely to lead to a lawsuit. Thanks for being 0:14:41.840 --> 0:14:45.120 on the Bloomberg Law Show, Eugene That's Professor Eugene Polic 0:14:45.280 --> 0:14:49.240 of u c l A Law School. The Supreme Court 0:14:49.280 --> 0:14:53.080 considered two cases exploring the power of administrative agencies this 0:14:53.160 --> 0:14:56.520 week alone, a topic of renewed interest among the expanded 0:14:56.560 --> 0:15:00.640 majority of conservative justices. The cases this week involved a 0:15:00.680 --> 0:15:04.440 federal Patent Appeals Board and the Social Security Administration, the 0:15:04.520 --> 0:15:08.280 latest in a string of separation of powers challenges questioning 0:15:08.320 --> 0:15:11.920 how much authority agencies can wield independent from the president. 0:15:12.400 --> 0:15:14.600 Joining me is Harold Crant, a professor with the Chicago 0:15:14.680 --> 0:15:17.880 Kent College of Law. Is it unusual that there have 0:15:18.000 --> 0:15:23.880 been this string of disputes with constitutional challenges to agency structure? 0:15:24.040 --> 0:15:26.720 Is that unusual? Or is that happened all the time? 0:15:27.680 --> 0:15:30.560 The spring pays ushered in a new series of challenges 0:15:30.640 --> 0:15:34.880 to agency structures because the Court is rethinking questions about 0:15:35.160 --> 0:15:39.240 presidential control over agencies. So at stake are both the 0:15:39.240 --> 0:15:44.640 appointment mechanisms for agency's heads and adjudicators, as well as 0:15:44.720 --> 0:15:49.640 removal provisions. So, because the Court has inserted uncertainty into 0:15:49.640 --> 0:15:55.360 this area, individuals who be representing clients before mystery of law, 0:15:55.440 --> 0:16:01.280 judges and agencies are inserting claims about appointment removal. So 0:16:01.320 --> 0:16:03.560 in case they lose on the merits, they may be 0:16:03.680 --> 0:16:08.040 able to still protect their clients by throwing out the 0:16:08.160 --> 0:16:12.800 decision on the constitutional grounds. Tell us what happened here. 0:16:12.840 --> 0:16:16.680 It was a challenge to a social security judge. So 0:16:16.800 --> 0:16:21.320 here there is a typical social security distability dispute. There 0:16:21.320 --> 0:16:24.800 are eight hundred thousand hearings before a l J is 0:16:24.920 --> 0:16:28.160 a year, and after losing before the a LJ and 0:16:28.200 --> 0:16:35.520 then losing before the agency itself, the individual presented the 0:16:35.680 --> 0:16:40.240 constitutional claim before the district court for the first time. 0:16:40.640 --> 0:16:44.440 And so the Supreme Court took several cases to determine 0:16:44.880 --> 0:16:48.800 whether or not there is what's called issue exhaustion. You 0:16:48.840 --> 0:16:53.640 have to exhaust all issues, raise all issues before the 0:16:53.640 --> 0:16:57.000 the Ministry of Law judge, otherwise that the court will 0:16:57.080 --> 0:16:59.280 hear it if it's raised for the first time in 0:16:59.280 --> 0:17:02.320 the court. So, in other words, so the issue that 0:17:02.360 --> 0:17:07.440 they did not raise until the Supreme Court was the 0:17:07.480 --> 0:17:11.160 issue of whether or not the social security judge was 0:17:11.280 --> 0:17:16.600 properly appointed. That's correct. So at the Supreme Point decided 0:17:16.640 --> 0:17:20.320 several years ago that at least the mission of law 0:17:20.400 --> 0:17:25.360 judges within the securities and exchanged Commission were inferior officers 0:17:25.400 --> 0:17:30.760 and therefore had historically been appointed unconstitutionally um and therefore 0:17:30.840 --> 0:17:33.320 had to be appointed by the head of the agency itself. 0:17:33.640 --> 0:17:38.720 So there are many cases that preserved this claim before 0:17:39.400 --> 0:17:42.760 the Supreme Court made that decision, and therefore they now 0:17:42.840 --> 0:17:46.320 want to say, look, we were our case was cited 0:17:46.320 --> 0:17:50.080 by somebody who was appointed unconstitutionally. Therefore we get a 0:17:50.160 --> 0:17:55.479 chance to have an hearing before a properly constituted, properly 0:17:55.520 --> 0:18:00.200 appointed administrative law judge. So there are cases pending still 0:18:00.240 --> 0:18:02.159 from that to the case, and now there are a 0:18:02.200 --> 0:18:05.760 whole school of new cases that are saying, not only 0:18:05.920 --> 0:18:08.439 do we have a right to be adjud have an 0:18:08.440 --> 0:18:11.480 adjudication before someone who has been properly pointed, but also 0:18:11.560 --> 0:18:16.240 someone who is removable um at will by the agency 0:18:16.320 --> 0:18:19.840 head to ensure sort of a line of accountability to 0:18:19.880 --> 0:18:23.320 the president itself. So lots of cases are penning, but 0:18:23.359 --> 0:18:26.479 the ones that the Supreme Court has looked at so 0:18:26.520 --> 0:18:31.040 far are ones lingering on from the prior to the 0:18:31.040 --> 0:18:35.760 Supreme Court decision which said that themistered law judges have 0:18:35.920 --> 0:18:39.240 to be are luck be considered inferior officers and therefore 0:18:39.280 --> 0:18:42.200 have to be pointing in conformance with the appointments clause 0:18:42.560 --> 0:18:46.200 and non historically happened. So why isn't this case moot? 0:18:46.280 --> 0:18:50.600 Then if the court has already decided the question about 0:18:50.640 --> 0:18:55.040 administrative law judges, because they want a new trial or 0:18:55.119 --> 0:18:57.720 new hearing before the a l J. So, in other words, 0:18:58.000 --> 0:19:00.840 there are probably hundreds of cases that are still in 0:19:00.920 --> 0:19:06.639 the system which claim that because they had a hearing 0:19:06.640 --> 0:19:10.600 before and improperly constituted or improperly appointed administrat of law judge, 0:19:11.119 --> 0:19:14.480 they need a new hearing before a different administra of 0:19:14.520 --> 0:19:17.760 law judge. They are hoping that if they have a 0:19:17.800 --> 0:19:20.080 new administive of law judge, maybe the result will be 0:19:20.080 --> 0:19:23.520 different and then favor their client. And is that what 0:19:23.720 --> 0:19:27.080 Justice Alito was concerned about when he said it would 0:19:27.080 --> 0:19:31.040 flood the agency with cases? Yeah? I mean the question 0:19:31.119 --> 0:19:35.760 is how much you know we've already had full resolution 0:19:36.040 --> 0:19:40.439 of these social security disability cases and we already have 0:19:40.600 --> 0:19:43.399 eight hundred thousand hearings a year. Do we need to 0:19:43.440 --> 0:19:47.880 have more? Particularly when there's no fact that that changes. 0:19:48.000 --> 0:19:50.359 All it is is the replacement of one a l 0:19:50.440 --> 0:19:54.320 J for another. So from an efficiency perspective, certainly the 0:19:54.440 --> 0:19:58.080 claim doesn't have merit. But the claim does have some 0:19:58.840 --> 0:20:01.600 traction with the Court for a couple of reasons. You know, 0:20:01.720 --> 0:20:05.720 first of all, including that constitutional claim before the agency 0:20:05.880 --> 0:20:08.480 is futile. The agency or the Minister of Law judge 0:20:08.520 --> 0:20:10.760 is never going to hold that he or she has 0:20:10.800 --> 0:20:15.879 been appointed unconstitutionally and there is an informal process before 0:20:15.880 --> 0:20:18.280 it a l J. And in a prior case, the 0:20:18.320 --> 0:20:20.760 Supreme Court has held that it doesn't want to be 0:20:20.800 --> 0:20:24.760 as exacting in terms of exhaustion of the administrative remedies 0:20:25.080 --> 0:20:28.919 when there is an informal adversary process that takes place. 0:20:29.480 --> 0:20:31.639 So I think that the quote is going to wrestle 0:20:31.640 --> 0:20:34.800 with this from an efficiency perspective. It's going to want 0:20:34.840 --> 0:20:38.119 to say, you lost the claim. You no longer can 0:20:38.320 --> 0:20:39.879 can raise it if you didn't raise it before the 0:20:39.880 --> 0:20:42.640 ad Minister of Law judge. But because of that precedent, 0:20:42.680 --> 0:20:47.160 and because of just the idea that there is such 0:20:47.160 --> 0:20:50.240 an informal process before the Minister of Law judge, so 0:20:50.359 --> 0:20:52.119 members of the court are shouldn't going to vote in 0:20:52.200 --> 0:20:55.480 favor of the claimants here. Some of the justices, I 0:20:55.520 --> 0:20:59.160 believe Justice Atlanta Kagan said, well, if the agency had 0:20:59.200 --> 0:21:03.080 wanted to add up to different rule. It could have yea. 0:21:03.200 --> 0:21:07.080 So here the the agent. In a prior case, the 0:21:07.119 --> 0:21:11.480 Supreme Court had held that there was an exception for uh, 0:21:11.600 --> 0:21:16.840 this exhaustion of issues before the agency itself. Do again 0:21:16.880 --> 0:21:20.720 to the informality in which the agency acts in these 0:21:20.760 --> 0:21:24.600 social security disability cases. Particularly you know, if the claim 0:21:25.119 --> 0:21:28.119 is not closely connected to the merits of the disability case. 0:21:28.720 --> 0:21:32.479 And so Justice Kagan said, the agency you unnoticed, if 0:21:32.520 --> 0:21:36.080 you really cared about this, you should have adopted a regulation. 0:21:36.600 --> 0:21:41.080 They clearly stated that individuals will forfeit all issues they 0:21:41.080 --> 0:21:43.760 are not raised before the agency. You had noticed, you 0:21:43.800 --> 0:21:45.720 had time to do it, and yet you set on 0:21:45.760 --> 0:21:49.080 your hands. And therefore you shouldn't complain to us now. 0:21:49.359 --> 0:21:52.000 And there's some logic and Nephew as well, because the 0:21:52.080 --> 0:21:55.960 quote is said that these idea of exhaustion is really 0:21:56.440 --> 0:22:01.840 the turns largely on what Congress or what agency requires. 0:22:01.880 --> 0:22:05.120 So their discretion, meaning the Court's discretion, is only triggered 0:22:05.520 --> 0:22:10.720 if it's unclear what the statute or regulation requires. Chief 0:22:10.760 --> 0:22:15.320 Justice John Roberts seemed to be concerned about giving the 0:22:15.359 --> 0:22:18.679 claimants ad over what would prevent claimants from bringing up 0:22:18.720 --> 0:22:21.439 new claims in federal district courts to get a second 0:22:21.440 --> 0:22:24.520 bye to the Apple. It's a limited do over issue. 0:22:24.600 --> 0:22:27.159 But I think what Chief Justice Roberts is saying is, 0:22:27.200 --> 0:22:30.679 at least with respect to these hundreds of cases that 0:22:30.720 --> 0:22:34.640 are still alive from before the Supreme Court decision holding 0:22:34.640 --> 0:22:38.680 that a lj's were improperly appointed, they'll get ado over 0:22:39.000 --> 0:22:42.960 because of a technicality. And is that an appropriate result 0:22:43.000 --> 0:22:46.320 that the Court should endorse. Maybe it's inevitable, but at 0:22:46.359 --> 0:22:48.560 least the Chief Justice, who was worried that there really 0:22:48.560 --> 0:22:53.000 no reason equity because of this prior decision, that these 0:22:53.000 --> 0:22:56.000 claimants we'll get a do over and not any other 0:22:56.080 --> 0:23:00.240 claimants merely because their case was not final at the 0:23:00.280 --> 0:23:03.960 time the Supreme Court issued the decision. So there is 0:23:04.000 --> 0:23:08.640 some force. And what the Chief Justice said, certainly individuals 0:23:08.640 --> 0:23:11.600 wouldn't get a do over for any other kind of 0:23:11.640 --> 0:23:14.520 claim that they would bring in court that they didn't 0:23:14.640 --> 0:23:17.240 present to the agency or the a l J first, 0:23:17.560 --> 0:23:20.480 But because of the Supreme Court's earlier decision, they would 0:23:20.480 --> 0:23:23.160 get a chance at a do over if the court 0:23:23.280 --> 0:23:27.359 rules in favor of the claimates. Here Justice Brett Kavanaugh, 0:23:27.800 --> 0:23:31.600 and some say he's foreshadowing the Justice Department's defeat in 0:23:31.640 --> 0:23:34.879 this case, he asked the Justice Department attorney, if you 0:23:34.920 --> 0:23:38.679 were to lose, what's your preferred approach. It may have 0:23:38.760 --> 0:23:40.720 been tongue in cheek because I think it followed a 0:23:40.880 --> 0:23:44.640 question about on which ground would you think they're most 0:23:44.680 --> 0:23:47.240 likely to prevail upon. So it's it's hard to know 0:23:47.280 --> 0:23:51.040 whether it was forced shadowing or Justice Kavanaugh was being 0:23:51.080 --> 0:23:53.200 tongue in cheek, but they may have been serious, and 0:23:53.280 --> 0:23:55.560 it may suggest which way he's leading as well. And 0:23:55.600 --> 0:24:00.040 oftentimes it's important for an individual to lose on a 0:24:00.160 --> 0:24:03.760 least bad way for kids or her client. So again, 0:24:04.000 --> 0:24:06.399 which way do you think the court is leaning? I 0:24:06.440 --> 0:24:09.920 think on the grounds of precedent, the court would rule 0:24:10.119 --> 0:24:13.840 for the claimants. And you know, my guess is Justice 0:24:13.880 --> 0:24:17.200 Thomas wrote the prior decision um he's still on the court, 0:24:17.480 --> 0:24:20.320