WEBVTT - Battle Over Pronouns in Schools 0:00:03.200 --> 0:00:08.000 This is Bloomberg Law with June Brusso from Bloomberg Radio. 0:00:09.080 --> 0:00:12.040 When children say they identify as something other than their 0:00:12.080 --> 0:00:14.960 sex at school, do they become mere creatures of the state, 0:00:15.800 --> 0:00:19.040 or do their fit parents still have the fundamental right 0:00:19.120 --> 0:00:21.200 to make decisions regarding their care. 0:00:22.239 --> 0:00:26.560 The emerging legal battle over pronoun protocol in public schools 0:00:26.880 --> 0:00:29.880 has nothing to do with grammar and everything to do 0:00:29.960 --> 0:00:34.280 with gender identity. Some parents are suing schools that keep 0:00:34.320 --> 0:00:37.960 their children's use of new pronouns secret, claiming it's a 0:00:38.080 --> 0:00:41.600 violation of their constitutional right to direct the upbringing of 0:00:41.640 --> 0:00:45.800 their children. The Ludlow, Massachusetts School Committee is being sued 0:00:46.120 --> 0:00:49.720 over a teacher's failure to notify parents that their eleven 0:00:49.800 --> 0:00:54.160 year old began using different preferred pronouns. A federal judge 0:00:54.160 --> 0:00:57.560 dismissed the parent's complaint, but the First Circuit Court of 0:00:57.600 --> 0:01:01.120 Appeals could revive it, and at oral arguments, the judges 0:01:01.160 --> 0:01:04.360 seem to be wrestling with the issues. Here are judges 0:01:04.440 --> 0:01:06.399 Julie Reichelman and Kermit Lepez. 0:01:07.120 --> 0:01:10.600 I think gender identity is clearly very important to everyone, 0:01:10.760 --> 0:01:12.840 and there are many things that happen in school every 0:01:12.920 --> 0:01:16.720 day that would qualify is less important than that. So 0:01:17.040 --> 0:01:20.560 do you really see no limiting principle between something like 0:01:20.720 --> 0:01:23.360 the gender identity of your child and you know who 0:01:23.440 --> 0:01:26.000 your child may have played with during recess that day. 0:01:26.040 --> 0:01:27.880 Are you really saying there's no difference there? 0:01:29.120 --> 0:01:32.480 But you seem to be assert bottom line that the 0:01:32.560 --> 0:01:39.520 rights of the student to preclude disclosure of this request 0:01:39.560 --> 0:01:43.080 to use pronouns trump's the right of the parents to 0:01:43.240 --> 0:01:47.200 know what's going on with respect to the child's gender identity. 0:01:47.800 --> 0:01:49.720 Bottom line, you are asserting. 0:01:49.240 --> 0:01:50.640 That, aren't you joining me? 0:01:50.760 --> 0:01:54.080 Is Audrey Anderson, head of the higher education practice at 0:01:54.120 --> 0:01:58.320 Bassbari and Simms. Audrey explained why the parents are suing here. 0:01:59.280 --> 0:02:04.760 The school where their children middle schoolers attended, have a 0:02:04.800 --> 0:02:09.560 policy that's not an unusual policy that says, if the 0:02:09.639 --> 0:02:13.240 students come to personnel in the school and say that 0:02:13.360 --> 0:02:17.840 they want to change their name, change their pronoun to 0:02:18.400 --> 0:02:22.359 the opposite gender that they were born into, the school 0:02:22.360 --> 0:02:25.480 will work with them to do that, and also we'll 0:02:25.560 --> 0:02:30.600 keep that information from the student's parents if the students 0:02:30.880 --> 0:02:33.680 ask for it to be kept from their parents. So 0:02:33.800 --> 0:02:37.200 the parents here were aware that one of their children 0:02:37.840 --> 0:02:41.840 was experiencing some questions about their gender and actually reached 0:02:41.880 --> 0:02:45.280 out to the school proactively to say, we don't want 0:02:45.440 --> 0:02:49.480 you to talk to our child about this, and the school, nevertheless, 0:02:49.720 --> 0:02:53.520 behind the parents' backs, talk to the child, started calling 0:02:53.560 --> 0:02:57.880 the child by a different name, use different pronouns, and 0:02:58.040 --> 0:03:00.880 the parents, understandably were very upset about this. 0:03:01.680 --> 0:03:06.000 What surprises me about this is that at that age, 0:03:06.280 --> 0:03:09.840 if your kid seems aggressive, gets into a fight with someone, 0:03:10.200 --> 0:03:12.600 the teachers are on the phone, are calling you in, 0:03:13.000 --> 0:03:15.000 and yet they don't want to tell them about this 0:03:15.680 --> 0:03:18.320 very important aspect of their kid's life. 0:03:18.560 --> 0:03:23.080 The countervailing policy decision here, and I think one reason 0:03:23.160 --> 0:03:25.920 why the parents are going to have a particularly hard 0:03:26.000 --> 0:03:29.640 time winning this case is if there's a Massachusetts law 0:03:29.760 --> 0:03:35.120 that requires schools to not discriminate against students because of 0:03:35.240 --> 0:03:41.480 their gender identity. And so this school has decided that 0:03:41.640 --> 0:03:45.520 in order to carry out that duty, they need to 0:03:45.640 --> 0:03:50.000 keep that information about the student private if the student 0:03:50.080 --> 0:03:53.520 asks for it to be private. And as the district 0:03:53.560 --> 0:03:58.480 court opinion says, that law doesn't that any age limits 0:03:58.520 --> 0:04:01.640 as to when this right to non discrimination on the 0:04:01.640 --> 0:04:06.720 basis of gender identity starts. So the school district here says, well, 0:04:06.760 --> 0:04:09.880 we have this date law that says we are not 0:04:10.000 --> 0:04:14.760 allowed to discriminate on the basis of gender identity. And 0:04:14.840 --> 0:04:18.640 there are some students for which it won't be safe 0:04:18.640 --> 0:04:22.640 for them at home. If their parents know that they 0:04:22.760 --> 0:04:27.760 are going by a different gender identity, it may become 0:04:27.839 --> 0:04:33.640 psychologically unsafe for them at home. So that's the countervailing thing. 0:04:33.720 --> 0:04:38.320 And why this is different in the school's mind from 0:04:38.560 --> 0:04:41.200 your child god in a fight, or your child through 0:04:41.279 --> 0:04:44.320 up at school, or all the other things that happen 0:04:44.400 --> 0:04:47.920 to kids at schools that the school does tell parents about. 0:04:48.680 --> 0:04:51.240 I want to be clear on something. Did the school 0:04:51.480 --> 0:04:55.440 just call the child by preferred pronouns or did the 0:04:55.440 --> 0:04:56.640 school do more than that? 0:04:57.160 --> 0:05:00.560 They also had somebody at the school meet with child 0:05:00.760 --> 0:05:04.880 regularly to talk to them about how they were feeling 0:05:05.000 --> 0:05:07.520 and be a resource person for them. And what The 0:05:07.640 --> 0:05:12.000 parents here alleged that in that way they were actually 0:05:12.040 --> 0:05:18.320 giving mental health treatment to their child without the parent's consent. Now, 0:05:18.320 --> 0:05:23.320 the district court found that they hadn't adequately alleged facts 0:05:23.360 --> 0:05:28.240 to support a conclusion that the child was receiving mental 0:05:28.279 --> 0:05:32.160 health treatment, though the district court kind of threw that 0:05:32.480 --> 0:05:35.880 out based on the factual allegation. You know, so they 0:05:35.920 --> 0:05:38.320 were saying it wasn't just calling them by different names. 0:05:38.320 --> 0:05:43.440 They were actually giving their child counseling mental health treatment 0:05:43.680 --> 0:05:47.160 that they did not agree to, which would be a 0:05:47.200 --> 0:05:50.560 more serious allegation if the district court had supported it. 0:05:51.080 --> 0:05:55.560 The district Court used a standard, a very tough standard, 0:05:55.800 --> 0:05:58.839 shocking the conscience. Tell us what that standard is and 0:05:59.279 --> 0:06:02.040 is it appropriate in this case? Is it the correct 0:06:02.080 --> 0:06:03.159 standard in this case? 0:06:03.680 --> 0:06:03.840 Well? 0:06:03.920 --> 0:06:07.640 Yes, the parents here are alleging that their substantive due 0:06:07.720 --> 0:06:12.040 process rights were violated, and the court I think used 0:06:12.120 --> 0:06:16.560 the right standards to figure that out. You know, the 0:06:16.600 --> 0:06:19.920 parents in the Court of Appeals have said that the 0:06:19.960 --> 0:06:23.599 district court kind of made that standard extra tough. But 0:06:24.160 --> 0:06:27.520 the cases I've looked at seemed to require that the 0:06:27.560 --> 0:06:31.520 facts alleged really have to shock the conscience, and they're 0:06:31.600 --> 0:06:37.120 usually looking for something where the state actor has intentionally 0:06:37.839 --> 0:06:43.160 inflicted harm on the person who is suing. So think 0:06:43.200 --> 0:06:45.719 about you know, one of the cases I saw where 0:06:46.200 --> 0:06:50.360 there actually was substantive due process adequately alleged was where 0:06:50.400 --> 0:06:56.640 a school coach had intentionally used a hard object to 0:06:56.880 --> 0:07:01.680 hit a student in the face. That shocked the conscience. 0:07:02.440 --> 0:07:05.680 But there's lots of things where students are hurt, where 0:07:05.720 --> 0:07:09.159 it might be upsetting, but it doesn't reach that shock. 0:07:09.279 --> 0:07:13.360 The conscience standard and substantive due process is a very 0:07:13.680 --> 0:07:20.520 tricky legal standard that lots of judges think should be circumscribed. 0:07:20.520 --> 0:07:23.080 That there should be very few things that we find 0:07:23.480 --> 0:07:27.680 are protected by substantive due process. So what's established is 0:07:28.240 --> 0:07:31.960 the right to marry, the right to have children. So 0:07:32.400 --> 0:07:35.560 they want to keep the range of things that are 0:07:35.880 --> 0:07:40.160 within substantive due process really small. Now these parents say that, well, 0:07:40.200 --> 0:07:44.960 what's within substantive due process is the right to raise 0:07:45.000 --> 0:07:48.280 your children as you see fit. The thing they run 0:07:48.360 --> 0:07:51.520 into there is that there are Supreme court cases that 0:07:51.680 --> 0:07:57.000 support that. But what they support is the right to 0:07:57.080 --> 0:07:59.920 raise your children as you see fit in a prime 0:08:00.080 --> 0:08:04.640 at school setting. So there are old cases that say 0:08:04.760 --> 0:08:10.080 that the state cannot prohibit the teaching of German in 0:08:10.200 --> 0:08:14.040 private schools when parents want their children taught German. It 0:08:14.080 --> 0:08:16.880 doesn't say that the public schools have to teach German. 0:08:17.280 --> 0:08:20.960 There's a case saying that you can't require students to 0:08:21.120 --> 0:08:24.960 attend public schools, they have to also be allowed to 0:08:25.000 --> 0:08:28.760 attend private school So to me, those cases only say 0:08:28.800 --> 0:08:31.960 that these parents have a right to send their children 0:08:32.040 --> 0:08:34.960 to a school that would not have a policy like this, 0:08:35.200 --> 0:08:37.640 and there are lots of private schools that would not 0:08:37.800 --> 0:08:40.520 have a policy like this. I think it's much harder 0:08:40.520 --> 0:08:44.040 to say that within the public schools they get to 0:08:44.080 --> 0:08:47.400 have a right to say what the policy is on 0:08:47.559 --> 0:08:50.760 something like this. Here's my caveat. I'm surprised that they 0:08:50.760 --> 0:08:55.320 haven't raised a religious argument. I think that they'd have 0:08:55.400 --> 0:08:59.079 a stronger argument if they were also raising some kind 0:08:59.240 --> 0:09:05.640 of a free exercise argument that our religion also supports 0:09:05.679 --> 0:09:09.199 the idea that you are the gender that you're born into, 0:09:09.280 --> 0:09:11.800 and so for you to be teaching our child something 0:09:12.160 --> 0:09:15.760 other than that and supporting them transitioning when we've told 0:09:15.800 --> 0:09:20.000 you not to violate our religious rights. But they haven't 0:09:20.120 --> 0:09:21.200 argued that in this case. 0:09:21.840 --> 0:09:25.640 And on that public private school issue, Judge Reichlman said 0:09:25.679 --> 0:09:28.200 that one of the basic rights that parents have is 0:09:28.240 --> 0:09:30.920 to decide whether to keep their children in private or 0:09:30.960 --> 0:09:35.240 public school, and if a school doesn't disclose information about 0:09:35.240 --> 0:09:39.440 a child's gender identity, then parents lose the ability to 0:09:39.520 --> 0:09:43.920 make a really meaningful decision about whether to keep the 0:09:44.000 --> 0:09:47.280 child in that school or move the child to another school. 0:09:48.200 --> 0:09:51.400 Interesting There's a case in Maryland that went to the 0:09:51.440 --> 0:09:57.240 Fourth Circuit where the parents challenged the school policy. None 0:09:57.280 --> 0:10:01.120 of their kids, to their knowledge, had taking any advice 0:10:01.120 --> 0:10:03.800 from the school, or had tried to change their gender 0:10:04.000 --> 0:10:07.040 or anything like that, and the court said that they 0:10:07.160 --> 0:10:10.840 lacked standing to challenge the policy. And they said, hey, 0:10:10.880 --> 0:10:14.200 wait a minute, we don't even know if we have 0:10:14.360 --> 0:10:17.920 standing because the school won't tell us if our kids 0:10:18.640 --> 0:10:22.000 have come forward to use a different name and pronoun 0:10:22.120 --> 0:10:25.720 at school. And this just isn't fair. You're keeping us 0:10:25.720 --> 0:10:29.160 from even having standing to challenge the policy. And the 0:10:29.440 --> 0:10:32.920 Fourth Circuit said, yeah, we understand you're in kind of 0:10:32.920 --> 0:10:37.079 a tough spot, but we in other situations, mostly around 0:10:37.200 --> 0:10:43.520 national security cases, we prevent people from challenging a government 0:10:43.640 --> 0:10:48.360 policy where they don't know that they're on the terrorism 0:10:48.440 --> 0:10:52.560 watch list. For example, they don't know that they are 0:10:52.800 --> 0:10:56.040 being bied on, but they think they're being bied on 0:10:56.200 --> 0:11:00.520 in air quotes being surveiled by the government, and you 0:11:00.679 --> 0:11:04.839 have to allege some kind of facts that can lead 0:11:04.880 --> 0:11:08.119 the court to believe that you are actually being injured 0:11:08.640 --> 0:11:11.559 by the policy. Now Here's these parents have no problem 0:11:11.559 --> 0:11:14.320 with that because they have a good claim of actual 0:11:14.400 --> 0:11:18.400 injury because they know their students were hurt. But the 0:11:18.480 --> 0:11:21.200 Fourth Circuits dealt with that and it was a two 0:11:21.280 --> 0:11:25.439 one decision, but found that the parents last standing to 0:11:25.640 --> 0:11:28.640 challenge the policy, and what the parents should do that 0:11:28.720 --> 0:11:32.440 case said was use the ballot box. What they need 0:11:32.480 --> 0:11:35.720 to do is vote in a new school board that 0:11:35.760 --> 0:11:39.320 will change the policy that it wasn't for the court. 0:11:39.559 --> 0:11:43.079 So this first Circuit decision will be the highest court 0:11:43.200 --> 0:11:46.360 ruling on the merits of this argument. 0:11:46.920 --> 0:11:48.600 I believe that should be the case. And now we're 0:11:48.640 --> 0:11:52.320 only on a motion to dismiss, but yeah, it will 0:11:52.320 --> 0:11:54.880 be on the merits, where the for circus cases only 0:11:54.920 --> 0:11:57.840 on standing. They didn't hit the merits at all. But 0:11:58.080 --> 0:12:00.400 what's interesting to me is that all of the court 0:12:00.920 --> 0:12:04.080 that have addressed this have said that they don't like 0:12:04.200 --> 0:12:07.600 these school policies. They think these school policies are wrong 0:12:07.720 --> 0:12:13.360 headed and inappropriate, but that doesn't mean that they have 0:12:13.520 --> 0:12:16.520 the kind of shock the conscience a fact that you 0:12:16.640 --> 0:12:20.199 need for a substantive due process violation. 0:12:21.040 --> 0:12:24.520 There's a case before the Eleventh Circuit which is very conservative, 0:12:24.640 --> 0:12:27.240 so there might end up being some kind of split 0:12:27.240 --> 0:12:28.480 in the circuits. 0:12:28.559 --> 0:12:31.120 Yeah, I definitely agree with that I think that this 0:12:31.280 --> 0:12:36.240 is an issue that some conservative court will find that 0:12:36.559 --> 0:12:39.360 at least a complaint can go forward, and then the 0:12:39.440 --> 0:12:42.600 question will be whether the Supreme Court gets interested enough 0:12:42.679 --> 0:12:45.360 at that point, just when you have a decision on 0:12:45.440 --> 0:12:48.400 a motion to dismiss, or whether they want a case 0:12:48.440 --> 0:12:52.400 with a little bit more factual development, something that goes 0:12:52.559 --> 0:12:56.160 to a summary judgment motion at least or maybe even 0:12:56.480 --> 0:13:00.960 a trial before they decide to weigh in on this, 0:13:01.320 --> 0:13:03.960 you know, when the Supreme Court. If when the Supreme 0:13:04.040 --> 0:13:06.280 Court weighs into this, I think that some of the 0:13:06.440 --> 0:13:10.319 justices will have a hard time because the conservative side 0:13:10.320 --> 0:13:13.559 of the Supreme Court wants very much to have a 0:13:13.720 --> 0:13:18.440 very very narrow set of circumstances where substantive due process 0:13:18.480 --> 0:13:22.120 protects rights and justice. Thomas doesn't think that there is 0:13:22.160 --> 0:13:25.360 such a thing a substantive due process. On the other hand, 0:13:25.520 --> 0:13:29.640 I would believe them to from a policy angle, be 0:13:29.920 --> 0:13:32.400 very concerned about these kinds. 0:13:32.200 --> 0:13:33.280 Of school policies. 0:13:33.320 --> 0:13:36.520 So how they will thread that needle, I think will 0:13:36.520 --> 0:13:41.280 be very interesting to watch because you know, again there's 0:13:41.480 --> 0:13:47.160 very well settled law that says that at least curriculum 0:13:47.200 --> 0:13:52.080 now this isn't really curriculum, but that public schools get 0:13:52.120 --> 0:13:57.160 to choose their own curriculum and parents don't get a 0:13:57.280 --> 0:14:00.160 say in that except through the school board members if 0:14:00.200 --> 0:14:03.640 they elect. That's how parents get a saying curriculum. 0:14:04.559 --> 0:14:09.160 So, according to the Conservative group Parents Defending Education, more 0:14:09.200 --> 0:14:14.280 than one forty school districts in thirty seven states discourage 0:14:14.440 --> 0:14:18.439 or bar staff from telling parents about a school's transgender 0:14:18.520 --> 0:14:22.760 status or gender identity without their permission. So just how 0:14:22.800 --> 0:14:24.040 big an issue is this? 0:14:24.560 --> 0:14:27.320 There are certainly some communities where I think that there 0:14:27.320 --> 0:14:31.280 are you know, more and more children who are you know, 0:14:31.560 --> 0:14:37.800 between teenagers who are saying that they're trands or that 0:14:37.880 --> 0:14:40.600 they want to use a different pronoun or they want 0:14:40.640 --> 0:14:46.800 to be gender fluid or without a gender, and schools 0:14:46.920 --> 0:14:50.600 are you know, accommodating that. I don't think these policies 0:14:50.760 --> 0:14:56.360 are really unusual. I also though, from a policy perspective, 0:14:56.400 --> 0:14:59.360 I can see that parents would be very, very concerned 0:14:59.400 --> 0:15:03.360 about it. But I can also be the school's reasons 0:15:04.040 --> 0:15:07.840 for doing it, that schools want to be a place 0:15:08.080 --> 0:15:15.400 of psychological safety for students, and as the district court said, 0:15:15.400 --> 0:15:17.240 you know, they could imagine that it would be a 0:15:17.280 --> 0:15:21.920 much better policy that the school supports the student in 0:15:22.160 --> 0:15:26.080 sharing that information with their parents. You know, that can 0:15:26.120 --> 0:15:29.120 be a really tricky thing. And so, for example, I 0:15:29.160 --> 0:15:34.760 wouldn't expect the school to tell me if my child 0:15:35.200 --> 0:15:38.440 was making out in the whole way with another child. 0:15:39.360 --> 0:15:41.840 That might really upset me. It might be against a 0:15:41.960 --> 0:15:45.080 rule i'd said at home, it might be against my 0:15:45.160 --> 0:15:48.720 religious beliefs, but I wouldn't expect the school to tell me. 0:15:49.480 --> 0:15:52.840 And so you know, there are a range of things 0:15:52.920 --> 0:15:55.720 that we don't expect schools to tell us and that 0:15:55.800 --> 0:15:59.120 school don't tell us. So where this fits on the continuum, 0:15:59.240 --> 0:16:04.640 I think people can have good faith disagreements about and 0:16:04.720 --> 0:16:07.600 as concerning as I can see it would be as 0:16:07.600 --> 0:16:12.400 a parent, I can also understand the school's side of this. 0:16:13.240 --> 0:16:13.440 Well. 0:16:13.480 --> 0:16:17.480 Certainly this case is being watched nationally. There were more 0:16:17.560 --> 0:16:22.400 than one hundred amikas briefs filed, including from nineteen states 0:16:22.520 --> 0:16:27.080 that supported the parents' position and fifteen states that supported 0:16:27.120 --> 0:16:30.400 the school's position. So we'll see other first circuit rules. 0:16:30.480 --> 0:16:34.120 Thanks so much, Audrey. That's Audrey Anderson, head of the 0:16:34.200 --> 0:16:39.520 Higher Education practice at bess Berry and Simms. Ninety eight 0:16:39.600 --> 0:16:43.000 year old Judge Paul Newman was inducted into the ip 0:16:43.160 --> 0:16:46.400 Watchdog Hall of Fame at the Patent Law Blogs Annual 0:16:46.520 --> 0:16:50.280 conference in Virginia on Monday. Two days later, she was 0:16:50.320 --> 0:16:54.160 suspended by the Federal Circuit for one year for refusing 0:16:54.160 --> 0:16:57.840 to undergo medical testing as part of an investigation into 0:16:57.840 --> 0:17:00.960 her mental fitness to sit on the bench. The investigation 0:17:01.240 --> 0:17:04.560 was launched in late March, and a proceeding that usually 0:17:04.640 --> 0:17:09.240 unfolds behind the scenes, played out in public. Newman, who's 0:17:09.240 --> 0:17:11.879 been on the Federal Circuit Court of Appeals for nearly 0:17:12.000 --> 0:17:15.840 four decades, has vowed to find the decision joining me 0:17:15.920 --> 0:17:19.000 is ethics. Law expert Arthur Hellman, a professor at the 0:17:19.119 --> 0:17:22.199 University of Pittsburgh School of Law, tell us about this 0:17:22.320 --> 0:17:24.800 unanimous order from the Federal Circuit. 0:17:24.920 --> 0:17:28.720 Well, what's in the order is that George Newman is 0:17:28.760 --> 0:17:34.000 suspended for one year from hearing new cases. That's both 0:17:34.160 --> 0:17:38.280 panel cases and bank cases. And the one year starts 0:17:38.320 --> 0:17:42.040 from the date of the order, which was yesterday, So 0:17:42.160 --> 0:17:46.600 it's really on top of the suspensions that have been 0:17:46.640 --> 0:17:51.080 issued starting back in March. George Newman has not been 0:17:51.080 --> 0:17:54.520 hearing cases now for about six months, and this will 0:17:54.560 --> 0:17:59.600 add a full year to the suspension, and it also 0:18:00.119 --> 0:18:04.639 two provisos. One is that it's renewable if she continues 0:18:04.680 --> 0:18:09.480 to refuse to cooperate with the committee, but the Committee 0:18:09.680 --> 0:18:13.200 and the Council can reconsider if she does cooperate. 0:18:14.000 --> 0:18:18.080 This comes after a one hundred and eleven page report 0:18:18.640 --> 0:18:21.400 based on more than twenty interviews with members of the 0:18:21.400 --> 0:18:26.840 Court staff that Judge Newman had been having troubles recalling events, 0:18:27.000 --> 0:18:32.040 conversations and information. Does this order have anything to do 0:18:32.160 --> 0:18:35.359 with that report or is this just about her not 0:18:35.800 --> 0:18:40.040 cooperating with the committee and not going for medical tests. 0:18:40.600 --> 0:18:44.000 That's actually one of the problematic aspects of this proceeding 0:18:44.040 --> 0:18:47.200 because in a way, the Council, like the Special Committee, 0:18:47.400 --> 0:18:50.560 is trying to have it both ways. This suspension order 0:18:51.080 --> 0:18:55.520 is predicated solely on refusal to cooperate, which is a 0:18:55.640 --> 0:19:00.640 form of misconduct. And yet the underlying concern, which is subject, 0:19:00.680 --> 0:19:04.720 as you point out, of extensive discussion in the Special 0:19:04.720 --> 0:19:08.280 Committee report as well as the Judicial Council order, the 0:19:08.440 --> 0:19:14.600 underlying concern is with disability. And so even though the 0:19:14.640 --> 0:19:20.320 real subject of the original complaint was disability, the Special 0:19:20.320 --> 0:19:23.399 Committee of the Chief Judge and the Council have turned 0:19:23.400 --> 0:19:30.359 it technically into a misconduct proceeding this supposedly narrow issue 0:19:30.880 --> 0:19:32.400 of failure to cooperate. 0:19:32.880 --> 0:19:34.560 Is there precedent for this order? 0:19:34.840 --> 0:19:38.399 Well, there's something of a precedent in the proceedings a 0:19:38.400 --> 0:19:42.919 few years ago involving District Judge John Adams, and there 0:19:42.960 --> 0:19:48.960 were some similarities and some differences. But the present situation 0:19:49.240 --> 0:19:54.320 where the real concern is disability and Judge Adams, the 0:19:54.359 --> 0:19:58.320 evidence was really of somebody who was campankerous and didn't 0:19:58.359 --> 0:20:02.280 play well with his fellow judge. There was really very 0:20:02.320 --> 0:20:07.639 little evidence there to suggest our disability, and in the 0:20:07.800 --> 0:20:13.560 end the order requiring a examination was withdrawn. So there 0:20:13.560 --> 0:20:18.600 are some parallels, but nothing like this has happened in 0:20:18.640 --> 0:20:22.640 the forty plus years. Under the Judicial Conduct and Disability Act, 0:20:23.240 --> 0:20:24.120 a nineteen eighty. 0:20:23.960 --> 0:20:27.640 Law allows for judicial sanctions by colleagues as long as 0:20:27.640 --> 0:20:31.720 the punishment is not removal from office or indefinite suspension. 0:20:32.160 --> 0:20:34.280 So does this order fit within that law? 0:20:34.720 --> 0:20:37.440 Well, that's one of the big questions that is going 0:20:37.520 --> 0:20:41.360 to have to be addressed in the first instance by 0:20:41.480 --> 0:20:45.680 the Review Committee, the Committee on Judicial Conduct and Disability 0:20:45.720 --> 0:20:50.080 of the Judicial Conference, because the provision you're referring to 0:20:50.480 --> 0:20:55.920 does limit suspensions to ordering that on a temporary basis 0:20:56.480 --> 0:21:01.399 for a time certain, no further cases be assigned. So 0:21:01.600 --> 0:21:05.719 I regard that as the conjunctive two sets of requirements. 0:21:05.760 --> 0:21:08.600 It has to be on a temporary basis and for 0:21:08.720 --> 0:21:11.879 a time certain. And the question will be when you 0:21:12.000 --> 0:21:16.800 have a one year order that is renewable, does that 0:21:16.960 --> 0:21:21.479 satisfy the statutory language and does it fit with the 0:21:21.520 --> 0:21:24.760 aim of the statute. I mean, the statute has a 0:21:24.880 --> 0:21:29.080 very interesting history because it was a cooperative enterprise the 0:21:29.160 --> 0:21:34.560 drafting by judges and members of Congress, and they were 0:21:34.720 --> 0:21:39.520 very much aware that under the generally accepted interpretation of 0:21:40.080 --> 0:21:44.000 Article three of the Constitution, federal judges can be removed 0:21:44.040 --> 0:21:47.600 from office only through the process of impeachment by the 0:21:47.640 --> 0:21:52.439 House and trial in the Senate, and they, by putting 0:21:52.480 --> 0:21:58.200 that provision in, didn't want to have a backdoor removal. 0:21:58.680 --> 0:22:02.320 So the question is whether you have an order that 0:22:02.560 --> 0:22:07.560 is functionally equivalent to removing a judge from office. So, 0:22:07.680 --> 0:22:12.159 for example, I think a three year suspension probably would 0:22:12.560 --> 0:22:16.320 one year that's renewable, that's an open question. There is 0:22:16.400 --> 0:22:20.040 no authoritative decision about that. 0:22:21.520 --> 0:22:26.479 Or is there precedent for a court forcing a judge 0:22:26.480 --> 0:22:30.880 to undergo medical testing. That's what was an issue here, Right, 0:22:30.920 --> 0:22:36.560 She's submitted tests from her own neurologist and forensic psychiatrist, 0:22:36.800 --> 0:22:40.920 but they wanted her to go to someone they approved. 0:22:41.320 --> 0:22:41.439 Right. 0:22:41.600 --> 0:22:45.920 Well, again, the Adams case is the closest parallel, and 0:22:46.000 --> 0:22:50.000 there the Committee on Judicial Conduct and Disability, as you 0:22:50.119 --> 0:22:53.879 pointed out, that will be the review body that committee 0:22:54.200 --> 0:22:58.600 in terms of what we'll call administrative precedent or precedent 0:22:58.680 --> 0:23:02.679 within the misconduct system. That committee has already said it 0:23:02.760 --> 0:23:07.000 is permissible under the statute. But there's also a lawsuit 0:23:07.080 --> 0:23:10.119 pending that Judge Newman is filed in the District Court, 0:23:10.359 --> 0:23:15.080 and that issue has not been settled by a court, 0:23:15.320 --> 0:23:19.040 and there's an initial question there whether it is even 0:23:19.160 --> 0:23:23.119 something that the district court can consider, because there's another 0:23:23.160 --> 0:23:26.680 provision in the statute that says that the only review 0:23:27.280 --> 0:23:31.960 of council orders is through the Committee of the Judicial 0:23:32.080 --> 0:23:36.640 Conference and there's to be no review anywhere else. And 0:23:37.119 --> 0:23:41.160 the District of Columbia Circuit, in a proceeding involving Judge 0:23:41.200 --> 0:23:45.919 John McBride of Texas, has said that as applied, challenges 0:23:45.960 --> 0:23:49.760 to the statute are barred in federal District Court by 0:23:49.800 --> 0:23:55.560 that preclusion provision, So we don't have a judicial precedent 0:23:55.960 --> 0:23:57.320 and we may never get one. 0:23:57.960 --> 0:24:01.199 Do you think that she has a good chance in 0:24:01.240 --> 0:24:05.840 her challenge at the Committee on Judicial Conduct and Disability? 0:24:05.920 --> 0:24:08.719 I think she does not have a good chance of 0:24:08.800 --> 0:24:14.040 getting a ruling that the Council cannot order her to 0:24:14.320 --> 0:24:19.119 undergo some kind of testing. I think the Conduct Committee 0:24:19.600 --> 0:24:26.080 may be concerned about the process that was followed here, 0:24:26.600 --> 0:24:30.359 several aspects of it. But for example, the fact that 0:24:30.920 --> 0:24:37.160 the Council suspended Judge Newman from hearing cases before this 0:24:37.280 --> 0:24:44.119 process was formally initiated, but tying that suspension to the 0:24:44.240 --> 0:24:48.639 concerns about disability. One of the emails that is included 0:24:48.720 --> 0:24:53.639 in the voluminous attachments to the order issued yesterday, where 0:24:53.760 --> 0:24:59.320 the Chief Judge refers specifically to a Council order directing 0:24:59.400 --> 0:25:04.000 that Judge Newman not hear any new cases while this 0:25:04.280 --> 0:25:09.040 process is ongoing, and the reference to the process is 0:25:09.119 --> 0:25:13.359 pretty clearly the process under the Act, and as I 0:25:13.480 --> 0:25:16.919 read the Act, that is simply not permissible. So you 0:25:17.000 --> 0:25:19.959 have right at the outset what I believe was a 0:25:19.960 --> 0:25:25.840 serious procedural misstep, and I could see the Judicial Conduct Committee, 0:25:25.880 --> 0:25:32.240 saying that tainted the whole process and it should, if 0:25:32.280 --> 0:25:37.520 not startle over again, it should be redone. And I 0:25:37.520 --> 0:25:40.560 would like to see that done by a different circuit. 0:25:41.040 --> 0:25:43.960 I think that would be much better way of handling it. 0:25:44.080 --> 0:25:49.720 The Federal Circuit has adamantly refused to transfer, to request 0:25:49.720 --> 0:25:53.160 a transfer to another circuit, which is something that's permitted 0:25:53.280 --> 0:25:57.119 under the rules. No, it's not specifically in the Act, 0:25:57.240 --> 0:26:00.520 but it is in the rules. And I think I 0:26:00.560 --> 0:26:05.479 would certainly have much more confidence in this proceeding if 0:26:05.520 --> 0:26:09.959 the findings of fact and the investigation were carried out 0:26:10.160 --> 0:26:14.800 by judges who had no connection to Judge Newman or 0:26:14.920 --> 0:26:18.800 to the judges who are sitting on the Council of 0:26:18.840 --> 0:26:19.679 the Federal Circuit. 0:26:20.040 --> 0:26:23.320 Coming up next, I'll continue this conversation with Professor Arthur 0:26:23.359 --> 0:26:27.439 Hellman and we'll discuss whether a mandatory retirement age for 0:26:27.520 --> 0:26:29.800 federal judges would be constitutional. 0:26:30.119 --> 0:26:31.000 This is Bloomberg. 0:26:31.280 --> 0:26:33.800 I've been talking to Professor Arthur Hellman of the University 0:26:33.840 --> 0:26:38.200 of Pittsburgh Law School about the Federal Circuit suspending ninety 0:26:38.200 --> 0:26:42.080 eight year old Judge Pauline Neuman, the Court's eldest jurist, 0:26:42.400 --> 0:26:45.600