FedSoc Forums

The U.S. Department of Education’s Office for Civil Rights has launched an investigation into the legality of state bans forbidding schools from imposing mask mandates on their students. OCR indicated two major bases for potential illegality: Section 504 of the Rehabilitation Act of 1973, and Title II of the Americans with Disabilities Act of 1990, which prohibit discrimination against students on the basis of a disability and guarantee students with disabilities access to a public education.
Opponents of the mask mandate bans argue that students with disabilities cannot access public education if other students and staff are not required to be masked. Proponents of the bans argue that parents should not be deprived of the right to make health decisions for their children. Other arguments concern the proper scope and limits on federal involvement in school matters.
Featuring:

Prof. Robert Dinerstein, Professor of Law, American University Washington College of Law
Sarah Perry, Legal Fellow, Heritage Foundation, Edwin Meese Center
Moderator: Hon. Kenneth L. Marcus, Founder and Chairman, Louis D. Brandeis Center for Human Rights Under Law

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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

The Biden administration has announced it is considering clemency for convicted drug offenders among the approximately 4,000 prisoners released early from federal prison due to the pandemic, who are subject to being returned when the national emergency declaration expires. Some argue this does not go far enough, noting the administration has not proposed structural changes to a process they describe as marred by delays and political favoritism in administrations of both parties. Among the key questions are how to balance expectations for finality among prosecutors, victims, and the public with the benefits of second chances earned after an objective review. Also, this discussion will explore whether the clemency process should be partly or fully moved out of DOJ.
Featuring:

Rachel Barkow, Vice Dean and Charles Seligson Professor of Law; Faculty Director, Center on the Administration of Criminal Law, NYU School of Law
Paul J. Larkin, Jr., Senior Legal Research Fellow, Meese Center for Legal and Judicial Studies, Institute for Constitutional Government, The Heritage Foundation
Moderator: Marc Levin, Chief Policy Counsel at the Council on Criminal Justice; Senior Advisor to Right on Crime, Texas Public Policy Foundation

Widespread concern over continued covid-19 related measures and the implementation of critical race theory in public school curricula has prompted many people to speak out at school board meetings in recent months. On September 29, 2021, the National School Boards Association submitted a letter to President Joe Biden requesting federal assistance in responding to alleged "acts of violence affecting interstate commerce because of threats to their [NSBA's] districts, families, and personal safety" which in the NSBA’s opinion "could be the equivalent to a form of domestic terrorism and hate speech." Last week, President Biden’s Attorney General Merrick Garland issued a memorandum directing the Department of Justice to investigate and partner with local law enforcement to address a "disturbing spike in harassment, intimidation, and threats of violence."

Featuring:

-- Hon. Michael B. Mukasey, Former United States Attorney General

On September 1, 2020, the U.S. Centers for Disease Control and Prevention took a step into nationwide housing policy, and issued a nationwide ban on evictions. With the order, the federal agency invoked a little-known WWII-era statute that empowered the agency to “make and enforce such regulations” that “are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession.” The agency asserted that evictions presented a unique and unacceptable danger to the public in light of Covid-19.
CDC’s order was challenged almost immediately by a variety of public interest groups on a variety of statutory and constitutional grounds. At the heart of these challenges was an objection to the agency’s determination that property owners could be forced to turn over their real property to tenants who refused to pay rent.
The order was, in months-long increments, in existence for most of the past year. Meanwhile, several district courts and the Sixth Circuit invalidated the moratorium, but only with respect to individual litigants. After one trip to the Supreme Court, another extension, and a final stop back at the Supreme Court, the moratorium ended. However, related rules issued by agencies like the Consumer Financial Protection Bureau, as well as local eviction moratoria, continue around the country.
This litigation update by Caleb Kruckenberg of the New Civil Liberties Alliance, which filed the first challenge to the CDC order, discussed the origins of the moratorium, including relevant congressional action (and inaction), the legal challenges to the moratorium, recent and possible future extensions of the moratorium, and why this case was bound for resolution by the Supreme Court.
Featuring:

Caleb Kruckenberg, Litigation Counsel, New Civil Liberties Alliance

On June 25, 2021, President Biden’s newly appointed Housing Secretary Marcia Fudge proposed to rescind a Secretary Carson-era disparate impact rule designed to implement the Fair Housing Act. In its place, HUD would reinstate the 2013 Discriminatory Effect Standard because the 2013 rule "better states Fair Housing Act jurisprudence and is more consistent with the Fair Housing Act’s remedial purposes." By the time notice and comment ended on August 24, 2021, over ten thousand public comments had been submitted.
Critics of Secretary Fudge’s proposed rule, including Ranking Member Senator Pat Toomey, argue that the change not only flouts the Supreme Court’s decision in Texas Department of Housing and Community Affairs v. Inclusive Communities but also ultimately hurt consumers. Proponents argue that the change will move the housing market towards greater equity. Our panel of experts with a diversity of views discussed the pros and cons in a teleforum on October 11, 2021.
Featuring:

Paul Compton, Founding Partner, Compton Jones Dresher
Moderator: Devon Westhill, President and General Counsel, Center for Equal Opportunity

Has American higher education gone too far — or in the wrong direction — in how it sanctions normatively disfavored conduct? Some of these sanctions (“cancellations," as they are sometimes called) are ephemeral and others career-ending. Some are based on transgressions that almost all condemn, others on conduct that some find praiseworthy. Is higher education now more intolerant than it once was, or is it just intolerant about different things? And if academia is now intolerant about different things, has the change been beneficial or harmful? If the answer depends on how we feel about free speech, do “cancelations” — however understood -- impair free speech or advance it?

Join us for Part 1 of a thoughtful series discussing cancel culture and its effect on American culture featuring:

J.C. Hallman, an acclaimed author who wrote a piece entitled “In Defense of Cancel Culture” following the publication of the Harper’s Magazine letter on Justice and Open Debate.

Dr. Charles Murray, the F.A. Haye Chair Emeritus in Cultural Studies at the American Enterprise Institute who experienced academic and social backlash notably his publication of The Bell Curve.

Featuring:

-- J.C. Hallman, Author and Columnist

-- Dr. Charles Murray, W.H. Brady Scholar, American Enterprise Institute

-- Moderator: Hon. Kenneth L. Marcus, Founder and Chairman, Louis D. Brandeis Center for Human Rights Under Law

This webinar addresses the impact that changes proposed in HR 4, the John R. Lewis Voting Rights Advancement Act of 2021, may have on drawing voting districts and litigating redistricting cases and features two renowned voting rights experts.

Featuring:

-- Mark Braden, Of Counsel, BakerHostetler

-- Jeffrey M. Wice, Adjunct Professor of Law, New York Law School; Director, N.Y. Census and Redistricting Institute

-- Moderator: Maya Noronha, Visiting Fellow, Independent Women's Law Center

On August 26, 2021, the Supreme Court of the United States ruled in Alabama Association of Realtors v. HHS that the Centers for Disease Control and Prevention (CDC) had exceeded its authority in issuing a nationwide ban on evictions. Brett Shumate, counsel of record for the Alabama Association of Realtors, joins us to discuss the litigation, the implications of the Supreme Court’s decision, and other pending cases involving the CDC’s eviction moratorium.

Featuring:

-- Brett Shumate, Partner, Jones Day
-- Moderator: Daniel Suhr, Senior Attorney, Liberty Justice Center

Streamed live on September 30, 2021

Join us for the inaugural episode of the Federalist Society’s Supreme Court Show: A Seat at the Sitting. Each month, a panel of constitutional experts will convene to discuss the Court’s upcoming docket and debrief oral arguments from the previous month. During the first two weeks of October, the Justices will hear eight oral arguments on cases ranging from national security and civil procedure to criminal law and water law. The case names, issues, and dates of argument are listed below:

• Mississippi v. Tennessee – water law and original jurisdiction – October 4
• Wooden v. United States – the Armed Career Criminal Act – October 4
• Brown v. Davenport – Federal habeas petitions under 28 U.S.C. § 2254 – October 5
• Hemphill v. New York – the Federal Rules of Evidence and the Confrontation Clause – October 5
• United States v. Zubaydah – the CIA and the state secret’s privilege – October 6
• Cameron v. EMW Women’s Surgical Center – state civil procedure and abortion – October 12
• Thompson v. Clark – procedure for civil claims for deprivation of rights under 42 U.S.C. § 1983 – October 12
• United States v. Tsarnaev – challenges to the capital conviction of the Boston marathon bomber – October 13
• Babcock v. Kijakazi – civil service pensions and the Social Security Act – October 13

Featuring:
-- Sarah Harris, Partner, Williams & Connolly
-- Jonathan Adler, Johan Verheij Memorial Professor of Law and Director, Coleman P. Burke Center for Environmental Law, Case Western Reserve University School of Law
-- Kate Comerford Todd, Former Deupty White House Counsel

Environmental, Social and Corporate Governance (ESG) investing is growing in popularity, especially after major investment firm BlackRock signaled support for what it called "ESG Integration," or the practice of incorporating material ESG information into investment and divestment decisions. However, since this strategy is relatively young, the short- and long-term merits and potential harm to investors are both unclear.
A distinguished panel joins us to discuss a new paper, titled "Corporate Collusion" and written by former U.S. Ambassador and White House Counsel C. Boyden Gray, and to offer their differing views on the legal issues involved, including ESG, ERISA requirements, fiduciary duty, and more.
Additional reading includes: "What Milton Friedman Missed About Social Inequality" by Leo Strine, Jr. and Joey Zwillinger; "Restoration: The Role Stakeholder Governance Must Play in Recreating a Fair and Sustainable American Economy," by Leo Strine, Jr.
Featuring:

David J. Berger, Partner, Wilson Sonsini
Hon. C. Boyden Gray, Founding Partner, Boyden Gray & Associates
Hon. Hester Peirce, Commissioner, U.S. Securities and Exchange Commission
Hon. Leo E. Strine, Jr., Of Counsel, Wachtell Lipton; former Chief Justice, Delaware Supreme Court
Moderator: Hon. Paul S. Atkins, Chief Executive Officer, Patomak Global Partners; former Commissioner, U.S. Securities and Exchange Commission