Author: Aaron Saiger


Nondelegation, now available in 32-ounce sizes

New York City is abuzz with the setting aside of Mayor Bloomberg’s ban on the sale of sugared drinks in containers larger than sixteen ounces. The ban applies to establishments directly under the authority of the City’s Health Department (restaurants, movie theaters) but not those that are not (retail stores, church suppers). I have been following the rule with interest because my colleague Olivier Sylvain (guest blogging at Concurring Opinions next month, so stay tuned) has placed it at the core of his 1L course on Legislation and Regulation. In my section of the same course, but with respect to a different rule, I ask my students to pretend to represent the American Beverage Association, today’s successful plaintiffs. The ABA titled its victory post this morning “Choice Lives!”:  “Individuals are the ones with the power to choose what foods and beverages are right for them.”

The decision, by New York State Supreme Court Judge Milton Tingling, makes a move one often sees in high-profile trial court cases, which is that it reaches its conclusion on as many bases as possible. In many ways, therefore, the decision is an alarming overreach. In particular, Judge Tingling says that the regulation is arbitrary and capricious because it is riddled with exceptions:  not just for the above-mentioned retail stores, but also, for example, for beverages that contain a lot of  milk or any alcohol. It cannot be right that an agency acts arbitrarily by failing to be comprehensive. The rules’ various exemptions, while fairly numerous, each bears a plausible justification. That plausibility is more than sufficient to get by the arbitrariness test.

The weakest part of the opinion is a long history of the New York City Charter, which the judge recites in support of his position that obesity is not a “health” issue within the Charter’s meaning. Not only does the opinion give a very dubious restrictive construction to the Charter language, but the Mayor’s soda rule survives that construction. Judge Tingling says that the Executive’s authority to “limit or ban” legal food items applies only when the city is in “eminent [sic] danger due to disease” [29] – but that is precisely the Health Department’s claim, and it is a reasonable one. And, as the City has emphasized, there is no ban here on soda in any quantity; all that is restricted is delivery systems, for which alternatives are available. You can buy 64 ounces of Coke if you want, as long as you are willing to carry four cups.

Nevertheless, Judge Tingling is right that New York State’s nondelegation doctrine – the doctrine that administrative law professors who teach only federal cases tell their students is a dead letter – prohibits the rule. The foundational case, Boreali v Axelrod, is nearly on all fours with this case. Health departments, pursuant only to sweeping language giving them authority over public health, cannot in New York State limit trade in legal markets over which the legislature has given them no explicit authority. If the City is to win its promised appeal, it is going to need to argue that Boreali should be overruled or limited.

The problem with that is that Boreali is right. Nondelegation is an important constitutional principle and should not be sidelined out of existence. I don’t disagree with the Mayor that obesity is a big problem, and am not per se opposed to the kind of state paternalism that shoves people in the direction of healthy behaviors; but I think it’s not just reasonable, but better politics, better civics, and better constitutional law to require those shoves to come from a legislative, rather than an executive and bureaucratic, process.

See also Rick Hills’ interesting comments here.


Cyber-charter schools and religious education

I wrote a few days ago about the rise of the cyber-charter school, and its potential to unsettle constitutional and statutory regimes that govern K-12 education. Right now I am finishing off an article that discusses this with respect to religion. A private religious school is not allowed to operate unless it meets state requirements for all private schools, which include minimum standards for the teaching of secular subjects like math and history. But religious schools must bear the cost of that secular instruction, even though their students would receive similar instruction for free were they to enroll in public school. (States may elect to provide various kinds of aid to religious private schools at the margins, but not to the extent of absorbing the costs of secular instruction.) This minimizes interpenetration between the state-funded public school sector and the religious, private-school sector. It also makes religious schooling more expensive than it otherwise would be.

But consider a religious private school that, rather than offering secular education itself, facilitates the enrollment of its students in a state-funded cyber-charter. The instructional program of the cyberschool is completely secular. But many cyber-charters are asynchronous as well as untethered to place; students may log into school when and from where they please. So why not from inside a religious establishment? Under this model, religious school students pursue their secular studies under the physical supervision of religious teachers but the intellectual supervision of the secular charter school operators. The religious school pays for the supervision but the secular one for the teaching. So (and here I am paraphrasing an earlier piece of mine), a religious teacher might work with half the class on some religious topic while the other half, on its own for the moment, engages in secular cyber-study under the same teacher’s passive supervision. Or a cleric might begin a 45-minute English lesson with a prayer—right before secular studies begin—or interrupt a cyber-biology lesson to admonish students that the material that they are covering is a tissue of lies.

The religious school not only saves a fair bit of money by this approach, savings it can pass on to its customers, but it engineers the kind of merger between publicly funded secular education and privately funded religious schooling that our system, until now, has gone to some lengths to prohibit. But I can identify no legal problem with a religious school adopting this strategy. Unlike state aid for secular instruction in religious schools, which raises real risks either of religious schools repurposing secular funds to religious ends or heavy-handed state involvement in quotidian regulation of religious schools’ operations, cyberteaching is 100% secular and under secular state control. Conceptually its use by the religious school is very similar to such a school’s use of a public library, or of state-provided maps or films. Indeed, I think it would be unconstitutional to allow students to log on to cyberschool anywhere and anytime except while under the physical supervision of a religious teacher. It would surely be unconstitutional to prohibit religious teachers from putting their own gloss, on their own time, upon what the students are learning in their secular classes.

But logistically the model is something very new. It creates a religious school whose secular program is state-funded and largely state-directed, but whose scheduling and context is in religious hands.

Short of abolishing cybercharters (which some states have done) can such initiatives be blocked? If not, is that a reason to abolish them? Or might it be acceptable, or even welcome, that the internet can create a new kind of religious pluralism in American education, where secular schooling remains under secular direction but which lacks the firm wall between its pursuit and the acquisition of religious education?


The Cultural Construction of the Bicycle

Before automobiles first appeared in urban spaces, parents regularly sent children outside to play in the street. Today, noone would hesitate to label any parent who did that as reckless. The cultural distance between then and now is substantial. Readers interested in its course should check out Peter Norton’s excellent, and consistently surprising, Fighting Traffic.

I am regular bike commuter in New York City, along with an increasing number of other people. Bikes, under the law, are supposed to follow the same rules of the road as motor vehicles. But many cyclists, here in New York at any rate, don’t. They slow rather than stop at red lights and stop signs. They weave around pedestrians in crosswalks. They go the wrong way on one way streets. It’s a great case study of why people obey the law: we cyclists break these rules because they seem so manifestly unsuited to our circumstances. I yield rather than stop for some red lights and some pedestrians, when it seems clearly safe to do so (although I draw my personal line at salmoning upstream in a one-way zone). But I would never in a million years blow through a red light when driving a car. Even in the middle of the night, even if  nobody is coming and I know nobody is coming, I sit there patiently in the empty intersection until the light turns green.

Can the law take the lead in developing rules that make enough sense for biking for transport that cyclists would obey them? Or must we await, as we did in the case of automobiles, a new cultural construction of bicycling? (As Norton demonstrates, a lot of people died in “accidents” while the new construction of the car was emerging.) Is the wait worth it if that new construction would be optimized by what my colleagues Sonia Katyal and Eduardo Peñalver might call bicyclists’ productive disobedience? Notwithstanding my wish for a more top-down approach, it seems that  lawyers and regulators have given more thought how to optimize traffic rules for driverless cars than for bicycles.

I was in London two weeks ago giving a paper, where the bike share system has made urban cycling even more ubiquitous than it is in New York. A few days’ observation found, just as in New York, cyclists ignoring red lights and going the wrong way on one way streets.  But I didn’t see one instance in London of two cyclist behaviors I see regularly here:  failing to stop for pedestrians and riding on the sidewalk.  London cyclists’ disobedience seems more productive than New Yorkers’.


Virtual Schooling in the K-12 sector

Lots of people are talking about the accelerating penetration of virtual platforms in the higher education sector. It’s of course unknown whether the massive open online course (MOOC) will be the vector that transforms traditional higher ed the way that so many other industries are being transformed by interconnectivity.  But it seems clear that there will be some vector.  (I got my first ad for a law school MOOC this week.)

Virtuality poses two basic challenges to higher education. The first is about pedagogy: What might be gained, and what lost, from shifting from a bricks-and-mortar learning environment to a virtual one?  The second is about money and institutions:  What happens to the business model of colleges and universities as virtual platforms become cheaper, easier to access, and increasingly popular?

Less discussed but potentially just as important is the penetration of virtuality into K-12 ed.  Cyber-charter schools are becoming ubiquitous, enrolling  tens of thousands of children. Several states have created virtual school districts.  In Florida, I’m told, you cannot graduate from high school without taking at least one virtual course.

Read More


Civic Education and Teaching at Home

I’m delighted to have been invited to be a guest on this forum. I thank Danielle for the invitation and the blog’s other authors for their hospitality.

I thought I’d begin by chiming in on the recent exchange over Jim Fleming and Linda McClain’s proposal to require homeschooled students to participate in civics education within public schools. The ur-text here, of course, is Justice McReynolds’ claim for the Court in Pierce v Society of Sisters that “The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only.” McReynolds identifies the central issue as the choice of who does the  teaching, rather than what is taught. Following his lead, I can easily accept Catherine Ross’s proposal to set civics curricula that all, including homeschoolers, much teach; but I reject that  teachers must be state agents. Abolishing families’ right to opt out of public instruction is too close to the state’s ideological conscription of its children.

Pierce is in bad odor in some circles. Dean Chemerinsky, for example, recently reiterated his long-held position that it should be abandoned in service of educational equity. Also, as both a doctrinal and theoretical matter, one need not apply Pierce to home schoolers. Private schooling, unlike  home schooling, at least guarantees children access to adults and adult ideas from some source other than their parents.

But I stand up for Pierce‘s claim that the choice of teachers is fundamental to liberty. And this does extend to homeschoolers. Indeed, it’s precisely for a reason suggested by Catherine that I recoil at forcing homeschooled students into public schools: Civic education is accomplished at least as much by modeling for children what liberty, citizenship, and republicanism are as by telling them what they are. Coercing all children to attend to agents of the state, who will explain to them what it means to be a citizen, models for children a grossly illiberal civic orthodoxy. That lesson will be learned even if the content of those agents’ civics lessons are liberal, pluralist, and tolerant.