New Episode: Cruel and Unusual and Stupid
Our new episode of the podcast, Cruel and Unusual and Stupid, is up:
It's our live show at the University of Chicago! Hosted by the University of Chicago Federalist Society, we discuss this week's big shadow-docket rulings about gender transitions in California Schools (Mirabelli v. Bonta) and redistricting in New York (Malliotakis v. Williams), and also break down the recent merits decision about the right to counsel when a defendant is testifying (Villareal v. Texas).
I don't see how the in loco parentis idea could possibly solve the tension in Thomas’s view. Sure, in some sense the students are the plantiffs in the free speech cases but never without the support and agreement of their parents. Is the theory going to be it's all just a procedural confusion and he’d have supported those decisions if they’d been brought by the parents as parties?
I mean how do possibly square the idea that failing to share information about your child violates parental rights with the idea that it doesn't violate those rights to impose punishment on your child for their speech against the parents’ wishes?
Sure, maybe you could say in the speech case those parents have the option to remove their children from the school. But that doesn't really hold up because the parents were on notice -- it's how the case happened -- that the school wouldn't share this information if they had it.
---
I think it's hard not to see what is going on here as a kind of conservative version of Roe. A policy feels deeply offensive to a certain conception of a right (women's bodily autonomy/parental rights) but has that effect through a kind of regulation (medicine/teacher communication) that no one is willing to defend as a truly general nuetral principle because of the absurd results (right for a doctor to prescribe me LSD/right to control curriculum).