The Law-Dog Days of Summer
It’s been a peripatetic July, as I’ve been talking about the Supreme Court and filing briefs on religious liberty, free speech, and civil rights on campus — plus a comment to the FCC on Disney’s DEI.
It’s been a busy couple of weeks since the Supreme Court issued its final decisions, as I traveled to several states—including California twice—to review the term and the state of our institutions. Here’s C-SPAN video of a panel I did for the National Review Institute this week, alongside Charles C.W. Cooke and Casey Mattox on the state of the Court and other institutions in the face of calls for “reform.” And of course we also had the conclusion of the World Cup, which was just an amazing experience all around, and should stick in my eight-year-old’s mind even more vividly than my first Cup memories (which didn’t include going to games) when I was eight during the 1986 tourney.
But the work continued on a variety of front, so here are the three briefs I’ve filed so far this month—more interesting to the lay reader than most, if I do say so myself—as well as a regulatory comment to the Federal Communications Commission regarding the renewal of Disney/ABC’s broadcast licenses in light of the company’s DEI programs. And stay tuned for a brief I’m filing this week regarding Puerto Rico’s appropriation of Roberto Clemente’s trademarks without paying the Clemente family! —IS
St. Mary Catholic Parish v. Roy
In December, the Manhattan Institute joined a group of organizations on a brief supporting Supreme Court review on an important question concerning how states exclude religious educational institutions from funding programs. The Court has now agreed to hear the case, and MI has again joined those groups—the Notre Dame Education Law Project (headed by MI senior fellow Nicole Stelle Garnett), the Islam and Religious Freedom and Action Team, and the Jewish Coalition for Religious Liberty—on a brief arguing that the Court should put a stop to a recurring tactic used by states to deny funding to religious educational institutions.
In 2022, Colorado introduced a universal preschool program offering 30 hours of free education at public or licensed private preschools. However, the program’s “equal opportunity mandate” excludes certain religious preschools based on their faith-based policies—such as requiring bathroom use by biological sex and admitting only families who support their religious beliefs. This exclusion has created a funding disparity, forcing at least one Catholic preschool to close. The Archdiocese of Denver, two preschools, and a family sued, arguing religious discrimination. The district court ruled for Colorado, and the Tenth Circuit affirmed.
The Tenth Circuit decision demonstrates a confusion in the circuits about important concepts in religious liberty cases. Our brief argues that the Tenth Circuit’s decision doesn’t work with existing Supreme Court precedents and allows governments to undermine religious practice through creative legislative drafting and novel procedures. Unfortunately, laws like Colorado’s reflect a movement by hostile legislators to gerrymander public programs in ways to get around Supreme Court decisions. The Court should ensure that its cases and the First Amendment may not be evaded simply by clever legislative drafting.
Hershey v. Bossier City
Richard Hershey was distributing leaflets advocating for Christian vegetarianism outside a Christian rock concert in Bossier City, Louisiana. He was doing so peacefully, and not blocking anyone from entering or leaving. The music arena is publicly owned, and Mr. Hershey was handing out leaflets on a public sidewalk that had no written policy about leafletting. At least one other person was distributing commercial literature promoting a local radio station. Yet Mr. Hershey was harassed by five police and security officers who descended on him and threatened to arrest him for peacefully distributing religious leaflets in a traditional public forum—a public sidewalk in a public park surrounding a public arena. One officer even waved his handcuffs and threatened to take him to jail. Mr. Hershey tried to explain his constitutional rights, but the officers demanded he leave the public area.
Mr. Hershey sued for the violation of his First Amendment rights. Ultimately the district court granted qualified immunity to the officers. Qualified immunity protects government officials from liability unless the right that is alleged to be violated is “clearly established” in the jurisdiction. The Fifth Circuit upheld the district court. Now on petition for Supreme Court review, Mr. Hershey is challenging whether qualified immunity should be given when the violation of a constitutional right is sufficiently obvious.
The Manhattan Institute filed a brief in support of Mr. Hershey’s petition. We argue that rights like leafletting in public areas have been settled for centuries decades, if not centuries. Government officials should not get qualified immunity when the right is clear enough for a grade schooler to understand. Moreover, cases like Mr. Hershey’s—where he was “just” bullied and threatened and not given any official citation—rarely get to court, so it’s hard to “clearly establish” the right. The Supreme Court should review the case and protect the most basic and obvious constitutional rights.
StandWithUs v. MIT
After the October 7, 2023, attacks on Israel, protests erupted at universities around the country—against Israel! At MIT, students and faculty called for violence against Jews. Protesters disrupted classes and impeded access to public spaces, and they coalesced around Jewish community and religious locations as they targeted students and faculty because of their Jewish identities. These actions, among others, violated MIT’s time, place, and manner rules for protests, and made campus life intolerable for Jews. Because MIT failed to take adequate steps to address these realities, its campus devolved into a severely antisemitic environment.
StandWithUS challenged MIT’s actions (or lack thereof) as a violation of its obligations under Title VI of the Civil Rights Act. MIT is a private university, but it is still required to at least not be “deliberately indifferent” to a “hostile environment.” The First Circuit ruled that MIT’s actions were not deliberately indifferent to a hostile environment because the protesters were anti-Zionist rather than antisemitic, and the protesters’ speech was political speech protected by the First Amendment.
Now, on petition for Supreme Court review, the Manhattan Institute filed a supporting brief. We argue that the lower court made errors in how it interpreted the facts at the pleading stage. The First Circuit illegitimately explained away each fact rather than looking holistically at the totality of facts that created an antisemitic environment. That approach to the pleadings also highlights a circuit split about the legal standard to apply to cases like this. The Supreme Court should take the case to clarify how to apply Title VI.
Comment to the FCC Regarding the Renewal of Certain Broadcast Licenses of the Walt Disney Company
The Federal Communications Commission opened a proceeding involving Disney’s ABC-owned broadcast stations, questioning whether additional review is warranted in connection with the stations’ renewal applications. This proceeding arises amid concerns that Disney/ABC’s employment practices improperly considered protected characteristics such as race in hiring, promotion, or other workplace decisions. Because broadcast licensees are subject to neutral employment nondiscrimination and Equal Employment Opportunity (EEO) obligations, the FCC may examine whether the relevant licensees complied with those rules as part of the renewal process.
The Manhattan Institute filed a comment urging the FCC to develop a station-specific record on those employment-compliance issues. The comment does not ask the FCC to punish Disney or ABC for its programming, editorial judgment, political views, or news coverage. Instead, it asks the Commission to verify compliance with preexisting nondiscrimination obligations that apply to broadcasters regardless of viewpoint.
The comment explains that review should focus on the ABC-owned stations and their licensees, including station-level EEO compliance, public-file materials, renewal certifications, and any record evidence bearing on whether employment decisions complied with federal nondiscrimination requirements. It also anticipates Disney/ABC’s likely First Amendment objection, explaining that a neutral employment-compliance inquiry doesn’t require the FCC to evaluate programming content or viewpoint.
The bottom line is that the FCC shouldn’t treat the renewal applications as complete until it has a station-specific record sufficient to assess whether the relevant Disney/ABC licensees complied with their employment nondiscrimination obligations. The comment suggests that the FCC take a narrower, more defensible path by focusing on employment-law compliance rather than programming disputes.
-Ilya Shapiro
Ilya Shapiro is a Manhattan Institute Senior Fellow and Director of Constitutional Studies. author of Lawless: The Miseducation of America’s Elites (2025), Supreme Disorder: Judicial Nominations and the Politics of America’s Highest Court (2020) Shapiro’s Gavel on Substack. Visit HERE to learn more.
