Loiterers v. The Powers That Be
73 U.Va 14 (2021)
Lake, D. writing for the majority.
The question before the Court is whether the powers that be (in this case the shadowy cabal secretly governing the University of Virginia School of Law) (hereafter “the Administration”), acted within their proper authority by banning loiterers (hereafter “the Students”) from seminar rooms for the Spring 2021 semester.
The answer this court has reached is an emphatic no.
I.
The 2020 Fall semester showed remarkable resilience from students, professors, administrators, and most notably, custodial services.[1] UVA Law entered winter break with no significant COVID-19 outbreaks and an increasingly sophisticated system of prevention/response. By the end of the semester, this system included random prevalence testing, restricted library hours, a school-wide mask mandate, and a restriction on eating and drinking outside the designated sacrificial cesspool (hereafter “ScoCo”).
In search of the barest scraps of community, students utilized seminar rooms to take Zoom courses with classmates and to study between class a healthy six feet apart. Some students[2] did not comply with the restriction on eating and drinking in seminar rooms. Discovery has yielded reports of students taking bites of a “granola bar,” sipping “water,” and “vaping.” Plaintiffs do not contest these findings.
Beginning in the Spring 2021 semester, all preventive measures from the successful Fall semester were put into effect, along with a new ordinance suspending student seminar room access—indefinitely. Administration buried their notice of closure at the bottom of one of a dozen Return-to-Grounds emails students received mid-January, citing “persistent non-compliance with protocols” as their justification.[3] It is this regulation the Plaintiffs seek to overturn.
Plaintiffs failed to include a claim of improper notice with their amended complaint, so this case turns exclusively on how far the Administration’s executive power extends.[4]
II.
Some have argued that it is not the judiciary’s place to interject in disputes between the executive and legislature, but the seminal case Marbury v. City of Madison, Wisconsin (1803) set the precedent for judicial review of non-political actions. Closing the seminar rooms was unpredictable, unpopular, and poorly executed: the classic signs of political action. Digging a bit deeper, we find this to be a legal action subject to judicial review, because of how the regulation infringes on the enumerated rights of the legislature to make all laws necessary and proper for execution of “all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.”[5] As Baker v. Sedan (1962) affirmed, the judiciary has the final say on whether another branch has exceeded their authority.
While the Code of Virginia allows for any locality to pass an ordinance prohibiting “loitering in, upon or around any public place, whether on public or private property” (Va. Code § 15.2-926 (2020)), a quick scan[6] of the Albemarle County and City of Charlottesville Code of Ordinances reveals no such regulations. Even if such regulations did exist, anti-loitering ordinances are often unconstitutionally vague and overbroad anyway.[7]
Thus, if an ordinance might be passed that does not infringe on due process, it would be the province of the legislature and not accomplished with executive action. The unilateral, indefinite closure of whole sections of the Law School by the Administration clearly violates that most sacred principle of separation of powers.
III.
Why, then, did this Court grant a writ of certiorari and invest several hours of time thinking of legal puns instead of dismissing the case? You might be familiar with the phrase unprecedented times. It would be improper to proceed without considering the role of the executive in times of emergency.
Is the Law School in a state of emergency? Obviously not, or we would be 100 percent online. To avoid jinxing the delicate peace the School has maintained, we are willing to sprinkle in some nuance; COVID-19 is the most serious public health crisis America has faced since the beginnings of the opioid epidemic. It needs to be addressed through consistent, broad, and proactive measures. This Court can acknowledge the invaluable contribution of many state governors to stopping the spread and saving lives by implementing mask mandates, curfews, and restricting gatherings when their legislatures were unable or unwilling to act. The Administration has certainly been admirable in their commitment to similar measures.
The Students do not protest the mask mandate, they do not protest the limited library hours,[8] and they do not protest the six-person gathering limit or the six feet of space needed to social distance. These measures, while outside the normal power of the Administration, are tolerated and even encouraged by Plaintiffs. Students protest only the very silly idea that ScoCo has a magic barrier around it that COVID-19 cannot cross but the seminar rooms do not. If students are permitted to eat and drink six feet away from each other in the toxic airspace of ScoCo, filled with a constantly fluctuating population of students, it doesn’t make sense to this Justice as to why the same safety standard is not met in the comparatively more restricted environment of a seminar room, which might have three students or so at a time.
The double standard is confusing and appears to be totally arbitrary. Unless the Administration has a better argument than the one presented (such as, maintaining the enhanced cleaning standard for so many rooms was unduly burdensome on custodial services) we would like to hear it.
* * *
Because the powers that be nonetheless lack the authority to enact such far-reaching, strange, unusual, and/or cruel regulations by executive action, we must grant the relief prayed for by the Plaintiffs. An injunction directing the immediate unlocking of all seminar rooms is thus ordered.
The Court compromises with the needs of the Administration by consenting to sentence any student caught vaping inside to corporal punishment in Spies Garden.
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dl9uh@virginia.edu
[1] Custodial services have gone above and beyond the call of duty in meeting the new disinfectant and safety requirements on top of regular duties and we love them.
[2] You know who you are.
[3] Can you Bluebook emails? Please respond quickly, journal try-outs are fast approaching.
[4] Ignoring for the sake of argument the iron-fisted autocracy the Administration runs.
[5] U.S. Const. art. I, § 8., but you should really be familiar with this by now.
[6] This Justice has a ten-page paper not yet begun at the time of this writing due very soon, so an investigative standard of “cursory” was approved by the Chief Justice.
[7] See City of Chicago v. Morales 527 U.S. 41 (1999), the only crim law case this Justice has committed to memory.
[8] The record shows at least one incident of a Justice being shut in the library and all the lights turned out on her with NO WARNING while taking an evening class, but can agree she should have paid more attention to the altered hours notification.