Students for Fair Socialization
v.
Student Bar Association
76 U.Va 2 (2023)
Coleman, J., delivering the opinion of the court.
We hear this case on appeal after the Governor from the State of SBA issued a halt on bar reviews, the constitutionality of which was affirmed by the lower court. The trial judge cited the dramatic rise in COVID cases among the student population as a sufficient justification for the unprecedented move. However, the trial court did not disturb the many other gatherings that are permitted, from classes to student organization meetings. Because of this inconsistency, we have been able to see the blatant attack on two fundamental rights at the Law School: those of inebriation and socialization. Accordingly, we reverse and issue an injunction that bar reviews must continue in spite of COVID.
Up front, this Court would like to address the standing issue. SBA has not actually restricted bar reviews. However, the apprehension of some students that bar review may be curtailed with the rising COVID numbers is a cognizable injury. SBA poses a credible threat, and for that reason, this Court will entertain the petitioner’s complaint.
Some may know that the words “socialization” and “inebriation” are nowhere to be found in our Academic Policies. This is of no concern, since I choose to include them in my substantive honor analysis. Our constitutional order was fundamentally changed when the Honor System was established in 1842. And with that, the Framers protected some inalienable rights by putting them outside of the Honor Code’s ambit. To an intelligent student in 1842, the Honor Code protected his rights to socialize and drink. This is because these rights were deeply rooted in our school’s history and tradition. After all, Thomas Jefferson himself developed the wine industry in the region. And this Law School has consistently been ranked as the best for quality of life. Those isolated pieces of historical evidence convince me. Accordingly, the rights to inebriation and socialization are codified within substantive honor as if they were explicitly granted rights.
Our precedent informs us that laws may burden these fundamental rights if they are neutral and generally applicable. But this is obviously not the case. The regulations at issue were written with bar reviews in mind, and they do not apply to the many other gatherings that characterize the law-school experience. In sum, it is obvious that classes are being treated more favorably than bar reviews. This is abhorrent from the perspectives of an 1842 student and the modern student alike.
Yet another important consideration is the negative impact this ruling would have on 2Ls and 3Ls, relative to 1Ls. 2Ls and 3Ls are better positioned to enjoy bar review for several reasons. They care less about grades, have more disposable income after summers with firms, and have larger networks of friends to enjoy the night with. A restriction of bar review limits their ability to exploit these blessings as jealous 1Ls look on. Decisions by state actors that fail to privilege 2Ls and 3Ls over 1Ls receive strict scrutiny under this Court’s jurisprudence. I don’t find the respondent’s reasoning compelling, so it fails my version of strict scrutiny, plain and simple.
The State cannot assume the worst when people go to tie one on at bar review and the best when people go to class. Such thinking is antithetical to a society based on disordered libertinism and will find no safe haven in this Court. SBA must continue putting on bar reviews no matter what.
Rice, J., concurring in the judgment.
I concur in the judgment, but I believe that the SBA’s attempt to curtail bar reviews is more aptly evaluated under the Free Exercise Clause of the First Amendment. That is, our precedent tells us that government restrictions cannot be neutral or generally applicable, and thus trigger strict scrutiny, whenever they treat any comparable sober activity more favorably than the exercise of public intoxication.
The above principle makes clear the outcome in this case. Here, SBA treats some comparable activities more favorably than bar review inebriation—permitting, among other things, face-to-face meetings with professors during office hours to go on. Indeed, this court is aware of no SBA restriction on getting a bit toasted before attending one of these sessions, in order to get the courage to ask the question you’ve been too afraid to ask since the first day of class. Yet, SBA would ban this same transfer of knowledge for the mere reason that the transaction occurs in poorly ventilated bar filled well-over capacity and heated to the ripe temperature of ninety-eight degrees.
Further, the SBA provides no explanation as to why it could not safely permit drunken law students to scream and breathe into the faces of their disinterested peers at a one-inch distance after backing them into a corner at Rapture.
Strict scrutiny requires the State to employ the least restrictive means to advance their interests, and I am unconvinced that the long-employed tactic of 1Ls neglecting personal hygiene in order to maximize their time in the Law Library is insufficient to encourage social distancing in a public setting.
Whereas the State has not carried its heavy burden of demonstrating that the challenged restriction satisfies strict scrutiny, and the tolerance of the student body would be irreparably harmed by the loss of their drinking rights for even a minimal period of time, petitioners are entitled to injunctive relief.
Moore, J., dissenting.
Today's decision is a first: Never before has this Court entered an injunction arguably encouraging the spread of a disease. This Court has always decided simple, petty disputes among members of the student body and against the school administration. Indeed, this Court’s original grant of subject matter jurisdiction is to adjudicate petty disputes over petty matters. Not, as the majority seeks to do here today, to lay down public health policy for the entire Law School. Accordingly, I would issue an injunction pausing bar reviews until further notice.
To be sure, bar review plays an integral part in the Law School experience. Bar review has long been a place where law students come together to unwind, socialize, and watch 1Ls drunkenly try to make out with their sectionmates. Bar review serves as an important source of connection and provides community to a diverse student body. I do not take lightly the decision to pause bar review, but, under the present circumstances my hands are tied.
Some might say this dissent is motivated by the fact I am currently suffering from a bout of COVID that I got from the first bar review. They are correct. But my unease ultimately does not arise out of concern for public health and student safety. Instead, I ground my reasoning in the long-standing history and tradition of FOMO.[1] Indeed, I seek to enjoin future bar reviews until I can once again personally partake in them. Last weekend, my Instagram Stories feed was filled with my fellow BLSA members cutting up at Look Hoos Back. The only thing harder than dealing with that FOMO is breathing through my nose.
Nothing could be more petty than enjoining all future bar reviews out of spite. Therefore, I must (disrespectfully) dissent.
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[1] McGinnis v. The Fear of Missing Out, 242 U.S. 320 (2018). ChatGPT assures me this is a real court case.