FIU has a student group that goes by the name "ICEBreakers." The goal of ICEbreakers is to end FIU's agreement to "deputize the FIU police department with the powers of federal Immigration and Customs Enforcement agents."
One of the arrows in ICEBreakers's quiver is public protest. And so when FIU's President, Jeanette Nunez, was interviewing a former pro athlete on FIU's campus on March 13, several ICEBreakers members who were in the audience protested. They did so by standing up between one to three minutes and facing the audience while wearing the same "ICE OFF FIU" T-shirts.
This prompted disciplinary action. FIU sent (most) of the students a letter that stated they had failed to comply with a school regulation and directing them to submit a two-minute "video reflection" "explaining your understanding of FIU Regulation 110, what is expected under FIU Regulation 110 related to indoor and outdoor areas, and how you will apply what you have learned moving forward." (Sounds kind of like the 2026 version of writing the same sentence over and over again on a blackboard).
In any event, the students instead filed a lawsuit that, among other things, asked the court to enjoin the school from taking action against the students.
Judge Becerra granted the injunction. She held that Regulation 110(3) ran afoul of Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), because it categorically bans protests and similar expression inside university buildings whether or not they cause a material and substantial disruption. The protest here, Judge Becerra noted, didn’t appear to cause any such disruption: “[B]ased on the evidence submitted to date, it does not appear that any Plaintiff, or anyone else wearing an ‘ICE OFF FIU’ T-shirt, spoke or did anything other than sit, stand, and walk.”
You can read the whole order here.
I know this is pedantic. I'm also sure people have a contrary view, which they won't hesitate to express here.
ReplyDeleteBut here goes: a trial court does not "hold" anything. That verb only works with appellate courts. A district judge can "find" something (if it's a factual thing) and can more broadly "determine," "conclude," or "decide" an issue. But trial / district judges cannot and therefore do not issue "holdings."
I don't have a problem with the way that John used "held" in this context, though I do appreciate your precision about "finding," "concluding," etc. The judge I clerked for was adamant about such things (e.g., that plaintiffs in complaints "allege" but don't "argue" or "assert," for example). About the verb "to hold" more broadly, I'm not a big fan of using it at all. Ever read the book The Curmudgeon's Guide to Practicing Law? The author made the point that appellate courts "affirm" or "reverse" or "vacate" or "remand," and that it's best to discuss their rulings in that context (e.g., "In such and such case, the Eleventh Circuit affirmed the district court's order granting the defendant's motion for summary judgment."). Being precise in describing what courts do -- even appellate courts -- is so much preferable, I'd humbly suggest, than using the vague term "to hold" at all, the meaning and scope of which even appellate courts fight about all the time.
DeleteTBH, I wasn't expecting professional and polite responses to my admittedly annoying comment about a silly pet-peeve. So thanks for that. I agree with you that "held" is imprecise and there are more precise options available.
DeleteBut, funny enough, I share your judge's view on verbs that 'go with' complaints! Also a great time to bust out "aver" (if it's a verified pleading) ;)
Anyone have a source for this "a district court can't 'hold'" argument?
ReplyDeleteIf this is the case, then a district court doesn't publish dicta? What's that then? Just another legal conclusion that is less persuasive then the "don't call it a holding" but "main" legal conclusion?
I'm skeptical, too. Black's Law Dictionary defines "hold" as a verb as "(Of a court) to adjudge or decide as a matter of law (as opposed to fact) < this court thus holds the statute to be unconstitutional>." Nothing in that definition or use would apply strictly to appellate courts. (All that said, and as an aside, no judge or court *needs* to use the verb "hold" at all; a court could just as easily write, for example, "For all these reasons, the statute is unconstitutional." No magic words are required for a judicial order to have legal effect.)
DeleteHere's what Claude had to say:
DeleteBottom line: No style guide I found says "hold" is grammatically off-limits for trial courts. The real, sourced distinction is Garner's fact/law line, plus a practical tendency (not a rule) to reserve "the holding" as a noun for the legal conclusion that ends up mattering for precedent — which is usually the appellate one when a case is appealed.
So, seems like this is just one of those style things that is idiosyncratic to each lawyer/judge. Neither is wrong nor right, but I do agree with some comments above that there are more precise words that could be used no matter what kind of court we're talking about.
There is no source for it because it is wrong and the usage here appears supported by the order. A holding is the core aspect (mixed legal/factual, or just legal) absent which the case would be decided differently - whether a district court or appellate court. There can be other findings or legal precepts that inform but are not part of the holding, but the holding is the aspect that was necessary to decide a case.
ReplyDelete"the aspect that was necessary to decide *an appeal*" not "a case." But that does remind me ... I guess a district judge could issue a real holding--if it's an appeal from an Art. I court/judge (bankruptcy being the most common to come to mind)
DeleteAssuming "hold" doesn't work with district courts--whether through some source or just divergent views on colloquial usage--and assuming a district judge is even aware there's disagreement on the issue, then a district judge choosing "I hold..." is just self-aggrandizement.
ReplyDeleteWhile we're on that subject--don't get me started with DJs saying their prior findings/legal conclusions are "law-of-the-case" in later stages.
THAT doctrine def only applies vertically--when an appeal results in a remand and the case goes back down. It's a corollary of the Mandate Rule, which prevents the district judge from disturbing the mandate. Nothing a DJ does on his/her own case, pre-appeal, is law-of-the-case, and parties invoking that doctrine in subsequent motion practice in the same case is so annoying.