The Supreme Court's emergency docket ruling in Mirabelli and denial of certiorari in Foote will send conflicting signals. On the one hand, the Court blocked California's policy on the shadow docket. On the other hand, the Court allowed a similar policy from Massachusetts to go into effect.
I received an email from a lawyer indicating that his school district was maintaining their "secret transition" policy, notwithstanding Mirabelli.
A question arises. Would this school district retain qualified immunity? Does Mirabelli, as an emergency docket ruling, create "clearly established" law? I know the Supreme Court has told us that emergency docket rulings are precedential. But is the law "clearly established"? Would this sort of ruling be clearly established by the Supreme Court for purposes of AEDPA?
