 Good morning, good afternoon, depending on where you are. Welcome to Think Tech Hope Way, another difficult conversation to make good trouble on law, social justice, and wherever else this conversation may go. And we have the great fortune to have with us today, Professor Vernalio Randall, Professor Emerita of the University of Dayton School of Law, Tina Patterson, mediator, arbitrator, experienced business coach and advisor as well, and David Larson, Professor at the Mitchell-Hamlin School of Law, and one of the innovators of online court case resolution in New York State, in which he has now invested over six years, if I understand correctly. Right, David? Over four years, but it seems like six years. Dog years are the opposite. So they've sent us some questions to start with today, and one of those is because we've been talking about serious challenges and decision-making in health, public safety, leadership, social justice, education, all those areas. So one of the questions is, are those challenges getting more difficult? Or are they getting more manageable? Which direction, if any, are we going? Or are we treading water? I guess I'm on the opinion, it's just an opinion, that's getting more difficult. We've got, as we've talked about before, this polarization in terms of kind of our societal values and our perceptions of what's community responsibility and what's personal liberty. And right now, for example, you're seeing a situation where states are being, some states have been very aggressive in taking positions against masks, against doing some of the things that many health experts are recommending to stop the spread of the Delta variant. And you've got now the federal government, the Biden administration, talking about trying to stop states from doing these things. And so we're getting these conflicts raising these really kind of interesting federalism issues as to what power does the federal government have to limit what states can do in things that many would say are kind of productive to public health? And do we need congressional authorization, or can you do this by executive order? Well, you know, I kind of sort of believe that things, I don't, I think what's happening is that the population, because of media and stuff, are becoming more aware of how difficult it is to have a decision made in areas of conflict. Now, being black, I've been raised in an area of conflict, and have seen all my life how difficult it is to get the courts, to get the legislature. I mean, you think, talk to, it's, it's to get something done that's effective. I think if you measure that that that conflict area has expanded, okay, then I can accept that. But it really isn't different in the nature of what's happening in our system. Our system is fundamentally the same. It's just that there's more conflict, public conflict areas. Yeah, I agree with that. And I think that that distinction is important, because with this pandemic, we're talking about daily deaths. People are literally dying by insignificant numbers. So that, at least in my mind, gives us a little different circumstance. But there was daily deaths of black people. I mean, you know, it's just, the daily deaths is not something different. It's just the daily deaths is to a wider group of people. Tina, it's Patterson. Yes, Professor. So I'm going to go back to your original question. And I have a different perspective. And I think part of it is we, we tend to think linearly. And if we are going to look at this as a point A and point Z, have we made progress? I would agree with what David has said. No. But if I look at this as a system change, as an overhaul, as upheaval, there has been progress. And the progress is, I think, from my perspective, that it's being talked about, that people are being made aware. Does it mean that the, that everything has been satisfied? Absolutely not. And I agree with Professor Randall that we're now having the discussion about how people are being treated, whether it's people of color, people who have, don't have access to the resources. And it's all blowing up in our faces. And where do we start? It's not one of those instances where, oh, here's a dam, let me put my finger in this hole, and it'll solve everything. You literally have a hose that has multiple holes, little holes in it, and everything is springing up. Where do you start? And you've got to start somewhere. So I hear what David is saying, it does, it looks really dark. I mean, I was listening to the news yesterday, and I thought, oh my goodness, you know, is this as what I hear from some of my relatives, we are living in the last time. I don't want to believe that. But there's a lot going on. So where do you start? Where do you start? And what, what do you consider the end or what do you consider progress? For me, the fact that we can literally have this conversation and be in concurrence and say, you know, Professor Randall, you're absolutely right. As a person of color, as a black woman in this country, deaths have been occurring. But now it's something everyone is talking about. So for me, that's progress. Is it enough progress? Absolutely not. I guess one thing that seems a little different for me, I guess, is because these conversations are really interesting and complex. I'm glad that we're having conversations by race that we haven't had 10 years ago. I mean, that's great. But one thing about this pandemic that I think is unique and frustrating for me, is that science would tell us that we have the, we have a solution. Unlike some of other social issues, we're still kind of not quite as clear as what might be the solution. Although on a kind of basic level, it seems that it just treat people equally pretty easy solution. But in this case, there's a kind of a scientific basis that says that you do these things, you can beat this pandemic. And nonetheless, we're not getting any kind of cooperation to do those kinds of things and beat the pandemic. And, and then to me, that's tremendously frustrating. When, when science tells us this works, and we can't get people to do it. Maybe that's part of my problem is I'm a public health nurse from the 1960s. And I lived through people ignoring public health advice every step of the way. My sister and I was just talking about this move that this morning, because she was like, you know, has there other been ever been a time when people ignored public science and public health? I'm like, when did the, the, the helmets, the drinking alcohol, the smoking indoors, the HIV infection, SARS, you know, you, you know, vaccines, you can start listing on what is different. And I do think I, I, I think this is what makes this maybe different. And a little bit scarier for some people is that at least in the past, well, I don't even want to say that I wanted to say the politicians got in behind it, but that was not true either. The politicians were just as divided politically until enough of the constituents got on board and then they would sort of, you know, you'd passed a state law in Ohio in 1995 saying you can, you can't smoke indoors, even though the rest of the country had already passed that laws. So it took, it took a while. I do wonder if this kind of, what I have experienced is that there's this conflict, there's this huge group of people who don't want to do it because of individual rights, personal rights, there, there are people who get behind them and then laws are passed, things are done and things settled out. And the question I have is will we ever get to the point of passing laws? Because it seems to me that, that, that might be a difference that it may take a long time to, for states to pass a mask mandates are to do that sort of thing. And which case we're looking at COVID-19 being more like the flu than SARS where there's going to be variants every six months. I could concur with that, that's analysis because I think we're seeing this now where we literally see local government versus state government where we have governors in some states literally taking local municipalities to court and saying, you know, we want you to lift your mask wearing requirement, or you have a mandate in place and we want, we want it lifted. Personal responsibility versus the public responsibility, if such, I can, I can definitely see that. And we're also seeing corporations and entities saying, okay, we're taking, we are going to ask you if you're going to work for us or be employed by us or going to be under our, if you will, our care, you got to get vaccinated or you have to have proof that you've been vaccinated. And I, I think we will see this coming to a head where people will ask about personal civil liberty versus a corporation versus a local municipality. I'm in a municipality now where we are mandated and when we are in public facilities indoors, we must wear masks. And there are people who are very much upset, but we fortunately, at our state level, they're in concurrence. It's those jurisdictions where there's this literally polarization. And which, which do you follow? Do you follow the local knowing that local law enforcement could literally arrest you or you might not be serviced if you went into an establishment? Or do you go along with your, your state legislation? Sorry, in this case, it's the executive branch of the state that's trying to go in a different direction. Or do you follow that? I do see the polarization and I don't think it's going to be an easy discussion. This, I think also goes into funding. When we, when we're talking about how do we fund and provide and when we think about these evictions, the money to keep people from being evicted isn't coming at the state level. It's coming from the federal level. And now you're seeing states saying, you know, we got to put it into this. These landlords need their money. And again, it's the conflict. So again, I don't, I don't see it happening. I don't think it's going to be easy. What I'm concerned about is that we have 50 different requirements representing each state. And as a person moves from one jurisdiction or works in one jurisdiction, but lives in another, is it, is it, is there going to be some type of reciprocity? Or is it going to be, you know, each state for itself? No, and the three of you have raised three things that are extremely insightful. One is it's pervasive and it's personal to every single person out there. I don't care what age you are, what background you are. You can have a family member or a close friend who contracts COVID who was not vaccinated or encounters someone who was not. So it is up close and personal. The conflicts, as you pointed out, are at all levels. And they're pervasive in that way too. They're within levels. They're between levels. They're at local grassroots levels. They're at national leadership levels at state, city and county levels, institutions, all of them. And maybe in one sense, worst of all, they're fed by a combination of immediate universal diffusion of information and immediate universal diffusion of misinformation, disinformation. And you combine those three things, and maybe Professor Randall, you've got to handle on it, that unless we develop sufficient leadership unity to legislate standards that will be enforced, we may not see cohesive change in these conflicts and challenges. And that legislation, I think that's true. I kind of remember when I moved to Ohio, I was in shock that they had not banned indoor smoking because I came from Oregon and, you know, that hippie-dippy liberal state. And indoor smoking had been banned. And we had professors who smoked like the chimney in the building. And Ohio passed the law eventually. It was way eventually like close to 2000, banding indoor smoking. And they were adamant how they were going to give up the smoking. This was their office. They were going to smoke in their office. The university didn't really want to enforce making them move out. But then when students complained to OSHA, the state OSHA, the indoor breathing and stuff, and OSHA said, if we get another complaint from students, we're going to find you X amount of dollars, suddenly they could enforce making those resistant professors go outdoors. But it had to go all down the line. It had to be federal support for doing something about indoor smoking. There had to be state laws doing something about indoor smoking. And there had to be an institution willing to, even if that willingness was generated by the fear of fines, willing to enforce indoor smoking, to ban indoor smoking. Which makes me think that that's not going to happen with COVID. And it's going to be more like the flu where we're going to have variants after variants coming along. And we just will have to deal with the variants every year. Another factor you folks have brought up is, and we've talked about, which is there are especially vulnerable sectors of the population that this hits much harder and reform and change that bring reduced injustice, greater equality, greater rights opportunities and protections for those vulnerable sectors may need to be part of exactly the kind of change you're talking about in order for it to be effective. That's a random brings up an interesting idea. So OSHA was used under the duty to create a safe workplace, that kind of general purpose clause of OSHA. So can you use that general purpose clause for the pandemic? That your refusal to implement a mask mandate means that you are failing to provide a safe workplace. I wonder, I'm just kind of thinking I love whether I'm thinking of authority to pride the kind of leverage that's being suggested. Could you use OSHA? A little earlier I mentioned this recent news that President Biden considered an executive order to kind of overrule what the states are trying to do. And I'm not a constitutional scholar. And I'm just wondering whether can you do that by executive order? Can you preempt state legislative efforts by executive order like that? You could if there was if it was Congress passed it, because then then you've got the supremacy clause. But can you do it by executive order? I don't know. I think the executive order has to come under some existing legislation to be constitutionally valid. I don't think that that that just but the OSHA is my son who's a lawyer and law was used to teaching a law school. And I talk about this all the time. Because we have been really kind of surprised that the Biden administration's OSHA department haven't said, you know, whatever the states are doing, you have a responsibility under OSHA to provide a safe workplace. And you know, whatever that means, you can't in COVID-19, we also think the ADA that they're not really promoting the right of people with vulnerable populations. Because I say this, you know, I'd be on my Facebook page, I tell people all the time, if you're in a vulnerable population, claim a disability, ask for accommodations. If your employer gets enough of those, it'll be cheaper for them to tell everybody wear a mask and to get vaccinated than to have a bunch of people running around that they're having to accommodate. But those are two areas I think that the Biden administration and I think under the I'm wondering, and I'm wondering out loud what I'm wondering if he can use a negative order to protect vulnerable populations under the American with Disabilities Act. To say, you know, I like the idea of putting under OSHA too. Yeah, that's such a broader clause. So maybe maybe that's maybe that's the way to do it. But why haven't they thought about it? Yeah, and are we maybe seeing some of that already, where large corporations seem to be enacting vaccination requirements at a much wider and higher level than government agencies, except for maybe schools and healthcare institutions. And you know, they got to be talking to their lawyers saying, if you don't do this, and people get infected, you're going to see work comp claims, you're going to see class actions, because you're not maintaining a safe workplace. So you may be exactly right. There may be provisions and resources in the law out there now that used constructively, progressively, creatively, could start to support systemic protections for safe workplaces, for safe environments, hospitality industry and food and beverage industry, they're getting on this bandwagon as well. With the eviction moratorium, you know, they took a, you know, and again, I haven't paid maybe close enough attention to it, but they took an existing statute that actually has been out there for a number of decades, and they put the eviction moratorium under that statute, which certainly wasn't written for current conditions. That statute was passed at a very different time, but they used that statute creatively for the current eviction moratorium. So I think a little bit of creative thinking might be productive here also. And that's a great point because one of the leading institutions in extending the eviction moratorium is the CDC. It's not HUD. It's not the executive branch of the government. It's a public health and safety issue that they're extending the moratorium on evictions as a public health and safety necessity and protection. The CDC should be taking a really strong, the CDC has, it goes back and forth on how strong it can be. And I have to remind people that Trump wasn't the first president that the CDC massaged data for. But they should be in the front of the lead on this in terms of pushing alternatives. Their creative mind should be, what law can we use to improve public health in this pandemic to get masked, you know, OSHA? I steal my own sense because, you know, I had very little opinion of the democratic process in the United States. My own opinion is, for whatever reason, they decided not to yet. My opinion is, and this is this way, I do not think that I can think of an original idea. And so when I think of something, my mind goes to someone else thought of it. Why aren't they talking about it? You know, and because I hate to say that I may be in the conspiracy bunch, my kids say that I am. But, yeah, I don't believe that OSHA, all those people sitting at OSHA haven't looked at this and haven't thought, you know, this is a workplace safety issue. And haven't come up with a memo. But the prize, so I just wonder why that hasn't happened, but the CDC is an appropriate entity to address that. I concur. And let me ask you this, Tina. What if we had a coalition come together? The CDC, the Surgeon General, the leading medical organizations and institutions, and OSHA and at the federal and state level, and all of the workplace health and safety institutions and agencies? What if those two came together on an evaluation and prescription process? So an ideal setting, that would be great. I do an ideal setting. And this goes back to what Professor Randall has been raising and has not actually been addressed. OSHA and CDC were not on the same board, didn't have the same perspective regarding how COVID should be handled in the workplace. And that's why OSHA has been largely silent. The previous administration did not make CDC front and center. Instead, this is why we have five or six different opinions. So in the ideal setting, it would be great for the World Health Organization for Centers for Disease Control, OSHA, to all be on the same page as well as state and local public health agencies and all singing the same tune. I would love to see that. But in order to do that, you really have to say, we are going to, we're all going to have the same agenda. We're all going to do the same thing across the board, whether that's for our public schools, whether that's for our homeless populations, whether that's for individuals who are working in non-exempt positions who are interfacing with the public and apply it everywhere and not, instead, what we're constantly seeing, which is the tearing apart or literally silence, which is probably more dangerous to your point, Professor Randall. OSHA has some very clear guidelines regarding what is safe and what's unsafe. I can't imagine that COVID-19 would be considered safe anywhere, but OSHA has had its hands tied, some of it due to politics at the federal level, and some of it literally conflicting with or really not taking a stand on what it wants to tell organizations. And so we see organizations literally saying, as you said, Chuck, my bottom line is going to be impacted if I don't do this. It's not necessarily because I am such a great organization and I'm really looking out for the welfare of my people. Do I really want a class action suit? Do I really want to have fines from ADA fines and OSHA fines and local and state fines? No. So it's easier for me to just do this and I can bypass all of that. I know that sounds very unkind, but I think and when we think about corporations specifically, it's about the bottom line. And if I'm tied up in legal battles, it's taking me away from what I want my business to do. Exactly. And as we run out of time here, maybe we're brought back full circle to that comprehensive question. If that kind of coalition, that kind of change were focused on protection for those most vulnerable, might that be where there is the least resistance? The least resistance from the public or who? One thing that's changing right now is kids are being exposed in ways they weren't under the original variant. And there's a lot of talk about whether or not that's going to change the conversation and change the dynamics because as to what Chuck's talking about, by identifying a particular vulnerable population with which we all have connections, even if we're not a member of that population, but we're closely connected, maybe that'll be the sufficient impetus for making some kind of change. And it may be that as these cases climb with children, maybe that's the key. Well, I hope that so my fear is that the cases will climb for black and brown and native disproportionately like it was in other vulnerable populations. And that none black and brown people will think that their children are not at that much risk. And I mean, down here in Florida, we see that already. The people, the kids and ICU kids and children of all backgrounds, but they still don't think it's their children at risk. They think it's somebody else's children at risk. And as long as that attitude maintains, I don't know that focusing on children will bring any more to the table. I hope it does. And that maybe has to be our hope. We're out of time for today. Thank you all. Great insights, great perspectives. We've covered a lot of ground and a lot of territory. Come back. We'll be back in a couple of weeks. Questions and thoughts on your minds, send them to us and we're happy to field anything you share. Take good care, be safe, be well.