During oral arguments Monday in New Orleans, U.S. Circuit Judge Kurt Engelhardt asked the teachers unions who challenged the law if they thought the court order should remain intact, even though it contained errors caused by the use of generative artificial intelligence.
The state appealed after a Mississippi district court issued an order blocking the state from enforcing a law that prohibits schoolteachers from incorporating in their curricula certain concepts the state alleges relate to diversity, equity and inclusion, such as teaching that an individual bears responsibility for past actions committed by other members of their race.
U.S. District Judge Henry Wingate of the Southern District of Mississippi issued an order that contained nonexistent allegations, wrongly identified plaintiffs and defendants, and quoted terms that don't appear in the legislative text. While Judge Wingate amended the order in an attempt to cure those inaccuracies, Judge Engelhardt pointed out Monday that the final order still allegedly contained an AI hallucination.
"It's not as if AI told Judge Wingate to grant" the temporary restraining order, said the unions' attorney, Robert McDuff of the Mississippi Center for Justice. "He made a decision to grant the TRO, and regrettably, a shortcut was taken in his office."
"He did that on the basis of names that didn't even exist and statements that didn't even exist," U.S. Circuit Judge Jerry Smith said. "Are you saying that we can be confident that that didn't infect his ultimate reasoning?"
McDuff told the panel they could be confident because Judge Wingate held a hearing on the order and heard arguments from both sides. While someone in his office put AI hallucinations into the order, the teachers unions still have a high likelihood of success on the merits, he said.
While the state claims that the effects of the law would be limited, the actual language of the law seems quite sweeping, McDuff said. However, the state's chief legal officer has said the law would be more narrow than the law's language implies, he said.
"Talking can be really helpful to try to figure things out," U.S. Circuit Judge Catharina Haynes said. "Just fighting is not that helpful."
The state's education regulators themselves understand that trying to implement the law in the sweeping way its language suggests would be a "disaster," McDuff said.
The state's attorney, Anthony Shults of the Mississippi Attorney General's Office, asked the court to toss the restraining order. Additionally, the panel should reassign the case to a different judge after the mistakes in the initial court order, he said.
"The district court's AI-infected, error-plagued TRO raises significant concerns about the court's deliberative process, and those concerns were only heightened by the court's actions after that, when it removed the TRO from the public docket, [and] stealth-replaced that order with a backdated, amended version that still appears to contain at least one AI-related hallucination," he said.
Mississippi and state Attorney General Lynn Fitch are represented by Anthony M. Shults, Scott G. Stewart and Justin L. Matheny of the Mississippi Attorney General's Office.
The unions are represented by Joshua Tom, McKenna Raney, Ayanna Hill and Brendan Hopkins of the American Civil Liberties Union of Mississippi Foundation Inc., Amir Badat of Badat Legal PLLC, Robert B. McDuff and Paloma Wu of the Mississippi Center for Justice, and Richard Rouco of Quinn Connor Weaver Davies & Rouco LLP.
The case is Jackson Federation of Teachers et al. v. Lynn Fitch et al., case number 25-60496, in the U.S. Court of Appeals for the Fifth Circuit.
--Additional reporting by Katherine Smith and Gina Kim. Editing by Robert Rudinger.
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