Sunday, June 30, 2002

This Fish Did Not Get Away - Peter Berkowitz eviscerates (beheads, de-scales, bones, and disembowels) the flopping Stanley Fish in the New Republic Online. The only problem with this terrific essay is that Berkowitz was too kind.

Berkowitz documents in convincing detail the contradictions between what Fish has written in defense of postmodernism in the mainstream press and what he and other leading PoMo practitioners write in their journals to each other. "Either Fish is confused about exactly what postmodernism means," Berkowitz writes, "or he is willing to say anything--no matter how internally inconsistent--to win an argument. Or maybe both."

But in his trademark bad boy manner Fish shamelessly admits, even proclaims, that he proudly will say anything to win an argument, and its opposite to win another argument. Consistency, apparently, is only for those pre-postmodernists who believe in formal universalisms, like honesty.

Fish says some version of the above in most things he writes, but I have two representative examples handy:

• "The passion I display when debunking the normative claims of neutral principle ideologues is unrelated to the passion I might display when arguing for affirmative action or minority-enhancing redistricting. To be sure, there might be a contingent relation in a given instance if the outcome I dislike was brought about in part by neutral-principle rhetoric; I might then attack the rhetoric as part of my attack on what it was used to do. But I might turn around tomorrow and use the same rhetoric in the service of a cause I believed in. Nor would there be anything inconsistent or hypocritical about such behavior. The grounding consideration in both instances . . . would be my convictions and commitments; the means used to advance them would be secondary, and it would be no part of my morality to be consistent in my handling of those means." - Fish, The Trouble With Principle (Harvard, 1999), p. 8

• "'Free Speech' is just the name we give to verbal behavior that serves the substantive agendas we wish to advance.... Free speech, in short, is not an independent value but a political prize, and if that prize has been captured by a politics opposed to yours, it can no longer be invoked in ways that further your purposes, for it is now an obstacle to those purposes.... [S]o long as so-called free speech principles have been fashioned by your enemy . . . , contest their relevance to the issue at hand; but if you manage to refashion them in line with your purposes, urge them with a vengeance."
Fish, There's No Such Thing as Free Speech...and it's a good thing, too (Oxford, 1994), pp. 102, 114. This essay has been widely reprinted.

I've never understood why anyone bothers to argue with Fish. Since he's announced in advance that he doesn't necessarily believe what he says, why should anyone listen to him?

Friday, June 28, 2002

Bob Jones, Adverse Possession, and Unintended Consequences - In my last post I criticized the notion that Constitutional rights could be lost through a version of adverse possession, i.e., that the rights disappear if they're trespassed upon long enough. Now friend and SuperBlogger Eugene Volokh has mentioned the Bob Jones University case (albeit in another context), giving me an opening to include one of my favorite examples of adverse possession at work.

Most of you will remember Bob Jones from the flap caused during the last South Carolina primary when candidate, now president, Bush spoke there, which led to news stories of anti-Catholic sentiments associated with the fundamentalist Christian college. But Bob Jones's constitutional notoriety began a generation earlier. It could have continued to joust against the windmills of modernity in welcome, well-deserved obscurity had it not gotten drawn into the civil rights maelstrom several decades ago. Its problem was not its anti-Catholicism. Nor was it, as many reports asserted, discrimination in admissions. The culprit was its policy against interracial dating, derived, it said, from its fundamentalist theology.

In response to the “segregation academies” that sprouted across the South after the Brown desegregation decision, the IRS launched a campaign to revoke the tax exemptions of discriminatory private schools. One obstacle was that many of these schools were so hostile to blacks that they didn't need clear, and hence provable, discriminatory policies. At Bob Jones, however (whose origins lay not in response to Brown but to the anti-fundamentalism stirred up by the Scopes trial in the 1920s), the clear policy against interracial dating seemed to present a tempting target. Revoking Bob Jones’s tax exemption, however, proved not to be so easy, and at some point in the future the way it was done conceivably could have some unintended but dramatic consequences.

Back in the 1970s the IRS ruled that BJU’s discriminatory dating policy was “against public policy,” and therefore the school could not be charitable and thus could not qualify for an exemption. The difficulty with this ruling lay in the fact that Section 501(c)(3) of the tax code provides exemptions for “religious, charitable, or educational” institutions, and BJU is and was both religious and educational. No problem, said the IRS, which deconstructed the tax code so that “or” was read as “and” — BJU’s exemption was revoked because it was deemed not charitable, even though it was clearly both religious and educational.

Some in Congress objected to the IRS twisting the tax code to reach a desired result. Others objected to giving the IRS unbridled discretion to decide which social and especially religious practices were “against public policy.” Since BJU’s opposition to interracial dating was derived from its theology, could the IRS use the powerful threat of revoking tax exemptions to force practices derived from the teachings of other churches, such as strictures against homosexuality, to conform to “public policy”? Still others worried that in the absence of provable discriminatory admissions policies the IRS would inevitably force schools to employ de facto quotas in order to prove they were not discriminating.

These concerns were mainly limited to conservatives, although Slate Magazine, following up on charges leveled by Bill Bradley in his primary debate with Al Gore at the Apollo Theater in Harlem, revealed that Gore voted with this group of IRS critics five times when he was in Congress. (In one of the more humorous episodes of the last campaign, Gore defended those votes as “anti-quota,” a curious response from a politician who vociferously defends every racial preference program and policy and who apparently has never seen another one that looks like a quota.) Few wanted to be seen as defenders of discrimination, however, and so Congress did not reverse the IRS’s revocation of Bob Jones’s exemption.

When the Supreme Court finally decided this matter in 1983, Congress’s acquiescence was held to justify the IRS ruling, with only Justice Rehnquist dissenting. Justice Powell, concurring, provided one of the finest examples on record of adverse possession at work. He indicated that the IRS's revocation of Bob Jones's tax exemption was in all likelihood unjustified when it occurred, but in the intervening years it took the matter to reach the Supreme Court (of which there were quite a few) the Congress could have reversed the IRS action if it chose to. Since it did not, the initial wrong had, over the years, become right. In other words, Powell's position was that Bob Jones’s objection to the revocation of its exemption may well have been correct originally but had somehow become incorrect before it reached the Court because “there has been a decade of acceptance.” Of course, viewing Congress’s inaction as rewriting the tax code by default ignored the fundamental fact that Congress is only one part of the law-making process. Each house must approve legislation, but that legislation is not law until signed by the president, and no president in the 1980s — Reagan and Bush I — would have signed such a law.

That, as we historians say, is history. But what is to prevent a future IRS and Supreme Court, both scrupulously following Bob Jones v. United States, from holding that awarding benefits or burdens on the basis of race so violates both our core values and current public policy (the standard the IRS employed against Bob Jones) that any “religious, charitable, or educational” institution employing racial preferences cannot be charitable and thus should have its tax exemption revoked?

One Nation Under ? - My eighth grade teacher, the formidable Miss Faulk, refused to require (or, as I recall, even allow) students to recite the Pledge of Allegiance in her classroom. She had no problem with "under God," but Miss Faulk was a fiercely unreconstructed Confederate, and she had a great deal of trouble with "one nation, indivisible."

The stone Confederate monument in the town square was inscribed "Lest We Forget" over the names of the honored Confederate dead, and Miss Faulk never forgot. Right was right; wrong was wrong; and wrong did not become right by virtue of the passage of time and shifting values. I was reminded of her -- actually of the two of them, Miss Faulk and the monument -- by one of the primary reasons given as to why the phrase "under God" in the Pledge should not be regarded as violating the Establishment Clause.

As is often the case with Constitutional issues-- and especially highly controversial issues -- we must take care to distinguish the right answer from the right reasons for the right answer. In that spirit, and with the revived memory of Miss Faulk and the monument in mind, I must say that I have been troubled by one of the widely offered arguments for rejecting the Ninth Circuit's decision barring recitation of the Pledge.

In "One Nation Under Blank," its editorial on the issue, the Washington Post quoted with approval a comment of Justice Brennan (from Lynch v. Donnelly, 465 U.S. 664 [1984]): "I would suggest that such practices as the designation of 'In God We Trust' as our national motto, or the references to God contained in the Pledge of Allegiance to the flag can best be understood . . . as a form a 'ceremonial deism' protected from Establishment Clause scrutiny chiefly because they have lost through rote repetition any significant religious content."

In "One Nation Under God," its similar editorial, the New York Times made exactly the same point (without attribution to Brennan). "After millions of repetitions over the years," opined the NYT, "the phrase ["under God"] has become part of the backdrop of American life, just like the words 'In God We Trust' on our coins and 'God bless America' uttered by presidents at the end of important speeches." Nevertheless, the NYT admitted that "We wish the words had not been added back in 1954."

That's a bit lame. It says, in effect, that the Congressional action adding "under God" to the Pledge might well have been unconstitutional when it was done in 1954, and perhaps for a year or two (or three? or four?) afterwards, but now that we're used to it it's O.K. Actually, it's worse than lame. We were also used to racial segregation, after all, as critics of Brown v. Board of Education (also 1954) have long pointed out. Have the WP and the NYT developed a new appreciation for those critics?

One of the few examples in the law of two wrongs making a right is trespass. If trespass is allowed to occur long enough, the trespasser can take adverse possession of the property he invades. Reasonable people can disagree over whether a "living Constitution" (as compared to what? A dead one?) provides the best protection of our rights, but everyone should reject the principle that trampling on Constitutional rights long enough gives adverse possession of them to the trespassers.

Miss Faulk would never do that, and neither should we. Lest we forget.

Thursday, June 27, 2002

Nomination Battle - One of the sad realities of our current situation is the increasingly vitriolic partisanship of judicial nominations. Nothing really new here. But what may be new, or at least something that everyone else knew but that I've only newly noticed, is how much the press exacerbates this problem, even (or perhaps especially) in what purport to be straight news stories.

A case in point is an article from Tuesday's Washington Post by staff writer Tom Jackman. Discussing the allegedly "growing opposition" to the nomination of federal district court judge Dennis Shedd to the Fourth Circuit Court of Appeals, this article on its face is simply another report of the usual suspect liberal public interest groups, liberal law professors, and the NAACP offering the usual laments to the appointment by a Republican president of a conservative judge. In fact, this ritual dance of opposition to President Bush's nominees has come to be so routine and predictable that one begins to wonder if it's really news, but I suppose it does need to be reported. (Well, there was one odd twist here in the fact department: Jackman wrote that before being appointed a federal district court judge "Shedd spent 10 years on Capitol Hill as a top aide to Sen. Strom Thurmond (R), who nominated Shedd to the appeals court last May." I'm sure a check of the record would reveal that, as provided by the Constitution, it was the president and not Senator Strom who nominated Judge Shedd. And people complain about bloggers not having editors!)

A closer look, however, reveals that, like so many similar articles, this one really isn't a neutral report. First, there's the point-of-view problem with the large bold headline stretching more than half-way across the top of the page: "Judicial Nomination Alarms Rights Groups," with the also prominent subhead: "Some Fear S.C. Jurist Could Further Sway Conservative Federal Appeals Panel". So, the news here, the focus of the story, is the "alarm" and "fear" on the left? Why exactly is that more newsworthy than, say, the hope on the right? Could it be that the opposition groups are more organized than the support groups (are there any support groups?), send out more faxes, have more press conferences? The squeaky wheel getting the news might make some sense ... if a newspaper didn't have living, breathing reporters. Right off the bat, then, this is not a story about a debate over a nomination, which would require a fair presentation of all points of view. For example, in that kind of story it would have been worth mentioning that the nominee was rated "well qualified" by the American Bar Association, given the importance that Sen. Pat Leahy has claimed to attribute to the ABA's views. But there's no reason to do that here since this is a story about the alarms and fears of the opposition to the nomination.

"Although Shedd's nomination is the longest-standing among appeals court nominees," Jackman writes, "its movement to the hearing stage after 13 months still irked some observers." The one irked observer who is quoted is, of course, Nan Aron, head of the Alliance for Justice, lead opponents here and with other nominations. Now we have alarmed, fearful, and irked. I'm sorry Ms. Aron finds this nomination irksome, or is feeling irk (yes, it is a noun; I looked), but since her feelings on these matters are so well documented in so many cases (see, for example, "Alliance for Justice Outraged Over Committee Action on Judge D. Brooks Smith", Press Release, May 23, 2002) I wonder if her being irked here is more newsworthy than, say, the feelings of those who are irked/alarmed/angry over Shedd's nomination being bottled up for 13 months. But since this is an article about alarm and fear and irk on the left, those voices aren't heard.

Sidebar: Opposing Shedd/Shedding Light on the Opposition

A quick look at the web sites of some of the irked, fearful, and alarmed Shedd opponents shed(d)s some interesting light on the nature of judicial nomination politics these days. The leader of the pack is clearly the Alliance for Justice. Its site has some of the expected rhetoric -- Shedd's record reveals "a bias in favor of corporations over individuals"; the Fourth Circuit "is known as the most right-wing court in the country," etc. And it offers a peculiar take on Shedd's experience: "Dennis Shedd has been a trial judge since 1990. This appears to make up the bulk of his legal experience." Can one imagine the Alliance for Justice implying that 12 years experience as a federal district judge, after service as Chief Counsel and Staff Director of the Senate Judiciary Committee, was somehow inadequate experience to qualify a liberal nominee for elevation to an appeals court? Most of the Alliance's discussion of Shedd, however, consists simply of references to some of his judicial decisions with which the Alliance disagrees, much as one would list the unappealing votes of a political candidate one opposes. But that's the point: no difference is recognized in the current climate between a judge and a political candidate.

The National Organization for Women (NOW) provided a list of horribles that extended all the way from one to two:

1. "In 1998, he ruled against the American Civil Liberties Union in its challenge to a local school board's enforcement of a student dress code that regulated skirt lengths and prohibited denim."

2. In the 2000 election an anti-abortion organization, the South Carolina Citizens for Life, worried about running afoul of the state's campaign finance law. "SCCL subsequently brought suit challenging the applicability and constitutionality of those campaign finance laws. Judge Shedd granted SCCL a temporary injunction effectively excusing them from complying with the laws while the state Supreme Court considered the case."

We obviously can't elevate someone like that to an appeals court.

The National Abortion Rights Action League (NARAL) also listed only two items on its site:

1. The exact same item as NOW's Number 2, word for word.

2. "Other than his tangentially related decision in the case above, Judge Shedd has no record in the reproductive rights arena. This absence of any proven record of commitment to a woman's right to choose, coupled with his ties to the current and former Bush administrations, is cause for concern."

In other words, his record is clear of anything bad. But he hasn't proven himself in favor of our agenda, and he has "ties" to the current and former Bush administrations. So, now "ties" to the nominating administration are grounds for opposition?

But the most dramatic list of reasons for opposing Judge Shedd were provided by the Planned Parenthood Foundation. Its site warns that "There is a significant threat that virtually all our federal courts could soon be controlled by far-right judges, which would seriously threaten the rights of all Americans," and it conveniently provides a link to a list of "questionable nominees." Clicking on Judge Shedd's name on that list leads to another page, where Planned Parenthood lays out its reasons for opposing him. And those reasons?

"Detailed information forthcoming"

Wednesday, June 26, 2002

Query Re The Pledge - Now that required recitation of The Pledge has been kicked out of school, it occurred to me that perhaps the Gettysburg Address might be satisfactory as a some-time stand in, especially since most students are already required to memorize it sooner or later. But that won't work. Poor Abe, no doubt because he had other things on his mind, did not anticipate the future course of church-state relations and thus slipped up near the end when he urged his audience to "highly resolve that these dead shall not have died in vain, that this nation under God shall have a new birth of freedom...."

Under the Ninth Circuit's ruling, and under its logic elsewhere, can students still be required to memorize and recite the Gettysburg Address? Could a judge insist that a framed copy of it, and/or The Pledge, be placed on the wall of his courtroom?

Tuesday, June 25, 2002

DoubleTake: Discrimination Against Men in College? - One of the virtues of a father-daughter blog is that from time to time you will receive the benefit of two perspectives on the same article or topic for the price of your single subscription to DISCRIMINATIONS. My daughter the libertarian will probably remind me that you're not paying anything for your subscription, but if she does I would caution her about saying that out loud because, as a believer in the wisdom and sanctity of markets, she no doubt believes that you get what you pay for. Anyway, here's our first DoubleTake.

John's Take - I was initially going to post my comments on today's Washington Post article about the gender gap in higher education as an update to my previous update about Title IX. That still works, so please consider this such an updated update. The WP noted that "the proportion of bachelor's degrees awarded to women reached a post-war high this year at an estimated 57 percent. The gender gap is even greater among Hispanics -- only 40 percent of that ethnic group's college graduates are male -- and African Americans, who are now seeing two women earn bachelor's degrees for every man."

These numbers obviously re-enforce my previous point that male "underrepresentation" among college students across the nation is much greater than the alleged "underrepresentation" of females in college athletics that has been much in the news lately as defenders of Title IX have loudly circled their wagons in defense of the old quota-promoting scheme of enforcing it.

Applying the approach of the Title Niners, i.e., that statistical disparities suggest discrimination and substantial disparities prove it, I have asked whether we should regard virtually all of American higher education as engaged in massive sex discrimination against men. (I myself don't think so, since I believe intent is a crucial element of discrimination, but that's for another Post post...and another...and....)

Defenders of racial preferences -- henceforth I'll call them preferentialists (I considered the acronym dorps but in a small gesture of civility rejected it) -- do not believe intent is required. The whole corpus of disparate impact law is based on the view that policies or practices that are neutral on their face and non-discriminatory in their intent can nevertheless be illegally discriminatory if they have a disparate impact on minorities. This is the sort of complaint, for example, that is frequently lodged against the SAT and other tests. Disparate impact law was legitimized by the Supremes back in 1971 when they held that Duke Power Company's policy of requiring all employees to have at least a high school diploma or pass an intelligence test violated the Civil Rights Act of 1964 (Griggs v. Duke Power Company, 401 U.S. 424).

Returning to the educational gender gap, this little disparate impact detour suggests some interesting possibilities for the future. With women increasingly "overrepresented" in the pool of college graduates, will employers who require a college degree be found to be engaging in disparate impact discrimination against men?

But wait; there's more. I said above that preferentialists, lovers of disparate impact theory that they are, do not believe intent is a necessary component of discrimination. That turns out to be true primarily when they are attacking employers and others whose facially neutral policies or practices, adopted with admittedly non-discriminatory intent, result in an "underrepresentation" of minority employee hires or admittees. But when the preferentialists' own overt racial preference policies are attacked, they defend them by saying they are not discriminatory because they are not motivated by animus against whites and do not stigmatize them. Go figure.

Now comes the ubiquitous ÜberBlogger, InstaPundit himself, whose shrewd observation on the gender gap suggests yet another wrinkle. He has an interesting theory about why 57% of college degrees are now going to women:

over the past 20 years there has been a concerted effort to make colleges male-unfriendly environments, with attacks on fraternities, with anti-male attitudes in many classes, with intrusive sexual-harassment rules that start with the assumption that men are evil predators, and so forth. Now men don't find college as congenial a place. It's a hostile environment, quite literally.

Men, it would appear, not only have a stronger discrimination claim against American higher education in general than women do against college athletic programs. Their position is beginning to sound more like Jews in the Ivy League before anti-semitism was discredited, or blacks after their formal exclusion was abandoned but before preferences and other encouragements made them feel (more) welcome on campus.

That's the trouble with our ever-expanding conception of discrimination. Everyone becomes a victim.

Jessie's Take - This article in the Washington Post today, on males being underrepresented in universities, gives me even more evidence for a theory that I've always thought was an explanation for a great deal of human action: the seesaw theory. You may not think this is relevant, but I promise, it is. Whether this theory is widely recognized or not, no one ever seems to take note of it in their actions, so I think it's worth mentioning.

The Post article indicates that colleges may be starting on an oscillating path similar to the one I described above. The sentiment of the article seems to indicate that at least some people are in favor of preferences for men, to “even the playing field,” as proponents of such a plan might say. However, in trying to enroll exactly equal numbers of men and women (or create proportional representation of each race/hair-color/religion/birthplace/etc.), what they are really doing is moving the system away from its stable equilibrium position. (Yes, my physics background does tend to show itself in these sort of examples.)

A stable equilibrium is a situation that requires less energy than its surrounding states (e.g. a ball at the bottom of a hill – if you change the system a little, the ball will go rolling back down to the equilibrium). If everyone is judged only by their value to a certain endeavor, the system forms a stable equilibrium; everyone is in a position that is optimal for them. On the other hand, when affirmative action enters the picture, the situation forms an unstable equilibrium: a situation that is stable if left completely alone, but that will collapse if anything changes (e.g. a ball balanced at the top of a perfectly shaped hill – any disturbance and it will roll down the side).

Affirmative action is unstable because the laws can never completely balance themselves out. If everything worked the way preferentialists wanted it, the conflicting pressures would create a ball balanced precariously at the top of the hill. There would be perfect “equality,” if the equality one cares about consists of equal representation; everyone being judged by everything besides merit. (I personally believe that merit is the only quality that matters – merit for a specific task. But, that’s a story for another post.)

However, this so-called “equality,” equality of outcome, can never be truly reached in real life, just as you can never balance a pencil perfectly on its tip. Thus, we see this oscillating motion: “too many boys? we need more girls!” and then, “too many girls? we need more boys!” This mommy-preferentialist model keeps requiring more and more legal energy (and more victimizing laws) to try to balance the pencil perfectly on its end.

In addition to being unachievable, however, this goal is also undesirable. Besides the numerous disadvantages of its implementation (another time! I promise!), the impossible final product, were it to be achieved, would be much less favorable than the state reached naturally. All the legal energy necessary to reach the equal-outcome utopia would come out of the productivity of its workers. Legal energy must be used to pull lesser-qualified workers up to replace the natural-state workers.

Thus, the final result of this preferentialist plan is to waste enormous amounts of energy in an impossible legal balancing act intended to replace qualified workers with not-as-qualified workers. It would all be so much easier and better if these preferentialists recognized that with one easy principle: judge based on qualities relevant to your purpose, we could achieve much higher productivity with much less work.

Update to Title IX Discussion - Please see the update below to my discussion of gender gaps and Title IX.

Monday, June 24, 2002

Disparate Impact Drug Testing? - The Boston Globe has a troubling article about the results of drug testing in the Boston police department (via Andrew Sullivan). In the three years since all Boston police officers have been subject to random drug testing using a sophisticated new test done on hair samples, according to the BG, "nearly twice as many minority officers have tested positive for drugs as their white counterparts, prompting advocates for the officers to question whether the test is racially biased." (DispHAIRate Impact?)

In recently released results 45 officers, 2% of the force, tested positive. Of those 45, the BG reported, there were 16 whites, 3 Hispanics, 26 blacks, and no Asians. (There are 552 black officers, 95% of whom were thus drug free.)

There is controversy over the validity of the test. Some studies have indicated that black hair is more likely to retain traces of drugs longer than blond hair, for example. Other studies purport to demonstrate that this hair sample test is much more advanced and immune to false positives than the urine test still in widespread use. The Miami police have used the test and found no disparate results between dark- and blond-haired officers. Some Chicago officers who were fired as a result of a similar test challenged the test in court, and lost.

I have no opinion about the validity of the test. What I find disappointing is that whenever any tests indicate troubling racial disparities official civil rights advocates immediately denounce the test. It's apparently easier to discredit the messenger than to worry that the message may be bad news that should be dealt with. True to form, Leonard Alkins, head of the Boston NAACP, said the disparate drug test result raises a red flag ... about the test. "It just does not make sense that black people have more of a drug problem than white people."

There is a pattern here. Wherever civil rights advocates see evidence of disparities -- whether in drug use, SAT scores, or the numbers of women interested in becoming plumbers or playing college sports -- they assume equality and thus either condemn the method of measurement or explain the disparity as the result of discrimination -- but for the channeling conducted by guidance counselors more boys would become cosmetologists and more girls truck drivers, etc. There is no approving talk of "difference" when the rewards of any difference are negative.

I fervently wish it were true. I wish all the racial and gender disparities in our society could be traced to bad tests or ongoing discrimination -- they would be far easier to eradicate than the alternatives. But wishing doesn't make it so.

Diversity in Damascus - Damascus, Maryland, that is. Today's Washington Post has an interesting article about "diversity," i.e., blacks, coming to this formerly nearly all white, isolated rural community at the northern edge of generally suburban Montgomery County, Maryland.

Montgomery County, some of you might recall, was half of the focus of David Brooks's fascinating Atlantic Monthly article last December contrasting the lifestyles and outlooks of Red and Blue America. "Montgomery County," Brooks wrote,

is one of the steaming-hot centers of the great espresso machine that is Blue America. It is just over the border from northwestern Washington, D.C., and it is full of upper-middle-class towns inhabited by lawyers, doctors, stockbrokers, and establishment journalists like me—towns like Chevy Chase, Potomac, and Bethesda (where I live). Its central artery is a burgeoning high-tech corridor with a multitude of sparkling new office parks housing technology companies such as United Information Systems and Sybase, and pioneering biotech firms such as Celera Genomics and Human Genome Sciences. When I drive to Franklin County, I take Route 270. After about forty-five minutes I pass a Cracker Barrel—Red America condensed into chain-restaurant form. I've crossed the Meatloaf Line; from here on there will be a lot fewer sun-dried-tomato concoctions on restaurant menus and a lot more meatloaf platters.

Damascus, the subject of today's WP story, though technically inside Montgomery County, is definitely a part of Red America. What I found most interesting about the article was not its subject -- racial conflict invades the countryside -- or even its implicit putdown of racist rednecks (REDnecks? Many Blues seem to think all Reds are rednecks), which to its credit was less explicit than is frequently the case in similar WP stories. What I found most interesting were several very revealing quotes from the locals (one of which has already been noted, here, by the ubiquitous and all-seeing InstaPundit).

One comment I found especially noteworthy because it was familiar but still pregnant with unintended and widely unrecognized implications.

"This is a community that was predominantly white for so long," said Phyllis Bryant, the NAACP parent representative for Damascus High. "And they're having to deal with diversity at a fast, fast rate."

To Bryant, the biggest problem is not blatant racism but that many people simply don't know how to deal with minorities. "I don't take everything people say to me as racist," she said. "Some of it is they're just ignorant of me and my culture."

Although Ms. Bryant is obviously well-intentioned, I believe her emphasis on difference -- which, after all, is what "diversity" is based on -- is a large part of the problem in Damascus and elsewhere. She is no doubt right that people don't know her. I certainly don't know her. But I would nevertheless be willing to bet that if her fellow Damascans did get to know her, and her "culture," they would find someone who in fact was in all essentials just like themselves. This constant accentuating of "diversity," which emphasizes difference, only exacerbates racial tensions. It is much more the problem than the solution.

In that regard, listen to the president of the student body at Damascus High:

"When people think of Damascus, they think of cows, football and racism," Damascus student body president Kim McGuire, who describes herself as half Hispanic, said matter-of-factly over a chocolate and vanilla swirl at the town's summer teen hangout, Jimmie Cone. "This is a really caring community where a small group has problems."

Still, McGuire acknowledged that many students in the school, where 84 percent are white, are unaccustomed to minorities. "When we put on a Black History Month program, the basic reaction I heard was, 'What about white history month?' "

What we need is not "Black History Month" or "White History Month" but American History Month.

Irrelevant Afterthought: If Ms. McGuire moved to New Mexico, which is 42% Hispanic, would she still regard herself as half Hispanic? Bill Richardson, Clinton's former Energy Secretary and UN Ambassador who is the heavy favorite to be elected governor next November, is the son of an American father and a Mexican mother but describes himself as Hispanic, without the half. Or maybe he would become only half Hispanic if he were running in Maryland....

Sunday, June 23, 2002

Death and Dumb: The usually astute James Q. Wilson has written what is, even by his high standards, an unusually astute analysis of the issues involved in the recent Supreme Court case banning the execution of the mentally retarded. (Wilson's article was written a year ago and has just been republished because it was both prescient and perceptive.) Stop reading this and go read that, even if you don't come back.

Now, for those of you who obviously don't take good advice (or the stray who has gone to read Wilson and returned), here is a small irony to ponder: do the folks who habitually oppose standardized tests as culturally biased, invalid, etc., think IQ tests have enough validity to save a convicted murderer from the chair or lethal injection?

As Wilson makes abundantly clear, a key issue in determining retardation is IQ, and the most common method of determining it is through standardized tests. (Some states also empower court-appointed experts to make the determination, but they often rely heavily on standardized tests.)

Standardized tests do not have a good reputation in the liberal community these days, but I must have missed the outcry against the increased reliance that will now be put on them. I also wonder whether dumb white murderers who are deemed un-retarded enough to die will, relying on the extensive liberal anti-testing and anti-Bell Curve literature, argue that they are victims of discriminatory tests that by design or effect are more likely to find low IQ among blacks.

InstaPundit links to a George Will column that laments the liberals' abandonment of the free speech principle over the past generation, adding his own lament that Wills's column "didn't mention the problems at SFSU, UCSD, Orange Coast Community College, etc." Both laments are right on target. In the old days, i.e., when I was coming of political age, if one heard of a campus controversy involving free speech one ("we"? I?) would have assumed right off the bat that the anti-free speech crowd was on the right, the censored on the left, with the liberals and possibly a conservative or two defending the victims' First Amendment rights. That assumption is no longer valid, as the debates over campus speech codes clearly demonstrated.

Every bit as dramatic as the liberals' reversal of position on First Amendment rights, however, has been the alacrity with which they've dropped their longstanding (from the 1830s to the 1960s) dedication to the principle of non-discrimination. Civil rights was long understood to require the elimination of racially based benefits and burdens. Now it is thought to require their preservation.

Hmmmm. The left has ditched core First and Fourteenth Amendment values. What's left?

More on Title IX:

We hereby interrupt our cleaning the closet of old news to comment on something current. Or rather, a current comment on some of our collected, closeted stuff. In Saturday's Washington Post feminist scribe Ellen Goodman, reprising the same National Women's Law Center report discussed below, is at pains to deny that Title IX has anything to do with quotas. Only chauvinist critics could think such a thing. "No one has yet labeled the Mia Hamms of the world 'quota queens,'" she writes, "but you get the idea."

Indeed I do. In fact, if Ms. Goodman is correct, let me be the first: I don't know what "the Mia Hamms of the world" believe, but it is perfectly clear that outspoken Title IX fans are indeed quota queens (or kings, as the case may be). Of course, Ms. Goodman is not correct. Critics of Title IX have been shouting quotas for years. (For a summary of the argument, with evidence, see Jessica Gavora's new book, Tilting the Playing Field: Schools, Sports, Sex and Title IX, being published this month by Encounter Books in San Francisco.)

In fact, one of the things that makes the Title IX controversies so interesting is that they so clearly reveal the assumption -- it has become virtual orthodoxy on the left -- that disparities = discrimination, that fairness requires perfectly proportional representation. Thus, in publicizing its recent letter to thirty university presidents criticizing their unfair treatment of women athletes, the National Women's Law Center asserted in a June 18 press release that "The athletic scholarship gap represents the difference between the percentage of female athletes and the percentage of scholarship dollars they receive."

As the NWLC pointed out, the law -- actually, the regulation adopted by the Dept. of Education during the Clinton administration -- "requires the percentages of total athletic scholarship dollars awarded to male and female athletes to be within one percent, or one scholarship (whichever is greater), of their total athletic participation rates, absent any legitimate, nondiscriminatory reasons." And reasons that would impress NWLC as legitimate and nondiscriminatory have proved quite rare. It is hard to fault the conclusion about the requirement of strict proportionality reached in "Title IX at 30," a June 21 analysis by the Chronicle of Higher Education: "If a college had the same proportion of women among its athletes as it did among its students, then it would be presumed to be in compliance with Title IX. This made substantial proportionality a 'safe harbor' for athletics directors who didn't want to be sued."

Jessica Gavora gives a revealing example of how the Dept. of Education's Office of Civil Rights has applied its policy, and presumably how groups such as NWLC would like to continue having it applied:

In the fall of 2000, having labored for a decade to attract women to its programs, the university [of Wisconsin] had achieved near-perfect parity in the spring of that year: 429 athletes on the campus were men and 425 were women. Not good enough, wrote Algis Tamosiunas, of the OCR's Chicago office, in a letter to university officials. Because women constituted a majority of students on the Madison campus, or 53.1 percent, the university would have to add another 25 women.

Such letters have been routinely sent from the OCR to universities struggling to stay on the right side of the federal authorities. OCR officials such as Norma Cantu were being dishonest when they insisted that because the regulations didn't "require" sex quotas, those who administered the regulations didn't work relentlessly to make quotas happen.

Most of the recent controversy concerning Title IX has concerned whether it is responsible for the rash of men's teams being eliminated across the country by colleges in their attempt to reach the goal of "gender equity." Much more significant, and interesting, in my opinion, is what this controversy reveals about the rampant confusion over the core meanings of fairness, equality, and discrimination.

If it violated federal anti-discrimination policy for the University of Wisconsin to have 429 male athletes compared to only 425 women when 53.1% of the students were women, why is the "underrepresentation" of men, the male student gap, at Wisconsin and elsewhere not an even more egregious violation?

Indeed, many universities, including Division I athletic powerhouses, have a larger male student gap than athletic scholarship gap. According to data compiled by the Chronicle of Higher Education, "women account for 41.8 percent of Division I athletes, and receive 43.7 percent of scholarship funds," and in 2000-2001 they made up 53% of the students at the 321 Division I colleges.

According to the Christian Science Monitor, a number of public universities have attempted to to combat this male student "underrepresentation" by providing admissions preferences to men. ("Admissions Officers Walk a Fine Line in Gender-Balancing Act," 22 May 2001.) Should admissions offices be forced to adhere to the same strict "substantial proportionality" standard as athletic departments? If they were, would the ensuing gender-conscious admissions constitute sex discrimination?

UPDATE - The Chronicle of Higher Education, in its issue dated June 28, reports on the gender gap (link requires registration) in community and four year colleges. Enrollment in community colleges nationwide is 42% male and 58% female. Graduation rates are skewed even more: 39% male v. 61% female. According to the Chronicle, "151 women receive an associate degree for every 100 men.... Four-year colleges and universities tend to be split roughly 55-45 in favor of women. One hundred and thirty-three women receive a bachelor's degree for every 100 men."

These gender gaps are much more substantial than what the National Womens Law Center has even alleged regarding female underrepresentation in college athletics. Should there be a National Mens Law Center claiming sexism and discrimination in all of American higher education? Wouldn't it make more sense to return to an understanding of discrimination that requires at least a modicum of intent and thus to abandon the assumption that disparities = discrimination? (Answer: yes.)

Saturday, June 22, 2002

Still playing catch-up (see first post today), here's another one:

Unpublished (indeed, unsent) Letter to the Washington Post about its Bias - Especially compared to the new Raines reign at the NYT, the WP is generally free of appearing to advance a left-liberal agenda in its news stories. (For a nice comparison that reflects well on the WP, see kausfiles for 6 June.) Still, far too many of the Post's stories dealing with discrimination are marred by presumably unconscious assumptions that undermine and distort its reporting.

A nice case in point is "Sex Bias Cited in Vocational Ed," which ran on June 6. (Section A, Page 8; it is now buried in the Post's Archives.) First, no bias was cited. What was cited is "sex segregation," reflected in the preponderance of girls in such classes as cosmetology and of boys in plumbing, automotive, etc. Your reporter, along with the National Women's Law Center whose analysis he/she regurgitates, simply assumes that where there is sex segregation there must be bias. Just look at the lede: "Pervasive sex segregation persists in high school vocational programs around the country . . . 30 years after Congress passed a law barring such discrimination in education, according to a study released today."

"SUCH DISCRIMINATION"??? Exactly what discrimination is that? Congress outlawed cosmetology classes with a preponderance of girls? Now it's clear that the National Women's Law Center believes that "underrepresentation" can only be explained by discrimination, but should the Post reflect this, well, bias in a news story?

This same bias has come out lately in various stories about Title IX and college sports, with womens' groups finding discrimination wherever women are not proportionally represented on athletic teams despite evidence that proportionally more men are engaged in sports. True to form, the Post reflects this same bias in the last sentence of its "Sex Bias" story:

After noting that the number of high school girls playing competive sports has increased dramatically since Title IX's passage, your writer concludes, "Still, women in Division I colleges represent more than half of the student body [sic], yet they receive only 41 percent of athletic scholarship dollars, 30 percent of recruiting dollars and 33 percent of overall athletic budgets, according to the law center." [Emphasis added] In other words, the absence of perfect parity proves the presence of continuing discrimination.

The National Women's Law Center and your "reporter" seem to think this says it all. And indeed it does: what you mean by "discrimination" is any statistical disparity.

Old Stuff - Well, before getting to the old stuff, let me mention one new thing: Welcome! I've been a wallflower at the Blog Dance long enough and, with prompting from my daughter and co-blogger Jessie (actualy, "prompting" is a bit mild for the get-a-blog abuse she has subjected me to), I have finally decided to venture out onto the floor. Now we'll see if anyone wants to dance with me.

With apologies for looking backward (but I AM a historian, after all), I will begin with one or two recent (well, pretty recent) items that caught my attention. Here's the first one.

Blind Grading - Recently both Eugene Volokh (29 May at 8:15PM and again on 31 May at 7:45AM) and Glenn Reynolds (9 June at 8:06AM) mentioned that their law schools practice blind grading, i.e., the professors do not know whose exams they are grading.

I suspect most law schools follow the same policy, which I find odd given how much sympathy there is among the law professoriat for taking notice of race at every opportunity. Blind grading thus seems like something of an anomaly, a little island of (color+)-blindness surrounded by a virtual sea of color-consciousness. There are racial preferences for admission to selective and some not-so-selective colleges; there are racial preferencs for admission to law school; and after graduation there are racial preferences in hiring in many firms and organizations. Given all that, why NOT have race-conscious grading as well? I'm having a hard time imagining what the argument against it -- especially a principled argument -- would be from people who support racial consciousness everywhere else and, indeed, are sometimes heard to argue that it is racist NOT to take race into account.

On the other hand, these are the same people who, curiously, vehemently oppose racial profiling....

Wednesday, June 19, 2002

THEORY AS PHILOSOPHY: Quare had some very interesting points about philosophy and science several days ago. Being somewhat knowledgeable about the scientific side of such matters, I thought I’d add my two cents worth.

I will use physics as an example, it being the field I know the most about. Thinkers about physics can be classified into three types: philosophers, experimentalists, and theorists. Philosophers come first in the development of a new field, thinking about the possibilities of the field, how that field should be organized. Aristotle, for instance, stated that objects would fall with a speed proportional to their weight, because that was the way he thought objects should fall. Aristotle had no experimental data, but he thought that his theory seemed probable and aesthetically pleasing, making it a good candidate for a possible theory. However, along came Galileo, the experimentalist, who executed experiments to find that, instead, all objects fell at the same rate, regardless of their mass. This is where Quare left off, with the experimentalists having discovered the truth about events.

The next step in scientific development, though, is all-important: the theorists enter the picture, to integrate experimental results and philosophic thoughts into a consistent theory. They take facts about the universe and arrange them according to an ideal of mathematical beauty: common sense, simplicity, and their ideas of the way the world should work… the same ideals as the philosophers. In the study of gravity, the theorist was Newton, who created a theoretical model of gravity that explained Galileo's observations in an elegant, simple, and intuitive manner.

That is the way science usually progresses: the experimentalists find results that do not fit with the current theory, and the theorists amend the theory. Within this scheme, the philosophers are the first theorists, giving the experimentalists something to work with, an idea to prove or disprove. When the experimentalists come up with some data, the theorists go on to create more informed theories based on the data, which are then tested, and so on. But, the philosophers come first and give the other scientists some idea of what they should expect.

There are some exceptions to this linear progression of philosopher, experimentalist, theorist. In the normal course of events, the experimentalists are ahead of the theorists, discovering data inconsistent with the current theory. Sometimes, however, the theorists come first, with a picture of how the theory should look, to make the equations prettier, with no experimental evidence directly backing them up. The effort to create a more aesthetic theory has been a driving force for many improvements in physics, and I assume in other sciences.

In this capacity, the theorists act as philosophers. There are no experimental results directly indicating that their theory is better than the current one. However, since their theory is so much simpler and more elegant than the one previous, they believe theirs must be more correct. The experimentalists test the new theory, and in many cases it is found to be a better fit to the data. These new theories often predict entirely new realms of science, some never predicted by the authors. Thus, we have the second, more astounding type of scientific progress: that of the philosophers.