Monday, July 22, 2002

The Neas Have It - Judicial Activism: Noun phrase. A judicial opinion with which you, and by implication all right-thinking people, disagree.

Ralph Neas, president of People for the American Way, is (surprise!) opposing the nomination of Priscilla Owen to the Fifth Circuit Court of Appeals. According to Neas, "When she doesn't agree with a law passed by the Legislature, she tries to amend that law by her judicial opinions."

I am now taking bets from anyone who believes Neas believes what he said, i.e., that he will consistently apply this anti-activism principle to the next liberal judge who flexibly interprets a staute to reach a conclusion he approves.

Incidentally, the SFGATE article quoting Neas (linked above) identifes People for the American Way as a "liberal-leaning advocacy group." If PFAW is only liberal-leaning, I wonder who SFGATE regards as a full-fledged liberal group.

Death to Disparate Impact - Recently Garrett Moritz and I lobbed some friendly blog comments at each other over disparate impact. Look here. Moritz's point, or one of his points, was that I was "tilting at windmills" because disparate impact was already a corpse, executed and interred by conservative courts.

It still lives in a few legal nooks and crannies, however, one of which is federal housing law. For a good discussion of this issue see Roger Clegg's excellent article on NRO about an unheralded case the Supremes agreed to hear at the very end of the last term. I agree wholeheartedly with Howard Bashman that Roger Clegg's essays are worth your time.

Sunday, July 21, 2002

The Buck Returns Here - Thanks to Stuart Buck for linking us on his newly revived site. It deserves the praise InstaPundit has recently given it.

Friday, July 19, 2002

From the Hinterland... - You read the strangest things when you're on the road. Take Julianne Malveaux (No, you take Julianne Malveaux) in USA Today. What can I say? It was free, which is only a little more than she's worth.

Some columnists disguise their distaste for America, but not Ms. Malveaux. The last thing I remember from her is her refusal to celebrate July 4. Today, she blames "the corporate hall of shame" on two things: corporations "take the capitalist message of profit maximization too seriously," and "government takes its role of containing capitalism too lightly."

Now that I think about it, Ms. Malveaux does disguise her distaste a bit, since in her heart of hearts she doesn't want government to wage a cold war to "contain" capitalism. She wants a hot war to roll it back.

Tag Creates Inequality - My father's previous post reminded me of an ancient (June 20th) Fox News article that didn't seem to get much attention on the Blogosphere: a Santa Monica elementary school banned the game of tag because, as Franklin Elementary School Principal Pat Samarge says, "Little kids were coming in and saying 'I don't like it.' [The] children weren't feeling good about it."

Really. Well, if the kids don't like it, they don't have to play it. But that's no reason to ban the game for the kids who do like it. Some kids realize that you can lose a game and still be a good person. Some kids realize that, especially in a game of tag, if you lose you can try again, and do better the next time. Some adults even think that these are good lessons to learn.

Another gem from the same principal: "We had some children who were not playing 'it' appropriately. How do you differentiate between those that are playing correctly and those that aren't?" Anyone have any idea what that means? As far as I know, tag is a very fluid game; there is no "correct" way. I'm also sure that kids would not appreciate adults coming in and telling them who's playing right and who is wrong. If someone is not playing correctly, you go and play with someone else. Kids have grasped this long ago. Why can't some adults seem to?

If schools ban tag because it hurts self-esteem, what will they ban next? Soccer? School dances? Tests? If children don't learn when they're young that everyone is not equal in everything, when will they learn it? If showing that everyone is equal requires banning everything, you'd think egalitarians would check their premises. Children do not need to be protected from inequality, because if they are protected from inequality, they are protected from everything. A child's self-esteem is sturdier than that.

Update - Here's a really old article from NRO about banning dodgeball.

Thursday, July 18, 2002

Vanished Bloggers, Vanishing Valedictorians - Sorry about the silence of the last few days (hope someone noticed). Jessie graced us with her presence last weekend (leaving the cobalt nanoparticles at NIST to fend for themselves). Taking her back to her summer internship we had a delightful dinner with visiting senior Volokh Conspirator Eugene Volokh and a bakers' dozen or so of his friends in D.C on Monday, and then my wife and I headed south to help celebrate the 100th birthday of one of my uncles in Pensacola, Fla.

But I've been collecting stuff along the way. For one thing, I found more Vanishing Valedictorians, the subject of a very good article by Joanne Jacobs on TechCentralStation that some of you may have seen.

Stopping off with friends in Greensboro, N.C., I happened to notice that the local paper that day had an impassioned OpEd on "Education and the Injustice of Equality," whose arguments with reference to Guilford County, N.C., echoed many of Joanne Jacobs points. (As of this writing the article is not on the Greensboro News-Record web site,, but other, older articles are listed and so this one may be there shortly. It appeared on July 16.)

Shortly after Guilford County school officials decided to do away with valedictorians and salutatorians, the state Board of Education decided to ignore the dismal fourth and seventh grade writing scores from that county. The OpEd's drift can be seen in the following excerpt:

Although these are distinct events, they are linked by a philosophical thread that has strangled public education for decades.... The common thread can be called "egalitarian".... This theory maintains that no student is more intelligent than any other; that competence and merit are evenly distributed. Expand the theory to encompass teachers and schools, and you get jettisoned test scores. Of course, this is sheer nonsense that has nothing to do with reality.

This must be a hot topic in Greensboro and Guilford County, for in looking for an online version of the OpEd to link (not there yet, as mentioned) I discovered that four days earlier, on July 12, the News-Record had published another OpEd making the same argument.

Everybody is supposed to feel equal and, most especially, feel good about themselves. Don't get too competitive, according to this notion, because somebody's self-esteem will be incurably damaged for life. And what better way to avoid that horrifying prospect than not to recognize academic achievement with valedictorians and salutatorians.

I heard enough about self-esteem and sensitivity during Jessie's trek through elementary and middle school that now they sound to me more like diseases to be avoided than qualities to be cultivated. It's enough to make curmudgeons even out of people far more reasonable than I.

Sunday, July 14, 2002

Elian in Reverse - I agree with Dean Esmay that anyone who missed it should hasten over to WSJ's OpinionJournal, sit down with a drink of something stronger than coffee or water, and read William McGurn's stomach-turning article, "'I Am An American': The State Department sends in the Marines to consign a U.S. citizen to Saudi hell."

It's the deportation of Elian, in reverse. Back then I wrote an article, "Hillary Flip-Flops on Kids Rights" (Wall Street Journal, 4/27/2000, p. A26; link/search requires registration/fee), noting that Hillary Clinton had abandoned the position at the foundation of her legal career, a series of articles arguing that childen can have legally recognized rights at odds with their parents, and the competency to assert them in court.

There were those (I was one) who regarded the deportation of Elian as akin to a slave mother drowning as she swam to freedom with her child only to have the child ripped from his relatives in the North and returned to his loyal Uncle Tom father who, when offered freedom with his son, chose to remain on the plantation. Anyone who felt that way then who does not protest to the State Department now is guilty of Hillary-class hypocrisy.

Saturday, July 13, 2002

Socialists at Heart? - According to an article in the Washington Post, Fluor Daniels, a large construction firm, told Virginia transportation officials that it could widen a particularly congested section of the beltway to 12 lanes using toll revenue from the new lanes instead of state money.

This sounds like the proverbial win-win situation: the state spends no money; rich people (or non-rich people in a big hurry) can buy their way into fast lanes; and everybody else experiences less congestion because the rich and fast are no longer clogging their lanes. In fact, this proposal could even be seen by uncomfortable Democrats as a tax on the rich, who would happily pay it for the additional benefit it provided, and it would have the added benefit of reducing traffic for everyone.

But not everyone thinks this way.

A year ago, Gov. Parris N. Glendening (D) stopped a state study of similar proposals for the Beltway in Maryland, saying it would be unfair to low-income residents to allow affluent drivers to buy their way out of traffic.

If this is unfair, what must the good governor think of, say, first class travel? The Concorde? Expensive houses, good wine, luxury cars, fine clothes, etc., being limited to rich people? In fact, why not just get rid of rich people altogether?

But wait, hasn't that been tried...?

History Lesson II: Sean Wilentz, the Historian as Hanging Judge - In History Lesson I below I offered some comments about Princeton historian Sean Wilentz's "sclerotic attack" (it's fun to quote yourself!) on Justice Scalia on the New York Times OpEd page, along with links to longer and better criticisms by Peter Berkowitz and Juan Non-(Volokh). My more recent posts on academic history v. "law office history," and especially Prof. Jack Rakove's discussion of his impeachment testimony, with all of its self-congratulatory talk of historians as nuanced, comfortable with complexity, humble before data, etc., reminded me of Prof. Wilentz's own somewhat notorious impeachment testimony before Congress, which I have just reviewed.

Complexity, ambiguity, nuance, and especially humility were in short supply. Here are a few excerpts (sorry, no links; quotes from transcript of hearing in House on December 8, 1998, which can be found online or in Nexis):

I strongly believe that the weight of the evidence runs counter to impeachment. What each of you on the committee and your fellow members of the House must decide, each for him or herself, is whether the actual facts alleged against the president, the actual facts and not the sonorous formal charges, truly rise to the level of impeachable offenses.

If you believe they do rise to that level, you will vote for impeachment and take your risks at going down in history with the zealots and the fanatics.

If you understand that the charges do not rise to the level of impeachment, or if you are at all unsure, and yet you vote in favor of impeachment anyway for some other reason, history will track you down and condemn you for your cravenness.

Rep. William Jenkins (R, Tenn) observed that Wilentz had offered only opinions, that he "did not refute one fact about the allegations of perjury that are before us, about the allegations of obstruction of justice that are before us, or about the allegation of the abuse of power," and he added: "we need to remember . . . that what we're dealing in and what you came armed with is a bunch of opinions. And like they say back in Tennessee, everybody's got those."

Wilentz replied: "There's a difference between opinion and scholarship. Anybody can have an opinion. What I reported here has to do with scholarship."

This was too much for even the New York Times, which commented editorially on the "gratuitously patronizing presentation by Sean Wilentz, a Princeton historian." (NYT editorial, 12/9/1998)

Just the sort of nuanced, complexity-appreciating, humility-exuding historian to turn to for a critique of Justice Scalia in the New York Times, right?

More on "Law Office History" v. Academic History - At first I was going to post this below, as a Post-PostScript to my Bellesiles entry, but if it's worth entering it's worth entering on its own. So: For another historian patting his profession on the back for its devotion to "admitting ambiguity or uncertainty in our findings" and "the sense of nuance historians bring to their work -- in marked contrast to lawyers and even "legal scholars" who are "are used to adversarial argument, and cavalierly happy to deploy whatever materials serve the cause they favor without the historian's due regard for the limits and ambiguities of the evidence" -- see "Dr. Clio Goes to Washington," by Prof. Jack Rakove in the same issue of Common-Place that contains Prof. Bellesiles' article discussed immediately below.

In this article Prof. Rakove recounts and offers reflections upon his Congressional testimony and other public activity opposing President Clinton's impeachment. In defending his political and even admittedly partisan engagement he is at pains to argue that nothing in his testimony, etc., was at odds with his prior scholarly writings. This is no doubt true, especially inasmuch as the preface to his Pulitzer Prize-winning study of Original Meanings: Politics and Ideas in the Making of the Constitution (Vintage paperback, 1997) contains the following refreshing admission. After noting "two powerful criticisms" of originalism, that it is undemocratic because it subordinates the present to the past and that it is all but impossible to reconstruct intentions and understanding from the evidence left to us, he adds: "On the other hand, I happen to like originalist arguments when the weight of the evidence seems to support the constitutional outcomes I favor." (p. xv)

Finally, it may be worth noting that Prof. Rakove candidly admits here that "Hillary Rodham Clinton (coincidentally the mother of one of my better-known students...) was close to the mark in her famous remark blaming a 'vast right-wing conspiracy' for the impeachment," and he concludes the article by in effect blaming that conspiracy for the 9/11 attack:

While politics dictated that the national government be paralyzed for a year with partisan foolishness, our enemies elsewhere were making other plans for us -- plans that we perhaps could have been better prepared to confront. But of course Monica was more important.

Perhaps recalling the episode when Ms. Lewinsky, according to her testimony, was performing oral (non-)sex on the president while he spoke on the phone with Rep. Sonny Callahan (R, Ala.) about additional troop deployments, I suppose a member of that conspiracy could reply, "More important to whom?"

Friday, July 12, 2002

Bellesiles Fires More Blanks - Embattled anti-gun scholar Michael Bellesiles has written a long, rambling, unintentionally ironic essay, "Constitutional Meanings," about what history and historians have to say about the meaning of the Second Amendment. Not much, it would appear.

In the first two thirds or so of the essay Bellesiles contrasts objective, disinterested academic scholarship with tendentious "law office history," history that avoids context and that is written "in the style of a legal brief, in which only supportive evidence is considered and all complications eschewed." According to Bellesiles, "[h]istorians doubt any case for which all the evidence falls consistently on one side and work on the assumption that the past is pitted with ambiguities and paradoxes."

This part of the essay asserts that good history has little to say to the present because the past was a different world with different concerns from our own, that it is dead and gone, and that the historian's job is to explicate its context and unravel its complexity. The search for any "original intent," he argues, is a fool's errand, and only "the most ideologically inclined reader" could continue to pursue it.

In the concluding third of the essay, however, Bellesiles has no hesitation about passing judgement on the past -- "Clearly, aspects of the Constitution have outlasted their usefulness -- the electoral college springs to mind" -- or hearing clear messages -- even messages about original intent -- that the past sends to us. Thus, he asserts that

The continuing efforts of states to control access to and use of guns once the Second Amendment was part of the Constitution seemingly indicates a lack of concern for an individual "right" to own a gun. The absence of notable opposition to such state action, even when it extended to disarming a portion of the population, reveals popular attitudes that failed to see gun ownership as a protected individual right.... In brief, those responsible for its ratification never saw the Second Amendment as a hindrance to either government regulation of firearms or to efforts by the federal government to arm specific groups of citizens.

There is no discussion here of those "continuing efforts" or "state action."

Just as the past seems to be pretty clear after all, there similarly is precious little ambiguity or complexity in Bellesiles' present. Thus, when the Senate voted 99-1 to condemn new U.S. history standards several years ago,

they were in keeping with a tradition of anti-intellectualism that Richard Hofstadter has traced back to the 1790s. It is of course ironic that a country founded by a generation obsessed with ideas should prove so uncongenial to them; but, as Tocqueville indicated, that is the nature of American conceptions of equality--the history buff equals the historian.

Those who disagree with pedigreed history, in short, don't have different ideas; they are "uncongenial" to ideas altogether.

Some inkling of Bellesiles' conception of sound, responsible opinion, as well as irresponsible opinion, can be seen in his glowing reference to "David Brock's recent and highly significant book, Blinded by the Right." Brock "makes evident," says Bellesiles, that "the far right (and it is inaccurate to call them "conservatives") is especially good at destroying the careers of those they perceive as threats, even if they have to make things up."

Making things up does indeed seem to be a problem.

PostScript [7/13/2002 9:45AM] - In the interests of full disclosure I should add that I once practiced "law office history," and I think it has an undeservedly bad reputation. Or more precisely, what is properly objected to in law office history -- tendentious inclusion and exclusion of evidence to reach a predetermined conclusion -- isn't limited to law firms, and in fact may be less prevalent there than in some of the more politicized fields of academic history. Lawyers have a powerful incentive at least to find and weigh all the relevant evidence, especially the evidence that works against them. Of course, some may minimize or hide negative evidence in their presentations, but this unfortunate practice is not limited to law offices. The proper distinction, in short, is not between academic and law office history; it is between good and bad history.

Thursday, July 11, 2002

More Irk: Democrats and "Diversity" - "Townsend's Choice Irks Some Blacks," reports the Washington Post, referring to Kathleen Kennedy Townsend's choice of running mate in her campaign for governor of Maryland. Townsend chose Charles R. Larson, a white retired admiral who was a registered Republican until last June.

This year Rep. Robert Ehrlich, the Republican candidate for governor, picked Michael Steele, the only black chairman of a state Republican party in the country, as his running mate. Republicans hope and Democrats fear that these two running mate choices will dampen the enthusiasm for Democrats among African Americans.

When Republican candidates abandon their core voters and reach out to the center they are usually praised as moderates in the mainstream media. Here, however the general tone and content of the Post article suggested that Townsend made a big mistake in not appeasing the Democrats' black base.

Instead of appealing to that large and loyal constitutency, Townsend turned to Larson.... The choice was praised by most Democratic leaders, who saw it as a wise appeal to independent voters, where Townsend's support is weak. But many black Democrats viewed it as a slap in the face.

"There's a lot of grumbling and disappointment about the selection, none of it personal to Mr. Larson, particularly," said Albert Wynn, a black Congressman from Prince Georges County who refused to appear at a photo op for Townsend and Larson or at the opening of their headquarters in his district. But, Wynn noted, "there are a lot of people who are disappointed that there's not more diversity on the statewide ticket."

When and where I grew up George Wallace always talked about the "bloc vote." Everyone knew "bloc" was simply a code word for "black." Now "diversity" has come to be a code word that means pretty much the same thing.

The Production of Minorities - One thing the United States produces with great and undiminished efficiency is minorities. The unparalleled engine of American democracy takes the raw material of peoples as diverse as Cubans and Brazilians, Mexicans and Italians or Germans from Argentina, and turns them almost overnight into that American invention, Hispanics. These people did not generally think of themselves as Hispanic when they were in their native or, for later generations, ancestral countries, but they become Hispanic here, just as Japanese and Chinese and Koreans and Filipinos et. al. become Asian on these shores.

A nice example of this was in the Washington Post yesterday, in an article about the wooing of new Hispanic voters in Las Vegas. According to the Post, Democratic strategists call these newly minted voters "'opportunity Hispanics' because they are not yet partial to government programs or one of the major parties."

In a revealing vignette, one of these new voters who had just registered as a Democrat told the visiting Democratic candidate for Congress that "Democrats have been known to help out a lot of minorities, which I am a part of." The Hispanic candidate is Cuban, presumably a small minority in the Hispanic community of Las Vegas.

It would appear that the more successful Democrats are in making members of various ethnic groups identify themselves as minorities, the more successful they will be. It's less clear that what's good for the Democrats on this score is good for the country.

Wednesday, July 10, 2002

DoubleTake: Where All the Children Are Above Average

John's Take - That would be Fairfax County, Virginia, home of one of the largest school districts in the country. (Several years ago it was the tenth largest; not sure what it is now.) A recent article in the Washington Post noted with awe that "Minorities Swell Pool of Gifted in Fairfax: Success on Diversity Strains Elite Program."

Curious about what success "on" diversity might mean, and especially because Jessie attended the Fairfax Gifted and Talented program (giving her mother and me, not just Jessie, quite a bit of experience with it), I read this article with a great deal of interest. I suggest that you read it as well, because I might be overreacting. Keep that caveat in mind as I tell you why I found it troubling, and in some instances virtually incoherent.

The article reports that, as a result of revisions in the tests and other admission requirements, enrollment in the selective program went up 37% (519 students) for next fall. Nevertheless, "educators are adamant that the program is as selective as ever."

I spent my first year of graduate school at Yale immediately before it went coed, and I am reminded now of comment on the Yale campus then. It was said (and a measure of Yale in those days is that one could never be sure if this was in jest) that Yale would LOVE to go coed, but the administration had been stumped by a seemingly intractable problem: they were determined to come up with a plan for going coed that would a) not increase the size of the student body or b) reduce the number of men who would have been admitted in the absence of co-education.

Dramatically increasing the size of the Fairfax County GT program in one year without reducing the selectivity of the program would seem to be just as difficult. How exactly was it done? According to the Post,

Superintendent Daniel A. Domenech and other school administrators changed the process in multiple ways to identify more qualified minority students and non-English speakers....

This year, students were given an ability test that focused on problem-solving, patterns and relationships in hopes of identifying gifted children who do not speak English and poorer students who don't traditionally score as high on an IQ test.

"Non-English speakers"? In a selective gifted program? Perhaps the Post meant to say students from families where English was not spoken at home? Perhaps, but the phrase "non-English speakers" was used more than once.

In addition to the new test given to identify gifted students missed by the traditional IQ test, "Administrators allowed students to be considered if they were referred by their parents, even if their test scores didn't qualify them."

So, in addition to supplementing the IQ test with a new test given to identify "gifted children who do not speak English and poorer students who don't traditionally score as high on an IQ test," students nominated by their parents could also be considered "even if their test scores didn't qualify them."

Despite these changes, which led to just under 40% more students being accepted (from 1394 students in 2001 to 1913 in 2002), the educators are "adamant" that the program is as selective as ever.

About half the semifinalists were offered admission -- the same as last year, [Nancy] Sprague [assistant superintendent for instruction] said. The IQ test cutoff score remained the same to ensure that standards would not be lowered, and a similarly high cutoff score was established for the problem-solving test.

I don't understand. If the "IQ test cutoff score" really was a cutoff score, and if it remained the same as last year, what was the point of the additional test to identify students who didn't do well on IQ tests? Of the recommendations from parents of poorer students who don't test well? In short, on the evidence presented the claim that the GT program remains as selective as ever simply makes no sense.

One result of the new standards is that the number of minorities increased dramatically: 41% more blacks, 168% more Hispanics, 53% more Asians, 31% more "Others," resulting in an overall increase in minorities from 32% in 2001 to 36% in 2002. Yet Nancy Sprague, the assistant superintendent, is quoted as saying "We're still not there yet" in terms of meeting the district's minority goals.

Where is "there," and how will the district know when it has arrived?

Jessie's Take - Well, I suppose Rosenberg Elder has made most of the relevant points about the article itself. I might suggest that the selection committee believes that it is unearthing hordes of talented (or "differently talented"?) children who wouldn't have been uncovered using those discriminatory IQ tests. (No pattern-based test for mental retardation, though!) However, even if somehow the students are just as good, the program cannot be, since the article clearly states that there are too many students for the gifted program to handle.

Even while I was in it, the program was subject to degrading outside influence. In fifth grade, my school principal wanted to combine the gifted and traditional science classes. Science, of all things! Combining any of the classes would defeat the purpose, but science, with its emphasis on intelligent inquiry and curiosity (both of which the gifted students had in abundance), would be an especially bad class to compromise on. Since there are only four academic subjects -- science, social studies, math, and "language arts" -- ending gifted science would have eliminated 25% of the gifted program in our school. Fortunately, after much parental involvement, proving that the change would violate the county's own guidelines outlining its obligation to provide a gifted program, the science classes remained separate.

Some of the problems were simply due to bad management, and tenure (or whatever the equivalent is for middle school teachers). I think tenure is an incredibly bad idea, by the way, but I’ll talk about that in another post. Anyway, in sixth grade, one of my teachers was originally an eighth grade teacher, but had occasioned so many complaints from parents that she was moved down to seventh grade, and then the next year to sixth grade. They call that solving a problem? I hate to bring forth such a horrible accusation, but is it possible they didn't fire her because she was black? Maybe she just had tenure, but one of the most insidious effects of racial preferences/double standards is that they make it difficult to avoid wondering whether race played a role in hiring/firing decisions. Last time I heard, she was teaching typing at another middle school in the district. On the first day of school she told a friend and me, separately, something to the effect of, "You ask too many questions because you're an only child." Because of that, and other reasons (namely, even I knew more pre-algebra than she did, and I wasn't the only one), I changed schools early that year, to another school that also housed a gifted center.

Although when I attended we weren't too thrilled with the Fairfax County gifted program, looking back it was definitely, overall, my best pre-college scholastic experience. And that's saying a lot; I've been to nine schools (not counting colleges) in my quest for a good education, twice having to bail out and change schools in the middle of the year. (The second time was when I was in Japan, leaving the dreadfully un-academic, opposed to ability tracking, overpriced American School in Japan. Original name, too.) More details on the terrible state of America's school systems later.

But, really, Fairfax County's schools were the best I've seen. If anyone knows of another school system in which third graders build a life-size rainforest out of paper in their classroom (thirty foot snakes and all), I'd be very pleased to know about it. I suppose they're probably not allowed to do that anymore, although I know it continued for a few years after my class (we were the first), even after they moved into trailers.

Even in places where they supposedly have gifted programs, I've not seen or heard of any even nearly as good as Fairfax County's was. In Albemarle County (rural-ish area near Charlottesville, VA, our current home base and where I went to school three years ago), nearly half the students qualify for the gifted program -- "everyone is gifted here!" -- but all for naught. There are no separate classes for gifted students, and at least in my 8th grade year there were virtually no gifted activities at all.

So, think of this as an obituary for the Fairfax County Gifted and Talented program: accolades for its achievements, and the realities of its decline. Though I hope the program won't continue its decline, if this PC nonsense and lack of attention to hard facts of reality persists, I very much fear that this is the end.

Update - Joanne Jacobs, on her site and in the comments for this post, responds to our discussion of the Fairfax Gifted and Talented program with a description of the Palo Alto program which makes Fairfax County look like heaven. (Note: Permalink there isn't working, just scroll down)

History Lesson I - Sean Wilentz, the peripatetic Princeton historian who spends a great deal of time embroidering and publicizing historical pedigrees for his favorite liberal causes (here the Founding Fathers would support abortion rights, there they would oppose Clinton's impeachment, etc.), recently published a sclerotic attack on Justice Scalia in the New York Times. Juan Non-Volokh effectively demolished it on The Volokh Conspiracy here and here, and little needs to be added here.

But perhaps one additional comment is in order. The necessity to oppose Clinton's impeachment seems to have shown Wilentz the utility (at least occasionally) of an originalist interpretive pose, and thus he lambasts Scalia for attempting to substitute his own views of the proper relationship between religion and government for the founders' -- "Justice Scalia seeks to abandon the intent of the Constitution's framers and impose views about government and divinity that no previous justice, no matter how conservative, has ever embraced."

According to Wilentz,

Justice Scalia's remarks show bitterness against democracy, strong dislike for the Constitution's approach to religion and eager advocacy for the submission of the individual to the state. It is a chilling mixture for an American.

I will leave to readers and others more qualified than I the determination of whether Wilentz's interpretation of Scalia is fair, or even accurate (in my view, it is neither). Scalia has made it clear, in the very speech that launches Wilentz upon his diatribe, that he regards the death penalty as moral (contrary to the teachings of the church that he is alleged to follow slavishly); that he would uphold a hypothetical state law providing for freely available abortions, which he opposes; and that a judge called upon to do something immoral should resign and even perhaps lead a revolution. What interests me here is what Wilentz's advice would be to a judge who was called upon to enforce a law that he or she regarded as clearly both Constitutional and immoral.

This is not a new dilemma. Judges who thought slavery immoral were in that position before the passage of the 13th Amendment. (Robert Cover wrote a terrific book about that problem over 25 years ago: Justice Accused: Antislavery and the Judicial Process, Yale University Press, 1975). There can be no doubt that the original Constitution protected slavery. What would Wilentz have had those antislavery judges do? The implication of his attack on Scalia is that he would regard any judge who deigned to place his own morality above "democracy" and the Constitution as a fearful despot.

Update - [7/11/2002 8:00PM] I said above that "I will leave to readers and others more qualified than I the determination of whether Wilentz's interpretation of Scalia is fair, or even accurate (in my view, it is neither)." That person is Peter Berkowitz, and his devastating rebuttal to Wilentz's "scurrilous" attack on Scalia should be read. It can be found on National Review Online.

Tuesday, July 09, 2002

Blogging at its Best: Thoughtful Criticism - Garrett Moritz has a very thoughtful critique of my recent post on the "underrepresentation" of men in college and what implications that might have for the notion of disparate impact.

I had argued that the "disparity" between men and women in college admissions is even greater than in college sports and that accepting the logic of using Title IX to force colleges to cut back on men's teams in order to promote gender equity should, logically, require colleges to take steps, such as admissions preferences for men, to equalize admissions as well. Some public colleges, I pointed out, have in fact employed such preferences. (Because, no doubt, of a lack of clarity on my part, Moritz seems to think I actually favor such preferences. I don't. I was attempting a "gotcha." I think I got it; Moritz doesn't. You decide.)

Regarding college athletics specifically, Moritz says the neutrality principle I prefer does not apply because "[d]ifferences in funding and sports programs don't simply materialize through the application of neutral criteria; they are the result of specific choices by school sports administrators." This is true, and a very good point, although I think it is mistaken to the degree that it implies that men and women have equivalent interests in sports and that the disparities in participation can be explained primarily by the biased decisions of administrators. This view reminds me of an argument I heard quite often from friends (or former friends) during my work with the law firm defending Sears Roebuck in the sex discrimination suit brought against it by the EEOC. It was no defense of Sears, they would claim, that men are more interested in and available for installing heating and air conditioning systems, home appliances, etc. If Sears only chose to sell different products, my friends argued, it could get more women employees. Well, yes.

In a couple of very polite and provocative emails back and forth Moritz also took issue with my tweaking lefty/liberals for their inconsistency in opposing any state action that benefits religion -- no matter how secular the intent and how general the benefit, such as vouchers -- even though they emphatically endorse state action that benefits one race as opposed to another. In other words, liberals argue that the obligation to enforce "equal protection of the laws" allows the state to provide racial preferences but that the prohibition against any laws "respecting an establishment of religion" does not allow the inclusion of churches in general benefits provided for secular purposes to non-religious organizations. Roger Baldwin, founder of the ACLU, used to criticize those who believed in "civil liberties for our side only," and my point was that the left seemed to believe that disparate impact was a one-way street that bars policies they dislike while allowing those they like. They apply an effects test to vouchers, and would bar them. They apply an effects test to the SAT, and many liberals favor eliminating it. But they apply an intent test to the pledge and would eliminate it even if the offending phrase doesn't have much of an "Establishing" effect, and they certainly have no complaint about the effects of state preferences that disproportionately benefit minorities.

Moritz replies that my attacks on disparate impact amount to "tilting at windmills" because disparate impact is a corpse, a dead relic of the 60s that has been interred by the Rehnquist court. (He, of course, says more than this, and says it better, so I encourage you to visit his site.)

As a matter of current law he is correct. But current law, as everyone knows (and some hope), can change. Moritz acknowledges that a disparate impact approach to civil rights warms the cockles of lefty hearts (my words, not his), and one would need to be neither a Polyanna nor a paranoid (depending on your politics) to see how even one new justice could change the direction of the Court on these matters. The target of my jousting was thus not the law as it is but the law as lefties (including Moritz, he says) would like it to be.

Finally, in another post, Moritz takes me to task for a suggestion I tendered, in discussing the pledge and voucher cases, that "[p]erhaps we should come up with a new standard that would require both an impermissible intent AND sufficiently extensive effects in order to find [an] Establishment violation." Such an approach, I suggested, would be one way to reconcile the conclusion that neither school vouchers nor the phrase "under God" in the pledge violate the Establishment clause. In the voucher case there was no intent to promote religion in a program that was adopted for secular purposes, but there was arguably an effect of promoting religion since the Cleveland vouchers were used overwhelmingly in religious schools. In the pledge case, by contrast, Congress clearly showed an intent to promote religion by inserting the "under God" phrase in the pledge, but arguably that did not have much of an effect of promoting religion.

Moritz views my suggestion as unprincipled result shopping. He makes a good point, makes it characteristically well, and in fact may even be right. I have argued, in the posts that Moritz cites and elsewhere, that by looking only to effects disparate impact distorts the meaning of discrimination by draining it of any discriminatory intent. I hope he is right that that approach is legally dead, and I would like it to stay dead. I'm not altogether convinced, however, that my belief that a finding of intent is necessary to a finding of discrimination or Establishment violation necessarily means that one must not consider effects at all. There is something to "no harm, no foul" common sense in law, as elsewhere. Nevertheless, I think the principle of neutrality, applied in both the racial (color-blindness) and religious (religion-blindness) arenas, is of paramount importance, and I would happily sacrifice the "under God" phrase in the pledge if that is necessary to maintain a principled consistency.

Finally, I would like to say that Moritz's points are very thoughtful and that he has pursued them courteously, both on his blog and in private emails. I appreciate that, and am sad only because I have found thoughtful, courteous criticism so rare. I am pleased to have provoked it.

Saturday, July 06, 2002

Rosa Parks Laments J.C. Watts Retirement - Dean Esmay has some powerful things to say about Rosa Parks lamenting the retirement of J.C. Watts, and about blacks' general refusal to support Republicans.
Political Gaffe - Lead from New York Times article today: "COLUMBIA, S.C., July 5 (AP) — Gov. Jim Hodges is on the defensive after moving money out of a fund for emotionally disturbed children and then running a commercial accusing his Republican opponent of not supporting programs for disabled children."

I tried to think of something snappy or cute to add to that, but couldn't.

Wednesday, July 03, 2002

Ideology (you) v. Sweet Reason (me) - This morning the New York Times announced that It was troubled by the recently completed Supreme Court term: "Mr. Bush's use of the voucher ruling in a political stump speech reflected just how ideological this term's opinions were."

I've sometimes wondered what standards the NYT applies to constitutional questions, but I think I've got it now: when the Court agrees with me it's being reasonable and judicious; when it agrees with you it's ideological.

Who says the NYT has no standards! Certainly not Stanley Fish....

Tuesday, July 02, 2002

More Separation of Race & State: Disparate Impact - In a recent post on the Separation of Race and State I argued that the principle underlying the dissents in the voucher case, arguing for strict separation of church and state, would also require a separation of race and state. In a New York Times OpEd several days ago Jeffrey Rosen suggests another area where the logic of the Court's church-state analysis has interesting, and so far un-sung, implications for the disparate impact component of current civil rights law.

Rosen describes and endorses the five-member majority of the current Court's vision of neutrality, "which holds that a government program enacted for a valid secular purpose is not unconstitutional if that program incidentally benefits religious organizations." Writing for the majority, Rosen notes with approval, "Chief Justice William Rehnquist declared that where a government aid program is neutral with respect to religion, and provides assistance directly to a broad class of citizens, the program does not violate the First Amendment's prohibition against the establishment of religion," even where, as in Cleveland, the preponderance of the vouchers were used in religious schools.

By contrast, programs or policies can be, and often are, held to violate civil rights law if they have a "disparate impact" on minorities even where there is no evidence of discriminatory intent or purpose. Complaints against the SAT, for example, are based on the disparate impact theory, and I suspect it won't be long before a similar challenge to IQ tests (which will become more significant as a result of the Supremes' recent decision banning the death penalty for the retarded) is launched from a different direction. If I may immodestly quote from my Death and Dumb post of about 10 days ago, it is now likely that "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 . . . are more likely to find low IQ among blacks."

If the unintended effect of aiding religious schools is not deemed to violate the principle of religious neutrality, how can policies that, without intent, disadvantage blacks more than whites (or Hispanics more than Asians, etc.) violate a standard of racial neutrality? (For my argument that the principle underlying the demand for religious neutrality should also require racial neutrality, see my recent post on the the Separation of Race and State linked above.)

For some reason consistency seems hard to come by here, whether regarding religion or race (or both). Jeffrey Rosen, for example, was persuasive when he agreed that the unintended effect of aiding religion was not sufficient to establish an Establishment violation, but several paragraphs later, in discussing the Ninth Circuit Pledge decision, he returned to a purely effects test, agreeing with a line of cases holding "that the reference to God in the Pledge of Allegiance probably does not offend the Constitution since it has such a minimal religious effect." True, Rosen does add that "The pledge, taken as a whole, was not intended to be a coercive prayer, but was designed to promote patriotism, and as such is consistent with the neutrality principle." But whether or not the "prayer" was intended to be "coercive," the fact that the motive was patriotic does not negate the fact that an integral component of its intent was to endorse religion.

Perhaps we should come up with a new standard that would require both an impermissible intent AND sufficiently extensive effects in order to find either racial discrimination or an Establishment violation.

PoMo Gore? - Critics, and even some friends, often criticized Bill Clinton for being the perfect political expression of postmodernism because of his ability to say whatever was in his immediate interest, truth or contradictions with earlier positions notwithstanding. Now well-known political newsletterist Charlie Cook suggests that Al Gore may also have a (Stanley) Fishian streak: "Listening to former Vice President Al Gore's graceless remarks over the weekend, when he effectively blamed his 2000 presidential campaign loss on 'polls, tactics and all the rest,' one question kept coming back to me: 'Does he really believe what he's saying?'"

Actually, when I read what Gore said last weekend in Memphis — "If I had to do it all over again, I'd just let it rip. To hell with the polls, the tactics and the rest. I would have poured out my heart and my vision for America's future" — all I could think of was Pres. Nixon's "secret plan" to end the war. But I'm still a bit confused. Gore had this "vision for America's future," but was he a) muzzled by his handlers or b) did he himself, for strategic or political reasons, choose not to share it with us?

Monday, July 01, 2002

Separation of Race and State - No, that's not a typo. I meant to say race, not church. But first we in fact do have to go back to church. By now I know you're probably all tired of vouchers, but please bear with me. I want to suggest that the minority opinions in the recent voucher case unwittingly provide a convincing argument why the principle of neutrality they advocate compels racial neutrality just as it does religious neutrality.

The dissenters dissent because in their view vouchers violate the principle of neutrality. Since 96% of the students with vouchers chose to attend religious schools, they argue, the fact of intervening private choice was not sufficient to insulate the government funds from the charge of impermissibly favoring — which in the current understanding is tantamount to establishing — religion.

What I want to emphasize, however, is not that familiar argument. More important, I believe, is the repeated, emphatic recognition throughout the dissents that the principle of neutrality itself derives not so much from the text of the Constitution but from something deeper in the very structure of our society. That something is the overriding fact of religious pluralism, a pluralism that in the absence of official neutrality would lead to constant strife and conflict. The dissenters, in short, recognize that the small "c" constitution of American society of necessity dictates the meaning of the large "C" Constitution.

To quote the references proving this point would be to reprint the dissents, but here are more than a few examples from the dissents, particularly Justice Breyer, of what I'm referring to:

• For the reasons stated by JUSTICE SOUTER and JUSTICE BREYER, I am convinced that the Court’s decision is profoundly misguided. Admittedly, in reaching that conclusion I have been influenced by my understanding of the impact of religious strife on the decisions of our forbears to migrate to this continent, and on the decisions of neighbors in the Balkans, Northern Ireland, and the Middle East to mistrust one another. Whenever we remove a brick from the wall that was designed to separate religion and government, we increase the risk of religious strife and weaken the foundation of our democracy. (Stevens)

• I join JUSTICE SOUTER’s opinion, and I agree substantially with JUSTICE STEVENS. I write separately, however, to emphasize the risk that publicly financed voucher programs pose in terms of religiously based social conflict. I do so because I believe that the Establishment Clause concern for protecting the Nation’s social fabric from religious conflict poses an overriding obstacle to the implementation of this well-intentioned school voucher program. (Breyer)

• See also Lee v. Weisman, 505 U. S. 577, 588 (1992) (striking down school-sanctioned prayer at high school graduation ceremony because “potential for divisiveness” has “particular relevance” in school environment) (Breyer)

• In Lemon v. Kurtzman, 403 U. S. 602 (1971), the Court held that the Establishment Clause forbids state funding, through salary supplements, of religious school teachers. It did so in part because of the “threat” that this funding would create religious “divisiveness” that would harm “the normal political process.” Id., at 622. The Court explained: “[P]olitical debate and division . . . are normal and healthy manifestations of our democratic system of government, but political division along religious lines was one of the principal evils against which [the First Amendment’s religious clauses were] . . . intended to protect (Breyer)

• [I]n Committee for Public Ed. & Religious Liberty v. Nyquist, 413 U. S. 756, 794 (1973), the Court struck down a state statute that, much like voucher programs, provided aid for parents whose children attended religious schools, explaining that the “assistance of the sort here involved carries grave potential for . . . continuing political strife over aid to religion.” (Breyer)

• (Of early Protestantism in schools): Those practices may have wrongly discriminated against members of minority religions, but given the small number of such individuals, the teaching of Protestant religions in schools did not threaten serious social conflict. (Breyer)

• (Quoting Justice Rutledge in Everson v. Board of Education): “Public money devoted to payment of religious costs, educational or other, brings the quest for more. It brings too the struggle of sect against sect for the larger share or for any. Here one [religious sect] by numbers [of adherents] alone will benefit most, there another. This is precisely the history of societies which have had an established religion and dissident groups...." The upshot [Breyer continued] is the development of constitutional doctrine that reads the Establishment Clause as avoiding religious strife, not by providing every religion with an equal opportunity (say, to secure state funding or to pray in the public schools), but by drawing fairly clear lines of separation between church and state. (Breyer)

• The principle underlying these cases — avoiding religiously based social conflict — remains of great concern. As religiously diverse as America had become when the Court decided its major 20th century Establishment Clause cases, we are exponentially more diverse today.... Under these modern-day circumstances, how is the “equal opportunity” principle to work — without risking the “struggle of sect against sect” against which Justice Rut-ledge warned? (Breyer)

• In a society as religiously diverse as ours, the Court has recognized that we must rely on the Religion Clauses of the First Amendment to protect against religious strife.... (Breyer)

• fear that this present departure from the Court’s earlier understanding risks creating a form of religiously based conflict potentially harmful to the Nation’s social fabric. Because I believe the Establishment Clause was written in part to avoid this kind of conflict, and for reasons set forth by JUSTICE SOUTER and JUSTICE STEVENS, I respectfully dissent. (Breyer)

You get the idea. Breyer and the other dissenters argue with great force that the very constitution of American society i.e., the social necessity of avoiding sectarian conflict, dictates the strict separation of church and state that they see expressed in the First Amendment.

Race and Sects in American History

Although I think the dissenters are mistaken when they conclude that vouchers violate the principle in, and underlying, the First Amendment, I think their vision of American history, and of the neutrality principle that history has generated, is persuasive.

One of the most cherished myths of American history is that our foremothers and forefathers fled the Old World for the New to escape religious bigotry and build a new society based on religious freedom. In fact, the Puritans’ strongest complaint against the Old World was that it was too tolerant, that it was swimming in a sea of such moral sloth and corruption that it had lost all interest in purifying the church. The New World appealed to them because it was empty (except for the "heathens" ripe for conversion), and they could establish Godly communities the way they were quite certain God intended.

And yet within several generations religious toleration had broken out all over. Despite the best efforts of the Puritan divines, diversity could not be denied. The Baptists and Quakers proved irrepressible. Mennonites appeared, and Methodists sprouted like weeds in the wake of itinerant ministers. Even many Congregational churches split asunder as revivalist “New Lights” walked out and founded competing congregations.

What happened? Unintended and unplanned, America began to happen. What Voltaire said cynically about England came to be celebrated here: “If there were one religion . . . , its despotism would be terrible; if there were only two, they would destroy each other; but there are 30, and therefore they live in peace and happiness.”

Toleration developed not because it was valued but because it was necessary. “Freedom came to the Western world,” wrote Reinhold Niebuhr, one of our greatest theologians, “by the inadvertence of history. Toleration was an absolute necessity for a community which had lost its religio-cultural unity and could find peace only if toleration and freedom were accepted.”

Toleration alone, however, was not sufficient. Strict neutrality was also required, a prohibition against the state favoring any of the contending sects. As Justice Hugo Black wrote in Zorach v. Clauson (1952), “it is only by isolating the state from the religious sphere and compelling it to be completely neutral that the freedom of each and every denomination and of all nonbelievers can be maintained.” Or as the Court held in Abingdon School District v. Schempp(1963), “the government is neutral, and, while protecting all, it prefers none.”

But if this vision of the structure of American society requires a principle of neutrality that in turn requires a separation of church and state (as the dissenters and I believe it does), should it not also compel a separation of race and state? After all, as the eminent Berkeley historian David Hollinger has written, in our time "ethno-racial affiliations have come to play a role similar to that played by religious affiliations at the time of the founding of the republic and throughout most of American history." (Post-Ethnic America Basic Books, 1995, p. 123). Surely racial and ethnic preferences are at least as "divisive" today as debates over school vouchers, which seem to have bothered a few litigants and the courts much more than the society as a whole.

Or consider the current mantra of "diversity." Harvard law professor Christopher Edley — former White House aide, co-author of President Clinton's "mend it, don't end it" review of affirmative action policies, advisor to Clinton's race commission, fervent advocate of racial preferences (he described Stephan and Abigail Thernstrom's America in Black and White as "a crime against humanity"), and advisor to the Gore campaign — has written that "our rich religious diversity" provides a model for racial diversity. "We are fairly united as one of the most religious nations on earth," Edley wrote, "but we worship differently, celebrate that fact, and recognize that religious differences should play only a limited role in our social and economic lives. Perhaps a model along these lines is what is needed in race." (Edley, "Why Talk About Race?" Washington Post OpEd, 7 December 1997, p. C1.)

Indeed it is, but this “model” suggests a conclusion that Edley and other preferentialists will not like. If ethnic and racial groups are now analogous to religious sects, why should it be permissible for the state to grant preferences to the former when it is clearly prohibited from doing so to the latter?

Perhaps Justice Breyer and his like-minded brethren, on and off the Court, can be called on to explain why they fear "the risk" of "potential" divisiveness in what they see as religious preferences but not the actual divisiveness of racial and ethnic preferences. Or, in the alternative, they could explain why a principle that they believe justifies racial preferences does not also justify religious preference, for certainly they recognize that religion provides as good or better basis for "diversity" as race. Would they look on religious preferences in admissions and hiring with the same favor they bestow on racial and ethnic preferences? What is it precisely that would make a preference for Arabs acceptable but for Muslims unacceptable? Why was the old quota system that restricted the number of Jews in the Ivy League (presumably) wrong, but the de facto quota system that restricted the number of Asians admitted to Berkeley and UCLA under reign of preferences not wrong?

In short, perhaps it is time to insist on a separation of race and state, to insist in the ethnic and racial sphere, as well as the religious, that government must be neutral, that it protect all, but that it prefer none — not because the First Amendment compels neutrality in this sphere, but because of the same social reality that led to the First Amendment in the first place.

I apologize for the length of this post, but then Jessie has just written that she likes long posts.

Anti-Spam - I went to this blog panel discussion on Friday, focused on the usual sort of blog discussion: will blogs supplant old media? (no), is there any prospect for making money from blogging? (possibly), etc. This panel discussion was marred by the absence of Glenn Reynolds and James Lileks whose flights were unfortunately canceled (see their comments on the airport experience here and here. Here is a pretty good summary of the events of the discussion.

I thought the discussion was, at least with respect to what I was looking for, a bit disappointing. The only kind of blogs I really care about are the political blogs. Of course, I think the other kinds of blogs are very interesting for many people, and I'm glad that they exist, but they are part of an entirely different movement. The political blogs, I believe, are more relevant to the sort of discussion the panel was trying to have, and they were not represented. The true blog status of the websites that were represented was doubtful, as admitted by the panelists. In addition, the "discussant" from the Idler (the publication running the meeting) was not a blogger, and thus was not as familiar with the material being discussed as a true blogger would be.

One thing I found very disturbing was the notion, brought up repeatedly, that bloggers (or websites as a whole) need editors. Journalists need editors, because 1) their readers paid for the publication as a whole, and every article within needs to be up to the standards of the whole, 2) an article is intended to be the finished product of a line of thought, not a stop along the way, 3) mistakes in newspaper articles cannot be easily corrected, and damage the reputation of the entire publication, and 4) the publication is created for the readers, and must be written to their satisfaction, not that of the writer.

On the other hand, to me, the point of a blog is that it is one person's (or several people's) opinion, presented in a tentative, informal, and evolving manner. Bloggers can change their minds, make mistakes, and take other viewpoints into account. The metaphor of a blog as a conversation is thrown about a lot, but I would say that it is not a metaphor, but simple truth. The advantage of a blog is the chance to quickly respond to someone else's comments in a thoughtful and public way. (This could be one of the reasons the blog phenomenon did not take off until it did: there needed to be a critical mass of bloggers, interlinked and ready to respond to each other.) A conversation does not need an editor. By the spontaneous nature of a blogger's posting, and the blogger's willingness to respond to comments on his or her posts, the blogger declares that a post is not the end of a train of thought, but somewhere in the middle. A blog is a chronicle of the evolution of ideas.

In addition, being free of charge, a blog is not created for the benefit of anyone else but the blogger. I find that people often lose sight of this fact, as well, in references such as the term "blogorrhea," referring to bloggers who post too often or who write posts that are too long to be interesting to the speaker's conception of a blog reader. First of all, I like long posts, as perhaps is evidenced by this blog, and I am sure there are at least some other readers who agree with me, given the popularity of such sites as The Volokh Conspiracy, which tends toward long posts. But even if a post is so long and pointless that no one would care to read it, this is not a reason to suggest that bloggers need editors. I hold the sentiment, and have seen it echoed in most blogs that I read, that a blog is for the blogger, not for the readers. If the readers don't like a certain blog, then they don't have to read it.

In this sense, a blog is the "anti-spam." If readers were paying for blogs, their content would have to measure up to a certain consistent standard. Or, if readers were being forced to read blogs, if blogs were delivered to their door every morning, or were emailed to them whether they wanted it or not. However, neither of these conditions are true. Blogs are simply sitting out on the internet, not advertising to anyone. They are a passive media. If someone wants to read a blog, he or she needs to actively search for it, and can choose when and what to read. If a post is long and boring, the reader can skip over it. Blogs are not an imposition on a reader, they are a source of information that anyone may freely seek out, or not seek out, as they choose.

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.