Author Archive: Gail Heriot

SHOULD I DECLARE VICTORY?:  I’m really tempted to.  Things look pretty good.  But they can still change.

As many of you know, for the past eight months, I have been spending gobs of time trying to discourage the California Senate from passing Assembly Constitutional Amendment 7 (“ACA7”) and preparing for a campaign in case it does.  That’s why I haven’t been posting much.  ACA7 passed the Assembly on a strict party-line vote back in the autumn.  If it somehow passes the Senate before the end of June (or by July 4 at the latest), it will go on the November ballot.  Increasingly, however, it looks like maybe, just maybe, it won’t.  The bill seems to be stalled in the Rules Committee, and it’s getting pretty late in the day to put it through two committees and have it reach the Senate floor. (Alas, the Democrats won’t tell me anything, and the Republicans don’t seem to know anything.)

Some background for those of you who are not regular readers:  ACA7 is the second attempt by the California legislature in less than four years to gut Proposition 209.  Prop 209 was an initiative back in 1996 that amended the state constitution to say:  “The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.”

I co-chaired that campaign (back when I was younger and cuter than I am now).  Not only did it pass, but it also spread to several other states. And it literally made the history books.  Paul Johnson’s A History of the American People spans from the Lost Colony of Roanoke to the end of the 20th century, but somehow he found room for a paragraph on Prop 209.

Then came Act II.  In 2020, in the midst of the panic over George Floyd, the California Legislature floated a referendum—Prop 16—to repeal Prop 209 outright.  The old Prop 209 gang got together again—with Ward Connerly as chair and me again as co-chair.  Plus we had a lot of energetic new faces.  We were outspent more than 14 to 1, but we beat the pants off the “Yes on 16” campaign. More than 57.2% (more…)

HOT!:  The final form of my article (with Maimon Schwarzschild) about Students for Fair Admissions v. Harvard (2023) has now been published by the Southern Methodist University Law Review.  It is available here for your reading pleasure.

AT THE TIME, IT WAS SORT OF EMBARRASSING, BUT NOW IT MAKES FOR A FOND MEMORY:  At the age of 11 or so, I was “Miss Poppy” of Northern Virginia.  It meant that I dressed in a white dress decorated with crepe paper poppies (actually my Confirmation dress re-tooled for Memorial Day and other patriotic holidays).  My job was to go to American Legion Posts in the area where I would recite John McCrae’s “In Flanders Fields.”  I could also recite “America’s Answer.”

My favorite lines from the latter are:

Fear not that ye have died for naught;
The torch ye threw to us we caught,
Ten million hands will hold it high,
And freedom’s light shall never die!
We’ve learned the lesson that ye taught
In Flanders’ fields.

I don’t think I was the world’s best (or even Northern Virginia’s best) poetry reciter at the time.  But the dress and the little green shoes and hat were cute.

I LOVE HERO STORIES:  All honor to John Stickovich, who risked his own life to pull a baby from a burning building.

RED ALERT:  Stewart Baker writes at the Volokh Conspiracy:  “Congress is Preparing to Restore Quotas in College Admissions … and Everywhere Else–as a Very Quiet Part of the Bipartisan ‘Privacy’ Bill.”  I haven’t had a chance to review the bill yet.  But the conservative civil rights lawyers who have had that opportunity all agree that this “bipartisan” bill will, if passed, be a disaster.  I assume the GOP staffers involved simply didn’t understand the ramifications of the “disparate impact” provisions in the bill.  But I’ll know more once I’ve read the bill myself.  In the meantime:  Dear Congress:  Please don’t pass this bill.

(Yes, I noticed Glenn posted this last evening, but it’s important enough to post again.)



WHY DID THEY HAVE TO CALL IT “OPERATION MINCEMEAT”?:  On this day in 1943, a British submarine surfaced off the coast of Spain.  As the captain read the 39th Psalm, the body of a Welsh homeless man, dressed up to appear to be a military courier, was gently cast adrift.

It was all part of an audacious plan.  Attached to the body was a briefcase containing documents—false ones—that suggested that the Allies would soon be invading Greece and Sardinia and that the upcoming attack on Sicily was merely a diversion.  In fact, the real Allied invasion was going to be Sicily.

The hope was that the body would wash ashore and that the Spanish authorities would assume that the man had been the victim of an air crash.  With luck, they would deliver the documents to German intelligence, and the Germans would be fooled into shifting reinforcements to Greece and Sardinia. Sicily would be left relatively undefended.

The British worked hard to make the whole thing seem believable.  The body was given the name Captain (Acting Major) William Martin.  He carried a wallet with a photograph of a fictitious girlfriend “Pam”.  Also in the wallet were two love letters from “Pam,” a receipt for the purchase of a diamond engagement ring, and a notice of overdraft from a bank.  The overdraft notice was a nice touch.

The scheme worked.  The Germans did indeed beef up their positions in Greece and Sardinia at the expense of Sicily.  The Allied attack on Sicily was no picnic, but in the absence of Operation Mincemeat, it would have been a lot worse.

And, of course, they made a movie out of it.  How could they not?  The 1956 thriller starred Clifton Webb and was given a wonderful title–The Man Who Never Was. (This had also been the title of the book written about the operation by Ewen Montagu, who had played a leading role in the scheme.)  I just love that title.

Here’s the part I can’t understand.  In 2021, Warner Bros. did a new movie about Operation Mincemeat, which they named Operation Mincemeat.  What?  Shouldn’t they have come up with a better title?

A few years back, the BBC did a documentary about the operation, which is available on YouTube.  Some of the players are interviewed in it—including “Pam” (or rather the woman in the picture).  I recommend it.

TRUTH ISN’T A DEFENSE:  A judge on the Superior Court in San Diego has been disqualified from hearing cases under the Racial Justice Act on the ground of bias.  In part he is accused of having said:   “There is absolutely no evidence that … the proportion of persons in an ethnicity committing a crime must be the same as the proportion in the population.”  The problem, of course, is that statement is plainly true.



THE GOLDEN STATE’S SLOW SUICIDE CONTINUES:  Wall Street Journal:  “Slavery Reparations in California?”  Various committees of the California Legislature have now approved various recommendations of the Task Force on Reparations.  They. Just. Can’t. Stop.

OFF THE RAILS:  In 2020, during the “Time of Anxiety” over George Floyd’s death, the California Legislature created a Task Force on Reparations.  In doing so, it appeared to me that the legislators were violating a fundamental rule of governance:  Never create a commission to “study” a controversial problem unless you are relatively certain that you’re going to want to follow its recommendations.

Reparations for African Americans in California are an unusually bad idea.  To begin with, this was never a slave state.  And if the reparations are not for slavery, but rather for racial discrimination over the course of California’s history, then the problem is that other racial and ethnic  groups have suffered from mistreatment at least as much (and in the case of the Chinese more).  Yet, from the start, the Task Force appeared to be stacked in favor of reparations.

When the Task Force’s report came out in June of last year, it did indeed back extensive reparations. There were some awkward moments, but it looked to me that Governor Newsom realized all this had been a mistake and was going to sweep the report under the rug.

I’m starting to think that maybe I was wrong about sweeping this under the rug.  Or rather I was right in the first place:  It’s very hard for a legislature to turn away from the recommendations of a task force it created.

Recently, the Senate Judiciary Committee voted to create a “Freedmen’s Agency.”  Shades of Nuremberg:  The Agency will be required to have a “Genealogy Office,” which will be charged with the task of tracing the pedigree of those who apply for reparations to ensure their eligibility.  If the bill passes the Senate and Assembly and it is signed by the governor, the new agency will violate another fundamental rule of governance:  Never create a bureaucracy unless you want it to have the power to carry out its mission.

I have a hard time imagining that this will end well.

In any event, here are some tweets that I could use some “likes” and “retweets” on.  If you have a Twitter/X account and have a minute, please help out.

With luck, we’ll have some other (non-Twitter) ways to send a message to these senators soon.  Right now there’s an immediate need to get their attention any way we can.

IF ONLY IT REALLY WERE NEWS:  The internet is treating this as news:  The EEOC is suing Sheetz convenience stores, because Sheetz conducts criminal background checks on its job applicants and then declines to hire the ones who are criminals.  The EEOC concedes that Sheetz is not motivated by a desire to exclude African American men, but argues that because a higher percentage of African American men than of white, Hispanic, or Asian men, or of women have criminal records, Sheetz is “discriminating” against African American men within the meaning of Title VII.

In other words, Sheetz is REQUIRED to hire felons even if it doesn’t want to.

Welcome to the world we live in.  The EEOC has been doing this for a long time.  It’s crazy.  But that’s only because disparate impact liability is crazyRead about it here (including a long discussion of liability for declining to hire convicted felons).

Martin Luther King looked forward to the day that his children could be judged by the content of their character rather than the color of their skin.  Alas, the content of our character (as revealed by our criminal record) is off limits in hiring.  But hiring by the color of our skin is considered virtuous.  Weren’t we supposed to have made a lot more progress on this by now?

I am so tired of lily-livered Members of Congress who get that deer in the headlights look when you point out how that they could actually stop this nonsense.  They don’t even try.

P.S.  If you are concerned that felons need jobs or else they will wind up in prison again, I agree that’s a problem.  It’s just not a Title VII problem.  Members of the 88th Congress would have choked on their lunch if they knew how the EEOC would mistreat employers who just want to avoid hiring felons.  The federal government actually has a program under which employers get a tax break for hiring ex-cons.  Such a program makes much more sense than the EEOC’s approach, because it is voluntary.  Some jobs present fewer temptations than others.  Some ex-cons are better bets than others.  A tax subsidy allows employers who are in a good position to hire ex-cons to self-select.

TODAY IN HISTORY:  It’s Hitler’s birthday today.  May he rot in hell along with his fellow gangster dictators.  ¡No Pasarán! shares excerpts from Paul Johnson’s Modern Times to show that the notion that Hitler was on the “right” while Marx, Lenin and Stalin were on the “left” makes no sense.  They were cut from the same mold.

I NEED ANOTHER FAVOR:  I know I’ve been a terrible blogger.  Loyal readers know why:  I am all wrapped up with trying to defeat Assembly Constitutional Amendment 7 (“ACA7”)–the newest effort to gut the California Constitution’s prohibition on preferential treatment based on race, sex, or ethnicity (put there by Proposition 209 in 1996).  ACA7 is currently pending in the Senate where my fellow volunteers and I  have a good chance to kill it.  If we fail, it will go on the November ballot and I will have to spend even more time on it.  (Ugh.)

If you’re interested in learning more, here is my essay for City Journal.

There is a dead simple thing you can do to help if you have a Twitter/X account.  Just like and retweet these two twits, tweets, … I mean posts.  I know it sounds absurd to think something like that can make a difference, but you’d be surprised.  The posts are “tagged” to the senators that we believe we have the greatest chance of persuading.  We only need six Democrats, and we already probably have two. I am encouraged that if we make a bit more noise, the Senate will find something some other way to torture their fellow Californians.

Think of it this way:  If I fail to stop ACA7 in the Senate and it goes on the ballot, I will have to ask you for real money ($$$) to fight it.  I’m sure you don’t want that.  Let’s try to kill it now on the cheap.

On the other hand, if this gets taken care of before July, I will get back to writing my book full time (with a little time left over to blog).

((By the way, these are not the best photos of our little Orange County protest, but they are the ones tagged to the most Senators, so they are the best ones to like and retweet/repost.))

GETTING RE-ELECTED:  For some of the California Senators I’m trying to discourage from putting ACA7 on the ballot, following my advice seems like simple prudence.  Their constituents hated Proposition 16, and ACA7 is just a Proposition 16 with a thin disguise.

It seems kind of suicidal for a politician to go against that many of their constituents.  But who knows what motivates these politicians?  My colleagues and I will keep giving them good reasons to vote NO, and we’ll see what happens.

SEIU:  COMING TO A UNIVERSITY NEAR ME:  The Service Employees International Union is attempting to organize the non-tenured, non-tenure-track faculty at the College of Arts and Sciences at my university.  There is apparently a lot of this going around these day.

The countdown on the higher education implosion continues.

GAIL’S CALIFORNIA REPORT:  As loyal readers know, I’ve been spending a lot of my time opposing Assembly Constitutional Amendment 7 (“ACA7”).  It passed the Assembly months ago on a strict party-line vote and is now pending in the Senate.  If it becomes law, it will essentially gut the state constitution’s ban on preferential treatment based on race, sex, color, ethnicity, or national origin (put there in 1996 by Proposition 209).

ACA7 is a little different from the recent failed effort–known as Proposition 16–to repeal Proposition 209 entirely.   ACA7 “simply” gives the Governor the power to make EXCEPTIONS.  But the exceptions will swallow the rule.  (Indeed, that’s the intent.)

Like Proposition 16, ACA7 will require a vote of the people, which I hope and believe it will not get.  But I’d much rather not have to go through a full-scale, expensive and exhausting campaign.  I’d rather the issue die a merciful death in the Senate.

One thing that gives me real hope that the Senate will kill it is that the Black Caucus (as well the bill’s primary sponsor) keep telling people that ACA7 is part of their plan for REPARATIONS.  Reparations are unlikely to play well anywhere outside the state’s wokest precincts.  Proposition 16 (the straight repeal effort in 2020) was defeated by 57% of voters.  If ACA7 is linked to reparations, the NO votes may come in even larger numbers.  Alas, the fight will be bitter and divisive.

If you have time and the inclination, please do me a favor.  If you haven’t already signed our PETITION, please do so.  The petition has been essentially on ice for three months while we tried to deal with Facebook.  I think it’s on track now.  But we need more signatures.  You don’t need to be a Californian to sign. Also if you have Twitter/X account, “liking” and “retweeting” the tweets that tag our state senators (as the one below does) are greatly appreciated.

We only need six Democratic senators to join with the eight GOP senators to block ACA7.  We believe we have two Democrats so far and reason to believe we can get more.  For some it’s a matter of self-preservation.

Post Script:  We hope to start picketing one or two Assembly Members who voted for ACA7.  It’s important that Senators know how seriously we are taking this.

YOU’RE INVITED:  The Pacific Legal Foundation is putting on a Webinar entitled “Winning Strategies to Combat Discrimination in California.”  The panelists will be Jack Brown, Wenyuan Wu, and yours truly.  We’ll be talking about Proposition 209, Proposition 16, and the new threat–Assembly Constitutional Amendment 7.

The program is scheduled for tomorrow (Tuesday) at 3:00 Eastern/2:00 Centra/1:00 Mountain/12:00 Pacific.  You can register here.

THE UNIVERSITY OF SAN DIEGO NEEDS A LAWYER:  My university wants to discriminate on the basis of race, sex, and ethnicity.  There’s nothing unusual about that.  Many universities want to do that.  But most of them know enough not to say so explicitly.  That’s what sets USD apart.

When Christopher Brunet of Karlstack sent an email inquiring about the discriminatory advertisement, he received as response from the professor who posted the job:  “I am retracting the advertisement.  I received funding from Prebys to supplement salary for postdoc with the requirement that they be a woman.  But my position is open to everyone.  My apologies for the lack of clarification.”

So it’s “retracted.”  Sort of.  In other words, USD will accept resumes from everyone.  But what do you want to bet that the position goes to a woman, whether she’s the most qualified candidate or not?

If you are qualified for this position, but suffer from being male and are not selected, please contact me.

By the way, this is not the first time USD has crossed the line on Title VII.

I AM VINDICATED:  Three years ago, the U.S. Commission on Civil Rights issued a report on maternal mortality that claimed, among other absurdities, that maternal mortality rates had worsened in the United States over the last 30 years, quoting with approval a witness who said the rates were up a whopping 50% in just a generation (as well as other alarming, but obviously incorrect statistics).

I wrote a dissent and pointed out that, in reality, this so-called “increase” was almost certainly an artifact of a significant change in the way deaths were classified.  This change had been phased in over a number of years.  It required the deaths of women who had been recently pregnant to be looked at more closely to see if the pregnancy might have been a contributing factor.

A new study published in the American Journal of Obstetrics & Gynecology shows that I was right.  It was obvious.  But obvious things that don’t fit the Commission’s narrative get ignored.

The more interesting (and true!) story here is how maternal deaths are down 99% since about 1900.  Thanks go to Alexander Fleming (penicillin), Vincent du Vigneaud (oxytocin), researchers at Merck & Co. (methyldopa), and other physicians and researchers who have furthered our knowledge over the course of almost 125 years.  May that progress ever continue.