Author Archive: Gail Heriot

WE’RE NOT THAT CRAZY YET:  The ADA doesn’t require employers to keep a customer-facing employee whose Tourette’s Syndrome causes him to engage in “obscene and inappropriate vocalizations.”

BETTY VAN PATTER COULD NOT BE REACHED FOR COMMENT:  Uh … I’m not sure that we should be thrilled by this:  On Sunday, Assemblymember Mia Bonta (wife the the Attorney General and co-sponsor of ACA7) announced on Twitter/X that $1,250,000 of taxpayer money was going to the Huey P. Newton Foundation.

Seriously?  You mean the Huey P. Newton who repeatedly stabbed Odell Lee with a steak knife?  The Huey P. Newton who killed Oakland police officer John Frey and then bragged about it?  The one who almost certainly ordered the murder of Panther bookkeeper Betty van Patter, whose badly beaten body washed up on a San Francisco Bay beach five weeks later?  Is that the guy we’re talking about?

Are we talking about the one who “allegedly” shot 17-year-old Kathleen Smith, who lay in a coma for three months before dying of her wound?  Note the only reason I use the word “allegedly” is that Newton’s Panther thugs tried to kill the eyewitness, which caused the eyewitness to refuse to testify.

Oh … and is this the same Huey P. Newton who repeatedly raped Erika Huggins and threatened to harm her children if she spoke up?  Just asking …

This kind of thing makes me sick.  I can’t understand what makes people worship thugs.

I SURE WOULD LIKE TO LEAVE CALIFORNIA AFTER THIS … MAYBE TEXAS OR SOUTH CAROLINA: I’ve told Instapundit readers a bit about ACA7 already.  It’s the new proposal to nullify Proposition 209–the 1996 initiative that banned preferential treatment based on race, sex, and ethnicity.

ACA7 passed the Assembly in this past fall.  We’re trying to stop it in the Senate.  That would save everyone a lot of time and money.  Referendum campaigns are very expensive and time consuming.  If we fail to stop ACA7 in the Senate, it will be on the ballot in November, and 2024 will be a wasted year for me and my fellow “NO on ACA7” volunteers.  I don’t mean wasted in the sense of doing something useless … opposing ACA7 is important … but wasted in the sense that we shouldn’t have defend Prop 209 TWICE.

As you may recall, the last effort to repeal Proposition 209 was less than four years ago.  That effort (known as Prop 16) was well financed.  The proponents of the repeal had more than 14 times the amount of money we had.  But we beat the pants off ’em anyway.  Over 57% of voters rejected it.

Three differences could matter this time–one that cuts against us and two that cut against ACA7.  It’s much trickier than Prop 16 was, and that’s a problem for us.  It purports to just create a procedure for making exceptions to Prop 209.  In practice, the exceptions will swallow the rule.  We’ll need to work hard to make sure voters understand that.  The good news is that we have excellent reason to believe that we will be better financed than last time. Last time, big donors thought we were going to lose.  They didn’t want to waste their money.  Now they see that we can win, and some are excited to help.  The second thing that cuts against ACA7 is that this time around it is associated with the reparations movement.  Reparations are not exactly a popular cause.  California wasn’t even a slave state.  But the California Legislature’s Black Caucus has designated ACA7 as part of its “2024 Reparations Legislative Package,” so I guess they think it will fly.

Maybe they were misled by the report of the California Task Force on Reparations, which claims that over 60% of Californians support reparations.  But they only got that number by asking a loaded question:

A much more professional poll showed that Californians oppose cash reparations by more than a 2 to 1 margin.  That poll showed the support for other kinds of reparations was weak too.  Only 29% of those polled thought Calif was doing “too little” for African Americans.  By contrast, 48% said either “too much” or “about the right amount.”  With those numbers, it is very unlikely that a majority can be mustered for reparations of any kind.

If you’re so inclined, please sign the petition, email senators, and/or like/retweet my tagged “No on ACA7” tweets.  The software for emailing senators allows you to either send a form letter or copy the senators’ addresses and transfer them over to your own email system where you can write your own message.

Meanwhile, I’m going to Sacramento today to talk to Senators and their staff members.  Wish me luck.

REPARATIONS:  The members of the Black Caucus of the California Legislature are making it explicit that ACA7 is part of their “reparations package.”  That seems impolitic of them to me.  Californians–particularly those whose families came to America in the last 40 years or so–are unlikely to be excited about paying reparations, whether cash or non-cash.  Already a pro-reparations group is saying the package as a whole is NOT ENOUGH.

Nothing good will come of this.  I can’t imagine Gavin Newsom is happy about it coming up while he is trying to establish himself as a moderate Democrat.






ONE MORE POINT ABOUT THE MONA LISA:  This is hardly an original thought, but it will make me feel better to say it in one sentence:  Nothing makes it clearer that climate activism is about hating Western Civilization (and not about climate) than attacking one of Western Civilization’s greatest works of art.

I would add, “Throw the book at ’em,” but that would be more than one sentence.

HANG DOWN YOUR HEAD, TOM DOOLEY:  I knew that the well-known folk song, Tom Dooley, was about a real murder.  But, oh my … I didn’t know part about free sex and … uh … syphilis … that is assuming it’s true.

Tom Dooley–actual name Tom Dula–had quite the story (or stories).  I have no idea which version, if any, is the correct one.  I guess I don’t need to know.  But if you’d like to sort it out, you can start with the links above.

Good song anyway.  But I may have to hand down my own head to sing it now.

HOT! HOT! HOT!:  My partner-in-crime Maimon Schwarzschild and I have just posted our take on Students for Fair Admissions v. Harvard (2023) and the way in which that case brings a new clarity to the law.  (One of the points we make is that the dissents are really hardcore.)

THE CAMPAIGN AGAINST ACA7 MARCHES FORWARD:  If you’re a regular Instapundit reader, you probably already know about my efforts to stop Assembly Constitutional Amendment 7 (or “ACA7“), which is currently pending in the California Senate (after passing in the Assembly on a strict party-line vote).

But if you haven’t heard about ACA7 before, you can read about it here, here, and here.  I posted the text of Bill McGurn’s piece in the Wall Street Journal’s piece here (without the paywall).  And here’s a new piece by Mike Gonzalez in the Washington Examiner.  Word is getting around.

If you’d like to help, one way to do so is write an email to all state senators.  Here is the page on our web site that will allow you send them.  You can either use the standard message provided for you (easy peazy) or (even better) you can write your own message.  To do so, just press “copy” next to the list of senators to attach the email addresses to your clip board and then transfer them over to your email.

And if you don’t have time for that, there’s always just signing our petition if you haven’t already done so.  You don’t have to be a Californian to sign.

Meanwhile, here are more pictures from the “No on ACA7” photo parade we did on Twitter at Christmastime.  (We’ve been doing Zoom meetings with senators this month.  In February, we’ll be live and in person in Sacramento.)




THEY SAID NO:  Earlier this week, the Supreme Court declined to hear Metropolitan School District of Martinsville v. A.C., a transgender bathroom case.  That’s too bad.  I thought the amicus brief I worked on had a good argument on statutory grounds, and my colleagues and I were prepared to make an equally good argument on constitutional grounds if the petition for certiorari had been granted.  Maybe the Court is waiting for a case that centers on athletics instead.  Or maybe they are just timid.  I hope it’s the former.

SOME OF THE “NO on ACA7” PHOTO PARADE’S GREATEST HITS:  I posted over 100 photos in the “No on ACA7” photo parade on X/Twitter in December.  Most were tagged to Governor Newsom and to Senate leaders. (A technical glitch made a few of them go out without tags.  Never trust me with anything technical.)  Here are a few of my favorites.

(Yes, if you “like” or “re-post/re-tweet” them, Newsom and others will receive a little notification, so if you have a minute and are so inclined, please “like” and “re-post/re-tweet.)

REINING IN CALIFORNIA’S OUT-OF CONTROL LEGISLATURE:  Last week I linked to Bill McGurn’s Wall Street Journal op-ed on our ugly situation here in California.  If you couldn’t get behind the paywall, I’ve included the text of his piece below.  (By the way, if you haven’t done so already, please sign our cute little petition.  You don’t need to be a Californian.)

Making Discrimination OK Again:

The losers in a 2020 California referendum are back again with a sneakier version.

by William McGurn – Wall Street Journal

January 1, 2024

Do they ever give up? Those looking to divvy up Americans by race, that is.

In California they tried to get race preferences approved in a 2020 referendum, but voters rejected it 57.2% to 42.8%. This was a stunning rebuke, not only because the rejection came from residents of a blue state but because the losing side had outspent opponents something like 14 to 1.

In 2023 the Supreme Court weighed in with a landmark ruling that barred colleges from treating people as members of a racial group instead of as individuals—and cast constitutional doubt on all race-based preferences. “Eliminating racial discrimination means eliminating all of it,” Chief Justice John Roberts wrote. Couldn’t be clearer, right?

Not in California. Undaunted state Assemblyman Corey Jackson is pushing a bill called ACA7. It takes aim at the state ban on race preferences that voters put in the constitution in 1996 when they passed Proposition 209. Californians reaffirmed Proposition 209 three years ago at the ballot box.

The language the voters agreed to and the activists hate reads as follows: “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.”

Unlike the 2020 effort, the new bill would leave that language intact. Instead, it would add a provision allowing the governor to create “exceptions.” Effectively that would gut the ban.

Apparently, the lesson the advocates of state-sponsored discrimination have taken from their defeat is that if at first you don’t succeed, try something sneakier.


GRUMPY ECONOMIST:  I should have posted this a few days ago (before Gay resigned at Harvard), but I forgot:  Fire Gay for the right reasons.

WORD IS GETTING AROUND!:  “Making Discrimination OK Again:  The Losers in a 2020 California Referendum Are Back Again with a Sneakier Version” by the WSJ’s Bill McGurn.

If you haven’t signed the petition, please consider doing so.  You don’t need to be a Californian.

And if you have a X/Twitter account, this one in tagged to Senate leaders and Gavin Newsom.  By liking and/or retweeting, you’re giving them your opinion.


IOWAHAWK:  Before President Polk went to bed on December 28, 1846, he wrote in his diary, “Nothing much happened today.”  In fact, he’d signed into law the bill that made Iowa our 29th state.  Happy Birthday, Iowa.  I think you’re something.

I NEED MORE HELP TO STOP THE CALIFORNIA LEGISLATURE’S POWER GRAB:  Last week, I asked Instapundit readers for “X/Twitter” help in opposing the California legislature’s new effort to gut Prop 209.  And you came through!  Thank you to all who helped!  You are terrific!

I have another request.  Mercifully, it still won’t cost you a nickel.  (If this turkey of a bill makes it to the ballot, I will start asking for money then, but we stand a decent chance of stopping it in the California Senate on a shoestring budget.)

Our “NO on ACA7” PETITION needs at least 25,000 signatures to get noticed.  And we’re probably going to need a lot more.  Fortunately, we have a while. Today is our first earnest day of collecting them.  You don’t need to be a Californian to sign.  (But if you are a Californian, please be sure to include your zip code.  In the past, some legislators have asked us for the number of signers from their district’s zip codes.)

If you can also share the petition with your friends or via social media that would be terrific.

For those of you you haven’t been following this, Prop 209 amended the state constitution in 1996 with these words:  “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 ….”  California’s deep-blue legislature has been gunning for it since.  They tried to get the voters to repeal it three years ago with Prop 16.  But Californians stunned them by overwhelmingly voting to keep it.  It was a real David and Goliath moment; we won despite being outspent more than 14 to 1.

It’s surprising to me that they are trying again so soon after that defeat.  But I guess I should have seen it coming.  The report of the California Task Force on Reparations, which was released earlier this year, called for Prop 209 to be gutted.  It stands in the way of their proposals.  Right on schedule, the Assembly voted for ACA7.

The new effort is trickier.  Instead of attempting an outright repeal, it creates a procedure under the governor can make “exceptions.”  All Gov. Newsom (and future governors) will need is to be able to point to (or create) “research” showing that preferential treatment would be a good thing.  But in a world in which “scholarly” research tells us that men are women and women are men, that limitation is not worth a red cent. (Bumped.)

MERRY, MERRY:  “Keeper of Christmas.”