Author Archive: Gail Heriot

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.

HOT! HOT! HOT!:  My City Journal Essay on ACA7–the California’s newest effort to legalize race preferences.  It never ends.

I HAVE BEEN SPENDING WAY TOO MUCH OF MY TIME HAVING TO FIGHT ACA7:  Alas, that means I have almost no time to post.  But it’s Saturday evening, so I have a little bit.  My problem is that I only know one topic these days.

As loyal Instapundit readers know, ACA7 is another effort to gut Proposition 209, which amended that California constitution in 1996 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.

In 2020, our deep-blue legislature floated a referendum to repeal Prop 209.  The effort–known as Prop 16–went down in flames with over 57% of voters opposing the repeal (even though my side was outspent more than 14 to 1).

I figure we can win this again at the ballot box if we have to, but I would much rather not have to spend a year of my life on this.  Been there, done that twice now–in 1996 and again in 2020.

Part of the reason for my optimism that this can be defeated in the state senate is fact that ACA7’s chief sponsor keeps referring to ACA7 as necessary to effectuate his plans for reparations.  That can’t possibly make it popular with California voters.  Opposition to reparations (especially in a non-slave state for goodness sake) is very strong.  Maybe, just maybe a sufficient number of state senators will see that.


It will help, of course, if you like and retweet my reparations tweet above.  The tagged senators may look ay it more closely if they see that it’s getting attention.


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.