MY CUTE LITTLE LAW SCHOOL IS GOING DOWN THE TUBES:  No, I didn’t plant this sad story about the University of San Diego.  I didn’t know about it till it was published.  But if the author had consulted me I could have given him details that would have shown the situation is much worse than his article depicts.

RICHARD SANDER:  “Even Liberals Should Be Skeptical of Racial Preferences in Higher Education.”

NEWS YOU CAN USE:  This year’s Mother Goose Parade has been cancelled due to staffing and supply chain issues.

THEY HAVE THE MONEY ON THEIR SIDE; ALL WE HAVE IS ON OUR SIDE IS FUNDAMENTAL FAIRNESS:  “Harvard Students Get $2,700 for Pro-Affirmative Action Rally at SCOTUS.”  It is one of the weirdest myths in the world that the left is impecunious, while the right is rolling in dough.  Especially with the race and sex issues I tend to deal with, the opposite is true.

CALIFORNIA THWARTED:  California’s attempt to prevent the federal government from contracting with private companies to build and staff immigration detention centers failed in court.

(A few years ago, when the Commission on Civil Rights was inspecting an immigration detention facility run by a private company, my progressive colleagues were very surprised to find out that the place was actually pretty nice.  It was hilarious … maybe the most fun I ever had on the Commission.  For some reason progressives think that, because these private companies are “for profit,” they are scary.  They don’t seem to realize that prison guards and their unions are “for profit,” too.  At some point, we all are.  I don’t know very many people who would continue to do their job if they weren’t being paid.)

HOT!!  AND IMHO VERY IMPORTANT!!:  Here is my “AGENDA FOR CONGRESS” essay in a form that is not behind a paywall.  It’s all about what Congress should do if either (1) the Supreme Court finally holds race-preferential admissions to be illegal; or (2) it doesn’t.

It won’t matter what the Supreme Court does if the structural supports for race-preferential admissions are allowed to remain in place.  Please take a look at the article (if you didn’t already read it in the New Criterion).  Send it to your Congress critter … or your cousin from Peoria. It will likely take years to get this done either through legislation or litigation, but a useful first step is to get GOP Members of Congress and other conservatives familiar with the recommendations.

(If you subscribe to the New Criterion, try this version.)

MOLEHILLS:  The San Diego Union Tribune reports story about a UC-San Diego lecturer who is thought to have said the wrong thing concerning a group of Spanish-speaking men talking loudly outside his classroom.  The quote at the end of the story got me:  “‘Everyone agrees that what the professor did was racist,’ said Sky Yang, president of Associated Students at UCSD.  ‘There is a split among students over whether he should be fired or whether he should stay and be re-educated.  It seems that some want to give him a second chance because he apologized quickly.'”

WHY ARE STUDENT TEST SCORES PLUNGING?:  Maybe it’s not just covid.

IF YOU’LL BE IN SOUTHERN CALIFORNIA IN NOVEMBER:  On November 15^th, Wilfred “Bill” McClay is coming to the University of San Diego to deliver the annual Joan E. Bowes Lecture.  Bill is the author of a splendid history of the United States—Land of Hope: An Invitation to the Great American Story.  If your children, nieces, nephews, grandchildren, or teens hanging out on the street corner near you are being taught in school that our country is the Great Satan, this might be a good book for them. It’s make the effort to be fair; it’s not a fairy tale.  But the truth is epic.

Bill will be speaking at USD on “Freedom of Speech versus Freedom of Expression.”  The lecture is free, but registration is required.  There will be a reception, so you’ll get a chance to speak with Bill.

This is our annual lecture by a conservative speaker … an official moment of sanity at an otherwise woke university.

WAPO on CORPORAL PUNISHMENT:  Progressives hate any kind of school discipline.  They complain bitterly that school suspensions (even brief in-school suspensions) make things worse by keeping students out of the classroom and hence causing them to fall behind in their education.  But when they are reminded that’s precisely why our grandparents thought a quick swat on the buttocks was the better way to deal with misbehaving younger children, they freak out.

I am not here to advocate for corporal punishment.  I teach law students (most of whom could best me in a fair fights), so I have no special insight into how to maintain an orderly classroom of young children.  But here is the thing I cannot abide:  WAPO tells us that “disabled” students are subjected to more corporal punishment than non-disabled students. Quelle surprise!  We define “disabled” to include students with behavioral disorders.  How do you identify students with behavioral disorders?  They are the ones who have misbehaved a lot in the past, of course!  So what has WAPO told us?  Student who misbehave a lot get punished a lot!  Brilliant.

One way or another, teachers have to maintain order in the classroom.  Otherwise, learning won’t take place.  Maybe it shouldn’t be corporal punishment.  Maybe it shouldn’t be suspensions.  But what’s it going to be?

MARK PERRY IS A TREASURE:  He is a one-army against wokeness.  I’ve lost count of how many Title VI and Title IX complaints he has filed.  They aren’t all successful.  (This is the Biden Administration, you  know.)  But even during the worst of times, he scores some wins.  Ithaca College Scrubs Minorities-Only Medical Education Program After Complaint.

JESUITICAL:  I learned yesterday that 14 Senators, 48 Congressmen, and three Supreme Court Justices attended Jesuit schools or colleges.  That’s a pretty good record for those schools.  Alas, their traditional reputation for academic rigor has been on the decline for a while (while their reputation for mindless indoctrination is on the upswing).  Today, most are at least as woke as the rest of schools and usually more so.  For example, at Phoenix’s Brophy Prep, it isn’t enough to require teachers to be “anti-racist,” even the weight room assistant has to be anti-racist.

Parents of public-school students have been birddogging our out-of-control public schools for a while now, and they’ve had some successes.  They often have weapons that parents of private-school students don’t—Freedom of Information Acts and open-meetings laws.

Dan Maher has undertaken to help expose Jesuit schools.  If you’re interested in the subject, check out his website here and his Substack here.

Dan quotes Kenneth Clark at the top of his web site: “Civilization requires confidence, confidence in the society in which one lives, belief in its philosophy, belief in its laws ….”  The truth is “however complex and solid it seems,” civilization is “actually quite fragile, it can be destroyed.”    Alas.

I’D HAVE DONE IT FOR LESS:  The University of Illinois paid Ibram Kendi $35,000 for a 60 minute Q & A.

COUNTDOWN TO THE HARVARD/UNC ORAL ARGUMENT:  My fun-loving sister asked me if I planned to have a good time on the 31^st.  I thought, “Yes!”  But then I realized she was talking about Halloween and not the Supreme Court oral arguments in Students For Fair Admissions v. Harvard College and Students For Fair Admissions v. UNC.

(FYI:  The Heriot sisters break down this way:  She is the rock ‘n’ roll big sister; I am the law nerd little sister.  No one ever mixes us up.)

But back to the Supreme Court:  In the abstract at least, one of the best arguments that race-preferential admissions policies should not survive strict scrutiny is this one:  The public strongly opposes them.  You’d be shocked at how clear the polls have been on this for many decades.

Why do I think that’s a good argument (even though the Court is extremely unlikely to ever publicly credit it)?  The whole point of strict scrutiny is to put the strongest possible thumb on the scale against approving race discrimination. If the public favors a racially discriminatory law or policy, that shouldn’t count for squat.  The Court must nevertheless satisfy itself that the interest the law or policy serves is compelling and that the law or policy is narrowly tailored to achieve that purpose.  But the other way around is different.  If the public opposes the discriminatory law or policy and is instead on the side of race neutrality, it’s not easy to see how nine judges can cast themselves in the role of the High Priests of Justice and drag us kicking and screaming into a policy that has never been adopted by our elected officials.  If unelected elites can, consistently with the Constitution, impose race discrimination on an unwilling population, it’s time to lock your doors and bolt your windows.

HOT! HOT! HOT TAKES!:  At long last, Jim Allan’s review of the Heriot-Schwarzschild book, A Dubious Expediency:  How Race Preferences Damage Higher Education has been published in Constitutional Commentary and is available on SSRN.  The review is titled “A Quota By Any Other Name.”

Maybe, just maybe, it will cause you to want to rush out and buy the book.

IF YOU’RE IN ONE, I’D ADVISE YOU TO GET OUT:  On Leaving Professional Organizations.

THE RACE GAME:  The New Criterion’s October issue contains a great bunch of essays as a part of a symposium entitled “Affirmative Action and the Law.”  My contribution is behind a paywall, but I include it in case you have a subscription.  I’ll be able to post it without the paywall in a few weeks.  In the meantime, here are links to the whole shebang,* most of which is not behind the paywall:

Introduction:  “Adjudicating the racial racket.”

Frank Resartus, “The affirmative action regime.”

Gail Heriot, “An agenda for Congress.”

James Piereson, “The Voting Rights Act after six decades.”

John Yoo and Wen Fa, “Facially neutral, racially biased.”

Glenn Harlan Reynolds, “Affirmative action, democracy & the Supreme Court.”

*I just looked up the word “shebang.”  It means “a rustic dwelling or hut.”  I had no idea.  I have never heard it used in any context other than “the whole shebang.”  It’s funny how a familiar word or phrase–one that you’ve been hearing all your life–can suddenly slap you in face and say, “You don’t know who I am at all, do you?”

DO REPUBLICANS CAUSE HURRICANES?:  The media can’t wait to blame DeSantis for Hurricane Ian.  Of course, that’s nothing new.  Bush got blamed for Katrina.  And the recent report of the U.S. Commission on Civil Rights put the blame on Trump for Hurricane Maria.  What’s interesting is how the blame gets assigned to the federal, state, or territorial level depending on where the Republicans are.

DOESN’T THIS MEAN THAT CNN IS MISGENDERING THIS POOR DOCTOR?:  The doctor who was billed as the first openly transgender officer in the Army is indicted for passing confidential information to the Russians.  CNN forgot to mention the part about the doctor’s being a transgender celebrity in its article.  (The Washington Free Beacon didn’t forget.)

AND THERE WAS FAMINE IN THE LAND:  On this day in 1898, Soviet agronomist Trofim Denisovich Lysenko was born in what is now Ukraine.  During his lifetime, he was the recipient of numerous accolades, including the Hero of Socialist Labor award, the Stalin prize (three times), and the Order of Lenin (eight times).  In this respect, he was rather like America’s Green Revolution agronomist, Norman Borlaug, who received more than a few prestigious awards too.

The crucial difference between Borlaug and Lysenko was that Borlaug’s methods increased agricultural production worldwide, saving the lives of hundreds of millions, if not a billion, people.  Lysenko, on the other hand, was a nut case whose crackpot theories contributed to the slow, agonizing death by starvation of many of his countrymen.

Lysenko rejected Mendelian genetics, which he denounced as bourgeois.  British biologist S.C. Harland described him as “completely ignorant of the elementary principles of genetics and physiology.”  His pseudo-scientific theories included the belief that seeds should be planted as close together as possible because plants of like character will not compete with each other.

But Stalin liked him and that’s what counted.   Stalin really, really liked him, so farm workers were forced to do his bidding, no matter how much they realized it was folly.

Prior to Lysenko’s rise, the Soviet Union was home to some of the best geneticists in the world.  But if they criticized Lysenko, they were rounded up by the NKVD and imprisoned, sent to psychiatric hospitals, or (in several cases) executed as enemies of the state.  Hundreds, if not thousands, suffered this fate. It therefore took that much longer for his many errors to be corrected.

If you’re wondering why Stalin liked him so much, two things come to mind:  Lysenko was born to a peasant family and that sort of pedigree was important to getting ahead in the Soviet Union.  It was their version of affirmative action.  And he was a fervent communist, which was as necessary to getting ahead back then as being a fervent supporter of “diversity, equity, and inclusion” is today.   I suppose you can make of that what you will.

HURRICANE IAN:  Progressives can’t wait to accuse Governor DeSantis of failing the hurricane test.  Good luck to him and to the people of Florida.

(The U.S. Commission on Civil Rights’ recently released report on Hurricanes Harvey and Maria was supposed to be a take down of Trump’s performance in 2017.  It didn’t do a particularly effective job at that.)

AARON SIBARIUM:  Taking woke Starbucks to court. 

ARGH … I AM SO TIRED OF THIS:  I did a post on Wednesday announcing the U.S. Commission on Civil Rights’ newest report, which compares the federal government’s response to Hurricane Harvey in Texas and to its response Hurricane Maria in Puerto Rico.  The Hill has now published a short piece on the report.  In it, The Hill states that “Hurricane Harvey killed dozens of people, but Maria killed nearly 3000.”  This is utter baloney (and that’s the nicest word I can think of for it).

As I detail in my Commissioner Statement (which is part of the report), this is an elementary error:  Wildly different methods for counting deaths were used for the two hurricanes.  Both methods are useful, but when making comparisons, apples must be compared to apples and oranges to oranges.

When Maria’s deaths were measured using the “direct death” method, the count was 64, slightly less than Harvey’s 68 (using more or less the same method).  But Puerto Rico preferred to use the “excess death” method, which looks for higher than normal death rates over the course of the six-month period following a disaster, for its official count.  That method yielded a count of 2975 for Maria.  No such study was ever done for Harvey, so we don’t know what the comparable numbers would have been.  Alas, journalists don’t bother to read (or apparently even skim) the things they write about.  And God forbid that they should make an effort to look at the dissenting opinions contained in a report.  In this case, if the journalist had looked at my Statement, she would have been saved an error.

CANADIAN SCHOOL SAYS BIOLOGICAL MALE TEACHER WHO INSISTS ON WEARING CARTOONISHLY LARGE FAKE BREASTS IS PROTECTED BY LAW:  Ed Driscoll posted this yesterday, but I want to add this:  (1) Make sure you see the pictures … this is indeed Weimar Republic stuff; and (2) I don’t know what Canadian law is on this subject, but Title VII here in the USA would not have required this result.  Here’s why:  All Justice Gorsuch’s opinion in Bostock v. Clayton County did was say that if a woman is allowed to wear a skirt and employ feminine mannerisms, then a man must also be allowed to do so, too.  But I don’t believe for a moment that an employer would allow a women to teach a class wearing cartoonishly large fake bazongas breasts complete with nipples.

HOT! HOT!:  The U.S. Commission on Civil Rights released a report today about racist hurricanes … or rather about how the federal response to Hurricane Harvey in Texas and Hurricane Maria in Puerto Rico was discriminatory.  My response–the first line of which is “Have mercy“–is here.