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. 

TRANSGENDER LOGIC PUZZLES:  Last week, I linked to the very brief Title IX comment that Pete Kirsanow and I submitted to the U.S. Department of Education.  It outlines why we think the Biden Administration does not have the power to require federally funded schools to assign anatomical boys who identify as girls to the girls’ bathrooms, locker rooms and showers (and vice versa).  We believe schools have discretion here.

Since then, I’ve been asked what would happen (under the analysis in our comment) if Congress were to amend Title IX to prohibit discrimination on the basis of both sex and gender identity, but make no other change to the law.

Answer:  It would make it illegal to treat anatomical boys who identify as girls differently from other boys.  Similarly, it would make it illegal to treat anatomical girls who identify as boys differently from other girls.  For bathrooms, locker rooms, and showers, that means it would be illegal to separate transgender students from students with the same sex who are not transgender.  That’s the opposite of what transgender activists want.

Title IX has a section that specifically empowers schools to maintain “separate living facilities for the different sexes.”  That’s what authorizes schools to have separate bathrooms by sex in the first place.  Congress could amend that section to include gender identity as well.  That would allow schools the discretion to separate students of the same sex (but different genders) if that’s what it wants to do.  But it still wouldn’t give the activists what they want–a requirement that schools assign transgender students to the facilities they identify with.

If Congress wants to require schools to separate students by gender rather than sex for bathrooms, locker rooms and showers, it should have to repeal the part of Title IX that specifically empowers schools, in their discretion, to maintain “separate living facilities for the different sexes.”

Or at least that how our analysis comes out.

THE STORY OF THE FALSE ACCUSATIONS AT BYU IS WORSE THAN I REALIZED:  Jesse Singal:  “How the Media Fell for A Racism Sham.”  Bill Otis:  “A Spasm of Deceit Leads to a Spasm of Cowardice.”

HOT! HOT! HOT!:  Here’s the legal argument for why the new Biden transgender bathroom, locker room, shower proposals (and the Obama Era guidance on the same issue) are contrary to law.  This 4-page comment was submitted by Pete Kirsanow and me to the U.S. Department of Education in response to its Title IX proposals.  It’s just a sketch of the argument … almost more a logic puzzle than anything else.  If the issue ever reaches litigation, it will need to be fleshed out.  But I think it’s definitely worth a read.  (Note that Justice Gorsuch’s quirky opinion in the the Bostock case helps rather than hurts our analysis.)

WE’RE MAKING PROGRESS:  “Google, IBM Quietly Backtrack on Race-Conscious Fellowships in Wake of Free Beacon Reports.”

SUE ‘EM … ALAS, IT’S THE ONLY WAY:  “Lowery v. Texas A&M University System:  The Beginning of the End of DEI Discrimination?“

REAL CLEAR INVESTIGATIONS:  “How Blatant Anti-White Racism Won Acceptance in Elite America.”

JEFF JACOBY ON BIDEN’S STUDENT LOAN FORGIVENESS:  Congress should sue.

SWEDISH ELECTION:  “Crime Surge Put Sweden’s Social Democrats on Brink of Defeat.”  (That’s with 94% of the votes counted.)

DAVID DEAVEL:  An American doesn’t have to be a lover of “things royal” to feel sadness at the death of Britain’s long-time monarch.

AARON SIBARIUM:  Microsoft Fellowship Caps the Number of White and Asian Applicants.