Author Archive: Gail Heriot

HELP WANTED:  Conservative or libertarian lawyer, 1 to 5 years experience, D.C. area.  Must be fearless, principled, and able to deal politely individuals with very different views of the world.  Must be able to talk about issues of race, ethnicity, religion, and sex without getting a deer in the headlights look and trying to hide under a table.  Sense of humor a plus for this job … and for everything else in life.

IF ONLY THE SUPREME COURT CAN AVOID ACTING LIKE A PEANUTS CARTOON: I am optimistic about the two race-preferential admissions cases before the Supreme Court—Students for Fair Admissions v. Harvard and Students for Fair Admissions v. University of North Carolina. Of course, it may be that the Supreme Court will do a “Lucy with the football” number, but … well … for now at least I remain optimistic.

Note that amicus curiae briefs in support of SFFA aren’t due till early May. There’s still time for you to write one if you are so inclined. I’ll be working on mine in the month of April.

Here’s the amicus curiae brief that Peter Kirsanow and I filed at an earlier stage in the proceedings. Our new brief will expand on the themes in it and add one or two more.

MARK PERRY:  “Let’s Work Together to Challenge the Selective Double Standard for the Enforcement of Title VI and Title IX in Higher Education.”

Strong majorities of Americans oppose race and sex discrimination and reject the notion that it’s all a matter of whose ox is being gored.  But they don’t speak up.  Take a look at what Mark Perry has to say about filing Title VI and Title IX complaints.  Sometimes they work, and the college or university backs away from the discrimination.  Always they remind the college or university (and the federal bureaucracy) that we’re not all onboard with the program.

WE ALL PREFER WORKING TOILETS: The Department of Homeland Security Inspector General is calling for the “immediate relocation” of all detainees from an ICE facility in New Mexico on account of water leaks, clogged toilets, and mold. ICE strongly opposes this recommendation.

I can’t say how bad things are at this particular facility. But I suspect that if clogged toilets cause immigration detention facilities to be evacuated, we’re going to see a sudden spike in clogged toilets.

For what it’s worth, when my fellow commissioners on the Commission on Civil Rights and I made an official visit to immigration detention facilities, one of the facilities we saw was surprisingly nice. The other, though hardly lovely, was clean and orderly.   One of the detainees at the second facility told us that if they would let him out on Sundays, he wouldn’t mind staying indefinitely. My progressive colleagues were … uh … a bit surprised. It was amusing.

MY “ROOTS OF WOKENESS” ARTICLE MAKES IT INTO THE NEWSPAPERS; THAT’S PRETTY UNUSUAL FOR A LAW REVIEW ARTICLE:  I don’t think this version is behind a paywall.  The WaPo version (by George Will) is.

MAYBE IT WASN’T WORTH IT FOR A FREE TRIP TO NYC:  I was the official naysayer for a pre-recorded television show that will be aired on CNN+ next month.  The subject was race-preferential admissions.  I barely got a word edgewise.

I’m not sure how many college students were in the audience, but, if memory serves, it was 50 to 100.  If it was 100, I was outnumbered 103 to 1, since all of them purported to favor race-preferential admissions policies.  Don Lemon was the host, and Ibram Kendi, a woman from Tufts, and I were the so-called experts.  Most of the talking seemed to come from the audience.

One student’s statement was  particularly silly.  He said that as an Asian American he didn’t mind being turned down by Harvard on account of his race and that most Asian Americans support this kind of affirmative action.  I countered with the story of the defeat of Proposition 16 in which Californians overwhelmingly rejected an effort to amend the state constitution to allow California state universities to go back to race-preferential admissions.  I noted that Asian Americans in California were overwhelmingly on my side in that campaign.  Most of our most dedicated volunteers were Asian American.

The student responded by saying that it was RICH Asian immigrants who opposed Proposition 16.  Alas, I never got a chance to respond.

For the record, that is [expletive deleted] absurd.  We were outspent 16 to 1, and we still killed ’em.  If there were any rich Asians backing our campaign, they sure didn’t make themselves known.

In this article, Alex Heideman and I catalog the electoral and polling data on race-preferential admissions.  Bottom line:  Americans oppose them.  And the more clearly the question is presented, the more clearly they register their opposition.

I did get some awesome Indian food while in NYC.

DOULAS AND MATERNAL MORTALITY: In the modern era, it has been rare for American women of any race to die in childbirth. But at least on paper the American death rates look worse than those of many other developed countries. And there are racial disparities—with black women faring the worst, followed by whites, then Hispanics, then Asians. This has been getting a lot of attention on the Left (except the part about Hispanic women doing better than white women). Biden gave a hat tip in his SOTU address toward more spending on maternal health.

How will the money be spent? Much of the public discussion focuses on “doulas.” A doula is an individual who assists in the course of a pregnancy and birth by giving the expectant mother emotional support and advice on how to have a safe, successful pregnancy. She may also assist a midwife in delivering the baby, but generally does not have the training to be a midwife.

The NYT ran a puff piece on Wednesday advocating the use of “doulas” as a partial solution to the maternal health problem. Similarly, the Service Employees International Union (SEIU) lobbied furiously and successfully for a California law “creating a workgroup on Medi-Cal coverage for doulas.”

I’m not convinced that’s really the ticket. I know of no evidence that doulas can help prevent maternal deaths. I think my dissent from the U.S. Commission on Civil Rights’ report on this subject from a few months ago can shed more light on the subject.

THIS CONCEPT HAS GOTTEN WAY OUT OF HAND: Micro-aggressions. Micro-aggressions. Micro-aggressions. Micro-aggressions. I pity the young people who are being trained to be traumatized by so-called micro-aggressions. It’s not so easy for them to understand that the folks peddling this stuff are doing them a massive disservice.

Why has the concept become so fashionable? I think The Roots of Wokeness tells the story pretty accurately. Hint: Always follow the money.

OH JOY, A MORE POLITICALLY ACTIVE UNIVERSITY OF CALIFORNIA … THAT’S JUST WHAT AMERICA NEEDS: At the University of California, there is a movement afoot to allow academic departments on campus to issue or endorse statements on political issues in the name of the department. Currently, this would be a violation of university policy. Individual faculty members can freely comment on whatever they want, but the university itself and its various offices and departments are supposed to be politically neutral.

Some faculty members are (rightly) pushing back. And they are seeking UC faculty members to join in their letter of protest. Definitely check it out if you’re a UC faculty member (but take a look even in the far more likely event that you’re not). It’s nice to know that not everybody at the UC is relishes the idea of academic departments joining the Twitter mobs.

SCHOOL DISCIPLINE FARCE: A Georgia school superintendent recently stated that his “goal is to have zero [racial] disproportionality” in school discipline. But as long as students from different racial groups misbehave at different rates, we’re going to have (or at least we should have) disproportionalities in school discipline.

There is reason to believe that the Biden Administration will explicitly re-institute the Obama Administration’s deeply wrongheaded school discipline policy soon.

MORE ON THIS WEEK’S TENURED LOON–ZEUS LEONARDO: I get the fact that both progressives and conservatives have their nut cases. I get that the Age of the Internet makes it possible for nut cases to be more visible than they were in the Age of Broadcasting. That’s the price we pay for the open discourse the internet allows for. What annoys me is that so many of their nut cases get tenured professorships at prestigious universities, and I have to pay taxes to support them.