OFF THE RAILS:  In 2020, during the “Time of Anxiety” over George Floyd’s death, the California Legislature created a Task Force on Reparations.  In doing so, it appeared to me that the legislators were violating a fundamental rule of governance:  Never create a commission to “study” a controversial problem unless you are relatively certain that you’re going to want to follow its recommendations.

Reparations for African Americans in California are an unusually bad idea.  To begin with, this was never a slave state.  And if the reparations are not for slavery, but rather for racial discrimination over the course of California’s history, then the problem is that other racial and ethnic  groups have suffered from mistreatment at least as much (and in the case of the Chinese more).  Yet, from the start, the Task Force appeared to be stacked in favor of reparations.

When the Task Force’s report came out in June of last year, it did indeed back extensive reparations. There were some awkward moments, but it looked to me that Governor Newsom realized all this had been a mistake and was going to sweep the report under the rug.

I’m starting to think that maybe I was wrong about sweeping this under the rug.  Or rather I was right in the first place:  It’s very hard for a legislature to turn away from the recommendations of a task force it created.

Recently, the Senate Judiciary Committee voted to create a “Freedmen’s Agency.”  Shades of Nuremberg:  The Agency will be required to have a “Genealogy Office,” which will be charged with the task of tracing the pedigree of those who apply for reparations to ensure their eligibility.  If the bill passes the Senate and Assembly and it is signed by the governor, the new agency will violate another fundamental rule of governance:  Never create a bureaucracy unless you want it to have the power to carry out its mission.

I have a hard time imagining that this will end well.

In any event, here are some tweets that I could use some “likes” and “retweets” on.  If you have a Twitter/X account and have a minute, please help out.

Much to my surprise, the CA Senate Judiciary Committee is moving forward on the recommendations of the Reparations Task Force. This seems politically unwise of the Dems. Calif was never a slave state, and many groups, not just African Americans, have suffered discrimination here. https://t.co/tELkNLdXyl

— Gail Heriot (@GailHeriot) April 22, 2024

@SenatorUmberg has gone off the rails. He just voted to create a cabinet-level “Freedmen’s Agency” to administer reparations. Shades of Nuremberg: The Agency will be required to have a Genealogy Office to confirm one’s eligibility for reparations. pic.twitter.com/Z8QlYIuVYc

— No on ACA-7 (@NoACA7) April 22, 2024

@BenAllenCA has gone off the rails. He just voted to create a cabinet-level “Freedmen’s Agency” to administer reparations. Shades of Nuremberg: The Agency will be required to have a Genealogy Office to confirm one’s eligibility for reparations. pic.twitter.com/fJ3Gsl22DS

— No on ACA-7 (@NoACA7) April 22, 2024

With luck, we’ll have some other (non-Twitter) ways to send a message to these senators soon.  Right now there’s an immediate need to get their attention any way we can.

IF ONLY IT REALLY WERE NEWS:  The internet is treating this as news:  The EEOC is suing Sheetz convenience stores, because Sheetz conducts criminal background checks on its job applicants and then declines to hire the ones who are criminals.  The EEOC concedes that Sheetz is not motivated by a desire to exclude African American men, but argues that because a higher percentage of African American men than of white, Hispanic, or Asian men, or of women have criminal records, Sheetz is “discriminating” against African American men within the meaning of Title VII.

In other words, Sheetz is REQUIRED to hire felons even if it doesn’t want to.

Welcome to the world we live in.  The EEOC has been doing this for a long time.  It’s crazy.  But that’s only because disparate impact liability is crazy.  Read about it here (including a long discussion of liability for declining to hire convicted felons).

Martin Luther King looked forward to the day that his children could be judged by the content of their character rather than the color of their skin.  Alas, the content of our character (as revealed by our criminal record) is off limits in hiring.  But hiring by the color of our skin is considered virtuous.  Weren’t we supposed to have made a lot more progress on this by now?

I am so tired of lily-livered Members of Congress who get that deer in the headlights look when you point out how that they could actually stop this nonsense.  They don’t even try.

P.S.  If you are concerned that felons need jobs or else they will wind up in prison again, I agree that’s a problem.  It’s just not a Title VII problem.  Members of the 88th Congress would have choked on their lunch if they knew how the EEOC would mistreat employers who just want to avoid hiring felons.  The federal government actually has a program under which employers get a tax break for hiring ex-cons.  Such a program makes much more sense than the EEOC’s approach, because it is voluntary.  Some jobs present fewer temptations than others.  Some ex-cons are better bets than others.  A tax subsidy allows employers who are in a good position to hire ex-cons to self-select.

TODAY IN HISTORY:  It’s Hitler’s birthday today.  May he rot in hell along with his fellow gangster dictators.  ¡No Pasarán! shares excerpts from Paul Johnson’s Modern Times to show that the notion that Hitler was on the “right” while Marx, Lenin and Stalin were on the “left” makes no sense.  They were cut from the same mold.

I NEED ANOTHER FAVOR:  I know I’ve been a terrible blogger.  Loyal readers know why:  I am all wrapped up with trying to defeat Assembly Constitutional Amendment 7 (“ACA7”)–the newest effort to gut the California Constitution’s prohibition on preferential treatment based on race, sex, or ethnicity (put there by Proposition 209 in 1996).  ACA7 is currently pending in the Senate where my fellow volunteers and I  have a good chance to kill it.  If we fail, it will go on the November ballot and I will have to spend even more time on it.  (Ugh.)

If you’re interested in learning more, here is my essay for City Journal.

There is a dead simple thing you can do to help if you have a Twitter/X account.  Just like and retweet these two twits, tweets, … I mean posts.  I know it sounds absurd to think something like that can make a difference, but you’d be surprised.  The posts are “tagged” to the senators that we believe we have the greatest chance of persuading.  We only need six Democrats, and we already probably have two. I am encouraged that if we make a bit more noise, the Senate will find something some other way to torture their fellow Californians.

Our first such protest. For now, we target only Assembly Members who voted for ACA7. Please save us the trouble of future protests. Bury ACA7.@MHurtadoCA @Senator_Hurtado @SenatorAshby @AngeliqueAshby @SenToniAtkins @ilike_mike @SenMikeMcGuire @Steve_Glazer @BenAllenCA pic.twitter.com/06tFKRaCdm

— No on ACA-7 (@NoACA7) April 12, 2024

Assembly Member Cottie Petrie-Norris betrayed her voters. She voted for ACA7. She wants to give the governor the power to discriminate on the basis of race and ethnicity. We will hold her and those who voted with her accountable. We defeated Prop 16 just four years ago. We… pic.twitter.com/s4r3Gtj6gA

— Gail Heriot (@GailHeriot) April 13, 2024

Think of it this way:  If I fail to stop ACA7 in the Senate and it goes on the ballot, I will have to ask you for real money ($$$) to fight it.  I’m sure you don’t want that.  Let’s try to kill it now on the cheap.

On the other hand, if this gets taken care of before July, I will get back to writing my book full time (with a little time left over to blog).

((By the way, these are not the best photos of our little Orange County protest, but they are the ones tagged to the most Senators, so they are the best ones to like and retweet/repost.))

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.

@MHurtadoCA @senator_hurtado This is a map of the counties where Proposition 16 won and lost. In Kern County, 72% of voters were AGAINST, in Kings, 73.8% were AGAINST, in Tulare, 71.9% were AGAINST. ACA7 is just Prop 16 redux. Please vote NO. pic.twitter.com/B66qgSvc3s

— No on ACA-7 (@NoACA7) April 10, 2024

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.

Now that its sponsors have explicitly (and repeatedly) tied ACA7 to reparations, I suspect you couldn’t get voters to approve it even if it were the right thing to do (which it isn’t). Putting it on the ballot will only result in a harvest of bitterness.https://t.co/cE7hzrTJvb…

— Gail Heriot (@GailHeriot) April 4, 2024

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.

QUACK ALERT:  Two possibilities:  Maybe white racists make life so unpleasant for pregnant black women in the United States that they develop preeclampsia at higher rates than pregnant women of other races.  Or maybe, just maybe, there is a better explanation.  (See also my earlier writings on this issue.)

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.

DISPARATE IMPACT LIABILITY MADE NO SENSE THEN AND MAKES NO SENSE NOW:  On this day in 1971, the Supreme Court decided Griggs v. Duke Power Co.  Read this to understand just how wrongheaded that decision was.

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.

ACA7 is about clearing a path for REPARATIONS. We know that because its chief sponsor has said so—over and over again. Recently, the Black Caucus held a press conference to discuss its “2024 Reparations Priority Bill Package.” During that event, each caucus member was called… pic.twitter.com/mOBQsOdT59

— Gail Heriot (@GailHeriot) March 2, 2024

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 …

Yesterday, on the birthday of Dr.Huey P Newton we were able to be in community with his family, friends & allies to uplift his work & continue the legacy of service. I am proud to present to the Huey P Newton Foundation a check for 1,250,000 for the Center of Research & Action 🧵 pic.twitter.com/ZXcynQ2hYs

— Assemblymember Mia Bonta (@AsmMiaBonta) February 18, 2024

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:

The California Reparations Report claims that over 60% of Californians favor reparations. But that’s because they asked this LOADED question: “For the atrocities in California, I support/oppose the following specific measures for eligible Blacks.” That’s grossly misleading.… pic.twitter.com/3gBkknnKWk

— Gail Heriot (@GailHeriot) February 13, 2024

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.

I PRAY THAT THIS IS FAKE NEWS:  Beware, a Cheese Crisis Looms.

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.

Assembly Constitutional Amendment 7 (ACA7) would gut the part of the Cal Constitution that forbids preferential treatment based on race, sex, or ethnicity. It is one of many elements of the Black Caucus’s official “reparations package.”

Reparations are a very unpopular cause.… pic.twitter.com/lInE2NtKT0

— Gail Heriot (@GailHeriot) February 4, 2024

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.

MORE LAYOFFS NEEDED:

More people need to lose their jobs at the LA Times, starting with whoever is in charge of the Opinions section pic.twitter.com/uJMnsxcHXo

— Enguerrand VII de Coucy (@ingelramdecoucy) February 2, 2024

Sigh.

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.

I WISH I COULD GIVE A SPEECH LIKE THIS:  Instead Konstantin Kisin gave one.  Worth a listen.

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.)