ATTENTION CALIFORNIANS!! If you oppose the effort to repeal Proposition 209, please voice your opposition directly to your California legislators. Some talented tech guys have made it a bit easier to send messages via email to those legislators. If you use this link, I am told your zip code will cause your message to be directed to the correct member of each house.  If for any reason that link fails, this link goes to all members of the Assembly Appropriations Committee, which needs to deal with the bill next.

If you’re in a hurry, the software contains a pre-programmed message that you can send. But it’s even better if you have time to write your own message. Short messages (such as “Vote NO on ACA-5.”) are just fine.

If you don’t know what the heck I’m talking about, here’s the background: In 1996, California voters adopted Proposition 209. It amended the state constitution to read: “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 other words, Prop 209 is a matter of simple justice: The state should not decide who gets a job, who gets contract, or who gets into the most competitive university based on the applicant’s race, sex or ethnicity.

The California Legislature wants to engineer a repeal of 209. To get rid of it, however, they need 2/3 majorities in both houses and a vote by the people. We’re trying to prevent any of that from coming to pass.

(Not a Californian? These days, that means lucky you. But if you have friends or relatives here who are likely to want to oppose ACA-5, please alert them. Also we are working on a way for ex-Californians as well as people have never been within 100 miles of California to email our legislators. The more the merrier.)

THE AHMAUD ARBERY KILLING IS APPARENTLY BEING INVESTIGATED AS A FEDERAL HATE CRIME:  I argued in a brief that the federal hate crime statute is (in part) unconstitutional.  Congress relied on the 13th Amendment, which bans slavery, as the basis for its authority to punish hate crimes based on race.   That is (I hope obviously) a bit of a stretch.

None of this is to say that the Arbery killing is or is not a hate crime as defined in the Act.  But the constitutional issue is interesting, and the Supreme Court hasn’t addressed it yet.  Maybe it will someday

STOP THE REPEAL OF PROP 209:  The San Francisco Chronicle has (finally) printed a story (or rather an op-ed) on the California Legislature’s effort to engineer a repeal of Prop 209.  It’s by my friends Wen Fa & Alison Somin:  Preserve Prop 209:  Don’t Let Racial Discrimination Return to California.  (Alison is my former special assistant at the Commission on Civil Rights.)

MIKE GONZALEZ:  Why Fomenting Identity Politics Matters More to Democrats than Asian Americans.

California Democrats are poised to throw away a lot of Asian American votes.  Stay tuned.

AS TIME TICKS AWAY ON THE TRUMP ADMINISTRATION:  The publication of my most recent law review article has been (understandably) delayed on account of the lock down.  You can still read the draft– with the long title Title VII Disparate Impact Liability Makes Almost Everything Presumptively Illegal … It Gives the Federal Bureaucracy Extraordinary Discretionary Power, But What Does It Do to the Rule of Law?  And Who Benefits?  But I am getting pessimistic about whether it will catch the eye of anyone with a prayer of affecting this area of the law (in either large or small ways) … unless Trump gets re-elected.

JOHN ROSENBERG:  Another Scheme to Justify Racial Preferences. This piece gives some of the history behind California’s Proposition 209 and the current plan to repeal it.  Definitely worth a read.

THE CALIFORNIA LEGISLATURE’S EFFORT TO BRING BACK RACE AND SEX PREFERENCES: John Fund believes the Cal legislature’s effort to engineer the repeal of Proposition 209 may be a strategic blunder for Democrats.

Unusually high numbers of Asian Americans are neither Republicans nor Democrats. In California, about 40 percent are independents — the classic swing voter. In 2018, their swing to the Democrats was behind the party’s narrow capture of several ancestrally Republican House seats in Orange and Los Angeles Counties.

But they can swing back, as the special-election victory by Republican Mike Garcia for a vacant House seat in Los Angeles proved this month. Garcia won a ten-point victory, including a majority of independents.

Already Asian-American grassroots organizations are planning anti-ACA-5 town halls across the state (via Zoom).

It’s funny.  Most (though not all) of the national organizations that claim to represent Asian Americans are against us.  But they are usually funded by foundations, not by members.  Actual Asian Americans are opposing ACA-5 with a passion.  It really exposes the gap between the elites of the identity politics world and the people they purport to represent.

Read the whole thing.

THE CALIFORNIA LEGISLATURE’S EFFORT TO REPEAL PROP 209 NEEDS TO BE STOPPED:  The Boston Globe‘s Jeff Jacoby on The Success of Prop 209: California’s Colorblind Mandate Was a Noble Landmark, But Some Lawmakers Want to Tear It Down.  The non-paywall version is here.

(Relevant background material here, here, and here.)

STRIKING BACK AT THE CALIFORNIA LEGISLATURE’S PLAN TO REPEAL PROPOSITION 209:  Yesterday, we got great support from Jason Riley at the Wall Street Journal with a piece entitled In California the Dream of Racial Preferences Never Dies.  Thank you, Jason!

HAL ARKES & GEORGE DENT AT THE MARTIN CENTER:  Shouldn’t the assumptions behind race-based admissions policies be rigorously tested?

RENEWED CALLS TO REPEAL “STAND YOUR GROUND” LAWS: Maybe those calling for repeal should read my Commissioner Statement on “Stand Your Ground” laws. There’s a lot of confusion about these laws.

MY REAL CLEAR OP-ED: The California Legislature itching to repeal Proposition 209. But repealing the state constitution’s ban on race and sex preferences will end up harming the very students the legislators think they are helping.

Here’s the online petition opposing the California Legislature’s ACA-5. Currently, Proposition 209 prohibits the state from considering race or sex in deciding who gets a job, who gets into the most selective state universities, or who gets a public contract. If passed, ACA-5 will put the repeal of that provision on the ballot in November. Please sign if you can (if you haven’t done so already).

THE ROAD TO JONESTOWN: On this day in 1931, Jim Jones—the charismatic religious leader who instigated a terrifying mass murder-suicide—was born in Crete, Indiana.

Personally, I am not a big fan of charisma. I like my leaders—religious or otherwise—to be more on the sober side. Downright boring isn’t a deal killer for me. Exciting leaders tend to lead their followers to places they’d prefer not to be—like the remote jungles of Guyana.

Jones grew up poor with an interest in religion that was unusual for his age. Also an avid reader of Marx, Stalin, Mao, Hitler and Gandhi, he began attending gatherings of the Communist Party USA in 1951. Determined to become a great man, he asked himself, “How can I demonstrate my Marxism? The thought was, infiltrate the church.”

(more…)

RED ALERT… PLEASE SIGN THIS PETITION: Argh. California’s deep-blue legislature is trying to engineer the repeal of Proposition 209.  This is a real threat.

If you were around in 1996, you may recall 209.  It was the explosively controversial California voter initiative that amended the state constitution to read: “The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis or race, sex, color, ethnicity or national origin in the operation of public employment, public education, or public contracting.”

I co-chaired the campaign back in 1996. It is important to me. It hasn’t always been complied with, but it still packs a significant punch. That’s why the legislature wants to repeal it (though to do so they must put it to another vote).

Please, if you can, sign this petition. It already has over 24,000 signatures, but it’s going to need a lot more to get attention from our esteemed legislators.

With a little luck, I will have an op-ed coming out soon on this topic. I will also be blogging on it (a lot!) over the next few weeks.  (If you are interested in reading about some of the good Proposition 209 has done, read this.)

JOHN FUND:  Mail-In Ballots are a Recipe for Confusion, Coercion and Fraud.

HANS BADER:  “Media Darling Cuomo Mishandled COVID-19, Killing Thousands.”

PETER WOOD:  “The Collapse of the Fourth Estate.”  Explain to me how the NYT’s ridiculous essay by Nikole Hannah-Jones, The 1619 Project, can win a Pulitzer.  Or don’t.  I guess I already know.  The MSM manages to be both dangerous and ridiculous at the same time.

TITLE IX CRAZINESS:  I hate to say it, but this tweet by the Chair of the U.S. Commission on Civil Rights is unhinged.  She claims that prior to her birth one could rape students with impunity and asserts that the Department of Education’s new regulations will return us to those bad old days.

There was, of course, never such a time.  The traditional penalty for rape was death, but as a result of pressure from progressives many states were drifting away from the death penalty and opting instead for prison sentences by the 1960s.  Georgia, however, held firm.  In 1977, however, in Coker v. Georgia, the Supreme Court held the death penalty for rape to be unconstitutional.  It is worth pointing out that the Court’s conservatives dissented.

How regulations guaranteeing due process to individuals accused of sexual assault under Title IX can take us back to these mythical “bad old days” is beyond me.

.⁦@BetsyDeVosED⁩ presides over taking us back to the bad old days, that predate my birth, when it was permissible to rape and sexually harass students with impunity. Today’s students deserve better, including fair protections consistent with law https://t.co/Kxn5teeYnE

— Catherine E. Lhamon (@CatherineLhamon) May 6, 2020

“LAW PROFESSOR DEFENDS STAND YOUR GROUND LAWS”: Yes, I guess that’s what I did in the most recent report of the U.S. Commission on Civil Rights.

REINING IN THE ADMINISTRATIVE BEHEMOTH:  Mike Rappaport discusses one way to help restore the concept of separation of powers to the federal bureaucracy.

ON THIS DAY IN 1787: James Madison arrived in Philadelphia for the Constitutional Convention. He was early. And on account of late arrivals, the Convention didn’t get underway until May 29^th. But it’s likely he didn’t waste his time. The delay gave him the opportunity to explain his views to other early-arriving delegates in an informal setting—like the Indian Queen Tavern. (If there is a tavern more important than the Indian Queen to American history, I am unaware of it. But you are welcome to nominate one.)

“FAILING OUR STUDENTS IN A CRISIS”:  I see that over at the Law & Liberty blog, John McGinnis’s thinking is similar to mine.

About a month ago, the faculties of law schools across the country decided to grade students this semester on a pass/fail or credit/no credit basis.  The argument in favor of this was that the lockdown was putting students under a lot of stress.  Some were in living situations that make studying more difficult than usual.  And besides, students really wanted it.  Or at least many of them did; some preferred the opportunity to demonstrate what they’d learned.  (Faculty members tended to be even more enthusiastic about pass/fail than students—for reasons you will at least understand if you’ve ever graded a stack of 80 blue books.)

I voted against it.  Call me mean ol’ Professor Heriot if you will (or something worse).   On the other hand, I didn’t bother to argue the point in the zoom faculty meeting.  This was a train coming downgrade, and nothing I could have said was going to stop it.  Or maybe I was engaging in some self-interest of my own. Nevertheless, now that I am reading through the exams, I regret not putting my reasons on the record.

My two most important reasons for wanting to grade exams as usual were these:

1. Professors flatter themselves into believing that they make the light bulbs go on over students’ head during class through the sheer force of their brilliance.  But the reality is that the lion’s share of the learning occurs when students are under the pressure of exams.  Reading Week—the week during which students don’t go to classes—is the week students learn the most.  Classes are nice, but the professor’s most important function is to grade those $*&% blue books.  In a sense, colleges and universities sell discipline.  Take away the pressure to do well on the exams and a whole lot less learning occurs.
2. Law schools are all about training lawyers.  What are lawyers good for?  Well … they are supposed to be the ones people go to when they are in deep, deep trouble.  If you can’t take that kind of pressure, law is not the career for you.  (Mercifully, unlike some other jobs, practicing law seldom puts one in physical danger.)  By teaching students that when they are under more than the usual amount of stress they can’t be expected to hold up, we are teaching them that they don’t have to be their client’s last, best hope. They can fold.

Are there counter-arguments that should be considered here?  Of course.  Among them:  Since exams had to be given over the internet, exam security could be a problem (as it always is with take-home exams).  But I don’t think that’s enough to justify abandoning grades.  Might there be exceptional cases or an argument for weighing this semester’s grades less heavily than others in computing a student’s GPA?  Yes, I can see that.  But no grading at all?  That struck me as a mistake, and it still does.

IF YOU HAVEN’T READ THIS ARTICLE OF MINE YET, I HOPE YOU’LL HAVE TIME TO DO SO DURING LOCKDOWN: “Want to be a Doctor? A Scientist? An Engineer? An Affirmative Action Leg Up May Hurt Your Chances.”  It’s short and the information could come in handy.

ANOTHER BAD MOVE BY JIMMY CARTER:  “Happy 40th Birthday, Department of Education.”

I don’t understand what it is about progressives that makes them think that because something is “important,” it should have a federal agency dedicated to regulating it.  Many things are important and yet do not lend themselves to top-down, lockstep regulation from inside the beltway–marriage, parenthood, religion, … and education (just to name some).  They are so important that it’s crucial that they not be federally controlled.

Alas, the iron rule of bureaucracy applies:  Once created, it is devilishly difficult to get rid of one of these things.

VERY BAD NEWS:  John Leo has decided to retire his wonderful  Minding the Campus website.  John Rosenberg reports.