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.

THE ROSE AND THISTLE JOINED: On this day in 1707, the Acts of Union, uniting England and Scotland, went into effect. The two kingdoms had been ruled by the same monarch since James VI of Scotland (son of Mary, Queen of Scots) became James I of England and Ireland in 1603. But the Acts of Union made it a true political union and not just two crowns sitting on the same head.

For the English, the union was a good deal because it ensured that when Queen Anne died with no surviving children, Scotland and England would continue to have the same monarch. If instead Scotland had elected to go its own way, it might have chosen to return to its “auld alliance” with France. Such a move, England believed, would jeopardize its security.

On the other hand, the less populous Scots wanted to ensure access to English markets. This was especially so after the disastrous Darien scheme to create a Scottish colony in Panama, which left much of the country in financial ruin.

For most of its history, the marriage has been a reasonably happy one (though every marriage has had its … rough patches). But in more recent years cracks have started appearing in the marriage. In 1979, an effort to establish (or re-establish) a separate Scottish legislature via referendum failed.   It did so, however, only because the Act authorizing the referendum required that at least 40% of the entire Scottish electorate vote in favor. While the referendum got more yes than no votes, turnout was poor. In 1997, another such referendum was held. This time it passed, a Scottish Parliament was established, and the process of “devolution” was begun.

In 2014, when an independence referendum was held, it came a lot closer to passing than union supporters would have preferred. Ultimately, Scottish voters went 55.3% to 44.7% in favor of sticking it out with England.

At the time, the European Union actively discouraged an independent Scotland and let it be known that Scotland would have a tough time petitioning for entry into the E.U. if it decided to strike out on its own. Too many E.U. members have sub-national entities yearning for independence. The E.U. could ill-afford to encourage such movements.

Of course, that was then and this is now. After Brexit (which most Scottish voters opposed), one could imagine a different attitude on the part of the E.U. Or maybe not.  It is hard to imagine countries like Spain with their own internal issues being keen on dealing with Scotland in this way. Scotland would have to secede from the U.K. and then petition for entry into the E.U.

Two things have happened since the Brexit vote in 2016 that make such a scenario less likely: First, contrary to predictions, leaving the EU didn’t cause the sky to fall in the U.K. Second, COVID-19 really has made free movement across international borders look less wonderful than it did just a few months ago. So maybe the rose and thistle will stay together … if nothing else than for the sake of the children.

ON THIS DAY IN 1975:  The Fall of Saigon.

MAKING A FEDERAL CASE OUT OF IT:  In the brave, new, progressive world, every case of school discipline can give rise to a federal lawsuit. Of course, it can work both ways.

“ANECDOTAL EVIDENCE IS OVERWHELMINGLY POSITIVE”:  Plasma treatments for COVID-19 patients may be working.  I hope so anyway.  We have a lot more potential donors now than we did in March.

REMEMBER THE CHINESE STUDY SUGGESTING THAT BLOOD TYPE A IS SOMEWHAT MORE LIKELY TO GET COVID-19?: Now there is an American study that included data from patients at New York Presbyterian Hospital.  It suggests the same thing and a little more. It found COVID-19 patients were more likely to be A or B blood types and were less likely to be O. These results were significant only for Rh positives. The difference in rates is not overwhelming, so don’t stop washing your hands if you have O type, and don’t run for the hills if you have A or B.

HELP WANTED: If you are a conservative or libertarian lawyer with a strong interest in civil rights law, click here. Yes, this is a paying job.

(If you have a long memory, you may recall that I wrote a similar post back in the summer. For reasons having to do with the inefficiency of the federal government in dealing with personnel issues, the current very capable incumbent was not able to start a new job until now. I am therefore starting the process all over again.)

IT’S CALLED “POLITICAL USEFULNESS BIAS”: I can’t imagine that anybody is surprised by the media’s failure to pounce on the sexual assault allegations against Joe Biden.  Still, it’s worth pointing out every time it happens.  Rub their noses in it.

THANK YOU TO THE EMPLOYEES AT BRASKEM AMERICA! YOU’RE SAVING LIVES!: More than 40 employees at Braskem America in Pennsylvania volunteered to work, eat and sleep at the plant for 28 days straight in order to manufacture the raw materials used to make N95 masks, hospital gowns, and sanitary wipes. On Sunday, they got to go home for a while.

IT’S CONFUSING TO ME:  Why has the Voice of America become a voice of confusion?

GOOD QUESTION:  If academic skills aren’t going to be what gets you into a good college, then what will?

DETAINEES AT IMMIGRATION DETENTION CENTERS IN CALIFORNIA LAUNCH CORONAVIRUS HUNGER STRIKE: Or at least that’s what activists claim. Detention center officials weren’t so sure.

(For background on detention center conditions, including their medical facilities, see my Commissioner Statement from a few years back.)

LOCKDOWN OR NO, THE CLOCK IS TICKING ON THE TRUMP ADMINISTRATION: Yes, he might get re-elected, but I would feel a lot better if someone in the Administration were trying to do something about the problem of disparate impact liability now.

HOW MANY TIMES HAVE WE HEARD THIS STORY?:  Outrageous racist threats and attacks that rattled the University of La Verne last year turn out to have been faked.   (See also my Dissenting Statement to the Commission on Civil Rights’ overwrought report on hate crimes, which catalogues a number of such stories.)

POLICIES HAVE CONSEQUENCES:  Female prison officers have been raped by inmates who self-identify as trans women in the U.K.

THIS IS A REAL PROBLEM:  The Trump Administration doesn’t seem to take the Equal Employment Opportunity Commission seriously.  It enters into package deals (as it must) with Senate Democrats when it seeks to fill EEOC commissioner positions.  But somehow the deal it gets is always a ghastly one.  Back in 2017,  the Trump Administration paired a non-lawyer with the Democrats’ nomination of Chai Feldblum, a far-far-left law professor (and someone I rather like as a personal matter).  The non-lawyer (whose name I won’t mention) was a very talented guy who richly deserved a post somewhere in the Trump Administration. But I guarantee you that Chai Feldblum would have steamrolled him.  Employment discrimination law is complicated; learning it on the job as an EEOC Commissioner just won’t work.  Mercifully, that deal unraveled once Senate Republicans took a look at it.  Now Senate Democrats have apparently convinced the Trump Administration to enter a package deal with Jocelyn Samuels, who, like Chai Feldblum, was responsible for some of the Obama Administration’s worst excesses in this area of the law.  Paul Mirengoff at Power Line explains why such a package is not a great idea.