Author Archive: Gail Heriot

THE CHINESE CULTURAL REVOLUTION, AMERICAN STYLE, CONTINUES UNABATED:  Students demand that Camille Paglia be fired and replaced by a “queer person of color.”

“WHO IS TO BLAME FOR THE RISE OF RADICAL PARTISANSHIP IN CONGRESS?”: Over at the Federalist, Madeline Osburn is asking who killed civility in Congress. She resists (as she should) the usual story that it was Newt Gingrich. Instead, she reports that, according to Professor Kevin Portteus, the trend was already well underway in the 1970s.

I can add this: Part of the problem is that legislative compromise is a dying art in Congress. Why? Because one side (and for the examples that come to mind for me, that side is the GOP) has been repeatedly made into a chump when the compromise comes unraveled in the executive branch (through one-sided enforcement) or in the courts (through one-sided interpretation). The National Voter Registration Act of 1993 is a good example. For many years at least the part that GOP favored most went unenforced, while the part the Democrats favored most was interpreted broadly and enforced vigorously. There are other examples.

When legislators feel like chumps, they start shying away from legislating. That gets them out of the habit of negotiating with their colleagues across the aisle. Instead, they spend their time posturing. That posturing in turn makes future negotiations more difficult. Alas, I don’t know how to solve this problem. Once trust is lost—whether in the context of a legislature or elsewhere—is it hard to regain.

YOU WILL UNDERGO RACIAL SENSITIVITY TRAINING: When I was a child, teachers used to punish the whole class when they couldn’t identify an actual wrongdoer. It didn’t make us resolve to do better. Instead, it greatly annoyed us.

It will likely do the same to the tens of thousands of students, faculty, and staff members who are going to be forced to undergo racial sensitivity training by the University of Tennessee. They, rather than the individuals in the tasteless photo on Instagram that triggered this response, are being punished. As Hans Bader points out in Liberty Unyielding, mass training like this costs millions of dollars in lost work and study time. But it’s worth it because … no wait … I can’t think why it would be worth it.

Bader has a lot more to say, including on some of the legal aspects of the situation. Read his whole post.

The aspect that bothers me is how counterproductive such training may be. Instead of increasing racial harmony, it may diminish it. As Rohini Anand and Mary-Frances Winters noted in a 2008 article in the Academy of Management Learning & Education: “Many interpreted the key learning point [from their diversity training] as having to walk on egg shells around women and minorities—choosing words carefully so as not to offend.” I’ve talked to many people who have undergone such training in recent years and drawn a similar conclusion.

People don’t like walking on eggshells. They will avoid contact with those who make them feel that way. It’s the precise opposite of what we want.

Why do employers and schools nevertheless insist on such training? As Bader points out, they may feel they reduce the likelihood of a lawsuit against them. Another interesting question is: Why do diversity advocates insist on it? Why not instead promote activities like sports and group projects that promote integration rather than convince students that race really does matter? Why not ask schools to promote integration by doing away with separate dormitories for racial groups and other kinds of campus separatism? My fear is that the answer is while diversity training may have started out as an effort to help achieve something worthwhile it has become simply a big business.

As Eric Hoffer famously said, “Every great cause begins as a movement, becomes a business, and eventually degenerates into a racket.”

YES, YOU CAN BE TRIED TWICE FOR THE SAME CRIME: Despite the Double Jeopardy Clause of the Constitution, the federal government retains the right to try a person for a federal crime even after a full acquittal based on the same facts in state court (and vice versa). It’s called the dual sovereignty rule. Back when the federal criminal code covered very little, it was a minor footnote to the law. These days, with a federal crime for practically every state crime, it’s a two-bites-at-the-apple rule.

In doing some research for the U.S. Commission on Civil Rights last week, I noticed that charges had been filed by both federal and state authorities in all the high-profile hate crimes cases I was looking at. I worried this sort of thing would happen back in 2009 when Congress was set to adopt the Hate Crimes Prevention Act. In the Pittsburgh synagogue case, there was even some turf fighting over it. These cases are real plums for ambitious prosecutors.

Sooner or later, somebody will be acquitted for good reason. Nevertheless, there will be an outcry for a re-prosecution. Indeed, this happened in the Trayvon Martin case. Fortunately for George Zimmerman the flesh wounds on the back of his head lent a lot of credibility to his claim of self-defense, so the federal authorities decided not to proceed. It makes me very nervous to think that in politically charged cases an accused will have to prove himself innocent twice (and may not always be as lucky as Zimmerman).

Of course, for many of the law’s supporters, the two-bites-at-apple aspect of the law is not a bug but its most important feature.

I DEFINITELY KNOW THE FEELING ON THIS ONE: My gentleman friend had dinner a little while ago with two faithfully Progressive young schoolteachers. They could recite the Progressive line on just about every issue. But on one issue, they were decidedly conservative as well as quite upset: School discipline. Their classrooms were out of control, they said. And they were outraged that school administrators and education bureaucrats were not supporting teachers. Unruly students get sent to the principal and return shortly thereafter (with candy!).

This sounds like a good example of Robert Conquest’s rule that everyone is conservative about the things they know best. Put differently, Progressives feel they can fix age-old problems with ideas they came up with in the shower last Tuesday. But when it comes to dealing with problems in their own professions, they are much better able to see the nuance and complexity, which allows them to better understand and appreciate the traditions of that profession.

WILL THE GRAND PROGRESSIVE COALITION MARCH TOGETHER FOREVER?: Despite all the internal contradictions, Progressives usually manage to keep their jerrybuilt identity politics coalition humming along. African Americans are expected to support lax immigration enforcement even though it drives down wages for low-skilled workers. Asian Americans are expected to just shut up about race-preferential admissions policies at competitive colleges and universities. Women, too, are expected to support “diversity” even when it means affirmative action for men.

But there are limits. And maybe with anatomical males competing in women’s athletics, the limit is starting to be felt.

THANK YOU:  The 1967 film Bonnie and Clyde glorified two-bit killers.  Kyle Smith now reviews The Highwaymen, starring Kevin Costner and Woody Harrelson, which sets the record straight.

In 1967, many of the victims’ friends and family were still alive and had to watch as America swooned over merciless killers (played by gorgeous actors Warren Beatty and Faye Dunaway) .  I hope some of them are still around to watch this story of the ex-Texas Rangers who stopped the Barrow gang’s rampage.

I send a giant “Thank You” to director John Lee Hancock and screenwriter John Fusco.  Score one for decency.

UNABOMBER ARRESTED: On this day in 1996, Ted Kaczynski, the Harvard-educated, former Berkeley math professor responsible for over a dozen bombs and three deaths, was arrested at his cabin in Montana.

THE MORAL PANIC CONTINUES:  Students demand that George Mason Law School fire Justice Kavanaugh as a visiting professor of law.

WOMEN CAN LEAD RIOTS TOO: On this day in 1863, about 5000 people, mostly poor women, led by Mary Jackson, Martha Fergusson, and Minerva Meredith, broke into Richmond, Virginia shops and seized food, clothing, shoes and jewelry.

“Bread riots” of this sort also broke out in other parts of the South during the last couple of years of the war, but the one in Richmond was the worst. “Bread or blood!” was their rallying cry.

All had not been well in Richmond. Union forces had blockaded the ports and had gained control of parts of Virginia. Farm output was low, since so many farmers and farm laborers were in the military. Richmond’s population had swelled as a result of war. And a late March snowstorm had turned the roads to mud, thus making it difficult to make it to town with what little food there was.

A few days earlier, Jefferson Davis, who no one ever accused of being overly diplomatic, had set people on edge by calling for a day of fasting and prayers. One man wrote in his diary,  “Fasting in the midst of famine! May God save this people!”

Davis was the one who ultimately brought the crowd under control. But it took a lot: Only when he got on top of a wagon and threatened to have the Confederate army open fire on the crowd did they disperse.

PRO-AFFIRMATIVE ACTION BALLOT INITIATIVE PENNILESS IN SEATTLE?: The plan to repeal Washington State’s Initiative 200, which prohibited discrimination and preferential treatment based on race, sex, color, or ethnicity in public education, public employment and public contracting, has hit a snag. The repealers evidently have no money. And they owe lots to the folks who collected the signatures to get them on the ballot.

I hope the new initiation–called Initiative 1000—fails. Efforts to repeal Proposition 209 in California have failed, which is a good thing, since Proposition 209 was initially very successful and continues to have some good effects.

SCHOOL DISCIPLINE MYSTERY?: Nope. A recent school discipline study looks at suspension/expulsion rates among various subgroups of Asian and Pacific Islander K-12 students in Washington State. To no one’s surprise, it finds the rates differ radically within the broad Asian/Pacific Islander category.

For example, it finds that ethnic Cambodian and Vietnamese students are suspended or expelled at rates 2 to 3 times that of ethnic Chinese students. The differences between Pacific Islander and Chinese students were even greater. Samoan students were suspended or expelled at more than 10 times the rate of Chinese students, and Guamanian/Chamorro students at almost 5 times the rate of Chinese students.

Does anyone believe that Washington State teachers are twice as biased against Samoan students as they are against Guamanian/Chamorro students? I doubt it. The real reasons for these differences are a good deal more complicated than that (and they are connected to differences in behavior).

We are not doing students any favors by blaming all this on teacher bias.  School discipline policy is not an issue that the nation can afford to screw up.

DEPARTMENT OF ODD FACTS:  The Wrigley Company (founded on this day in 1891) initially gave away chewing gum to anyone who purchased its baking soda.  But customers cared more about the gum than they did about the baking soda, so Wrigley switched to selling the gum outright.  And made a mint.

HEATHER MAC DONALD ON “WHEN PROSECUTORIAL DISCRETION IS WOKE”:  “Throwing out charges against Jussie Smollett is consistent with the social-justice narrative that a hate hoax can be true in a deeper sense.”