IT’S RAINING IN SAN DIEGO:  That’s a wonderful thing.  But, as usual, cars are spinning out and crashing all over town.  I don’t know what it is about Southern Californians …

ENGLISH RULES ARE “TOO BIG A RISK”: Employers can be held responsible for their employees’ misbehavior in all sorts of ways. They can be sued for sexual harassment. They can lose customers if their employees are viewed as rude. The best way to manage these risks varies from workplace to workplace. But sometimes English-speaking supervisors have required their bilingual employees to speak English on the job, so they can assure proper workplace decorum is being upheld and so customers and fellow employees don’t freak out (“They’re talking about me; I just know it!”) Courts have repeatedly upheld this. But these days it often doesn’t matter what the courts do; the EEOC can and does make employers with English-only rules miserable.

Last night I ran across a web site advising employers to avoid such rules. It says it’s “too big a risk,” and that may be right. Alas, there are so many different bodies of “law” at work these days. There is the law as Congress enacted it. Then there is the “law” as a court would interpret and apply it if there were a case before it. Then there is the “law” as interpreted by the EEOC. Unless and until the EEOC actually sues, that “law” is procedurally tricky to get in front of a court. Instead, the EEOC’s strategy is usually to investigate a non-compliant employer to death. The wiser course for employers is usually to comply.

THE DESECRATION OF THE CEMETERY OF CONFUCIUS: Over the course of this month in 1966, gangs of Maoist students tore up the Cemetery of Confucius.

On November 29, 1966, they sent the following celebratory telegram to their hero:

Dearest Chairman Mao:

One hundred thousand members of the revolutionary masses would like to report a thrilling development to you: We have rebelled! We have dragged out the clay statue of [Confucius]; we have torn down the plaque extolling the “teacher of ten-thousand generations”; we have leveled Confucius’s grave; we have smashed the stelae extolling the virtues of feudal emperors and kings; and we have obliterated the statues in the Confucian temple!

Swell.  They apparently didn’t mention it, but they also dug up one or more corpses and hung them naked from trees. As the People’s Daily editorialized a couple of months later, “To struggle against Confucius, the feudal mummy, and thoroughly eradicate … reactionary Confucianism is one of our important tasks in the Great Cultural Revolution.”

Why? One important reason is that Confucius emphasized filial loyalty. Totalitarianism cannot tolerate the institution of the family: All loyalty must be to the State.

“THE IDIOT”: Here’s a song for all those who have moved to a not-so-wonderful place, because that’s where the jobs were, rather than be unemployed in a place they loved. It’s called “The Idiot,” by Stan Rogers, who would have turned 69 today had he not been tragically unlucky.  Sample lyrics: “The government dole will rot your soul back there in your home town.”

I’M NOT SAYING IT’S ALIENS, BUT IT’S ALIENS: Whenever something asinine happens in this country, I tease my friends that it’s time for conservatives to pull up stakes and colonize northern Baffin Island (at least I think I’m teasing). Today one friend sent me a link suggesting that somebody may be getting in ahead of us.

WILL I MISS HAVING A REPUBLICAN HOUSE OF REPRESENTATIVES? Alas, I probably won’t, not on the race and sex/identity politics issues that I work on. (We probably will on other issues.)

GOP members of the House were mostly terrified of race and sex issues. And because they are terrified, they didn’t bother to inform themselves on them, so they didn’t realize how crazy the law is. Here’s an example: If this tiny legislative fix was deemed too controversial to pass (and it was), then nothing useful can pass.

For decades, many decent conservatives thought the best way to deal with race and sex issues was to smile politely and let the Left get its way. I’ve been called a Cassandra, constantly warning that identity politics was getting bigger and bigger and more totalitarian and corrupt. It was the wrong metaphor: Never lose sight of the fact that Cassandra was right.

SCIENCE/NOT SCIENCE:  On this day in 1955, Bill Nye, the man who somehow convinced many Americans that he is a science guy, was born.

CHICAGO PUBLIC SCHOOLS OUST ALMOST 130, INCLUDING 9 TEACHERS, OVER CRIMINAL BACKGROUND CHECKS: I can’t tell for sure from the story what the circumstances were, so I am unsure whether this was a good move or not. Given how large the number was, I have my doubts. My point is that it ought to be the school system’s (and not the federal government’s) decision.

Nevertheless, the EEOC’s 2012 Guidance on criminal background checks says that because these decisions have a disparate impact on African Americans they potentially violate Title VII. It essentially says that it gets to decide whether an employer’s policy on hiring (or retaining) ex-felons is permissible.

If the EEOC had direct jurisdiction over state and local governments, I suspect it would already be bringing a Title VII lawsuit for “race discrimination” here. Fortunately for Chicago Public Schools, only the Department of Justice can initiate federal pattern or practice lawsuits against it under Title VII, so we’ll see ….

I am sympathetic to the notion that we need to do things to re-integrate ex-cons back into society (and I support the modest tax deduction available to employers who make voluntarily hires). But the EEOC’s policy of bullying employers into hiring ex-felons against the employers’ better judgment—which I discuss and critique here—is wrongheaded for all sorts of reasons and was never intended by Congress.

PEDESTRIAN CROSSINGS REOPENED AT U.S.-MEXICO BORDER AFTER FOUR-HOUR CLOSURE:  The San Diego Union-Tribune reports.

UPDATE:  The freeway is now open too.

FEINSTEIN CRITICIZES TRUMP NOMINEE KENNETH KIYUL LEE FOR HIS “CONTROVERSIAL” POSITION ON AFFIRMATIVE ACTION … except that Lee’s position is more in keeping with that of the majority of Americans than Feinstein’s. As Paul Sniderman and Thomas Piazza, experts in political opinion, wrote a number of years ago, issues like preferences in college admissions are “politically controversial precisely because most American do not disagree about [them]. The distribution of public opinion on … affirmative action (understood as involving either preferential treatment or racial quotas) … is unmistakable … In the country as a whole, affirmative action in employment or in education is opposed by four in five, or more.” (Italics in original.) That opposition continues.

Just before Grutter v. Bollinger, I wrote an article that argued: (1) Obviously, public support for race discrimination shouldn’t count for squat when it comes to determining its constitutionality; (2) But on the other hand, if the public opposes race discrimination (as it does in the case of race-preferential admissions policies), that should pretty much foreclose a finding by a court that a “compelling” need for it. What’s so compelling about an argument that most Americans don’t buy?

Alas, Justice Sandra Day O’Connor must not have read it….

AREOPAGITICA:  On this day in 1644, Areopagitica, John Milton’s famed defense of free expression, was published.  He wrote:

And though all the winds of doctrin[e] were let loose to play upon the earth, so Truth be in the field, we do injuriously by licensing and prohibiting to misdoubt her strength.  Let her and falsehood grapple; who ever knew Truth put to the wors[e], in a free and open encounter.

I do wish I had as much confidence in the triumph of truth as Milton had.  To paraphrase Star Trek‘s  Dr. McCoy in The Omega Glory, “Spock, I’ve found that [falsity] usually triumphs–unless [truth] is very, very careful.”  Still, Milton’s admonition that the State should stay the heck out of the fray seems a sound one.

THERE IS NO LAW THAT ALLOWS THE U.S. DEPARTMENT OF EDUCATION TO CONTROL ALL POLICIES OF LOCAL SCHOOLS: And yet they manage to exercise control by making everything into a race or sex discrimination issue. During the course of what became an 8-year investigation, Wake County Schools lowered their use of suspensions to mollify the Department of Education. Now Wake County Schools have officially agreed to stick with that lower use of suspensions to get federal investigators off their backs. Is that good disciplinary policy? Maybe, maybe not. But it is supposed to be up to Wake County schools to decide that, not the Department of Education. Instead, the Department of Education claims the right bully schools about any policy that has a disparate impact based on race, color, national origin or sex (all the while knowing full well that all policies have a disparate impact on some protected group). See The Department of Education’s Obama-Era Initiative on Racial Disparities in School Discipline: Wrong for Students and Teachers, Wrong on the Law.

ENVIRONMENTAL RACISM: Newly-elected Congresswoman Ilhan Omar tweets that “we need to invest directly in areas that have been harmed by environmental racism—the pollution and environmental degradation experienced by communities of color and indigenous nations.” Okay, maybe. But when the U.S. Commission on Civil Rights did an empirical study on coal ash deposits, most of its members expected to find these deposits are disproportionately found in African-American communities. But surprise! It found the opposite. So of course buried those findings in its lengthy report on environmental racism. I’m not sure race is the best lens through which to look at the problem environmental degradation. If it should be cleaned up, clean it up. If some other action is more appropriate, do that—no matter whose community it is near.

HERE’S TO YOU, SISTER CECYLIA:  And to Instapundit readers:  You may be cool, but you will never be Sister Cecylia cool.

THE STRUGGLE AHEAD:  Remarks by Michael Uhlmann.

“THE CRIME OF PUNISHMENT”: Reading Karl Menninger’s 1966 book—which argues that all punishment is cruel and useless—is itself punishment. But maybe you should take the time to read a bit about it anyway.  (Yes, it was the Sixties, but Sixties ideas, along with lava lamps, seem to be back in style.)

PUSHING BACK AGAINST IDENTITY POLITICS IN ACADEMIA: FASORP (Faculty, Alumni and Students Opposing Racial Preferences) recently filed Title VI/Title IX lawsuits against the Harvard Law Review and the New York University Law Review (in both cases Education Secretary Betsy DeVos is also named as a defendant for failing to enforce the law). FASORP is being represented by the very talented Jonathan Mitchell, former Solicitor General of Texas.

The NYU Law Review in particular has made itself a rather obvious target. It’s not just that it discriminates; it has quotas. The Harvard Law Review isn’t much better. It has quotas too, but it is a tad more delicate in how it presents them on its web site.

Title VI of the Civil Rights Act of 1964 states, “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” Title IX of the Education Amendments of 1972 is similar, but applies only to educational institutions. It states, “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”

In Grutter v. Bollinger (2003), the Supreme Court watered down Title VI by construing it to allow colleges and universities to discriminate in the name of diversity. But the Court has consistently come down hard on colleges and universities that set actual quotas (UC Regents v. Bakke (1978)) or set numbers of “points” for an applicant’s race (Gratz v. Bollinger (2003)).

The NYU Law Review sets quotas. Its web site declares that it “evaluates personal statements in light of various factors, including (but not limited to) race, ethnicity, gender, sexual orientation, national origin, religion, socio-economic background, ideological viewpoint, disability, and age.” It then goes on to state that “Exactly 12 students will be selected by the Diversity Committee” for membership.” Really? Exactly 12?

The Harvard Law Review is only a bit subtler. It sets aside exactly 18 seats for “holistic review,” quickly adding the it is “strongly committed to a diverse and inclusive membership” and that “[a]pplicants who wish to make aspects of their identity available through the Law Review‘s holistic consideration process will have the opportunity to indicate their racial or ethnic identity, physical disability status, gender identity, sexual orientation, and socioeconomic status.”

I plan to keep an eye on this litigation.

MIS-MEASURING RACISM:  A How-To Guide.

THE WASHINGTON POST MISSED MY POINT: On Thursday, the U.S. Commission on Civil Rights published a report entitled, Police Use of Force: An Examination of Modern Policing Practices. That same day the Washington Post discussed that report. It also described my dissenting statement as stating “that not enough of the public conversion about criminal justice focuses on the rates at which black Americans commit crime.”

Well … I did mention that issue as a possible partial explanation for why the media are so reluctant to talk about high African American victimization rates. But my main point—and the point that took up by far the most pages in my Statement was that African American are victimized by crime at higher rates than other groups. I dealt at length with discussions by Gunnar Myrdal, Charles Rangel, Michael Javan Fortner and Heather MacDonald that police have not always offered African Americans the level of protection that they should.

I never wrote that the public conversation about criminal justice should focus more on the rate at which African Americans commit crimes. Instead, I wrote that “[o]ne of the best examples” of “one-sidedness in the [criminal justice] debate” is “the failure to acknowledge African American victimhood and the need to ensure that the African-American community receives adequate police protection.” Everything seems to focus on too much police presence.

The Washington Post also stated that I “voiced the theory popular among some conservatives and police officials that increased scrutiny of police will result in them abandoning their obligations to protect the public.” (Italics added.) That’s true (although the word “abandon” overstates my position). But the Post doesn’t identify the views of my Progressive colleagues as “popular among some Progressives.” Maybe this is an example of what Hal Pashler and I wrote about in Perceptions of Newsworthiness Are Contaminated by Political Usefulness Bias. Pointing out that an idea is popular among conservatives may be more useful for a Progressive reporter writing for a Progressive audience than pointing out that a different idea is popular with Progressives. Oh well. At least it’s true.

Lesson: If you’re interested in a topic, read the original, not the newspaper version.

I WANT TO BE LIKE FRANCIS: On this day in 1615, Francis Dane, later to become the Rev. Francis Dane, pastor of the North Parish Church in Andover, Massachusetts, was born. In 1658, he testified for the defense at a witchcraft trial, where he “judged against the probability”—a polite way to say that he though it was a warm pile of horse manure. The defendant was acquitted.

Later, in 1692, when the witchcraft panic in Salem sent shockwaves throughout New England, he spoke against it vociferously, warning that the people were guilty of blood for accepting these unfounded accusations against covenanted members of the church.  He led an effort to petition the governor to put a stop to it all.

Sounds easy, right? Just do the right thing. But it took steel body parts to speak out during the panic. It meant accusations of witchcraft would immediately be made against him and his family members. Being a man of the cloth was not enough to protect him. One minister had already been executed.

In short order, Dane himself, two daughters, a daughter-in-law, and several granddaughters were all accused (though Dane himself was never charged). All survived. One escaped hanging only because she was pregnant.

How do I know about this obscure figure in American history? Ancestry.com told me that he was an ancestor of mine. Does it make me feel proud? You bet it does. Am I aware that it is completely ridiculous for me to feel proud of something in which I had no hand whatsoever just because it involves a 17th century ancestor of mine? Yes … I know that too.

MIRENGOFF ON POWERLINE:  Trump Backs Leniency for Fentanyl Dealers, MS-13 Members, Etc. (and that’s not what he said he would do).

GOOD: Parents are lining up to join a lawsuit being planned by Pacific Legal Foundation. The lawsuit will oppose the new policy of New York City schools that is intended to make it especially difficult for Asian American students to attend New York’s most academically elite public high schools—Stuyvesant and Bronx Science. It doing so, the lawsuit will be opposing New York City’s notion that there are “too many” qualified Asian American students out there.

Here comes my constant reminder: Schools are not doing students any favors by admitting them to academic programs where their academic credentials put them at the bottom of the class. Students learn more in programs where they are competitive with other students. The research I’ve seen is at the college and university level, but I strongly suspect it applies to elite high schools too. See Want to Be a Doctor? A Scientist? An Engineer? An Affirmative Action Leg Up May Hurt Your Chances and A “Dubious Expediency”: How Race-Preferential Admissions Policies on Campus Hurt Minority Students. Race neutrality is not just the principled thing, it’s the practical thing too.

DOG ACCUSED OF HATE CRIME:  Bow wow.

IS FASORP FOR YOU?  Yes, I know that “FASORP” is not a lovely name.  But you may like the organization anyway.  It stands for “Faculty, Alumni, and Students Opposed to Racial Preferences.”  Here’s how the FASORP web site explains itself:

FASORP is a voluntary membership organization that litigates against race and sex preferences in academia.  Its members include faculty, alumni, and students of many different universities.

We encourage you to join our organization if you share our commitment to meritocracy and our opposition to the corrupt and discriminatory practices that subordinate academic merit to diversity considerations.  There is no charge to become a member of FASORP, and your membership will expand the range of universities that FASORP can target for lawsuits.  Membership in FASORP is strictly confidential and will not be shared with anyone.

You can also use this website to submit evidence of race and sex discrimination in academia.  You can submit incriminating emails, audio recordings, and documents that expose race or sex preferences in faculty hiring or the selection of law-review members.  Simply drag and drop the files into the box at the bottom right of the screen.  E-mail files should be converted to .pdf before submitting.  You may also relate anecdotes of reverse discrimination that you or others have witnessed.  If you wish to submit your evidence anonymously, you can omit your name, e-mail, and identifying information in the other boxes, and if you choose to submit anonymously there is no way for anyone to trace or identify the source.

We are especially interested in evidence and anecdotes related to our pending litigations against Harvard Law Review and the NYU Law Review.  But we welcome the submission of any evidence that could lad to future litigation.

I’ll write about FASORP‘s litigation against the Harvard Law Review and the NYU Law Review very soon.

ON THIS DAY IN 1993, A JURY OF HIS PEERS ACQUITTED DALE AKIKI, A VOLUNTEER NURSERY SCHOOL ASSISTANT AT HIS CHURCH, OF CHARGES OF CHILD ABUSE AND KIDNAPPING: I guess that means justice was done. Except that it wasn’t. Dale Akiki should never have been tried in the first place. He spent 2 ½ years in jail awaiting trial.

But let me back up for a minute. When daycare moral panic of the 1980s hit, I didn’t have any trouble keeping my head. Many of the allegations of sexual and Satanic ritual abuse were obviously false. Sometimes they were utterly fantastic—like the allegations of the McMartin Preschool children that they rode in hot-air balloons, saw witches flying and were taken through underground tunnels beneath the preschool. I remember people saying, “Children don’t lie about these things” (presumably they meant the sexual abuse, not the witches and tunnels). But that’s a joke. Children lie about everything, especially when they think they are telling adults what they want to hear.

Then came the Dale Akiki case. Despite my earlier skepticism, when I first saw the local television coverage of the Dale Akiki trial here in San Diego, my initial kneejerk reaction was (to my great shame), “Good grief, they finally got one.” Why? Because Dale Akiki was unusual looking. He was born with Noonan syndrome, a congenital disorder that sometimes results in a large head and drooping eyelids and a number of other developmental problems. Also the television crew held the camera a sharp angle (the “Dutch angle”), so as to emphasize his unusual appearance. I was an idiot.

But not for long. When the local news reported on the prosecution’s evidence the following day, it was not very impressive. I thought to myself, “Well … maybe they’ll get to the real evidence tomorrow.” But they didn’t. And the next day was no better. Eventually, the prosecution rested. They didn’t have anything on this poor guy—just a bunch of implausible accusations by nursery school children who had been prodded into making accusations by therapists convinced that Akiki was a monster. The children accused him of bringing an elephant and a giraffe to class, killing them as a warning to the children not to tattle. They also accused him of dunking them in toilets, drinking blood, and killing a human baby. Sheesh. Fortunately, there was evidence of therapists’ coaching in the form of videos of the interrogations.

I was terrified that the jury would convict. But, unlike the juries in some of the other daycare cases, the 12 San Diegans on that jury did their job right. Bless them.

Why did the District Attorney allow the case to go forward, despite recommendations to the contrary from prosecutors experienced in child abuse cases? He was being pressured by Jack Goodall, then-CEO of Jack-in-the-Box. Convinced of Akiki’s guilt, Goodall—a contributor to the D.A.’s campaign—urged him to assign the case to a different prosecutor. (Yes, that sort of thing happens in America.) The job went to Mary Avery, who was the founder of the San Diego Child Abuse Foundation. Goodall and his wife were the largest financial contributors to that organization.

By the way, San Diego voters did their job right too. The D.A. lost re-election in 1994, largely due to the Akiki case.

But here’s the part of the story I like best: During his incarceration, the deputies at the jail got to know Dale Akiki. They thought he was a sweetheart of a guy, and they knew intuitively that he was being railroaded. Twenty of them pooled their resources and had a limo ready to take him from the courthouse on the day of his acquittal. Purr.