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.

YES, THIS IS THE 40TH ANNIVERSARY OF THE JONESTOWN MASSACRE:  Just ghastly.

Earlier (From Ed): JIM JONES & HARVEY MILK: THE SECRET HISTORY: Daniel Flynn’s new book Cult City reveals how 1970s San Francisco led to Jonestown.

YOU WANT KOSHER?  WE’VE GOT KOSHER:  The market provides what the public wants.

HARVARD’S ANTI-ASIAN ADMISSIONS POLICY: At the Federalist Society’s National Lawyers’ Convention on Friday, the Civil Rights Practice Group (which I chair) presented a panel discussion of Harvard’s discrimination in admissions against Asian Americans. Thank you to the Honorable James C. Ho, Professor Andrew Koppelman, Dr. Althea Nagai, Patrick Strawbridge, and Professor John Yoo for the lively discussion.

As always, I remind everyone that colleges and universities are not doing affirmative action beneficiaries any favors by admitting them to academic programs where their academic credentials are toward the bottom of the class. Students learn more in programs where they are competitive with other students. So if we want more African American, American Indian or Hispanic doctors, engineers, college professors, and lawyers, we should put the brakes on affirmative action preferences and put a stop to discrimination against Asian Americans. 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.

ON THIS DAY IN 1872, SUSAN B. ANTHONY WAS ARRESTED FOR ILLEGAL VOTING: She took the position that the recently-ratified Fourteenth Amendment’s Privileges or Immunities Clause gave all women the right to vote. The argument went like this: Women had always been citizens.   The Fourteenth Amendment made it clear that no citizen should be denied the privileges or immunities of citizenship, so that conferred on women the right to vote.

On Election Day, to her surprise, she was permitted to cast a ballot. Her victory was, however, short-lived. Two weeks after the election she was arrested. Her predicament made news around the world.

Despite her argument about the significance of the Fourteenth Amendment, she was convicted and fined $100 (which she never paid). Meanwhile, in Missouri, Virginia Minor had also attempted to register to vote, but had been refused. She launched her own lawsuit also citing the Fourteenth Amendment. In Minor v. Happersett, 88 U.S. 162 (1875), the Supreme Court rejected the argument, holding that while women were citizens within the meaning of the Fourteenth Amendment, citizenship alone did not confer the right to vote.

At that point, the women’s suffrage movement changed its strategy and began to advocate a constitutional amendment specifically focused on a woman’s right to vote. Meanwhile, out on the Western Frontier, where women were scarce, the women’s suffrage movement was succeeding. Among other things, it was thought to be a way to attract more women.  By the turn of the century, women in Wyoming, Utah, Idaho and Colorado had the vote.

HOT OFF THE PRESS:  The U.S. Commission on Civil Rights just released a report entitled “Police Use of Force:  An Examination of Modern Policing Practices.”  My individual Commissioner Statement is here.

My main point:  In the Jim Crow South, the biggest problem was that many in law enforcement didn’t take crime in African American neighborhoods seriously.  We’ve come a long way since then.  But if modern reformers aren’t careful, their actions will end up encouraging police officers to offer less protection to African Americans.

ON THIS DAY IN 1620, the Mayflower first sighted land in the New World (though it was a little while later before they came ashore). Unprepared for Massachusetts’ harsh climate, about half the passengers and crew were dead by Spring.

ATTENTION SOUTHERN CALIFORNIANS:  On Tuesday evening, November 13th, Powerline’s Steven F. Hayward is coming to the University of San Diego to deliver the annual Bowes Lecture.  His topic:  Justice Without Hyphens:  The Eroding Foundations of Law.  Yes, the University of San Diego has an annual lecture by a conservative thinker.  (Thank you, Mrs. Bowes!) Reserve your tickets now.

OF COURSE HE DOES:  Dutch man, 69, who “identifies as 20 years younger” launches legal battle to change his age.

BAMN, BAMN, BAMN–THE ROOTS OF THE ANTIFA: I mentioned earlier today that the Michigan Civil Rights Initiative was approved by voters on this day in 2006, a decade after the almost-identical Proposition 209 in California. In both campaigns, major opposition came from a Trotskyite group (and I don’t use the word “Trotskyite” lightly here) called the Coalition to Defend Affirmative Action, Integration, and Immigrant Rights and Fight for Equality By Any Means Necessary. Its members go by the acronym “BAMN,” and they are apparently an offshoot of the Revolutionary Workers Party. Knock me over with a feather if these guys aren’t wearing Antifa masks these days.

During the California campaign, we mostly laughed BAMN off. But in Michigan (and later in Arizona) there started to be real reason to fear for the safety of the initiative’s supporters, including its signature gatherers:

Just one among dozens of examples of [BAMN’s] willingness to use “any means necessary” was its attempt to intimidate the Michigan Board of Canvassers into refusing to certify MCRI for the ballot.  BAMN brought in busloads of protesters who shouted down officials, jumped on chairs, and stomped their feet, flipping over a table in the process.  As the director of elections for the Michigan Secretary of State put it, “Never before have I seen such absolutely incredible and unprofessional behavior from lawyers urging this disruption.”

BAMN’s co-chair and attorney saw things differently:  “We cannot allow our opponents to determine what our tactics should be,” she said.  “Our tactics win.  That’s the bottom line.”  They did not, however, win before the Board of Canvassers.  Board members voted to certify the initiative for the ballot as the law required them to do.  The following November, the voters approved it 58% to 42%.

I wasn’t there at the Board of Canvassers meeting, but I’ve seen the video.  Alas, I couldn’t find it today (though I confess I didn’t look that hard).   But I did find a more recent video of BAMN storming a meeting of the University of Michigan Board of Regents. Finding the second video is even better, since it vividly shows that the Board of Canvassers meeting was part of a pattern.

Oh yeah, and they filed the lawsuit that reached the Supreme Court too.  BAMN is well funded.

MICHIGAN VOTERS ADOPTED THE MICHIGAN CIVIL RIGHTS INITIATIVE BY A WIDE MARGIN ON THIS DAY IN 2006: The Initiative was a clone of California’s Proposition 209. Like Proposition 209, it banned discrimination and preferential treatment based on race, color, sex, ethnicity or national origin in the operation of public employment, public education and public contracting.

Here’s the one of the most interesting aspects of it: In a party-line vote, the U.S. Court of Appeals for the Sixth Circuit, sitting en banc, held that such an initiative was unconstitutional. Michigan voters were not even allowed to require their state universities and agencies to refrain from discrimination intended to help minorities.

For an explanation of the arguments read The Parade of Horribles Lives: Schuette v. Coalition to Defend Affirmative Action, Integration, and Immigrant Rights and Fight for Equality by Any Means Necessary.

Yes, the Supreme Court eventually reversed (over the dissent of two Justices).

Those who wonder why voters who don’t like Trump voted for him anyway should cogitate for while on the Sixth Circuit’s party-line vote in this case. (Note that one judge who was technically appointed by Bush was really a Clinton holdover appointee and voted with the other Democratic appointees.)