IT’S THE MORNING AFTER, SO I CAN’T BE ACCUSED OF VOTER SUPPRESSION: Elites, especially left-of-center elites, seem to care a whale of a lot more about the tiniest “interference” with what they regard as voting rights than they do about … well … any of our other rights. Granted, voting rights are important and vigilance is appropriate. But as I wrote a few weeks ago in my Statement in an Commission on Civil Rights report: “[I]f anything, elected officials may be accused of spending a disproportionate amount of time worrying about voting issues (and hence about their own re-election) to the detriment of issues that affect their constituents’ lives in more direct ways.” Ditto for denizens of governmental bureaucracies. (And it’s not that they hold self-governance in such high regard. If they did, they’d be concerned about the reach the bureaucratic state.  But they like that leviathan. They think it’s a nice little anti-democratic monster.)

It would be nice if they were half as vigilant about economic liberties and free expression (which fewer and fewer seem to care about today).

IT DIDN”T TAKE LONG:  Yesterday was the 22^nd anniversary of Proposition 209’s passage. That means today is the anniversary of the litigation that tied up its implementation for almost a year. Once the initiative was implemented, however, it did exactly what I had been hoping for:  It improved the academic performance of minority students.

For example, prior to the initiative’s implementation, the University of California at San Diego had only one African American honor student out of a class of 3,268. At the same time, 15% of African American students and 17% of American Indian students were in academic jeopardy (defined as a GPA of 2.0 or less).  That should be compared to only 4% of white students.

Proposition 209 made a big difference.   In the very first year of its implementation, a full 20% of African American freshman had GPA of 3.5 or better—higher than the Asian rate (16%) and almost as high as the white rate (22%) for that year. (Part of the reason for the difference between the Asian and the white rates is that more Asians major in STEM, which traditionally results in lower grades).

At the same time, the academic jeopardy rate for African Americans and American Indians collapsed to just 6%.  Not bad for a voter initiative.

DEALING WITH SH*T:  Never forget that decent plumbing is the sine qua non of civilization.  Hug your plumber today.

MASSACHUSETTS’ “QUESTION 3” ON TRANSGENDER BATHROOM LAW: Today Massachusetts voters will decide whether to retain or repeal a law requiring public accommodations to allow transgender individuals to use the bathroom that matches their psychological gender rather than their biological anatomy. (In the absence of such a law, the owner of the facilities would have discretion over the issue.) As the Boston Globe’s Jeff Jacoby writes, at least one poll indicates that the law will probably be retained.

In a related matter, here are the reasons that Attorney General Sessions’ decision to withdraw the Obama Administration’s transgender bathroom guidance was correct on the law.

These issues are related, but they are not the same. Sessions’ position was simply that Title IX does not address the transgender issue. Federally-funded schools should therefore be able to assign bathrooms based on sex (i.e. anatomy), gender (i.e. psychological identification) or the number of letters in your surname. It’s up to the school, not the feds. Massachusetts voters, on the other hand, are facing a policy question. Should they support a law that requires public accommodations to allow transgender individuals to use the bathroom they prefer? Or should that law be repealed in favor of an approach that allows for discretion on the part of the owner of the facilities? I report, Bay Staters decide.

OUR “UNBIASED” MEDIA AT WORK:  Listen to this short, tape-recorded phone message.  Listen till the end.  Really.

CALIFORNIA’S PROPOSITION 209 PASSED ON THIS DAY IN 1996, THUS AMENDING THE CALIFORNIA CONSTITUTION: Its operative clause states: “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.”

The hope of many Proposition 209 supporters was that the measure would reduce the effects of mismatch. And during the years it was adhered to, it appears to have done exactly that: Minority graduation rates rose rapidly, and minority on-time (four-year) graduation rates rose even faster. At the same time, minority science and engineering rose by about 50%, while the number of minority students majoring in ethnic studies or communications fell by 20%. And minority GPAs increased.

You can read about it in A “Dubious Expediency”: How Race-Preferential Admissions Policies on Campus Hurt Minority Students.

SOVIET TANKS ROLLED INTO BUDAPEST ON THIS DAY IN 1956, thoroughly crushing the Hungarian Revolution. About 200 Hungarians were executed for their part in the effort to get out from under Soviet domination (including Prime Minister Imre Nagy, who had announced Hungary’s withdrawal from the Warsaw Pact only days before). About 20,000 were imprisoned and about 200,000 fled the country.

Some had thought that Khrushchev, unlike Stalin, might permit Hungary to leave the Soviet orbit in peace.  They were proven wrong.

SETON HALL:  Another university caves to demands of rowdy students.

DON’T BLAME SCHOOLS FOR THE “ACHIEVEMENT GAP:” Like many other “civil rights” policies, it only ends up hurting its intended beneficiaries.

YIPPEE-KI-YAY!:  On this day in 1912, singing cowgirl Dale Evans was born.  Roy Rogers was her fourth husband.  The fourth time was a charm.

ON THIS DAY  IN 1735: John Adams was born.

THE SUPREME COURT WOULD PREFER NOT TO:  Alas, the Supreme Court declined today to review Metcalf v. United States.  The question of whether Congress can prohibit hate crimes by using its Thirteenth Amendment power to prohibit  slavery will thus go unresolved by the nation’s highest court.

(On the upside for today, I learned to shoot skeet and wasn’t nearly as bad at it as I thought I would be.)

HILLARY IN 2020:  She really does seem to saying yes.

ON THIS DAY IN 1886:  Grover Cleveland dedicated what we now call the Statue of Liberty.

YES, IT DOES:  Voter Fraud Exists.

TODAY IN HISTORY: On October 27, 1787, the first of the Federalist Papers (this one written by Alexander Hamilton) was published and handed out on street corners in New York. Over the course of the next 10 months, 85 short little essays were hastily written by Hamilton, John Jay, or James Madison and distributed. Each explained some aspect of the proposed Constitution and advocated for its ratification.  They weren’t written for the ages, but a few of them nevertheless became classics of political theory. And they are worth reading as a group.

I once wrote a paper that asked whether law professors were following in the footsteps of the authors of the Federalist Papers by blogging instead of writing battleship law review articles that hardly anybody reads. But upon reflection … I must have been on drugs.

UGLY HISTORY: On this day in 1838, Missouri Governor Lilburn Boggs issued Executive Order 44, calling for the extermination of Mormons. The order read in part: “The Mormons must be treated as enemies, and must be exterminated or driven from the state if necessary for the public peace—their outrages are beyond all description. If you can increase your force, you are authorized to do so to any extent you may consider necessary.” (Boldface added.)

“THE FEDERAL HATE CRIMES LAW IS BOTH UNCONSTITUTIONAL AND UNWISE”: In today’s Washington Post, George Will urges the Supreme Court to review Metcalf v. United States.

This is the case for which Peter Kirsanow and I filed an amicus brief. Indeed, Will quotes our brief in his column. In a nutshell: Congress claims to be using its power to outlaw slavery in prohibiting hate crimes. And … well … hate crimes are bad things, but they aren’t slavery.

OCTOBER 24, 1901: On this day in history, 62-year-old Annie Edson Taylor became the first person to go over the Niagara Falls in a barrel and live to tell about it. It was an unusually foolish stunt, especially for someone of her age. Other morons have followed; some of them died.

She later became the first woman to receive the Nobel Prize in physics.  No, just kidding.

“THE VIRTUE OF APPRENTICESHIP”: I agree, but apprenticeships are much tougher to implement on a large scale than most people understand. The employer needs to be able to recoup its training costs before the apprentice departs for greener pastures. Scaling up will require some real thought.

ON THIS DAY IN 1896: The College of New Jersey announced its name change to “Princeton University.” The “University” part I can understand. The institution was no longer just a college, and its faculty and students wanted the name to reflect that. But why would a school that had been a hotbed of revolutionary fervor in 1770s want to be called “Princeton”? It doesn’t have much of a republican ring to it. Why not “University of New Jersey”?

The story is that the school had always been located in Princeton, New Jersey, and thus it had occasionally been referred to as “Princeton College” (much as the University of Michigan is sometimes called “Ann Arbor”). On the other hand, it had a lot of other nicknames too—like Nassau College. I suspect that to the Gilded Age ear, “Princeton” and all things British aristocracy just sounded cool, while “New Jersey” didn’t (and still doesn’t). Alas.

BLUE TSUNAMI OR BLUE SPLASH?:  John Fund’s report is somewhat more optimistic than I am about the GOP’s chances of retaining the House.  But judge for yourself.

Meanwhile, I’ve been getting a deluge of emails from left-leaning political organizations.  I got one yesterday that said Cruz and O’Rourke are “officially tied” and asked for more money.  Note that if a corporation made a similar statement about its business prospects it would be sued for securities violations and fraud.

THE SEARS BANKRUPTCY: A lot has been written in the last few days about how Sears’ mail order business (mostly inadvertently) helped subvert Jim Crow. But don’t forget the importance of Sears President Julius Rosenwald’s efforts to address Jim Crow head on. He used his immense wealth to fund thousands of “Rosenwald schools” to educate African Americans throughout the rural South.  Just one more capitalist hero …

THE BRINK’S ROBBERY/TRIPLE MURDER WAS ON THIS DAY IN 1981: Please keep in your thoughts Brink’s guard Peter Paige and Nyack police officers Edward O’Grady and Waverly Brown (who was Nyack’s first African-American officer). All three were murdered in the course of the 1981 Brink’s heist. Also remember Brink’s guard Joseph Trombino, who was seriously wounded, but survived, only to be killed twenty years later on 9/11.

The perpetrators were six members of the Black Liberation Army and four former members of Weather Underground who had since formed the May 19^th Communist Organization.

Here’s what Wikipedia has to say about the trial of the first three defendants (one from the BLA and two from the M19CO):

Gilbert, Weems, and Clark were the first of the Brink’s robbers to go to trial. Because the BLA was known for attempting to break their members out of prison … massive security precautions were undertaken, turning the courthouse … into a heavily armed compound. … All three defendants declined assistance from defense lawyers and chose to represent themselves. Their contention was that since they did not recognize the authority of the United States, the government had no right to put them on trial. Throughout the trial, they repeatedly disrupted the proceedings by shouting anti-US slogans, proclaiming to be “at war” with the government and refusing to respect any aspect of the US legal system. They called the robbery an “expropriation” of funds that were needed to form a new country in a few select southern states that ideally would be populated only by African Americans.

…

Rockland County D.A. Kenneth Gribetz told reporters: “Our goal is to see that these people, who have contempt for society and have shown no remorse, will never see the streets of society again!” Judge Ritter apparently agreed. On October 6, 1983, he sentenced each defendant to three consecutive twenty-five year-to-life sentences, making them eligible for parole in the year 2058. After the trial, Weems claimed, “As to the seventy five years in prison, I am not really worried, not only because I am in the habit of not completing sentences or waiting on parole or any of that nonsense but also because the State simply isn’t going to last seventy five or even fifty years.” He died in prison from AIDS in 1986. Gilbert and Clark remain in prison. In September 2006, Clark was granted a new trial by a judge … in a district court on grounds that she had no representation at trial. On January 3, 2008, the United States Court of Appeals for the Second Circuit, in a unanimous decision, reversed the district court’s judgment granting a new trial. The Second Circuit panel noted that she chose to represent herself and defaulted any claim by failing to appeal until after the time for appeals had expired. In December 2016, Gov. Andrew Cuomo commuted Clark’s sentence to 35 years, citing “exceptional strides in self-development,” Clark is eligible for parole as of 2017.

M19CO member Kathy Boudin was tried, convicted, and sentenced to twenty years to life. She was paroled in 2003 and later hired by Columbia University, where she is now an assistant professor and co-founder/co-director of Columbia’s Center for Justice. Peter Paige, Edward O’Grady, and Waverly Brown could not be reached for comment.

ON THIS DAY IN 1994, Congress passed the Howard Metzenbaum Multi-Ethnic Placement Act. Named for the Senate’s most leftist member at the time, the Act is a reminder that, not so long ago, there was a bipartisan consensus that race neutrality was usually the best policy.

At least during the 1980s and 1990s, African-American children tended to languish in state or foster care waiting for permanent adoptive parents much longer than white children. (I don’t have recent data.) Part of the problem was that organizations like the National Association of Black Social Workers vehemently opposed cross-racial adoptions. The president of that organization testified at a Senate hearing in 1985, “We view the placement of Black children in white homes as a hostile act against our community. It’s a blatant form of racial and cultural genocide.”

MEPA was built on the notion that African-American children shouldn’t have to wait for parents of the “right race” to adopt them. It prohibited federally-funded adoption agencies from refusing to place a child on account of the adoptive parents’ race. Alas, the statute didn’t work. It was not worded strongly enough and hence easy to circumvent. It was therefore replaced with the stronger language of the Inter-Ethnic Placement Provisions of the Small Business Job Protection Act of 1996. The second effort has worked … well … better.