DISPARATE IMPACT LIABILITY MADE NO SENSE THEN AND MAKES NO SENSE NOW:  On this day in 1971, the Supreme Court decided Griggs v. Duke Power Co.  Read this to understand just how wrongheaded that decision was.

I HAVE BEEN SPENDING WAY TOO MUCH OF MY TIME HAVING TO FIGHT ACA7:  Alas, that means I have almost no time to post.  But it’s Saturday evening, so I have a little bit.  My problem is that I only know one topic these days.

As loyal Instapundit readers know, ACA7 is another effort to gut Proposition 209, which amended that California constitution in 1996 to say:  “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.”

In 2020, our deep-blue legislature floated a referendum to repeal Prop 209.  The effort–known as Prop 16–went down in flames with over 57% of voters opposing the repeal (even though my side was outspent more than 14 to 1).

I figure we can win this again at the ballot box if we have to, but I would much rather not have to spend a year of my life on this.  Been there, done that twice now–in 1996 and again in 2020.

Part of the reason for my optimism that this can be defeated in the state senate is fact that ACA7’s chief sponsor keeps referring to ACA7 as necessary to effectuate his plans for reparations.  That can’t possibly make it popular with California voters.  Opposition to reparations (especially in a non-slave state for goodness sake) is very strong.  Maybe, just maybe a sufficient number of state senators will see that.

ACA7 is about clearing a path for REPARATIONS. We know that because its chief sponsor has said so—over and over again. Recently, the Black Caucus held a press conference to discuss its “2024 Reparations Priority Bill Package.” During that event, each caucus member was called… pic.twitter.com/mOBQsOdT59

— Gail Heriot (@GailHeriot) March 2, 2024

It will help, of course, if you like and retweet my reparations tweet above.  The tagged senators may look ay it more closely if they see that it’s getting attention.

WE’RE NOT THAT CRAZY YET:  The ADA doesn’t require employers to keep a customer-facing employee whose Tourette’s Syndrome causes him to engage in “obscene and inappropriate vocalizations.”

BETTY VAN PATTER COULD NOT BE REACHED FOR COMMENT:  Uh … I’m not sure that we should be thrilled by this:  On Sunday, Assemblymember Mia Bonta (wife the the Attorney General and co-sponsor of ACA7) announced on Twitter/X that $1,250,000 of taxpayer money was going to the Huey P. Newton Foundation.

Seriously?  You mean the Huey P. Newton who repeatedly stabbed Odell Lee with a steak knife?  The Huey P. Newton who killed Oakland police officer John Frey and then bragged about it?  The one who almost certainly ordered the murder of Panther bookkeeper Betty van Patter, whose badly beaten body washed up on a San Francisco Bay beach five weeks later?  Is that the guy we’re talking about?

Are we talking about the one who “allegedly” shot 17-year-old Kathleen Smith, who lay in a coma for three months before dying of her wound?  Note the only reason I use the word “allegedly” is that Newton’s Panther thugs tried to kill the eyewitness, which caused the eyewitness to refuse to testify.

Oh … and is this the same Huey P. Newton who repeatedly raped Erika Huggins and threatened to harm her children if she spoke up?  Just asking …

Yesterday, on the birthday of Dr.Huey P Newton we were able to be in community with his family, friends & allies to uplift his work & continue the legacy of service. I am proud to present to the Huey P Newton Foundation a check for 1,250,000 for the Center of Research & Action 🧵 pic.twitter.com/ZXcynQ2hYs

— Assemblymember Mia Bonta (@AsmMiaBonta) February 18, 2024

This kind of thing makes me sick.  I can’t understand what makes people worship thugs.

I SURE WOULD LIKE TO LEAVE CALIFORNIA AFTER THIS … MAYBE TEXAS OR SOUTH CAROLINA: I’ve told Instapundit readers a bit about ACA7 already.  It’s the new proposal to nullify Proposition 209–the 1996 initiative that banned preferential treatment based on race, sex, and ethnicity.

ACA7 passed the Assembly in this past fall.  We’re trying to stop it in the Senate.  That would save everyone a lot of time and money.  Referendum campaigns are very expensive and time consuming.  If we fail to stop ACA7 in the Senate, it will be on the ballot in November, and 2024 will be a wasted year for me and my fellow “NO on ACA7” volunteers.  I don’t mean wasted in the sense of doing something useless … opposing ACA7 is important … but wasted in the sense that we shouldn’t have defend Prop 209 TWICE.

As you may recall, the last effort to repeal Proposition 209 was less than four years ago.  That effort (known as Prop 16) was well financed.  The proponents of the repeal had more than 14 times the amount of money we had.  But we beat the pants off ’em anyway.  Over 57% of voters rejected it.

Three differences could matter this time–one that cuts against us and two that cut against ACA7.  It’s much trickier than Prop 16 was, and that’s a problem for us.  It purports to just create a procedure for making exceptions to Prop 209.  In practice, the exceptions will swallow the rule.  We’ll need to work hard to make sure voters understand that.  The good news is that we have excellent reason to believe that we will be better financed than last time. Last time, big donors thought we were going to lose.  They didn’t want to waste their money.  Now they see that we can win, and some are excited to help.  The second thing that cuts against ACA7 is that this time around it is associated with the reparations movement.  Reparations are not exactly a popular cause.  California wasn’t even a slave state.  But the California Legislature’s Black Caucus has designated ACA7 as part of its “2024 Reparations Legislative Package,” so I guess they think it will fly.

Maybe they were misled by the report of the California Task Force on Reparations, which claims that over 60% of Californians support reparations.  But they only got that number by asking a loaded question:

The California Reparations Report claims that over 60% of Californians favor reparations. But that’s because they asked this LOADED question: “For the atrocities in California, I support/oppose the following specific measures for eligible Blacks.” That’s grossly misleading.… pic.twitter.com/3gBkknnKWk

— Gail Heriot (@GailHeriot) February 13, 2024

A much more professional poll showed that Californians oppose cash reparations by more than a 2 to 1 margin.  That poll showed the support for other kinds of reparations was weak too.  Only 29% of those polled thought Calif was doing “too little” for African Americans.  By contrast, 48% said either “too much” or “about the right amount.”  With those numbers, it is very unlikely that a majority can be mustered for reparations of any kind.

If you’re so inclined, please sign the petition, email senators, and/or like/retweet my tagged “No on ACA7” tweets.  The software for emailing senators allows you to either send a form letter or copy the senators’ addresses and transfer them over to your own email system where you can write your own message.

Meanwhile, I’m going to Sacramento today to talk to Senators and their staff members.  Wish me luck.

I PRAY THAT THIS IS FAKE NEWS:  Beware, a Cheese Crisis Looms.

REPARATIONS:  The members of the Black Caucus of the California Legislature are making it explicit that ACA7 is part of their “reparations package.”  That seems impolitic of them to me.  Californians–particularly those whose families came to America in the last 40 years or so–are unlikely to be excited about paying reparations, whether cash or non-cash.  Already a pro-reparations group is saying the package as a whole is NOT ENOUGH.

Assembly Constitutional Amendment 7 (ACA7) would gut the part of the Cal Constitution that forbids preferential treatment based on race, sex, or ethnicity. It is one of many elements of the Black Caucus’s official “reparations package.”

Reparations are a very unpopular cause.… pic.twitter.com/lInE2NtKT0

— Gail Heriot (@GailHeriot) February 4, 2024

Nothing good will come of this.  I can’t imagine Gavin Newsom is happy about it coming up while he is trying to establish himself as a moderate Democrat.

MORE LAYOFFS NEEDED:

More people need to lose their jobs at the LA Times, starting with whoever is in charge of the Opinions section pic.twitter.com/uJMnsxcHXo

— Enguerrand VII de Coucy (@ingelramdecoucy) February 2, 2024

Sigh.

ONE MORE POINT ABOUT THE MONA LISA:  This is hardly an original thought, but it will make me feel better to say it in one sentence:  Nothing makes it clearer that climate activism is about hating Western Civilization (and not about climate) than attacking one of Western Civilization’s greatest works of art.

I would add, “Throw the book at ’em,” but that would be more than one sentence.

HANG DOWN YOUR HEAD, TOM DOOLEY:  I knew that the well-known folk song, Tom Dooley, was about a real murder.  But, oh my … I didn’t know part about free sex and … uh … syphilis … that is assuming it’s true.

Tom Dooley–actual name Tom Dula–had quite the story (or stories).  I have no idea which version, if any, is the correct one.  I guess I don’t need to know.  But if you’d like to sort it out, you can start with the links above.

Good song anyway.  But I may have to hand down my own head to sing it now.

I WISH I COULD GIVE A SPEECH LIKE THIS:  Instead Konstantin Kisin gave one.  Worth a listen.

HOT! HOT! HOT!:  My partner-in-crime Maimon Schwarzschild and I have just posted our take on Students for Fair Admissions v. Harvard (2023) and the way in which that case brings a new clarity to the law.  (One of the points we make is that the dissents are really hardcore.)

THE CAMPAIGN AGAINST ACA7 MARCHES FORWARD:  If you’re a regular Instapundit reader, you probably already know about my efforts to stop Assembly Constitutional Amendment 7 (or “ACA7“), which is currently pending in the California Senate (after passing in the Assembly on a strict party-line vote).

But if you haven’t heard about ACA7 before, you can read about it here, here, and here.  I posted the text of Bill McGurn’s piece in the Wall Street Journal’s piece here (without the paywall).  And here’s a new piece by Mike Gonzalez in the Washington Examiner.  Word is getting around.

If you’d like to help, one way to do so is write an email to all state senators.  Here is the page on our web site that will allow you send them.  You can either use the standard message provided for you (easy peazy) or (even better) you can write your own message.  To do so, just press “copy” next to the list of senators to attach the email addresses to your clip board and then transfer them over to your email.

And if you don’t have time for that, there’s always just signing our petition if you haven’t already done so.  You don’t have to be a Californian to sign.

Meanwhile, here are more pictures from the “No on ACA7” photo parade we did on Twitter at Christmastime.  (We’ve been doing Zoom meetings with senators this month.  In February, we’ll be live and in person in Sacramento.)

They just can’t stop! California legislators are again trying to gut the state constitution’s ban preferential treatment based on race, sex, or ethnicity. They WANT the power to discriminate. Don’t let them have it. #NoACA7 #KeepDiscriminationIllegal pic.twitter.com/LZH5ntMrd3

— Gail Heriot (@GailHeriot) December 21, 2023

The #NoACA7 photo parade returns!
He can’t vote, but he can dream. And you can bet his parents can vote. #KeepDiscriminationIllegal pic.twitter.com/JLpiUjKgdB

— Gail Heriot (@GailHeriot) December 20, 2023

THEY SAID NO:  Earlier this week, the Supreme Court declined to hear Metropolitan School District of Martinsville v. A.C., a transgender bathroom case.  That’s too bad.  I thought the amicus brief I worked on had a good argument on statutory grounds, and my colleagues and I were prepared to make an equally good argument on constitutional grounds if the petition for certiorari had been granted.  Maybe the Court is waiting for a case that centers on athletics instead.  Or maybe they are just timid.  I hope it’s the former.

SOME OF THE “NO on ACA7” PHOTO PARADE’S GREATEST HITS:  I posted over 100 photos in the “No on ACA7” photo parade on X/Twitter in December.  Most were tagged to Governor Newsom and to Senate leaders. (A technical glitch made a few of them go out without tags.  Never trust me with anything technical.)  Here are a few of my favorites.

They just can’t stop! California legislators are again trying to gut the state constitution’s ban preferential treatment based on race, sex, or ethnicity. They WANT the power to discriminate. Don’t let them have it. Keep discrimination illegal. #NoACA7 pic.twitter.com/4jIawB5CP9

— Gail Heriot (@GailHeriot) December 19, 2023

The Calif constitution’s ban on preferential treatment based on race, sex, or ethnicity was put there in 1996 by Prop 209. Now state legislators want to create an unlimited number of “exceptions.” They will swallow the rule. #NoACA7 #KeepDiscriminationIllegal pic.twitter.com/25EpPCijaR

— Gail Heriot (@GailHeriot) December 21, 2023

The “No on ACA7” photo parade continues! Don’t let California legislators gut the state constitution’s ban on preferential treatment based on race, sex, or ethnicity. #NoACA7 #KeepDiscriminationIllegal #NoACA7photoparade pic.twitter.com/hJrssQHl7a

— Gail Heriot (@GailHeriot) December 26, 2023

(Yes, if you “like” or “re-post/re-tweet” them, Newsom and others will receive a little notification, so if you have a minute and are so inclined, please “like” and “re-post/re-tweet.)

REINING IN CALIFORNIA’S OUT-OF CONTROL LEGISLATURE:  Last week I linked to Bill McGurn’s Wall Street Journal op-ed on our ugly situation here in California.  If you couldn’t get behind the paywall, I’ve included the text of his piece below.  (By the way, if you haven’t done so already, please sign our cute little petition.  You don’t need to be a Californian.)

Making Discrimination OK Again:

The losers in a 2020 California referendum are back again with a sneakier version.

by William McGurn – Wall Street Journal

January 1, 2024

Do they ever give up? Those looking to divvy up Americans by race, that is.

In California they tried to get race preferences approved in a 2020 referendum, but voters rejected it 57.2% to 42.8%. This was a stunning rebuke, not only because the rejection came from residents of a blue state but because the losing side had outspent opponents something like 14 to 1.

In 2023 the Supreme Court weighed in with a landmark ruling that barred colleges from treating people as members of a racial group instead of as individuals—and cast constitutional doubt on all race-based preferences. “Eliminating racial discrimination means eliminating all of it,” Chief Justice John Roberts wrote. Couldn’t be clearer, right?

Not in California. Undaunted state Assemblyman Corey Jackson is pushing a bill called ACA7. It takes aim at the state ban on race preferences that voters put in the constitution in 1996 when they passed Proposition 209. Californians reaffirmed Proposition 209 three years ago at the ballot box.

The language the voters agreed to and the activists hate reads as follows: “The state s