FLASHBACK: Remember when the Supreme Court was asked to decide whether race-preferential affirmative action policies at colleges and universities were MANDATORY? The case was Schuette v. Coalition to Defend Affirmative Action, Integration, and Immigrant Rights and Fight for Equality By Any Means Necessary. The April 22, 2014 decision came out okay: Michigan voters were permitted to prohibit racial preferences.   But there were dissents by Sotomayor and Ginsburg.

If you are wondering about the respondent’s peculiar name, the answer is that, yes, they were very serious about the “By Any Means Necessary” part. “BAMN” (as it calls itself) is a violent offshoot of the Revolutionary Workers League. But even offshoots of the Revolutionary Workers League make it into the Supreme Court sometimes.

Pre-decision, I wrote a short essay about the case (and a bit about BAMN) in The Parade of Horribles Lives.

JOHN FUND WARNS:  Blind faith in one’s ideological “team” members can be dangerous, whether it’s faith in Andrew McCabe for the liberals or Steve Stockman for the conservatives.

SENATE DEAL TO CONFIRM EEOC NOMINEES?:  That’s what Paul Mirengoff hears.  A deal could package Chai Feldblum (originally an Obama-appointee) and Trump nominees Daniel Gade (a non-lawyer disabled vet) and Janet Dillon (General Counsel to Burlington Stores).

JEFF JACOBY THINKS WE USE THE F-WORD TOO MUCH IN PUBLIC DISCOURSE:  Ordinarily, I would agree with him wholeheartedly.  But he leads with the example of Red Sox Designated Hitter David “Big Papi” Ortiz just after the Boston Marathon massacre.  At the first home game after the incident, just hours after Dzhokhar Tsarnaev had been apprehended, there was a ceremony honoring the victims and first responders.  Big Papi took the microphone: “We want to thank you, Mayor Menino, Governor Patrick, the whole police department for the great job they did this past week,” he said.  “This is our f**king city.  And nobody’s going to dictate our freedom.  Stay strong,” he said.

If the f-word has any place in public discourse, that has to be it.   Among other things, Big Papi can lay claim to the baseball exception to all otherwise-applicable rules of etiquette.  (I kind of remember reading in Emily Post that such an exception exists, didn’t I?)  Moreover, the far more egregious obscenity had occurred earlier in the week.

IN THE SIXTIES, STUDENT ACTIVISTS KNEW WHAT “VIOLENCE” MEANT: And they weren’t shy about threatening it. On this day in 1969, a gang of rifle-toting Cornell students marched out of the building that they had been occupying for days. The country was shocked by the incident and mesmerized by the photographs documenting it. Donald Alexander Downs tells the story of that harrowing day (and the spineless university leadership that led up to it) in Cornell ’69: Liberalism and the Crisis of the American University.

These days one gets accused of violence for merely disagreeing with students. On the surface that might sound almost comforting. Your right of free expression might be threatened, but surely social justice warriors who are so very sensitive to the power of words that sting would be dedicated to non-violence themselves, wouldn’t they? Well … uh … don’t count on it.

GET ME OUT OF HERE:  Attorney General Sessions is being criticized for establishing a policy under which Immigration Administrative Law Judges will be evaluated in part on their efficiency in deciding cases (even though I understand this is a common basis for evaluating ALJs across the federal bureaucracy).  Interestingly, when I visited immigration detention centers for the U.S. Commission on Civil Rights, the most common complaint of detainees was that the decision making system was taking too long. No one I spoke to had any serious complaints about conditions at the detention centers.

ONCE AGAIN I OVERHEARD A DISCUSSION (this time on a flight from San Diego to Chicago) about how to encourage more minority students into STEM fields. This seems to be everywhere these days. Once again the answer can be found in Want to Be a Doctor? A Scientist? An Engineer? An Affirmative Action Leg Up May Hurt Your Chances. Note that the logic applies not just to affirmative action beneficiaries, but to legacy beneficiaries, athletes or anyone who is admitted to a competitive school on the basis of a special preference.

IS THE CALIFORNIA DEMOCRATIC PARTY THE NEXT STARBUCKS?: “Police handcuff black woman at San Diego Democratic Party meeting, which ends in disarray.”

SURPRISE! STUDENTS WHO MISBEHAVE A LOT GET DISCIPLINED MORE OFTEN THAN OTHER STUDENTS: It’s really stunning when one hears of school districts getting in trouble because they discipline disabled students at higher rates than non-disabled students. The problem is that we DEFINE students who chronically misbehave as “disabled.” So, of course, they get disciplined more often than non-disabled students. How could they not? Teachers have to maintain order in the classroom if any learning is to take place.  The U.S. Commission on Civil Rights held a briefing on this and other discipline-related topics recently. It had a certain Alice-in-Wonderland feel to it.

For my law review article of the racial aspects of the topic, read The Department of Education’s Obama-Era Initiative on Racial Disparities in School Discipline: Wrong for Students and Teachers, Wrong on the Law.

A REAL LIBERTARIAN MOMENT:  HAPPY 75^th BIRTHDAY TO UNIVERSITY OF CHICAGO LAW PROFESSOR RICHARD A. EPSTEIN*:

I am not the only person I know who affectionately refers to Richard as “the smartest person in the world,” and … well … we’re really not joking.  There may be more lively minds out there somewhere.  But I haven’t found them.

My alma mater, the University of Chicago Law School, will be celebrating Richard and his many accomplishments this weekend, and I hope to be on hand to help. I wrote this little recollection for the book the Law School is preparing for him:

It was late September, 1978—my first day of law school.  Sure, I was a little scared.  But mostly I was feeling confident … maybe even a little full of myself.  I was a law student at the University of Chicago for goodness sake.  What could be better?

I was going to defend the Constitution …

I was going to let justice roll down like waters and righteousness like an ever-flowing stream …

And I had a gorgeous leather briefcase to prove it.

The only problem on that sunny Hyde Park morning was that I hadn’t really worked out the details on all that justice stuff.   But I would.  I knew I would. The combination of the University of Chicago and that briefcase really seemed unbeatable.

Then came Richard Epstein, speaking rapidly and in perfectly formed paragraphs. His subject was the grand old case of Pierson v. Post.   He took great delight in showing that I couldn’t even settle on the just solution to a dispute over a dead fox (with or without my wonderful briefcase).  As for defending the Constitution, that would need to be put on hold … maybe even indefinitely.

That morning was the last time I remember feeling confident about anything.

Incidentally, I still have the briefcase. It’s the only remnant of my pre-Epstein self.

*Yes, I know that Richard’s primary affiliation these days is with New York University.  But as a University of Chicago alumna I refuse to acknowledge it.

DAMNED IF YOU DO, DAMNED IF YOU DON’T: Two weeks ago, Target settled a class-action lawsuit filed by the NAACP Legal Defense Fund for $3.74 million. The claim was that by asking job applicants about their criminal records, Target was discriminating against African Americans and Hispanics, since they are more likely to have a criminal record.

Meanwhile, in response to public pressure, Uber is upping its efforts to check into its drivers’ criminal backgrounds.

Will Uber now become a lawsuit target? Maybe.

This is an area of the law that really jumped the track. The EEOC’s policy is so vague that employers frequently have no idea what they can or cannot do. But more important, declining to hire someone because he has committed crimes isn’t race discrimination. The EEOC is not supposed to have jurisdiction under Title VII unless the employer has discriminated on the basis of race, color, religion, sex or national origin.

Alas, however, the “disparate impact” theory of liability (upon which the EEOC and the NAACP Legal Defense Fund rely) is well-entrenched in the law. For the skinny on how that came to be and why it is a terrible idea, read my Statement on the EEOC’s Criminal Background Check Policy.

(Remember when MLK said he looked forward to the day when his children would be judged by the content of their character rather than their skin color?   Judging job applicants by their criminal record is as close to judging them by the content of their character as we mortals can hope to get. Sure, some people deserve a second chance, but shouldn’t that be up to the employer?)

MORE NAILS IN LIMITED GOVERNMENT’S COFFIN?: Did you know that Congress claims its authority to ban hate crimes based on race or color from the 13th Amendment to the Constitution? That’s the amendment that bans slavery. It’s … well …. kind of a stretch, since, as you may have noticed, hate crimes aren’t slavery.  And Congress wasn’t foolish enough even to claim it enacted the law to keep slavery from returning.

The Supreme Court will likely be asked to address the issue in Metcalf v. United States, a case recently before the U.S Court of Appeals for the Eighth Circuit.  It’s fair to say that these days the 13th amendment is one of the Left’s favorite vehicles for expanding governmental power.

BTW: No, I don’t endorse hate crimes. Indeed, I endorse neither hatred nor crime. But advocates of limited government under the Constitution do not always get to choose their allies.

Also:  Congress claims its authority to ban other kinds of hate crimes on the Commerce Clause.

TODAY IS THE 124^th ANNIVERSARY OF NIKITA KHRUSHCHEV’S BIRTH: Khrushchev was all too willing to assist with Stalin’s infamous purges and was Stalin’s enforcer in Ukraine.   But at least later in life, he came to understand that Stalin was a dangerous maniac. After Stalin’s death, he emerged (hands bloodied) as the Soviet Union’s leader from 1953 to 1964 and pursued a policy of De-Stalinization.

Khrushchev’s grip on power was never as tight as Stalin’s.  On the night of his ouster (engineered by Leonid Brezhnev), he is reported to have told a friend:

“I’m old and tired. Let them cope by themselves. I’ve done the main thing. Could anyone have dreamed of telling Stalin that he didn’t suit us anymore and suggesting he retire? Not even a wet spot would have remained where we had been standing. Now everything is different. The fear is gone, and we can talk as equals. That’s my contribution. I won’t put up a fight.”

Khrushchev is famous for having told a room full of Western ambassadors, “WE WILL BURY YOU!” Instead, he is buried at Novodevichy Cemetery. Brezhnev refused him a state funeral or Kremlin burial. To Brezhnev, he was just an annoying squish.  Take a look at his monument at the cemetery. It’s in black and white–a fitting metaphor for the man.

PREDICTABLE: #HashtagDiplomacyHasn’tExactlySavedTheWorld—It was four years ago today that Boko Haram militants in war-torn northeastern Nigeria kidnapped hundreds of young schoolgirls. A few escaped. And as a result of negotiations with the militants, about a hundred have since been freed. But more than a hundred are still missing. Some are thought to be dead. And there have been many more group kidnappings by Boko Haram.

O CAPTAIN!  MY CAPTAIN!  On this day in 1865, Abraham Lincoln was shot at Ford’s Theatre.

PRONOUN WARS: A self-described radical feminist (of the kind now being called “Trans Exclusionary Radical Feminists” or “TERFs”) is thuggishly attacked by a male-to-female transgender. At the latter’s trial for “assault by beating,” U.K. District Judge Kenneth Grant admonishes the victim to refer to her transgender attacker as “she.” She balks: “I’m used to thinking of this person who is a male as male.”

It is interesting to see that not all feminists are buying into the new thinking (and that indeed there is now a term for those who don’t).  The Left coalition is under considerable strain.

FIFTEEN MINUTES OF FAME SHOULD BE MANDATORY FOR EVERYONE: Gay rights advocates want Illinois schools to be required to teach LGBT history.

SAFE SPACES FOR REASONED DISCUSSION: UCLA law professor Richard Sander visited Middlebury College last week at the invitation of College Republicans. Good for him.  And kudos to the College Republicans for having the intestinal fortitude to insist bringing in a distinguished, conservative speaker with something to say. Conscientious students must not let the campus brown shirts win. If they shout down one speaker who they find offensive, invite three more in their place. The more people outside of colleges and universities hear about it, the better.

Sander is the leading academic researcher on the topic of “mismatch” (though Thomas Sowell coined the term long ago). For a primer on mismatch, try A Dubious Expediency: How Race-Preferential Admissions Policies on Campus Hurt Minority Students.

THE VIRUS HAS SPREAD TO LAW SCHOOLS:  Students at CUNY Law protest and heckle Prof. Josh Blackman’s lecture on campus free speech.

INTERN NATION: I have a lot of sympathy for students and recent college grads who complain that they shouldn’t have to work for free as interns to order to land a paying job. When I was fresh out of school that was rare. But I would have more sympathy for them if they understood how the over-regulation of the employment relationship is what leads employers to shy away from hiring an inexperienced employee before he or she has served a “try-out period.” “Intern nation” is the result of the fact that it is very hard to fire an employee who turns out to be an uncooperative jerk without risking a lawsuit. Instead of recognizing the problem, Millennials ask for more regulation.

ATTENTION CONSERVATIVE/LIBERTARIAN ATTORNEYS WHO WOULD LIKE TO HELP REIN IN THE VORACIOUS FEDERAL LEVIATHAN: Please pay attention to Roger Clegg’s WSJ Letter to the Editor. He speaketh the truth:

Regarding “Judges Can Check the Administrative State” by Peter J. Wallison (April 6): The best candidates for the kind of judicial action Mr. Wallison calls for are the disparate-impact regulations that federal agencies have adopted, supposedly pursuant to the enforcement of Title VI of the 1964 Civil Rights Act, which bars discrimination on the basis of race, color and national origin in federally funded programs and activities.

That’s because the Supreme Court has ruled repeatedly that this statute bans only “disparate treatment” and doesn’t ban practices that have only a “disparate impact.” …

Here’s something to help you present the legal point. Happy lawsuit!

HAVE 1 IN 5 COLLEGE WOMEN BEEN RAPED?: No, it isn’t true. If it were true, we’d have called out the National Guard long ago. Nor is it true that 1 in 5 college women have been “sexually assaulted.” But the figure gets repeated anyway. But have you ever wondered if there are parents, particularly immigrant parents, out there who believe it and hence discourage their daughters from even attending college?

It happened to my grandmother at the tail end of the White Slavery Panic (and I wrote about it in my essay on “sex-trafficking”). During that unfortunate period in history it was claimed that women were routinely being snatched off city streets and forced into prostitution. I’m sure it happened way too often. But fortunately it wasn’t nearly as common as people were led to believe. Alas, my great grandparents hadn’t gotten the memo. So when my grandmother was granted admission to Radcliffe College (then Harvard’s sister school), they agonized over it for a while, but ultimately told her she couldn’t go. It would be too dangerous. She had to stay on the farm with them until she married.

People who exaggerate the dangers to women aren’t heroes. They are the reason my grandmother had to give up her dreams.

IT’S STILL EQUAL PAY DAY HERE ON THE WEST COAST: And here’s one more reason “wage gap” statistics are highly misleading: Women are more likely to have jobs with high benefits—like government. A study by Dr. Helen Levy of the University of Michigan showed that once you control for health benefits another chunk of the wage gap disappears.

IT’S STILL EQUAL PAY DAY: These figures are a little old (2009) and they are not adjusted for number of hours worked (although the comparison includes only “full-time” workers). But they show something interesting. Childcare is one of the many drivers of the figures. Women (very often by choice) come in and out of the job market during their child bearing and rearing years. Over long periods of time, that takes its toll on women’s salaries. But note that the gap starts to close a little in the post-child rearing years.

• Women 20-24 make 92.9% of men’s earnings.
• Women 25-34 make 88.7%
• Women 35-44 make 77.4%
• Women 45-54 make 73.6%
• Women 55-64 make 75.3%
• Women 65+    make 76.1%

There are many angles to this story.

IT’S EQUAL PAY DAY: When you hear that women are paid 79 cents on the dollar, remember that men are almost 13 times more likely to suffer fatal injuries on the job. Either men are a lot more accident-prone (nope) or they are in more dangerous jobs (yep). The 79 cent figure does not take into consideration that the comparison is not between individuals doing the same job.