Friday, September 28, 2018

Court Enjoins Arizona Anti-BDS Law

A federal district court has enjoined Arizona's anti-BDS law, saying that it likely violates the First Amendment.

This was the litigation I spoke to NPR about, and I remarked there that Arizona's representations in court of what the law actually did seemed far narrower than what was actually contained in the text. The judge here certainly agreed -- she flatly rejected Arizona's attempt to rewrite the law to forbid only a "total" boycott of Israel, and highlighted portions of the statutory text that swept considerably broader.

My main thesis when talking with NPR was many of these laws were passed to score ideological points and so were not drafted with particular care to ensure that they pass First Amendment scrutiny. Those chickens are now certainly coming home to roost.

One question that to me remains open is if Arizona (or another state) could prohibit a state contractor from boycotting Israel in the course of their fulfillment of the contract. The case in Arizona, for example, dealt with an attorney whose (solo practitioner) firm did pro bono work for state prisoners, but who sought to boycott certain companies implicated in settlement activities. His boycott doesn't really intersect with his work for the state, but to the extent that the Arizona law required him to certify he didn't boycott Israel even in his personal capacity in order to receive a state contract, the court here held that was an unconstitutional condition violating his First Amendment rights.

But suppose instead Arizona said "what you do on your time is your business, but you have to certify that you won't boycott Israel in your capacity as a state contractor" (e.g., he couldn't refuse to provide representation to an Israeli-American prisoner, or he couldn't refuse to use some court software program on the grounds that he objected to its manufacturer's ties with the Israeli government)? Would that be permissible? I think it is, at the very least, a much stronger case, as it is more directly tied to the government regulating its agents behavior as workers rather than as citizens. The government has a strong interest in ensuring that its contractors qua contractors, at the very least, actually do their jobs in the manner prescribed. There is a large difference between the government seeking to limit an everyday citizen's (who happens to have a federal contract) ability to boycott HP products as a means of protesting Israel, and the government seeking to limit (say) it's own procurement officer from doing the same in his capacity as a state employee.

That said, even this version wouldn't be a slam dunk: there is significant potential for ambiguity in when a given (boycotting) action is taken "in your capacity as a state contractor". For example, if our attorney doesn't buy HP products because his firm boycotts Israel, is the failure to have an HP printer a boycott taken in their capacity as a state contractor? What if he buys a new printer during the course of his contract?

My instinct is that in neither case would the action be covered -- unless part of his contract tells him to "buy a printer", then the act of purchasing one is not one taking in his capacity as a state contractor. But the First Amendment's concerns about chilling speech thrives on cases of ambiguity, so I still consider this an open question.

In any event, the Arizona law we have doesn't get us close to that scenario, because the Arizona law is not a law that was drafted carefully to try to avoid First Amendment problems but rather one that written sloppily to make a political point. And if you're a Jewish institution unhappy with the political imagery associated with having prominent anti-BDS laws struck down as trampling upon constitutionally protected freedoms, it might be worth rethinking how confident you are in either the ability or the interest of right-wing legislators and apathetic state bureaucrats to invest in drafting and implementing these laws with the sort of care and precision necessary to survive legal scrutiny.

Tuesday, September 25, 2018

How To Infuriate With Scales

The University of Chicago Law School's grading scale goes from 155 to 186.

For awhile, it was 55 to 86, but employers kept assuming that our tip-top students were actually getting middle-to-low Bs. So they added a "1" to it, on the theory that completely opaque is better than affirmatively misleading.

Of course, within that 155 to 186 range, we still break up grades into the traditional As, Bs and Cs (180 - 186 is an A, 174 - 179 is a B, and so on). So the actual choice of numbers in the scale is pretty much arbitrary -- as the casual introduction of the "1" aptly demonstrates.

I was thinking about this while reading a story of a Florida teacher who was, the headline tells us, "fired for refusing to give students credit for homework not turned in". District policy was to give a 50 for unsubmitted homework; the teacher instead gave such assignments a zero, and so she was terminated.

The story is meant to be a lesson about participation-award style administrators and overly entitled post-millennial brats expecting credit even where they didn't do any work. As the teacher put it, "we have a nation of kids that are expecting to get paid and live their life just for showing up and it's not real."

But I read the story and just thought "aren't they just making a 50 a 0?"

The thing about the traditional 0 - 100 grading scale is that pretty much nobody uses the entire scale. As are (roughly) 90 - 100, Bs 80 - 89, Cs 70 - 79, Ds 60  - 69, and Fs -- a failing grade -- are anything below that, but for all intents and purposes 50 - 59. The bottom half of the scale is pretty much never used (save for something like right/wrong multiple choice tests -- but even those are frequently curved up). I don't think I've ever given a grade between 1 and 49 in my entire life.

So, in effect, the district's policy is simply formalizing what is probably already the functional practice: a grading scale of 50 - 100, where 50 is the lowest grade (reserved for, say, not turning in the assignment at all, or otherwise completely bombing it). Making 50 the bottom of the scale isn't any different (and doesn't represent any more coddling) than placing the bottom at 55, or 155.

Indeed, I think the formal 50 - 100 scale is just better. Assuming I'm right that the bottom half of the 0 - 100 scale is never used except for zeros in the case of simply not doing the assignment, then the primary function of that scale is to massively overweight not turning an assignment (getting a 0) as compared to failing it for another reason (which, presumably, would earn you between a 50 and a 59). It's the equivalent of a five letter grade difference. Whether that's appropriate or not is a normative question, and while I don't think it is beyond argument my instinct is to treat failing grades roughly alike. There is a difference between simply not turning in an assignment and turning in a failing quality assignment, but for me that difference exists inside the bandwidth of a normal F grade (it's the difference between, say, a 50 and 58).

But I doubt that the normative dispute is actually driving anything. I'd wager that all the sense of outrage here is an artifact of the perceived scale -- the idea that students are still getting "credit" for undone work -- which is based on the misapprehension that the numbers on the scale translate into some sort of objective percentage. The advantage of a 155 to 186 scale is that it doesn't delude anyone into thinking it represents anything but an a set of more-or-less arbitrary markers denoting cut-offs between As, Bs, Cs, Ds, and Fs.

Likewise, if the district announced it was switching to a 0 - 50 grading scale (where 0 - 9 is an F, 10 - 19 is a D ... etc.), I doubt anyone would care -- even though it was mathematically doing the exact same thing as having a 50 - 100 scale. Ditto if the scale was 25 - 75, or if it was 0 - 100 but every 20 points represented a different grade (so 80 - 100 was an A, 60 - 79 a B ....). None of those are actually different from one another, and none, I think, would provoke any sort of outrage.

Of course, things are probably not quite that neat (especially if the district hasn't abolished below-50 grades outright). Still, I wonder if the teacher -- so aggrieved at being forced to "give credit" for incomplete work -- actually understands that the real issue here isn't about objective "credit", but about arbitrary scales. I don't want to say she doesn't -- I don't have enough information to conclude that -- but the story as presented doesn't make me wholly confident that she does either.

Monday, September 24, 2018

Dinosaurs and Israel/Palestine

Have you ever met a five-year old who knows everything about one very specific thing?

Dinosaurs is a common candidate, but it also might be trains, or cars, or baseball. But we'll go with dinosaurs for our example.

You can talk to this kid, and he doesn't know the alphabet, or his address, or how to spell his name. But get him on dinosaurs, and suddenly he's using words like "pachycephalosaurus" and can tell you the dietary habits of every creature that lived in the Triassic period. Something about dinosaurs just causes him to collect knowledge like a packrat -- even though, underneath it all, he's still a five-year old with a five-year old's tiny five-year old brain. It's less knowledge than it is an obsession. And so, as fun as it is sometimes to listen to them talk breathlessly about the preferred habitat of the stegosaurus, it isn't really reflective of anything.

Very often, Israel/Palestine is "dinosaurs" for adults.

Obviously, there are plenty of people who do (really) know a lot about the issue, who have thought hard about Israel/Palestine affairs and given it the care and attention it deserves.

But for some reason, it is also true that there are seemingly infinite people who can't tell you their state's capital yet who know (or think they know) everything about it. They may not be able to tell you where the United Nations is located, but they can give you a six hour sermon about the 1922 partition plan or the relevance of the drafting history of U.N. Resolution 242 as it pertains to the final status of the West Bank. They haven't ever heard of John Locke, but they have intimate familiarity with Haj Amin Al-Husseini's public speeches or Ze'ev Jabotinsky's personal correspondence, and boy howdy do those letters tell you everything you need to know about Zionism or anti-Zionism in 2018.

It's a marvel to watch, in its way. And it exists on both sides, which means that internet spectators can, whenever the mood strikes, watch two figures with a combined nine emojis in their Twitter profiles go to war over whether Gaza is "occupied" under the legal framework set out by the Hague conventions.

But, underneath all that "knowledge", they still don't really know anything. It's an obsession, not knowledge. I've never once seen the sort of breathless recitation associated with this type result in a productive conversation. Not once. It's adults playing with their dinosaur dolls.

Sunday, September 23, 2018

An Alarmingly Late Realization (About Rings)

You know that game people play, where they say some really obvious mistaken belief they held until were alarmingly old?

Well, I just recently discovered mine.

In The Lord of the Rings, there are various scenes where Frodo puts on the One Ring. In the mythology of the movies (and books), the One Ring makes its wearer invisible to ordinary mortals (say, orcs searching nearby) but quite visible to the ring's master Sauron. Moreover, we are told, the ring "wants to be found" -- it exerts a power over its owner, tempting its holder to wear it so that Sauron knows where it is so that he can get it back.

Anyway, in these scenes Frodo puts the ring on, and then encounters the terrifying gaze of Sauron, at which point he struggles to take it off. He pulls at the ring, which seems to resist him until finally with a grant yank he pries it loose. And for all my life, I assumed Frodo was struggling because the One Ring was resisting him.

But now that I, for the first time in my life, wear a (wedding) ring, I've realized the more banal truth: rings -- of all kinds, even ordinary mortal wedding bands -- kind of require a bit of yanking to get off one's finger.

It just never occurred to me -- until age 32 -- that rings required effort to remove under perfectly normal circumstances.