Curse You Mandy

A friend of mine gave my laptop a virus, so now its been suspended from the Carleton network. It looks like I won't be able to fix it until at least Monday.

Boo. Posting will be reduced accordingly until then.

Inertia Is A Property Of Matter

There was something about how that phrase popped up randomly in the theme song to "Bill Nye, The Science Guy" that made it always stick with me.

Anyway, a new study by The Institute for Marriage and Public Policy purports to show that, even where gay marriage is legalized, many gay people are not partaking in the institution. The rate is lowest in Europe (1-5%) and highest in Massachusetts (16.7%).

The study itself does not make normative conclusions based on the data (though the IMPP is definitively anti-gay marriage). However, Minnesota Law Professor Dale Carpenter is almost definitely right to say that this information will make its way into the debate. Conservatives might use it to say that gay people don't even want gay marriage, liberals will respond that this has absolutely no bearing as to whether the small proportion that do deserve the full benefits of the institution. In any event, the classic conservative argument against gay marriage is that the change in definition alone somehow harms the institution, which is utterly divorced from the number of people who enter into the arrangement (no pun intended).

Carpenter also notes that there seems to be a correlation in the data between places that a stronger marriage culture generally, and rates of gay marriage. Marriage is a much healthier institution in Massachusetts than in Europe, and consequently gay marriage rates are far higher there. I'm not sure what it means, but it seems interesting.

I'd just add to this analysis that we might be jumping the gun a bit here. Gay marriage has been legal for a total of four years at the longest (in The Netherlands), and less than that in the one state that currently allows it in America. I think it's a bit facile to expect gay couples to immediately jump into a marriage the moment it is recognizable. The prohibition against gay marriage probably discouraged the formation of long-term, monogamous relations (not that it obliterated them, just made them less likely), and at the very least it reduced the need for the type of long-term commitment that the prospect of marriage always holds on the horizon. It shouldn't surprise us that there might be a transistion period. And of course, continued prejudice against homosexuals, a desire within the community for differentiation, and plain old cultural barriers all factor into this data. Four years simply isn't a lot of time when you're starting from point zero. After all, 35 years after Loving v. Virginia the interracial marriage rate was stuck at 2.9%. Social integration after centuries of oppression takes time.

UPDATE: Professor Carpenter explores why gay couples aren't getting married yet. I think he hits the nail on the head.

"Controversial" and "Idiot" Don't Have To Be Synonymous

Inside Higher Ed has an article about college inviting "controversial speakers" for lectures. In sum, they say that college's should not shy away from controversy and should recognize the importance of providing alternative perspectives. Which is right. But the article also includes a comment arguing the following:

The problem that isn't being addressed here is that provocateurs like Moore and Coulter are brought in as speakers in the first place. They command high fees to present recycled tedious, predictable polemical rants that lack intellectual depth and rigor. They substitute cleverness and wordplay for genuine argument, and they offer little or nothing that is new or imaginative.

The money would be better spent on bringing in genuine scholars and intellectuals (our college has recently hosted W.S. Merwin and Seamus Heaney, for instance), in which case the need for this sort of policy would vanish.

Which is also right. The reason that Ann Coulter and Michael Moore shouldn't be invited isn't because they are too controversial for our tender ears. It's because they are morons. I like having interesting speakers at Carleton, from all sides of the political divide (we had, among others, Jonah Goldberg and Derrick Bell this year). Frothing polemics are "interesting" only in the way a car wreck is.

Via Daniel Solove.

It Pays To Be Diverse

Via Feminist Law Profs, the benefits of diversity in the workplace:

New research from Tufts University indicates that diverse groups perform better than homogenous groups when it comes to decision making and that this is due largely to dramatic differences in the way whites behave in diverse groups--changes that occur even before group members begin to interact.

"Traditional arguments in favor of diversity often focus on ethics, morality and constitutionality," said Samuel R. Sommers, Ph.D., assistant professor of psychology in the School of Arts and Sciences at Tufts University. "I wanted to look at the observable effects of diversity on performance."

In a study involving 200 participants on 29 mock juries, panels of whites and blacks performed better than all-white groups by a number of measures. "Such diverse juries deliberated longer, raised more facts about the case, and conducted broader and more wide-ranging deliberations," said Sommers. "They also made fewer factual errors in discussing evidence and when errors did occur, those errors were more likely to be corrected during the discussion."

Surprisingly, this difference was primarily due to significant changes in white behavior. Whites on diverse juries cited more case facts, made fewer mistakes in recalling facts and evidence, and pointed out missing evidence more frequently than did those on all-white juries. They were also more amenable to discussing racism when in diverse groups.

I'm not sure why the "surprising" part was surprising. I guess the stereotype is about all the benefits them crazy Black folk will get from being exposed to rational, civilized White guys. But as it turns out, it's White people whose performance needs a shot in the arm. Go figure [/sarcasm].

That aside, studies like this are absolutely, positively critical for pushing integration in American society. First of all, Court's are more likely to uphold diversity-enhancing programs when there is empirical data showing that such programs lead to meaningful benefits for the entity that organized them (i.e., higher productivity in an office, or better grades at a university). Second, such studies help break down racist mentalities that present Blacks as a drain on their communities, contributing little of value to society, and generally of being practically worthless. Third, if one believes that White people will only work to improve the status of racial minorities when it is in their interest, then the more data out there that shows the benefits for Whites of interaction with Blacks, the more better. I'll admit this holds risks--my first thought upon writing that scenario was of Blacks-as-steroids: "Just inject Black people for increased performance!" But ultimately, I think the positives outweigh the negatives.

Don't! It's a Trap!

Crooked Timber has the skinny on an interesting program by the Ayn Rand Institute:

The financial support arrangements and tuition waivers are rather generous.

If any CT readers want to apply for a grant from the Ayn Rand Institute the form is here. Although I suppose this may be a trick; if you apply for a grant you thereby prove yourself to be unworthy of one.

Devious folks, those Objectivists.

Yom HaShoah

It's Holocaust memorial day, and I concur with Ampersand: the best way to remember the Shoah is to put your name behind the message of "Never Again."

Belle of D'Blog

Belle Lettre of "Law and Letters" makes the blogroll, because her posts are fascinating, because her analysis is trenchant, and because she has an official degree in Critical Race Theory, which is uber-cool.

Calling me the "most ambitious and crazily well-read pre-law sophomore in the blogosophere" is also appreciated, but not required.

Torture in Tennessee

Once the dike has been breached...

The Agitator has the transcript and audio tape (warning: very explicit) of a brutal case of what can only be described as torture by the police of a drug suspect:

The police are attempting to get the illiterate man to sign an admission of guilt without telling him what it says. They beat him, over and over, hook electrodes up to testicles and shock him, threaten to kill him, and threaten to go after his family. Early news accounts reported that the torture continued well beyond the end of the recording. After the tape ran out, the same deputies apparently repeatedly submerged the guy's head in a fish tank and a bath tub, threatening to drown him unless he confessed.

How have we sunk to such depths? Listening to the audio was like putting an earpiece to a Soviet gulag. And that's not a comparison I make lightly.

If it wasn't for the extraordinary audio tape, this barbarism probably would never have been dealt with:

It's worth keeping in mind when you read about a case in which a suspect claims his confession was beaten out of him, and police, to a man, keep to a remarkably tight story stating otherwise (as they did in Siler's [the victim's] case, before the audio came out).

The transcript bears this claim out--the officers tell their victim what "happened"--that they came in, he first fled then resisted arrest, nearly beat them up, so they had to fight back (by electrocuting his testicles, obviously).

May they rot in jail for the rest of their miserable lives.

Via Sebastian Holsclaw.

Remember: Bullies Always Win

This deserves to be saved for posterity:

The Leader

He's a green guy with a big brain. He's the Hulk's arch-enemy. Kind of obvious, really. Hero: Big green dumb strong guy. Villain: Small green smart weak guy. It's not really dripping with creativity, and the moral ends up being "clever planning and logic can never win against the sheer physical brutality of a guy who barely even knows where he is." This is not a moral that your average comic book reader wants to hear.

From The Book of Ratings: Marvel Supervillians.

The Power Within

Lawrence Kaplan in The New Republic (also The LA Times) contrasts the behavior of college activists regarding the Iraq war ("Immoral! Bring the troops home!") and Darfur ("Moral obligation! Intervene already!").

As their criticism of the particulars of the Iraq war has hardened into a broader indictment of U.S. foreign policy, the mostly progressive voices calling for action in Darfur have become caught in a bind of their own devising. Even as they demand intervention in Sudan, they excoriate Washington for employing U.S. military power without due respect to the opinion of the international community and against nations that pose no imminent threat to our own--which is to say, precisely the terms under which U.S. power would have to be employed in the name of saving Darfur.

Kaplan isn't really speaking to me here, because I supported Iraq and support Darfur. But while I do see this dynamic somewhat, I think he overstates the case. In fact, the college students calling for Darfur intervention have varied and interesting perspectives on Iraq.

First, I'd note that the leadership for the anti-Iraq and the pro-Darfur groups aren't really the same. I know many of the top guns in our college chapter of STAND (Students Taking Action Now: Darfur), and while I suspect that most of them are not supporters of the Iraq war, they aren't and haven't been focusing their activist energies on the subject. And insofar as they are opposed to the Iraq war, it is generally a more sophisticated opposition than the shrill refrain of the partisans.

That moves me to the second point: Often times, pro-Darfurites use the genocide as a reason against the Iraq war. The case basically boils down to a zero-sum argument: if we weren't in Iraq, we could be in Darfur by now. This also cuts nicely against my argument in favor of the Iraq intervention on humanitarian grounds; if I was really serious about human rights, why didn't I dedicate my energies to a far more serious ethical catastrophe? For these people, a military solution is not just grudgingly accepted, but actively demanded. I don't really think foreign policy is zero-sum like they say, and in any event Darfur was barely on the radar in 2003. Besides, Kaplan is right that an immediate withdrawal from Iraq would yield a bloodbath that would be unacceptable from a humanitarian perspective.

I've heard complaints about tactics, and how the Bush administration mislead us in the run-up, and that it was a poor strategic move. What I'm not hearing is the reflexive aversion to US power or unilateralism that would make a Darfur intervention logically incoherent.

Although Kaplan starts his piece out talking about college students, he very rapidly moves to policy makers, pundits, and national organizations. Perhaps the argument he makes is stronger for these people. But at least here at Carleton, we take the stakes of this conflict seriously. We know that Darfur can only be saved by aggressive US action utilizing military force. In a dramatic reversal of 2003, in 2006, Iraq is the blip on the ethical radar compared to the murderous titan in Africa.

You Don't Belong Here

According to Crooked Timber, The Netherlands is considering a law that would allow the deportation of young Dutch citizens of Caribbean descent back to their country-of-origin for petty crimes. Again, we're talking about "citizens" here. The bill specifically applies to people age 16-24 who come from Dutch-controlled islands in the Caribbean (Netherlands Antilles and Aruba). If they commit a crime, they can be sent back to those islands and not allowed back into Holland proper. That makes the issue a little more complex, but not much: it's like forcing a Native American who commits a crime to return to the Reservation and never be allowed to return to mainstream America, or a native Hawaiian to go back to the islands.

Details here (PDF). Sketchy stuff. I'm so glad no American legislator would call for expelling American citizens from America.

Oh gosh, did I just indulge in classic leftist Blame America Firstism?

Bad Blogger!

Sounds Like Abstinence Plus To Me

Via Mirror of Justice (the Catholic Legal Theory blog) comes a really interesting statement by several top Catholic officials on abortion and condom usage.

On abortion, [Cardinal Carlo Maria] Martini firmly upheld the moral teaching of the church, but acknowledged the complexity of writing it into public policy.

"It seems to me difficult [to imagine] that, in situations like ours, the state would not distinguish between acts that are punishable in a penal fashion, and acts for which a penal solution doesn't make sense," he said. "That doesn't mean a 'license to kill,' but that the state doesn't intervene in every possible case. Its efforts should be to reduce the number of abortions, to impede them with every means possible (above all after a certain period from the beginning of the pregnancy), to reduce the causes of abortion, and to take precautions so that women who decide to take this step, especially during the period when it's not illegal, do not suffer grave physical damage or have their lives placed at risk."

Martini noted that the risk of serious physical injury is especially grave in the case of clandestine abortions, and hence said that, all things considered, Italy's abortion law -- which permits abortion during the first trimester -- has had the positive effect of "contributing to the reduction and, eventually, elimination" of back-alley procedures.

In a case in which a fetus threatens the life of the mother, Martini said "moral theology has always sustained the principle of legitimate defense and of lesser evil," in order to justify a procedure that would save the life of the mother while terminating the pregnancy.

That's good rhetoric, and I think a "realistic" position that many Americans who feel ambivalent about abortion would subscribe to. But the real important stuff, from my view, comes with regard to condom usage:

Similarly, asked about the use of condoms to combat the spread of HIV/AIDS, Martini responded: "Certainly the use of prophylactics can, in some situations, constitute a lesser evil," mentioning the case of a couple where one partner is infected and the other isn't.

The problem, Martini said, isn't really the ethical analysis. The problem is the PR headaches that follow whenever a church official says this out loud. To put it bluntly, anytime a senior church official says that use of a condom might be a "lesser evil" in the context of a deadly disease, the next day's headlines trumpet "Church okay with condoms," which is not the same message.

"The question is really if it's wise for religious authorities to propagandize in favor of this method of defense [from HIV/AIDS], almost implying that other morally sustainable means, including abstinence, are put on a lower level," Martini said. "The principle of a 'lesser evil,' applicable in all the cases covered by ethical doctrine, is one thing; another thing is who ought to express these judgments publicly."

In upholding the moral tolerability of condoms as a "lesser evil" in the context of HIV/AIDS, Martini joins Cardinal George Cottier, theologian of the Papal Household under John Paul II; Cardinal Godfriend Danneels of Belgium; Cardinal Javier Lozano Barragan, President of the Pontifical Council for Pastoral Health; Cardinal Cormac Muphy-O'Connor of Westminster, England; and Bishop Kevin Dowling of South Africa.

In 2004, the Indian bishops launched an awareness campaign about HIV/AIDS that includes information on condoms, and in 2005, a spokesperson for the Spanish bishops said that condoms might be justified in some circumstances to combat the disease.

Msgr. Angel Rodriguez Luño, an Opus Dei priest, a professor at Santa Croce University in Rome, and a consultor for the Congregation for the Doctrine of the Faith, has said there's actually not much debate over the theology; most moralists, he said, believe the argument for condoms as a lesser evil is fairly clear. The question is how to explain that conclusion in a way that doesn't seem to offer a free pass for irresponsible sexual behavior.

"The problem is, anytime we try to give a nuanced response, we see headlines that say, 'Vatican approves condoms,' Rodriguez Luño told The Washington Post Jan. 23, 2005.

"The issue is more complicated than that. From a moral point of view, we cannot condone contraception. We cannot tell a classroom of 16-year-olds they should use condoms. But if we are dealing with someone or a situation in which persons are clearly going to act in harmful ways, a prostitute who is going to continue her activities, then one might say, 'Stop. But if you are not going to, at least do this.'"

First, recall the affiliation of Msgr. Luno. I'm very skeptical that Opus Dei is the evil conspiratorial organization depicted in The Davinci Code, but I think it is fair to surmise they are quite conservative. Now, look at how he says condom use shoud be dealt with: "Stop. But if you are not going to, at least do this."

Isn't that exactly what "abstinence plus" education is?

Admittedly, Luno says that we shouldn't tell a classroom of 16-year-olds that they should use condoms. But the question is how we read that former statement in relation to the latter. If X person is going to engage in potentially harmful sexual activity (as both teenage sex and prostitution qualify as), the first goal of the Church (and by extension, the schools) should be to say "stop." But if X is definitely going to continue, then the next goal should be to minimize harm, via condom use.

The trick is how to bring up condoms without endorsing them. And seeing how the media loves to slap misleading headlines on issues, I really can sympathize with the Church's plight here. But I do think that "abstinence plus" toes this line pretty well. For all the talk about Catholic dogmatism, the religion is a lot more pragmatic than many people give it credit for. And I think that intelligent liberals can very easily make common cause with this strand of Catholic thought.

Drinking and Culpability

Of importance to the Duke rape case, Michelle Anderson points us to an interesting study about how alcohol affects people's perceptions of culpability in rape cases.

How will intoxication of the parties affect an assessment of blame? Studies on the issue are fascinating. In a 1982 study (Richardson & Campbell, The Effect of Alcohol on Attributions of Blame for Rape, 8 Per. Soc. Psychol. Bull. 468 (1982)), participants read a story about a college student raped at a party. Some students read a story in which the attacker was drunk and some read a story in which the victim was drunk. The male attacker was held less responsible for the rape when he was intoxicated than when he was sober. By contrast, the female victim was held more responsible when she was intoxicated than when she was sober.

In a 1997 study (Stormo et al., Attributions about Acquaintance Rape: The Role of Alcohol and Individual Differences, 27 J. Applied Soc. Psychol. 279 (1997)), participants assessed rape scenarios involving two college students who meet at an off-campus party. Students read stories that varied the level of alcohol consumption by the perpetrator and victim. The study indicated:

Results of the present investigation support and extend previous research indicating that intoxicated behavior differentially influences the degree to which responsibility and blame are attributed to the victim and perpetrator depicted in a rape scenario. Whereas the bottle may grant a pardon to the perpetrator, it tends to hold greater blame for the victim.

The study continued, "When portrayed as moderately or highly intoxicated, the victim was assigned significantly more responsibility/blame and the perpetrator significantly less." It noted, "At the same time, perpetrators were held less responsible and blamed less when portrayed as moderately or highly intoxicated."

Hence, his inebriation tends to taint her and exonerate him. Likewise, her inebriation tends to taint her and exonerate him. Boys will be boys. Girls had better not be drunken sluts.

The double standard has an exception, however. The 1997 study indicated that, if the victim was perceived as more inebriated than the perpetrator, he was perceived to be more blameworthy. "This suggests," researchers wrote, that participants "placed additional blame on the perpetrator when he seemed to be taking advantage of someone more incapacitated than he."

One thing that I wish the studies included (or maybe they did and Professor Anderson didn't include them) was if the gender of the study participants meaningfully impacted there response. Such data would definitely help refine some of the issues I raised in "Rape for the Perspective of its Victims."

But in spite of that, I think this sort of mentality is important to keep in mind as we evaluate the Duke case. The role of alcohol is definitely going to come up as the trial continues, and it's important that, when evaluating it as a factor, we do not do so in a discriminatory manner.

Who?

I stumbled across this while doing research for my Philosophy Professor overlord boss.

Chndran Kukathas, "Cultural Rights Again: A Rejoinder to Kymlica," Political Theory 20 (Nov. 1992): 674-680

In the early 1950s, social scientists began a comprehensive poll of Indian villages to determine how many were aware that British rule had ended in 1947. The survey was abandoned when it was discovered that most villagers did not know the British had arrived (680 n.1).

That tickles me.

The Hate Speech Ruling Crits Were Waiting For

The 9th Circuit has just issued a 2-1 decision in Harper v. Poway Unified School District. The majority opinion (linked above) was by Stephen Reinhardt, Judge Alex Kozinski dissented here.

First, the facts. Stephen Harper is a student in the Poway Unified School District who, following the "National Day of Silence" in which gay and gay-friendly students refuse to talk in protest of discrimination and prejudice, wore an anti-gay t-shirt to school. Specifically, the shirt said "BE ASHAMED, OUR SCHOOL EMBRACED WHAT GOD HAS CONDEMNED" on the front, and "HOMOSEXUALITY IS SHAMEFUL" on the back. The school had experienced tensions between homosexual and homophobic students before, including several physical altercations in the previous year. It was also subject to a lawsuit by gay students complaining of a pervasive attitude of harassment that the school did not act meaningfully to stop (a jury agreed with the students). In this context, the school asked Harper to remove the t-shirt. When he refused, he spent the day in the principal's office but was not otherwise punished.

This opinion is sure to be controversial. And it should be--the case is undoubtedly a tough call. Schools are permitted far more latitude in regulating student speech than is the norm in American society--Harper's t-shirt would surely be permissible if he wore it on the street. There are several reasons for this, but they boil down to the fact that schools play very special roles in society. Ultimately, there goal is to provide an equal opportunity for education for all, and speech which runs counter to that goal is at least more likely to be within the school system's regulatory purview. The question is whether this restriction in this context is permissible. I think Judge Reinhardt makes several important points in favor on this point.

First, he musters impressive evidence on the very real impact such hostile speech has on the education of gay students:

Speech that attacks high school students who are members of minority groups that have historically been oppressed, subjected to verbal and physical abuse, and made to feel inferior, serves to injure and intimidate them, as well as to damage their sense of security and interfere with their opportunity to learn. The demeaning of young gay and lesbian students in a school environment is detrimental not only to their psychological health and well-being, but also to their educational development. Indeed, studies demonstrate that "academic underachievement, truancy, and dropout are prevalent among homosexual youth and are the probable consequences of violence and verbal and physical abuse at school." One study has found that among teenage victims of anti-gay discrimination, 75% experienced a decline in academic performance, 39% had truancy problems and 28% dropped out of school. Another study confirmed that gay students had difficulty concentrating in school and feared for their safety as a result of peer harassment, and that verbal abuse led some gay students to skip school and others to drop out altogether. Indeed, gay teens suffer a school dropout rate over three times the national average. In short, it is well established that attacks on students on the basis of their sexual orientation are harmful not only to the students' health and welfare, but also to their educational performance and their ultimate potential for success in life (21-23, internal citations and footnotes omitted).

It is overwhelmingly obvious to me that speech which causes these sorts of problems runs contrary to--indeed, overtly sabotages--the educational mission of the school. At the very least, it shows that this is not the stereotypical whine of a thin-skinned minority that wants to live a life free from criticism. Justice Kozinski is too trite when he writes: "Any speech code that has at its heart avoiding offense to others gives anyone with a thin skin a heckler's veto" (dis. op. at 35). This is hardly about "avoiding offense."

The next issue is how one distinguishes a shirt which says "Jews Will Burn In Hell" from the shirt present here. Reinhardt argues:

It is simply not a novel concept, however, that such attacks on young minority students can be harmful to their self-esteem and to their ability to learn. As long ago as in Brown v. Board of Education, the Supreme Court recognized that "[a] sense of inferiority affects the motivation of a child to learn." 347 U.S. at 494 (internal quotation marks omitted). If a school permitted its students to wear shirts reading, "Negroes: Go Back To Africa," no one would doubt that the message would be harmful to young black students. So, too, in the case of gay students, with regard to messages such as those written on Harper's Tshirt.

In other words, there are, I'm pretty sure, messages targeted at minority groups in which it is not controversial that the school can restrict. Why isn't this one of them? The clearest objection is that the moral status of homosexuality is politically contested, while racism is fringe (Kozinski makes this argument in dissent). Reinhardt dispatches with this argument rather neatly:

The dissent takes comfort in the fact that there is a political disagreement regarding homosexuality in this country. See dis. op. at 12. We do not deny that there is, just as there was a longstanding political disagreement about racial equality that reached its peak in the 1950's and about whether religious minorities should hold high office that lasted at least until after the 1960 presidential election, or whether blacks or Jews should be permitted to attend private universities and prep schools, work in various industries such as banks, brokerage houses, and Wall Street law firms, or stay at prominent resorts or hotels. Such disagreements may justify social or political debate, but they do not justify students in high schools or elementary schools assaulting their fellow students with demeaning statements: by calling gay students shameful, by labeling black students inferior or by wearing T-shirts saying that Jews are doomed to Hell. Perhaps our dissenting colleague believes that one can condemn homosexuality without condemning homosexuals. If so, he is wrong. To say that homosexuality is shameful is to say, necessarily, that gays and lesbians are shameful. There are numerous locations and opportunities available to those who wish to advance such an argument. It is not necessary to do so by directly condemning, to their faces, young students trying to obtain a fair and full education in our public schools (26-28).

Can I just highlight this statement, by the way? "Perhaps our dissenting colleague believes that one can condemn homosexuality without condemning homosexuals. If so, he is wrong." That is very powerful language--rare to see in a Court opinion. It also is absolutely right, and in many ways the crux of the analysis Reinhardt is making. This line of reasoning may be uncomfortable for many, but I think that they are the ones who should be doing some soul-searching if they can't find a meaningful distinction between anti-gay and anti-Semitic or racist speech (see below).

I'd note that Kozinski seems willing to bite this point, admitting at the end of his dissent that:

There is surely something to the notion that a Jewish student might not be able to devote his full attention to school activities if the fellow in the seat next to him is wearing a t-shirt with the message "Hitler Had the Right Idea" in front and "Let's Finish the Job!" on the back. This t-shirt may well interfere with the educational experience even if the two students never come to blows or even have words about it (36-37).

I admire his intellectual consistency, but this seems to be the point where nearly every American will depart. I do not find it controversial in the slightest that a school can prevent students from praising the Holocaust without breaching the constitution.

I'd add to Reinhardt's analysis that prohibiting only speech that is no longer "politically controversial" strikes me as far closer to impermissible viewpoint discrimination than banning speech that specifically targets a "discrete and insular minority", speech which empirically affects their ability to learn and grow as students. The latter is a prima facia compelling state interest, the latter isn't.

Admittedly, the school allowed a "Day of Silence", which is (at least Harper argues) a "pro-gay sentiment. Isn't it viewpoint discrimination to allow this view, but not the anti-gay view? Not particularly--unless a school must balance "religious tolerance" messages with "Muslims are evil sub-human" messages. Reinhardt elaborates:

Part of a school's "basic educational mission" is the inculcation of "fundamental values of habits and manners of civility essential to a democratic society." For this reason, public schools may permit, and even encourage, discussions of tolerance, equality and democracy without being required to provide equal time for student or other speech espousing intolerance, bigotry or hatred. As we have explained, supra pp. 28-29, because a school sponsors a "Day of Religious Tolerance," it need not permit its students to wear T-shirts reading, "Jews Are Christ-Killers" or "All Muslims Are Evil Doers." Such expressions would be "wholly inconsistent with the 'fundamental values' of public school education." Similarly, a school that permits a "Day of Racial Tolerance," may restrict a student from displaying a swastika or a Confederate Flag. In sum, a school has the right to teach civic responsibility and tolerance as part of its basic educational mission; it need not as a quid pro quo permit hateful and injurious speech that runs counter to that mission (37-38, internal citations omitted).

Okay, cool. So where is the dividing line, then? Reinhardt answers this in his footnote 27, which is the part crits will love:

The dissent suggests that our decision might somehow allow a school to restrict student T-shirts that voice strongly-worded opposition to the war in Iraq. See dis. op. at 12. That is not so. Our colleague ignores the fact that our holding is limited to injurious speech that strikes at a core identifying characteristic of students on the basis of their membership in a minority group. The anti-war Tshirts posited by the dissent constitute neither an attack on the basis of a student's core identifying characteristic nor on the basis of his minority status (30 n.27, emphasis added).

This is the type of standard that makes the Crit in me swoon. Not only is it actually workable, but it recognizes the difference in status that minority groups face with relation to majority groups. He continues in footnote 28:

Our dissenting colleague worries that offensive words directed at majority groups such as Christians or whites will not be covered by our holding. See dis. op. at 21. There is, of course, a difference between a historically oppressed minority group that has been the victim of serious prejudice and discrimination and a group that has always enjoyed a preferred social, economic and political status. Growing up as a member of a minority group often carries with it psychological and emotional burdens not incurred by members of the majority. In any event, any verbal assault targeting majorities that might justify some form of action by school officials is more likely to fall under the "substantial disruption" prong of Tinker or under the Fraser rule permitting schools to prohibit "plainly offensive" speech (31 n.28).

Both the points Reinhardt makes here are worth emphasizing. First, that it is illogical and wrong to just group minorities and majority as needing to be treated "the same." They aren't similarly situated, so treating them similarly leads to unequal results. Second, and perhaps more importantly, is Reinhardt's implication that speech offensive to the majority is far more likely to be bannable in the status quo. Even if one does not think that any "offensive" t-shirt (e.g., "Hitler was right") can prohibited, I think virtually anyone with a mind believes that speech that is causing substantial disruption to the school can be stopped. This is far more likely to happen for speech offensive to the majority (because there are more of them and thus a higher probability that a) the speech will seem absolutely beyond the pale and b) that someone will take their anger too far). This implies that not adopting Reinhardt's standard is actually the discriminatory stance, since it would de facto prohibit actions against hate speech targeted at minorities while allowing such actions against speech the majority dislikes. This is doubly ironic, given that minorities should (given the first point) enjoy greater protection, but instead they'd be getting reduced protection. I should note that I do think that speech which targets the moral personhood of a majority member can also be restricted in schools (all of this analysis, I remind you, only applies to schools), I just think that a) the standards are different in that case and b) we have alternative mechanisms for addressing said speech.

The final thing I want to point out (and again, this is something Crits will love) is the intensively fact-based opinion Reinhardt wrote. Unlike Kozinski in the dissent, Reinhardt was not willing to gloss over the manner in which these sort of displays materially affect the lives of gay students. Kozinski virtually mocks the situation, citing to a variety of movies and books to show that going off-task in class is normal in school, and that "tense situations" are to be expected when people debate politics passionately. Maybe, but one's very personhood is not normally at stake in "normal politics." In any case, this type of experience-based jurisprudence highlights the importance of how the narrative of events are constructed in a judicial opinion. Comparing the overview of facts in Judge Reinhardt versus Judge Kozinski's opinions, one cannot help but feel the difference in how the case "feels." Same situation, two storytellers, two different conclusions.

A round-up of other views on the case:

Dale Carpenter and Eugene Volokh both comment over at the VC with substantive legal analysis. Both think the ruling was wrong, though Carpenter wonders if Tinker v. Des Moines should be modified so the ruling could be right. Orin Kerr smells cert.

Alexandra von Meltzen writes that defenders of the ruling (like myself, I guess) are "all conveniently confused about the First Amendment." She also gives the lethal epithet: PC. I supposed being "confused" is better than being an "oppressor", which is what Hoystory labels my ilk. Blue Crab Boulevard makes the same "confused about the First Amendment" claim.

Doc's Home says this is all about protecting the "professionally offended" from having their self-esteem hurt. So does Rovian Conspiracy. And Plus Ultra. Dmaetzon says the case stands for the principle that free speech ends if someone is offended. This parroted line of argument disturbs me, because it just brushes aside as irrelevant the court's documentation of the concrete harms gay students by just calling it an issue of "self-esteem." That demeans what is assuredly a complicated question. It's like dismissing a fraud claim by saying: "Oh, look, the Court is saying that the first amendment doesn't apply when naive people get upset! Boohoo!" At the point where the court identifies an empirically measurable harm, I think opponents have to do more with the argument than just dismiss it as a case of "self-esteem" gone wild.

Sister Toldjah can't conceptualize about what right could possibly be violated here. Allow me to quote Brown v. Board "In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms." And again, given two pages of empirical data showing that these types of slurs create an unequal learning environment for gay students, I think the right outlined in Brown is breached. Toldjah claims that the school should bar both the "day of silence" and these shirts. If she can find any credible evidence that shows those actions had empirically measurable impacts on Harper's ability to learn, then I'll take her seriously. Barring that, I still believe that a school can have a day promoting racial harmony without allowing the Klan to stop by for lunch.

This is the underlying fallacy--Colossus of Rhodey makes it too. The standard the Court set was when speech attacks the moral personhood of a community member. Rhodey says this is an "easy argument." I agree (though I don't think that "easy" equates "bad"). The First Amendment protects "disagreeable speech." But as our prohibitions on libel, fraud, and slander (among other things) establish, words that cause a harm ("words that wound") are not so protected. Insofar as the opinion relatively clearly established a harm in Harper's speech (that doesn't exist in the gay students speech), that strikes me as a perfectly logical place to line draw. That isn't to say that this is an "easy" case--it isn't--but the Court's linedrawing decision strikes me as a sound one to make.

A couple of surprising concurrences for my side, from Outside the Beltway and (possibly) Ann Althouse. Feministe's agreement is less surprising (and very close to mine own opinion). I don't know Betsy's Page.

Phew!

Segregated Spaces

The Nebraska state legislature has approved a plan to split the Omaha school district in three--one district predominantly White, one predominantly Black, one predominantly Latino (the tax base of the district will be pooled, however). What makes this case interesting is that the single Black member of the Nebraska legislature, Ernie Chambers, voted for the plan, explaining that he wanted the Black community to be in charge of its own schools.

Jack Balkin has a great post exploring some of the dangers of such a proposal. But the real gold in them thar hills was written by Heather Gerken, who explores the consequences of labeling the Omaha plan "segregation", and makes a call for more complex vocabulary to talk about the issue (a position that I hold near and dear to my heart regarding race generally). All I can say is go read.

Gaze Into Infinity

Lance Mannion parses the conservative myth of what once was:

This is the Right Wing Kulturkampf ur-myth restated. Once upon time we were all good and well-behaved, if plagued by demons and temptations within. You know, back in the day, when lynching was a spectator sport, children were worked to death in factories and mineshafts, and employers thought nothing of hiring goons to beat and kill workers who dared strike for safer working conditions and decent pay.

Then came the Fall, and with it moral relativism, post-modernism, Freudianism, Marxism, feminism, birth control, Roe v. Wade, situation comedies that make dad into a buffoon, and black people who expect to live in our neighborhoods and send their kids to our schools...whoops, did we say that last one out loud? We meant entitlements, the nanny state, and the culture of dependence brought about by Welfare.

The temptation when things are bad now is to drop back into a mythologized history, one that never existed. As Mannion points out, this history isn't just about barbecues and social order--it has aspects we cannot in good conscience try and bring ourselves back to. Slightly more sophisticated indulgers might admit to the horrors of the past, but say they can be excised from the revival--we can bring back the community feeling of the 50s without also resurrecting the "segregated" part of said community. I applaud these people for at least recognizing that their collective past was not, in fact, idyllic, but it still misses the point: the whole schema of these time periods were intricately tied together--good and bad. This feeling of "community" that is so exalted, for example, was sustainable because it was socially permissible to exclude mistrusted minorities from the endeavor. It's easy to be friendly and neighborly when your entire neighborhood is of one race, class, religion, and mindset.

The root of this falsification is nothing too complex: It's just easier. This is liberalism's strategic (not moral) flaw. It's asks people to run an endless marathon. History is an endless struggle for moral progress (though there is no guarantee that at any given moment we are moving forward instead of backwards). There is no place on the horizon where we can rest and say "We're here. We've reached paradise." Justice being an ideal, chasing it is like chasing infinity. Not only that, but liberalism has to always pick at its own scab. We have to constantly emphasize the failings of the present, constantly remind the people that the journey continues.

This isn't a moral indictment of liberalism. The search for Eden may be fruitless, but it is still a worthwhile quest. And just because we can never get to the end doesn't mean we haven't made progress--real progress. But the gaze out into infinity can be paralyzing; is it any wonder that some wish to grasp something concrete and say "this, this was what the world should have been"?

H/T: Feministe

Watch Them Fall

The New Republic has an incredible--and chilling--article about Iran up by German political scientist Matthias Kuntzel. It's behind a subscription wall, but its for articles like this that you should be subscribed to TNR already. Some of the history he gives about the Iran/Iraq war is terrifying in the inhumanity it brings to light:

During the Iran-Iraq War, the Ayatollah Khomeini imported 500,000 small plastic keys from Taiwan. The trinkets were meant to be inspirational. After Iraq invaded in September 1980, it had quickly become clear that Iran's forces were no match for Saddam Hussein's professional, well-armed military. To compensate for their disadvantage, Khomeini sent Iranian children, some as young as twelve years old, to the front lines. There, they marched in formation across minefields toward the enemy, clearing a path with their bodies. Before every mission, one of the Taiwanese keys would be hung around each child's neck. It was supposed to open the gates to paradise for them.

At one point, however, the earthly gore became a matter of concern. "In the past," wrote the semi-official Iranian daily Ettelaat as the war raged on, "we had child-volunteers: 14-, 15-, and 16-year-olds. They went into the minefields. Their eyes saw nothing. Their ears heard nothing. And then, a few moments later, one saw clouds of dust. When the dust had settled again, there was nothing more to be seen of them. Somewhere, widely scattered in the landscape, there lay scraps of burnt flesh and pieces of bone." Such scenes would henceforth be avoided, Ettelaat assured its readers. "Before entering the minefields, the children [now] wrap themselves in blankets and they roll on the ground, so that their body parts stay together after the explosion of the mines and one can carry them to the graves."
[...]
The chief combat tactic employed by the Basiji was the human wave attack, whereby barely armed children and teenagers would move continuously toward the enemy in perfectly straight rows. It did not matter whether they fell to enemy fire or detonated the mines with their bodies: The important thing was that the Basiji continue to move forward over the torn and mutilated remains of their fallen comrades, going to their deaths in wave after wave. Once a path to the Iraqi forces had been opened up, Iranian commanders would send in their more valuable and skilled Revolutionary Guard troops.

This approach produced some undeniable successes. "They come toward our positions in huge hordes with their fists swinging," one Iraqi officer complained in the summer of 1982. "You can shoot down the first wave and then the second. But at some point the corpses are piling up in front of you, and all you want to do is scream and throw away your weapon. Those are human beings, after all!" By the spring of 1983, some 450,000 Basiji had been sent to the front. After three months, those who survived deployment were sent back to their schools or workplaces.
[...]
Whether they survived or not was irrelevant. Not even the tactical utility of their sacrifice mattered. Military victories are secondary, Khomeini explained in September 1980. The Basiji must "understand that he is a 'soldier of God' for whom it is not so much the outcome of the conflict as the mere participation in it that provides fulfillment and gratification." Could Khomeini's antipathy for life have had as much effect in the war against Iraq without the Karbala myth? Probably not. With the word "Karbala" on their lips, the Basiji went elatedly into battle.

Thousands of children, brainwashed so that they elatedly rush to death as human bullet and mine fodder. It's a twisted display of barbarity the likes of which I can scarcely imagine.

There are no ground wars on the horizon for Iran in the near future, so the prospect of similar action for the Basiji is scant. But that does not mean Iran has not found new uses for them.

At the end of July 2005, the Basij movement announced plans to increase its membership from ten million to 15 million by 2010. The elite special units are supposed to comprise some 150,000 people by then. Accordingly, the Basiji have received new powers in their function as an unofficial division of the police. What this means in practice became clear in February 2006, when the Basiji attacked the leader of the bus-drivers' union, Massoud Osanlou. They held Osanlou prisoner in his apartment, and they cut off the tip of his tongue in order to convince him to keep quiet. No Basiji needs to fear prosecution for such terrorists tactics before a court of law.
[...]
The Basiji's cult of self-destruction would be chilling in any country. In the context of the Iranian nuclear program, however, its obsession with martyrdom amounts to a lit fuse. Nowadays, Basiji are sent not into the desert, but rather into the laboratory. Basij students are encouraged to enroll in technical and scientific disciplines. According to a spokesperson for the Revolutionary Guard, the aim is to use the "technical factor" in order to augment "national security."

What exactly does that mean? Consider that, in December 2001, former Iranian President Hashemi Rafsanjani explained that "the use of even one nuclear bomb inside Israel will destroy everything." On the other hand, if Israel responded with its own nuclear weapons, it "will only harm the Islamic world. It is not irrational to contemplate such an eventuality." Rafsanjani thus spelled out a macabre cost-benefit analysis. It might not be possible to destroy Israel without suffering retaliation. But, for Islam, the level of damage Israel could inflict is bearable--only 100,000 or so additional martyrs for Islam.

"Only" 100,000--my head is spinning.

Stanley Kurtz says we're in Iraq, not to provide peace and democracy, but to show Iran we're serious. Lindsay Beyerstein dissects the argument in her own way (and if peace and democracy are completely superfluous, why not immediately pull out of Iraq to invade Iran?). But the problem, as I see it, isn't that a show of military force in the region is counterproductive to deterring Iran. The problem is that the level of fanaticism demonstrated in the above article implies that Iran may simply be undeterrable. When 100,000 deaths can be shrugged aside as the costs of martyrdom--I have no idea how to make a tactical response to that sort of mentality.

Shoot for the Stars

I meant to link to this New York Times snippet about Gambia earlier, because it amused me:

President Yahya Jammeh, a former wrestler and bird lover, said anyone aspiring to his job needed "to wait like a vulture, patiently," because he planned to stay in office at least 30 years longer. Mr. Jammeh, who is 40 and seized power in a bloodless coup in 1994, said he would consider handing over power only after he had turned his tiny former British colony into an oil producer and a "role model for Africa." Gambia produces peanuts but has not struck oil.

"I'm going to stay in power until we develop a resource we don't even have!" I suppose that's one way to guarantee you'll be ruling for a long, long time. Let it never be said that President Jammeh let geological realities get in the way of his dreams.

Whiteness Symposium

Bridget Crawford points to a paper by Stephanie M. Wildman entitled "The Persistence of White Privilege," now available on SSRN. It looks great. I'd also like to point out to any other interested parties that the broader symposium the article was a part of, "Whiteness: Some Critical Perspectives", is available online from the Washington University Journal of Law & Policy.

My seminar paper for my Foundations of Black Political Thought class is going to be on Black views of Whiteness. Any help in finding sources on the subject would be much appreciated.