Saturday, October 06, 2007

2007 Weblog Awards Nominations

The nominations are open! Anybody can nominate anybody, so if you feel like my site should be considered, please give it a holler at their site. Last year, I was runner-up in my category, and I'm back for some vengeance! Or just good plain fun, as it may be -- I'm too mellow to be really have any vendettas.

The two categories I seem to fit best in are Best Education Blog (blogs by educators, students, or on educational issues)


Best of the TTLB 5,001 - 6,750

But the full list of categories is here, so put me (or any other blog you want) wherever you think is just.


Men, Women, and Rape

Eugene Volokh experimented by having his class anonymously render their opinions as to whether a person in a specific rape case should be found guilty beyond a reasonable doubt. He found that:

* Among women: 10 voted for rape proven beyond a reasonable doubt, 15 not proven.

* Among men: 17 voted for rape proven, 18 not proven.

He concluded:
I stressed to students, of course, that this was not a large sample, and most certainly not one representative of the country as a whole. But I think it ended up being a useful perspective for the students, in highlighting to everyone both (1) how close the division was, and (2) how little gender gap there was (with men actually being a little more likely than women to find rape proven beyond a reasonable doubt, but I'm not sure not to any statistically significant degree). My sense is that this was an important pedagogical tool, chiefly because it helped show people how people of their own age, sex, and social class can disagree on such matters (whether or not they conclude that such disagreement is indeed warranted).

The gender split is something I've noticed too when one of my own classes did a similar experiment -- albeit, not in our case, anonymously. In that case, the gender divide was even more pronounced -- I observed near unanimity among the men that the defendant should be found guilty of rape, while the women were approximately 50/50. Volokh's point still remains true, that people of one's own social position can nevertheless have widely divergent views on politically charged matters -- but I also think that this somewhat counter-intuitive gender division remains worthy of further examination as well.

Friday, October 05, 2007

Or How About Persia?

In a sense, its ridiculous to even respond to the anti-Semitic babblings of Iranian President Mahmoud Ahmadinejad, who today reiterated his call to exile the Jewish state to Europe or Alaska. Both the places are rather nonsensical locations for a Jewish state -- the former because that's the location Jews were fleeing from (should we put our new capital in Dachau?), and the latter because there is absolutely no link between Jews and Alaska (why wouldn't that be every bit as colonial?).

But the Jewish historical and communal links to Persia and Babylonia, on the other hand, are centuries old. And given President Ahmadinejad's ever-so-sincere concern for the well-being of Jews and Palestinians, and his absolute serious commitment to ending the conflict, I'm sure he wouldn't mind sacrificing a nice little chunk of his own fiefdom to donate to the now-homeless Jews. Certainly, it's much fairer than forcing the Inuit to do it. And it would be such a great gesture of good faith, too!

Any day now.

Name Game, Part II

While I am largely uninformed about the inner-circle of foreign policy wonks and thus have to resort to simply making fun of people named "Slaughter", Fletcher School professor Daniel Drezner does not share my shortcomings and thus is able to offer some half-baked predictions matching foreign policy advisers to their respective positions in their chosen candidate's cabinet.

New Mexico Senate Development

Senator Pete Domenici's (R-NM) announced retirement is another thorn in the side of Senate Republicans, but so far the candidate recruitment race is working their favor. Rep. Heather Wilson (R), a moderate veteran of several hard fought campaigns, has announced that she is in the race. I don't know enough about New Mexico GOP dynamics, but my gut tells me that even as a moderate, she'll be a strong front-runner for the nomination, if for no other reason than the NM Republicans don't have a huge bench that I know of. As to the general election, in addition to her battle-tested reputation and moderate persona, Wilson has a very marketable resume -- an Air Force veteran, Rhodes Scholar, and former member of the National Security Council. On the other hand, she has ties to the US Attorneys scandal and is looking at a potential investigation by the House Ethics committee. Also, with Wilson vacating her House seat to run, it immediately becomes a strong pick-up opportunity for the Democrats.

Meanwhile, the Democrat's top two choices both appear to be out. Governor Bill Richardson is still continuing his quixotic campaingn for the presidency, and, in a slightly more surprising announcement, Rep. Mark Tom Udall (D) has decided to forgo the race as well [Mark Udall is a Democratic Representative running for Senate in Colorado. Who'd have thought there'd be two "Udalls" in Congress?]. Still, it's a state that is trending blue, in a blue trend year, and Democrats have to remain optimistic -- assuming they can find a viable candidate. New Mexico is a pretty small state, so there just aren't that many other big name figures who could jump at this point. Attorney General Patricia Madrid may try to reprise her 2006 fight against Wilson statewide (she lost a House race to her by less than 900 votes). But while Madrid is a strong candidate on paper, she is not all that popular in the state (a swing voter friend of mine from Wilson's district said that, while she'd be open to voting out Wilson, Madrid was simply "the sleaziest politician I've ever seen").

So even though I can't think the GOP is thrilled to have yet another vulnerable open seat to defend, so far this one has at least some pieces falling into place for the reeling conservative party.

Thursday, October 04, 2007


Ann Coulter:
"If we took away women’s right to vote, we’d never have to worry about another Democrat president. It’s kind of a pipe dream, it’s a personal fantasy of mine, but I don’t think it’s going to happen."

Admittedly, I have the related fantasy of taking away Coulter's right to vote, but I don't think that's going to happen either.

Early Morning Quote: "Working Through" Racism

As you may have guessed, these are taken from whatever random academic book I've picked up off my desk at the moment. This one is from a volume giving psychoanalytic responses to Black/Jewish tensions.
Educational programs against white racism, including Jewish racism, have usually been based on the assumption among pedagogues and social engineers that the most effective way to combat racism and prejudice is to expose students to information and values that contradict their racist attitudes. So, for instance, students are encouraged [*6] to learn about other marginalized and negative stereotyped groups and the importance of respecting others who are different from themselves. While these programs have been successful to some degree, from a psychoanalytic viewpoint they don't go "deep" enough into the motives that usually sustain racist attitudes and drive individuals to racist behavior. As Bracher further points out, "the more profound and intractable causes of intolerance includes the presence of a rigid but threatened sense of identity and the use of primitive defense mechanisms, such as projection, to maintain this sense of identity by refusing to recognize elements of one's own being that contradict this idealized self-image.' From a psychoanalytic viewpoint then, an effective intervention emanating from this way of conceptualizing racism would focus on increasing the student's self-acceptance of his unacceptable tendencies, in contrast to the received view, that aims to increase the student's self-esteem by stressing attributes and achievements that they take pride in. That is, to reduce racist and bigoted attitudes and vehavior, it is precisely those unacceptable feelings, attitudes, and attributes that students are ashamed of and have disavowed, repressed, and projected that need to be "worked through."

[Alan Helmreich & Paul Marcus, "Introduction: Black-Jewish Conflict," in Blacks and Jews on the Couch: Psychoanalytic Reflections on Black-Jewish Conflict, Alan Helmreich & Paul Marcus, eds. (Westport: Praeger, 1998), pp. 1-13, 5-6]

The last sentence is the important one -- the rest I added for context. One of the reasons I try and keep "racism" at the fore of my analysis I that I think it is impossible to "work through" its problems when it is constantly shunted off into the darkest, most remote corners of discourse. We are ashamed of racism, we don't want to admit to elements of our personhood that conflict with our idealized self, so we push it away and repress it -- better than openly celebrating it, to be sure, but also not the sort of thing that will ultimately eliminate its effects. Racism that is repressed, rather than addressed and ultimately redressed, will always find ways to burble up to the surface, and will be infinitely more difficult to identify and remedy when it does.

The corollary to this outlook, of course, is that by asking that we take the tough step of admitting our racist behaviors and mindsets, the interlocutor cannot then turn around and condemn, shame, or otherwise malign the people who hold them (simply for holding them). This is rightfully seen as an ambush, and is not conducive to the type of "working through" that Helmreich and Marcus say (and I agree) we need to do. Recognizing that racism is a moral wrong, and that it hurts people, does not automatically mean condemning its perpetrators -- particularly when so much of the problem is psychological and unwillful. A bargain must be struck between the anti-racism activists and those they seek to "reform", in which both agree to work through the issues and problems of racist mentalities without judgment on the part of the former, and without defensiveness on the part of the latter. This does not mean we do not aggressively respond to racism when we see it. It only means that, in the educational context of folks genuinely seeking to overcome the racism they admit they have, we announce a truce -- a cease-fire.

It is important, too, to remember that even while recognizing the facet of ourselves which is still tied into the racist under- and overtones of our society, this part does not define us. Just as there is a segment of ourselves which is hateful and prejudiced and biased and cruel, we can similarly draw on other aspects of our identity which value justice and ethics and dignity and solidarity. Following Bracher's lead, a crucial step in formulating a healthy self-image is one that can recognize both elements of self, while enlisting the latter to battle and eventually overcome the former (if you have tolerance for another academic quote, Slant Truth's Kevin Andre Elliott has a wonderful excerpt on "tolerating ambiguity" from Gloria Anzalda). The only way one can truly count oneself as being a follower of the light is to recognize that there is (and likely always will be) dark spots inside you as well. Being a bystander is not an option.

This isn't to say that the endeavor is easy. No matter how understanding our fellows are, it is still difficult to openly work through issues of racism without going into that reflexive "shell" mode that seeks to deflect or deny that there is a problem. Nonetheless, it is a necessary part of the anti-racism project. Deep problems, such as racism, are rarely solved without some sort of deep, often painful, commitment, from the society from which it emerges. This one is no different. But fixing it will open the doors to a brighter, more just, more egalitarian, and ultimately more prosperous existence for all of us.

Wednesday, October 03, 2007

Fire at Will

While I'm sure there are good reasons to support the At Will employment doctrine, reading about cases like this, where a female employee was hired, then immediately fired because she was "overweight and had large breasts", makes me want to rewrite policy to explicitly prohibit employers from terminating their employees for no (or exceedingly dumb) reasons. Under current law, this woman does not appear to be protected, because her firing was not due to race, sex, disability, or any other protected category. Yet it strikes me as every bit as insane as many of the other ridiculous firings employers try to swing that are covered under these categories.

Name Game

The Washington Post has a list of which foreign policy bigwigs are supporting the major candidates. I don't know enough about these folks to make any informed comments. So instead, I'll just point out names that interest me. "Interest", as you will see, has very little to do with substantive policy concerns, and everything to do with what weird associations I can make with the last names.

Obama starts off with not one, but two Brzezinskis: Mark, and Zbigniew. The former was a specialist in Southeast Europe in Clinton's NSC, and the latter was President Carter's National Security Adviser. Copy editors everywhere hope that they remain low profile and in the background. Also with Obama is the ever-awesome Samantha Power, which we knew. Though she is unaffiliated with any candidate and thus not listed, another name which has popped up in discussions of possible high players in a Democratic administration is Woodrow Wilson School Dean Anne-Marie Slaughter. This is worth noting not just because they are both highly regarded and indisputably brilliant (though they both are), but because it could possibly give us "Secretaries Power and Slaughter," which tickles me. The only competition on the best/worst names front comes from the Giuliani campaign, which could give us a diplomat by the name of "Conquest," Robert Conquest to be precise. The name matches Giuliani's temperament far better than "Power" and "Slaughter" do Obama's.

McCain doesn't have anybody with as scary-sounding names as Obama or Giuliani, but he makes up for it by being just gosh-darn folksy: two alphabetically-sequential advisers of his are both nicknamed "Bud": Reagan National Security Adviser Robert "Bud" McFarlane, and Brig. Gen. Warren "Bud" Nelson. Also on McCain's ledger: Maj. Gen. Evan "Curly" Hultman. But it's Mitt Romney whose affiliate wins the award for best nickname, in the form of Lt. Gen. John H. "Soup" Campbell.

And finally, just for kicks, a pure count of all the military figures (mostly generals and admirals) listed for each candidate:

Clinton -- 6 (a solid figure, I think)
Obama -- 2 (lower than I'd have expected)
Edwards -- 7 (out of 11 names total)
Giuliani -- 0 (am I the only one whose surprised he couldn't find one?)
McCain -- 17 (wowzers)
Romney -- 1 (well, at least you beat Giuliani)

Missing Women in Science

Carleton has a nearly legendary reputation for the relative gender-balance in our math and science programs. Our active, tenure or tenure-track Chemistry department is more than half female (five to four men), which is virtually unheard of. The Geology department is three men and two women. Physics is five/three, Biology is seven/three, and Math is six/four.

Most places are not like Carleton in this respect. Indeed, normally in professional math, science, and engineering settings, women are outnumbered by men by a 3:1 ratio. And studies cited in a recent Scientific Daily article show how this imbalance can seriously effect the performance of women who are so marginalized in these environments.
Murphy and colleagues showed a group of advanced MSE undergraduates a gender balanced or unbalanced video depicting a potential MSE summer leadership conference. To assess identity threat, the researchers measured the participant’s physiological arousal during the video, cognitive vigilance, sense of belonging and desire to participate in the conference.

The results are telling. The women who watched the gender unbalanced video- where women were outnumbered by men in a 3 to 1 ratio- experienced faster heart rates, higher skin conductance (sweating), and reported a lower sense of belonging and less desire to participate in the conference.

They also found that women were more vigilant to their physical environment when they watched the video in which women were outnumbered. Throughout the testing room, Murphy planted cues related to Math, Science, and Engineering such as magazines like Science, Scientific American, and Nature on the coffee table and a portrait of Einstein and the periodic table on the walls. Women were able to recall more details about the video and the test room, indicating that they paid more attention to the identity-relevant items in order to assess the likelihood of encountering identity threat. “It would not be surprising if the general cognitive functioning of women in the threatening setting was inhibited because of this allocation of attention toward MSE-related cues,” write the authors. Thus, it is likely that this kind of attention allocation would interfere with performance and might help explain the performance gap between men and women in these fields.

While men, in either condition, showed no significant difference in physiological arousal, cognitive vigilance, or sense of belonging, both men and women expressed more desire to attend the conference when the ratio of men to women was balanced. Murphy says that while it’s interesting that both men and women want to be where the women are, the motivations of men and women for wanting to be there are probably quite different. “Women probably feel more identity-safe in the environment where there are more women- they feel that they really could belong there- while men might simply be attracted by the unusual number of women in these settings. Men just aren’t used to seeing that many women in these settings, because the numbers in real Math, Science, and Engineering settings are so unbalanced.”

I think it's a little too cheap to say the only reason men prefer gender-balanced conferences is because of the novelty of it (this seems to play more than a little on "geek guys can't get girls" stereotypes), though I don't think it's wrong to discount it either. But regardless, the point is that everybody seems to be happier, and a significant chunk of the population more comfortable (and thus presumably more productive) when there isn't a notable, gaping imbalance among the genders at these conferences. Carleton is a great pipeline for female science graduates in part simply because women here are very visible in these departments. It isn't weird, it isn't out of the ordinary, there's very little sense that one is "trailblazing" or entering a terrain dominated by men (though I hasten to add that I imagine female math and science majors are certainly aware of those tropes in broader society, and will still have to deal with them there). This indicates that simply having a few familiar and friendly faces can do wonders for expanding the pool of qualified, competent, and comfortable science graduates, and provides yet more reason for colleges and universities across the country to try and adjust their departments accordingly.

Hat tip to the lovely Kawaii Kid, whose scientific exploits (Physics, I believe?) I have not been particularly supportive of (but only because I believe it's a waste of her debating talent!).

The Clarence Thomas Roundup

The release of Clarence Thomas' new book has led to a spurt of interesting blogging on the quietest and most conservative Supreme Court Justice. No comments from me, just a round-up of the variety of posts out there.

Sherilynn Ifill, a law professor at UMD blogging at BlackProf, takes issue with Thomas' lynching metaphor ("an insult to the nearly 5,000 black and men and women who were lynched in the last century") and urges Thomas to "get a grip."

Scott Moss of the University of Colorado notes the intense bitterness Thomas appears to still nurse -- and his lack of either honesty or self-awareness in acknowledging it.

Ilya Somin of George Mason notes the ideological slant of the folks who believe Thomas and those who believe Hill regarding her sexual harassment allegations, and suggests this is purely a function of partisanship. However, as someone noted in comments, it is generally true that liberals are more likely than conservatives to believe allegations of sexual harassment. The real outlier, as Somin indicates, is the Paula Jones case.

Also at Volokh, David Bernstein hypothesizes that the scorched-earth campaign the left waged against Clarence Thomas' nomination may have backfired, by permanently entrenching him on the Supreme Court's far right branch. By solidifying Thomas' perception of liberals as his enemies, they precluded him from ever evolving his views or reaching "across the aisle" while growing as a Justice.

Richard Stern argues that Thomas' book is a "inverse confession", as he is unable to forget the "scene of the crime" against Ms. Hill, and compelled to revisit it even as he protests his innocence.

Powerline provides its summary of Thomas' speech to the Heritage Foundation.

Michael Dorf of Columbia analogizes the two cases of "harassment by people named Thomas" (Isiah and Clarence). He notes that, even if Thomas was guilty of harassment, he still might have had a legitimate beef against many of the questioning (White) Senators who likely engaged in similar behavior but faced no similar scrutiny.

Feministe comments on Anita Hill's defense of her character against Thomas' renewed attack, contextualizing it within the broader procedures used to silence folks complaining about sexual harassment.

And, though I wrote it several months ago, I'll abuse my blogger privileges to link back to one of my older (but, if I do say so myself, better) posts on Clarence Thomas, Taking Thomas Seriously.

Legal Perils

A few months ago, I blogged on the distressing case of Yaderlin Hiraldo, whose husband, Alex Jimenez, is currently missing in Iraq. Despite the fact that her husband either died, or is being currently tortured by Iraqi insurgents, while fighting for his country, the US government initiated deportation proceedings against Ms. Hiraldo. It was, I said at the time, one of the more tone-deaf moments in US immigration history. What's worse, the only reason the government even knew about Hiraldo's undocumented status was because her husband tried to legalize her status by having her apply for a green card. Had they not tried to go the legal way, the problem would have never manifested itself in the first place.

Today, CNN has a related story of Navy sailor Eduardo Gonzalez, about to be deployed to Iraq for his third tour. His wife is also under the threat of deportation, so Gonzalez is going to war literally not knowing if his wife will be around when he comes back.

What's particularly tragic is that Mrs. Gonzalez did not originally come here illegally. She was a war refugee from Columbia who came with her mother at age five. Now, I'm of the opinion that it is meaningless, absurdist, and malicious to label anyone who comes to the country as a five-year old a "law-breaker" as a result of it (as if kindergarteners have the state of mind necessary to comprehend immigration laws), but Gonzalez was actually given political asylum, so her entrance wasn't illegal after all (as far as I understand the law here). Her mother applied for permanent legalization for herself and her daughter in 2000, which was granted four years later in 2004. However, by that time Gonzalez had married her husband, meaning that her mother's application no longer applied to her own status, and she was left in limbo. A judge recently granted her a one-year extension, but if her legal status is not resolved by June of 2008, she faces deportation.

I mention all this to contextualize the next passage in CNN's article:
That's just fine, according to Mark Krikorian, the executive director of the Center for Immigration Studies, which lobbies for tougher laws on illegal immigration.

"What you're talking about is amnesty for illegal immigrants who have a relative in the armed forces, and that's just outrageous," he said. "What we're talking about here is letting lawbreakers get away with their actions just because they have a relative in the military. ... There's no justification for that kind of policy."

Now, I think in general there is a lot more outrageous about disrespecting our men and women in uniform by deporting their wives than there is in the horror of letting some more brown people in the country. And, to reiterate, I think it is particularly callous and hateful to refer to people who came into this country as five-year olds in this manner. But Krikorian's statement is particularly revealing here because Mrs. Gonzalez isn't a law breaker. She entered this country legally, as a refugee. The only reason her status isn't secured is because of a breakdown in our bureaucracy. If it hadn't taken four years to process her mother's application, she'd be legal. If we didn't penalize her for getting married, she'd also be legal (can I hear a shout out for "family values" anyone?). Only things on our end distinguish her from the perfectly legal and documented immigrants Krikorian claims to have no problem with. You want to know why immigration advocates like myself don't trust folks like Krikorian when they say their only problem is with "illegal" immigrants? Because they don't take their own distinction seriously. And when faced with situations like Gonzalez's, their true colors become clear. It's not about legal versus illegal. It's about less versus more people named "Gonzalez". Xenophobia, pure and simple.

An Inconvenient Truth

The FRC, looking at new polling data on the political affiliations of young White evangelicals, notes that while this generation of evangelicals is less likely to identify as Republican, they are in some ways more conservative than their older peers (I imagine they are less so in other ways--the war in Iraq, I suspect, has soured a great many on the GOP foreign policy ideology). But the FRC seems peeved about the way one question on abortion was phrased:
For example, 70% of young evangelicals favor "making it more difficult for a woman to get an abortion" (by the way, this is a particularly noxious phrasing of the issue as it frames a pro-life position as creating difficulty for women), whereas only 55% of older white evangelicals have the same view.

Umm...the "pro-life" position does create a "difficulty for women" -- it makes it more difficult for them to get abortions. To be sure, this is a burden that the FRC wants to impose on women, but that doesn't make it any less accurate. There is simply no way to characterize this phraseology as "noxious" without a hyper-developed victim complex (which, to be fair, is something we already knew the FRC possessed in abundance).

Tuesday, October 02, 2007

This Is Not Law

Minnesota Law Professor and Interim Dean Guy-Uriel Charles drills the recently decided Seattle and Louisville desegregation cases:
As a result of the Roberts opinion, when I teach my next class of constitutional law at the University of Minnesota Law School, I will have to do something I have never done before: “out” a case.

I will clarify for students why the decision is not “law” in any meaningful sense of the word but, rather, the imposition of unlawful policy preferences of four Supreme Court Justices on the rest of the population. I will explain that I cannot in good conscience, as either a black man or a constitutional law professor, teach this case in a constitutional law class, though I would be willing to teach it in a public policy class.


Lucky Number Seven

Matt Yglesias, citing to Lords of the Land author and Ha'aretz columnist Akiva Eldar: "[T]he Balfour Declaration came in 1917, the UN plan for a Jewish state came in 1947, Sadat's visit to Israel came in 1977, so we're due for good news in 2007, possibly out of the peace conference scheduled to be held in November in Annapolis."

Pace for Senate?

The National Review wants to draft former Chairman of the Joint Chief of Staff Peter Pace to run for Senate in Virginia. There's no indication Pace is interested in politics (my gut tells me he isn't, but that's a totally uninformed statement), but what if he did run?

Well, my first two reactions are 1) he'd be a very strong candidate and 2) he'd still get whipped by Mark Warner, who is the perfect Democratic candidate in Virginia. I'd also note that he'd have an extremely difficult route through the GOP primary, with two well-established Virginia political figures already in the race (Rep. Tom Davis, representing the more moderate wing and John Warner's implied successor, and former Gov. Jim Gilchrist Gilmore, the more radical politician). It's unclear how he'd get the traction to really make headway.

The other thing I'd say about Pace is that it would be wrong, if he does enter the race, to try and tar him as some sort of evil force of regression. True, I find his views on homosexuality to be absolutely abhorrent. And he unavoidably will be taggeed with his role in promoting President Bush's failed Iraq war. But that doesn't mean I've forgotten his stirring testimony on immigration, or his strong stand against human rights abuses (contradicting Donald Rumsfeld to his face). Indeed, it was precisely his memorable stances on these issues that made his statements on homosexuality feel like such a betrayal. We shouldn't treat those statements with kid gloves, but we shouldn't allow them to entirely subsume the rest of his character either. That goes for if he decides to go into to politics, or remains a private citizen.


While we're on the subject of employment discrimination developments guaranteed to raise your blood pressure, I think Paul Secunda is right to describe this as "one of the most insensitive employer acts in quite a while." (to say the least!)
The Equal Employment Opportunity Commission says a Grasonville marina and bar located on the Chesapeake Bay violated federal law when it refused to offer an accommodation to an employee who had undergone breast cancer treatment and fired her when she requested to be excused from its dress code policy.

According to the EEOC's suit, Mears Marina Associated Limited Partnership, doing business as the Red Eye's Dock Bar, violated the Americans with Disabilities Act when it discriminated against Margaret Finley, who had undergone treatment for breast cancer.

Finley had requested to be excused from the bar's dress code policy which required that she wear a scanty "tankini" top. Her request to be excused from the "tankini" requirement resulted in her termination, the EEOC charges.

Wow. And, to keep quoting Secunda, "it just goes to show how many employment discrimination cases could be avoided with a little less employer intransigence and little more compromise." Which, in a nutshell, is how I see employment discrimination. So often, it's merely a case of employers being not just obnoxiously stubborn, but unnecessarily so. Not only does this create the distinct feeling that they're acting out of pure malice, but it doesn't actually benefit anyone. It's just ridiculous.

Letter to Van Hollen

I wrote another letter to my Congressman urging preemption of the upcoming Humphries case. Here it is:


Congressman Van Hollen,

Last May, in the wake of the Supreme Court's Ledbetter decision, I wrote a letter urging you to reform the law that failed to protect Ms. Ledbetter. In addition, I also requested that you work to strengthen the anti-retaliation provisions of Title VII, so that injustices such as that accorded to Robert Jordan, right here in Montgomery County, are also rendered a thing of the past. Mr. Jordan, as you may recall, was fired after complaining to his supervisor about a White employee, who upon seeing two Black fugitives arrested on TV, exclaimed that "they should put those two Black monkeys in a cage and let the Black apes fuck them." Unfortunately, the 4th Circuit ruled in Jordan v. Alternative Resources Corporation (458 F.3d 332 (4th Cir. 2006)) that Mr. Jordan could not have even "reasonably believed" that such comments were in violation of Title VII, and thus the company's retaliation was permissible.

I congratulate you on passing the reform for Ms. Ledbetter, but I am troubled that you did not address strengthening the anti-retaliation provisions of our civil rights laws. Now, the Supreme Court has granted cert to hear CBOCS West Inc. v. Humphries, No. 06-1431, which many commentators believe they will use as a vehicle to completely excise the anti-retaliation aspect of Section 1981. No lower court has taken this view, for good reason: eliminating the anti-retaliation provision doesn't just create a loophole in the law, it effectively means we don't have a law at all. Congress should preempt this ruling by immediately giving explicit and strong protection to employers who are retaliated against for complaining about discriminatory, racist, sexist, or otherwise prejudiced treatment. The Roberts Court's rollback of our civil rights laws needs to be checked.

As a lifelong resident of your district (and a volunteer on your original 2002 primary campaign), I would appreciate your response and efforts on this issue.

No No NO!

The Supreme Court may be taking aim at the anti-retaliation aspect of employment discrimination law:
The discrimination case the justices granted on Tuesday, which has attracted almost no notice, could nonetheless produce an important shift in the court’s approach to interpreting statutes. The question is whether a law that bars racial discrimination in business dealings, including employment, also prohibits retaliation against those who complain about discrimination.

Ordinarily, the court grants cases only to resolve conflicting interpretations in the lower courts. But in this instance, every federal appeals court to consider the issue has agreed that the statute does apply to retaliation. For the court to grant a case in the absence of a lower-court conflict — as it did in the case decided in June that invalidated voluntary integration plans in two public school systems — is often an indication that the case has been added to the docket as a vehicle for advancing a particular agenda.

The federal law at issue in the new case was originally part of the Reconstruction-era Civil Rights Act of 1866. Known now as Section 1981, it does not mention “retaliation.” Neither do most other anti-discrimination laws. In the past, that has been no barrier to the court in finding that protection against retaliation is inherently part of protection against discrimination.

But support on the court for an approach that goes beyond the margins of the constitutional text has been shrinking. Two years ago, the court ruled 5 to 4 that Title IX, a law that bars sex discrimination in schools, also covers retaliation. Justice Sandra Day O’Connor wrote the majority opinion. It is likely that her successor, Justice Samuel A. Alito Jr., would have been among the dissenters.

Given that the new case, CBOCS West Inc. v. Humphries, No. 06-1431, does not meet the court’s most important criterion for review, it is likely that a new majority granted it in order to cut off the retaliation claim and perhaps also to issue a broader ruling against finding rights that are not spelled out in statutes.

Retaliation is not explicitly written into the statute, but lower courts (and the Supreme Court in analogous cases) have all agreed that not reading in an anti-retaliation provision doesn't just create a loophole -- it means you don't have a law anymore. In addition to being wildly unjust on its own terms (firing someone for making a non-frivolous complaint of discrimination is one of the more sadistic employment actions I can think of), if employers can simply terminate anyone who complains of discrimination, then it will be essentially impossible to ever breach the law. In my prior writings on retaliation provisions (this time in Title VII), I complained that they were too narrow--and anyone who thinks that statutory protection shouldn't extend to Robert Jordan in this case is severely lacking in the soul department. But here, the Court isn't looking at limiting the retaliation provision -- it's gearing up to eliminate it entirely.

I agree with Kos: "Congress should pre-empt this case and provide explicit language in the legislation preventing retaliation for discrimination claims." I've been beating the drums for awhile now to get Congress to beef up the retaliation provisions of its civil rights laws for awhile now, and this offers a key opportunity to do so. Discrimination hurts companies too, and by eliminating the incentive for corporations to simply terminate "troublemakers", we don't encourage more litigation -- rather, we encourage employers and employees to develop procedures to resolve these complaints in a just manner without resort to litigation at all. There are no worse incentives in law than those that deliberately and unnaturally pit the interests of employees and employers against each other. In this case, simply restoring the incentive to talk to each other would represent a huge gain for civil rights, as well as the employer's bottom line.

Monday, October 01, 2007

Yay Limbaugh

Rep. Jack Kingston (R-GA) has introduced a resolution to commend Rush Limbaugh for his support of the troops. This, less than a week after his "phony soldiers" remark. By all means, Speaker Pelosi, bring this baby to a vote. Either Republicans will break en masse against Limbaugh, insuring some nice fratricidal remarks from the base, or they'll vote to honor him, making them laughing stocks and providing a stark contrast to their "support the troops" mantra (not to mention pushing "General Betray Us" permanently from the political conversation).

Why is the Only "Good" Civil Rights Leader a Dead One?

The Thin Black Duke lays down "Elliott's Law":
As an online discussion concerning race grows longer, the probability of a person referencing Martin Luther King, Jr. as a means to justify their racist and/or ignorant attitudes approaches one.

Many contemporary anti-racism activists have expressed frustration in the way MLK--and indeed, the entire 60s civil rights movement--has been "neutered" so as to mask just how radical and revolutionary its agenda was (and, by extension, how far short we fell from achieving it). I've noticed, along with this, a meme that floats around the conservative right that tries to split the "good" civil rights activists of the 60s, whose cause was laudable and just (though not, it's worth noting, during the 60s themselves, as anyone who has read National Review articles from that time knows) from the next generation of Black leaders, who are charlatans and "race-baiters." Dr. King is the emblem of the former group, and perhaps its only political member; virtually no other civil rights pioneer of that era gets similar treatment. Dr. King serves as an apt model because he is quite conveniently dead, and thus unable to take positions that might be inopportune for his more conservative supporters. Had he not been assassinated, I firmly believe that White America would not have accorded King his current valorized status, for the precise reason that it would have been that much more difficult to mythologize his legacy if he was alive to contest it. Hence we have the title of the post: The only "good" civil rights leader is, quite literally, a dead one.

This splitting of the past (or "past", see my third point) and present civil rights leadership is entirely unjustified. First, there is very little division in the controversial elements of the political agenda of the 1960s Black community and the current Black community. "Color-conscious" remedies were always on the table. Black leaders were not hesitant to indict White America for their racism. Barbara Ransby notes the position of Ella Baker (a top SCLC and SNCC organizer) that "previously oppressive practices had to be radically reversed, not simply halted...and corrective measures had to be put into place" [Barbara Ransby, Ella Baker and the Black Freedom Movement: A Radical Democratic Vision (Chapel Hill: UNC Press, 2003), 369]. Dr. King, too, was neither particularly accommodating towards the hurt feelings of White moderates, nor opposed to remedial racial preferences. To the former, he suggested in his Letters from a Birmingham Jail that they were possibly more damaging to the prospects of Black liberation than the Klan, "more devoted to 'order' than to justice" and perpetually urging Black activists to "wait" for the time to be ripe for civil rights reform (a time that would never come). To the latter, King wrote in Why We Can't Wait:
Whenever this issue of compensatory or preferential treatment for the Negro is raised, some of our friends recoil in horror. The Negro should be granted equality, they agree, but he should ask for nothing more. On the surface, this appears reasonable, but it is not realistic. For it is obvious that if a man enters the starting line of a race three hundred years after another man, the first would have to perform some incredible feat in order to catch up.

If one reads the actual writings of 1960s civil rights activists -- from Martin Luther King, Ella Baker and Thurgood Marshall to Stokely Carmichael, Harold Cruse, and Malcolm X -- it is nearly impossible to place any of them as color-blind assimilationists, or moderate accommodationists. They wanted change, they wanted it now, and they wanted it to come with the explicit awareness that Blacks were the victims of an intense and systematic campaign of White supremacy that affected and infected all levels of society, far beyond laws that said "Black" and "White". Placing them in any other historical or political framework is naked historical revisionism, pure and simple.

Second, the characteristics associated with the latter group of civil rights activists are rhetorically and substantively identical to those ascribed by White racists in the 60s to the first group. At that time, too, vocal Black leaders were invariably called "agitators" (the contemporary analogue to "race-baiter"), or folks concerned more with their own personal publicity than the needs of ordinary Black people. The "special rights" charge has a long pedigree, dating back to President Andrew Johnson's veto of the Civil Rights Act of 1866 on the grounds it gave special rights to Blacks. Similarly, the White press often focused on personal scandals and salacious details of activists' personal lives as an excuse for ignoring the substance of their critiques. Along all these axes, the purported nostalgia for the last generation of civil rights leaders is nothing but a facade. It masks the importation of the same racist tropes used against King and his cohorts to the current crop of civil rights leaders. We should be suspicious of these echoes.

Third, and most importantly, the split between the 60s activists and the current ones is ridiculous because often we're talking about the same people. Jesse Jackson was one of Dr. King's top associates later in his career. Rep. John Lewis (D-GA), deacon of the Congressional Black Caucus, was beaten as a freedom rider in Alabama in 1961. Thurgood Marshall articulated much of the progressive Black legal agenda while a litigator for the NAACP, and then while serving on the Supreme Court bench up through the early 90s. Maya Angelou was a close friend of Malcolm X, as well as a coordinator for King's SCLC at Dr. King's request. Julian Bond helped found SNCC. Andrew Young was Executive Director of the SCLC and one of King's key lieutenants. By and large, the folks currently represented among the Black leaders were the same folks leading the charge in the 60s civil rights movement. It's schizophrenic to the extreme to simultaneously praise and condemn the same people for the same advocacies in the same words.

Again, Martin Luther King is a useful tool for justifying racism because he died so young. Being dead, he can't contest or contextualize the actual content of his beliefs. Being dead, he can't remind audiences of the criticisms and abuse he was subjected to during his campaigns, and how it is eerily reminiscent of the charges foisted upon contemporary Black leaders. And being dead, he is no longer a political threat, and thus is a safe person to prop up upon an altar and praise. Were he alive, we might be faced with the uncomfortable prospect that this great hero of American history might demand we actually fulfill our covenant with Black citizens, and that would require actual change and reform and sacrifice. Dead people tell no such tales.


I've always been somewhat of a Thomas Hobbes fan. Not because I agree with the need for a Leviathan state, but because I think his description of the State of Nature is pretty accurate (certainly more so than John Locke's rose-tinted glasses). In fact, my vague recollection upon reading Leviathan is that I agreed with nearly everything he wrote, save the policy implications (which, of course, is what everybody remembers).

Hobbes just rose another notch in my book when I learned today that, in his book, he questioned whether the Bible Torah was authored by Moses. This, of course, is old hat to modern Biblical scholars, who don't even think the Bible was authored by one person, but in 1651 it was pretty baller, I'd imagine.