Woke Freeze

The internet is cackling about prominent "anti-woke" conservative Bethany Mandel drawing a complete blank when asked the simple question "what is woke".

Jon Chait objects to the pile on of someone who just "froze" on TV.

At one level, he's probably right that Mandel froze, and freezing could happen to anyone. But that doesn't mean it isn't something she should take her lumps for. The context matters here, given that Mandel holds herself out as a subject-matter expert on this exact issue. If I forget the capital of Ukraine, that's embarrassing. If a guy who just spent 30 minutes engaging in Putin-apologism for Russia's invasion then can't recall the capital of Ukraine, that's, well that's a lot more embarrassing.

But the deeper problem is that while at one level sure, Mandel obviously has an idea of what she means by woke and just froze up in articulating it, at another level Mandel has no idea what she means by woke because her definition is utterly unsuited for the political hackwork she's trying to do.

Anyway, Mandel is in fact able to provide a definition of the term "woke." Are progressives going to like this definition? No. I'd suggest arguing with her ideas instead of pretending she's a complete moron who doesn't know what the word means. pic.twitter.com/K6KAeW99Us

— Jonathan Chait (@jonathanchait) March 15, 2023

"Woke" is when a radical belief in absolute endpoint equality, deviations from which can only be the product of discrimination, is violently enforced at mobpoint. Okay, but if that's the definition it doesn't actually capture any meaningful behavior. There's no universe in which Silicon Valley Bank was committed to absolute endpoint equality which it sought to enforce by a violent mob; hence, Silicon Valley Bank cannot possibly be woke. Which is why the argument for SVB being woke doesn't rely on anything like that definition, but rather skips to things like "woke is giving to a charity" or "woke is when any Black person is in the room". Seriously -- has there ever been a more naked motte-and-bailey play than this?

The problem is that when you put the right-wing definition of "woke" (crazed radicals fomenting an angry mob to impose absolute economic equality!) next to the right-wing examples of "woke" (Silicon Valley Bank had a single Black guy on its board!), the mismatch is too evident. And that, I suspect, is the real reason why Mandel froze up -- giving the definition would have ultimately shown how ridiculous her arguments were; and she couldn't hack together a new definition on the fly which would have resolved the dissonance.

UPDATE: Great example of the bait-and-switch. What does Victoria's Secret switching its brand ambassadors from the supermodel "angels" to female "icons" like Megan Rapinoe have to do with Mandel's definition of "woke"?

A clearer definition of "wokeness," and it usefully highlights the bait and switch.
This definition is coherent, and does sound like something I don't want taking over society, but few believe it.
When Mandel denounces specific cases of "wokeness" she's not using that definition. pic.twitter.com/coO1wR91o1

— Nicholas Grossman (@NGrossman81) March 15, 2023

The Wall Street Journal's New One Drop Rule

I won't claim to be an expert on what transpired with Silicon Valley Bank. I suspect the causes of the failure were complex and multifaceted, and hopefully a post-mortem can help point us to areas of insufficient oversight or regulatory gaps that can be filled to forestall such events in the future.

Of course, we can skip all that hard work if you can go to the old chestnut of "it's minorities fault". And low and behold, enter Andy Kessler in the Wall Street Journal!

“In its proxy statement, SVB notes that besides 91% of their board being independent and 45% women, they also have "1 Black," "1 LGBTQ+" and "2 Veterans." I’m not saying 12 white men would have avoided this mess, but the company may have been distracted by diversity demands.”

What's striking about this -- okay, there's a lot that's striking about this. But one thing that stands out in particular is that Kessler is literally flagging as his problem that SVB had one Black person on its board. One! (And one queer director! And two veterans!). One drop of Black blood directorship suffices to lead SVB into ruin.

In his "Chronicle of the DeVine Gift" essay, Derrick Bell posited that even in cases of incontestable candidate quality, predominantly White institutions would start getting skittish about hiring more Black candidates past a certain threshold. Bell is rarely accused of being insufficiently cynical, but even he didn't argue that this threshold would be "one" (for what it's worth, in the story it was the seventh extraordinarily well-qualified Black candidate under consideration at a historically White law school that set off alarms).

But such is the time we live in. As Ron DeSantis has made abundantly clear, the working conservative definition of "wokeness" is "any non-White or non-straight person present in any capacity." Hence why the mere presence of a gay penguins suffices to ban a book in the Sunshine State. And hence why the Wall Street Journal can see a single, solitary Black director at SVB and conclude "aha -- well there's your problem."

Who's Legitimately Protest-Worthy?

Let's divide the expression of certain opinions into four categories.

1. Correct. This is speech one outright agrees with -- you think is correct on the merits.
2. Legitimate. This is speech you do not agree with, but you concede is within the bounds of legitimate argument. "Reasonable minds can differ" and all that.
3. Permitted. This is speech which you neither think is correct or legitimate, but which you agree one has the formal legal right to say.
4. Impermissible. This is speech you think should be legally prohibited. 

In the United States, of course, the "impermissible" column is a narrow if not non-existent category, at least with respect to opinions. And we're all relatively capable of figuring out what speech we agree with. So most of the interesting action comes in whether a given act of expression falls in the second or third category -- that is, whether speech we disagree with is nonetheless legitimate (within the bounds of reasonable argument) or merely permitted (an unreasonable view that nonetheless must be tolerated as part of our commitment to free expression). (This distinction was presaged in my "Academic Freedom versus Academic Legitimacy" mini-essay).

To a large extent, the cultivation of a "free speech culture" is about trying to ensure that the "legitimate" category remains relatively expansive (that we aren't too trigger-happy in placing all speech that we don't think is correct in the merely permitted category). And what makes "free speech culture" a difficult concept is that even as we might agree we should cultivate a strong inclination towards slotting most speech we disagree with into the "legitimate" category, there absolutely are plenty of cases of speech which should be viewed as merely "permitted". I don't think we can ban Holocaust deniers -- their speech is permitted -- but we should absolutely not view them as expressing a legitimate opinion on which reasonable minds can differ.

This is all by of introduction to what I actually am curious about, which is how to apply this framework to protests of speech (here I'm imagining a situation akin to the protest of a speaker invited to give a public lecture, as opposed to broader protests regarding a social or political phenomenon. Picketing a speaker rather than BlackLivesMatter). To wit: Does anyone view themselves as legitimately protest-worthy?

Protests are a form of expression. Stated loosely, when people protest a given speaker, that protest is an expression of a position that this speaker is sufficiently terrible in some relevant respect that it would be wrong and improper to engage with them via the normal deliberative process. And as expression, protests can thus be grouped into the above framework. Some protests we think are correct (yes, this person is so vile and outrageous that they should be protested). Some we think are legitimate (we might not personally share the belief that this person is so terrible as to be protest-worthy, but we recognize that reasonable minds can differ in that assessment). Some we think are merely permitted (the protesters are being unreasonable in their assertion that such-and-such person is that terrible, but they nonetheless have the formal right to protest). And we can imagine protests we think should be outright impermissible, though again, under the First Amendment the set of protests which can be declared unlawful on basis of their opinion is narrow if not nonexistent.*

So: Imagine you are the subject of a protest. Presumably, you don't think the protesters are correct (that you're a vile individual who should not be engaged with via the normal deliberative process). But assuming you accept the American legal tradition, you also don't think protest is impermissible (that it  should be illegal to protest you -- though again, this doesn't mean that all particular modes of protest have to be permitted). So the action is, once again, between the "legitimate" versus "permitted" categories. But it's hard for me to imagine that any individual would ever think they are legitimately protest-worthy. And notice how this is different from how most speakers would treat substantive disagreement. There are many circumstances where one might face a challenging question and think "well, that's not my position, but I think it's a fairly-raised point that reasonable people should consider." It's hard to imagine a circumstance where someone would say "I may disagree, but reasonable minds can differ about whether I'm the sort of vile individual who should not even be met with normal deliberative engagement." All protests, to the protested, will be viewed as falling in at best the "permitted" category. 

Why does this matter? As we said above, the concept of "free speech culture" is in some ways about cultivating an inclination away from removing disagreeable speech from the "legitimate" category and deeming it merely permissible. We should be willing to consider -- not just on a formal legal level but on the level of practical public judgment -- a wider array of challenging opinions that we might otherwise be naturally inclined to accept. But protests put systematic pressure on this inclination because the protested party will always view their circumstance as falling outside the "legitimate" category, and so present a perpetual pressure point pushing away from "free speech culture". 

Admittedly, part of the reason why is that protests themselves probably are assertions that the speech in question falls outside the "legitimate" category. So we have dueling claims of illegitimate speech -- the protesters say the speaker is illegitimate; the speaker says the protesters are illegitimate. But that underscores the problem rather than solves it -- the entire structure of protests, including opposition to them, exerts pressure against "free speech culture".

I mentioned earlier that the challenge of "free speech culture" is that the inclination towards categorizing speech as "legitimate" still has to be one exercised via individual and case-by-case judgment, because there absolutely are cases (probably many cases) of speech that should not be viewed as legitimate even if it is permitted. There are circumstances where it is proper to view a given speaker as illegitimate (even if permitted); there are circumstances where it is proper to view a given protest as illegitimate (even if permitted). There's no dodging out of personal accountability and discipline here.

But there does seem to be at least one asymmetry in the situation I've identified: the protesters at least in concept could go through the process of individualized assessment and judgment (is this speaker truly in that beyond-the-pale, illegitimate category?). They may get that assessment right or wrong, but the outcome is not structurally foreordained. The protested party, by contrast, I suggest will always come to the conclusion that the protest is in the illegitimate category; there's no realistic circumstance where

he or she will concede "you know, the protesters do have a valid point in how they view me."

I'm not really sure what to do with this observation, but it struck me as interesting.

* To be clear: There are all sorts of ways that a particular way of protesting can be unlawful -- but those mechanisms are unlawful regardless of the underlying opinion being expressed. For example, we could say that "shout-downs" are an impermissible form of protest -- but the point is they're not impermissible contingent on who is being shouted down. They're impermissible regardless of whether their target is the Dalai Lama or David Duke. And by the same token, a protest that does not take one of these impermissible forms cannot be deemed unlawful no matter how unreasonable or absurd we think it is that a protest is targeting someone like that -- people are permitted to protest the Dalai Lama, even if I think that's an utterly absurd and unreasonable (i.e., illegitimate) thing to do.

Even Friendly Dominance Is Still Dominance

For some reason, a slew of congressional Democrats (along with President Joe Biden), most whom purport to support DC statehood -- most of whom I think genuinely support DC statehood -- voted to overturn the DC government's recent alterations to its criminal code.

This was a foolish decision, not the least because you give the GOP and inch and it takes a mile on these things.

But in its way, it demonstrates exactly why DC needs statehood.

The simple fact is that no matter how warm or empathetic any particular national politician feels towards DC, they cannot be trusted to govern DC insofar as they are not elected by DC voters. That's the entire point of democracy -- that our representatives are chosen by us, and so gain the legitimacy to write laws on our behalf. If DC were a state then normal, local lawmaking about DC would be undertaken by politicians accountable to DC voters. That doesn't mean all their choices will be good or salutary, but DC residents have the same right to make what some might deem to be mistaken policy choices as Kentucky or Idaho or Maine voters.

And the setup that DC has now -- with putative home rule, but subject to the oversight and approval of Congress -- will never substitute for actual home rule. Even men and women who think of themselves as DC supporters, who have naught but fair-feeling towards the people of DC, will be unable to resist the allure of substituting their own judgment for those of the actual DC polity. Whether because of strong feelings on a given issue or simply the happenstance of political maneuvering, those who have the power to dominant will exercise that power.

So long as Congress has the special power to override DC home rule, it will exercise that power -- it does not ultimately matter how "friendly" the individual Senators and Representatives are. The only way to end that is to give DC true, actual homerule on the same terms as any other American jurisdiction -- that is to say, by statehood.

(And yes, the same applies for all the American colonies).

Tablet Magazine's Great (Jewish) Replacement Theory

Tablet has a new article up on the purported "erasure of Jews from American life," which is getting at least some amount of traction. This is a bit striking, given that the article really boils down to a Jewish-flavored iteration of "Great Replacement Theory" where undeserving minorities are progressively taking the positions and roles and social boons that previously were occupied by, and are the rightful entitlement of, White people  -- only instead of Jews being the replacers (as in classic White supremacist ideology), Jews here are the replaced. Then again, what is Tablet Magazine these days other than "White Supremacy, but make it Jewish"?* So I guess this is on brand.

In any event, the claim that Jews are "vanishing" from American public life seems dubious to me, and some of the data marshalled in support is suspect.** Moreover, some of the "colorful" anecdotes meant to illustrate how the big bad DEI industry is excluding Jews are so bad that they end up undermining the entire thesis. Consider this absolute corker, which I can't help but share.

Another Jewish professor applies to work in the UC system. In his mandatory diversity statement, which he describes as “the most shameful piece of writing I’ve ever done,” his sole aim is to convey the impression that he hopes to be the last Jewish man they ever hire. He still doesn’t get the job.

"He still doesn't get the job." Good! Someone who expresses their hope that the UCs never hire Jews again should be ashamed of writing that, and should absolutely not be hired! When your evidence of pervasive antisemitism is "universities won't hire people who are nakedly antisemitic on their DEI statements," I think you're losing the thread.

But anyway. Let's assume, arguendo, that there are proportionally fewer Jews at various elite institutions than in years past (though, it must be said, Jews still are statistically over-represented). There are, as far as I can see, three different stories one could tell to account for that shift.

(1) There are proportionally fewer Jews in certain institutions because there are proportionally fewer Jews, period. In 1953, the American Jewish population was estimated at around 5,000,000. In 2020, that figure was approximately 8,000,000 (5.8 million Jewish adults, plus roughly 2 million Jewish children, depending on how you count it). That's a roughly 60% increase over a period where the overall American population grew by 120%. The result is that a smaller proportion of Americans are Jewish, which makes it unsurprising that a smaller proportion of the population of American institutions will be Jewish. That type of "disappearance" may or may not be concerning, but it's not a problem on the end of elite institutions.

(2) There are proportionally fewer Jews in certain institutions because Jews are choosing to attend alternatives. If Jews aren't literally disappearing, then they have to be somewhere. So the question is "where have they gone?" If the answer is "someplace else they're equally happy at," then it's hard to say there's a problem. For example, suppose we encountered data showing a significant drop in the number of Jews attending veterinary school. After some sleuthing, we learn that many of the Jews whom in prior years one might expect to enroll in veterinary school now are going to dental school instead. That speaks to a potential change in generational priorities, but there's nothing worrisome about it. More broadly, if the absolute number of Jews isn't going down (see explanation #1), then the not-literally-disappeared Jews must be going somewhere, and if they're broadly going to places and jobs and positions that make them happy, then there's no basis for concern.

(3) There are proportionally fewer Jews in certain institutions that Jews still wish to be admitted to at equal rates compared to past years. This is the only story that seems even potentially worrisome: Jews still wish to attend elite institution X at the same rate as in years past, but now fewer of them are actually gaining admission. Yet even here, this story doesn't necessarily demonstrate anything unjust is going on. Many students wish to attend Harvard, most will be thwarted in that ambition, but while that's sad for those students it's not proof that they're being maltreated. Most of the time, it's proof that other as-or-more qualified applicants got the nod -- no harm there. And if the same number of Jews are applying to Harvard each year, but the overall number of applicants surged (Harvard received over 20,000 more applications for the class of 2026 compared to the class of 2016), then one is likely to see fewer Jewish admissions simply because the pool has gotten much more competitive.

Ultimately, I think all three explanations play a role. There are fewer Jews demographically (and my understanding is that is even more pronounced amongst younger age cohorts). That there will always be generational shifts in what Jews want to do means there will always the opportunity to hack in a selection bias ("X University has fewer Jews!" -- well, yeah, because more decided to attend Y College). But there's also the simple fact that civil rights progress means that many other groups which previously had lagged in the opportunity to access elite institutions, now are capable of competing for those slots, which means the admissions pool is larger and more competitive than ever before. 

Imagine a simplified admissions model where each year there are a certain number of "qualified applicants" and every qualified applicant is equally likely to be selected for a limited number of slots (i.e., amongst "qualified applicants", selection is random). That's obviously not true, but it's closer to true than we'd like to admit: Once one passes a certain threshold, it is essentially random chance whether the university prefers the tuba player or the violinist; the prospective physics major versus the biologist. I remember hearing one college admissions staffer at (I believe) Cornell say something to the effect that he could create an entering class comprised entirely of applicants rejected from Cornell in any given year and it would look statistically and functionally identical to an actual Cornell class. So at that level, we can say that amongst the many extremely smart, qualified applicants, there's more than a fair bit of chance about which ones actually get the admissions nod.

Suppose that in a given year, there are 20 qualified applicants for 10 positions, and 10 applicants are Jewish. Statistically (again, assuming functional random selection), we'd expect half the admittees -- five -- to be Jewish. Ten years later, there are still 10 positions, but now there are 100 qualified applicants, of whom 10 are still Jewish.  Now we'd expect only one Jewish admittee. But the reason isn't because of any discrimination (Jewish applicants are still exactly as likely to be selected as anyone else); it's because there's now a larger pool of competitors being drawn from. This is not odd but in fact exactly what one would expect as barriers to achievement or entrance to elite institutions begin to fall away: more people can access it, which means that the cadre which already was capable of accessing it now faces a tougher row to hoe in the form of greater competition. 

At this point we start to see a lot of dust get kicked up about whether Jews are "privileged" or not, whether Jewish overrepresentation is inherently unjust or not, whether Jews are "White" or not, whether Jews who successfully got into elite universities nonetheless faced antisemitism or not, and so on. But the fulminations around these point obscure a more essential truth, which is that their resolutions don't materially change the analysis. 

On the one hand, unless one adopts a very simplistic binary where one is either uncomplicatedly privileged or uncomplicatedly oppressed, then there is no trouble whatsoever with simultaneously observing two seemingly undeniable truths: one, that Jews in mid-20th century America faced significant antisemitism, and two, that the relative barriers to Jews gaining entrance to elite universities in mid-20th century America were objectively substantially lesser compared to the barriers faced by, e.g., African-Americans. Different oppressions are different (it's not a simple binary), and along this particular dimension African-Americans were historically more burdened than Jews (which is not to say Jews faced no burdens at all, and is not to say that there might be other dimensions where Jewish oppression looms comparatively larger). If that's so, then relatively equalization in this dimension will see a disproportionate swelling in the number of non-Jewish "qualified applicants", which makes for a more competitive pool. Again, no harm there.

On the other hand, if you insist on arguing that college admission is and always has been a pure meritocracy, and no group has faced any more obstacles than any other, then one has to accept that the current assortment is also the product of this meritocratic assortment and is thereby unobjectionable.*** Suppose (and I don't think is true, but you hear people make arguments like this a lot) that the reason Jews were overrepresented in elite colleges was because "Jews worked harder, and if other groups worked hard like Jews, they could succeed too." Well, then it would seem that what we're seeing now is other groups "working harder", which now puts them in a similar position to where Jews are, thus making the qualified applicant pool more competitive, to the (relative) disadvantage of persons who were already in the pool before other groups "caught up".

It turns out, of course, that the "just work harder" people get really angry at this story too, which suggests they don't actually believe it. What they want is a "heads-I-win-tails-you-lose" account where when their group overperforms it is the product of an unimpeachably fair and just system, but when other groups start to close the gap now suddenly the system is suspect. Needless to say, this isn't a legitimate play.

For my part, there are absolutely legitimate bases on which to say that Jews historically being statistically overrepresented in various prestigious social positions is not the product of Jews doing anything unjust, but rather based on salutary traits like hard work and moxie. But I don't think it's possible to say that it is inherently unjust if Jews don't keep this statistical overrepresentation in perpetuity. Jews can earn (via hard work, an educational ethos, selection, what have you) a greater-than-statistically-average share of the pie; but that does not mean that a world where Jews aren't getting that additional share (or, to be more accurate about it, are getting a share that is still larger than average but now less so) is unjust.

This is one of the great paradoxes of equality and fairness. At least in a zero-sum competition, which to a large extent admission to elite institutions is, greater fairness hurts anyone who is currently inside those institutions, and so to the extent Jews had (for whatever reason) successfully gained access to elite institutions, increasing fairness in access to those institutions may well work to the comparative disadvantage of Jews. The non-Great Replacement story here is an iteration of a generationally-common theme of millennial middle class anxiety -- that of downward mobility even as we work ourselves ragged because there are millions of other people in our exact position gunning for a limited number of slots, any one of whom could hustle just a little more or get one more credential or work a few more hours and knock us or our kids off the perch and send us tumbling down the economic ladder. 

The reality is that much of what we're seeing really isn't about Jews at all, it's about the meritocracy trap. Equality means that more and more people have at least nominal potential access to elite institutions, which means that it's harder for any one individual person to access these institutions, which results in a terrifying and never-ending arms race to become (and stay as) one of the elect few, which generates new inequalities in terms of who has access to the resources that allow them to win the arms race and who doesn't.

In a very basic way, it is true that "equality" is the problem here. In the old days, if you were an elite, you could be pretty confident your kids would stay elite so long as they were basically competent: with relatively few people who could or were allowed to compete for prestigious social positions, being "okay" generally was good enough. 

Once the doors are flung open, though, you're competing against everyone, and now it's off to the races. Today, we don't want to say that "only the children of elite university attendees should attend elite universities"; we want to say that every child should have an equal chance to join the Talented Tenth. But saying that means that, if you're in the top 10% right now, you're committing to the notion that your kid should only have a 10% chance of staying in your social strata, and that's a very unpleasant thought that only grows worse as the gap between the top 10% and everyone else increases. But unless your solution is "we should go back to reserving elite roles for the current incumbents", this is necessary feature of an egalitarian social sphere combined with extremely limited "elite" social roles. So if we're not going to accept going back to overt exclusion, we need to tackle the omnipresence and power of scarce "elite" roles. The only actual way to ease the sting of redistributing the pie is growing the pie. The actual, actual villain here is terrifying inequality -- the massive and growing gap between the power, influence, autonomy, and life chances of the elites versus everyone else, which makes so that not getting into Harvard feels like a death knell.

But otherwise, we get articles like this -- articles which are undisguised fulminations against equality and fairness, because what they're really mad about is that others actually are being allowed to compete on equal terms and that makes life harder for those unused to things being quite that egalitarian. 

As Will Emerson puts it, "I take my hand off [the scales] and then the whole world gets really fuckin' fair really fuckin' quickly and nobody actually wants that. They say they do but they don't."

* I have seen this article shared on some White Supremacist forums, whose denizens absolutely recognize the line of argument being made even as they see it as Jews getting deserved comeuppance for our role in promoting racial justice ("White privilege ends, Jews affected most", one cracked).

** Some of the claims are entirely unsourced and I'm not sure where they purport to come from -- the alleged 50% decline in Jewish editors on the Harvard Law Review in less than 10 years is a good example, since I don't think HLR collects that data. In other places the author's methodology seems to be just scanning mastheads for names that "look Jewish", which isn't exactly a hallmark of reliability. The most direct statistical evidence put forward is typically cited to data compiled by FIRE, but I haven't been able to independently find the data on FIRE's website to verify it (I reached out to a FIRE staffer I know to see if he can point me in the right direction). It's entirely possible that data is entirely on the level; it's also possible it's technically accurate but misleading (to give one example that raised flags for me: the number of "academics under the age of 30 at elite universities" strikes me as likely comprising such a small n -- how many under-30 academics are there at elite universities? -- that churn in numbers is probably too noisy to draw conclusions from). But I do have to observe that Tablet has been caught publishing articles in this domain with falsified evidence before....

*** This is essentially tautological: If we stipulate that the system is fair, then by definition the system is fair.

Second Sleep

The most beautiful, relaxing, restful sleep I ever get is what I call "second sleep."*

My basic definition of "second sleep" is that you go to bed, fall fully asleep, awake fully to the extent that it would be plausible to just begin your day at that point (so excluding, e.g., waking up in the middle of the night to go to the bathroom), but volitionally electing to go back to sleep anyway. That latter phase is "second sleep".

To take a recent example, I went to bed at a normal time for me (about 1 AM), but woke up at 8:30 AM because I had a morning Zoom call. After the call was over (around 9:30 AM), I realized I had nothing else scheduled for the day, so I affirmatively crawled back to bed and went back to sleep ... and stayed asleep until 2:30 PM. And it was glorious.

Do others relate to this? Sometimes I think I like it so much I actually don't mind if I accidentally leave on my alarm and wake myself earlier than I have to, because the joy of falling back asleep is so nice. Same when I'm sick -- a fitful night of sleep where I find myself lying awake at 6 AM can be entirely salvaged if I can fall asleep then, because at that point I'll get a full "night" of second sleep and feel great about it.

* This seems potentially related to but also distinct from the pre-modern practice of biphasic sleep, mostly because for me it's typically time-shifted much later. As it happens, if I do go to bed around 10 PM I do exhibit a "biphasic" pattern -- I typically wake around 2 AM, and can't fall back asleep for a few hours -- but for me that is a miserable experience rather than a restful one.

Israeli Government Coalition's Base Implements Coalition Values

Israeli settlers went on a rampage earlier today in the Palestinian town of Huwara, setting fires to homes and cars and killing at least one civilian. The vicious mayhem followed a shooting attack by Palestinian militants which killed two Israelis, and settler rhetoric quickly took on a terrifying tone calling for ethnic cleansing.

The deputy head of the Samaria Regional Council, Davidi Ben Zion, called for Huwara to be “wiped out” in response to the attack.

“Here in Huwara the blood of our children was spilled on the road… Huwara needs to be wiped out today. Enough talk about building and strengthening the settlements. The deterrence that was lost must return now, there’s no room for mercy,” he said in a post on Twitter.

That "wiped out" tweet, incidentally, was "liked" by far-right Israeli minister Bezalel Smotrich, who recently announced a deal with the Defense Ministry that would render him effective Governor of the West Bank and formalize an apartheid policy in the West Bank territories.

The scale of the violence, which occurred directly under the nose of area IDF forces who were reportedly less-than-interested in intervening or responding, appears to be qualitatively different in scale than previous incidents of settler violence, underscoring the complete breakdown of order ushered in by the new Israeli government as the settler thugs who comprise its base are allowed to run wild.

In many ways, though, this spurt of street violence is the dark parallel of the street protests that have gripped Israel for the past few days -- hundreds of thousands gathering to decry the new government's efforts to undermine an independent judiciary and the country's basic status as a liberal democracy. Those protesters are living out their values on the street. And, in their own perverse way, so are the settlers -- it's just that their "values" are apartheid and violent ethnic suppression of the Palestinian people. Both segments of the population are putting their values into practice in the most visceral way possible.

The difference is that the latter segment is the support base for the current Israeli government, and the latter values are the ones held by the current Israeli government coalition. Settler violence to enforce apartheid is little more than a (very) slightly-too-enthusiastic application of what figures like Smotrich, Ben-Gvir, and yes, Netanyahu too, have long promoted as their explicit West Bank policy. The base is merely carrying out to the wishes of the government.

A Cracking Good Word

 I like crack.

The word, that is. Specifically, I like how wide-spanning it is. I like words that have many multiple meanings that are seemingly unrelated and distant from one another. Some words have many definitions but you can kind of trace how they're all connected. But "crack" covers a wide range and the connection points are, in many cases, at least not superficially obvious.

Let's trace some of the ways "crack" can be used:

First, of course, there is "crack" as in a gap or fissure ("A crack in the foundation").

There's also "crack" as in a loud noise ("A crack of lightning.").

Then there's "crack" as in to solve ("I cracked the case!").

There's "crack" as in elite ("Crack troops guarded the valley").

There's "crack" as in an attempt ("I'll take a crack at it").

There's "crack" as in making a joke ("'No soap, radio!' he cracked).

And of course there's also "crack" as in the drug -- crack cocaine.

That's a very expansive range -- and it doesn't count the related conjugates (i.e., crack as fissure is the noun, but there's also the verb form to crack -- to create such a fissure). Moreover, I don't intuitively see the pathway by which the various meanings came into being. The one exception is "crack" as solve, which I can imagine (though this is speculation) comes specifically from cracking a safe, i.e., solving the "puzzle" of a safe which results in opening it a crack. So those two I can perhaps tie together. But other than that? It's a mystery I cannot crack.

Diaspora Minister To Diaspora: Shut Up

Israel has a "Minister of Diaspora Affairs" -- a cabinet official whose very job is predicated on recognition of and respect for the unique relationship the state of Israel has with the global Jewish community.

And now, as hundreds of thousands of Israelis march in protest over the Israeli government's attempt to neuter an independent judiciary, the Minister of Diaspora Affairs has a message for the Jewish diaspora and international community who are backing these protesters and echo their concerns: shut up.

The Israeli minister responsible for relations with Jews in the Diaspora has a message for the government of the country where most of them live: “Mind your own business.”

Amichai Chikli made the comment Sunday in a radio interview in Israel, where he was asked to address recent comments by U.S. ambassador Tom Nides, who said he was urging Israeli leaders to “pump the brakes” on their controversial effort to change the country’s judiciary.

[...]

Chikli had a retort: “I say to the American ambassador, put on the brakes yourself and mind your own business,” he said. “You aren’t sovereign here, to get involved in the matter of judicial reform. We will be happy to discuss foreign and security matters with you. But respect our democracy.”

I especially appreciate the frankly laughable notion that the Israeli government is more inclined to listen to international and diaspora voices when it comes to foreign policy and security matters. These are in fact the areas where the Israeli government is most obstinate in the notion that outsiders lack skin in the game and ought not dare second guess the policy choices of the people who actually live there ("the people who actually live there", of course, does not include Palestinians, whose opinions it is entirely proper and indeed mandatory to ignore altogether).

But the actual consistent policy is straightforward: Israel does not care what the diaspora thinks. As much as a "Minister of Diaspora Affairs" suggests otherwise, the position of the Israeli government is that there is no special relationship between Israel and the global Jewish community. Our role is to sit back and shut up.

At the end of the day, though, Israel is a sovereign nation, it is indeed up to them to decide how to exercise their sovereign powers. And likewise, it is up to America and other countries throughout the world -- also in their capacity as independent sovereigns -- to decide what their own policies will be towards Israel as a result of the choices Israel makes. Sovereignty meets sovereignty.

Biden Visits Ukraine

President Joe Biden made a top-secret (but now public) visit to Ukraine in a show of solidarity as the country continues to face down Russia's war of aggression.

I don't have a lot to add to this except to say that as symbolic gestures go, this is quite the move. It obviously is reminiscent to trips Presidents Bush and Obama had made to Iraq and Afghanistan, but even more difficult to pull off given that Ukraine doesn't have American troops on the ground providing a security buffer.

As the GOP continues to play footsie with Putin's authoritarian thuggery, and the usual red-brown alliance pushes for Ukrainian capitulation and subjugation, this act of solidarity by the President is more than welcome.

How To Write a "Colorblind" DEI Statement

Keeping on with the theme of DEI statements and alleged compelled ideological orthodoxy, one common argument against the use of DEI statements in academia is that they functionally compel agreement with a particular ideological orthodoxy. Even when the questions are formally open-ended (as they almost always are), it is alleged that the expected answer simply must accede to the prevailing left orthodoxy on DEI matters or it will be rejected out of hand. The job applicant who believes in colorblindness will not be able to write an (honest) DEI statement that will be acceptable to the hiring committee.

Having now served on an appointments committee (and having recently been an academic job candidate), I don't think this is true. I've now read a lot of DEI statements saying a lot of different things, and there are many ways to write a good DEI statement. And I actually do think it is entirely possible to write a "colorblind" DEI statement that would at least be considered acceptable by the average appointments committee. This matters because, if I'm right, it falsifies a key objection against having DEI statements -- that they in practice either require acceptance of a single ideological framework, or at least rejection of certain commonly-held and politically reasonable ideological frameworks.

To begin, though, we need to zero in on exactly what the complaint here is. In my experience, many of those who complain about DEI statements compelling allegiance to a particular orthodoxy actually are complaining about being asked to think about DEI at all.* Their problem isn't actually that they're allegedly being forced to accede to or reject a particular approach to DEI. It's that they have to have an approach -- they need to have considered the various challenges a university might have in fostering an environment that is equitable and inclusive to a diverse student body, and to have some thoughts on how to address those challenges.

For my part, when I read a DEI statement, I'm not looking for particular endorsement of a specific political view. What I want to see is simply that the candidate has thought critically and careful about DEI problems and has some ideas of how address or remediate them. If you haven't ever done that -- if you've never considered in any serious way questions like "how can I create an inclusive environment in my classroom for students of diverse backgrounds and perspectives" -- well, yes, I think that's a strike against you in the same way it'd be a strike if you've never considered in any serious way "how can I maximize my students' learning potential" or "how can I ensure my scholarship is responsive to potential objections." Asking candidates to think about challenges that are present in academic spaces is not a party foul.

A good DEI answer isn't about regurgitating a particular ideology. It's about demonstrating that one has thought about how to handle DEI problems and issues in some amount of specificity, and that specificity can take many forms. The "ideology", if one has it, needs to be tied into resolution of a problem -- "I've seen X problem, which I try to ameliorate by Y practice." This is why one often sees DEI guidelines that give low marks to statements like "I treat everyone the same". It's not because that's Wrongthink. It's because it's not responsive to the question. If someone asks me "how do you ensure student success in your classroom", answering "I treat everyone the same" ... isn't an answer. It doesn't tell me anything. It's not ideologically impermissible, it's just a normal incomplete answer. At the very least, it needs to be filled out -- I should identify a problem area where some students are struggling to succeed, and then I can specifically explain how my practice of "treating everyone the same" helps resolve or ameliorate that problem. Of course, it's possible that in some circumstances "treating everyone the same" won't be an effective way of resolving certain classroom problems, in which case the answer probably isn't a very good one. But again, the candidate there is being penalized not for "ideology" but because they aren't capable of translating an ideological commitment into a workable practice.

The same is true of DEI questions. If your view is that DEI problems are best resolved via "colorblind" practices like "treating people as individuals", that's fine -- so long as you can actually tie it specific problems related to diversity, equity, and inclusion in a meaningful fashion. Again, if you can't do that -- because one hasn't actually thought about how your abstract ideological commitments translate into resolving actual problems for actual students -- yeah, you're going to get dinged, but it will be entirely deserved. Abstract commitment to an ideology -- any ideology -- isn't good enough.

But I'm inclined to think that one can construct a "colorblind" DEI statement -- it just has to demonstrate that the candidate has actually thought about how "colorblind" practices can resolve certain identifiable problems related to diversity, equity, and inclusion in academic spaces.

Consider the following as the skeleton of a "colorblind" DEI statement. Obviously this would have to be expanded and elaborated on and personalized. But I think something of this form would not be instinctively rejected by the average appointments committee:

Central to my philosophy of teaching is meeting students where they are. Academic life can be deeply depersonalizing, particularly for students who are often still figuring out who they are and how to get where they want to go in life. And programs like affirmative action, which primarily concentrate on admitting underrepresented minorities onto campus, do not do much to ensure that such students are supported and positioned to thrive once they matriculate. It does little good to expend so much effort to create a "diverse" community and then not support students in their diversity once they arrive on campus. Consequently, I make it point to get to know all of my students as individuals -- for example, at the start of each semester I require all students to write a short introductory essay simply telling me who they are, and require students to attend at least one mandatory office hours session per semester -- so I'm best positioned to help them along the path they've chosen for themselves. 

On receiving these essays, and in innumerable office hour conversations, many of my students have reported that they often feel siloed or pigeon-holed into particular career trajectories -- for example, female students who tell me it is just assumed that they'll want to go into family law rather than corporate law, or Black students for whom it is taken for granted they won't want to become prosecutors -- and find that resources and support are lacking if it turns out they don't want to go down the expected road. Often the persons who promote these presuppositions are acting with good intentions, but nonetheless that sort of formulaic treatment frustrates students who deviate from popular assumptions of what someone "like them" will or should do with their lives -- a cost that often falls especially hard on minority and underrepresented students who may be particularly prone to being stereotyped in this fashion. Students of all backgrounds benefit when they know that all the paths and choices of academic life are available to them, and that they will be supported and mentored no matter which avenue they choose to take. Ultimately, my job as a professor is not turn my students into the person I expect them to be, but to help them become the person they want to be. To that end, there is no substitute for learning about every student as a full person, to support the entire student body in the full range of its diversity.

I'm not saying this is the perfect DEI statement (nor, for the record, is it the one I wrote when I was a candidate or necessarily reflective of my own views about DEI). And again, this would need to be fleshed out and personalized considerably. One can argue about its approach or its underlying presuppositions, and that's all fine. But I do think that, as a bare bones model, this is not the sort of statement that would be rejected out of hand -- even though its core framework is something like "treat students as individuals". The statement tacitly calls out forms of DEI "support" that rely on racial or gender essentialism, and even takes a little shot at affirmative action programs, all while promoting individualized treatment of each student. And yet, to me at least it seems like a DEI framework that would be basically acceptable to most hiring committees, and to that extent it falsifies the popular but I think fanciful notion that refusing to kowtow to left-wing orthodoxy equates to an auto-reject.

Why does a statement like this work, notwithstanding its "colorblind" approach? For me, at least, it works because it advocates for individualized treatment in response to specific and identifiable DEI problems faced by certain students. It doesn't promote "individualized treatment" as some sort of abstract moral principle and leave it there; nor is it some polemical rant against "DEI orthodoxy". It takes seriously certain pitfalls and inequities that might exist in educational spaces, and then offers a set of practices which are designed to be responsive to and redressive of those problems. The applicant is demonstrating that they're paying attention to certain burdens and problems that exist in academic spaces -- burdens that fall perhaps especially heavily on minority groups -- and they are taking affirmative steps at trying to ameliorate them. Given that, it's not going to be disqualifying that the approach chosen is one that is aligned with a "colorblind", "treat everyone as individuals" vision of the world.

Again, the main barrier to writing a statement like this isn't ideological dissension. The main barrier is that one has to actually be paying attention to potential DEI problems and barriers (such as, here, the students who feel especially pigeon-holed into and out of specific career paths on basis of identity) and have thought about how one can redress it. Again, many anti-DEI objectors seem angry about even having to do this much -- they think they're wronged if they're even expected to consider things like "female and minority students are at heightened risk of stereotyping", even if the payoff is "and that's why it's important to treat all students as individuals rather than essentialize on the basis of racial or gender identity". So yes, if the only thought you've had about DEI is "I shouldn't have to think about DEI", one won't produce this sort of essay. 

But again, there is no reason why hiring committees cannot look askance at that sort of apathy, which fundamentally isn't about "ideological" dissension but rather a basic incuriosity regarding an important facet of the job. As I've written before, it cannot be the case that it is "conceptually inappropriate for a hiring committee to value a prospective applicant's ability to teach, mentor, and support students of diverse backgrounds." Of course we can think it's important that incoming faculty have demonstrated ability to handle DEI problems, just as we can think it's important that incoming faculty have demonstrated ability to teach effectively. It's possible to seriously approach on-the-ground DEI matters from a variety of political or ideological perspectives, but screening out people who are just indifferent to the issue is not the same thing as imposing a rigid ideological litmus test.

* Some others have nearly the opposite complaint, which is that they want to go on a thirteen page rant about how DEI is the devil's bureaucracy but that's somehow unacceptable. Which, yes, rants like that tend to go over poorly -- but I will say they go over equally poorly regardless of politics: a dozen pages on the need for a proletariat revolution because only under Communism will students truly be free will also generally be met with scorn. And glibness aside, the reason this doesn't work is typically because such statements, in raging on about all the things one hates, typically offers little in the way of practical proposals of what one can do for the students one does have under currently existing conditions of the world. Again, what we want to see is some attentiveness to extant problems and some practical steps you've taken to ameliorate them. So even you think affirmative action is the new Jim Crow, shrieking about that for 15,000 words doesn't tell me anything about what you do to help about and nurture the students who are in your classroom (and strongly suggests that your policy towards them is to abandon them to fail, which understandably is not really an acceptable response).

FIRE's Proposed Anti-DEI Legislation is an Academic Freedom Trainwreck

FIRE (the Foundation for Individual Rights and Expression -- formerly Foundation for Individual Rights in Education) is a controversial organization that works in a controversial area. By and large, though, I'm a FIRE defender -- I tend to think they get more right than wrong, and strive to be genuinely evenhanded in dealing with threats to academic freedom on campus.

But this makes it all the more striking to read their proposed model legislation targeting "DEI statements" at public universities. It is nothing short of an academic freedom trainwreck -- the sort of vague censorial tool that in most contexts FIRE would be blasting the alarm over. That it does not just endorse but drafted this disaster show is deeply worrisome and disconcerting.

I've written before trying to tease out the connection between DEI statements and (threats to) academic freedom before, which is far more complicated than groups like FIRE are letting on. The core problem is that while I absolutely agree that DEI statements can be used in abusive ways to create an ideological monoculture, it is actually very difficult to distinguish such statements from other arenas in which academic actors are asked to make normative assessments of their peers (for example, regarding teaching or scholarship) -- arenas which also are prone to ideological abuse. Almost inevitably, an "anti-DEI" rule that tries to have any teeth will put at risk basic practices of academic evaluation, and will do so regardless of any disclaimers to the contrary. This risk is only accentuated by the impossibly vague language that purports to distinguish licit versus illicit appraisals. And university bureaucrats who want to avoid potentially crippling financial liability (we'll get to that in a moment) are going to be very defensive regarding what is and is not permitted, inviting exactly the sort of administrative interference in academic affairs that FIRE purports to oppose.

When it comes to attempts to regulate DEI initiatives, my basic framework for evaluation is this. I assume that it cannot be the case that university actors are forbidden from caring about questions like "will the job candidate do a good job creating an equitable and inclusive environment for our diverse academic community" (if we are "forbidden from caring" about that, then the oppressive orthodoxy of the anti-DEI push is beyond dispute). So, assuming we're not "forbidden from caring", the question becomes "how can we, consistent with the anti-DEI regulation, permissibly elicit information to make an evaluation on that question?" And the subsidiary to that question is "what will the university or government bureaucrat in charge of compliance permit us to do to elicit information to make an evaluation on that question?" The former is a textual inquiry; the latter gets to the chilling effect of defensive bureaucracies seeking to avoid potentially millions in financial penalties. And for FIRE's anti-DEI legislation, the answers to these questions seem to be (a) I have no idea and (b) virtually nothing.

The core practice FIRE targets in its legislation are requirements that academic community members or job candidates "pledg[e] allegiance to or mak[e] a statement of personal support for or opposition to any political ideology or movement, including a pledge or statement regarding diversity, equity, inclusion, patriotism, or related topics." In addition, the law would forbid any institution from "request[ing] or requir[ing] any such pledge or statement from an applicant or faculty member" (notice that this would seemingly apply to interviews as well -- I could not ask a question that "requests" the candidate give a "statement" regarding their DEI-related practices).

Right from the outset, this is impossibly vague. Academia is, of course, beset with normative controversies. Some are very specific questions of disciplinary dispute ("Is originalism the best way to interpret the Constitution?"). But many are broad questions of academic mission. "Should university education be primarily vocational or academic in focus?" "What is the best way that professors can create a supportive learning environment for their students?" "What do you hope students will get out of your classes?"

These questions are contested, and often politically contested. For example, on university education as academic versus vocational, many conservatives contend that universities focus too heavily on hoity-toity theory and should instead concentrate on disciplines which prepare students for specific workplace jobs; liberals, by contrast, are more comfortable with the classic model of a liberal arts education where the project of learning and development is valuable even if it doesn't directly translate into a specific career arc. Are all of these questions qualifying "political ideologies or movements" that fall under the ambit of the law? If not, what conceptually distinguishes those questions from the seemingly-similar question "How do we render our institution equitable and inclusive to the diverse populations that we serve?" If the questions are identical in form, then the only basis for specifically banning DEI related questions is ideological hostility -- an imposition of state orthodoxy under the guise of pluralism.

One possible response is that the question is fine so long as it actually is a question, and does not dictate a particular answer. So if you ask "What is the best way that professors can create a supportive learning environment for their students," there are multiple ways to answer that question; the question does not require a "statement of personal support for or opposition to" any particular ideology, since the respondent is free to take any stance they like on the subject. By contrast, it would be problematic to ask job candidates to explain why the Socratic Method simply is the best way to create a supportive learning environment, since now they are being compelled to express support for a particular (pedagogical) ideological view, and we should be open to a diversity of positions on that subject.

Problem #1 with this response is that it's not clear that the model legislation permits even this, insofar as asking them to take any position on "supportive learning environments" arguably requires them to issue a "statement of personal support for" the practices they endorse, and opposition to the ones they reject. The law is vague as to whether it prohibits requiring candidates to endorse one favored view on an "ideology", or if it prohibits requiring candidates to simply present a view on the subject.  At least for DEI, the text points towards the latter -- the language prohibits requirements of statements "regarding" DEI or "related topics." So even an open-ended question which expressly invites multiple potential answers is forbidden if the subject matter of the question "relates" to DEI.

Problem #2 is that, assuming the model legislation does permit questions like "What is the best way that professors can create a supportive learning environment for their students" because they're open-ended and don't demand avowal of a particular ideological view, then it's unclear what distinguishes that sort of question from standard DEI statement questions. Contrary to popular belief, most DEI prompts do not take the form "explain why Derrick Bell is the greatest political theorist since Rousseau" (and if that sort of request is all that's being covered here, the law scarcely does anything at all). They are far more likely to be framed as something like "How do you propose making your institution equitable and inclusive to the diverse populations that we serve?" That question, too, can be answered in a multitude of ways, and so is not different in kind from all the other normative appraisal questions that are endemic to academic life (and which also can elicit strong views and significant political controversies).

In order to carve out a distinction for why DEI is different, one might make one of two arguments. The first is that although the DEI question is nominally open-ended, everyone knows that there is but one "right answer", and that answer is kowtowing to the politically-correct standards of the moment. To begin, I'm dubious that this is true at least in the strong form (there might be some answers generally thought of as wrong, but there is not only one answer accepted as right). I'm also skeptical that a complaint that is fundamentally about abusive-applications can justify prohibiting such questions as a class. I'll concede that it's probably true that a job candidate whose views on a given issue of concern are sharply at odds with their employers will be at a disadvantage in the process; I'll even concede that a flat unwillingness to even consider a contrary view is deeply malformed practice.  But that a candidate who answers a DEI question in a fashion at odds with prevailing sentiments may be at a comparative disadvantage to others cannot alone suffice to establish that the statements are being "abused" or that the statement's usage is tantamount to a desire to create a monoculture. The core risk -- dissidents are disadvantaged -- is always present for any normatively-laden assessment, it is not distinct to DEI. It exists for the academic job candidate whose views on pedagogy or research sharply diverge from the departmental line, it exists for that matter for the corporate job candidate whose views on business expansion break from the general consensus held by the executive leadership. Across the board, for any normatively-laden question, dissident candidates are probably at a disadvantage. If that fact is enough to justify banning an interview question, then we have a lot of questions to ban.

The second potential argument for why DEI questions are materially different is that the DEI question, while admitting multiple answers, still encodes certain values inside the question's very structure as presuppositions which an answer must tacitly endorse -- i.e., that values like "equity" and "inclusiveness" are in fact values the university should pursue. Someone who rejects the very premise will struggle to answer the question. But this "distinction" actually isn't one; similar presuppositions are likely embedded into most normative questions. "What is the best way that professors can create a supportive learning environment for their students," embeds a presupposition that professors should try to create a supportive learning environment; a candidate who rejects that premise (thinking, perhaps, that students learn best in a trial-by-fire academic Sparta) would likely be at disadvantage. Again, the objection here would cover far, far too much.

And at this point we do start to see FIRE unsuccessfully try to cabin its law's reach, with a provision contending that "Nothing in this Act prohibits an institution from considering, in good faith, a candidate's scholarship, teaching, or subject-matter expertise in their given academic field." Great verbiage; no idea how it works in practice. Suppose I, in good faith, believe that demonstrating capacity to work with and respond to issues of diversity, equity, and inclusion, is part of assessing a candidate's teaching (or, for that matter, scholarship or subject-matter expertise). Can I ask about that? I have no idea, but I suspect the answer is "no", notwithstanding this supposed carve-out. FIRE is I suspect embedding a normative presupposition of its own: that issues "related" to DEI never are in good faith connected to valid considerations of academic merit. But this position is very much a contested one -- I'd contest it -- and certainly should not be encoded into state law as legally-compulsory orthodoxy. Again, 90 times out of 100 FIRE would be screaming bloody murder about this sort of thing -- they are a victim of their own blindspots that they don't see how they're promoting exactly the sort of legislation they normally abhor.

And speaking of legislation -- we shouldn't conclude without talking about penalties for a moment. They have several different penalty formulations, but they all coalesce around proposing six-figure monetary fines "for each violation of the act." That's gigantic on its own, and certainly will counsel extreme defensiveness by university bureaucrats and lawyers regarding what faculty are and are not permitted to say in job interviews or other like forums on matters of DEI. The potential for censorial chilling is massive. But worse, the law does not tell us what counts as a single violation. A college posts hiring announcements across a dozen different departments, requesting application materials which are later determined to include Forbidden Questions. Is that one violation, or twelve? Probably twelve, meaning that a $300,000 fine just got converted into a $3.6 million fine. Or worse -- each of those job postings (based on what I know of the academic market) will likely get 250 applications. And since the structure of the act suggests that each individual applicant is separately injured by unlawful consideration of the Forbidden Questions -- well, 250 x 12 x $300,000 = Nine Hundred Million Dollars in potential liability. Given that exposure, you better believe that the university bureaucracy is going to be policing faculty hiring and promotion practices with a very fine-toothed comb to root out anything that could even possibly represent eliciting a statement "relating" to DEI as interpreted by whatever lickspittle Ron DeSantis has put in charge of oversight. And I guarantee you that the ensuing bureaucratic regime will be far more onerous, oppressive, and censorial than anything currently happening at the behest of DEI offices.

FIRE knows better than this. It knows that the strong arm of state regulation and compulsion is almost inevitably toxic to the free and open exchange of ideas on campus, and it knows that academic freedom means that it must be the academics themselves -- not bureaucratic meddlers, not state legislatures, not politically-appointed boards -- who get to decide how to appraise their peers and the requirements of their discipline. Some academics do not think that matters of DEI are germane to that assessment. Many others think they are quite germane, not because we demand all candidates adhere to the One True Path, but because I absolutely want to know that any potential member of my academic institution has at least thought critically and comprehensively on the subject of how to best create an equitable and inclusive environment for a diverse educational community. That interest of mine is no different than my wanting to know that they have thought on how to create supportive learning environments, or wanting to know that they have thought on how the important normative questions that are part of many research agendas. In terms of what conclusions they draw from that critical consideration, I'm willing to hear a wide range -- I don't have a single answer in mind that is the only acceptable conclusion. But it doesn't matter, because under FIRE's view if I try to elicit information on the wrong subjects I risk bankrupting the university. That can only have a censorial and chilling effect.

It is not possible to declare the topic of DEI a Legally Forbidden Question without doing catastrophic damage to academic freedom, and the manner in which this law proposes to enforce its prohibitions will inevitably generate a nightmarish cavalcade of bureaucratic censorship. To be blunt: Academic departments are absolutely entitled, as part of their discretion to determine how to assess disciplinary, pedagogical, or service-based standards, to decide how and to what extent questions relating to DEI are germane to their evaluative appraisals. I do not doubt there are departments that will exercise their discretion in a fashion that I would not approve of; I do not doubt that are departments that will exercise it ways I find impossibly narrow-minded and abusive. It does not matter: any state legislation which limits that fundamental prerogative of academic independence and faculty self-governance is a limit on academic freedom -- full stop. Problems of abuse, to the extent they exist, are not validly delegated to state legislatures, and FIRE absolutely knows better than to argue otherwise.

This legislation is a stain on FIRE's reputation. They should withdraw it, and they should reflect on just what it is about this issue that caused them to so flagrantly abandon their normal principles regarding academic freedom. That an organization that has done so much to fight for academic freedom is poised to usher in this sort of censorial dystopia is fiendish irony. One hopes they backtrack before it becomes reality.

You People, Get a Grip

So quick disclaimer: I have not seen "You People". It did not especially interest me to begin with, and the commentary I've read about it has not (to say the least) altered my initial instincts.

But reading the discourse about "You People", I've noticed a particular type of denunciation which seems to hold several presuppositions as gospel. They are:

1. "You People" is antisemitic;
2. Despite (or because of?) its antisemitism, "You People" is a critical darling; and
3. No other group but the Jews would encounter a situation where a media property that is so hateful is a media darling.

That this last claim is made unironically at the exact same time Dave Chappelle won a Grammy for "The Closer" is absolutely precious. But there's a bigger problem with the syllogism here, which is that "You People" is not at all a "critical darling". It has a flat lousy 42% rating on Rotten Tomato! It is widely seen as a mediocre disappointment!

The "nobody but the Jews is expected to suffer so" is an ever-flowering weed of antisemitism discourse, paradoxically living in largely harmonious coexistence with its opposite ("nobody would ever dare say that about the Jews"). Both positions are obviously wrong, which stops exactly nobody from asserting them with unimpeachable confidence. More interesting is the assumption that "You People" inevitably would be a critical hit; so much so that I saw people simply asserting that it was being lauded as an anti-racism classic in defiance of the actual critical consensus. What is going on here?

My suspicion is that there is a line of thinking amongst some that basically assumes that any film or media property which styles itself as "anti-racist" or "asking the hard questions about discrimination" will, in our supposedly hyper-woke era, automatically be viewed as a work of great significance and power -- and if punches at Jews, so much the better. They have bought in hard to the narrative that "woke" means a complete suspension of critical faculties in favor of blind support for anything that holds itself out as anti-racist; since "You People" fits the mold, of course it will be blindly and fervently supported via this inevitable collapse into groupthink. The complaint that critics will reflexively laud anything calling itself "anti-racist" -- ironically itself a reflex that has (as here) proven itself impervious to empirical refutation (perhaps because its very purpose is to enable the automatic and reflexive suspicion of any media property calling itself "anti-racist" -- it can't ever have earned its praise, if it is being lauded it's simply to fulfill the diktats of political correctness)  -- is paradoxically paired with the complaint that Jews and antisemitism are not included inside this paradigm of blind and uncritical support.

But again -- the whole thing is based on a misnomer. The critical reception of "You People" was not blindly supportive; it was not supportive at all. Whether because of its alleged antisemitism, or its clunkiness, or its heavy-handedness, "You People" was not a highly regarded movie notwithstanding its grand social ambitions. This should (but won't) falsify the notion that critics or commentators simply reflexively praise anything that styles itself as anti-racist -- which in turn should (but won't) make us more willing to consider seriously other "anti-racist" media properties which have gotten plaudits but also are hit with the reflexive dismissiveness that they are naught but contemporary PC pandering.

A First Amendment Right To Take In Information

Last week, the 8th Circuit decided Molina v. City of St. Louis, granting qualified immunity to police officers who shot tear gas at a group of lawyers (wearing bright green hats saying "legal observer") congregating on their own property while observing protests. The lawyers contended that the police gassed them in retaliation for exercising their First Amendment right to observe the protests. In a 2-1 ruling authored by Judge Stras, the court held that it was not "clearly established" in 2015 that there was any First Amendment right to observe protests.

(Because this is the Eighth Circuit, this is not even the most outrageous qualified immunity decision authored by Judge Stras of its week. That honor has to go to Leonard v. St. Charles County Police Department, where a jailhouse nurse simply refused to give a mentally ill inmate his prescribed medication, instead placing him under suicide observation -- the end result being jail staff "observing" the man claw out his own eyeball. Is just refusing to provide prescribed medical care "deliberate indifference" to the inmate's constitutional rights? Of course not! After all, the nurse did not do nothing -- she placed the man on suicide watch! That's what's great about modern medicine: everyone knows it can be freely swapped out with "do nothing but observe the patient" with no material change in outcome. This is why nursing is such an easy and non-stressful occupational path).

The interesting thing about Molina is that the Eighth Circuit had already in prior cases appeared to recognize that there was a constitutional right to observe the police. And under the "prior panel" rule, those decisions are supposed to be precedentially binding. But the Molina panel argued that those cases only concluded that it was a Fourth Amendment violation to seize someone for observing police (since there's no probable cause to believe any crime was committed). This does not establish, in the court's view (and notwithstanding the broad language in the case stating that there is a "clearly established right to watch police-citizen interactions at a distance and without interfering."), that there is a First Amendment right that's been established.

Judge Benton's dissent makes mincemeat of this finely-parsed distinction. But I wanted to flag a particular passage from Judge Stras' opinion that appears to embody a sort of vulgar textualism that's way too clever for its own good. In a footnote, Judge Stras argues:

It is not beyond the realm of possibility that a First Amendment right to observe police exists, but our Fourth Amendment cases like Walker and Chestnut do not clearly establish it. And it makes good sense why. It is one thing to conclude that officers cannot arrest someone passively standing by and watching as they do their job. After all, in the absence of interference, there is no crime in it. But it is another matter to say that watching is itself expressive. Expressive of what? Not even Molina and Vogel can provide a clear answer.

This, to me, seems to prove way too much, seduced by the allure of a hyper-literal reading of "expression". This argument, after all, would suggest that there is no First Amendment interest in reading a newspaper or watching a television program. Certainly, the speaker is expressing something, but what is the reader or watcher expressing? For them too, we could ask "expressive of what?" One can shoehorn in an answer ("they're expressing interest in or approval of the material"), but the more obvious answer is that the First Amendment encompasses interests on both the side of the speaker and the listener, and it is a fluke of grammar that "expressive" only directly captures the former. It seems obvious to me that the First Amendment encompasses some sort of right to take in information, not just to transmit it, and any reading that denies the former under the guise of interpreting the word "expression" is completely misunderstanding how to do legal analysis.

Incidentally, many years ago there was a similar thing with Justice Thomas in his Lopez concurrence, where he tried to bring constitutional Commerce Clause jurisprudence all the way back to E.C. Knight and claim that manufacturing is not "commerce". Among his arguments was the point that, grammatically speaking, you can't really substitute "manufacturing" for "commerce" in the clause -- while one can engage in "commerce" with a foreign nation, one can't really engage in "manufacturing" with a foreign nation. This was an argument that, again, proved too much. If there was a constitutional clause authorizing Congress to "wage war with a foreign power", would the power to "wage war" permit Congress to authorize the construction of warships? As a matter of grammatical substitution, it doesn't work ("construct warships with a foreign power"?). But all that means is the broader phenomenon of "waging war" can include activities which are not grammatically interchangeable with the phrase "wage war". And so too with "commerce", which also can refer to a range of activities which, taken as a whole, operate upon or in relation with foreign nations, Indian tribes, or the several states.

It is not a good thing, but also perhaps not an accidental thing, that the turn towards hyper-textualism corresponds to judges becoming increasingly bad readers of texts. The First Amendment obviously encompasses activities that are about receiving information alongside transmitting them. Pilpul about "expression" doesn't change that.

How Do Conservatives Explain Negative American Exceptionalism?

Over at the Washington Monthly, Keith Humphreys put up a chart comparing various countries along the axes of homicide rates and incarcerations rates.

Ideally, you'd want to be a country that has low homicide rates and low incarceration rates (Norway, Germany). Countries that have low murder rates, but get there by locking everyone up, are despotic (Iran). Countries that have low incarceration rates but high homicide rates are lawless (Mexico). And the finally, countries which throw everyone into prison but still have high crime rates are "disastrous", and of course, the U.S. of A. falls decisively into this category.

(Kevin Drum thinks violent crime rates are more useful than homicide rates for this sort of illustrations, which reshuffles some of the countries, but not in a way relevant to our purposes since the United States remains a clear disaster.)

I've long been curious how conservatives explain this sort of American exceptionalism -- metrics where America just clearly and unambiguously is far worse than nearly any other peer nation. Why, under the conservative telling, are we so bad at this compared to other countries?

Liberals don't have too much trouble with this problem -- partially because we're less wedded to chest-thumping about "greatest nation on Earth", more saliently because we have an easy explanation (guns + racism) ready to roll. But of course conservatives aren't going to be fans of that explanation. So what do they go with? It can't be "soft on crime" -- again, we're clearly "tougher on crime" than most peer nations (perhaps some "reforms" in that direction could push us into the "despotic" quadrant alongside Iran -- what a cheery thought -- but it doesn't seem to work as an argument). And I can't say I'm drawing much when I try to think about how they purport to explain this phenomenon. Do they just sit in denial of it?

Out/In List: 2022-23 Edition

 It's not as old as the New Year's resolutions, but I do enjoy creating the "Out/In" lists. So here it goes, slightly belated, for 2022-23!

Out                 LASIK Pack the US Supreme Court Scaramucci units Kari Lake is the media's worst nightmare Donald Trump Separation of Powers Attacking trans kids Marvel Universe Wordle Faux-allyship with Jews Joss Whedon Fascism disguised in a sweater vest Chess streamers Minnesota is maybe-competitive? Criminalizing abortion Rising inflation AI driving cars Space Force

In Corneal cross-linking Pack the Israeli Supreme Court Truss units Kari Lake was just a nightmare George Santos 5th Circuit as all three branches in one! Attacking trans kids and adults Extraordinary Vertex Real allyship with faux-Jews Infinite Buffy rewatches Fascism undisguised Chess boxing streamers Minnesota is a Dem trifecta Criminalizing miscarriages (and abortion) Purring economy AI writing law school exams Weather balloons

Bruen's Goose Continues To Not Apply to the Gander

The thing about the Fifth Circuit's recent ruling that the Second Amendment gives men under domestic abuse restraining orders an inalienable right to bear arms is that it is (a) insane and (b) absolutely defensible under the Supreme Court's Bruen decision. This is because the Bruen decision will regularly and predictably lead to insane results.

That said, I did want to flag something in the opinion that I've picked up on before -- namely, the inconsistent commitment to Bruen's supposed prohibition on weighing or considering "social policy" considerations. Judge Wilson, writing for the panel, expressly cites to this portion of Bruen, saying that while the prohibition on gun possession by domestic abusers "embodies salutary policy goals meant to protect vulnerable people in our society ... Bruen forecloses any such analysis in favor of a historical analogical inquiry into the scope of the allowable burden on the Second Amendment right." This principle is, perhaps above all else, the crux of Bruen's standard -- no matter how ridiculous, or absurd, or unfair, or chaotic the policy outcomes are, courts are not permitted to "weigh" them against the historical limitations that bounded the Second Amendment. The latter begins and ends the conversation.

Again, that principle is absurd. But it's Bruen's principle, and the Fifth Circuit gleefully cites it to explain why the prospect of terrified and murdered women can play no role in its legal analysis. But what happens if the historical arguments seem to counsel permitting more sweeping gun regulations than conservative jurists might like? All of the sudden, those social policy considerations come roaring back into view.

Addressing the historical precedents which did clearly envision government's authority to disarm "dangerous" persons, Judge Wilson explains that such exceptions must be narrowly construed so as not to apply to the case of domestic abusers. Why? Because, he asserts,

the Government’s proffered interpretation lacks any true limiting principle. Under the Government’s reading, Congress could remove “unordinary” or “irresponsible” or “nonlaw abiding” people—however expediently defined—from the scope of the Second Amendment. Could speeders be stripped of their right to keep and bear arms? Political nonconformists? People who do not recycle or drive an electric vehicle?

I take no position on whether the government's interpretation is so expansive. But note that this line of argument is expressly an analysis of the proper policy sweep of government regulation. We should tailor our interpretation of the Second Amendment's scope so as to avoid a policy outcome whereby too few people are guaranteed the right to keep and bear arms; to avoid an outcome where the government is permitted to disarm people who these judges think it would be manifestly unfair to have their gun rights taken away.

This is exactly the sort of policy analysis Bruen purports to forbid, only here the "policy" concerns are ones counseling in favor of greater freedom to bear arms rather than reduced freedom to bear arms. Perhaps it seems absurd to permit the government to take away arms from people just for getting a speeding ticket. But so what?  Bruen was emphatic that this sort of social policy assessment has no role in Second Amendment adjudication. If the historical analogues give the state that sort of latitude, then that is supposed to end the conversation. Again, it is baked in the Bruen cake that it will lead to results that may appear to modern eyes ridiculous, because Bruen expressly instructs courts that they aren't allowed to care about those consequences no matter how absurd they might seem to be.

But as the Fifth Circuit's ruling makes clear, the Bruen prohibition on weighing policy consequences is, unsurprisingly, a one-way ratchet. Conservative courts will portentously declare that Bruen forbids them from considering the disastrous consequences of countless terrified or murdered women if it means taking away domestic abusers' guns -- but if history and tradition start to point towards enabling gun restrictions that the right finds too onerous, then all of the sudden we get a screeching parade of contemporary policy horribles that are treated as legally dispositive. This is what generates such well-deserved cynicism about the state of the judiciary today -- it's not just that the legal rules the governing class of jurists announce are absurd, it's that these jurists do not even pretend to be bound by them the second they prove inconvenient to their underlying politics.

The other thing to note about this case is that, if the Supreme Court reverses it -- and they might -- their reasoning will almost certainly purport to be based on some alternate assessment and reading of the historical sources. But this will be a naked smokescreen, and everyone will know it. If the Court reverses the Fifth Circuit here, it will be entirely and solely because the Court finds it too unreasonable and intolerable to permit domestic abusers free reign to carry arms -- a contemporary policy judgment anyway you look at it, no matter how much effort is or isn't expended to cloak it in some faux-historical garb. None of these judges abide by the rules they purport to lay out.

Let That Be a Lesson For You, Part II

Way back in 2009, I wrote about a case in the Netherlands where an Arab NGO was prosecuted for hate speech after publishing an article insinuating the Holocaust was exaggerated. The thing was, the NGO did not actually think the Holocaust was exaggerated -- rather, it was trying to draw attention a claimed double-standard after Dutch authorities had dropped hate speech charges against right-wing Dutch filmmaker Geert Wilders for a film critics claimed insulted Muhammad. 

Drawing on entry #45 of advice for evil overlords ("I will make sure I have a clear understanding of who is responsible for what in my organization. For example, if my general screws up I will not draw my weapon, point it at him, say 'And here is the price for failure,' then suddenly turn and kill some random underling."), I observed that when a non-Jewish far-right extremist engages in hateful speech towards Muslims, the proper response -- even if one believes in tit-for-tat -- is not to turn and attack some random other minority group (here, Jews).

In the files of "all that's old is new again", a similar situation appears to be brewing in Sweden, where a Egyptian writer has postponed (but not cancelled) a planned "protest" of burning a Torah scroll in front of the Israeli embassy. Why is he burning a Torah scroll in front of the Israeli embassy? Because a far-right Danish journalist and politician (who is not Jewish) recently burned a Koran in front of the Turkish embassy. A hateful and despicable act, to be sure -- but why is the response to awful behavior by a right-wing, non-Jewish Dane to attack the Jewish community in front of the Israeli embassy? Burning a Christian Bible in front of the Danish embassy would not be justified, but at least it would have symmetry. But for some reason Jews are always the random bystander executed in situations like this.

I also want to emphasize that local Jewish community leaders credit the prevention of the Torah burning to Muslim leaders in Sweden speaking out against it. This "protester" is a hateful schmuck whose hate happens to illustrate a particular form of pathology I wanted to highlight. Fortunately, he's a hateful schmuck in the course of being repudiated, and that's a good thing.

Endless Stunt Investigations is All the House GOP Will Do, Because It's All They Can Agree Upon

Having finally secured his chair as House Speaker, Kevin McCarthy (R-CA) has given his caucus marching orders -- and those orders are "do nothing but launch petty performative investigations of the Biden administration".

Kevin McCarthy has told House Republicans to treat every committee like the Oversight panel — that is, use every last bit of authority to dig into the Biden administration. That work begins in earnest this week.

Several sprawling probes — largely directed at President Joe Biden, his family and his administration — set the stage for a series of legal and political skirmishes between the two sides of Pennsylvania Avenue. It’s all with an eye on the true battle, the 2024 election, as Biden flirts with a reelection run and House Republicans hope to expand their control to the White House.

After two impeachments of former President Donald Trump and a select committee that publicly detailed his every last move to unsuccessfully overturn the 2020 election results, GOP lawmakers are eager to turn the spotlight. And their conservative base is hoping for fireworks, calling on Republican leaders to grill several Biden world figures, including Department of Homeland Security Secretary Alejandro Mayorkas, retired chief medical adviser Anthony Fauci and presidential son Hunter Biden.

This isn't at all surprising, of course. In fact, it was probably inevitable after the Speaker vote fiasco exposed just how bitterly divided the GOP is (and how in thrall it is to its nihilist caucus). They're never going to forward an affirmative policy agenda, since they can't agree on any particulars beyond sloganeering (and also, policies tend to require money, which the GOP adamantly refuses to raise or spend unless it is on gut-busting upper-bracket tax cuts). But investigations? That doesn't require any policy agenda at all -- that's just mugging for the camera and talking about how much they hate Democrats. Right in their wheelhouse! 

That the GOP is still nursing ludicrous levels of grievance over the terrible unfairness of a House panel exposing why coups are bad only exacerbates their belief that this is naught but turnabout being fair play. And as the New York Times reported the other day, the GOP's view of "investigations" is to take it as a divine axiom that they and theirs are being abused, then pursue that axiom to hell and back no matter how little evidence ends up supporting the proposition.

So this is entirely within expectations for the new GOP House. Expect nothing but loud yelling investigations for two years as they throw everything they can at a wall and wait for something to stick. They don't agree on or even believe in anything else, but they can agree on doing that.