Author Archives: SHG

The Future Of OCR’s Dear Colleague

At Minding the Campus, K.C. Johnson tries to discern the implications of a paradigm shift in governance on what it means for Title IX. The foundation, mentioned here on occasion, produced a scenario of devastation for some, jubilation for others.

Since 2011, the federal government has made successful and devastating efforts to undermine civil liberties on campuses. The surprise outcome of the presidential election raises at least the possibility that this illicit campaign, based on a vast extension of Title IX, will be reversed. Thousands of students accused of sexual misconduct but denied due process have been victimized by the frenzy stimulated by the Education Department’s Office for Civil Rights (OCR), and by the unfair procedures that OCR has championed. (Consider events at Amherst or Yale or UVA or Brandeis, for starters.)

From the perspective that the evisceration of due process, the extension of Title IX into campus adjudications of every ill, real or perceived, was lawful, that a post-factual society is better than a factual society* is a bad thing. Will it be fixed?

President Obama’s two heads of the OCR have ignored the requirements of the Administrative Procedure Act and imposed their dubious interpretations of Title IX without required notice and comment. They never offered a convincing explanation as to why, in part because Congress only rarely pressed them; outgoing OCR head Catherine Lhamon purported to justify OCR’s actions in this exchange with Tennessee senator Lamar Alexander, but only revealed herself to be ignorant of congressional authority. Continue reading

Stuck In The Middle With You

In the aftermath of the election, Democratic Party stalwarts began the Five Stages of Grief.

  1. Denial
  2. Anger
  3. Bargaining
  4. Depression
  5. Acceptance

The good news is that they’ve already hit the bargaining stage, so they’re almost halfway through, though they haven’t completed the anger stage* as yet. What’s the deal?

Fine, but anti-racism, anti-sexism, and anti-queerphobia are nonnegotiable.

Despite the tempting desire to explain the mechanics of negotiation, bear in mind this is just the vagary of a view that has nothing with which to negotiate. In an op-ed, Ohio Senator Sherrod Brown tries to thread the needle. Continue reading

When Batson Bumps Into the Sixth Amendment

There was a debate at Fault Lines yesterday between Caleb Kruckenberg and Josh Kendrick, criminal defense lawyers both. The question posed was,

Should a criminal defense lawyer use peremptory challenges to strike jurors based on race if it was in the defendant’s interest?

Caleb was charged with arguing that reverse Batson, exercising peremptory challenges based on race, was just as wrong when done by defense counsel as the prosecution.

Using racial bias in jury selection, even if you can get away with it, is also wrong on a deeper level.

Discriminatory acquittals have real impacts on society beyond their individual cases. Lynchings were about racial intimidation and protecting the rules of segregation. Discriminatory acquittals were about putting state approval on such violence. Overt racial bias in jury selection is a way to enforce discrimination in a broader context and insulate crimes against minorities.

Continue reading

Dog Whistling Past The White House

Who is President Obama’s chief strategist? No fair, googling. That’s right. Nobody knows, and yet many have become hysterical about Trump naming Breitbart’s chairman, Steve Bannon, as the winner of the consolation prize. Be hysterical now, avoid the rush.

To assuage the fears of a nation that the next president wouldn’t pander to the worst of his base,* Bannon was possibly the worst choice he could make. It feeds the belief that Trump is the anti-Christ (actually, Hitler). Aside from the shrieking, but IT’S A FACT, by the people who got Trump elected, there appear to be three arguments in support of the contention that Bannon is a white nationalist.

First, there is the content at Breitbart, which consists of a lot of clickbait alt-right batshit crazy nonsense, the mirror image of the crap at the SJW-pandering websites. Second, allegations made 20 years ago in an affidavit by his ex-wife during a divorce. Third, that neo-Nazis at groups like Stormfront cheered his appointment as chief strategist.

Does this make him a racist and white nationalist? Not exactly, but it does send a message that no seasoned politician would have missed. And so it was hammered home:

Anyone holding out hope that Donald Trump would govern as a uniter — that the racism, sexism, anti-Semitism and nativism of his campaign were just poses to pick up votes — should think again.

Continue reading

The News That’s Fit To Print

No, the Pope didn’t endorse Donald Trump. He didn’t endorse Hillary Clinton either. And there is no newspaper called the Denver Guardian.  None of these things, however, is Mark Zuckerberg’s fault.

There is just one problem with these articles: They were completely fake.

This is not an anomaly: I encountered thousands of such fake stories last year on social media — and so did American voters, 44 percent of whom use Facebook to get news.

If you look closely, with eyes wide open, you might begin to see the problem. If you are one of the 44% of American voters (a highly suspect statistic, since FB users aren’t likely to vote since it requires them to leave the house) who get their “news” interspersed with cute cat pix, that could explain why you are so easily fooled.

Mark Zuckerberg, Facebook’s chief, believes that it is “a pretty crazy idea” that “fake news on Facebook, which is a very small amount of content, influenced the election in any way.” In holding fast to the claim that his company has little effect on how people make up their minds, Mr. Zuckerberg is doing real damage to American democracy — and to the world.

Continue reading

The Dangling Nomination

Lacking any other issues with which to attack the inchoate apocalypse (/s) to breathlessly fear the end of times, Dahlia Lithwick resurrected the Obama administration’s sacrificial lamb for the Supreme Court, Merrick Garland. He was, of course, a pawn in a political game that, in a better world, a better nation, would have never happened.

Maybe some Republican will be big enough to admit that it was just a cynical gambit, but they pulled it off. Sure, some nice folks believed their story, but they knew it was nonsense, a scam to prevent Obama from exercising his constitutional authority. Having done so, they now have to worry that they’ve escalated the war over the Supreme Court and will be repaid should the Democrats ever get their act together and realize that they can’t win elections by sacrificing the majority of Americans in favor of a small entitled minority.

While there might be some greater zeal toward fighting for Garland’s nomination if he wasn’t a moderate conservative’s dream justice, he will likely be better than the next nominee. And no one on either team denies that he was well-qualified for the job, even if he wasn’t your flavor of justice. That was never the issue. But there he is, sitting quietly on the sidelines, in Senate purgatory.

Lithwick doesn’t want to let this go, Obama be damned. Continue reading

The Tech Solution To The Bail Problem

There was never a good argument as to why Kalief Browder should have spent three years of his young life in jail.  His case was ultimately dismissed, before he killed himself. His family was incapable of making his bail, and there was no good explanation for why bail, any bail, was needed.

Browder’s story raised consciousness about the problem, giving rise to pushes for reform that made for great headlines, heartfelt aspirations for change and . . . nothing more.  Between New York City’s most progressive mayor ever, and New York State’s most progressive Chief Judge ever, nothing changed.

But that’s all about to end, as there has finally been movement, momentum, to do something about the warm bodies warehoused for no particular reason in very violent, even deadly, jails. The tech revolution is here for bail.

Friends and family of people incarcerated in New York City jails will have the option of posting bail online, part of a larger effort to reform the bail system and reduce reliance on cash bail, officials announced Tuesday. Continue reading

An 80-20% Discussion

At a lovely dinner party to celebrate an old friend’s birthday, conversation unsurprisingly turned to the election. A quick poll of the table revealed that the gathering voted 80-20% for Hillary Clinton. There were no rural working class whites there. There were no minorities there. The gender split was even, but the room was devoid of gay and trans people. It was not a representative sampling of America by any stretch. The age range spanned middle baby boomer to greatest generation, so naturally everyone voted.

When the conversation turned to how it happened that Trump won, the percentages shifted. While 80% of the people in the room had voted for Clinton, 80% understood why Clinton had failed to win. And of the 80% who voted for Clinton, yet understood, one theme emerged. America needed a new political party, because the Democrats no longer represented their values.

The woman to my right was bright and vivacious, a lawyer and unafraid to speak her mind. During the course of the conversation, a fellow who served in World War II expressed disgust at the kids who had taken to the street to protest. Not because they disapproved of the president-elect, but because it was a childish response. Continue reading

Twitter, Twitter, Gab, Gab, Gab

Twitter is doomed. No, not because of all the mean twits that hurt your feelz, but because it has been poorly run despite its popularity and will never be adequately monetizable. It’s a business, and when a business can’t make money, it ceases to exist. I know, it seems that anything you like and use ought to be able to make money, but unless you’re willing to pay by the twit, it’s doomed. Doomed.

Meanwhile, the New York Times tech guru, Farhad Manjoo, realized that twitter has gone past its peak and is now in its death spiral.

Twitter, the well-known but less-well-used social network of 140-character quips about the news, is polarizing. You’re either an addict, or you don’t get it.

And if you get it, explaining what it is and why you’re on it — and why you can’t stop looking at it even though you’re supposed to be tending to your 3-year-old at the park, on the swings, where she’s just fallen and hit her face, something that actually happened to me — can be a challenge even in ordinary times.

Continue reading

Blood On The Tracks

It was predicted that the election of Donald Trump would empower that portion of his base reflecting the most venal humanity America has to offer. And the next day progressives went in search of examples to prove they were right, and moderate voices explaining that the election was not a referendum on white supremacy were wrong.

Shaun King, the patron saint of mindless confirmation bias, asked for stories of racism and misogyny, of hatred and abuse, and he got them. How many are true will never be known. King isn’t big on questioning claims that support his agenda. But some are true, as the claims are backed up by evidence.

And despite the human tendency to see only what you want to see, the violence cuts both ways. There is a sense of empowerment, as if an election has somehow altered all norms of violence. The irony here, if one can reduce it to such a trite observation, is that each side is proving the most outraged cries of the other right. The worst of us is coming out, which emboldens the stupidest of us (and no one has as yet plumbed the bottom of that dark hole) to let go of whatever inhibitions kept them in check and conclusively prove that they cannot function in a viable society.

Dealing with the racists is easier, as they readily show themselves and appear quite proud to be venal scum, so it’s not hard to tell the venal from the politically incorrect. They have mistaken the Trump win as a vindication of their hatred. It isn’t.* It wasn’t, regardless of the fact that Trump did nothing to tell them so, happily enjoying their support. Continue reading

The Clueless Constitution: Welcome Aboard

For all the evils that twitter put in front of our eyes (not forces, because we can always turn it off, but that’s an issue for another day), some of the worst come from surprising sources. CATO’s Jonathan Banks brought this bit of news: “Coming soon to Trump’s America: A new era of minority activism.” Well, that’s good to hear. Activism is what everyone should be doing, and indeed, minorities should certainly assert their views.

But the good news didn’t last very long.

Deep down, millions of Americans believe a simple morality tale that goes something like this: The white Christian establishment is the original source and continuing guardian of America’s tradition of liberty and limited government, and minorities threaten it because they don’t share the same attachments.

This has always been nonsense. But in Donald Trump’s America, that will become even more obvious. Indeed, if America’s liberal democracy has a future, it is no longer with Trump’s overwhelmingly white backers, but with minorities.

Continue reading

Stop Crying Long Enough To Blame

That the names Newt Gingrich, Chris Christie and Rudy Giuliani are back in the news shouldn’t come as any surprise. You knew they would be there, backing the dark horse, because no one else would let these toxic losers anywhere near their administration. And if nothing else, Trump prizes loyalty, because he wouldn’t know integrity if it bit him in the ass.

There will be plenty to do going forward, because these are the people who will be in charge of something. Crying about the pain of it all is what got us here. Dealing with it will be hard. If you can’t stop feeling bad about it, crying over how it will impact you and your feelz, then you will be useless in dealing with it. In fairness, there would be plenty to do going forward had Clinton won. Remember what a great president Barack Obama was for the Constitution? Yeah, he sucked, unless you were one of the lucky ones who happened to get your tummy rubbed by his rhetoric or occasional forays into actually doing something.

Brian Tannebaum took an empathetic view of the tears, telling those who would call on the crying masses to “move on” to “go fuck yourself.” This will surely help. Maybe if we cry hard enough, long enough, Rudy Giuliani will disappear? Maybe if we hug each other, Trump will gain a sense of the constitutional limitations of the office? Then again, maybe not. Maybe instead, we put on our big boy and girl* pants, wipe the snot from our nose, and get ready to fight.

Just as we would have to do had Hillary been elected, because she’s as awful when it comes to crim law as her beloved Bill, who brought us the AEDPA. Or Obama, who locked up more undocumented aliens than anyone in history, and handed out fewer pardons than any president ever. A little perspective goes a long way to turn that frown upside down. Continue reading