Academia, Constitutional Law, Politics

“A Prologue to a Farce or a Tragedy or Perhaps Both”: ACLU Opposes Transparency Law on Educational Materials

The American Civil Liberties Union (ACLU) this week opposed a model law being introduced in over a dozen states. That is not itself uncommon. The ACLU historically opposed laws that denied free speech and other rights under the Constitution, a legacy that I have long cherished and supported. However, this is a transparency law that simply requires teachers and schools to post the educational materials used in classes online. It is meant to assist parents in tracking the education of their students and the priorities of their school systems. Yet, the ACLU has declared the law to be so threatening and chilling that it has officially opposed its enactment in any state.

Continue reading ““A Prologue to a Farce or a Tragedy or Perhaps Both”: ACLU Opposes Transparency Law on Educational Materials” →

Columns, Constitutional Law, Politics, Supreme Court

Confirmation Bias: The Fighting Has Already Begun and Biden Hasn’t Even Named a Nominee

Below is my column the the Hill on the early controversies over President Joe Biden’s first nomination for the Supreme Court. Call it confirmation bias but the fighting has already begun before any nominee is even named.  President Biden triggered a debate over the use of racial and gender criteria to limit consideration to black female candidates. Notably, a new ABC poll shows 76 percent of Americans oppose such an exclusionary process. While supported by Democratic senators, Sen. Susan Collins (R., Maine) has objected to the rule as has others in Congress.  In addition, Sen. Mazie Hirono (D., Hawaii) has made controversial comments over her desire to have the next nominee rely not just on the law but the nominee’s life experiences to reach the right result in court cases.

Here is the column: Continue reading “Confirmation Bias: The Fighting Has Already Begun and Biden Hasn’t Even Named a Nominee” →

Politics, Supreme Court

ABC/Ipsos Poll: 76 Percent of Americans Oppose Biden’s Pledge Only To Consider Black Women for Court Vacancy

We have been discussing the controversial pledge of President Joe Biden two years ago that he would only consider black women for the first vacancy to the Supreme Court. While past presidents have said that they wanted to appoint nominees who were female or black, they all considered a diverse set of candidates and had “short lists” that included different races and genders. Biden has promised that he will not consider males or non-black candidates. Now, an ABC News/Ipsos poll shows that 76 percent of Americans reject such a threshold exclusionary rule based on race or gender. Continue reading “ABC/Ipsos Poll: 76 Percent of Americans Oppose Biden’s Pledge Only To Consider Black Women for Court Vacancy” →

Columns, Congress, Constitutional Law, Courts

“This the Constitution Forbids”: Biden’s Race and Gender Criteria for the Court Were Rejected By The Court in Past Cases

Below is my column in the Wall Street Journal on President Joe Biden’s promise almost two years ago that he would only consider a black female for the first vacancy on the Supreme Court. The column produced a significant response from commentators. However, in all of the commentary that followed the column, no one is contesting the primary point: that this type of exclusionary rule has been found unconstitutional or unlawful in schools or businesses.  While there may be legitimate points of distinction with a Court appointment, there is little discussion of why we should use a threshold exclusionary rule for admission to the highest court that the Court would not allow in any admission to a school or business. It is worth discussing even if one believes that the Court membership is a type of bona fide occupational qualification or if one simply rejects the very premise of the Court’s barring such criteria in past cases. The benefit of having a diverse Court is obvious but, if we want to use an express exclusionary rule, we should be able to discuss why it is appropriate for the Court and those institutions or businesses barred in past case.

Instead, commentators suggested that I ignored that prior presidents made such preferential picks. That is not true. My point was that Biden’s pledge was entirely unnecessary since he could have stated that he wanted to appoint a black female without barring consideration of other candidates on the basis of their race or gender. It is the difference between a preferential and exclusionary process. Commentators insisted that Ronald Reagan, Donald Trump, and George H.W. Bush made the same pledge. That is also false. While seeking to appoint women and African Americans, none of the three excluded other races or genders from consideration and had diverse short lists. Yet, even if they did, the question remains: should admission to the Court be based on an exclusionary threshold qualification that the Court has rejected as unconstitutional or unlawful for schools and businesses?

Here is the column: Continue reading ““This the Constitution Forbids”: Biden’s Race and Gender Criteria for the Court Were Rejected By The Court in Past Cases” →

Academia, Free Speech

CSU’s Free Speech Trauma Program: University Posts 17 Different Resources to Help Students Deal With Opposing Views

We have previously discussed how universities have not only curtailed free speech but treated free speech as a threat to students. Nothing captures that trend as vividly as a sign (posted on the site Campus Reform) informing Colorado State University (CSU) students that there are 17 different departments or resources to help them if they are “affected by a free speech event.” Free speech is now treated like STDs and violence on campus with its own trauma-related or protective program. Despite the inherent message of the harmful effects of free speech, I still prefer such a program to a policy of speech censorship or curtailment. However, some of the “resources” appear to be ways to report “incidents of bias” and offenses for university action.

Continue reading “CSU’s Free Speech Trauma Program: University Posts 17 Different Resources to Help Students Deal With Opposing Views” →

Academia, Constitutional Law, Free Speech, Torts

University of Illinois (Chicago) Law Professor Sues Over Exam Controversy

We previously discussed the treatment of Professor Jason Kilborn, who was put on indefinite administrative leave after using a censured version of the n-word in an exam question at the University of Illinois Chicago (UIC). He is now suing the school over his treatment, including the required participation in sensitivity training and denial of a standard pay increase for faculty. We discussed today another free speech controversy at University of Illinois (Urbana Champaign) over the student government seeking to bar former Attorney General Jeff Sessions from campus.

Continue reading “University of Illinois (Chicago) Law Professor Sues Over Exam Controversy” →

Academia, Free Speech

University of Illinois Student Government Demands School Bar Jeff Sessions From Campus
The student government at University of Illinois Urbana-Champaign has overwhelmingly passed a resolution demanding that former U.S. Attorney General Jeff Sessions be barred from campus. Sessions is schedule to speak on February 1, 2022. The “Safe Campus” resolution passed 21-5-1 and declared that the visit is “inappropriate and insensitive” and a “‘slap in the face’ to the university’s commitment to DEI,” particularly during Black History Month. Continue reading “University of Illinois Student Government Demands School Bar Jeff Sessions From Campus” →
Free Speech, Media

WHO Head Tedros Supports Corporate Censorship to Combat the “Infodemic”

World Health Organization (WHO) head Tedros Adhanom Ghebreyesus appears to be expanding the scope of his global effort from the pandemic to what he calls the “infodemic.” Tedros weighed into the conflict between musician Neil Young and podcaster Joe Rogan and streaming giant Spotify. Tedros supported Young’s demand that Rogan be censored by the company for his views on the virus and treatments. It was a particularly glaring position for Tedros after he and WHO have been repeatedly accused of supporting China in early efforts to scuttle investigations into the lab theory on the origin of this virus.

Continue reading “WHO Head Tedros Supports Corporate Censorship to Combat the “Infodemic”” →

Politics

No, George H.W. Bush Did Not Impose a Race Qualification in Selecting Clarence Thomas

On Wednesday, I ran a column in the Wall Street Journal noting that President Joe Biden was imposing a race and gender qualification for the Supreme Court that has been rejected as either unconstitutional or unlawful by the Court for schools and businesses. While I noted that Biden could have made diversity a preferential rather than an exclusionary rule, the response was furious as commentators claimed that other presidents made the same pledge. Specifically, they claimed that Presidents Ronald Reagan and Donald Trump also confined their choices for seats to women. In fairness, both presidents did make public comments on the expected gender of their possible nominees. However, as I wrote later, the underlying claims are false. Now commentators have claimed President George H.W. Bush did the same thing with the appointment of Clarence Thomas. That is also untrue.  Indeed, it is an even weaker historical defense.

Continue reading “No, George H.W. Bush Did Not Impose a Race Qualification in Selecting Clarence Thomas” →

Constitutional Law, Politics, Supreme Court

The Gipper Model? Biden’s Pledge to Appoint a Black Female Justice Has Liberals Citing Reagan

With the retirement of Supreme Court Justice Stephen Breyer, President Joe Biden was immediately challenged by Democratic members to make good on his pledge during the 2020 presidential campaign to only consider black females for his first vacancy on the Court. When he made that pledge, some of us raised concerns that he was adopting a threshold racial and gender qualification for the Court that the Court itself has found unconstitutional or unlawful for admissions to schools or private employment. I raised the same concern with Breyer’s announcement in a column that was immediately challenged by some (including the New York Times) who insisted that Ronald Reagan made the same pledge to only consider a woman for his first vacancy. While it is always interesting to watch liberals citing Reagan as authority, the claim is misleading and indeed the Reagan example shows why Biden’s pledge was both unprecedented and unnecessary. Continue reading “The Gipper Model? Biden’s Pledge to Appoint a Black Female Justice Has Liberals Citing Reagan” →

Columns, Constitutional Law, Politics

Race and College Admissions: The Supreme Court’s Train Whistle Docket Just Got a Lot Louder

Below is my column in the Hill on the Supreme Court accepting two cases dealing with racial preferences in college admissions. As with the pending abortion and gun rights cases, these two cases have the makings of yet another major reframing of a long-contested area.

Here is the column:

Continue reading “Race and College Admissions: The Supreme Court’s Train Whistle Docket Just Got a Lot Louder” →

Supreme Court

“Reasonable People Can Disagree”: Sotomayor is Latest Justice to Refute Court Packing Theory

As politicians like Sen. Elizabeth Warren push for packing the Court with a liberal majority, Justice Sonia Sotomayor publicly refuted accounts that the Court is hopelessly and dysfunctionally divided along political lines. The justice used an appearance on “Live with Kelly and Ryan” to tell the public that it should not misconstrue divisions on the Court because these questions are far from clear on the law and “reasonable people can disagree.” The remarks followed a joint statement by Justice Sonia Sotomayor and her colleague Justice Neil Gorsuch to debunk a NPR story by Nina Totenberg and publicly acknowledge their friendship.

Continue reading ““Reasonable People Can Disagree”: Sotomayor is Latest Justice to Refute Court Packing Theory” →

Congress, Constitutional Law, Politics

No, President Biden Should Not Be Impeached For Lax Border Security

Last night, Laura Ingraham asked Sen. Tom Cotton (R, Ark.) about the options in dealing with the influx of undocumented persons over the southern border. Sen. Cotton raised the possibility of impeachment. I have had this question raised with me on a number of occasions in the last year. I believe that President Joe Biden can be legitimately blamed for his handling of the crisis at the border but I do not believe that he could be legitimately impeached for those failures.

Continue reading “No, President Biden Should Not Be Impeached For Lax Border Security” →

Academia, Free Speech

Study: Sixty-Five Percent of College Students Believe that They Cannot Speak Freely on Campus

We often discuss (including a controversy today) the growing intolerance for opposing views on our campuses and the rising generation of censors in our society. Students and even faculty members increasingly call for the silencing or firing of those who espouse opposing views on a range of different subjects. The speech codes and sanctions on campuses have silenced many who might voice dissenting views, as we have seen in prior polling. That has created a type of academic echo chamber in scholarship and classrooms. Now, a new study offers insights into the extent of that chilling effect for our students. The Knight Foundation released a new study showing that sixty-five (65) percent agreed that people on campus today are prevented from speaking freely. The poll is additional evidence of the failure of administrators and faculty to maintain campuses as forums for free thought and intellectual engagement.

Continue reading “Study: Sixty-Five Percent of College Students Believe that They Cannot Speak Freely on Campus” →

Res ipsa loquitur – The thing itself speaks