Things People Blame the Jews For, Volume LXXIII: Los Angeles Wildfires

The raging fires that have torn through the Los Angeles area are gripping the world's attention. Natural disasters like these don't typically have a direct culprit to blame, though of course, in a more abstract sense changing weather patterns brought on by global climate change play a role.

Or, you know, it's a Jew thing.

Jewish control over the weather is well-known trope to readers of this series, and few can forget congresswoman Marjorie Taylor Greene contributing "Jewish space lasers" to the antisemitic dictionary. But a variety of far-left groups now are making their own entry into the genre by tying the fires to America's support for Israel. For some, the rhetoric seems to be one of divine retribution, akin to how Mike Pence thinks of hurricanes ("When US taxes go to burning people alive in Gaza, we can’t be surprised when those fires come home."). Others play the game where America's foreign aid budget is presented as dollars out of hard-working American pockets, or, in this case, the Los Angeles Fire Department budget -- never mind that those pots of money have nothing to do with one another and in any event the widespread meme that the LAFD faced a draconian budget cut last year appears to be false (the fire budget is actually $53 million more than it was last year, but if I fact-checked every subclaim in this series I'd never get any sleep at all).

More broadly, I was just thinking about how the immediate right-wing pivot to blame the fires on "DEI" (by which they mean, the fire department has women in its leadership) reminded me of classic antisemitic conspiracy theorizing -- the immediate impulse to find the Jewish connection and shriek "this explains everything!" Whereas some pin every bad thing in the world on "the Jews", others do the exact same thing but plug in "diversity" or some other analogous buzzword as their "explanation of first, middle, and last resort". Remember when the Wall Street Journal blamed the collapse of the Silicon Valley Bank on the fact that it had one (one!) Black director in its board? It's the same play. The conspiracy theory "explains everything" because it always "explains everything", because that what a conspiracy theory is -- it is a way to immediately, reflexively, and automatically explain anything and everything by reference to whatever it is you hate.

The "wildfires are caused by DEI" takes the rhythm of an antisemitic conspiracy theory and applies it to a new context. But while I certainly enjoyed basking in that familiarity, it is always reassuring to know that someone would go the OG route and blame the Jews and Jewish institutions directly. Not that I had any doubt it would go that way -- it always does, sooner or later.

Being Jewish Faculty in Portland and at Lewis & Clark

On Friday, a colleague of mine who teaches at Reed invited a group of Jewish faculty (and our families) from various Portland campuses to her house for dinner. It was meant to be a place of mutual support and fellowship in what has undeniably been a tough couple of weeks. There were some young (elementary school age) kids there, and just watching them run around and have way too much sugar and scream nonsense games -- the unbridled, uncomplicated, chaotic joy of youth -- was cleansing in a way I didn't know I needed. 

I was the only Lewis & Clark attendee, but there were folks from Reed, Portland State, and the University of Portland in attendance. Inevitably, stories were swapped about various events and goings-on, and the degree to which people felt supported (or not) by their home institutions. A lot of the stories were harrowing; this part of the evening was not pleasant (though I think it was ultimately for the best that we had a space -- a "safe space"? -- in which those stories could be told in a supportive and welcoming environment). And it made me once again reflect on how lucky I am to be at Lewis & Clark, where (at least at the law school) it seems we've dodged much of the bad behavior that has afflicted some other campuses.

In fact, I want to share some of my recent "Jewish faculty" experiences at Lewis & Clark, precisely because they've mostly been good, and good in a way that stands against certain narratives that pervade about academia. To be clear, I don't offer these stories to falsify others' accounts -- as the conversations at Friday's dinner made clear, many people at many campuses are having a genuinely bad time of it. But I do think it's important to stress that academia is not a monolith and that there are places doing it right just as there are places doing poorly; and beyond that, the bright spots in academic life do not always come from the places you'd expect (at least, if you're a regular imbiber of the prevailing discourse). To wit:

• I've felt fully supported by my colleagues over the past few weeks (I'm also not the sort of person who needs much in the way of "check ins" to verify my emotional well-being). That said, the two non-Jewish colleagues who most distinctively went out of their way to "check in" on me and see how I was doing after October 7 were (1) the chair of our DEI committee and (2) the Pakistani Muslim teaching fellow in our Animal Law program.
• Speaking of DEI, I went to speak to our (staff) director of DEI issues to ask her what her sense was about how things were playing out on the law school campus. She responded thoughtfully and compassionately, in a way that clearly demonstrated she was paying attention and providing care and support where needed. Her overall report was that (a) there were more campus community members directly affected by the events than I think many would have thought; (b) there were the usual instances of 20-somethings who are professionally-argumentative but whose politics aren't fully thought out speaking in ways that perhaps was not fully respectful of the reality that many of their colleagues were directly affected by the events; but (c) there had been no major flare-ups or crises; the "problems" were within the normal bounds of what one would expect to see when emotionally-charged events occurred on the global stage.
• As many of you know, I hosted at Lewis & Clark this past year a conference on Law vs. Antisemitism, and selected contributions are being published in a symposium issue of the Lewis & Clark Law Review (which I am writing the introduction for). The law school was nothing but supportive of the conference itself, even though I was only in my second year teaching when I threw a major international conference at them. More to the immediate point, after October 7 the Editor-in-Chief of the law review reached out to me on her own initiative to ask if I wanted to revise my introduction to account for the Hamas attack or the aftermath, and assured me that if I did want to make revisions they would make sure they'd adjust their production schedule to accommodate. I'm still considering her offer, but regardless of whether I take her up or not I was extremely impressed with her thoughtfulness and gesture of inclusion.

I don't claim things are perfect -- for me, for other Jewish community members at Lewis & Clark, for Muslim or Palestinian community members at Lewis & Clark, whomever. On the upper campus, for instance, there was an instance of just a few days after October 7 of "free Palestine" graffiti on the upper campus undergraduate buildings (though -- without downplaying the significance of it -- it seems that Lewis & Clark has a bit of a "tradition" around Indigenous Peoples Day of a certain segment of the student body tagging buildings with various "anti-establishment", "anti-colonialist", and "counter-cultural" messages, and this was part of that rather than a truly spontaneous "Jews in Israel just got murdered so let's celebrate with a hearty 'free Palestine'!"). 

But on the whole, as terrible as "the world" has been this past month, I've been extremely grateful for the little local slice of the world I have at Lewis & Clark. And just as we harp on the bitter, I do think it's important to give due credit and attention to the sweet.

Debate Me, You Cowards

The other day, the Wisconsin Supreme Court (two weeks away from Janet Protasiewicz taking her seat on the bench and flipping the court's 4-3 majority) denied a request by the Wisconsin Bar to create a CLE category for DEIA (diversity, equity, inclusion, and access) credit. "DEIA courses would address “the subject of diversity, equity, inclusion, access, or recognition of bias, which includes topics addressing diversity and inclusion in the legal system of all persons regardless of age, race, ethnicity, religion, national origin, gender, sexual orientation, gender identity, or disabilities and topics designed to educate attorneys on the recognition and reduction of bias."

The court's denial, joined by the conservative faction, was a short per curiam opinion. The liberal coalition's dissent was likewise short, focusing on the Court declining to give the matter even a hearing which, under the Court's standard rules, should have been offered assuming the petition had "arguable merit". Since many states have DEI CLE credit akin to what the Bar was proposing in Wisconsin, the petition clearly had at least "arguable merit" and should have gotten a hearing.

(Underneath all of this is the imminent change in the Court's partisan composition. Scheduling a hearing would have pushed the decision back past the point where Judge Protasiewicz will join the court; a factor which no doubt encouraged the majority to try and slam through this lame-duck decision without giving it normal consideration. It also seems highly likely that the new majority will revisit the question in the near future).

However, aside from the short per curiam, and the short dissent, there was a very not-short concurrence from Justice Rebecca Grassl Bradley* (last seen engaging in election-denierism while comparing the use of ballot drop boxes to North Korean autocracy). The concurrence is little more than a Townhall-style rant against the dangers of diversity initiatives. It is replete with bitter buzzwords more commonly found in the recesses of social media: claiming that the "very point of mandating DEIA CLE would be to create a 'goose-stepping brigade[]' of attorneys," accusing the Bar of trying to "virtue signal, and railing against "the predictable and petty slanders of the cancel culture crowd." She even contorts the unanimous support of the Wisconsin Bar for this initiative as illustrative of a "grave illness in our society" that can only be explained by the way DEI supporters "demoniz[e] dissenters."

There's more in that vein, all bolstered by a bevy of citations to a range of right-wing shock jocks. But I don't want to parse Justice Bradley's concurrence. Rather, I want to flag how the dissent addresses it -- or rather, quite consciously declined to address it -- in its concluding footnote:

I choose not to respond to the substance of the concurrence, which is hostile, divisive, and disrespectful. This political rhetoric has no place in an order of the court. We should instead engage earnestly with opposing perspectives by granting a hearing on the petition, which is what our ordinary process requires.

Perfectly appropriate under the circumstances. Not only was Justice Bradley's concurrence not worth the dissent's time, it's not germane to the dissent's point; namely, that if these debates are to be had, they should occur through the normal process of granting a hearing and engaging earnestly with the various perspectives on the issue.

And that mature response by the dissent caused an already rage-filled Justice Bradley to truly go ballistic:

Proving well that many proponents of DEIA orthodoxy demonize its critics, the dissenting justices "choose not to respond" to this concurrence, instead dismissing it with a headline-grabbing caricature as "hostile, divisive, and disrespectful" "political rhetoric[.]" Dissent, ¶46 n.4. This concurrence cites more than a dozen United States Supreme Court decisions, multiple state supreme court decisions, Frederick Douglass, Martin Luther King Jr., Thurgood Marshall, Clarence Thomas, James Madison, Montesquieu, and at least an additional dozen legal scholars, authors, and professors. Of course, the real reason for the dissenters' refusal to engage with the substance of an opinion spanning more than 30 pages is the imminent change in court membership. The new majority will reverse this court's order at its first opportunity.

The dissenters borrow a rhetorical tactic from the modern political sphere increasingly employed by justices of this court in lieu of legal argument. See, e.g., Jane Doe 4 v. Madison Metro. Sch. Dist., Nos. 2022AP2042, 2023AP305 & 2023AP306, unpublished order, at 3 n.1 (Wis. May 19 2023, amended June 14, 2023) (Hagedorn, J., concurring) ("I also do not respond to this supplemental writing because of its abandonment of basic judicial decorum."). When lawyers decline to respond to legal arguments advanced in a case, the court considers the point conceded.

If ever there was a time for applying "I'm not mad" to a legal opinion, this is it. Note, incidentally, the final shot at Justice Hagedorn, who is actually a member of the Court's conservative faction but has generally refrained from joining the more fever-like portions of the Court's analysis (he didn't join Bradley's concurrence, for instance, though he joined the majority here). As is so often the case, the most immediate targets of conservative legal grievance posturing in defense of "ideological diversity" are other conservatives who don't want to engage in conservative legal grievance posturing.

In any event, it's tough to imagine a better example of conservative legal grievance culture than writing a 30-page 4chan post accusing the other side of being dishonest, virtue-signaling goose-steppers and then stomping your feet with "debate me, cowards!" (and accusing them of "demonization") when your colleagues don't deign to jump in the mud pit with you.

As I've written before, the Wisconsin Supreme Court has been a national embarrassment for years, and Justice Bradley certainly has played a large role in that. One can only hope that the new majority will restore some desperately-needed sanity and decorum to the circus-show.

* There are actually two Justice Bradley's on the Court -- Rebecca Grassl Bradley, who is among the conservatives, and Ann Walsh Bradley, who is one of the liberals. The latter Justice Bradley joined, but did not write, the liberal dissent, so throughout this post all references to "Justice Bradley" refer to Rebecca Grassl Bradley.

F-ing Banned Roundup

 Ron DeSantis' botched campaign rollout includes the following hats.

What happened to the letter "F"? I have to assume that some parent filled out a form calling it obscene, and now it's banned in the state of, er, "Lorida".

Anyway, my browser needs clearing, so today you get a roundup.

* * *

Texas Republicans set up a bespoke center at the University of Texas to promote a conservative ideological vision. Texas Republicans also look set to wreck tenure. Turns out the latter poses a recruitment problem for the former.

The Fourth Circuit upholds race-neutral admissions standards at Thomas Jefferson High School in Virginia against a challenge that they discriminate against Asian-American applicants. Ilya Somin objects here; I may have my own comments later.

Now that he's running, JTA runs down all the Jewish things you need to know about Ron DeSantis. He loves Israel. Also, his campaign against wokeness has resulted in banning books on the Holocaust, and neo-Nazis are flocking to the state.

Rep. Rashida Tlaib (D-MI) admits she "struggles" with the idea of removing Israeli settlers from the West Bank, suggests they have the right to stay where they are. I've said it before and I'll say it again; one need not like or even fully credit Tlaib's putative commitment to "one state with equal rights for all" to admit that it's clearly better than the many, many politicians whose position is "one state that does not even pretend to provide equal rights for all."

Louisiana Republicans are completely uninterested in hearing from the child rape victims whom they want to force to give birth.

Texas forces a woman with an unviable pregnancy to stay in the hospital until she gives birth to her stillborn fetus (or becomes sick enough to potentially die) by threatening her with criminal prosecution if she tries to leave.

If we don't raise the debt ceiling, it seems we have to triage who gets paid. I've seen many proposals on how to do this. But Kevin Drum raises the possibility that our treasury system isn't built to allow for any "choosing", and so we'd be forced to basically just arbitrarily pay whoever comes to the door first.

Why Does DEI Make Good Free Speech Advocates Go Bad?

Keith Whittington, Princeton professor and chief of the Academic Freedom Alliance, has been reviewing various state-level attacks on academic freedom. Today he visits Texas, which has a trio of bills under consideration that all put public universities under their sights in various ways. Whittington is generally skeptical of all these proposals, but he does have kind things to say about portions of one of the proposed laws, SB17.

That bill would shift greater authority to the university boards of trustees, would prohibit the use of diversity statements in faculty hiring, and would abolish the activities of diversity, equity and inclusion administrators. A similar prohibition was adopted as an appropriation rider in the House. Violating the DEI ban can be a cause for terminating even tenured members of the faculty. The bill would also require state universities to adopt as part of their mission statements a set of pledges regarding intellectual freedom, including a commitment to "viewpoint diversity" and "institutional neutrality."

[...]

From my perspective, the DEI ban and the institutional commitments are all to the good in enhancing the intellectual freedom on college campuses. The potential penalty for faculty who violate the DEI ban is worrisome, however, in both its chilling effect and its unjustified expansion of the bases upon which tenured professors can be terminated.

(Whittington also raises the alarm about shifting review power to the boards of trustees).

I want to flag Whittington's claim that the DEI ban is "all to the good" (even if, perhaps, too draconian in its enforcement mechanisms). It is not all to the good! It is very bad, and pointedly, it's very bad for reasons that Whittington identifies elsewhere in his post! This is yet another example of how the anti-DEI obsession amongst some "free speech" advocates has caused them to endorse policies and practices whose impingement on academic freedom would otherwise be nakedly obvious.

Among the things prohibited by this part of SB17, universities would be prohibited from soliciting or acting on any statement regarding an applicants "views on, experience with, or past or planned contributions to efforts involving diversity, equity, and inclusion, marginalized groups, antiracism, social justice, or views on or experience with race, color, ethnicity, national origin, or other immutable characteristics."

As a constitutional law professor whose work focuses significantly on questions of race, equity, inclusion, and so on, I shudder to think how an interview with me would go if the hiring committee were forbidden from asking about or considering my views on these topics. What, exactly, would we talk about -- the Dodgers? And while for someone in my shoes there is an obvious relationship between the banned topics and my disciplinary work, there are also areas where this is germane for professors of any academic affiliation -- most notably, in discussions of pedagogy. As I've written before, 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?" But SB17 strongly suggests that such concerns would, in fact, be legally proscribed.*

This is why I've written before regarding how anti-DEI bans are inevitably academic freedom trainwrecks. They're justified as checks against "compelled speech", but in practice they serve (and intentionally so) as massive chills on important facets of academic conversation. And the thing is, Whittington is well aware of the mechanics here -- he explains them ably in his critique of the companion SB16 bill. SB16 purports to forbid professors from "compel[ling] or attempt[ing] to compel" an enrolled student "to adopt a belief that any race, sex, or ethnicity or social, political, or religious belief is inherently superior to any other race, sex, ethnicity, or belief." Here's what Whittington says to that proposal:

It would likely chill classroom speech as faculty try to avoid any appearance of compelling belief on various sensitive topics routinely discussed in college classrooms. To the extent that the law simply codifies the constitutional prohibition on compelled speech, then it accomplishes little other than attempting to chill speech. To the extent that it might be interpreted to prohibit professors from advocating certain views in the classroom or requiring students to correctly describe and analyze such views in their coursework, then it will invite controversy. Not hard to imagine students complaining that a professor attempted to compel them to believe that, for example capitalism is superior to socialism by assigning them to write an essay with that premise.

Emphasis added, because that's the rub. If it's just an attempt to forbid compelled speech -- someone being forced to swear allegiance to a particular ideological framework -- it's redundant except for its knock-on chilling effect. But of course, the law isn't just about the specific "compelled speech" case -- it is designed to and inevitably will curtail very normal academic conversations.

Yet this exact same problem besets the DEI ban. If it's just about forbidding a requirement that prospective professors genuflect before a graven image of Derrick Bell as part of the application process, then it's unnecessary and only serves to create an additional halo of chilling effect. But SB17's DEI ban doesn't "just" do that; it by its terms stretches to cover any "statement" on matters of diversity, equity, inclusion, race, or other like topics -- topics that a hiring committee regularly and appropriately should be considering. For example, as someone who has served on a hiring committee, I very much want to be able to inquire into whether (to pick a recent example) a candidate openly believes Jews should never be hired again. It is important and good that a person like that not get hired; I absolutely can and should be giving preference to candidates who do not take that sort of view! And more broadly, we can and should be able to consider and debate over whether given candidates will do a good a job facilitating an effective academic and pedagogical environment for diverse communities. That's normal, and that's salutary, and that would likely be either forbidden or at least significantly chilled by application of Texas' proposed DEI ban.

Again, the logic for why the DEI ban is problematic is contained in Whittington's own post. He should be able to spot it, and yet it says that the provision (absent the penalty provisions) is "all to the good." FIRE went through the same thing a few weeks ago, drafting a trainwreck proposal against DEI statements that -- were it on any other topic -- FIRE would be screaming bloody murder about the obvious academic freedom impingements. Something about the DEI issue is corrupting free speech advocates, causing them endorse obvious violations and ignore flagrant threats. They're going to need to address this blindspot sooner rather than later, because this fever doesn't seem to be going away.

* SB17 has a provision that exempts requests for information regarding "pedagogical approaches or experience with students with learning disabilities." That narrow and highly specific carveout strongly suggests that inquiring generally how a prospective professor would seek to facilitate an effective and inclusive classroom environment for students of diverse backgrounds would now be verboten.

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."

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).

DEI's "Psychology" Double-Bind

The NYT has an op-ed today regarding DEI programs -- and in particular, the scant research suggesting that they actually, you know, work.

I'm familiar with some of the research in this area and while I could quibble on the margins, the core point is more or less accurate. There is fairly robust research evidence that establishes implicit bias is prevalent in our society, but there is not much in the way of verifiably effective interventions that combat it. Many DEI programs which purport to address implicit bias and other forms of prejudice are at the very least not proven to actually have an impact on the problem they purport to address. Finding an intervention that reliably and durably alters discriminatory attitudes (particularly implicit ones) is somewhat of a white whale for the social psychology profession. But in the meantime, the lack of evidence that many DEI programs tailored towards altering attitudes are effective suggests that a ton of time and money is being wasted.

Given that, the article makes the following suggestions:

So what does work? Robert Livingston, a lecturer at the Harvard Kennedy School who works as both a bias researcher and a diversity consultant, has a simple proposal: “Focus on actions and behaviors rather than hearts and minds.”

Dr. Livingston suggests that it’s more important to accurately diagnose an organization’s specific problems with D.E.I. and to come up with concrete strategies for solving them than it is to attempt to change the attitudes of individual employees. And D.E.I. challenges vary widely from organization to organization: Sometimes the problem has to do with the relationship between white and nonwhite employees, sometimes it has to do with the recruitment or retention of new employees and sometimes it has to do with disparate treatment of customers (think of Black patients prescribed less pain medication than white ones).

The legwork it takes to actually understand and solve these problems isn’t necessarily glamorous. If you want more Black and Latino people in management roles at your large company, that might require gathering data on what percentage of applicants come from these groups, interviewing current Black and Latino managers on whether there are climate issues that could be contributing to the problem and possibly beefing up recruitment efforts at, say, business schools with high percentages of Black and Latino graduates. Even solving this one problem — and it’s a fairly common one — could take hundreds of hours of labor.

I have no intrinsic quarrel with this. Instead of looking for "bad brains" and trying to fix them, focus on tangible actions and outcomes. If your company has too few Black and Latino people in management roles, instead of trying to root out the deep-seated biases in your executives and HR staffers, just get to work directly on the problem.

But this anti-psychology turn is interesting for one particular reason: it flies in the face of the prevailing conservative formulation of what discrimination is: namely, discrimination occurs if and only if one can prove the presence of malign intent by a discrete decisionmaker. Unless someone holds racially discriminatory attitudes, there cannot be said to be racial discrimination at all. From that framework, which holds out psychology as the exclusive prerequisite of discrimination, it makes sense that an anti-discrimination initiative would have to be psychologically-inclined as well. And indeed, focusing on actions and behaviors in absence of establishing bad psychological intent is an anathema to the conservative (and, often, alt-liberal) framework -- that way lies "racial balancing" or "equality of result" or any number of terrible ghouls which are supposedly the patrimony of the progressive DEI edifice.

And so we have a double-bind: first, prominent political and social institutions (to say nothing of legal precedents) say that the only cognizable way to speak of discrimination is through psychology -- bad motivations. Then, when DEI professionals accordingly work within that framework and try to address the problem through psychology, they're pilloried because such interventions, it turns out, are only dubiously reliable and don't directly correlate with fixing the "actual problem" of underrepresentation of social outgroups. Which is fine as far as it goes, except that when DEI tries to pivot back to the "actual problem" without the baggage of wading through conscious and subconscious attitudes, they're lambasted as crying "discrimination!" without proof, since only psychology is said to generate valid evidence of discrimination in the first place. It's an impossible situation. 

How Do Diversity Statements Threaten Academic Freedom?

The Academic Freedom Alliance has come out in opposition to the use of "diversity" or "DEI" statements as part of the academic hiring or promotion process, labeling them threats to academic freedom.

Academics seeking employment or promotion will almost inescapably feel pressured to say things that accommodate the perceived ideological preferences of an institution demanding a diversity statement, notwithstanding the actual beliefs or commitments of those forced to speak. This scenario is inimical to fundamental values that should govern academic life. The demand for diversity statements enlists academics into a political movement, erasing the distinction between academic expertise and ideological conformity. It encourages cynicism and dishonesty. An industry of diversity statement “counselling” has already emerged--and could easily have been predicted. There are prevalent and reasonable suspicions that beneath the stated rationales for diversity statements lurk unstated motives that include providing a way to screen out candidates who express ambivalence about DEI programming.

I'm honestly not sure I see the academic freedom issue here, even taken on AFA's own terms.

For starters, it's somewhat difficult to situate academic freedom concerns into either the promotion or (especially) hiring context. Academic freedom, as I've written, is a constraint on remedies. It takes certain consequences -- most notably, termination -- off the table as responses to even admittedly terrible speech (as well as, of course, perfectly legitimate but nonetheless controversial speech). But while a tenured professor is entitled as a default to continue his employment, a job applicant has no baseline entitlement to be hired, nor does a faculty member seeking promotion have a default entitlement to move from associate to full professor. It is hard for me to imagine a case where a job applicant has their academic freedom violated because they weren't hired -- at least, outside of cases where the hiring was already approved by the appropriate stakeholders and was only reversed via abnormal intervention from upper administration. 

Most job applicants aren't hired, and they aren't hired for all sorts of reasons. Importantly, those reasons include normative appraisals of the quality of their "materials" -- both in terms of scholarship and in terms of teaching. Academic freedom says you can't fire John Doe because you think his scholarship is bad. But academic freedom obviously does not mean you must hire John Doe even though you think his scholarship is bad. The two circumstances are not comparable, and academic freedom concerns map poorly onto the latter. If a hiring committee can say "we don't want to proceed with John's candidacy because we think his scholarship is poor", why can't they say "we don't want to proceed with John's candidacy because we think he'll do a bad job at teaching students of diverse backgrounds"?

The AFA cannot and I think does not take the position 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. And if that is a valid criteria for a committee to consider, there must be some way for the committee to elicit a candidate's perspective on how they'd approach the issue. At root, a DEI statement is a means to provide that information. The AFA statement concentrates instead on the instinct -- which I share -- that dismissal of a given job candidate based on pure ideological disagreement is inappropriate. It's fine to say "this scholarship is bad, therefore, it's a no", but one shouldn't say "this scholarship is bad for no other reason than that I disagree with it, therefore, it's a no." And the same would be true for a DEI statement. The AFA's worry is that DEI statements in practice are not subject to the normal normative appraisals that, say, a scholarly research portfolio are. Rather, they are subject to rigid ideological litmus tests where anyone who fails to mouth the preferred shibboleths is instantly dismissed from consideration.

Granting the conceptual validity of those concerns, though, the AFA's position still goes too far. Because the statement is at best unclear on what, if anything, could replace the DEI statement, it runs the risk of interfering with the academic freedom of existing faculty, who are deprived of information they think would be valuable in determining what constitutes a meritorious candidate and who will be a productive and sociable colleague. Again, it cannot be the case that hiring committees are simply not permitted to elicit information on this subject. And while there are no doubt diverse views on how best to actualize the value of being a good teacher and mentor to students of all backgrounds, we should not confuse that diversity for a job candidate's entitlement to simply not care about the question. It is one thing to take a minority view on the best way to support DEI values. It's another thing to take one's own indifference to facilitating an inclusive academic environment and elevate that apathy to a political principle. In my experience, dissidents who show they've thought about the question seriously and have a gameplan for addressing DEI issues will be given due consideration even if their proposals aren't in line with the de rigueur set of proposals. But very often, what one encounters instead are people who feel aggrieved at being asked to think about the question at all, or who project onto their peers a claimed reflexive dismissal in order to rationalize their own unwillingness to actually robustly defend their positions.

Given this, the problem cannot be with DEI statements themselves, but rather the potential for abusing such statements to enforce a narrow orthodoxy. Yet the AFA statement does not actually provide any evidence that such abuse is occurring at such high rates that DEI statements must be killed off entirely -- a showing that I believe would be necessary given the more obvious and immediate academic threat that exists from banning such statements. Such evidence would be hard to muster in any case, because it is quite difficult to distinguish between simple reflexive ideological dismissal, versus a considered professional judgment that a given articulation of how to best serve a diverse community and student body is poorly conceived.

In reality, the abuse-risk of evaluating a faculty candidate's DEI statement is little different than the abuse-risk of evaluating a faculty candidate's scholarship. There, too, there is the risk of ideologically-motivated dismissal. There, too, that admittedly abusive practice can be hard to distinguish from legitimate evaluative appraisals. There, too, it probably is the case that persons proffering dissident, provocative, or counter-cultural perspectives probably are at a comparative disadvantage. There, too, many candidates have long since learned to disguise their true scholarly agenda until they gain tenure; and there, too, there is a cottage industry of advice and mentoring centered around how to present one's portfolio in a manner most likely to be deemed attractive. Nothing is new under the sun.

But we do not throw the baby out with the bathwater on the scholarship side, and say that just because there's the potential for ideological abuse, it is fundamentally illegitimate for faculty candidates to provide a research agenda. Nor do we claim that the disappointed job candidate had an academic freedom entitlement to be hired to a given position, notwithstanding the presumably negative assessment his materials garnered from the hiring committee. If this is true on the research side, I don't see why it's any less true on the teaching side.

It is legitimate -- and dare I say, a prerogative of academic freedom -- for faculty members to want future colleagues and leaders to have thought hard about how they'll teach, mentor, and support a diverse student body. There's nothing shady about asking prospective applicants to share their views on that subject. It's probably the case that those with dissident views may have to overcome more skepticism, but that's an evergreen fact of applying to any job in any field at any time. The risk to academic freedom, if it exists at all, is no more extensive for diversity statements than it is for any other element of an academic applicant's portfolio.

Things People Blame the Jews For, Volume XXXII: Star Wars

"Star Wars: Rogue One" is coming out this month. Are you excited? I am (though if a certain Rebel X-Wing pilot isn't in it, I am going to be pissed)! The alt-right? Not so much.

White supremacists are calling for a boycott of the latest “Star Wars” movie as evidence of a Jewish plot to foist racial diversity on whites, even as some on the “alt-right” say they watch the film and root for the evil Empire.

“(((Star Wars))) Is Anti-White Social Engineering,” a Reddit user named GenFrancoPepe posted in a forum for the “alt-right,” a hard-line white nationalist movement. The triple parenthesis, known as an “echo,” is a way anti-Semites online call attention to Jewish names or perceived Jewish influence. 

The evidence: “Alt-right” writers point out the multiracial makeup of the stars in the new film, the female starring role, and that Jewish producers and writers were involved. Criticism of the film evokes one of the central tropes of modern anti-Semitism, envisioning a Jewish cabal promoting multiculturalism to suit its own nefarious goals — at the expense of an embattled “white civilization.”

Say what you will about the massive Jewish conspiracy to undermine White civilization, but it makes for some damn fine escapist cinema.

Big Boxing Weekend Roundup

This weekend has a lot of great action. Not to mention game two of the Stanley Cup Finals.

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I posted this on my Facebook wall, but it's good enough for a double-dip -- David Hirsh does a beautiful job discussing the BDS campaign's treatment of Jews parallel to Shylock as BDSers tried to sabotage an Israeli production of The Merchant of Venice.

Peter E. Gordon has a fascinating review of a book detailing the history of the Catholic Church's Nostra Aetate.

"Memes are ridiculous!", he said, while unironically citing a meme.

The latest reports are that Stuxnet was a joint American/Israeli project aimed at sabotaging Iranian nuclear capacity.

Nancy Leong asks if diversity is for White people. She's got a cool paper coming out in the Harvard Law Review arguing that the diversity rationale has the effect of commodifying non-White racial identity. She thinks that's a bad thing, I am more circumspect about it.

J.J. Goldberg looks at several Jewish polls (including the one I discussed yesterday), finds that they're all saying very similar things (to wit, Jews are very liberal).

Mis-Match Mish-Mash, Part II

Via Ilya Somin, George Will forwards the "mis-match" hypothesis as an argument for abandoning race-based preferences in education admission. Argued most forcefully by UCLA law professor Richard Sander, the mis-match hypothesis argues that race-based affirmative action places minority applicants in schools above their level, at which point they struggle mightily. Someone who would have been a B+ student at the University of Iowa becomes a C- student at the University of Michigan. This has the effect of discouraging minority students, leading to worse rates of employment and bar passage than we would see in absence of affirmative action. The first thing that has to be said about these studies is that they are deeply controversial, not in the "their conclusions are uncomfortable" way, but in the "the data doesn't support the conclusions" sort of way. That's always important to note before we cede too much terrain to this argument off the bat. But putting that aside, it is an argument I continue to find very, very strange. The basic thrust of the argument is that it is worse for a student to attend a better school. That's counter-intuitive to begin with, but one can see Sander's logic. Where it starts to crumble a bit is that nobody seems to notice or worry about "mis-match" in any other situation but race-based preferences. Legacy admissions are the obvious control case, as they offer a situation where (mostly) White students are admitted to a school they likely otherwise would not have been in absence of the preference. Two things jump out here. First, I've yet to hear anyone say these students are "mis-matched". People argue against legacy preferences on the grounds that they are unfair to the marginal candidate not admitted to the university, but I've yet to hear anyone argue they hurt the legacy beneficiary. Second, if we're to take mismatch seriously, we'd have to come to the hard-to-swallow conclusion that wealthy, well-connected parents -- the epitome of the sophisticated education consumer -- are deliberately sabotaging their children's academic futures. Someone should tell them. On a smaller scale, Sander's hypothesis indicates that all the steps law school applicants take to improve their profile without actually becoming smarter (e.g., LSAT prep courses) are actually self-destructive. I took an LSAT prep course and my LSAT score went up four points. Since my LSAT score basically was carrying my GPA on its back, that may have been no small thing in getting admitted to the schools I was. Was I shooting myself in the foot? Oh cruel world, if only I had been placed properly, at the appropriate law school, my life probably wouldn't be such a dismal failure right now. The other oddity about this, particularly stemming from someone like Somin, is how openly paternalistic it is. Somin writes that he is "pessimistic about the ability of government to institute compensatory justice preferences that are simultaneously equitable and effective in accomplishing their objectives." This is purely an attempt to harmonize some cognitive-dissonance, because it is Somin who is taking the interventionist, big-government approach here. He promotes a one-size-fits-all government mandate which stifles local innovation and prevents schools from adopting the admissions policies they think are optimal for creating the best possible incoming classes. Public universities are essentially market participants -- they for the most part act similarly to their private counterparts, except when some state law or regulation constrains them or otherwise forces them to modify their behavior. When it comes to affirmative action, it is pretty clear that most state universities, left to their own devices, would practice it. They don't because some law or regulation or court decision forbids it. To test this hypothesis, imagine if tomorrow the University of California, or Michigan, or Nebraska was cut loose and went private. Would they utilize affirmative action for their next incoming class? I think the answer is obviously yes -- in all these controversies, the university administration wants to have such programs and it is some act of government which forbids it. Somin's argument, hence, is clearly a plea for greater government intrusion in the field of admissions policy -- it replaces what is in essence quasi-private market competition amongst universities (each university decides its own policy, and presumably the one with the best admissions policy is rewarded by having better students, more successful alumni, greater prestige, etc.) with a blanket legal rule. And the "why" is even more embarrassing: First, because he, in his judgment, thinks that the admissions directors and college administrators are so bad at managing these programs that it is better for a government power (the Supreme Court) to make the decision for itself (a command-and-control model); and second, because he is worried for the sake of the students who are being given the opportunity to attend their dream school (i.e., naked paternalism). The cop-out here is to just say government should get out of the field of education entirely. That's a cop-out because it doesn't answer how we should structure legal rules in a world where that's a pipe dream. It would seem the answer, from a libertarian perspective, would be to have the rules governing these schools approximate a free market regime as much as possible -- to wit, allow the schools to implement whatever admissions standards they want, and certainly don't step in as a paternalistic measure to protect admitted students from their allegedly unwise choices.

Still Here

Finals studying is taking a lot out of me, along with other annoyances on my plate. Stuff has been accumulating on my browser, but I haven't even mustered the energy for a roundup.

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Texas conservatives are unhappy that their uber-conservative speaker also happens to be a Jew.

New comments by Helen Thomas about how we're all owned by the "Zionists" have prompted Detroit-Mercy to withdraw their sponsorship of a diversity award named after her.

For the last time, progressive Zionists aren't Zionists in spite of our progressivism, but because of it.

An interesting exploration of Columbia's local Palestinian solidarity chapter, and how its understanding of "solidarity" means that it institutionally refuses to communicate with the local campus Hillel (individual members are free to talk as they please, but the group has ruled out any official dialogue events to try and better understand the positions or sentiments of the Columbia Jewish community).

As time passes, it shouldn't be surprising that the taboos which might have once precluded Israel's fascist parties from associating with European fascist parties are falling away.

Israel's woefully inadequate fire responsive services may be the "Katrina moment" that finally causes the majority to recognize just how much of their resources are being squandered on Haredi subsidies and settler fantasies.

Look, it's not that complicated: Your judges are "activist", mine are "engaged".

The Black Conservative Tradition Emerges

There's a recent burbling of interest in the blogosphere about Black Conservativism, so I'd be remiss if I didn't link to some of my own work on the subject. So here we go: Excerpts on Clarence Thomas, How I Read Rev. Wright, Black Conservatives in Large and Small Caps, Black Conservatism Revisited, and Taking Thomas Seriously.

Okay, that's out of the way.

So the latest discussion comes from a TNR book review of a recent biography on Booker T. Washington, scion of the modern Black Conservative movement. It's a very interesting read, and one of the things the author notes constituted my first reaction to reading Washington, namely, it's fine to say you're going to be conciliatory and give up on certain Black rights in order to pursue a wider agenda of protecting your people. But it's a gamble that has to pay off, and it doesn't seem like it did for Washington: the era he presided over was the nadir of American post-Civil War race relations.

Anyway, Matt Yglesias rightfully notes that

within the African-American political tradition, like within the white political tradition, there’s a conservative strain and a liberal strain. The conservative strain is pessimistic about race relations and nationalistic in its orientation, whereas the liberal strain is optimistic, cosmopolitan, and integrationist. But because this controversy within black politics is embedded inside a larger white-dominated political context it often gets confused. Sometimes, as in the conventional reading of Washington, the black conservative appears to white American liberals to be the timid appeaser of white supremacists. And other times, as with a Malcolm X, he looks like a dangerous radical black nationalist.

But then he incorrectly states that "It’s only extremely recently that the idea of an African-American aligning himself, à la Clarence Thomas, with the mainstream conservative movement in America could be remotely possible."

I think that's an oversimplification of Justice Thomas, but also Damon Root accurately indicts the history as well, citing such important Black Conservative luminaries like Zora Neale Hurston and George Schuyler. And Matt concedes the issue, with the (also correct caveat) that Hurston's views are interesting historically, but shouldn't take our eye off the bigger ball which tells us they were pretty marginal amongst Blacks of the era.

Anyway, I don't have anything to add, but I thought the discussion was interesting. Also somewhat related, Dan Markel on the "segregationist origins of diversity".

Crist Tries to Diversify Courts

I didn't know that Florida Governor Charlie Crist (R) had tried to reject a slate of candidates for a state judicial seat because the list was all-White. Unfortunately, the Florida Supreme Court said Governor Crist did not have the discretion to do so. That's unfortunate, but I'm impressed by Crist's instincts -- a continuation of his excellent work on felon disenfranchisement. He's facing a tough Senate primary fight with far-right insurgent Marco Rubio, and this probably won't help him there. But if he survives (and I expect him to), Crist is positioning himself (along with Utah Gov. Jon Huntsman) as a potential leader of the serious and inclusive wing of the GOP.

The Great American Tradition of Diversity

Jeffrey Toobin notes that taking "diversity" into account when making Supreme Court nominations has a deep pedigree in American history. First it was regional diversity. Then it was religious (Catholic and Jewish) diversity. Now, racial and sexual diversity are paramount. And these roughly track the evolution of what differences are politically salient in American society (or more accurately, at what point in our nation's history "different" marginalized groups were able to effectively challenge their political exclusion).

There's nothing strangely judicial about this either. Matt Yglesias notes that cabinet appointments, too, have historically been highly keyed to diversity considerations. Remember the fit southerners pitched when they thought that Obama wasn't going to have any (White) dixie residents in his cabinet? At the founding, the Federalists were quite keen on arguing that diverse representation was both key to the success of the American project, and provided (among other things) the constitutional convention with a legitimacy it otherwise would have lacked.

The fact that diversity has always mattered, and only became controversial when the topic was racial (and to a lesser extent, sexual) diversity, unfortunately buttresses Megan McArdle's intuition (via) that much of the contemporary criticism of the ideal stems from "the terrible, pervasive fear that some brown person, somewhere, is getting away with something."

You'd Think He Would Have Learned

Apropos Jeffrey Rosen making unsubstantiated claims about Judge Sonia Sotomayor's intelligence, we find out this is rather old hat for Mr. Rosen. When Judge Diane Wood was appointed to the 7th Circuit by President Clinton, Rosen argued that she exemplified how "single-minded pursuit of diversity, combined with an eagerness to avoid controversy, has kept him from appointing the best available legal minds to the courts."

Of course, history has proven Rosen dead wrong, as Judge Wood has shown herself to be one of the brightest stars of the judiciary and is widely recognized as quite the intellectual heavyweight. One would have thought he might have gained some humility from the experience. Alas, he doesn't seem to have skipped a beat.

But as Scott Lemieux aptly points out, there is an extra layer of bizarro here: Judge Wood's credentials upon appointment (service in the Justice Department and longtime professor at the University of Chicago) were roughly identical to those of Antonin Scalia's when he was nominated to the D.C. Circuit. Yet nobody ever questioned Scalia's credentials -- indeed, Scalia has a somewhat overrated reputation as the intellectual titan of the Supreme Court. We saw the same delightful dynamic comparing the reactions that met longtime 3rd Circuit Appeals Judge and Princeton/Yale grad Samuel Alito's nomination to those that met the potential of longtime 2nd Circuit Appeals Judge and Princeton/Yale grad Sonia Sotomayor.

In Dissonance, Strength

In my readings on the effects of diversity in social institutions, there have two distinct and seemingly contradictory findings that have emerged. The first, more pessimistic, is exemplified by Robert Putnam's study which found decreased social cohesion in diversified communities, particularly in the form of greater withdrawal from the public sphere. The second, indicated by Samuel Sommers, provides data which shows that diversified institutions tend to out perform their homogeneous peers.

It may be, though, that far from being a contradiction, these effects are two sides of the same coin. A new study published in the Personality and Social Psychology Bulletin argues that we see improvements in institutional performance through the addition "Socially Distinct Newcomers" in tandem with increased discomfort by the "old-timers" at their presence. From the abstract:

The impact of diversity on group functioning is multifaceted. Exploring the impact of having a newcomer join a group, the authors conducted a 2 (social similarity of newcomer to oldtimers; in-group or out-group) x 3 (opinion agreement: newcomer has no opinion ally, one opinion ally, or two opinion allies) interacting group experiment with four-person groups. Groups with out-group newcomers (i.e., diverse groups) reported less confidence in their performance and perceived their interactions as less effective, yet they performed better than groups with in-group newcomers (i.e., homogeneous groups). Moreover, performance gains were not due to newcomers bringing new ideas to the group discussion. Instead, the results demonstrate that the mere presence of socially distinct newcomers and the social concerns their presence stimulates among oldtimers motivates behavior that can convert affective pains into cognitive gains.

This is definitely an interesting study -- the finding that the increased performance gains were not due to the unique ideas of the out-group. That's in itself counter-intuitive and deserving of further study. But the overall observation of the paper -- that the discomfort in-groups feel about diversity (that Putnam observes) actually translates into concrete performance gains (Sommers) has many important implications for policy-making in the context of meritocratic structures (i.e., ones where "performance" matters).

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Katherine W. Phillips, Katie A. Liljenquist, Margaret A. Neale, "Is the Pain Worth the Gain? The Advantages and Liabilities of Agreeing With Socially Distinct Newcomers," Personality and Social Psychology Bulletin, Vol. 35, No. 3, 336-350 (2009) (via)

Steele to Head RNC

Former Maryland Lt. Governor Michael Steele has won the race to become the new head of the RNC, becoming the first African-American to lead the Republican Party.

First things first. Congratulations to Mr. Steele, and to the GOP -- this is a historic day for both them.

I also think that this is a good choice for the Republican Party -- which is to say, a bad choice for me, because I'm a Democrat. Mr. Steele is a talented politician. Getting crushed in a Maryland Senate race, one of the bluest states in the union, during a Democratic wave year doesn't change that.

Mr. Steele also has talked aggressively about increasing the party's appeal to non-Whites and women. And when I say aggressive, I mean it's more than just lip service -- he's saying that Republicans have to take these people and their policy commitments seriously, rather than just paying lip service to the ideal of "inclusion" at a cocktail party. Finally, Steele has a reputation as a moderate in his party. Indeed, it almost derailed his campaign for chairmanship. We all know that in primaries one cuts to the base, then tacks back to the middle once the deal is sealed. It will be interesting to see how Mr. Steele develops his approach towards the Democratic majority now that he is in the driver's seat.

Scalia Cares About Diversity

We read Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991) in civil procedure today. In Edmonson, it was held that race-based peremptory challenges in civil cases violate the equal protection clause. Much of the argument between the majority and the dissent grappled with whether peremptory challenges -- basically, eliminating a potential juror from the pool for no reason whatsoever (parties in civil cases generally get a limited number of peremptories) -- is a "state action" for constitutional purposes. The majority concluded that it was, as the selection of a jury is a state body whose composition is merely being delegated to the parties, while the dissenters argued that it was not, that jury selection was a function of purely private actors who were only using the court as a forum to resolve their dispute.

But Justice Scalia's separate dissent was interesting to me, because he spent much of it waxing poetic about the need and right of litigants to pursue racially diverse juries -- or at least select their jurors race-consciously. After noting his agreement with Justice O'Connor's argument that the majority is wrong "in principle" to assert that peremptory challenges in civil litigation are state actions, he continued to write that:

[today's opinion] is also unfortunate in its consequences.

The concrete benefits of the Court's newly discovered constitutional rule are problematic. It will not necessarily be a net help, rather than hindrance, to minority litigants in obtaining racially diverse juries. In criminal cases, Batson v. Kentucky, 476 U.S. 79 (1986), already prevents the prosecution from using race-based strikes. The effect of today's decision (which logically must apply to criminal prosecutions) will be to prevent the defendant from doing so - so that the minority defendant can no longer seek to prevent an all-white jury, or to seat as many jurors of his own race as possible. To be sure, it is ordinarily more difficult to prove race-based strikes of white jurors, but defense counsel can generally be relied upon to do what we say the Constitution requires. So in criminal cases, today's decision represents a net loss to the minority litigant. In civil cases, that is probably not true - but it does not represent an unqualified gain either. Both sides have peremptory challenges, and they are sometimes used to assure, rather than to prevent, a racially diverse jury.
[...]
Although today's decision neither follows the law nor produces desirable concrete results, it certainly has great symbolic value. To overhaul the doctrine of state action in this fashion - what a magnificent demonstration of this institution's uncompromising hostility to race-based judgments, even by private actors! The price of the demonstration is, alas, high, and much of it will be paid by the minority litigants who use our courts. I dissent. [500 U.S. at 644-45]

I find it interesting that Scalia appears to recognize here that stripping minority actors of their ability to use race conscious procedures is, in fact a problem. More than a problem -- morally objectionable; a bar to basic fairness! The move towards color-blindness, he's arguing, is qualitatively harmful to minority litigants, and that's a concern he wishes the court to be mindful of.

An interesting argument, and one that gave me pause when reading this case. Kind of incongruous with the bulk of Scalia's jurisprudence, though, no?