Trying to Be Fair to Jeff Sessions

Attorney General Jeff Sessions

“Colleges Are Creating ‘a Generation of Sanctimonious, Sensitive, Supercilious Snowflakes,’ Sessions Says.” Such is the headline for a story in the Chronicle of Higher Education [if the article is behind a paywall, you can access it via Curmie’s Facebook page] about remarks by Attorney General Jeff Sessions at a high school summit sponsored by the conservative group Turning Point USA, one of whose core “aims” is to “Effectively push back against intolerance and bias against conservatives in higher education.” Same old, same old, right?

Let’s face it, Jeff Sessions is one of the dimmer bulbs in the considerably less than brilliant firmament that is the Trump cabinet. No, he’s not the worst of the lot, but Curmie isn’t entirely certain that putting Godzilla in charge of HUD wouldn’t be one of the better appointments of this administration (he'd certainly be better than Ben Carson). And Mr. Sessions knows about as much about higher education as Curmie does about quantum mechanics: he knows that such a thing exists.

That said, it’s time to be fair. Sure, his speech was laden with what the Chronicle’s Chris Quintana calls “well-worn stereotypes,” and yes, there was the obligatory fluffing of Sessions’s boss, but whereas such sycophancy might be a little more de rigeur now than in previous administrations, all this stuff is pretty much boilerplate. Moreover, it’s curious that few on the right seem terribly concerned with the free speech rights of people who disagree with them. OK, fine.

But, unless he deviated significantly from his prepared script, his speech wasn’t all that bad. No, he didn’t handle the “lock her up” chant very well: he looked embarrassed and tried to say something non-committal rather than telling the assembled adolescents to shut up and move on, i.e., precisely what Trump’s supporters tell his political adversaries all the time. (To his credit, Sessions did note after the fact that he should have brought up presumption of innocence.  Not as good as saying it on the spot, but partial credit.)  Nor did he choose to moderate a perfectly good rant by recognizing that (for example) even wealthy colleges can’t afford to pay for security for the likes of professional assholes like Milo Yiannopoulos every time the College Republicans will chip in for his speaker’s fee. And he sort of conflates a judge’s decision not to throw out a lawsuit with ruling in favor of the plaintiff.

But he certainly didn’t complain about being “a persecuted conservative student in Alabama,” as Quintana would have us believe. Not even Jeff Sessions is stupid enough to claim that conservatives were an oppressed minority in 1960s Alabama. He said that he was one of a small group Republicans who opposed the likes of Democrats like George Wallace. (Sessions implies without saying outright that it was Wallace’s segregationist stance that led to Sessions’s opposition, thus avoiding an outrageous lie and merely misleading the audience in, shall we say, a Clintonesque manner.) This would have been in the nascent years of the Southern strategy, during which time racist white Democrats became racist white Republicans (e.g., Strom Thurmond) without missing a beat, but thereby reformulating the national (especially Electoral College) political calculus.

More to the point, he didn’t actually say that “colleges” (in general, per the headline) or “Many of the nation’s colleges” (per the article) are “creating and coddling ‘a generation of sanctimonious, sensitive, supercilious snowflakes.’” He said that “some schools are doing everything they can to create” such… erm… crystalline ephemeralities. "Some," not "most," and certainly not "all."  Like it or not, he’s right. Just look at the litany of examples he provides:

At Brown University, a speech to promote transgender rights was cancelled after students protested because a Jewish group cosponsored the lecture. Virginia Tech disinvited a conservative African American speaker because he had written on race issues and they worried about protests disrupting the event…. 

Through “trigger warnings” about “microaggressions,” cry closets, “safe spaces,” optional exams, therapy goats, and grade inflation, too many schools are coddling our young people and actively preventing them from scrutinizing the validity of their beliefs. That is the exact opposite of what they are supposed to do. 

After the 2016 election, for example, they held a “cry-in” at Cornell, they had therapy dogs on campus at the University of Kansas, and Play-dough and coloring books at the University of Michigan. Students at Tufts were encouraged to “draw about their feelings.”

These episodes, however isolated, are the stuff of headlines, and however well-intentioned their proponents may be, they're embarrassing: to the university, to progressive thought, and to education writ large.

In one of the last entries of my previous blogging persona, Curmie (then known as Mulcher4) extolled the “Virtues of Doubt”; that essay happened to have been about the murder of abortionist Dr. George Tiller, but the point was more universal. In that essay over nine years ago, I wrote, “Absolute self-confidence terrifies me, and not simply because my own neuroses are so manifest.” This is still true, even more so when that confidence/arrogance/hubris manifests in a post-adolescent.

Equally importantly, the very essence of education is to throw a lot of ideas into the ring and see which ones seem to fit the evidence. Recognizing the difference between fact and opinion matters. Free speech matters. This isn’t about simple politeness, which is generally a good thing, or about respecting others’ opinions, which is also generally a good thing. Nor is it about sitting in a circle and singing Kumbaya. It’s about fighting for the truth, not for a personal dictum that may or may not be grounded in rational thought. Above all, it’s a recognition that people who see the world differently aren’t inherently evil, and that what we see on that cave wall over there just might be a shadow instead of the full image.

Curmie identifies politically as a contrarian: whatever the political landscape in his area, he’s likely to be in opposition. After 17 years in East Texas, Curmie may be regarded as a lefty (and not merely because that’s the hand he writes with, although that’s also true: cue the Simon and Garfunkel, “communist ‘cause I’m left-handed, that’s the hand they use, well, never mind”), but plonk him down in Massachusetts and he might just move a little right-ward. More to the point, to quote myself from almost seven years ago, “alas, I must tell you that in my experience there have been more assaults on academic freedom and 1st amendment rights on campus from the left than the right.” This statement is, alas, more true now than it was then.

In case you hadn’t noticed, there are a lot more people on Curmie’s right than on his left, but if Curmie ever gets into trouble for having a big mouth or an over-active keyboard, I’ll bet you dollars to donuts it’s for not being sufficiently “progressive” or “inclusive” or otherwise orthodox in his liberalism… you know, for crimes like suggesting that men are allowed to have ethical objections to abortion, or that people who voted for somebody I didn’t aren’t (necessarily) evil, or that casting a white girl as Esmeralda in The Hunchback of Notre Dame falls a little short of burning a cross while wearing a white hood and robe.

A couple of other points to make in passing:

• Curmie is a fan of both FIRE (the Foundation for Individual Rights in Education, mentioned with approbation in Sessions’s speech) and the ACLU for much the same reason: they care about the rights guaranteed by the 1st Amendment. FIRE is thought to be conservative, the ACLU to be liberal. But that’s only because their clients tend—by no means exclusively—to break that way. Not every case either organization takes up is necessarily worthy of the time and effort, but Curmie is grateful that both organizations exist.

• It was interesting to note that Mr. Sessions doesn’t really address university curricula or faculty as part of his critique, concentrating instead on administrators, particularly in the student services area. Could this be the beginnings of a recognition on the part of the right that university faculty (and their colleagues in public education in primary and secondary schools) aren’t responsible for everything that has ever gone wrong in this country, from the kidnapping of the Lindbergh baby to the popularity of Nickelback? Nah, I didn’t think so. 

•  Fox News whines predictably that the gathering of a few hundred high school kids from around the country to listen to a gaggle of partisan speakers doesn’t get enough press coverage. “Charlie Kirk, the 24-year-old founder of TPUSA, now in its sixth year, told Fox News that a similar event for young liberals ‘would be streamed everywhere... and it would be glorified as a wonderful organization,’ calling the media bias ‘blatant’ and ‘corrosive.’” Curmie would like an example—just one, please—of an event for liberal kids, or even, God forbid, for outstanding high school kids regardless of their politics or lack thereof (!) which has received even comparable coverage. Curmie is a patient man; he’ll wait. 

• It does strike Curmie as a bit odd that a speech about free speech opportunities for all, and about the importance of engaging with “difficult or challenging ideas” should be delivered at an explicitly partisan gathering by an A.G. who is addressing them not really in his official capacity, and who was only one of a series of utterly like-minded speakers who fed them the same one-dimensional pabulum every day, all week. The message of the right is therefore just as hypocritical as that of the left: our side should have the right to express our opinions… and to stifle yours.

La la how the life goes on.

Enough about Helsinki. Let's Talk about Montenegro.

The recent European tour offered pretty conclusive proof that Donald Trump lacks the maturity, intellect, integrity, diplomacy, or temperament to be an effective President. In other words, it told us nothing we didn’t already know 20 years ago. He was simultaneously paranoid, crude, boorish, insulting to allies, and pandering to our enemies. Nothing new there, either. But Curmie’s going to stop there.

There was nothing inherently treasonous in anything he did or did not do. Perhaps, perhaps his performance in Europe, particularly in Helsinki, could be symptomatic of some more sinister forces at work—if, for example, Rachel Maddow’s ”Worst Case Scenario” turns out to be both accurate and provable, but what Curmie sees is what he’s seen for years: a narcissistic, hubristic, xenophobic buffoon… not a Manchurian Candidate, not a traitor.

Moreover, Democrats’ attempts to subpoena the translator—the only other person in the room in Trump’s private meeting with Vladimir Putin—is a transparent and ill-advised grand-standing ploy, designed not to get at the truth, but rather to force Mitch McConnell into denying their tantrum demands. No President, not even one as ill-suited to the job as this one, should be subject to this level of voyeurism. If he wants to have a private conversation with a foreign leader, then that conversation must indeed remain private, at the very least until there is sufficient evidence of malfeasance to warrant such an intrusion. That threshold had better be very high indeed. McConnell was right to refuse, although one suspects that his real reasons for the denial are likely to have been as unethical as the request itself.

The most notorious line to come out of Helsinki, of course, was that “I don't see any reason why it would be” Russia who interfered in the US Presidential election of 2016. That statement, uttered despite a raftload of evidence uncovered by American intelligence agencies that Russia absolutely did attempt to surreptitiously influence that election, caused headlines world-wide, and condemnation not only from the usual suspects, but also—finally—from the likes of Paul Ryan, Orrin Hatch, and Trey Gowdy. Of course, Trump reversed course, walking back his comment with what is surely a contender for the World’s All-Time Least Convincing Retraction™. (It did spawn some great memes, though.) Curmie supposes it might be possible that Trump actually misspoke in Helsinki. It is also possible that Curmie will win a Pulitzer for this essay, but he hasn’t added that line to his résumé just yet. Let’s put it this way: People lie. Politicians lie more than most people. Trump lies more than most (any?) other politicians. And this was a particularly dubious statement even by Trump’s standards, not least because of the context of the original statement and the immediate undercutting of the purported walk-back.

Intentionally or otherwise, however, the brouhaha created a wag the dog moment, distracting our collective gaze away from the potentially far more important story of the arrest of alleged Russian spy Maria Butina. Butina’s arrest and the public announcement of that arrest bookended the Helsinki presser. Did Trump say something totally outrageous, knowing that he’d later claim to have misspoken, simply to buy some time to figure out a strategy of how to deal with the Butina situation? Curmie doubts it, primarily because although Trump is sufficiently reckless and sufficiently mendacious to make the attempt, I doubt that he’s smart enough to have thought of it. But, irrespective of intent, news about Ms. Butina was dropped to below the proverbial fold.

And that story, in turn, moved what might under other circumstances have been headline news into a mere blip. I refer here to a statement President Trump made in an interview with Tucker Carlson. Carlson, as Curmie has mentioned before, is no idiot, although he often plays one on TV. Here’s the section I want to discuss:

TC: So, NATO. NATO was created chiefly to prevent the Russians from invading Western Europe. I think you don’t believe Western Europe is at risk of being invaded by Russia right now. So, what is the purpose of NATO, right now? 

DJT: Well, that was the purpose. And it’s OK. It’s fine. But they have to pay. And they weren’t paying, and other Presidents went, and they’d make a speech, and then nothing would happen. And… the fact that they didn’t pay is not… a new fact. This is something that people have known for a long time. Other countries were delinquent. In the real estate business, we use the word “delinquent.” They didn’t pay. They didn’t pay for past, so I went there three or four days ago, and I said, “folks, you gotta pay. Because we’re not going to pay from 70 to 90, and I think 90 is really the right… depending on the way you define it, 90%... we’re not going to pay 90% of the cost to defend Europe. And on top of that, the European Union kills us on trade…. 

TC: So, membership in NATO obligates the members to defend any other members that’s attacked. So, let’s say Montenegro, which joined last year, is attacked. Why should my son go to Montenegro to defend it from attack? Why is that… 

DJT: I understand what you’re saying. I’ve asked the same question. You know… Montenegro is a tiny country with very strong people. 

TC: Yeah, I’m not against Montenegro… 

DJT: Yeah, right. 

TC: Or Albania… 

DJT: Oh, by the way… they’re very strong people. They’re very aggressive people. They may get aggressive, and, congratulations, you’re in World War III…. But that’s the way it was set up.

At one place in the middle of this sequence, and again at the end, President Trump reiterates the point about other NATO countries “not paying,” concluding this section with a rather pompous “add that to your little equation on Montenegro.”

There are lots of points to be covered here. First, let’s stipulate that the US has traditionally paid a disproportionate share of NATO’s expenses. This is indeed a problem that has been identified by previous US Presidents—President Obama, for example, incurred a fair amount of wrath from Europe for his description of “Europe and a number of Gulf Countries… who are calling for action… pushing us to act but then showing an unwillingness to put any skin in the game.” He then accepted the term “free riders,” proposed by The Atlantic’s Jeffrey Goldberg.

So the American frustration with NATO’s “free riders” is not a new phenomenon. The initiative to require a defense expenditure of 2% of GDP for each member state by the year 2024 was passed four years ago. President Trump wants to accelerate that timetable, and indeed to increase the goal to a far more robust 4%. (The U.S. is currently at 3.7 or 3.8%, depending on the source.) On the first goal, I wish him luck; perhaps he will indeed fulfill his boast that he can accomplish what previous Presidents have not: I hope my skepticism is misplaced. On the latter point, however—we don’t currently spend enough on defense? And if our closest allies increased their commitments by close to 70% (this rough number determined by dividing the 2% target by the current NATO median of 1.18%), we’d still need an increase… not merely in the military budget in dollar terms as the economy grows, but indeed in the percentage of GDP? Sorry, no.

It’s also untrue that the U.S. is footing 90% of the bill. The official figure is about 67% (The Atlantic says 72%), still disproportionately high by roughly a factor of three (based on GDP), but further evidence of POTUS’s inability to tell the truth even when he has a point: a trait he shares with his Democratic opponent in the last election. Moreover, there is little to suggest the President really understands the way NATO is funded… and if, as appears to be true, he knows less than Curmie about this, it’s not a good sign.

But now we get to the crux of the matter: the comments about Montenegro. OK, it was only an example, and it wasn’t introduced by POTUS himself. But his comments are chilling. Of course, Carlson’s set-up is disingenuous. Yes, NATO was designed to protect Western Europe, but after the break-up of the Soviet Union and the ensuing emancipation of the Baltic and Balkan states, Ukraine, etc., the concept of “Western Europe” became anachronistic. NATO now includes a number of countries which were at one time either part of the USSR or de facto under its control: precisely the reason those countries, although not geographically “western,” choose to affiliate with NATO and its goals. The Soviet Union is no more, and the countries near the Russian border would like to keep it that way. So no, Russia isn’t likely to invade Western Europe, but that’s not where all European democracies reside, any more.

Yes, Montenegro matters, both in terms American credibility and also in purely stark geopolitical terms. As Rich Lowry (hardly a left-winger!) points out,

The Baltics are immediately in the line of Russian fire, as targets of harassment by Vladimir Putin and officially part of the Soviet Union as recently as 20 years ago. Every chink in NATO’s credibility directly affects their security…. [Trump’s] open questioning of the wisdom of defending small allies in faraway places is worse: A predatory Russian leader who has already annexed the territory of one neighboring sovereign country is listening.

Of course, NATO would be under no compulsion to support Montenegro in a war of aggression (yeah, that’s likely to happen, right?), which is what POTUS seems to be suggesting with the “aggressive” comments. It is indeed true that Montenegro has been a little testy at least once in recent history: when Russia, or at least pro-Russian forces, tried to stage a coup in Montenegro. The trial of 14 people accused of an attempt to kill then-Prime Minister Milo Djukanovic and install a pro-Russian government began almost exactly a year to the day before President Trump’s remarks. Needless to say, the Kremlin denies the allegations; needless to say, if you believe that denial, Curmie has a bridge for sale in New York, going cheap.

Last month, the Foreign Policy Research Institute, a right-center think tank which views the world through a certain political lens but has a reputation for truth-telling (think The Telegraph in terms of British newspapers), published a report with this conclusion:

Despite the coup’s failure, the future of Montenegro’s progress toward Western integration remains uncertain. The institutional actors behind the failed coup attempt remain largely in place and steadfastly opposed to NATO membership. Should they come to power, they likely would withdraw Montenegro from the Alliance, retract its recognition of Kosovo, and potentially reunite with Serbia. Thus, to prevent the reversal of Montenegro’s Western trajectory, the U.S. and its NATO allies immediately must work to deepen their engagement with the country. Without undertaking measures to strengthen military cooperation, facilitate democratic reforms, accelerate the European Union accession process, and renew financial support for programs in the rule of law, the West is unprepared to counter Russia’s destabilizing efforts.

In other words, this is a really, really bad time to even discuss turning our collective backs on Montenegro, perhaps even more so than on the Balkan states, which are also under Russian threat.

Important, too, is the fact that Montenegro’s entry into NATO came about during the Trump administration, requiring a 2/3 vote of the US Senate (the vote was 97-2) and Presidential approval. The time to object was last year, not now.

Foreign policy decisions, especially those with military implications, are always difficult, or at least they damned well should be. On the one hand, there’s the danger of significant losses of blood and treasure. On the other, we’ve seen the aftermath of appeasement and isolationism. Irrespective of larger philosophical issues, however, the simple question is whether this country will honor its promises. Montenegro, like it or not, is a member of NATO, and therefore, according to Article 5 of the NATO Charter, entitled to mutual defense. By the way, Article 5 has been invoked precisely once in NATO’s history: by the US, post 9/11. For the record, Montenegro, per capita, has more troops in Afghanistan than the US does, and is on track to meet the 2% of GDP goal by the target date of 2024.

That President Trump would be anything less than emphatic about defending a fellow NATO state is a disgrace. He has defied the Senate, stressed our relationship with European allies, and rendered the collective word of the US government subject to his petulance. All in a day’s work for the bloviating vulgarian that is POTUS.

Pussy Riot Returns for Some Global Face-Time

It’s been a while since Pussy Riot were making headlines, and nearly six years since Curmie wrote about them except in passing. Curmie watched the documentary “Pussy Riot: A Punk Prayer” a while back, but had otherwise all but forgotten their existence. Well, they never went away, and they just made headlines again, although the linkage between group and event came rather after the fact.

The best moment of the World Cup?  Just maybe.

Those of us who watched the World Cup final between France and Croatia also saw Pussy Riot at work, although most of us didn’t know it. The group has claimed responsibility for the pitch invasion early in the second half of the match. 

 Television cameras cut away from the events on the field and the announcers muttered about the intrusion into the game (Curmie will hope it was only because they assumed the four people who ran onto the pitch were quotidian attention-seekers), especially as Croatia was mounting a counter-attack which just might have turned into a scoring opportunity. (And given that both of France’s first-half goals in a 4-2 victory were at least arguably the product of bad refereeing, that lost opportunity must have been especially galling for the Croats.) Olga Kurachyova, one of the protesters, apologized for interrupting the game: “It is a pity that we disrupted the sportsmen,” she said, but added that “FIFA is involved in unfair games unfortunately. FIFA is a friend of heads of states who carry out repression, who violate human rights.”

Indeed, two things need to be noted here. First, FIFA (the Fédération Internationale de Football Association) may be the only organization in the world as corrupt as the Russian government. Second, coverage of the Cup, at least in the several games Curmie saw, mentioned nary a word about how repressive the Russian régime really is, but there was plenty of ooh-ing and aah-ing about what a great tournament this was and how magnificent the facilities are. Coupled with President Trump’s clinging to his bromance with Putin despite increasing evidence that Russia did indeed meddle in the last US Presidential election, this whitewashed view of a country, or rather of a political machine run by a former KGB apparatchik, is more than a little disturbing.

Of course, few if any spectators knew that the pitch invaders were actually political protesters until after the fact. The four protestors didn’t fit with our (or at least with Curmie’s) presuppositions about Pussy Riot. Contrary to what Curmie had come to expect, they weren’t masked, they were wearing costumes (police uniforms), and there was a man included in the quartet of pitch-invaders. Turns out he’s Pyotr Verzilov, described by ABC (that’s the Australian Broadcasting Corporation) as “one of the group’s most prominent members,” not least because he is the husband of Nadya Tolokonnikova, one of the three Pussy Riot members sentenced to two years in prison for the protest at the Moscow Cathedral in 2012 (she was released after serving about 17 months).

On the other hand, the World Cup final is always one of the world’s most-watched events. Curmie can’t yet find final viewership numbers, but recent history suggests that once you add everyone watching at home and everyone watching in a bar or a watch party, close to a billion people are likely to be watching at any given moment. And whereas some television networks cut away as soon as the disturbance was noticed, others apparently did not. Moreover, Pussy Riot’s claim of responsibility seems to have made headlines around the world (well, not so much in the US, which cares little about soccer and less about how foreign governments treat their citizens).

Lest there be any question about what Pussy Riot was up to, here is the video released by the group upon announcing their responsibility. Since they (or someone) was kind enough to supply subtitles, Curmie will transcribe their commentary:

Dear friend! Perhaps you know that there is no rule of law in Russia, and any policeman may easily break into your life for no reason. FIFA World Cup demonstrated really well how good Russian policemen may behave. But what will happen once it ends?

The conclusion and the solution is the only one—you should fight for preventing fabrication of criminal accusations and arresting people for no reason. In order for this to happen you need one thing called political competition. A possibility to participate in your own country’s life and be elected—for everyone. All of these are very simple things. But you should decide for yourself what you personally can do, so that *your* Russia would become much more beautiful. 

And one more thing. Today is 11 years since the death of the poet Prigov. And he became part of Russian Culture with a cycle of poems about a policeman. Read about him.

Well, our guys are waiting for us on the football match, where we should tell everyone about the heavenly policeman and about the earthly policeman. And also a couple of important demands that you will see at the end of this video. Something about these two policemen is written in this video’s description below. [You can see the translated text of this statement here.]. Well, see you later, my friend. [Curmie has regularized some of the punctuation, but tried to keep everything else unchanged.]

This is the first half or so of the whole video. It is very strange, indeed. The three speakers, presumably the three women who stormed the field, are wearing police uniforms and sitting in an apartment with stuffed animals in the background; all three talk, but they’re all reading from a prepared script. One wears a balaclava; a second puts one on in the middle of the message; the third spends a good deal of time preening for the camera. Color Curmie confused by all of this, but what they say shouldn’t get lost in the clutter of other images.

The video then moves on to an extended clip of the group’s on-pitch activities, including a double high-five (high ten?) between Pussy Riot’s Veronika Nikulshina and French striker Kylian Mbappe (more on this later) before she was literally dragged off the field by security personnel.

Finally, an animated cat (get it? pussy?) appears on the screen with Pussy Riot’s demands:

When the earthly policeman enters the game, we demand to:

1. Let all political prisoners free.

2. Not imprison for “likes.”

3. Stop illegal arrests on rallies.

4. Allow political competition in the country.

5. Not fabricate criminal accusations and not keep people in jail for no reason.

6. Turn the earthly policeman into the heavenly policeman.

These objectives are, as might be expected, simultaneously noble, idealistic, romantic, and naïve. More importantly, they are chilling. Far too many of the problems these goals seek to remedy are creeping into American life. OK, I’d like to think we have few if any political prisoners. But whereas liking a Facebook post might not get you arrested, it could get you fired (and have that firing be upheld by the courts) or suspended from school; these would seem to be first cousins of actual arrest.

“Illegal arrests at rallies” is a loaded term, but I suspect that a lot of objective people would say that something very akin to that has happened not infrequently—Curmie is thinking of the #Occupy movement of a few years ago; those on the other side of the political fence would no doubt cite other, no less relevant, examples.

As for political competition… The Electoral College has gone in a different direction than the popular vote in two of the last three Presidential elections that didn’t involve an incumbent. California has one electoral vote per roughly 720,000 inhabitants; Wyoming one per roughly 190,000. Of course, if you don’t live in one of the dozen or so states which legitimately could go either way in a Presidential election, you have no real say at all. N.B., this is not to suggest that the elections of Presidents G. W. Bush or Trump were tainted; their opponents knew the rules. The Electoral College may be anachronistic and ultimately undemocratic, but it is the way of the world, and candidates need to plan and campaign accordingly. Both Al Gore and Hillary Clinton were bad candidates who ran bad campaigns; they, and the party bosses who ensured their nominations, bear full responsibility for their defeats.

Gerrymandering is endemic, to the point where in 2012 Democrats got 1,400,000 more votes than the Republicans for the House of Representatives but still had a 21 vote deficit in actual elected reps. Competitive elections still happen, but the odds are often stacked, and the results aren’t necessarily an accurate representation of the electorate’s wishes.

We in this country are seldom jailed “for no reason,” but you’re likely to be jailed longer for the same crime if you happen to be poor or black or Latinx or Muslim. Meanwhile, lying little shits like the Brock Turners of the world whine about how abused they are. We’re not Russia, but we’re closer than we should be.

Pussy Riots complaints are real, and they served as a useful reminder that Russia is a much uglier place than their government, or FIFA, or indeed Fox Sports, would have us believe. As Masha Gessen writes in The New Yorker,

… Pussy Riot became the only people to make a meaningful statement about Russian politics during the World Cup—and it came on the eve of Vladimir Putin’s triumphant meeting with Donald Trump. They also created, on one of the biggest stages in the world, an image of unjust and arbitrary authority, the sort with which a hundred and forty-five million Russians live day to day.

Before we close, though: the moment that several have called the highlight of the Cup. During the charge onto the field, protester Veronika Nikulshina swerved and headed towards French star Kylian Mbappe. Mbappe was named the tournament’s best young player after becoming the first teenager since Pele 60 years ago to score in a World Cup final. He is widely believed to be the sport’s next global superstar.

But while most of the players on both sides ignored the interruption and Croatian defender Dejan Lovren actively assisted in apprehending the protesters, Mbappe made eye contact. Was Mbappe curious? apprehensive? foolish? Did the fact that Ms. Nikulshina is a very attractive young woman matter? Did she know she was approaching a budding international celebrity? Did he know she was a protester rather than a garden variety hooligan? Or did they both somehow sense that they were granted a huge opportunity to help each other out? Curmie has no answers. But he does know this: that moment, the one you see in the photo at the top of this piece, will remain an enduring part of this World Cup. Fans loved it, and Mbappe was widely cheered for his actions. He was already a hero in more ways than one—both for his heroics on the field and for donating his entire World Cup earnings—over half a million dollars—to charity because he doesn’t think he should be paid to represent his country. His double high-five with Nikulshina was the icing on his good-guy cake.

Meanwhile, the interaction with Mbappe got Nikulshina and her colleagues a lot more publicity than the pitch invasion per se ever would have on its own. There was another benefit: the increased publicity made it difficult for the Russian authorities to come down as hard on the protesters as they might otherwise have done. Seriously, check out the grin on Nikulshina’s face when she hears her sentence (it’s at about the 30 second mark in the top video): 15 days imprisonment and a ban from attending sporting events for three years. Given the sentence Pussy Riot members received for the event at Moscow Cathedral, it certainly could have been worse. She also notes that Mbappe was “fantastic,” and that she thinks the interaction “brought luck to his team.” Well, the French side did score two very quick insurance goals, one by Mbappe himself, in very short order after the encounter. Just sayin’.

It would require a flight of fancy to believe that Mbappe was thinking about anything but football when he sent a right-footed shot screaming into the back of the net only 10 minutes or so after high-fiving Nikulshina, and there was no suggestion that “this goal is for Veronika,” or anything like that. Still, whatever we may think of Pussy Riot’s tactics, their cause is just and their valor is unquestioned. And young Mr. Mbappe seems to be an exceptional person as well as an exceptional athlete. Perhaps a little karma just might have been involved. If so, here’s hoping that it continues.

UPDATE: In other Pussy Riot news today, the European Court of Human Rights ruled that Russia was wrong to jail the three Pussy Riot women from the 2012 protest at the Moscow Cathedral, and ordered Russia to pay some $57,000 in damages to Maria Alyokhina, Nadya Tolokonnikova, and Yekaterina Samutsevich.

When Will They Ever Learn?

Lesli Margherita as a middle-aged Cindy Lou Who

Generally speaking, Curmie is not a big fan of parodies. See, the thing is, either he likes the original (in which case he doesn’t like seeing it ridiculed) or he didn’t like the original (in which case, why would he want to see any kind of version of it?). Of course, there’s the possibility that he doesn’t know the original—in which case he’ll feel like a doofus that he doesn’t get all the jokes that everything else is laughing at.

Moreover, the writers and producers of many parodies seem to think that throwing a couple of sex jokes and some “adult language” into the mix automatically renders any material hilarious. Curmie, having left junior high some time ago, begs to differ, and therefore pretty much despises the faux cleverness of plays like Aaron Posner’s Stupid Fucking Bird (Chekhov’s The Sea Gull) and Bert V. Royal Dog Sees God (the gang from the Peanuts cartoon strip). He suspects that he would be equally bored by Matthew Lombardo’s Who’s Holiday, a take-off on the Dr. Seuss classic How the Grinch Stole Christmas.

But here’s the thing. Curmie will express his disdain by (wait for it)… not buying a ticket. But if you, Gentle Reader, have different tastes, and choose to attend, well, then, go for it. Unfortunately, all too many rights-holders of the originals on which these parodies are based are indeed actively trying to prevent this material from ever reaching the public. The “Three’s Company” gang from a few years ago sued for copyright infringement by David Adjmi’s 3C. They lost, as it should have been obvious that they would. Parody has its own category and its own set of rules as respects copyright/trademark. The laws are complicated, with each case being weighed in terms of the amount of reference to the original work, the potential effect the parody might have to the value of the original work, etc. Basically, it comes down to this: if the parody does nothing more than re-create the original with a few minor adjustments, it’s an infringement of copyright law. If however, the original is evoked merely in order to establish a recognizable world of characters and expected actions—a world which is then skewed to tell a different story—then the parody is on safe legal ground.

Such is the case with Who’s Holiday, a one-woman show by Matthew Lombardo which riffs off the character of Cindy Lou Who in the Dr. Seuss classic How the Grinch Stole Christmas. New York Theatre Guide’s Tulis McCall describes the plot thusly:

Here is the deal: Turns out that after the Grinch’s heart grew three sizes on that long-ago Christmas Eve, he was befriended by the entire population of Who-ville. Of special importance was the friendship he developed with Cindy Lou. He was like a second father. Until he wanted to become a first husband. And of course a real father, because, thanks to the Grinch, Cindy Lou had a bun in the oven. She was not sorry for this because she was smitten with the Grinch and the wild sex they shared….

The tale spirals downward. Cindy Lou gave birth to a little green daughter, Patti, and the Grinch turned out to be the dud that he always was. Their dog Max met his demise, as did the Grinch, whose death was blamed on Cindy Lou. Into jail she sailed for over a decade, and her 7 year old Patti was put into a home until she reached the right age for being sprung. Patti and Cindy Lou did not see each other after that last day in court. When Cindy Lou was released from jail, Patti was otherwise occupied with her own life. No contact. The other Who citizens shunned Cindy Lou and tonight here she is, on Christmas Eve. Not singing around the famous tree with her fellow citizens, but here in her trailer, a-l-o-n-e.

If you really want to check out more about what the show is like, there’s this one-minute video of… erm… highlights. That’s enough to make Curmie want to save a few bucks and avoid this tripe, but, as Ms. McCall points out, “At the conclusion of the show, 97% of the rest of the audience stood up and cheered. I have no explanation for this other than the possibility of a parallel universe.” [If nothing else, Curmie seems to have found a kindred spirit.] If you’re part of that 97%, so be it.

Curmie is reminded of the old George Carlin routine about Muhammed Ali:

For about three and a half years, they didn’t let him work. ‘Course he had an unusual job, beating people up. It’s a strange calling, y’know? But it’s one you’re entitled to. Government didn’t see it that way. Government wanted him to change jobs. Government wanted him to kill people. He said, “No, that’s where I draw the line. I’ll beat ‘em up, but I don't wanna kill ‘em.”

Curmie has little else in common with Mr. Ali, but we do agree on this: Curmie will beat up the likes of Who’s Holiday, but he doesn’t want to kill it.

Not so the Ted Geisel estate (Curmie can’t imagine “Dr. Seuss” himself having any objection). Dr. Seuss Enterprises, which apparently is long on money for lawyers and short on sense, sued playwright Lombardo and the show’s producers, cancelling the planned 2016 Off-Broadway opening which was to have featured Jennifer Simard. The cease-and-desist order was ultimately overturned by US District Court Judge Alvin K. Hellerstein, who ruled, quite reasonably, that:

The Play recontextualizes Grinch‘s easily-recognizable plot and rhyming style by placing Cindy-Lou Who—a symbol of childhood innocence and naiveté—in outlandish, profanity-laden, adult-themed scenarios involving topics such as poverty, teen-age pregnancy, drug and alcohol abuse, prison culture, and murder. In so doing, the Play subverts the expectations of the Seussian genre, and lampoons the Grinch by making Cindy-Lou's naiveté, Who-Ville's endlessly-smiling, problem-free citizens, and Dr. Seuss’ rhyming innocence, all appear ridiculous.

Well, duh. So the play premiered last November with Lesli Margherita as 40-year-old Cindy. And the Seuss estate appealed. Of course, they did. After all, they might be able to squeeze a few bucks out of the production. This, however, would be if they won, and they had about as much chance of doing that as Curmie’s doctoral alma mater has of capturing the Big 12 title in football this year. (The pre-season poll shows that 52 of 52 voters pick Curmie’s beloved Jayhawks to finish dead last.) Legal precedent was against them; a lower court ruling was against them; common sense was against them. Still, they forged ahead. In one of the easiest rulings in history, the 2nd Circuit Court of Appeals last week voted unanimously to uphold the lower-court ruling:

… the district court properly granted judgment on the pleadings on the trademark counterclaims. Applying the balancing test set forth in Rogers v. Grimaldi (Lanham Act “should be construed to apply to artistic works only where the public interest in avoiding consumer confusion outweighs the public interest in free expression”), it concluded that the public’s interest in free speech here outweighs DSE’s interest in protecting its trademarks. We agree. “A parody must convey two simultaneous—and contradictory—messages: that it is the original, but also that it is not the original and is instead a parody” and, in this case, Lombardo evokes elements of the original work to serve his parodic purpose. [internal citations omitted]

Indeed, the only surprise here is that the Appeals Court agreed to hear the case at all.

So here we are. Mr. Lombardo won his suit (surely even DSE isn’t stupid enough to appeal further… right?), and now a Broadway run is being contemplated. At least the former is good news.

And so ends the court case of Cindy Lou Who,

Of Matthew Lombardo, and of course, you-know-who.

It isn’t a play Curmie wants to go see,

But if you do, Dear Reader, you ought to be free.

Toddlers as Their Own Counsel: A Great Idea, Right?

Immigration policy—specifically the policy of separating children from their families—has made a lot of headlines of late. Who knows, perhaps the seemingly inhumane treatment of those who show up at the (especially southern) border of the country might, to steal a line from Robert Shenkkan’s recent play Building the Wall, legitimately prompt the question “who would want to come here now?”. But this essay isn’t about the arguments—ethical or pragmatic—in favor of or opposed to this strategy.

Rather, it’s about the meme you see on the left and its implications. An FOC recently posted this on her Facebook page. To be honest, despite Curmie’s antipathy for all things Trumpian, a statement this transcendently idiotic just didn’t seem possible. Surely Judge Weil couldn’t announce himself less fit for public office if he stripped naked, covered himself in caramel sauce and whipped cream, climbed into the bed of a pickup truck and belted out “I’m a Moron” to the essentially unsingable tune of “I’m a Jayhawk,” the fight song of Curmie’s beloved doctoral alma mater. It just couldn’t be true, right? Or perhaps he simply misspoke and shouldn’t be held accountable for a slip of the tongue (Cf. Barack Obama doesn’t really think there are 57 states).

Nope. This drivel escaped Weil’s mouth in the course of a deposition before a federal court. According to the Washington Post story that broke this news,

Ahilan Arulanantham, deputy legal director at the ACLU of Southern California and the attorney who questioned Weil in the deposition, said he initially thought the judge had misspoken, “because what he said was so outrageous. As I asked further questions, he obviously meant what he said.”

Wow. Weil, part of whose job is to teach other judges how to handle such cases (!), subsequently declared, “I’ve taught immigration law literally to 3-year-olds and 4-year-olds.” Okay, no doubt about it, this guy is nuttier than squirrel turds. Curmie shook his head in disbelief that even the Trump DOJ would hire someone so obviously inept. A check on the DOJ website confirms that his official title is Assistant Chief Immigration Judge.

Oops! Problem! Weil made these outrageous claims while Obama was still President, and indeed was appointed during the Obama administration. And while it is true that Loretta Lynch (AG at the time of Weil’s most public stupidity) and Jeff Sessions are among the worst cabinet-level appointees in recent history, one would have thought that even they might have seen what a buffoon Weil is. Apparently not.

Let’s face, most adults wouldn’t stand a chance of getting a fair hearing without a lawyer, and these are little kids who quite probably don’t speak English and are being asked some pretty complicated questions by an intimidating stranger. Curmie does not assume that every asylum-seeker has a case, but the fact is that the world is often a nasty place, and even children are often in danger. Think of Herod’s massacre of the innocents, or the fates of the Trojan prince Astyanax, or the princes in the Tower under Richard III; brutality towards children to further a political cause is not a modern invention. But what are the odds that a child with a legitimate plea would receive justice in this arcane world?

Here’s a little more from that article in the Post:

At such hearings, children face the same types of immigration charges as adults, ranging from entering the country illegally to overstaying their visas. The children—most of whom cannot speak English and must use government-provided interpreters—are generally asked questions by judges such as when they arrived in the United States and whether they faced persecution in their home countries, according to court documents and immigration attorneys.

But the questions can easily trip up children with no lawyers, the attorneys said. A judge may ask, for example, if the child wants to leave the country voluntarily or would rather be ordered deported. If the child chooses either option, he or she cannot apply for other forms of immigration relief such as asylum in the United States.

Yeah, a three-year old can see that trap coming, right, Judge Weil?

The DOJ didn’t deny that Weil’s assertion was utterly absurd, but they tried to distance themselves from the fallout:

Lauren Alder Reid, a spokeswoman for the department’s Executive Office for Immigration Review, said in a statement: “At no time has the Department indicated that 3 and 4 year olds are capable of representing themselves. Jack Weil was speaking in a personal capacity and his statements, therefore, do not necessarily [emphasis Curmie’s] represent the views of EOIR or the Department of Justice.”

Sure. That’s why Weil appeared as an expert witness, called by the DOJ. Were Curmie of a cynical disposition (perish the thought!), he might suspect a lack of total candor. Judge Weil’s sorry ass should be fired for embarrassing the entire DOJ, “personal capacity” or not.

And that’s really the key. Just tell us the truth. Yesterday, Curmie requested an article published in a Swedish professional journal through his university library’s inter-library loan office. The request was cancelled almost immediately, with a note that the article is only available in Swedish. Curmie is willing to bet next month’s mortgage payment that the article (as opposed to the journal) is indeed in English: the title is in English, the subject matter is an English-language play, the author was an English-speaking Canadian who had enough stature in the field that she didn’t need to work in another language (if indeed she was even capable of doing so). Tell me the truth: finding this article is going to be too much work and you very well might not be able to meet my deadline (I’m presenting the paper in three weeks’ time). Don’t tell me something I’m 99% certain is a lie.

Similarly, Curmie gets it that, according to current law, the DOJ is under no legal obligation to provide lawyers for children charged with violating immigration laws, and that the cost to do so would be considerable: a lot less than the Obama administration’s predilection for drone strikes in western Asia, or the Trump administration’s tax cut for the stinking rich, but considerable, nonetheless. So say that: “There is no requirement that legal representation be provided for these children, and in our opinion the cost to the American taxpayer outweighs the advantages to providing legal counsel to foreign nationals.” There are those on the left who might bitch about that statement—Curmie would probably be one of them—but it’s at least a comprehensible argument. Don’t feed us nonsense about how a non-English-speaking 3-year-old can hold his or her own in an immigration hearing.

Weil’s silly pronouncement drew a fair bit of criticism early on, including from three former DOJ judges—Bruce J. Einhorn, Eliza Klein, and Lory D. Rosenberg—who wrote in a brief filed in the U.S. Court of Appeals for the 9th Circuit that “A typical three-year-old cannot tie her shoes, count to 100, peel a banana, or be trusted not to swallow marbles.” Somehow Curmie suspects that these former judges doubt that the little girl in question would be just fine serving as her own counsel in an immigration case conducted in a language she doesn’t understand.

As such furors do, however, this one died down, and there was little more said about it for two years, until John Oliver, of all people, resurrected the story this April Fool’s Day: ironic timing for a very serious discussion. Describing “a critical, potentially life and death, process,” Oliver argued that “sadly, the system is a complete mess.” He then played clips of several legitimate authorities, closing with Judge Dana Leigh Marks of the National Association of Immigration Judges, who opines that “in essence, we’re doing death-penalty cases in a traffic court setting.” Yeah, that kind of gets your attention, doesn’t it?

Noting that the civil nature of immigration courts means that the government is not required to supply a lawyer to those who cannot afford one (indeed, only 37% of immigrants have counsel), Oliver urges his listeners to “think of an immigration hearing like surgery. You can try and do it yourself, but if you ever want to seeing your fucking family again, maybe try and get a professional to help you.” As for the children, as young as two years old (there’s a recent case of a 1-year-old), representing themselves, Oliver says:

That’s just clearly ridiculous. Because you cannot let a two-year-old be unsupervised in court. You can’t even let a two-year-old be unsupervised in a bouncy castle. They’re going to come out covered in glitter, holding a broken beer bottle and a dead bird. How did they get them in there? Who knows? The point is they can’t be left alone for a second, and that bird has already been in their mouth. It just has. You have to deal with that reality.

For the record, Oliver has a two-year-old son; he knows whereof he speaks. To Judge Weil’s claim to have taught immigration law to three- and four-year-olds—“It takes a lot of time. It takes a lot of patience. They get it. It’s not the most efficient, but it can be done,” Oliver responds “No, it can’t! You can’t teach immigration law to the three-year-old. You can’t even explain to a child that age that Elmo isn’t his best friend.” By the way, check out the “mock trials” starting at 6:54 and 7:53 of the video linked above. Those little girls are both freaking adorable, but you will forgive Curmie for suggesting that perhaps they are not quite ready to represent themselves in a court case that might literally have life-and-death consequences, even if they do have an advantage over the majority of immigrants in that English is their native language.

Oliver then launches into a pretty thorough evisceration of the politicization of the immigration process and of the innumerable miscarriages of justice coming out of decisions made in haste (one appeal consisted of two questions and lasted less than a minute and a half), but those are outside the scope of Curmie’s remit today. We’ll also leave aside the question of Oliver’s consequentialism—the fact that bad things happened to an immigrant who was deported doesn’t imply that the decision to deport was inappropriate. Let us concentrate on one issue only: that the ability to understand the charges is one of the bedrock principles of any judicial system worthy of the name. (Yes, Curmie knows that immigration hearings are run by the executive branch, not the judiciary… you know what I mean.) No child whose age is a single digit can possibly do that. The immigration courts are a disaster. They were under Obama (and probably under Bush and Clinton, and…), and they certainly are now. Real, comprehensive, long-term solutions will take time, and will require greater expertise and wisdom than Curmie can offer, and a hell of a lot more than we can expect from Judge Weil or those who continue(d) to employ him.

But baby steps are possible. Providing at least adult advocates if not lawyers for literally every child in an immigration hearing would be a step. But first we have to be honest. Three-year-olds don’t “get it.” The current system cannot be allowed to continue unchanged. And Jack H. Weil doesn’t have brains enough to be a speed bump.  Curmie chooses not to speculate as to why the meme is making the rounds right now, but the problem it addresses has been around for years, and still continues.  Even if the meme was designed only to embarrass the Trump administration, it has, even if accidentally, brought some focused attention to a real issue.  So let’s fix this one.  One step at a time.

Access to Literacy Is Not a Fundamental Right?

Jamarria Hall, one of the plaintiffs in the case.

The recent ruling by the Wisconsin Supreme Court wasn’t the only significant case to come out of the upper Midwest in recent days. There was also a curious and distressing (to Curmie, at least) ruling in a US District Court in Michigan which concluded that “access to literacy is not a fundamental right” guaranteed by the US Constitution.

Curmie first read about the case when a Friend of Curmie (FOC) posted a link to the Detroit Metro Times article about the ruling. Curmie had two immediate responses, following closely upon each other: 1). ARE YOU FUCKING KIDDING ME?, and 2). OK, calm down… they got the headline wrong: the decision was about whether the plaintiffs had standing, or the defendants weren’t the right people to blame, or this should be in state court instead of federal court, or something like that, right?

Nope. “Access to literacy is not a fundamental right” is a direct quotation from the ruling by Judge Stephen Murphy III. Here, Gentle Reader, is where Curmie once again reiterates that he’s not a lawyer, and Judge Murphy, a G.W. Bush appointee (a fact Curmie mentions not to impugn him but merely to suggest he’s an experienced jurist), might be right on the law. One thing is certain: either Judge Murphy is an ass, or Mr. Bumble was right, and the law is.

Curmie read through the 40-page ruling trying to find a rationale for the decision. Here’s the best I’ve got. Quoted sections are all from the published decision.

Plaintiffs are minor children who attend, or attended, public schools in Detroit. They have alleged that the conditions of their schools are so poor, and so inadequate, that they have not received even a minimally adequate education. Specifically, they alleged they have been denied access to literacy on account of their races, in violation of their rights under the Due Process and Equal Protection Clauses of the 14th Amendment of the United States Constitution.

So far, so good, yes? The plaintiffs voluntarily dismissed two of the original five counts in their suit, and the fifth is really about what they sought rather than the rationale, so we’re left with two allegations both rooted in the 14th Amendment: “deprivation of a fundamental right” and “disparate treatment on the basis of race.” The defendants—Governor Richard Snyder, members of the State Board of Education, the Superintendent of Instruction, et al.—claimed, first of all, that the State of Michigan never operated Detroit schools: a transparent falsehood, and rightly dismissed as such by Judge Murphy:

Detroit residents have repeatedly pushed back against the Public Acts and state actions that supplanted local control. At each step, courts affirmed the legality of the State's interventions. Now, facing the deplorable conditions alleged in the Complaint, Detroit students seek to hold someone responsible. They have adequately pled that state actors effectively control the schools, at least in part, and are therefore proper parties.

Then there’s a discussion about whether the plaintiffs asserted a right to literacy or a right to access to literacy. No, no one actually suggested that literacy per se was guaranteed. Moving along…

Then comes the defense argument that the plaintiffs’ grievances were not “concrete, particular, actual, or imminent.” Curmie isn’t sure what that legalese means, but Judge Murphy rejected it:

Plaintiffs allege that their school buildings, unlike those of other Michigan students, are replete with conditions "that make learning nearly impossible," and identify them with specific photographic allegations. They allege that their schools, unlike other Michigan students', lack enough teachers to hold classes in which they would learn to read. They allege that, unlike other Michigan students, they lack books necessary to attain literacy. Those are concrete, particular, actual injuries that satisfy the standing requirement under both the Due Process claim and the Equal Protection claims. (citations omitted)

Later, Judge Murphy rejects another defense argument:

The Complaint also provides the necessary description of a causal chain. As pled, Defendants are the parties "responsible for the education of all Michigan public school students and for the system of Michigan public schools" as well as being “particular[ly] responsibl[e] for the schools in Detroit” due to the State's interventions. Michigan law requires students to attend school. If access to literacy is a fundamental right, Defendants would be liable for depriving Plaintiffs of it. And even if it is not a fundamental right, Defendants would be liable if they “denied Plaintiffs access to literacy equal to the access provided to students in other schools in the State on the basis of their race[.]”

Judge Murphy also rejected three other arguments from the defense, most notably that they can’t be sued because of the 11th Amendment (don’t worry, Curmie had to look it up, too). So we can move on to the substance, right? Not so fast! First, Judge Murphy takes us on a tour of education-as-legal-right cases… and essentially rejects them all as not germane to the case at hand, ultimately deciding that the “Supreme Court has neither confirmed nor denied that access to literacy if a fundamental right.” Well, then…

So what’s the standard?

The Supreme Court has… historically employed a formula of sorts: fundamental rights are only those “objectively, deeply rooted in this Nation's history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.”

Curmie will buy that. Murphy continues, “Even when the Supreme Court has ventured to recognize a right as fundamental, it has typically limited them to ‘negative rights’—i.e., the right to be free from restraint or barrier.” This—the difference between “access to literacy (i.e., a minimally adequate education) is so important that the state is compelled to provide it” and “literacy is so important that the state may not hinder Plaintiffs' attempts to secure it,” seems to be the crux of the ruling. Curmie wonders if he is alone in thinking this case is too important to be decided on the basis of such a quibble.

Judge Murphy grants that:

Plainly, literacy—and the opportunity to obtain it—is of incalculable importance. As Plaintiffs point out, voting, participating meaningfully in civic life, and accessing justice require some measure of literacy. Applying for a job, securing a place to live, and applying for government benefits routinely require the completion of written forms. Simply finding one’s way through many aspects of ordinary life stands as an obstacle to one who cannot read.

Still, according to the judge, in purely legal terms, “The Supreme Court has repeatedly emphasized… that the importance of a good or service “does not determine whether it must be regarded as fundamental[.]” The example he cites is adequate housing (which also, in Curmie’s world, ought to be considered a “fundamental right,” but which apparently isn’t. I mean, let’s go back to that standard: “objectively, deeply rooted in this Nation's history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.” How in the world does access to literacy in 21st century America fall short of those criteria? 

The plaintiffs argued that such denial inevitably leads to “instability in both social and economic terms,” and to “locking them out of valuable social and political institutions, from State academies of higher learning, to the marketplace of ideas, to the very texts that undergird our constitutional democracy.” Sorry… how can this be denied? Well, in Constitutional terms, the plaintiffs are relying heavily on the Obergefell v. Hodges (the case that granted marriage equality), which doesn’t jibe well with some previous decisions, and Judge Murphy is loath to go down that less-trodden-by path… to the point of clutching at legal straws, like the fact that there weren’t any public schools at the time of the writing of the Constitution, and indeed “a state could choose not to undertake the provision of education at all.” Seriously, Stevie, what happened? You were doing so well…

So we end up with this:

The conditions and outcomes of Plaintiffs’ schools, as alleged, are nothing short of devastating. When a child who could be taught to read goes untaught, the child suffers a lasting injury—and so does society. But the Court is faced with a discrete question: does the Due Process Clause demand that a State affirmatively provide each child with a defined, minimum level of education by which the child can attain literacy? Based on the foregoing analysis, the answer to the question is no.

Based on the foregoing analysis, Judge Murphy is a pancake short of a grand slam breakfast.

Of course, the “equal protection” argument was also dismissed:

Although the Complaint clearly establishes that Plaintiffs' schools predominantly serve children of color—four of the five schools are at least 97% African American and the fifth is 31.1% African-American and 64.2% Latino, it makes no claim about the relevant comparator schools…. The Complaint opines that the conditions in Plaintiffs’ schools “would be unthinkable in schools serving predominantly white, affluent student populations,” but it does not state any instance where Defendants intervened in a school with a different racial makeup and treated that school disparately. Without this type of comparison, the Complaint fails to state a claim that Defendants have classified or otherwise differently treated Plaintiffs on account of race.

The field has already been limited to Detroit schools per se. So, in a city that is less than 8% non-Hispanic white, the plaintiffs have to find a majority-white school that was subjected to state intervention. In other words, because there is a history of racial disparity in education, the plaintiffs can’t claim that there’s a racial disparity because there aren’t any comparably bad schools with majority white enrollments to use for comparison.

(Be it noted: Curmie is fully aware of the corruption and incompetence of both the politicians and the education hierarchy in Detroit. And he believes that the plaintiffs in this case have been subjected to the “devastating” conditions described in the complaint more because they’re poor than because they’re POC. That doesn’t help the students, and it doesn’t make Judge Murphy’s thought process coherent.)

It’s not for a District Court judge (especially in the singular) to make new law, so Curmie has some sympathy for Judge Murphy, who seems frustrated by his perceived inability to do what everyone (except, perhaps, the defendants in this case) desires: provide at least a basic education to all the youth in all school districts across the country. Murphy doesn’t seem to be a bad man (Curmie can’t say the same for Rick Snyder and his minions, or for the political class in Detroit, but those are rants for another day), but he lacks imagination and lateral thinking. More importantly, this decision is more craven than inept. It’s about time someone, someone in a position of authority cared more about the future of the country than about making sure not to disturb the comfort of the economic and political elite.

Testing the Limits of Academic Freedom at Marquette

Curmie had no sooner returned to writing than a case that he’d written about years ago (here, here, and, very briefly, here) returned to the public sphere. The Wisconsin Supreme Court ruled 4-2 to overturn a lower court ruling and reverse the firing of Professor John McAdams of Marquette University.

Dr. John McAdams

You can read the synopsis in the trial transcript linked above, or there’s good coverage in a series of stories in the Chronicle of Higher Education, but they’re behind a paywall (one of their stories nonetheless linked here). There are, of course, good stories in Inside Higher Education and in the Milwaukee Journal Sentinel. There’s also a lengthy play-by-play in the form of the letter from Dean Richard Holz to Dr. McAdams, explaining the rationale for the university’s initiating procedures to revoke the professor’s tenure and terminate his employment. Here are the basics:

In October of 2014, Marquette grad student Cheryl Abbate was teaching a class in Theory of Ethics. The subject of gay marriage came up in discussion, and Abbate allegedly proclaimed that “everyone agrees on this, so there’s no need to discuss it.” A student approached her after class, surreptitiously (and unethically, if not illegally) recording the interchange. The student, who opposed gay marriage, was upset that Abbate essentially described any such dissent as homophobic, and that she suggested that he drop the class if he was going to make such comments. Abbate then asked if the student was recording the conversation; he tried lying about it, but then admitted that he was, and threatened to take the issue to her “superiors.”

He subsequently brought the recording to various university officials, and ultimately to his advisor, Dr. McAdams, who, with the student’s permission, wrote about the incident in a blog post, identifying Abbate by name and linking to her own blog, which included her contact information. McAdams trots out the trite, but not meritless, complaints adopted by many on the right, that “Opinions with which [liberals] disagree are not merely wrong, and are not to be argued against on their merits, but are deemed ‘offensive’ and need to be shut up,” and that “in the politically correct world of academia, one is supposed to assume that all victim groups think the same way as leftist professors.” McAdams also quoted Charles Krauthammer’s assertion that the “appropriate term” for the pursuit of such an agenda is “totalitarianism.”

McAdams also sent the blog post to Campus Reform, a conservative site that seeks, in its own words, to “expose liberal bias on America’s campuses.” The piece was subsequently picked up by Fox News and other larger media outlets. Whether because of or independent of this added circulation and publicity, Ms. Abbate was subjected to no little abuse, some of it even threatening; she transferred to the University of Colorado. (The transfer may or may not have been independent of the situation described here, but certainly these events did little to keep her at Marquette.)

Dean Holz suspended McAdams (with pay) in December, and then started the process to fire the professor in January. The case was forwarded to a hearing committee of seven tenured faculty, who unanimously agreed that McAdams had “violated his obligation to fellow members of the Marquette community by recklessly causing harm to Ms. Abbate, even though that harm was caused indirectly. The Committee concludes that the harm to Ms. Abbate was substantial, foreseeable, easily avoidable, and not justifiable.”

Of course, one of the committee members, Lynn Turner, had, prior to being named to the committee signed an open letter in the Marquette Tribune, in which the co-signers “deplored the treatment of… Ms. Abbate and deeply regret that she has experienced harassment and intimidation as a direct result of McAdams's actions…. Perhaps worst of all, McAdams has betrayed his role as a faculty member by pitting one set of students against another, by claiming the protection of academic freedom while trying to deny it to others, and by exploiting current political issues to promote his personal agenda.” Yet somehow the committee managed to unanimously (!) reject the idea that Dr. Turner should recuse herself. Despite this, the committee concluded that:

…the suspension of Dr. McAdams… with no faculty review and in the absence of any viable threat… was an abuse of the University’s discretion granted under the Faculty Statutes. The purpose of the suspension appears [to have been] to impose a summary sanction on Dr. McAdams to satisfy the demands of external and internal audiences. This is an improper use of the interim suspension power that violated Dr. McAdams’ right to due process under the Faculty Statutes.

That said, the committee recommended suspension, and the university appeared willing to accept that outcome, provided Dr. McAdams showed a little contrition. McAdams rejected that solution, however, and sued. So here we are.

There are no good guys here. The undergrad student illicitly recorded a conversation he had no right to record, and at least initially lied about doing so. Ms. Abbate did indeed use her status as instructor to stifle the free expression of ideas. Dr. McAdams unquestionably behaved unprofessionally by identifying a graduate student (even though she was functioning as an instructor at the time of the incident) by name in his blog, and his active dissemination of the essay to partisan websites was reckless. (This from the Don’t Shit Where You Eat files.) Dean Holz made some allegations he had precisely zero chance of proving in his letter to McAdams, and accuses McAdams of implying (!) things that aren’t true; worse, his assertion that McAdams should have consulted with a litany of university officials before publishing his blog piece really is an attempt to chill free speech and academic freedom.

Had Dr. Turner a modicum of ethical sensibility or indeed common sense, she would never have agreed to serve on the committee, and the other committee members should never have supported her refusal to recuse herself. The majority opinion of the Supreme Court, written by Justice Daniel Kelly, declares that “The undisputed facts show that the University breached its contract with Dr. McAdams when it suspended him for engaging in activity protected by the contract's guarantee of academic freedom.” “Undisputed”? Yeah, no.

Amid all this slop there is backstory: McAdams has been a thorn in the Marquette administration’s side for years, and had been admonished for numerous incidents in the past. In his own words, “There is a history here. I have in numerous instances before made trouble for Marquette by exposing things going on at the university.” But all this does is add to the list of offsetting arguments. Marquette claims, for example, “He has more than 3,000 blog posts over more than a decade and was never disciplined for any view he had on any subject. If he had written the exact same blog post and left the graduate student’s name and contact information out of it, he would not have been disciplined.” Of course, this could just easily have been the last straw, or the university may have been looking for a way to get rid of this cranky professor who was already past normal retirement age.

Significant support appeared on both sides: the American Association of University Professors (AAUP) and the Foundation for Individual Rights in Education (FIRE), for example, sided with Professor McAdams, whereas the Association of Jesuit Colleges and Universities favored the university. Ultimately, we’re looking at a series of “yes, but” arguments.

Professor McAdams was charged with causing harm to Ms. Abbate, although he made no threats, and indeed stopped short of suggesting any remedy for her “misconduct.” It is reasonable to suggest that he should have foreseen the potential for others to threaten her, but it’s also true that, short of incitement, he ought to have the right to express his own opinion; the actions of others are beyond his control. As Conor Friedersdorf of The Atlantic wrote three and a half years ago,

Holtz’s [sic.] decision to hold McAdams responsible for her harassment sets an alarming precedent: that faculty members will be held accountable not only for their words, but for any efforts to intimidate or harass those they publicly criticize. By this logic, a professor who criticized a college football player accused of rape, or a fraternity member who chanted “No means yes, yes means anal,” or a college Republican running an “affirmative-action bake sale” could be stripped of tenure based partly on whether that student got nasty emails. Only myopia can account for failure to see the threat to academic freedom.

Professor McAdams has freedom of speech rights guaranteed by the 1st Amendment and by the tenets of academic freedom implicit in the granting of tenure. These rights are not limitless, however. In Marquette’s case, tenure may be revoked in the case of “serious instances of ... dishonorable, irresponsible, or incompetent conduct.” So, does this case qualify? Frankly, it’s a close call. The conduct for which Ms. Abbate came under fire from Dr. McAdams was performed in her capacity as a course instructor. Still, she was also a graduate student, and the Dean’s desire that senior faculty should mentor rather than publicly condemn students is not misplaced. The nationwide effort to grant graduate teaching assistants employee status (for the purpose of collective bargaining, for example) may actually have worked against Ms. Abbate in this matter.

It is also true that, as a Catholic university, Marquette can reasonably expect its faculty to adhere to a stricter set of principles than a public institution could demand. In other words, were McAdams not tenured, it would be pretty clear that the university could fire him if they so desired. And the faculty committee’s unanimous recommendation ought to count for something. As Justice Ann Walsh Bradley wryly notes in her dissent, “Apparently, the majority thinks it is in a better position to address concerns of academic freedom than a group of tenured faculty members who live the doctrine every day.” Still, the majority’s claim that such a hearing board cannot substitute for the actual judicial system of the state also rings true.

Basically, it all boils down to this: John McAdams is, to coin a phrase, an asshole. But so is Curmie, at least from time to time, and he prefers not to be fired for that. And Curmie is a tenured professor who writes a blog the higher-ups might not always like, so there’s a little bias here, although too many of the arguments—at both the university and the judicial levels—seem couched in liberal/conservative terms, and Curmie certainly doesn’t share Professor McAdams’s politics.

Are the free speech rights of tenured academics absolute? Of course not, although the burden of proof to restrict those rights had better be pretty significant. Did McAdams behave unprofessionally? Absolutely. But did he behave sufficiently unprofessionally to have his tenure revoked? Tough call, but it’s the tough calls that matter. If, Gentle Reader, you look at Curmie’s earlier posts on this topic, you’ll see a full-throated endorsement of Dr. McAdams’s position. That resolve has dwindled a little over the last couple of years, but, ultimately, Curmie remains more of a civil libertarian than a liberal when it comes to the 1st Amendment. Free speech is messy. That’s rather the point. I’m going to endorse the Wisconsin Supreme Court decision.