The Pedestrian Ways of the Wisconsin Supreme Court

Curmie was tempted to call the recent decision by the Wisconsin Supreme Court in the case of Sojenhomer v. Egg Harbor a head-scratcher, but he fears that such an assessment might be a little too kind.

Sojenhomer LLC owns a brew pub/restaurant located along County Highway G in the village of Egg Harbor.  They used a small portion of that land, .009 acres, for patron parking.  The village, citing safety concerns, sought to put in a sidewalk where those parking spaces currently are.  To do so, they sought to condemn that small area under eminent domain regulations.

The problem with their plan is that Wisconsin state law bars the use of condemnation to acquire property to establish or extend “a pedestrian way….”  So the case boils down to whether or not a sidewalk is indeed “a pedestrian way.”  The majority opinion, written by Justice Rebecca Frank Dallet, says no, to which I reply, “then what the hell is it?”

Let me state my bias up front, Gentle Reader: for reasons associated with the Appalachian Trail being re-routed through my parents’ property half a century ago, I’m going to side with property owners against governmental interests unless there’s a compelling reason not to.  It’s also worth mentioning that members of the Wisconsin Supreme Court are elected to those positions, making them de facto politicians.  And politicians, even those who claim otherwise, are quite fond of the exercise of governmental power.  Okay, moving on…

A ”pedestrian way” is defined by Wisconsin law as “a walk designed for pedestrian travel.”  Well, that seems clear enough, and as there are no modifiers or exceptions to the definition, that means that any walkway so designed is indeed a “pedestrian way.”  That would include crosswalks, nature trails, pedestrian bridges, etc.  It would also, obviously (!), include sidewalks, which are indeed the first thing I’d think of when encountering the term. 

I’m no lawyer, and I’ll happily yield in matters of law and legal interpretation to any who read this (or you can read Jonathan Turley’s column on the case), but, as one of my grad school mentors once told me in another context, I know something and I can read.  Here’s my take, for better or for worse:

The majority, which overturned a lower court ruling in Sojenhomer’s favor, bases their decision on two factors: that sidewalks are considered part of the road and there could be no legal objection to widening the road, and that “sidewalks” and “pedestrian ways” are both listed in some laws as if they’re different, creating “surplusage.”  But a non-existent sidewalk doesn’t strike me as even possibly being part of an existing road, and redundancies, while annoying in their way, occur with grim regularity. 

Just last night Curmie saw an ad for some medication which cautioned potential patients to discontinue use of their product if symptoms did not improve or if the condition got worse.  Getting worse is clearly a subset of not getting better; sidewalks are just as clearly a subset of “pedestrian ways.”  The majority opinion strikes me as overly legalistic at best.  Yes, it would be nice if the law hadn’t been written by someone whose degree is from the University of Redundancy University, but the failure of some legislator to say “other pedestrian ways” should not infringe on Sojenhomer’s rights under the law. 

The similarities between the reasoning of this case and the recent SCOTUS decision on Garland v. Cargill are certainly noticeable.  Both concern themselves with definitions that aren’t necessarily what the average person would be thinking.  But there’s a legitimate difference of opinion in Garland: bump stocks do not convert a semi-automatic weapon into a “machine gun” according to the definition of a 90-year-old law, but they almost surely would have been banned by that legislation had Congresscritters of that day been able even to contemplate technology that wasn’t going to emerge for another 70 years or so.  I agree with the majority, but I see the minority’s point.

Here, finding a legitimate rationale for the village’s case is a struggle.  But one needn’t be a lawyer to understand and agree with the dissent of Justice Annette Kingsland Ziegler:

The plain language of the statute demonstrates that the term “pedestrian way” is broadly defined, and includes sidewalks.  A sidewalk—that portion of the highway created for the travel of persons on foot—is clearly a subset of pedestrian ways—walks set apart or assigned for the use of pedestrian travel.  It is a straightforward, common sense interpretation of the statutory language that a “walk designated for the use of pedestrian travel” necessarily includes that part of the highway “constructed for the use of pedestrians” and intended “for the use of persons on foot.”

It’s also important to understand what isn’t relevant here.  Are we talking about a tiny area, .009 acres, or a little under 400 square feet, enough room for perhaps three average-sized vehicles to park?  Yes, we are, and it doesn’t matter.  Should the law be revised?  Perhaps, and it doesn’t matter.  Is the village operating in good faith in citing safety concerns as their reason to want to add a sidewalk?  Almost certainly, and it doesn’t matter. 

This boils down to a single question: is a sidewalk a “pedestrian way”?  Yes.  Duh.  Next question.

Curmie is left with only two possibilities for the court’s decision: either the majority of the justices have a command of the English language not significantly greater than that of a turnip, or they really, really wanted to impose eminent domain, and would grab hold of any rationale, however flimsy, to make that happen.  I’m not sure which is worse.

Musings on "Representation"

Definitions, even of common words, play a major role in the politics and jurisprudence of the country.  Those of us old enough to remember the Clinton administration will recall the notorious quibbling over the word “is.”  Of particular interest of late is the fact that when a law offers a definition of a term, it is that definition that must be considered, irrespective of what is termed “common parlance.”  Thus, determining what is meant by “so” became an issue in Van Buren v. United States three years ago, and a 90-year-old statute’s definition of “machine gun” was the determining factor in the recent Garland v. Cargill case.

There are also, of course, many words that have multiple meanings.  In one of the first essays in this iteration of my blogging life, after Curmie moved over from LiveJournal (yes, I’m old), I wrote about the word “authority,” noting that it can refer to someone with expertise or someone with power.  A glance at virtually any university, corporation, or government agency will amply demonstrate that these two definitions are at least as likely to be in conflict as in accord.

Curmie has been thinking lately about another word (and its variations) that carries multiple, often contradictory, definitions: representation.  Generally, the term is presented in a positive light, as, for example, we hear of black or female children seeing cinematic superheroes (and -heroines) who resemble themselves.  Of course, this impulse can be carried too far, to re-write history or diverge from the character description of the original author, but the concept remains a new positive.

Along these lines, representation is also used to describe the manner in which a subject is communicated to the reader or viewer.  Consciously or unconsciously, media reports on virtually any topic will suggest that a particular perspective is accurate or true.  But no comprehensive picture can ever emerge.  We have neither the time nor the inclination to present or to receive all the details.  Inevitably, something that the receiver might consider important is omitted by the sender.  This could, but need not, be the product of malice or mendacity; it could be that the sender just didn’t regard that detail as essential.

Back in the 18^th century, one of the rallying cries of the nascent revolutionary movement in the American colonies was “no taxation without representation.”  The slogan suggested, with no little justification, that the people subject to laws, taxation, etc., ought to have a role in determining the policies under which they would live.

That said, Curmie’s Representative, i.e., Congresscritter, was for almost two decades Loony Louie Gohmert, one of the dimmest bulbs ever to flicker in the legislative firmament.  Was I represented by him?  Well, to the extent that, thanks in large part to Tom DeLay’s adept gerrymandering, Gohmert got voted into office in the congressional district I inhabit, yes.  But to suggest that he represents anything close to Curmie’s value system, social conscience, or political predilections is absurd.

Back when the Curmie Awards were a thing, the whole idea was to call attention to the worst representatives of the educational profession, not to demean educators in general, but indeed to suggest that the Curmie nominees were outliers whom I did not wish to represent me or the thousands of other teachers at all levels who are just trying to teach our respective students the course material in the most effective manner we can.

Similarly, especially as the 2024 election campaigning really ramps up (there has been little doubt this year who the presidential nominees would be, more’s the pity), Curmie notes an upswing of people outside a group deciding (worst case scenario at all times, of course) what people inside that group believe.  And here’s where the notion of representation kicks in.

Curmie, rightly or wrongly, prides himself on being an independent thinker.  His Political Compass score places him securely in the Libertarian Left, but he also notes that issues such as gun control or DEI make it difficult to earn both of those descriptors simultaneously. 

More to the point, Curmie has no desire to be represented by the likes of Jamaal Bowman, he of the fire alarm scandal, or Alexandria Ocasio-Cortez, who issued a screed on Son-of-Twitter condemning the audacity of a lifelong Democrat active in party politics for decades to challenge Bowman in a primary and… get this… successfully raise money to do so!  (Would it be impertinent to note that AOC got her congressional seat after defeating a 10-term Democratic Rep in a primary?)

But neither does self-described progressive Curmie want to spend all his time distancing himself from those at the fringe of his belief system, just as he suspects that his conservative friends would be quite happy not to be associated with Marjorie Taylor Greene or Lauren Boebert, and would cheerfully not have to keep distancing themselves from the wackadoodles.  But the fact is, those folks do in some sense represent us, because we actually do agree with them on some things.

Ultimately, of course, Curmie’s desire for representation is a function of his ideas, not of his membership in a particular class of people.  In today’s world, the perfect candidate is unlikely to be there, so we’ll just lower the expectations a little.  Show me that you’re not a sociopath, an idiot, or a pathological liar, and we can talk.  That doesn’t leave a lot of candidates on either side of the aisle, alas.

Book Reviews and the Warm Fuzzies

 

Curmie published his first book review in an academic journal in 1991.  In all, I’ve written about 30 reviews on a wide range of topics for about a dozen different publications.  In some cases, I was only marginally qualified in the subdiscipline in question.  In others, especially more recently, I’ve been a legitimate authority, as well as being a full Professor (or Professor emeritus) rather than a grad student or rather green Assistant Professor.

The process has changed significantly in recent years, the biggest change being the increased level of editorial scrutiny.  A generation or more ago, I’d send in a review and it would be printed as written.  That was back when I was an early-career scholar, even a graduate student, often writing about topics on the periphery of my interests and expertise.  My most recent reviews, when I was a senior scholar writing about subjects in my proverbial wheelhouse, went through three or four drafts before they were deemed publishable.  Note: I didn’t become more ignorant or a worse writer in the interim.

Some of the changes came indirectly, no doubt, from the publishers rather than the editors: I received the same stupid comment—to include the chapter number rather than a descriptor like “longest” or “most interesting”—from book review editors from two different journals published by the same firm.  Actually, one of those “corrections” wasn’t from the book review editor himself, but was a snarky comment from his grad assistant.  You can imagine how much Curmie appreciated being condescended to by a grad student.  Other changes were just kind of dumb: one editor insisted that I change “whereas” to “while” (“whereas” was the better term).

But these are the kind of revisions at which one just shakes one’s head and shrugs.  The ones that actually affect the argument are far more problematic.  One author was writing about the production of a play by a female playwright from the 1950s.  There’s no video footage (of course), and if literally anyone who saw that production is still alive, I think we could forgive them for not remembering many details.  But the author decried the (alleged) sexism of the male newspaper reviewers who weren’t impressed with the production.  Nothing they said, or at least nothing the author quoted, struck me as anything but a negative response to a poor performance. 

Remember, they’re not talking about the play as written, but as performed, so the fact that the text isn’t bad (Curmie has read it) doesn’t render the criticism of the acting and directing invalid.  I said that in what amounted to my first draft, but was told that I needed to say that the allegations of sexism could have been true (well, duh!), but weren’t necessarily.  In my view, declaring suspicions as fact, even if there’s some supporting evidence, might cut it as a blog piece, but it isn’t scholarship.  But whatever…

In another review Curmie suggested that the mere fact that male dramatists wrote plays with specific actresses—their “muses”—in mind for the leading roles doesn’t mean that those women should share authorship credit any more than Richard Burbage should get co-authorship credit for Shakespeare’s plays.  I was ultimately able to make that point, but in a watered-down version. 

More recently, Curmie was asked to “tone down” a comment that several of the authors in what purported to be an interdisciplinary collection of essays were so committed to discipline-specific jargon, incredibly complex sentences, and sesquipedalian articulations (see what I did there?) that readers, even those well-versed in the subject matter—me, for example—would find those chapters unreasonably difficult to read, and might be tempted to conclude that the authors were more interested in strutting their intellectuality than in enlightening the reader. 

I stand by the analysis, but the editor was probably right to ask me to temper the cynicism.  I did so, but I kept the rest in a slightly revised version.  She seemed pleased, and told me she’d sent it off to press.  When it appeared in print, only the comment about jargon remained… and the verb wasn’t changed from plural to singular.  Sigh.

Perhaps the most telling episode was when I said that a book was extremely poorly edited and proofread.  I’ve never written a book, but I have published several chapters in collections of scholarly essays.  The process varies a little from publisher to publisher, but for one recent chapter I sent a draft to the book editor, who made editorial suggestions and proofread, and sent it back to me.  I approved some of the changes he suggested and made my case for not changing other parts of the essay.  After about three drafts, we both pronounced ourselves satisfied, and the essay went off to the series editor, who requested a couple of very minor changes.  And then it went to the publisher.  And then the professional proofreader.  And then back to the publisher.  And then back to me.  At least five different people proofread that chapter, some of us several times.

It’s still almost inevitable that some typo will still sneak by.  Of course, some publishers will cheat and rely on spellcheck, sometimes without even checking the final product.  I once encountered a textbook that intended to reference the 19^th century playwrights Henri Becque and Eugène Brieux, but rendered their surnames as Bisque and Brie—a nice lunch, perhaps, but hardly important dramatists.

But this book, published by a prominent academic press, was ridiculous.  There were four and five typos on a single page, inconsistent formatting so it was impossible to tell when quoted material began and ended, at least two (that I caught) glaring malapropisms, and a number of instances of sentences or paragraphs so convoluted it was literally impossible to tell what was intended.  We’re not talking “teh” for “the” or accidentally omitting the “l” in “public,” here.

I was insistent on making the point that the book was not yet ready to be published.  A lot of the scholarship was really excellent, but the volume read like a first draft, neither edited nor proofread.  Finally, the book review editor had to get permission from the journal’s editor-in-chief (!) for me to go ahead with that commentary.

Certainly Curmie’s more conservative friends and colleagies will nod knowingly at the response to those comments critiquing lazy feminism, and they’d be right to do so.  But I’d suggest that these examples are only the tip of the metaphoric iceberg.  The other two episodes I cited can’t be attributed to concerns about feminism or any of the other -isms or phobias that seem to dominate much of public discourse.

Rather, they strike me as yet another example of the dumbing-down of scholarship, both that which is expected of students and that which is expected of professional academics.  The former is a subject for another day.  The latter, sloppy argumentation or lack of professional oversight by people who are supposed to be good at this stuff, might conceivably be attributed to nothing more than corporate pressure: if a publishing house sends out a (free) review copy of a book, they expect undiluted praise or they won’t send copies to that journal again.  Curmie may be skeptical of all things corporate, but this seems a bit over the top even for him.

Curmie was just asked to be an outside examiner for a faculty member at another college who is applying to be promoted to Professor.  One of the things the college asks is a statement about how COVID affected scholarship in my field.  There are a host of indirect influences: closed libraries, the time drain of teaching simultaneously in person and online, etc.  It’s easy to see how these factors might affect the quantity of a scholar’s output, but they don’t (or at least shouldn’t) have any affect on the quality.

Could the need for unmodified positives be grounded in fear of legal proceedings from the publisher or author?  That doesn’t work for me, either.  Or is this phenomenon just academe’s version of “why can’t we all get along?”  Certainly the idea of reasoned debate is fading from our everyday lives.  Those TV shows from a generation ago—The Capital Gang, The McLaughlin Group, Crossfire, etc.—that often offered well-articulated arguments from both the left and the right are gone and pretty much forgotten.  News media in general have devolved into partisan outlets that say little more, as Buffalo Springfield sang over half a century ago, than “hooray for our side.”

The quest for truth, in academia as in journalism (and, it goes without saying, in politics), has been supplanted by a different end goal: it’s not about being right, it’s about being heard, and ultimately about “winning,” however that might be defined.  Ideologues of all descriptions claim that they’re being non-partisan; I smile ruefully and repeat my mantra that “if you have to tell me, it ain’t so.”

After my most recent book review, I pretty well promised myself I’d never do another one.  If I change my mind about that, I’ll still write what I think, and I’ll still argue for the right to criticize as well as to praise.  My job is to evaluate the book, to point to both its strengths and its weaknesses so that prospective readers or purchasers can make a more informed decision about whether to read it or buy it.  If that makes me a “cold prickly” (apparently the preferred antonym for “warm fuzzy”), so be it.

This is a slightly edited but not fundamentally changed version of what first appeared as a “Curmie’s Conjectures” post on the Ethics Alarms page.

A Few Thoughts on Garland v. Cargill

The recent SCOTUS decision, along partisan lines, in Garland v. Cargill was both predictable and legally correct.  The ruling is based on the language of the 1934 National Firearms Act, which, in outlawing private ownership of machine guns, defined such a gun as “any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger.”

At issue was an initiative by the ATF to ban bump stocks in the aftermath of that asshole in Las Vegas killing 60 country music fans and wounding over 200 others in 2017 by employing the device.  Bump stocks don’t, technically, transform a semi-automatic weapon into a “machine gun” according to the specific definition of that law; they merely create fundamentally the same effect.  In other words, this case was a showdown between ontology and phenomenology or, less pretentiously, between literality and functionality.

It is not surprising that the trio of liberals on the Court argued for more restrictions on weaponry and the sextet of conservatives thought otherwise.  But it may be that those political perspectives weren’t really at the center of the justices’ respective votes.  Giving them the benefit of the doubt, we could reasonably argue that the majority simply looked at the definition of “machine gun” in the law, and the minority chose to rely on the way the term is used in common parlance.  (Both sides, of course, are slaves to semantics when it suits them, and to mind-reading when literality doesn’t achieve their desired goals.)

Bump stocks weren’t invented until the 2000s and therefore could not have been explicitly included in a law written nearly three generations earlier, but it’s reasonable to view the inclusion of bump stocks as a logical extension of that law’s intent.  Bump stocks do indeed create the effect of an automatic weapon, even though the way they achieve that end is not exactly what the 1934 law describes.  Justice Sotomayor’s dissent even invokes a familiar aphorism: “When I see a bird that walks like a duck, swims like a duck, and quacks like a duck, I call that bird a duck.”

Side note: it was almost exactly three years ago when Curmie wrote about a SCOTUS case in which the fact that a law specified a definition of a term thereby made the conventional meaning of a term irrelevant.  Part of that ruling was, “When a statute includes an explicit definition of a term, we must follow that definition, even if it varies from a term’s ordinary meaning.”  So, the majority is correct in legal terms… and that’s what matters.

Let me also say that headlines like the one used by the  Fox affiliate (!) in Spokane, “The gun technology used in the 2017 Las Vegas shooting was just okayed by the Supreme Court,” are technically accurate but clearly misleading, intended to titillate rather than inform.

SCOTUS didn’t say that bump stocks ought to be permissible; they determined, rather, that they were not banned by existing law, and therefore that ATF overstepped their authority.  Justice Alito makes this clear in his concurrence:

The horrible shooting spree in Las Vegas in 2017 did not change the statutory text or its meaning.  That event demonstrated that a semiautomatic rifle with a bump stock can have the same lethal effect as a machinegun, and it thus strengthened the case for amending §5845(b).  But an event that highlights the need to amend a law does not itself change the law’s meaning.

There is a simple remedy for the disparate treatment of bump stocks and machineguns.  Congress can amend the law—and perhaps would have done so already if ATF had stuck with its earlier interpretation.  Now that the situation is clear, Congress can act.

Curmie notes in particular two things about what isn’t said: first, most (not all) of the news coverage of the ruling omits the fact that the ATF that sought to ban bump stocks was part of the Trump administration.  Presumably, then, the Grand Wizard of the GOP approves of the ban, or at least did nothing to stop it under his regime.  The chances his minions would let a redefinition of “machine gun” make it to the floor of either house of Congress in this election year: zero.

More importantly, take a good look at what Alito says above, Gentle Reader.  He argues that ATF exceeded its authority by, in effect, attempting to enforce a law that doesn’t exist.  But he also suggests that Congress not only could, but “need to” amend the law to include bump stocks.  That’s about as close as a conservative jurist is ever going to come to endorsing anything in the same universe as gun control.

What’s really significant, though, is that nowhere in Justice Thomas’s rambling majority opinion (did he get his degree in the Department of Redundancy Department, or what?) or in Alito’s more succinct and cogent concurrence is there any indication that there would be anything constitutionally problematic about a law that did explicitly outlaw bump stocks. 

This relates to an argument that Curmie has made several times, most comprehensively and explicitly here, that we already have limitations on private ownership of certain kinds of weapons, including, for example, nuclear submarines, surface-to-air missiles… and automatic rifles. 

So we’re left with two points.  First, that not banning weapons systems that perform the same function as what were described as “machine guns” in 1934 makes no logical sense, and failure to do so can only be ascribed as capitulation to the gun lobby at the expense of the populace.  But we all know that, just as we all know that such legislation won’t happen until the GOP starts caring more about constituents than about their campaign contributors, or until the Dems have control of the White House, a clear majority in the House, and the ability to enforce cloture in the Senate.  Not in the foreseeable future, in other words.

Second, that adjusting an existing line that separates the legal from the illegal is a fundamentally different thing than creating a line that was hitherto non-existent.  In other words, discussions about also limiting or denying access to semi-automatic weapons are absolutely legitimate, and should not be derailed simply by a blinkered interpretation of what is and is not constitutional. 

What, other than adherence to a reading of the 2^nd amendment that casually ignores the phrase “well-regulated militia,” is the argument in favor of allowing these weapons to be available to the likes of Adam Lanza, Nikolas Cruz, or Stephen Paddock?  Somehow I suspect I’ll never be satisfied with the answer to that question.

Plessy v. Ferguson and Sports Organizations in the 2020s

If you’re like Curmie, Gentle Reader, one of the few Supreme Court decisions that was mentioned even in passing in your high school American History class was Plessy v. Ferguson.  Today, this decision, like the Dred Scott case four decades earlier (the only other 19^th century SCOTUS ruling the Curmie could name without thinking long and hard), is a reminder of this country’s racist past.  (Yeah, yeah, yeah, racism is still with us, but it sure as hell used to be worse.) 

Plessy affirmed the constitutionality of segregation, provided the facilities, opportunities, etc., were “separate but equal.”  It’s difficult to imagine that anyone actually believed in that “equal” bit in 1896 or at any time after that, but the ruling was allowed to stand for over a half century until finally, in Brown v. Topeka, SCOTUS bothered to notice that equality wasn’t within the same universe as life on the ground for black Americans.

Blacks didn’t have the same rights as whites.  That’s a simple statement of fact, whether we’re talking about employment, educational opportunities, housing, voting rights… even water fountains. “Separate but equal” was always a canard.

Frequent readers of this blog will know that Curmie’s mind works is, shall we say, “quirky.”  So it was that he thought of that Supreme Court case from over a century and a quarter ago when he read about the second of two bone-headed decisions by two different organizations controlling two different sports at two different levels.

Josh Gibson of the Homestead Grays

The more recent example was Major League Baseball’s absurd decision to include statistics from the Negro Leagues in their official records.  This catapulted Josh Gibson to the top of the lists in batting average, slugging average, and OPS (on-base percentage plus slugging average) over Ty Cobb in the first instance and Babe Ruth in the latter two.

MLB is living in the fantasy world of the Plessy decision, because in baseball, as in so many other areas, separate was definitely not equal.  The level of competition in the Negro Leagues was not comparable to that in the major leagues.  It just wasn’t.  That doesn’t mean that Gibson or Satchel Paige wouldn’t have prospered had they been allowed to play for the Yankees or the Cubs or whoever, but the fact is that they didn’t play major league ball.

But even if we buy into the fiction that the leagues were comparable, there’s another problem, not even counting the fact that individual Negro League seasons were much shorter than major league seasons; it’s a lot easier to hit for a high average for 91 games (the longest Negro League season) than for a major league season of 154 or 162 games. 

No, Gentle Reader, it’s worse than that.  Even according to the people who did the search that led to the merging of records, the available statistics cover only about 75% of Negro League games.  That means that all of those alleged statistics have next to literally no validity.  Indeed, it’s a virtual impossibility that they’re accurate.  Perhaps those players did even better than the averages we have for them, but it’s more likely that they didn’t: statistics tend to trend toward the middle over time.

Curiously, no seems to be able to say, at this point at least, that Gibson hit x-number of home runs (over 1000, perhaps?) but we know his slugging percentage (!?!).  In other words, folks like John Labombarda of Elias Sports Bureau don’t know how many at bats he had, or how many total bases, but we can somehow accurately intuit the ratio between those arbitrary fanciful utterly fictitious numbers.  Curmie is no statistician, but he does know how numbers work, and, as the Old Vermonter in the joke would say, you cain’t get there from heah.

Nor is it a valid argument to talk about statistical anomalies accruing from changes in the game: live ball vs. dead ball, height of the pitcher’s mound, ballpark configurations, the introduction of artificial turf, etc.  Cy Young really had all those wins, and Nolan Ryan had all those strikeouts… in major leagues games.  Negro League players could have racked up those statistics had they been allowed to play, but they didn’t.  Ted Williams doesn’t get credit for the homers he would have hit had he not served in the military in both World War II and Korea, either.

It is an admirable impulse to want to honor the Buck O’Neills and the Cool Papa Bells of baseball yore.  They are, of course, in the Hall of Fame, but some additional recognition wouldn’t come amiss.  Put their stats on the website, but don’t intermingle them with those of Ty Cobb or Babe Ruth… or of Jackie Robinson and Willie Mays, for that matter.  It does no one any good to pretend that segregation didn’t exist.  (Curmie would make a 1984 reference here, but he used that allusion last time.)

But this episode also got me thinking about a different decision by a different collection of idiots regarding a different sport at a different level. And here’s one where the fanciful world of “separate but equal” really is true.  Indeed, the two allegedly different worlds were separate but identical in every significant way. 

If you paid attention to the hype in early February, you’d have thought that Iowa’s Caitlin Clark was about to become the all-time scoring leader in the history of women’s college basketball as she closed in on the numbers compiled by Washington’s Kelsey Plum. Thing was, that record belonged (and still does) to Pearl Moore, who scored over 4000 points between stints at Anderson Junior College and Francis Marion College. (Clark ultimately finished with 3951 points, more than Moore scored at the senior college level, and there really is a difference in the level of the competition the two women faced.)

Lynette Woodard of the Kansas Jayhawks

In terms of Division I women’s basketball, the career points leader at the time was Lynette Woodard, who totaled 3649 points to Plum’s 3527. Woodard played at Kansas a decade and a half or so before I started grad school there. Needless to say, there were a lot of Jayhawk fans incensed about the NCAA’s snub of Woodard. You see, she played when the governing body of women’s intercollegiate sports was the Association for Intercollegiate Athletics for Women; the NCAA at the time had no interest in women’s sports. 

Woodard played for a major university, played the same kind of schedule against the same level of competition, played according to the same rules (well, except that the 3-point line was introduced roughly concurrently with the NCAA’s takeover, so Woodard didn’t profit from it). But the NCAA seems to believe that they invented women’s college basketball, and most of the major media outlets cheerfully let them get away with it. Woodard’s name doesn’t appear, even as a footnote, on a number of lists of “Top 25 Women’s Division 1 scoring leaders.”

In this case, the competition didn’t change at all, but NCAA arrogance denied Woodard her deserved recognition. This isn’t Caitlin Clark’s fault, or Kelsey Plum’s, but the significant event should have been when Clark passed Woodard in late February, not Plum a couple weeks earlier. Clark has done wonders for fan interest in the game, and she seems to be a genuinely good person, something of a rarity among elite athletes. Nothing in my remarks is intended to take anything away from her accomplishments.

Oh, yeah, the racial element. Something of the reverse of MLB. Moore and Woodard are black, Clark and Plum are white. So all the headlines were about one white athlete passing another, when, depending on your perspective, at least one and possibly two black athletes had put up better numbers. Racism? Woodard thinks so, and whereas I’m disinclined to argue with her, I return to one of my mantras: all racism is stupid, but not all stupidity is racist.

In fact, Curmie suspects a situation akin to one I wrote about several years ago, in which I argued that the shooting of a young white woman by a black man was, contrary to the media hype, about male privilege more than race.  Looked at in this light, the similarities between this spring’s actions of the NCAA and Major League Baseball become clearer.

It’s easy to view the respective decisions as opposites: one organization decided to include statistics compiled outside their purview, and the other did not.  Of course, they both got it wrong: the stats that were legitimately separate but equal were treated as if they weren’t, and the ones that compared apples to oranges were viewed as interchangeable.

What unites the two decisions is a frantic if futile attempt to deny the past.  Black baseball players couldn’t play in the major leagues until after the Second World War, but that embarrasses MLB, so they’ll just pretend otherwise.  The NCAA had no interest in women’s sports until the 1980s, but that sorta makes them look sexist, so they’ll just pretend that anything before then didn’t happen. 

Curmie is no right-winger, but he agrees with conservative pundit Jim Pinkerton that “the truth yearns to be free.”  Denying reality, even indirectly, is never a good idea.  Getting MLB or the NCAA to understand that, however, is about likely as likely as putting the toothpaste back in the tube.