Curmie Enlists in the MCAB Squad

Curmie isn’t a member of the ACAB (All Cops Are Bastards) brigade, although the vast majority of his experience with law enforcement at any level has shown these alleged defenders of the citizenry to be insufferable, self-important, assholes.  But not all… well, not quite all.  There was that one guy in 1981.  Oh, wait, that one in 2014, too.  I guess only Most Cops Are Bastards.  So sign Curmie up for the MCAB squad. 

The general topic of police (or other agencies acting as police) misbehavior has been on my mind in fits and starts of late.  To pick only a few:

• There have been multiple incidents on Curmie’s campus of the University Police Department doing outrageous things; no repercussions, of course.   
• There was the anniversary of the shootings at Kent State, already significant in Curmie’s life and made more so by his attendance at an NEH-funded institute on that campus a few years ago.  
• There was the Derek Chauvin trial: whether or not what he did was murder, whether or not it resulted from racism, it was certainly a cop more interested in being “in charge” than in doing the right thing.  
•  In the BLM-related protests that followed George Floyd’s death, much of the violence was actually instigated by law enforcement.  
• In Curmie’s Irish Theatre and Culture course, we’ve had recent discussions of two “Bloody Sunday” incidents in Ireland: one in Dublin in 1913 during the most significant labor dispute in that city’s history, the other in Derry in 1972, in which 13 people were killed and the incident immediately covered up by the authorities.  I was going to say the truth finally came out some 38 years after the event, but that’s not quite true.  Everyone already knew the truth; the truth was officially confirmed in 2010.

So now we come to another incident.  No one died, thankfully.  But the entitlement of the officer involved and the eagerness of his superiors to defend him, even outright lie for him, is staggering.  Alas, it is not, however, at all surprising.  It’s precisely what has happened time and again in this country and indeed around the world.  A cop does something demonstrably stupid, demonstrably illegal, demonstrably evil, and his superiors scurry to cover it up, blatantly lie for him, and hope it will all go away.

Trooper Dunn’s handiwork: Curmie bets his mama is proud.

On July 9 of last year, Nicole Harper was allegedly speeding (84 in a 70) on US Highway 67/167 in Arkansas.  State Police Senior Corporal Rodney Dunn broke out the lights and siren to have her pull over.  It’s significant that this isn’t some rookie; the guy’s been around a while; he knows better… or at least he should.

Ms. Harper then did precisely what she was supposed to do, according to the Arkansas Driver License Study Guide: “Pull  over  to  the  right  side  of  the  road-- activate  your  turn  signal  or  emergency flashers to indicate to the officer that you are seeking a safe place to stop.”  She pulls over to the right lane, slows down to about 60 mph, and looks for a safe place to pull over… but the shoulder is too narrow, so she continues down the highway, planning to pull over at the next exit, about a mile away.

This isn’t satisfactory in the testosterone-poisoned universe of Trooper Dunn, however.  He proceeds to implement what is euphemistically termed a “precision immobilization technique,” or PIT.  This is a manoeuvre whereby a cop intentionally rams another vehicle, causing it to go out of control.  This technique has caused literally dozens of deaths in the past five years; in one case an infant was thrown from an SUV.  Most police forces have sense enough not to try to endanger someone’s life for speeding.  The Arkansas State Police apparently do not rise to this level of understanding, which, after all, would require intelligence exceeding that of a kumquat.

According to Rick Giovengo, a former law enforcement officer who taught the appropriate use of PITs at the Federal Law Enforcement Training Centers, “The speed, the people in the car, the crime that’s been committed, those are things that all have to be taken into consideration by the responding officer before they do the pit.”  Let’s see… The speed: slowing down.  The people in the car: It was dark, so Dunn had no idea; could’ve been kids, could have been Harper’s grandmother.  The crime that’s been committed: Speeding.  Seriously?  The “tak[ing] into consideration”: never happened.

Predictably, Harper’s vehicle went out of control and flipped.  Ms. Harper was seriously injured, but she was more concerned about her unborn child (who, by virtue of luck alone, is now several months old and apparently devoid of ill effects from the incident).  Dunn insists that she should have pulled over immediately.  Harper said, correctly, that it didn’t appear to be safe to do so, and that she thought she was doing the right thing.  Had she, in fact, pulled onto the narrow shoulder, she would have been endangering Dunn’s life, not so much her own.

She was 100% correct, of course.  How do we know?  Because that what the Asshole Dunn’s dashcam shows!

Police spokesperson Col. Bill Bryant responded, sort of.  He wouldn’t address the specific incident at hand, but rather issued a generic statement, which included this:

Over the past five years, Arkansas State Troopers have documented a 52 percent increase in incidents of drivers making a conscious choice to ignore traffic stops initiated by the troopers.  Instead of stopping, the drivers try to flee....  The fleeing drivers pull away at a high rate of speed, wildly driving, dangerously passing other vehicles, showing no regard for the safety of other motorists, creating an imminent threat to the public.

Hey, wait a minute, Colonel.  I know you want to lie to get your guy out of trouble, but does your disregard for truth have to be quite so obvious?  In this case, it’s clear to anyone who can out-think a dead ‘possum that Ms. Harper was not trying to flee.  If she were, she’d have speeded up instead of slowing down.  (Is Curmie the only one who remembers the famous O.J. Simpson low-speed chase?  And that was for a murder suspect, not someone going a little over the speed limit.)  Ms. Harper was specifically not “pull[ing] away at a high rate of speed.”  As “for showing no regard for the safety of other motorists, creating an imminent threat to the public,” that was your guy, the one who intentionally put another person at risk of life and limb.

Oh, but the prevaricating prat Bryant isn’t done.  In a classic example of inserting a comment into a “no comment” response, he intones (well, it’s a written statement, since he’s too chickenshit to actually have to answer questions, so he didn’t literally intone), “In every case a state trooper has used a PIT maneuver, the fleeing driver could have chosen to end the pursuit by doing what all law-abiding citizens do every day when a police officer turns on the blue lights – they pull over and stop.” 

Bullshit.  We know this statement to be untrue, because we’ve now seen the video.  Ms. Harper did things precisely by the book.  And if you’re willing to tell a bald-faced lie about this one incident, you’re willing to do so any other time one of your guys gets caught doing something outrageous.

The only good new here is that a photo of Dunn on the ASP’s Facebook page has been pretty well savaged.  Curmie doesn’t normally endorse this kind of behavior.  Dunn and the ASP deserve it, though.

In a just universe, Dunn would be fired without pension and arrested for assault with a deadly weapon, reckless endangerment, and assholitude in the first degree.  Bryant would also be fired without pension, and with the proviso that he could never work in law enforcement again.  Harper would be awarded pots of money: enough that the people of Arkansas would rise up against the legislators whose Old West sensibilities and machismo machinations in not outlawing this dangerous manoeuvre (except, perhaps, if the driver is suspected of a violent felony as opposed to driving a little too fast) allowed this to happen.

Does this look like a just universe to you, Gentle Reader?

On Disagreeing, Then Agreeing, Then Disagreeing with SCOTUS

Curmie first read about Van Buren v. United States from the NPR article by Nina Totenberg, with the headline, “Officer Who Sold Police Computer Data Gets A Pass From The Supreme Court.” (I’m hoping Totenberg didn’t write that misleading and ill-constructed headline.) 

Generally, Curmie reads one article about a SCOTUS decision, nods, and moves on. Occasionally, there’s a topic I really care about, and once in a while one of the Justices says something intriguing and I want to know the context. The reason I wanted to know more about this case, though, wasn’t any of these, or indeed the clickbait headline (NPR should be better than that). Rather, based on the article, Curmie found himself agreeing with the dissent (no surprise there)… and therefore agreeing with Clarence Thomas and disagreeing with the three liberals. That is a surprise.  This phenomenon required investigation! 

The facts of the case are not in dispute. The police force in Cumming, GA, was warned to treat a certain Andrew Albo with suspicion. Then-Sergeant Nathan Van Buren ignored this advice and struck up a friendship with Albo; after some time he asked Albo for a loan. Unbeknownst to him, Albo recorded that conversation and claimed Van Buren was trying to “shake him down.” 

The FBI got involved, and set up a sort of a sting operation. Albo said he’d pay $5000 to Van Buren to find out if a woman he’d met at a strip club was actually an undercover cop. He provided a (false) license plate number, which Van Buren checked out, accessing the information through the computer in his squad car. The FBI then closed in, and Van Buren was arrested and subsequently convicted of violating the 1986 Computer Fraud and Abuse Act. Of course, Van Buren was also fired from the police force. 

Ah, but he appealed the conviction, claiming that the law applies only to hackers who have no legitimate right to the information on a computer, not to people like him who had legal access but abused that right for personal gain. It is an argument only a lawyer, and a rather slimy one, could love. And it worked, as SCOTUS vacated his conviction on a 6-3 vote. 

Totenberg points out that “much of the high court debate on the question turned on the meaning of the word ‘so.’ To say more than that would be a waste of the reader’s time.” That’s cute, and Curmie sees what she means, but when policy is determined by an interpretation of a single two-letter word (remember “is”?), it’s not really a waste of anyone’s time, albeit that the topic seems rather arcane. 

The full context of that problematic monosyllable is this: that, according to the CFAA, the term “exceeds authorized access” means “to access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter” (emphasis added). 

So (see what I did there?), when I started reading the decision, I expected to find myself rejecting the majority’s opinion. I didn’t. In fact, the argument about “so” appeals to Curmie’s inner Grammar Nazi. The law shouldn’t be written to allow scumbags like Van Buren to slither through unscathed, but it just might be. Without “so,” he’s got no case. With it, though, the majority can reject the common, logical (“common parlance” in legalese) definition of “exceeds authorized access” because, by precedent, “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.” 

That is, if the law didn’t define “exceeds authorized access,” since everybody knows what that means, Van Buren would be cooked. But since it does, we can now quibble over “so,” meaning, presumably “in the described manner.” Van Buren did, according to the majority’s reading, have authorized access according to the narrow definition of the statute, it was his purpose that was illegitimate. 

The majority even suggests that the Government’s reading of the law would make criminals of virtually everyone, since we are technically not allowed to use the work computer for anything but work. Thus, checking the news, scrolling through Facebook (or Curmie’s blog) during a break, sending a personal e-mail: all of these would be rendered illegal. 

So (I did it again, see?) I was persuaded. And then I read the dissent, which concentrates on the word “entitled,” centering on the idea that such entitlement is defined circumstantially. If a valet takes access to a car to park it, he is entitled to do so; if he takes it for a joy ride, he is not. This, too, is a persuasive argument, and one Curmie understands. 

For many years, one of Curmie’s departmental service functions was to determine students’ eligibility for production work. Our standards were rather complicated, so the process began with having the administrative assistant running a computer-generated report. Students whose names were not on the list were automatically eligible, but there were a variety of reasons why someone whose name did appear would still be eligible. 

All of this means I had to examine the transcripts of a number of students. Sometimes, because I mistyped, or because there are two students with the same name, I opened the file of a student whose transcript I had no legitimate right to see. Would such a mistake, corrected within seconds, subject me to criminal liability if the government had its way? I doubt that anyone would go that far, but technically… maybe, as there does not appear to be anything in the CFAA about intent.  But certainly I have no right to scroll through student records just for the fun of it.

But if we’re to believe the Van Buren team, as long as I have legitimate access to the system, I can use it however I want without breaking the law? I read about a case (can’t remember enough details even to look it up) in which the ex-husband’s new girlfriend looked up the transcript of the ex-wife to use as leverage in a custody dispute. Seriously, this doesn’t break some kind of law? 

Here’s where Curmie repeats that he’s not a lawyer, and that he understands that what is legal and what is ethical are not identical concepts. The law is unquestionably poorly written, and as I tell students all the time, I can only judge what you say, not the best-case scenario of what I think you might have meant to say. Similarly, it’s SCOTUS’s job to determine what a law says; only in cases of extreme ambiguity should they be deciding legislative intent. 

If nothing else, Curmie is actually encouraged by the fact that whichever side of this argument we ultimately support, it pretty easy to see why the other side disagrees. Even Justice Clarence Thomas’s supporters will grant that his lines of thought are sometimes, shall we say, eccentric, and Curmie has thought of him as an intellectual lightweight since his confirmation hearings (leaving aside the whole Anita Hill controversy). But his dissent is well-reasoned and compelling, even if we end up deciding in the other direction. We can hope for little more from SCOTUS.

Another Set of Short Takes

1). From Canton, Ohio, the city which houses the Pro Football Hall of Fame, comes this football-related story: McKinley High School head football coach Marcus Wattley and six of his assistant coaches were fired recently for forcing a player to eat pork against his religious beliefs. 

Former Coach Marcus Wattley

On the face of it, this is the only possible outcome of an action that is stunning in its arrogance, cruelty, and prejudice. The player, who has not been named (although his father has been, so it’s not like it’s a secret), is a member of the Hebrew Israeli religious faith, and as such is strictly forbidden from eating pork, pork residue, or apparently even pork substitutes. The boy’s attorney argues that the coaching staff should have known that prior to the events in question, since the player had been present at previous player meals. 

What happened, according to the boy and his representatives, is that he was being punished for missing a voluntary strength and conditioning session. He was ordered in sit in the center of the gym and consume an entire pepperoni pizza; if he didn’t, his teammates would be required to do additional drills and he was threatened with the possibility that he couldn’t stay on the team. 

The school and district ran a “nearly weeklong investigation” into the allegations, including viewing surveillance videos before taking action. The account of precisely what happened is disputed by George Pattakos, Wattley’s attorney, and by five players who supported the coach at the board meeting which led to Wattley’s dismissal. They claim that the player was offered chicken nuggets instead of the pizza, but that he chose to pick off the pepperoni and eat the rest of the pizza. Of course, this would have left the “pork residue” mentioned above. 

They claim, further, that an assistant coach who wanted Wattley’s job had circulated an exaggerated and deceptive description of the events to school officials and the player’s family. Pattakos also accused the board of a “rushed” decision, and claimed the coach “was doing his best to teach an extraordinary athlete an important lesson.” 

Curmie doesn’t know what happened. He doubts Wattley’s description of the events but grants that there might be some validity to it. But should Wattley and his minions have been fired? Absolutely. Even assuming other options were offered, we still have a player subjected to the emotional distress of choosing between being humiliated in front of his teammates or risk being ostracized by them. It’s an old tactic employed by authoritarian jackasses to remind everyone that they’re in charge. As Curmie is wont to say, “if you have to tell me, it ain’t so.” 

But the real problem in Curmie’s mind is in a word that may have slipped past you at first read, Gentle Reader: voluntary. The boy was being punished for skipping a voluntary session. OK, we all know that these allegedly voluntary practices are in fact just as required as the mandatory ones; they’re only called voluntary so the football coach can dominate players’ time throughout the summer and still technically not violate the rules of the school or the athletic conference. 

It’s an absolute scam, and everybody knows it, but no one is willing to say anything because… football. But, and as they say in burlesque it’s a big but, the unwritten rule is that the only punishment a coach can levy against someone who skips one of these sessions is benching him—because who plays and who doesn’t is within the legitimate purview of the coach, even of an unethical one. Wattley overstepped even that line. He’s gone, and should be. 

2). Those of us whose Congresscritter is Loony Louie Gohmert have known this for a long time, but the wider world is now learning that he truly is dumber than dirt. His recent (I was going to say “most recent,” but his stupidity is prolific, and he’s probably moved on, already) escapade was asking a representative of the Department of Agriculture if, and I quote, “there [is] anything that the National Forest Service or BLM can do to change the course of the moon’s orbit or the Earth’s orbit around the sun?” in order to curb climate change. It’s probably worth mentioning that BLM here is the Bureau of Land Management, not the other BLM. 

When Curmie first read this, he thought this had to be Andy Borowitz or the Onion. Nope: there’s video. Of course, this plays to liberal opinion of Gohmert, and we need to be cautious of going too far down that path. And to be fair, there’s a follow-up that suggests that Gohmert might, might have been joking. He reacts to a befuddled response to his earlier question with “Yeah, well, if you figure out a way that you in the Forest Service can make that change, I’d like to know.” 

If Gohmert’s question was sarcasm, then we have discovered the best dead-pan artist since Buster Keaton. But we also have something a little more problematic than simply a single moronic Congresscritter, as it would suggest a strategy to identify all attempts at mitigating climate change are either useless or illusory. Certainly a little conservation, the use of solar or other “green” energies, tax incentives associated with purchasing fuel-efficient vehicles (or disincentives to buy gas-guzzlers), restrictions on air pollutants: all these are to be abandoned. I think I’d rather go with “stupid.” 

3. One of Curmie’s Facebook friends posted a meme recently that suggests it’s an “American History Quiz.” There’s a series of questions with two possible answers: “A. Black lives” and “B. All lives.” Among the questions: “Brought to America on chains at the bottom of ships,” “Counted as 3/5 human in America,” etc. You get the idea. 

Curmiphiles who’ve been following this blog or the Facebook page for any length of time know that one thing that really annoys me is when an otherwise useful point is undercut by intellectual sloppiness or laziness. Let’s leave aside the more complex arguments and look specifically at one of those question prompts: “Enslaved in America for over 400 years.” Um… none of the above is the correct answer. 

Exactly when the first slaves in the New World arrived is unclear, but the earliest date I’ve seen is 1526, although a revolt ended that colony in a matter of months. Other historians would argue that slavery probably followed soon after the first permanent white settlement in 1565. (The 1619 project chooses their eponymous date because it was the first date of slaves in Virginia. Don’t ask me why.) The Emancipation Proclamation was 1863; the end of the Civil War was 1865. 

So… choosing the earliest date for slavery starting and the latest date for slavery ending, and we get (wait for it) 339 years. On Curmie’s planet, 339 is less than 400. You want to say “over 300 years,” fine. “Suffered prejudice,” yep. “Enslaved for over 400 years,” no. And an objective error of that magnitude renders the rest of the argument, which is valid, less persuasive. 

4. <Mumblemumble> years ago, when Curmie was a graduate student at the University of Birmingham in England, he did his banking at the local branch of Lloyd’s Bank. The choice was, to be honest, one of convenience rather than considered choice, as it was located en route between my bed-sit and the university. 

Nadia Begum and Clifford Weedon 

If he could go back in time, he might make a different choice, as the bank fired a branch manager because she helped an elderly, visually impaired customer, open his mail. Yes, Gentle Reader, you read that correctly. She assisted a customer, and the banking conglomerate sacked her for her efforts. 

Surely there’s more to this than that, right? If so, Curmie can’t find it or imagine it. Nadia Begum developed a friendship with Clifford Weedon and helped him out. But that, apparently, is against the rules, which, to be sure, descended from the mountaintop, elbowing Moses and the 10 Commandments out of the way. 

Even in the torrent of negative press Lloyd’s suffered when the BBC told the story, they continued to sniff that “we have a colleague code of responsibility in place to safeguard both our colleagues and customers…. In this instance our standards were not met.” Curmie doesn’t know which they need more: a brain or a box of laxative. 

The good news is that Ms. Begum was headhunted by Octopus Energy, whose CEO specifically wanted “Nadia’s warmth and humanity.” The other good news is that Curmie will never again have to deal with Lloyd’s Bank. 

5. Curmie isn’t sure how this case made it as far as federal court, but at least the 3rd Circuit Court of Appeals got it right. Seven years ago, Emma Semler and her friend Jenny Werstler shot up heroin in the bathroom of a West Philadelphia KFC. Werstler, who was celebrating (if that’s the word) her 20th birthday, wanted a second shot, whereupon she overdosed, and died. Semler had fled the scene, leaving her friend to her fate instead of calling for help, so she’s no angel. 

But prosecutors decided that because Semler physically passed Werstler the drugs, she was guilty of “distribution,” which carries a minimum 20-year sentence. Five years after the event, she was convicted of that presumed offense. OK, anyone with an IQ over room temperature knows that law was intended to go after dealers and pushers, not addicts. 

But some crusading DA or ADA wanted to make a name for him/herself, and so the case found its way to the appeals court, which found, quite reasonably, in the words of Judge Jane Richards Roth:

The government would have us believe that if two drug addicts jointly and simultaneously purchase methamphetamine and return home to smoke it together, a ‘distribution’ has occurred each time the addicts pass the pipe back and forth to each other. Such an interpretation diverts punishment from traffickers to addicts, who contribute to the drug trade only as end users and who already suffer disproportionally from its dangerous effects.

Semler, who seems to have cleaned herself up after the death of her friend, was certainly a contributor to Werstler’s demise, but she was hardly a “distributor.” 

Whoever brought these charges and the judge who allowed the case to go forward and even prescribed a harsher sentence than the one required by law for distribution should be fired, disbarred, and probably arrested; every juror who went along with this charade needs to be wupped up ‘side the head with a 2x4. 

6. As it happens, Curmie has a Comment of the Day on Ethics Alarms, this one on the hype surrounding the casting of black actress Jodie Turner-Smith as Anne Boleyn in a new TV mini-series currently airing on the UK’s Channel 5. You can see Jack Marshall’s original post on the subject here.

Two Young Women...

This week was marked by a number of stories of more significance, but Curmie is drawn to the tales of two young women, one 23, the other 18, taking a stand. Under normal circumstances, that would be an inherently good thing. But this time… well, Curmie isn’t so sure. In both cases, there is no little ethical ambiguity, but Curmie finds himself agreeing with The Man. Let’s take them in order…and in the order I’m more confident of my response. 

 

On May 26 (OK, that’s over a week ago, but Curmie didn’t read about it until Tuesday), women’s tennis star Naomi Osaka announced on Twitter that she would not speak to the press after matches at the French Open. Such “media conferences” are specifically required of athletes competing in Grand Slam tournaments:

Unless injured and physically unable to appear, a player or team must attend the post-match media conference(s) organised immediately or within thirty (30) minutes after the conclusion of each match, including walkovers, whether the player or team was the winner or loser, unless such time is extended or otherwise modified by the Referee for good cause. In addition, all Main Draw players must participate, if requested, in a pre-event press conference to be arranged during the two days before the start of the Main Draw. All media obligations include, but are not limited to, interviews with the host and player’s national broadcaster. Violation of this Section shall subject a player to a fine up to $20,000.

That’s pretty clear. Ms. Osaka concludes her announcement by declaring,

…if the organizations think that they can just keep saying, “do press or you’re gonna be fined”, and continue to ignore the mental health of the athletes that are the centerpiece of their cooperation then I just gotta laugh. Anyways, I hope the considerable amount that I get fined for this will go towards a mental health charity.

As might be expected, this caused no little turmoil in the world of professional tennis, and indeed in the world at large. The list of athletes and celebrities weighing in on the issue is lengthy, including the Williams sisters, the McEnroe brothers, Stephen Curry, Michael Phelps, and a host of B-list actors. Most of them recite the obligatory mantra that Ms. Osaka needs to prioritize her mental health, that she’s sooooooo brave, and that the tennis federation shouldn’t enforce their own rules. (Mats Wilander’s take that she should “reconsider or don’t play” was something of a voice crying in the wilderness, although she did, with yet more self-promotion, drop out of the tournament.)

Look, mental health is, indeed, important. Answering the same stupid questions—and there are few of a different description—from reporters must be annoying in the extreme, and if you happen to be introverted or anxious in these situations, it can be stressful. But Curmie would make a few points: 

1. These interviews are part of the job. You get the benefits that accrue to the sport in general because of that press coverage (things like prize money and fame, for example). Equally importantly, especially if, like Ms. Osaka, you make literally tens of millions of dollars a year from endorsements, part of your job is to sit there on camera sporting your Nike jacket or whatever and act like a human being. (The fact that most if not all of Osaka’s sponsors are rushing to her defense means only that they think they’ll profit more from this action than by holding a star to the terms of her contract. They’re probably right.) 

2. Every f*cking job in the world is stressful. Naomi Osaka netted over $55,000,000 last year, counting prize money and endorsements. Invest that money at 6% (6% over inflation is regarded as the standard long-term return on a well-managed portfolio), without ever doing another thing that makes money, and she’ll make more money every year in perpetuity than Curmie, a PhD and full professor at an accredited university, will make for his entire career. I have job-related stresses, too. So does the 16-year-old girl working the counter at McDonald’s. So do you, Gentle Reader, even if your job is stay-at-home parent. Yet we’re all still expected to fulfill all of the duties we’re contracted or otherwise obligated to do. Osaka is acting like an entitled brat: lessons learned, no doubt, from the aforementioned tennis-playing siblings of both genders. 

3. In a fit of hypocrisy that would make even a politician blush, Osaka granted an on-court interview after the one match she did play, and also spoke to Wowow, described by the New York Post’s Phil Mushnick as “a Japanese broadcaster that pays her for her time, access and words. Hmmm.” 

4. Curmie really doesn’t like humble-bragging. Wow, how munificent of you, Naomi, to risk paying a “considerable” fine amounting to 0.0027% of your annual income. Other players probably get stressed out at those media conferences, too, but they can’t afford the fine, so they soldier on. Then dropping out of the event altogether because you “didn’t want to be a distraction.” This is either world-class disingenuousness or you are truly dumber than dirt. You had to have known—or at the very least your media consultant had to have known—that this would be a huge distraction. You’ve never won a clay-court championship, and you’ve never made it to the quarter-finals at Roland Garros, but now you’re the top story of the tournament, hailed for your “bravery.” Ironic, huh? 

Let’s be fair: few athletes in team sports, especially from the losing side, are required to do post-game interviews. And of course most major team sports have active players’ unions to take up just this type of cause. So team-sport athletes are already given some cover; others are allowed to be prickly—football fans may remember that presser with Marshawn Lynch in which every question was answered with a variation on “I’m only here so I won’t get fined.” 

That said, in the same way Democrats want to eliminate the Electoral College and Republicans want to eliminate mail-in ballots, the time to make changes is now for the future. Perhaps changes would improve the game. But Donald Trump won and then lost the Presidency according to the rules in place, and Naomi Osaka was rightly fined and admonished. 

The other young woman to talk about is Paxton Smith, who completed her studies at Lake Highlands High School in Dallas with a 104.93 average. (Grade inflation? What grade inflation?) She’s certainly now the most famous valedictorian in the state of Texas… well, at least the most famous for being a valedictorian (just in case there’s a sought-after basketball or football player who also happens to be a good student). Why? Because she didn’t give the speech that had been approved by the powers-that-be, but instead pulled a different speech out of her bra. Yes, really. 

And this isn’t like the case Curmie wrote about nine years ago, in which a valedictorian in Oklahoma substituted “hell” for the pre-approved “heck” in her speech. This wasn’t about a single word; this was a completely different topic. What had been approved was a speech about the way media shape our perceptions. What was delivered was an excoriation of Texas’s newly signed “fetal heartbeat law.” 

OK, let’s stipulate three things: 

1. Curmie has long despised the idea that schools think they have the right to censor student speech. I wrote in 2012 about the “troubling… implicit assumption that it’s any of the school’s business to censor students. If you don’t trust your valedictorian not to say something offensive, don’t have her speak.” Of course, this episode is likely to be exactly what such censoriousness was intended to avoid. 

2. Many, many politicians, religious leaders, and corporate bigwigs have injected controversial political views into graduation speeches. It could legitimately be argued that such people have less right to do so that would an exceptional student from that school. 

3. The “fetal heartbeat law” is indeed abhorrent. It criminalizes abortion after a mere six weeks of pregnancy because there’s a “heartbeat.” The bill’s proponents casually ignore testimony from obstetricians and gynecologists who say there can’t be a heartbeat without a heart, which hasn't yet developed. (This in addition to other logical inconsistencies in what passes for their rationale, since “punishing women because we can” still hasn’t found its way into the rhetoric.) 

Of course, many women don’t know, or even suspect, that they’re pregnant until after six weeks. Add to this the fact that there are no provisions for the victims of rape or incest, and the bill is truly horrific. Governor Abbott’s proclamation that the bill was “bi-partisan” is, as usual with anything emanating from that particular slimebag’s mouth, well short of the truth. There are a total of 80 Democrats in the Texas legislature; 1 voted for the bill. That doesn’t sound like bi-partisanship to Curmie.

All this said, Curmie still thinks the deception involved outweighs the positives of hearing a young woman claiming the right to be heard on a matter which is far more likely to affect her than it would any of the overwhelmingly male politicians who made the decision. If, ten years ago, Curmie objected to the hijacking of a Louisiana graduation ceremony by a student who co-opted a “moment of silence” to turn it into the Lord’s Prayer, he can’t now countenance a similar action by a Texas student today just because Curmie is an agnostic progressive rather than an evangelical reactionary. The moral and ethical concerns are the same. 

Was Ms. Smith “brave”? Perhaps, although she not unexpectedly got a whole lot of personal attention out of her three-minute speech. And her assertion that she was speaking on “a day where you are most inclined to listen to a voice like mine, a woman’s voice” is, alas, probably true.  But she also de facto violated the trust placed in her by her school. I can’t call her a heroine just because I think she’s right on the issues.

A half dozen short takes...

A series of short takes… not topics I want to spend my usual 1000 or more words on, but worthy of comment. 

1. Students will know my politics. 

A Facebook friend I’ve known for roughly half a century recently posted a meme stating that “If your students know your political affiliation, you have failed as a teacher. Teachers are there to help students think for themselves, not think like you.” The second sentence is true… sort of. The first sentence is utter crap. 

Let’s start with the latter idea: if “think like you” means “agree with your conclusions,” then I wholeheartedly agree. I always want students who will argue, politely but emphatically, with each other or with me. We’ll get nowhere, either in the classroom or in society, if everyone agrees all the time: we would be reduced to choosing policies based on who speaks first rather than on what’s the best idea. 

If, however, “think like you” means that a teacher should model logical thinking, a pursuit of truth, a skepticism about likely partisan sources… well, in that case, I very much do want my students to “think like [I do].” 

But that first sentence is amazing in its over-simplified arrogance. In my current summer-school class, I have two (that I know of) non-binary students. If I respect them enough to use their chosen names instead of the “dead names” that show up on my role sheet, if I refer to them by their chosen pronouns instead of those applicable to someone else with their physical characteristics, those students—and the others—will know my politics. 

If, given the fact that in 1847 over ten shiploads of food a day were exported from Ireland to England, I refer to the mid-1840s in Ireland as “the Great Hunger,” as my Irish friends do, rather than “the Great Famine,” as many of the textbooks would have it, students will know my politics. 

If, in a different class, I make sure to point out that Congressman Joe Starnes famously asked Hallie Flanagan, the head of the Federal Theatre Project, if Marlowe and Euripides were communists, students will know my politics. 

If, in that same class, I suggest that Anatoly Lunacharsky may have had the coolest job title in history—Komisar of Education and Enlightenment—but one of the worst-ever jobs—serving as liaison between Josef Stalin and the Russian arts community—students will know my politics. 

If, in still a different class, I discuss the process of choosing a theatre season and emphasize the importance of having enough good roles for women and for people of color, students will know my politics. 

Most importantly, when I am honest enough to tell students my political opinions so they can factor that information into their decision as to whether or not to agree with my conclusions, rather than pretending to an objectivity that is ultimately impossible to achieve, students will know my politics. If that’s failing as a teacher, so be it. 

2. Taiwan is a country. 

Curmie is old enough to remember when then-President Gerald Ford proclaimed in a debate with Democratic challenger Jimmy Carter that “There is no Soviet domination of Eastern Europe and there never will be under a Ford administration.” It’s probable that he misspoke, that he meant to argue that despite the USSR’s military and economic domination, the people of, say, Poland, proudly maintained their national identity. But that’s not what he said, and he was portrayed, not unreasonably, with failing to recognize the political reality of Eastern Europe. Many historians believe that single line cost him the 1976 election. 

A similar moment played out recently involving a considerably less important figure than the President of the United States. This time the offender was wrestler and B-movie actor John Cena. There’s a twist, though, and not merely in the status of the speaker. You see, in a promotional spot for an upcoming movie, Cena had the audacity to call Taiwan a country. Yes, it’s a country, but the fine folks in Beijing—you know, the ones whose lies about the coronavirus exacerbated the pandemic—were sore offended, because despite… you know... reality, Beijing still regards the island as their territory. Absurdly, organizations like the United Nations have allowed them to perpetuate this fraud. 

But whereas American diplomats might need to tread carefully around a vexed topic, there’s nothing to prevent an apolitical celebrity from speaking the truth. Well, there is something: money. Cena wants his movie to sell in mainland China, so his tough guy image melted faster than ice cream in a Texas summer when confronted with angry tweets from Beijing. Cena immediately apologized—in Mandarin, no less—to “China and the Chinese people,” deploring his “mistake,” and groveling rather embarrassingly. 

The good news is that his renunciation of the reality that he himself had described was met with derision from across the political spectrum. When, after all, was the last time Keith Olbermann (who called the apology “shameful”) and Tom Cotton (who declared it “pathetic”) agreed on anything, including that grass is green? The almighty dollar still reigns supreme, even in the communist world, but maybe we’re coming to understand that there might be some circumstances in which it shouldn’t? Baby steps. Baby steps. 

3. Calling out hypocrites is a good thing. 

Curmie is no great fan of President Biden (“lesser of two evils” isn’t high praise), but I do appreciate skill at political gamesmanship, and it doesn’t get much better than pointing out the fact that a goodly number of GOP legislators have been claiming credit for various provisions of the American Rescue Plan, a.k.a. the second pandemic package: the very bill they had voted against. And he read out their names! In a just universe, none would be re-elected; this is, alas, somewhat less than a just universe, but embarrassing the hypocrites can’t be all bad. 

4. Lying with statistics. 

President Biden gets credit for what Curmie just described, but he also gets called out for crass political posturing. Whereas any attempt to reduce hate crimes, especially violence, is a good thing, exaggerating the extent of, in this case, anti-Asian activity is a good way to look silly. So the hype surrounding the need for new anti-hate legislation, much of it coming from the White House, is really so much balloon juice. Left-leaning news sites breathlessly report some 6603 “hate incidents” in the year between March 2020 and March 2021. That figure is drawn from the report of an organization called Stop AAPI Hate. And there are… let’s see… a little over 23,200,000 Asians and Asian-Americans in the US. So 1 in 3514 Asians experienced some kind of bias in that year. Oh, and over 83% of those incidents weren’t crimes: verbal harassment and shunning may be despicable, but they’re not criminal. So let’s amend that number to 1 in over 20,000 who endured violence, civil rights violations, vandalism, etc. 

We also see that “Anti-Asian hates crimes increased by nearly 150%, mostly in N.Y. and L.A.”. That sounds bad. But if we’re going to call out Tucker Carlson for using statistics to deceive, we need to do so here, too. Yes, New York and Los Angeles saw significant increases: from a total of 10 cases in those two cities in 2019 to 43 in 2020. Curmie is having trouble disentangling numbers for the city and county of Los Angeles, and isn’t sure which is being referenced in the increase of 7 to 15 cases there, so let’s just look at New York: 28 cases for a total Asian population of a little under 2,000,000 (apologies that the best source I can find is Wikipedia). The East Asian population is just under 750,000; that’s probably the more relevant figure, but if the case numbers say “Asian,” then perhaps the larger number is indeed more accurate. Even limiting the population figures to just four East Asian nationalities: Chinese, Japanese, Korean, and Vietnamese, the average East Asian would go for roughly 27 years without experiencing a 1% chance of a race-inspired crime. This is not exactly cause for panic. 

5. You can’t make this stuff up. 

(Alleged) serial sexual predator Kevin Spacey will appear in his first acting role since the proverbial fecal matter interfaced the whirling rotors some four years ago. The role: “a detective investigating a false claim of paedophilia.” Bloody hell.

6. It’s actually OK to produce No Exit.

Students—it’s unclear exactly how many—at Western Washington University sought to cancel the production of Jean-Paul Sartre’s No Exit, claiming it ignores matters of gender and sexuality (among other things).  Curmie is, shall we say, unconvinced.  

I first read about this incident on Ethics Alarms; I e-mailed that site’s proprietor, Jack Marshall, saying I would be responding, but I might be writing more than would qualify as simply a comment.  He suggested I send him my commentary and he would post it as a Guest Post.  I agreed.  So, here’s my post; I do suggest that you read Jack’s earlier post on the subject (and follow the links he includes) to be better able to understand what I’m talking about, since my remarks were intended to be read by people who were already familiar with the basics of the story.

Thoughts on the First Anniversary of the Death of George Floyd

Curmie makes no promises, but it may be that he’ll be returning to writing more blog pieces in the future.  He’s teaching a single course this summer, and it not only has no meetings on Fridays, but it ends in late June.  He’s officially retiring effective August 31, although he’ll be teaching a couple of courses as an “adjunct” in the fall, will keep the small cadre of advisees he now has (but add no more), and will supervise a student production of a play he acted in several years before the student director in question was born.  <Sigh.>  I hope to maintain at least my current level of scholarly activity—there’s a book chapter awaiting my revision, two conference presentations for later this summer, and at least two conference papers that I’d like to turn into articles.  And I’ll continue my presidency of a national honor society for another year or two, at least.

But it’s already clear that giving up the multitudinous service activities undertaken for the department, college, and university will free up literally dozens of hours of time; taken in conjunction with the required reduction in teaching load, I’ll definitely be able to devote myself to some other things.  A friend who retired from university teaching some years ago  remains a more active scholar than I’ll ever be; he describes his current life as “less of the same, and without the boring bits.”  I’m hoping for a similar experience.  One of the manifestations of such an eventuality would be at least a weekly blog post.  On y verra, as they say en France.

So, where to begin after such spotty blogging activity for several years?  There are a lot of potential topics vying for attention right now, but what comes first to Curmie’s mind is the anniversary earlier this week of the death of George Floyd.  I approach this topic, curiously enough, in the spirit of moderation. 

Here, it might be valuable to tease out the differences in meaning between two often conflated concepts: vagueness and ambiguity.  The former suggests that there is no clearly identifiable meaning; the latter implies that different, perhaps even opposed, implications might exist simultaneously.  The George Floyd case is vague only in terms of details we don’t yet know and probably never will.  It is ambiguous or even multivalent in virtually everything else.  Of course, it’s sometimes difficult to disentangle the strands.  In Curmie’s world, a B student might have gotten there with 3 B’s, or with 2 A’s and a D, etc.  In the Floyd case, as with that hypothetical B student, what is difficult to find is anything approaching a complete picture.

What we see in most of the “mainstream” press coverage of both the death of Mr. Floyd and its aftermath—the BLM protests, the trial, etc.—is a sort of gasping idolatry of a petty criminal, for that’s what Floyd was.  (Curmie gets it: he wasn’t only that.)  We barely hear about the medical examiner’s report that drug use and an underlying heart condition were contributing causes of Floyd’s death, albeit his ultimate conclusion was that the restraint by police, specifically by Derek Chauvin, was the primary cause.  And the presumed racial motivation of Chauvin’s actions has been taken as given from the outset, without any evidence, let alone proof.

Nor is it possible to deny that some of the literally billions of dollars of damage from riots was caused by those who used BLM as a justification—or perhaps as a cover—for their actions.  (Note: Curmie was seeing the catch-phrase “Black Lives Matter” long before the death of Mr. Floyd, but it didn’t achieve the spotlight until last year.)

So let’s get this straight.  Were Chauvin’s actions appropriate?  No.  Criminal?  Yes.  Murder 1?  Doubtful at best.  Felony murder or Murder 2?  Maybe.  Manslaughter?  In all likelihood.  Was Chauvin a bad cop?  Yes.  Should he have been removed from the police force long before this incident?  Apparently so.  Was the system that kept Chauvin on the job racist?  Somewhere between “perhaps” and “probably.”  Did Floyd’s race have anything to do with Chauvin’s actions?  Maybe, but there has been literally no actual evidence adduced to support that conclusion.  Let me repeat that: none. 

The fact that Chauvin is white and Floyd was black might, of course, be relevant, but it strikes me that this is ultimately a problem one encounters early in a course in formal logic: the fact that A implies B does not mean that B implies A.  That is, all racists are inherently bad cops, but not all bad cops are racists.  (Spare me the “all white people are racist” dogma.  It gets us nowhere.)  And, as Curmie noted in the aftermath, cops across the country, presumably aware of increased scrutiny, responded not by toning down the violence against black people, but evening the score by abusing a few white folks.  The problem is bad cops, and a system that covers up for them; many, but nowhere near all, manifestations of these people’s unfitness involve racism.

So, were the protests legitimate?  Yes, in the sense that the widely viewed video seemed to tell us everything we needed to know (although it now appears that perhaps it didn’t).  Yes, in the sense that racism certainly exists in this country and police forces are particularly rife with it.  Yes, in the sense that protests are nearly always legitimate, using that term to mean legally, morally, and ethically responsible.  No, in the sense that this was not the event that should be the watershed moment.  (Had it been the killing of Breonna Taylor or the death of Sandra Bland, Curmie would be more on board.)  No, in the sense that not all of the protests were non-violent.  Which leads us to…

Was a good deal of the violence and property damage resulting from protests that turned into riots perpetrated by BLM activists, or at least by those claiming that affiliation with no denials by BLM leaders?  Yes.  Was a good deal of that violence and property damage perpetrated by white racists seeking to undermine the credibility of the BLM movement, or simply by violence-prone assholes using BLM as an excuse?  Yes.  Was a good deal of the violence in particular initiated by the toxic masculinity, arrogance, and irresponsibility of police forces… and in at least isolated cases, by federally-funded mercenaries?  Yes.

So, is the introspection precipitated by the reaction to the Chauvin/Floyd case a good thing?  Yes, in that honest self-evaluation is an inherent positive.  Yes, to the extent that it brought about in unprecedented ways an examination of the power structures in American society and the extent to which that hegemony is exclusionary along racial lines.  No, in that what started as a positive desire to recognize and celebrate diversity has morphed into witch hunts, quotas, and frankly Stalinistic thought control. 

Lest you think Curmie is exaggerating the last point, allow me to direct your attention you to “socialist realism,” a policy which required Russian artists not merely to avoid saying or doing anything critical of the USSR or the Communist Party, but to actively advocate for those entities.  How is that different from universities which now base hiring and promotion/tenure decisions to a large degree not on proven abilities as a teacher or researcher, but on demonstrated, active, commitment to the Great Gods Diversity, Equity, and Inclusion?

At the very least, faculty are expected to participate in “workshops” on these issues.  Curmie has endured dozens of variations on this theme on many topics over the years.  There are two constants: there is never any useful information, only opinion masquerading as fact; and Curmie always leaves far more angry than enlightened... and actively resistant to the propaganda he's just withstood.  (Side note: many of the voluntary programs have, in fact, proved valuable.  I did a weekend-long workshop in Rape Crisis Intervention 30-ish years ago, for example.  I've only used it twice in the ensuing time... but I’ve used it twice in the ensuing time.)

Thirty years ago, Curmie got into trouble for saying that whereas there is much to be gained by applying a feminist lens to texts, not all feminist arguments are good arguments.  The cause du jour has changed, but the expectation of ideological compliance has not.  Alas.

Concentrating for a moment on the professional world Curmie inhabits: this enforced singularity of vision runs through universities and professional organizations alike.  Case in point: there’s an organization Curmie has belonged to for decades.  The committee structure has always worked like this: committee chairs are elected by the membership, subcommittee chairs are appointed by the chairs, and committee members… wait for it… simply volunteer to serve; no one is turned away.  Anyone willing to work is given a task.  But it turns out that a couple of committees have an “under-representation of people of color”… so white people, some of whom have specific expertise, are now being denied access to those committees on which POC folks have expressed no interest, and the organization is denied access to their skills, in the name of “diversity.”  We have to make those percentages work out, after all.

Of course, other power structures—state legislatures, boards of trustees, and the like—are reacting in precisely the opposite way: forbidding discussion of race-sensitive issues and attempting to enforce their own monomaniacal vision, in which American exceptionalism is to be taken as a given, but curricula must otherwise be “apolitical.”  One group wants Critical Race Theory to be mandatory; another wants it completely expunged.  The idea that it might be available, possibly required in certain specific disciplines in the sense of knowing its tenets, but with no expectation of having to agree with its conclusions: this doesn’t seem to be acceptable to the ideologues on either extreme… and it appears at first glance that virtually everyone indeed positions themselves at those opposing poles.  Curmie doubts this is actually true, but those positioned at both extremes demand absolute fidelity.

All of this messiness, this swirl of competing ideologies, this series of simultaneously “yes” and “no” responses, never seems to all come into focus at the same time in the same commenter.  On the one hand, we have the majority of the center-left news agencies and Democratic pols applauding George Floyd as some sort of messianic hero, the noble if accidental progenitor of Racial Justice, the Second Coming of MLK.  On the other side, we have the rightwing press and the GOP condemning all things BLM-related, labeling anyone remotely affiliated with the movement as thuggish, communist (!), anti-American, and probably responsible for the kidnapping of the Lindbergh baby.  OK, maybe not that last one, but give them time.

At the moment, universities are more interested in pandering to leftwing claptrap than to rightwing claptrap.  That will probably change, especially in state institutions in red states, before long.  But the glorious concept of the university as the testing ground for opposing ideas, as the site where disputants recognize in each other the desire to seek the truth, as the vigilant guardian of intellectual curiosity and freedom of expression: this vision, the one Curmie believed in when he started out in the profession 40-odd years ago… this noble cause lies in the ICU, gasping for what may soon be its last breath.  

Do black lives matter?  Indubitably.  What about Black Lives Matter?  Sort of.  Any full-throated endorsement or condemnation will forever leave Curmie saying, “yeah, but…”

A Response to the Cruz Amendment

Over at Ethics Alarms, Jack Marshall excoriates Senate Democrats for not supporting an amendment by Senator Ted Cruz that would deny federal funding to any college or university which “discriminates against Asian Americans in recruitment, applicant review, or admission.” Jack closes his piece with this: “There is no persuasive argument to be made in defense of those 48 Democrats. I challenge any reader here to present one.” 

The following started out as a comment to his post, but sort of kept going long past comment length.  I won’t clutter his page with this missive, but perhaps the following may be at least a partial response to his commentary...

I’ll take up that challenge, Jack. Sort of. 

That is, I would suggest a couple of reasons to be skeptical of this proposed legislation. They require a little more abstract reasoning and a little more knowledge of the way admissions operations work than the average politician is likely to be able to muster. I hasten to add that I am not defending the rationale that diversity is such an inherent good that it overrides all other considerations, but (for example) discussions of The Death of the Last Black Man in the Whole Entire World or Fires in the Mirror in my Advanced Play Analysis class have always benefited enormously from the presence of students with different demographic profiles. 

But to the matter at hand… First off, it’s difficult to assert with any authority that discrimination is actually taking place, since no one can agree on what elements of a student’s record ought to be weighted more heavily: grades? class rank? standardized test scores? extra- and co-curricular activities? recommendations? interviews with admissions personnel and/or alumni? Should legacies count? Should the ability to pay tuition without institution-funded financial aid? Should the inability to do so count? All of these elements are part of the admissions evaluation process at universities, especially those at the elite level. (At my university, a student with a certain class rank and/or board scores is automatically offered admission. But we’d ultimately end up accepting probably 95% of the students rejected by Harvard or Yale.) 

Grades are “objective”; except of course, they aren’t. Students take classes with different degrees of difficulty. Someone who gets a 90 in calculus and a 75 in phys ed is a better student than one who gets a 95 in phys ed and an 80 in algebra, but will have a lower average. Moreover, it almost goes without saying that the #20 student in a class of 400 at School X might be better or worse than the #1 student in a class of 40 at School Y. Using sports as an example: I happen to live in the small city where one of the top half dozen soccer players in US history went to high school. He was, of course, all-conference, etc. But an all-conference player in that league today might be lucky to get a scholarship to a Division II university, let alone even hope to become a star for the national team. So how do we compare, if all we know is “all conference”? 

Of course, pols of both parties seem enamored of standardized testing as the ultimate arbiter of student (or teacher) success. The closest thing to an objective means of comparing students is to give them exactly the same test under exactly the same circumstances. But even such an endeavor is problematic, even apart from such considerations as recognizing that Student X is fighting off a cold, or student Y’s mother just got diagnosed with cancer. Someone, a mortal, designed that test, and the questions are almost by definition going to favor someone who knows precisely those concepts, terms, or formulas over someone who may have mastered different, but equally important, material. I remember a question on one of those tests that asked me to figure out the Earned Run Average of a baseball pitcher. The question provided the formula, but because I knew baseball and statistics, I could glance at the multiple choice responses and determine the right answer in perhaps two seconds. Someone fully as adept at math but who didn’t know baseball would have spent a lot more time, and perhaps been rushed at the end of the exam, omitting questions or not having time to really think them through. 

So it’s perfectly possible that a student taking a standardized test would score better or worse, perhaps even appreciably so, were they to take the exam a week earlier or later. But this isn’t even the biggest problem. Those who argue for significant weight for SAT, ACT, GRE, LSAT, MCAT (etc.) scores do so based on a fanciful belief that performance on standardized tests measures skill or intelligence. It does not. In fact, they measure test-taking ability. To provide just two examples from my own personal experience as a standardized test-taker: 

I was pretty good at math when I was in high school, so in my junior year I was among the 15 or 20 students who took a standardized test under the auspices of the American Mathematical Association, or some organization like that. The test was difficult; no one could be expected to finish it in the appointed time. And it was scored like Jeopardy: harder questions were worth more points, and you literally lost points if you answered a question and got it wrong. I got a negative score! Still, I was asked back the following year, after several months of taking a class with the worst math teacher I ever had, and a couple of months with the next-worst. I adopted a different strategy… and got the highest score in the history of the school. Was I as bad as my junior year score? Nope. Was I the best math student in however long my high school had been administering that test? Not even close. 

Skip ahead a few years. I took the GRE some five or six years after the second of the two freshman-level math courses (Calculus I and Intro to Finite Math) I took in college. It was 8:00 a.m. on a Saturday. I’d had about four hours of sleep, and I was more than a little hungover. Perfect conditions, right? I got a perfect score in math. Is it plausible that I deserved such a score? I suppose so. The test I took, unlike the subject exam in math, didn’t really test anything past algebra and a little introductory probability. But no rational person would think that my math skills exceeded my verbal skills (my verbal score was good, but not perfect). 

But, as they say on the late-night infomercials, wait, there’s more. There are studies that show there is little correlation between board scores at one level and performance at the next. More to the point in the current discussion: I remember reading about (as opposed to reading) studies which concluded that the average African-American student with a certain board score would outperform the average white student with that same score. I forget the exact figures, and I’m not sure I could find them now, but the following provides the general idea: on average, a black student with a 1080 SAT score would get better grades in college than a white student with an 1100. I don’t recall that Asian-American students were included in the findings, but I would suspect that the same principles would apply. So should we be comparing the scores themselves, or their predictive value? 

Of course, multiple studies have shown that these tests tend to privilege affluent white males: precisely the stereotype of the GOP pol. Were I of cynical disposition (perish the thought!), I might be tempted to suspect that the Republicans are using Asian-American rights as a front for their attempts to codify white preference. Wait, Republicans being as virtue-signaling and contemptuous of actual reality as the Dems? Surely not! 

Be it noted: for all my distaste for standardized tests to measure, well, anything, I still use them in considering whether a particular student should be admitted into our program or receive some of our sparse scholarship money. This is different, however, from believing that a higher score on the SAT or ACT makes for an inherently better student. Taken as part of an overall assessment, a good score will do a student more good than a bad score will, but by itself it’s merely a statistic. Another sports analogy: the best shooter in the NBA will never have the highest field goal percentage, because he’s shooting a lot from 3-point range, where 40% is excellent, but there are centers and power forwards shooting well over 50% because they never take a shot from more than 5 feet from the basket. 

So if the question is whether discrimination is a good idea, the answer is of course not. But the phrasing of the amendment opens up a lot of questions without answering any of them, especially about what, exactly, constitutes discrimination. Catch phrases and gotcha politics on either side of the aisle aren’t going to solve any problems. An admissions policy which privileges class rank over SAT scores would probably benefit African-American students over Asian-Americans, but it is not inherently discriminatory, any more than a strategy that reverses those priorities would be. And certainly a procedure which attempts to predict success at the collegiate level rather than judging success at the high school level doesn’t seem to me to be problematic, although it could be called discriminatory, I suppose. 

I don’t want some federal judge to decide how my alma maters, my employer, or indeed any other college or university runs its admissions process, absent clear and convincing evidence of actual discrimination as opposed to simply that which could be construed that way. I’m not suggesting that we ought to break existing laws to advance a cause. There are no doubt cases in which the disparity in qualifications between accepted applicants of Group X and rejected applicants of Group Y is so profound that racial discrimination (against Asian-Americans, perhaps against whites) is the only plausible explanation. In such cases, the legal system does indeed need to be employed. 

What I am suggesting, however, is that the Cruz amendment smacks more of politics—“look, we got the Dems to vote against equal rights!”—than of ethics. It seems too broad a statement to ensure just administration without further clarification. In something like collegiate admissions, one person’s discrimination is simply another person’s (ethically legitimate and comprehensible) difference in priorities. 

As a career educator at the college level, I’d probably have voted against the Cruz amendment, too… although I’d be fully aware I was walking into a trap.