The Volokh Conspiracy

I don't have any idea whether the gossip about Yale Dean Koh refusing to honor Justice Alito (or perhaps just being very intent on honoring Linda Greenhouse), linked to by Jonathan below, is true, but I do know that I met a bunch of Yale Law Federalists a few weeks ago, and they were quite dispirited about goings-on at the law school. They could barely believe it when I told them that in my day ('88-'91), during the Guido Calabresi era, Yale was considered a much friendlier place for conservative and libertarian students than was Harvard. And for faculty, too, with the Yale hiring Ellickson, Schwartz, Romano, Langbein, and perhaps others whom I am forgetting. Kudos to Dean Kagan of Harvard for reversing this equation.

An article I was reading the other day reminded me how irritated I get when Haredim (ultra-Orthodox Jews) claim that their brand of Judaism is "authentic" Judaism, as it's been practiced for thousands of years; everyone else's brand of Judaism is thus "inauthentic."

One doesn't need to go back thousands of years to rebut such claims; a few hundred years will do. Here are some of the innovations the ultra-Orthodox have brought to Judaism since the 18th century:

(1) Cults of personality for rabbinical leaders, such that in some communities, the rabbis are not only spiritual leaders, but offer advice (or even demand adherence to their views on) various secular matters, such as whom to vote for, whom to marry, and so forth. A case in point: in a recent Ha'aretz article on a proposed boycott of El-Al by the Haredim, an international business man was quoted as stating that "my rabbi says this is my last flight on El-Al." For the unitiated, "rabbis," unlike say, priests, have no particular standing in Judaism as traditionally practiced; anything a rabbi can do, including marriages, bar mitzvahs, and what have you, can be done by any Jew. The idea of rabbi as holy man/guru is a recent innovation.

(2) Various additions to Jewish law that have no basis in traditional Jewish sources. For example, some Hardedim will only eat "glatt kosher" food; the normal laws of kashrut are not sufficient.

(3) Despite the traditional Jewish ban on superstition, superstitions are not only tolerated in many Haredi communities, they are positively a normative part of communal practice. Consider the practice of Kapporot--placing the burden of one's sins before the high holidays on a hapless chicken.

(4) Attire: where in traditional Jewish sources can one find a requirement to dress in the garb of 18th century Polish or Lithuanian nobility?

(5) Perhaps most dramatic, traditional Judaism always encouraged rabbinic scholars not to be a burden on their communities, and to have remunerative employment. Great rabbis of the Talmud are often referred to by their occupations--Rabbi so and so the blacksmith, Rabbi so and so the tailor, and so forth. Maimonidies, of course, was a physician. Today, in some Haredi communities, not only are the leading scholars of the community expected not to work, and instead study Talmud all day, the normative baseline is that all men, and especially younger men, should spend all their time studying Talmud, and working to support one's family is a last resort.

None of this is meant to disparage Haredi Judaism (though I have to say that I shake my head a bit when I see Haredim in B'nai B'rak wearing long black coats day after day in 90 degree heat), which has its own charms and appeals to its followers. But the idea that any of the above recent innovations they have made to Judaism would be recognizable to say, Maimonidies, much less Moses, defies credulity. The lesson is that even among the ultra-Orthodox, the religion has and continues to involve, and claims of "authenticity" based on total stasis makes powerful propaganda, but has little historical basis.

Here's a story from the Nov. 10 Chronicle of Higher Education that hasn't gotten nearly as much attention from the MSM as one might expect.

A prominent higher-education researcher says scholars at the Educational Testing Service may have discovered a substitute for race-conscious college-admissions policies back in 1999, but their research project was suppressed -- and eventually killed off -- before they could put their findings through peer review and make them public.

A spokesman for the testing service says the study was dropped because it was "bad research."

Anthony P. Carnevale, a former vice president for assessment, equity, and careers at ETS, says he and other ETS researchers concluded in the summer of 1999 that it was theoretically possible for selective colleges to maintain or increase their black and Hispanic enrollments without giving extra consideration to applicants based on their ethnicity or race.

The researchers had developed a formula for using students' background data to identify "strivers" -- those who had overcome adversity to an impressive extent -- and had fine-tuned the formula to a point where it showed the promise of producing larger black and Hispanic enrollments at selective colleges than were being obtained through race-conscious admissions, says Mr. Carnevale, now a senior fellow with the Education Sector, a think tank in Washington, D.C.

Mr. Carnevale alleges that College Board officials put pressure on ETS to squelch the entire "striver" line of research, mainly because it added a new layer to the interpretation of SAT scores and they feared it would give federal courts reason to question colleges' need for race-conscious admissions policies.

Because the research was squelched midway, the researchers never got a chance to determine conclusively -- and then demonstrate to ETS and the College Board -- that they had found what they were looking for: a way to achieve racial and ethnic diversity at selective colleges without using affirmative action.

"The work never saw the light of day," Mr. Carnevale says.

In an e-mail message last week, Thomas Ewing, a spokesman for ETS, denied Mr. Carnevale's account of what transpired, saying "there was no pressure from the College Board to discontinue" the striver study. He said the study had been discontinued because "it was widely viewed at ETS as simply bad research," and the president of ETS, Kurt M. Landgraf, and the ETS research staff thought it "attempted to alter an objective measure (the SAT) inappropriately."

But some education researchers who were not involved in the strivers study said last week that they viewed the research as sound, and would like to see it continued.

Thanks to Paul Caron of the TaxProf blog for alerting me to this story.

In a closely divided 8-7 en banc opinion (eight Democrat appointees in the majority, six Republican and one Democrat appointees in dissent), the Ninth Circuit reversed an earlier panel ruling and held that the private Kamehameha Schools in Hawaii can prefer people of Native Hawaiin ancestry for admission, which effectively means that no one without such ancestry can attend the heavily subsidized schools. The opinions are 110 pages long, so I haven't had time to read them closely, but I do have the following observation. In the 1960s, the Supreme Court, in an effort to help the civil rights movement along, came to the rather remarkable conclusion that the 1866 Civil Rights Act's requirement that all citizens shall have the same right to make and enforce contracts as white citizens meant that discrimination in private contracting based on race was illegal. This was remarkable for several reasons. First "white citizens," as such, had no right to be free from private discrimination in 1866 or thereabouts, as any Irishman of the era could testify. Second, the law was clearly intended to ensure that courts would uphold and enforce contracts made by and with blacks. Third, the Court's interpretation of the Act made the private sector employment provisions of the Civil Rights Act of 1964, and the attendant controversy over them, somewhat superflouous. It turned out, said the Court, that blacks were protected from private sector discrimination all along, and indeed had more protections than the '64 Act gave them, because the 1866 Act doesn't require going to the EEOC first to get permission to sue.

The most famous use of this interpretation of the 1866 Act (now Section 1981) was in the 1976 case of Runyon v. McCrary, in which the Supreme Court held that a private school that accepted no public money is banned from discriminating by race. The Court made it clear in another opinion that same day that Secton 1981 bans discrimination against whites as well as against members of minority groups. This was a logical necessity, because, as noted, whites had no common law right to be free from discrimination in contracts, and if "white citizens" had no statutory freedom from discrimination, non-whites could not possibly claim such a right under the Act (not that the Court was exactly sticking to the plain meaning of the text anyway, but there are always some limits to legal gymnastics).

Fast forward to the Ninth Circuit's decision. The Kamehameha Schools receive no public money, and are the beneficiaries of a $6 billion private endowment set up to educate Native Hawaiins. But what about Section 1981? If the school in Runyon couldn't discriminate based on race (or ethnicity), why may Kamehameha? According to the New York Times, school attorney (and Stanford dean) argued that "their discrimination is remedial, meant to address historical wrongs; the beneficiaries are indigenous peoples; and the program has met with Congressional approval."

Those are all plausible public policy arguments in favor of the schools, and they have my libertarian sympathy as well. But the 1866 Act seems to suggest that whatever rights it gives, they must be given equally to whites and others. The Ninth Circuit, on my preliminary reading, tries to get around this by engaging in an amazing feat of legal alchemy (admittedly, in reliance on precedents from other circuits), under which the 1866 Act not only rendered much of the '64 Act superfluous, but that it has exactly the same tolerance for remedial affirmative action programs as Title VII of the '64 Act. Thus, the two acts are not just complimentary, but co-extensive. But again, if you look at the text of the 1866 Act, if everyone has the same right to make and enforce contracts as white people, and white people have no right to be free from discrimination in private school education, doesn't that mean that non-white people also have no right to be free from such discrimination? Which means that the Ninth Circuit is implicitly overruling Runyon by logical necessity, though it claims not to be. I guess all things are possible if you ignore the language of the statute you are supposed to be interpreting.

I should also note that while the Ninth Circuit relies on Supreme Court precedents upholding remedial affirmative action programs, the Court has never even come close to upholding what amounts to a 100% quota for a particular racial/ethnic group, and the Bakke majority explicitly rejected a much smaller quota for minority students at a state medical school under Title VI of the '64 Act. [Update: Commenter Hans Bader points out that the Supreme Court reiterated that Title VI bans quotas in a footnote in the 2003 Gratz case.]

I suspect the Supreme Court will agree to hear this case, unless Congress intervenes in the meantime by passing legislation affirmatively exempting Kamehameha Schools from Secton 1981. The case has the potential to not only rewrite the law of Section 1981, but for the Court to potentially reconsider its approval of remedial affirmative action programs under Title VII.

As I said, my libertarian sympathies lie with the school, and given relevant Hawaiian history, I don't have any particular distaste for the Schools spending money left by a Hawaiian princess for Native Hawaiian education on Native Hawaiians. But I think it's too clever by half for courts to hold that minorities are protected from discrimination by a law that grants them the same rights as "white citizens", if "white citizens" (among others) do not have these rights to begin with. Put another way, it's hard to read the language of the 1866 Act as doing anything other than creating legal parity between whites and others. Any interpretation of the Act that disrupts that parity with regard to any right that is perceived to come within the protections of the Act lapses into incoherence.

Thanks to reader Hans Bader for the pointer. John Rosenberg also comments.

A professor suing a host of Jewish organizations, along wth York University, for allegedly conspiring against him and defaming him by accusing him of anti-Semitism, has put out a press release. It states that he is suing the "Israel Lobby," and asserts that this "Israel Lobby" is composed of several major provinicial Jewish organizations, i.e., "Hillel of Greater Toronto, the United Jewish Appeal Federation of Greater Toronto, and the Canadian Jewish Congress, Ontario," and "their agents." He further alleges in the press release that "These rich and powerful people pretend to be friends of higher learning but are in fact its worst enemies. They think they have bought themselves a university [York]."

The background:

In 2004, Noble distributed flyers around campus, which made claims that directors and members of [York University] foundation had ties with pro-Israeli groups. The pamphlets [entitled, "The Tail that Wags the Dog", and, which, according to an article in 2004 in the Globe and Mail, "names members of the [York University]foundation's board of directors and their affiliation with Jewish groups"] also claimed that the university was biased and favoured Israeli groups. After the distribution of the flyers, a fax was sent by Hillel of Greater Toronto to the university with their concern that the flyers insinuated that "Jews control York University." Noble denied this was in the material he distributed. In response, a press release was shortly issued by the university, in which [university president] Marsden condemned the literature. The press release did not name Noble individually but did quote Dori Borshiov, the former president of Hillel at York, who expressed concern with the material that was handed out stating, "it is unacceptable for any students to be exposed to this type of bigotry."

I haven't seen the original flyers, and I generally think university presidents should refrain from taking sides on speech-related controversies on campus, but I can't imagine how anyone could ever interpret any remarks made by the plaintiff as insinuating that Jews control York University. And it's not like the plaintiff had ever engaged in any other actions that even remotely suggest hostility to the Jewish community.