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December 07, 2005

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» Secunda in the Harvard Crimson on the Solomon Amendments from Workplace Prof Blog
This in today from the Harvard Crimson:Court To Hear Solomon Appeal: Case Before High Court Today Poses Quandary Published On: Tuesday, December 06, 2005 3:45 AM By DANIEL J. HEMEL, Crimson Staff Writer ... University of Mississippi law professor Paul [Read More]

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Eric S Cioe

Here, here, for people who can divorce their personal preferences from constitutionality. You know, when I read that Prof. Stone was writing this, I kind of said, "here we go." I was surprised and impressed.

Steven Duffield '99

In light of the paragraph above beginning "Third," I am curious what Professor Stone thinks of the University of Chicago's decision to sign an amicus brief opposing the federal government's position. I assume this decision is made in the GC office, but I can guarantee that the decision to oppose the U.S. military in this fashion will have a (probably modest) effect on donations to the Law School this year. It would seem that this is exactly the kind of institutional action that should be avoided.

Roach

If there is no expressive conduct at issue, then there is no constitutional issue. Schools do not have a right to receive funding and follow their idiosyncratic nondiscrimination policies when a statute requires otherwise, unless some constitutional interest is in play. I am happy to see that you acknowledge this.

As for the law school's interest in policing the military's conduct "in house," that's kind of a joke. There is no harassment taking place at the law school or anywhere else by military recruiters; they are passively interviewing students who are interested in service. The military's policies are well known and codified in US law. Students who are openly gay could and should steer clear of the recruiter, just as I would steer clear of many law firms, public interest law firms, and other employers that did not share my values.

This principle also seems to be potentially never ending in its application. The military will always have certain discriminatory policies in place, particularly against those who are disabled and women. An employer that said, I won't hire people who are in a wheelchair would also get the ding from the law school, but the military has this requirement and always will, including for its JAG Corps. Furthermore, the military likely still will close certain jobs from women, such as the combat arms. It seems likely the law schools will find some other expressive interest at issue to protest those kinds of policies as well.

Your argument betrays the reality: this isn't about speech or forced association, so much as it's about saying "go to hell" to the military, something that many in the academy have been doing for various reasons since the 1960s. (And while you may not agree with FAIR's emphasis on this expressive aspect of its conduct, your peer institutions and their lawyers have emphasized this explicitly and should be taken at their word as to their motiviations.)

In closing, I can't help but note that the various law schools' policies are completely hypocritical. The military is not a private corporation but a branch of the US government complying with US law in its anti-gay policy. Yet, law schools are not banning the DOJ or federal judges from recruiting as well, even though they're all the same employer, all different parts of the federal government? (Both of my borhters are in the Marines and their paychecks/direct deposit says "US Treasury" just like the ones I did as a federal law clerk).

One can't imagine Smith and Smith Chicago being allowed to conduct interviews but not Smith and Smith in NY if the latter had an explicit anti-women hiring policy, but the former did not. But here only one branch of the relevant employer is being affected by this policy. The FAIR policies are all customed designed to allow preening moral superiority on the part of law schools, without too much inconvenience, e.g., no loss of funds, no inconvenience to students interested in other federal agencies, etc.

And let me be clear. I find the military's policy completely sensible because of the military's requirments of good order and discipline as well as the need for unit cohesion. These policies are entitled to some deference owing to the institution's needs. I imagine that the law school would be more sympathetic to those requirements if more of its leadership had actually served in the military and had some sense of what it involves. I also think this policy is insulting to all of the law schools' students who have served in the military. They are being told, in effect, this institution you have worked for--and may even love--is so craven, so immoral, so discriminatory, that it would dirty the law school to even have them set foot on campus.

And under these circumstances we're to think it's "going to far" to suggest that law schools and the liberals who run them may be unpatriotic and anti-military. If they're not, they do the best impression I've ever seen.

jeebus

"In closing, I can't help but note that the various law schools' policies are completely hypocritical. The military is not a private corporation but a branch of the US government complying with US law in its anti-gay policy. Yet, law schools are not banning the DOJ or federal judges from recruiting as well, even though they're all the same employer, all different parts of the federal government? (Both of my borhters are in the Marines and their paychecks/direct deposit says "US Treasury" just like the ones I did as a federal law clerk)."

This seems like something of a non sequitur, although I'm no expert in these matters. The federal government is one employer, yes, but it's departmentalized, and it seems reasonable to distinguish between various governmental departments. No one would suggest that DOJ should discriminate on the basis of sexual orientation or physical handicaps. Some would suggest, controversially, that the military should discriminate. So the analogy to a single, private employer seems to lapse. A more accurate analogy would be a hypothetical employer that imposed discriminatory practices in one office, but not in another. Suppose, for example, that a defense contractor refused to hire Muslim Americans for positions that required security clearance, but agreed to hire Muslim Americans for positions in a separate office that did not require clearance. Would it be hypocritical for, say, a college to allow the company to recruit for its non-discriminatory office, but not for its discriminatory one? (I don't have a good answer; I'm curious to know what people think.) But calling the government "all one employer" seems overly broad. It doesn't seem likely that by permitting the DOJ to hire law students, law schools are somehow weakening the disincentive for the military to continue to discriminate.

Gary Bayer

Calling those who criticize the military's discriminatory practices "unpatriotic" is inflammatory. Why is it "un-American" to express a plausible, widely supported position?

Roach

It's not the fact of the expression that is unpatriotic. It's the substance of it.

It's unpatriotic to treat the military as little better than the KKK during wartime to such a degree that one is unwilling to allow them to recruit on campus. It shows a complete lack of proportion. It's insulting to them at a time when one should reserve one's criticisms, or at least present them in a manner more proportional to the offense and the dignity of the institution.

What does patriotism mean if it means that one can, in effect, disrespect the unifying institutions, rituals, and folkways of America. Such thoughts may be admirable, heroic, truthful, authentic, and all the rest, but they meet no normal definition of patriotism. The left wants patriotism to mean "good hearted," but it doesn't mean that, it's a specific quality related to love of country. If the left were more honest it would simply reject the importance of patriotism, instead of pretending to be something it is not.

Can someone really "love this country" if his gaze is always upon its sins? Can someone really "support the troops" when he holds their values, their actions, their defining institution, and also its values in contempt?

There is some history here. ROTC units were kicked off college campuses in the 1960s by various schools in order to protest the Vietnam War. In some cases, they only returned in the wake of the Solomon Amendments. Law Schools and their senior faculty and adminsitrators are overwhelmingly (1) baby boomers and (2) folks that did not serve in Vietnam, often taking part in anti-Vietnam War radicalism. If you don't believe me, look at the age and demographics and histories of law school faculties some time. Northwestern, for example, has a former Weatherman Underground terrorist on the faculty, Bernardine Dohrn.

I wonder if that decision meets Stone's definition of something "outrageous" and "immoral."

Alum

"And let me be clear. I find the military's policy completely sensible because of the military's requirments of good order and discipline as well as the need for unit cohesion. These policies are entitled to some deference owing to the institution's needs. I imagine that the law school would be more sympathetic to those requirements if more of its leadership had actually served in the military and had some sense of what it involves. I also think this policy is insulting to all of the law schools' students who have served in the military. They are being told, in effect, this institution you have worked for--and may even love--is so craven, so immoral, so discriminatory, that it would dirty the law school to even have them set foot on campus.

And under these circumstances we're to think it's "going to far" to suggest that law schools and the liberals who run them may be unpatriotic and anti-military. If they're not, they do the best impression I've ever seen."

Let's be objective. If we're stepping away from the legal issue (on which I agree with Professor Stone and all the posters on this board, apparently), this case is as much about the Right disapproving of homosexuality as it is about the Left being anti-military. There are politics on both sides, and labelling one side "unpatriotic" is as unhelpful as labelling the other side discriminatory or worse. It's just as hard to see how arguing in favor of non-discrimination is unpatriotic as it is to see how refusing to defer to the anti-inclusion members of military leadership is pro-military.

Roach

Alum, there is certainly a reasonable range of disagreement about anti-discrimination policies in general and the military's in particular. I, for example, think it's silly for the law school to have any kind of screening based on the anti-discrimination policies of potential employers. If such a policy were applied consistently, mahy of the firms should be banned on the basis of their racist affirmative action policies for women and minorities, but the selective focus on the military alone stands out. That said, it's wrong, mean-spirited, and extreme to single out military recruiters for exclusion. Many people in the military in fact think the policy is outdated and unnecessary. But it takes things many steps further than mere public disagreement to ban the recruiters from campus. The military is following a statutorily mandated limitation on who may serve. Yet the institution as a whole is treated, in effect, as a pariah.

The politics on both sides are not pro-gay and anti-gay. The politics are those of normal patriotic Americans that respect the military and think military service should be encouraged and facilitated, and the anti-American forces within the American academy who oppose and disrespect the military and the society that it serves. The latter's disrespect stems from the entire counterculture of the 1960s that persists in time capsule form on American university campuses. This ethos is far outside the mainstream of students and alumni, but the echo chamber aspect of universities make its leadership blind to this reality.

The clash between speech and associational values and nondiscrimination principles should be clear from this case, as well as cases like Dale. The two value systems are entirely in conflict. Stone says, for instance, he does not want the university to take official positions on the military's policies. But he does want it to take a value-laden position with respect to nondiscrimination, separting it from speech under the meaningless label as "abusive and inappropriate" conduct--as if a great deal of protected speech and associational conduct could not potentially be both. Such a policy cannot help but be an expressive choice, expressing a belief in the value of nondiscrimination. Good, bad, or indifferent, universities adopt such values all the time under the rubric of nondiscrimination, civility, or other policies that are, for them, embracing values so obvious and uncontroversial as not to be taking positions at all. But these are value positions, in spite of their attempt to elevate themselvs above the fray with debate-ending, pseudo-objective nomenclature like "inappropriate" and "abusive."

For example, I think it's paternalistic and a violation of basic freedom of association for the law school (or the government for that matter) to mandate any particular hiring practice, including nondiscriminatory ones. That is, I favor a regime of freedom of contract that would create diverse institutions based on a diverse range of hiring crieria. Such a world, far from undermining the community spirt of the law school, would allow thousands of "little platoons" to emerge in the broader society, each organized around the values of its members. No one would be "abused" because no one has a right to join any particular private organization. This is no more an injustice or an abuse than the fact I was denied a second round interview by certain firms based on their own varying hiring criteria. That I was denied because of where I'm from, or my grades, or my interviewing skills is immaterial. I realize this is a heterodox position, but Stone's suggestion that the nondiscrimination policy of the law school is anything but an affirmation of a particular value system and an unmistakable expression of the same is simply unsustainable.

The Law Fairy

Roach, it's inapt to compare affirmative action programs (interesting that you call them "racist" even though the overwhelming majority of beneficiaries of affirmative action policies are white women) to a policy that discharges people who admit to being gay. To encourage hiring qualified female and minority applicants in order to encourage diversity doesn't mean that white men are suddenly fired if they admit that they are white men. It's apples and oranges.

It's also incorrect to say that disagreeing with a military POLICY means you don't support the troops or that you're unpatriotic. Many people who oppose the policy in fact support the troops so much that they EVEN support the ones who are gay and want to stop hiding it. It's those who support the military's policy who are selectively supportive of our troops.

On a different note, and I admit my unfamiliarity with the history of the issues and cases with respect to the military's policy, has anyone ever challenged "don't ask, don't tell" on the grounds that it infringes free speech? Technically, the only thing it penalizes is SAYING you're gay; if you're gay but you hide it you're fine, presumably. So really what's penalized is speech. Although, I'm also unfamiliar with the extent to which the government has decided it's okay to deny servicemen and women their Constitutional rights.

Roach

DADT has been unsuccessfully challenged on numerous grounds.

It is in fact illegal to be an active homosexual and be in the military. It is a fraudulent enlistment if one joins knowing one is gay, which presumably most adult age people do. That said, commanders are not entitled to investigate the matter on their own initiative and there is no question about homosexuality on the enlistment papers. Even so, it is still technically against the law.

As for the "apples oranges," you are correc that there are other forms of discrimination against broader groups of people, such as white men, that are practiced openly and without opposition by people like yourself. That said, it is no more immutable that one is white or a male than that one is gay. The nature of a discriminatory policy does not require one to be immediately fired upon discovery of one's status; it requires judging one group by different standards than another group. Whites incidentally are frequently fired before minorities explicitly because of their race, and this has been the subject of various affirmative action cases at the Supreme Court.

AJTALL

Roach,

I respect your arguments completely. I despise the law school for its hostility to the military and its inconsistent positions on discrimination. It's okay to discriminate on race and ethnicity (affirmative action) but not okay to do it on sexual orientation. And I'm not convinced the military's policy is patently discriminatory. It's more neutral if anything. And it's bordering on chutzpah for the law schools to suddenly argue on freedom of association - including the freedom not to associate - when they certainly wouldn't defend private discrimation on the basis of race (against minorities), gender (against women), and so forth if comitted by others.

That said, I do feel that you haven't addressed two important issues, although I'm not sure if they're really distinct. One, students and employees at Chicago and other law schools also pay taxes and subsidize other students' education but would now be denied those benefits in the form of federal funding for simply refusing to associate with others. Second, are you saying it is all right for the government to condition benefits on the waiver of rights such as property and associational freedom?

Roach

AJTALL, you ask two good questions.

On the first, I'd say that democratic controls are the key to disbursement of government money. Taxpayers everywhere through their representatives should decide how they're disbursed. They've spoken through the Solomon Amendment. It's no more unjust to the law school and its community to deny them funding under these circumstances than it is unjust to the 60% of Americans that do not go to college that colleges receive any kind of federal funding. Taxpayers as taxpayers do not have an automatic right to the same funding as others without regard to their actions, circumstances, comportment with worthy public policies, etc.

I doubt Stone and other of my opponents here would say that an all white school that wanted to express thruogh its admissions policies a belief in racial discrimination and white superiority should receive federal funding. It's ridiculous and unrealistic that one could both take federal money and also disrespect a core federal agency charged with our national security--both as a policy matter and as a constitutional matter. There are schools, incidentally, like Hillsdale, that do not take any federal money to avoid potentially more invasive forms of federal interference, particularly into curricular decisions.

The second question is a more difficult one. It relates to the issue of "unconstitutional conditions." I honestly am not sure what I think about this. That is, I don't have a strong sense of what the metes and bounds of "unconstitutional conditions" law should be. I do think any such doctrine should be narrow. Following the *Dole* decision, the Court has recognized before the important difference between the government's coercive actions and its softer actions based on conditional funding. One might think on the outer boundary that the federal government could not, for instance, give out money to schools so long as they disavowed their religious beliefs, even when those beliefs did not require the school to violate some other federal policy, such as nondiscrimination or no contact with certain enemy regimes.

That said, the law has conditioned funding based on associational and speech practices before, once again, through the application of the freedom-trumping nondiscrimination principle. Title VI does not allow federal funding to universities and educational institutions that practice certain kinds of discrimination. Similarly, Bob Jones University v. United States, 461 US 574 (1983), denied "charity" tax exempt status to a private school that practiced certain discriminatory policies--banning interracial marriage. The latter decision was made without regard to its receipt or not of federal funding. This is certainly a more troubling decision from a government-coercion standpont than simply allowing military recruiters on campus.

Because the law school and its faculty so ostentaciously oppose the military's presence, distributing and wearing insipid rainbow ribbons for instance, the impact on the school's associational and expressive freedoms is extremely minimal, whereas the impact on military recruiting by the anti-military efforts of AALS schools could be significant.

Alum

" It's okay to discriminate on race and ethnicity (affirmative action) but not okay to do it on sexual orientation."

Whatever you may think of affirmative action, it's certainly not as ridiculous as you and Roach are making it sound. The obvious reason why "discrimination" against white males is considered by many to be acceptable, while other forms of discrimination are not, is a legacy of three hundred years of subjugation of minority groups. Reasonable people can disagree on whether this is acceptable, but it's certainly not "ridiculous."

Also, it's hard to see how the law schools are "disrespecting" the military. What they're "disrespecting" is the opinion of some members of the military that homosexuals should be excluded. One can easily be both a supporter of the military and a supporter of the inclusion of homosexuals in the military. In fact, there are many (perhaps a silent majority?) of our troops who feel just that way. Again, reasonable peoplee can disagree, but there's certainly no "disrespect" involved - unless you refuse to see the merits of the other side's position.

The Law Fairy

"It is in fact illegal to be an active homosexual and be in the military.... The nature of a discriminatory policy does not require one to be immediately fired upon discovery of one's status; it requires judging one group by different standards than another group."

Are you seriously saying that being stripped of one's livelihood is no worse than suspecting (though not knowing for certain, unless you're psychic) that you got passed over for that promotion because you're a man? It's one thing to feel, rightly or wrongly, that life is unfair to you (and, trust me, EVERYONE feels this way about many things and is probably right to some extent -- straight white men are not the only victims of unfairness by a LOOOOOONG stretch) -- it's quite another to be told, explicitly, by the federal government, that you as a person are unacceptable. That's being stripped of your dignity. That's being reduced to a lesser class of persons. It's incredibly disingenuous to suggest that the two are anywhere on the same plane.

And I'm not sure how you figure that I'm not opposed to broad discrimination, or how that's relevant (some people might call that "ad hominem"), or how you're reading what I wrote as saying that affirmative action is "broad discrimination." But, how's this: I will trade you the basic human dignity and respect that white men automatically get for being white men, in exchange for my possibility of a marginal "boost" to my resume when I'm job-hunting. Deal?

Roach

The Law Fairy does not address my point above that the military, like any elite organization, will always be disriminating by nature and that some of that discrimination will likely always violate the AALS policies, e.g., discrimination against the disabled. Second, she presumes that reverse discrimination only affects hiring and not firing, but there are in fact Supreme Court cases that have addressed discharge as well, where majority groups were terminated more readily because of their race or sex, including one involving public school teachers if I remember correctly. (Last point: I'm not sure what the whole "broad discrimination" discussion is you're talking about? I did a word search and don't believe I used that phrase).

The principle behind so-called affirmative action is, as you say, white men have had it good for so long so some corrective discrimination against them is OK.

But, anti-discrimination rules and laws are not written to permit this kind of selective application; they require like to be treated alike, and they forbid the use of race, sex, religion, sexual orientation, etc. as criteria in hiring and firing. The law school supposedly thinks this is an important princpiple. The U of C as well as other universities believe in it so much they've banned a certain employer from being on campus because of its discriminatory policies. Now, that's all fine and dandy, but it is nothing short of rank hypocricy to ignore what is objectively discrimination when it happens to be against a group that one feels it is OK to discriminate against. Discrimination simply means the exclusion of some group or the application of different, more rigorous standards to a person in that group when that group is defined by some arbitrary factor such as his sex or race or whatever. Conversely, it includes the application of laxer standards to some privileged member of a different group.

Affirmative action is discrimination, but it is openly practiced by the law schools and firms permitted to interview on campus. The AALS policy, which states its core values include "selection of students based upon intellectual ability and personal potential for success in the study and practice of law, through a fair and non-discriminatory process designed to produce a diverse student body and a broadly representative legal profession . . ." tries to have it both ways. It wants nondiscrimination, but it also wants "diversity." To the extent the latter requires discriminatory affirmative action policies, the two policies are completely at odds.

I propose that the law school and the AALS schools don't really care about the nondiscrimination principle, so much as they cares about basic leftism. Basic leftism usually involves a certain amount of hostility to the existing society, a particular animus against its traditional elites--such as white males--loathing for establishment institutions like the military, and a selectively unprincipled application of fair-sounding policies like nondiscrimination.

In this case, the nondiscrimiantion policy is applied to the core institutions of that society, such as the military, in order to reduce their prestige, while it is not applied to institutions that work to advance the interests of the erstwhile oppressed by violating the same policy. In other words, what masquerades as a neutral policy favoring an across the board benefit--nondiscrimination--is in fact a narrowly targeted policy designed to promote the interests and advancement of traditionally underivileged groups, at the expense of whites, males, and others. And, what masquerades as a neutral application of that policy against the military is in fact a highly selective application designed to show contempt for "the establishment," which leftism seen as the chief casue of the evils nondiscrimination policies are aimed to address. The real metaprinciple is not justice, but taking sides in a basic Manichean construction of the world: establishment/majority/white/male/American is bad, while minority/oppressed/women/foreign is good.

I suppose it is impolite to take stock of this. We're supposed to pretend the one and two standard deviation differences between white and minority students grades and test scores do not exist. We're not supposed to notice that in a school supposedly interested in diversity, Christians and conservatives are wildly underrepresented on the faculty. We're supposed to pretend the law firms that hire the various underperformers from minority groups are hiring the "best person for the job." And we're just supposed to pretend the law school's Orwellian description of reverse racism as nondiscrimination is not, in fact, an example of what it purports to oppose: discrimination.

But I'm more interested in speaking the truth than in politely ignoring a situation designed explicitly to do me, and people like me, harm.

Roach

"What they're "disrespecting" is the opinion of some members of the military that homosexuals should be excluded."

It's a federal statute that requires this. Should the University exclude Members of Congress too? Undoubtedly many members of the military agree with this policy, but Congress gets to change it or not, not the military acting sua sponte. The University is essentially punishing the messenger here. Nonetheless, it is a messenger loathsome to unpatriotic leftists who think it represents "300 years of oppression" and a "legacy of imperialism" and whatever other canards they use to describe a country we're illogically supposed to believe they are loyal to.

The Law Fairy

Roach, I'm very sorry that you see this as a you-versus-people-not-like-you situation. While certainly some "leftists" may have actual animus toward white males and privileged persons, the fact that people speak up for traditionally maligned groups doesn't mean they hate white men. It just doesn't. If you won't grant me that basic point, well, that's a shame since it must mean that you hate me since I'm an evil woman stealing your life from you and we disagree on policy issues (and thus there's really no point in continuing this conversation).

I didn't address your point about the military always discriminating against disabled persons because I don't really see the relevance. First of all, this happens in every industry where certain basic physical limitations can't be corrected for and thus certain kinds of work simply can't be done by disabled persons. The ADA only requires reasonable accommodations. So it's not clear to me that not putting paraplegics on the front line runs afoul of these laws. How are gay people inherently less qualified as servicemen? If you can only see gay people as stereotypes, then you'll at least have to grant that some of those lesbians are pretty buff -- right??

You're trying to make the discrimination argument by resting on an inflexible definition -- one that's by no means been agreed to at the outset. If we're going to get into a semantic debate, then discrimination occurs every second of every day, every time any decision of any sort is made. If I decide to eat lunch at McDonald's rather than Taco Bell, I've discriminated. So what? That's not the point. The point is that this KIND of discrimination is different from whatever discrimination occurs in affirmative action. I'm not familiar with the Supreme Court precedent on the firing issue, but even taking it to be true that some white men lose their jobs because of their race, it's still not the same. If a business is making cuts and chooses the white person to go simply because of race, the fact is that someone was going to get fired. The business HAD to "discriminate" to make that choice. Depending on the surrounding circumstances, this may or may not have been legal. But IT IS NOT THE SAME as telling the white man, if we find out that you're white, you're fired. It's fundamentally different. It doesn't matter what you call it, you can note the similarities, but that's NOT THE POINT. It is DIFFERENT, even if they're both "discrimination." One is a worse kind of discrimination. Period. Just because lying and murder are both "sins," doesn't mean they're the same thing.

What strikes me as particularly ridiculous is that the military supposedly faces a crisis of underrecruitment. Hello? What do you expect when you limit recruitment to people that meet some arbitrary criteria having, more than likely, to do with your ("your" meaning the powers that be in military policy) sexual insecurities? If the military needs people so badly, maybe it should think about changing its tune. Beggars can't be choosers.

Roach

Two quick points. It's true we discriminate all the time for reasons both rational and irrational. Nondiscrimination laws, however, take certain criteria off the table and declares them irrelevant and unalwful.

The firing thing is discrimination in this sense because while a random selection of workers to be fired or even a choice based on seniority or skills would be acceptable, one based purely or primarily on race would not.

Finally, the problem of being "found out" is a function of being somewhere against its rules. It's no different than if one lied to become a member of the bar, saying that one did not have a felony conviction for instance, and then spent years worried you'd be "outed." Outing is a function of breaking the rules at the front end. It would not be a problem in this context, but for the initial violation. Moreover, there is no mystery as to the rules when one signs up for the military. You cannot be an open homosexual in the miltiary. Sodomy is still against the UCMJ. Break those rules, among dozens of others, and you can get kicked out, just as you can get kicked out for lots of other reasons, some seemingly petty.

As for underrecruitment, that is a good argument that you should send to your congressman. I'm sure he's never heard it before. Of course, if the military and its units are marginally less successful because of open gays--because they're less cohesive, filled with drama and exclusionary acts against the openly gay members--it would be very hard to quantify the impact, but it would likely lead to some preventable deaths. The left never shied away from some bloodshed to prove its utopian theories, however.

As for this point, "the fact that people speak up for traditionally maligned groups doesn't mean they hate white men. It just doesn't. If you won't grant me that basic point, well, that's a shame since it must mean that you hate me since I'm an evil woman stealing your life from you and we disagree on policy issues . . ." I don't see your point. I'm talking about the motives behind the inherently contradictory affirmative action regime in academia. Those motives are apparent from the actions and statemtents of its proponents. It may not require "hate" of white males, just a hatred for the culture mostly they have created, a resentment at their power and history, and a desire to reduce their relative position. You can talk or not to me as you wish; I think my arguments speak for themselves. I also don't assume anyone who endorses affirmative action necessarily hates white people or hates America. Some have a noble desire to promote groups that they see as oppressed underdogs who need a leg up.

That said, the logic of diversity, open borders, affirmative action, and many other leftist programs in our society is, essentially, to abolish that society and replace it. The logic of the obsessive focus on our sins is to redue our faith and confidence that anything in that society is worth defending. Why? Because to the leftist that society's historical foundations are seen as inseparable from great evils, such as slavery, racism, sexim, etc. One doesn't want to abolish something that one holds in high regard. That's why I call the left unpatriotic and anti-American. I think the more honest among them would admit to that, such as Katha Politt in her anti-American flag piece in the Nation shortly after 9/11.

Law Fairy, you seem to act under the delusion that those you intend to victimize and emasculate will all go along willingly out of the anti-American shame pounded into our heads since the freshman year of college or the occasional pro forma mention of regard for their interests. Some of us, however, learned to think independently along the way and learned that when the game is being rigged against you openly and explicitly, it's just the beginning.

Mass violence seems to be most primed to occur when a group perceives itself to be avenging an injustice or preventing impending violence against itself. The Tutsi victims of the Hutu formed the major constituent of a violent rebel group in 1994 Rwanda and had previously constituted the dominant ruling class. The extremist Hutu leadership sold their violence as a necessary measure to protect themselves from the repetition of Tutsi overlordship. There are parallels to the Nazi claim that it was the "Job of history" avenging the "stab in the back" at Versailles, or the Bolshevik notion that it was leading the proletariat in throwing off the yoke of capitalist oppression.

In other words, the same pervasive victimology that the left pedals as the necessary condition for positive social change also can form the ideological basis for mass violence and oppression. I'll keep my powder dry, thank you very much. And I'll expose the lies and hypocricy of the leftist program, as I'm able.

The Law Fairy

So... you didn't address my question about what inherently makes gays less qualified to serve in the military, but you think somehow having gays will lead to more "drama" and there will be discrimination against gay people in the military, therefore we should discriminate against them at the outset? I'm having a little trouble wrapping my head around that one.

I never realized I was intending to victimize or emasculate anyone. Crazy the things you can learn from a stranger on the internet!

Roach, you can cry all you want about how the poor white man is victimized and society teaches people to hate America and white men. When the majority of CEOs, college professors, Congresspersons, judges, military commanders, law firm partners, ambassadors, or other leaders ("or," meaning I'll take ANY ONE of these) are non-straight, non-male or non-white, then your argument might have a modicum of plausibility.

And you want to talk about an openly and explicitly rigged game?? Seriously?? You show me one straight white man who's ever been enslaved, denied the vote or the right to own property because of his race or gender, or arrested for having consensual sex in his home with his long-time partner, and been denied legal aid because the legal system conferred legitimacy on all of these atrocities, and maybe you'll have a leg to stand on here.

Roach

My point was not to get into a lengthy debate about the merits of the don't ask. don't tell policy. I have, however, marshalled most of my arguments in favor of it with a lot more rigor on this thread:

http://www.blackfive.net/main/2005/11/why_cant_gays_s.html

On your last point, history doesn't repeat itself in the same way. But two examples come to mind. Fathers are routinely denied access to their children and forced to pay child support and live as indentured servants in the case of divorce. There is often very little attention paid to their interests, including even miraculously in cases where they are not the biological fathers.

Second, whites right now are being killed in Zimbabwe by Robert Mugabe's thugs in a racist atmosphere that he has fomented after 20 years of relative calm following the dissolution of Rhodesia. He's scapegoating them as the blacks former oppressors in much the way that you are. Any idea why the media knows about Sudan, the Holocaust, and Kosovo but could give a fig for the whites of Rhodesia, just as it could give a fig for the Algerian Pied Noirs and the Armenians?

Any neat theory of why black on white crime is no longer discussed in our media even though it's 10X the white rate?

Any idea why everyone knows about Jasper Texas but no one knows about the anti-white ritual killings in Wichita?

There are dozens of other ways this atmosphere has hurt whites, particularly working class whites/males/Christians/majority folks, but I can see you're not too concerned and probably completely ineducable on this subject. Your neat theory of white/man/majority=bad, brown/women/minority=good is too comprehensive to permit otherwise.

Your arguments have all been so boring and predictable. Do you not have anythign interesting or original to say?

The Law Fairy

So boring and predictable, I see, that it's all you can do not to fall asleep as you craft your repetitive responses.

Alum

Roach, I'm confused, a bit, by your seeming implication that the American left is somehow trying to obscure the so-called "hypocrisy" of affirmative action. I'm unclear whether what upsets you is the alleged denial of the hypocrisy or the merits of the program itself. I had thought most supporters of affirmative action were explicit in the reasons for their support: to overcome the effects of years of discrimination. (I take it you aren't seriously denying that discrimination took place, but may be denying that disparities between minority groups and white males are a result of that discrimination. We differ in our opinions on that, I think, but I want to make sure I'm accurately stating your opinion.) So my basic question is whether you are upset because you think people are denying the reasons for affirmative action, or whether you are upset about the results of affirmative action. If it's the latter, then I suspect you would deny that disparities in performance are a result of past discrimination; and if that's true I'm not sure this debate will go anywhere.

Roach

You ask a good question Alum.

I suppose I oppose it for both reasons, but chiefly for the hypocricy. The hypocricy is important, because programs like affirmative action depend upon bamboozling the public into thinking that it's not really discrimination, though it is. This hypocricy thus fails to explain to one group that they're being treated unfairly, nor does it explain the degree of that mistreatment. (It's massive and egregious; I worked on Gratz/Grutter at the Center for Individual Rights. FOIA materials showed whites in the presumptive deny column when similarly situated blacks would be in the presumptive admission column.)

I also oppose affirmative action on the merits. I'm sure disparities today have some grounding in past discrimination. But I think they have more to do with other factors, particularly culture and IQ. The racism explanation has a huge gaping hole that cannot be explained by the racist theory of black/hispanic failure: the meteoric success of Asian immigrants over the last 30 years. So, while certainly blacks, women, and other minorities were excluded from positions of power for many years due to formal and informal discrimination, the chief effects of that discrimination were remedied 40 years ago with laws like Title VII. These laws were a reflection of a white society that rejected such obstacles to people's success as un-American.

When parity did not quickly emerge, the neat explanation of "insidious sub rosa discrimination" came up and affirmative action was the solution. (Additional justifications in diversity and overcoming a legacy of oppression have also been tendered).

I oppose affirmative action for the same reason I oppose racist discrimination laws: it is unfair for the law to mandate judging people negatively on account of their race, sex or other factors unrelated to performance. As I said above, I still don't think this should be illegal, just as I don't think affirmative action should be illegal. As an employer, though, I'd follow a nondiscrimination ethic regardless of the law. I favor merit, motivation, brains, and a work-ethic and have happily worked with all kinds of people successfully. (Indeed, the nepotistic hiring practices of certain big Texas firms only made me more inclined to favor authentic meritorcracy). But so long as nondiscrimination laws exist, they should be applied fairly and consistently, not only against whites and men in favor of minorities and women. That would amount to a legally imposed impediment for entire groups, Jim Crow in reverse.

I do not believe "homosexuality" is the same as these categories because it manifests itself in behavior. I also don't think that the military's policy is justified or not on the same basis as that of a private employer because of the unique demands of military life. That is, I would find a private employers anti-gay policy inefficient, eccentric, and mean-spirited, even though I still favor the military's.

Alum

well, we've certainly gotten a long way off base...it's interesting, though. I think I understand Roach's position. It's similar to a lot of conservatives' anger, I think - not thinking we should use the wrong of present discrimination to rectify the wrongs of past discrimination, and angry that because they think so they get labelled as 'immoral'. I don't think, though, that any honest liberal would defend that position. The strongest point against Roach's argument (one I find persuasive) is that, empirically, at the end of the day, what affirmative action does to white men today is nearly trivial relative to what Jim Crow and past discrimination did to African Americans and Native Americans, and what patriarchy did to women.

Desideria

so two wrongs equal a right?

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