Owens Rhetoric

Does Tom Fetzer do anything other than read campaign expense reports?

The day after I wrote the below post, Gov. McDonald issued an executive directive purporting not to tolerate employment discrimination of any kind within state entities. A few points, upon which I’ll flesh out after vacation.

Warner and Kaine issued legally binding executive orders; McDonald issued a non-legally binding directive. The directive fails to specify, as the orders did, protection against gay discrimination. We’ll see how those distinctions play out.

More importantly, we need to talk about class. Nishant’s comment below and McDonald’s directive point to the 14th amendment’s equal protection clause as a source that already protects against gay discrimination; so, no further law is needed. That’s not the case. And for quick proof: if that were so, don’t ask don’t tell would be unconstitutional.

To borrow from Fish: there’s no such thing as no discrimination. To discriminate = to make a decision based on particular factors. The constitution allows discrimination betwen sets of people, like those qualified for a job and those not, those with x education and those with y education. A world without discrimination is impossible.

What the Court has done with discrimination regarding types of people is this:
For most classifications, the government decider must have some rational basis, connected to the underlying policy goal, to make the distinction. That us an amazingly easy test to pass in front of a judge. If that classification is gender, the test is a bit tougher- got to be substantially related. And if the classification is race, ethnicity, or dealing with a fundamental right like privacy, it must be narrowly tailored to meet a compelling government interest. That last test is quite tough.

Protections against gay discrimination fall onto the first set: they exist but are easy to surmount. Gay rights pursuant the 14th amendment’s equal protection clause are, returning to my borrowing from Fish, akin to your ‘right’ to yell ‘fire’ in a movie theater. As such, it seems to me an intellectual head fake to direct state agencies against discrimination pursuant to the equal protection clause.

Virginia has taken a regrettable step back from the direction of human dignity.  But the media folks are blaming the wrong person.  They, and the folks protesting, need to shift their ire away from Attorney General Cuccinilli and towards Governor Bob McDonald.

Here’s a Washington Post headline from this weekend: “Virginia attorney general to colleges: End gay protections.”  And here’s the Huffington Post (the internal link is to the WaPo article: “As anyone who cares about human rights in America should know by now, Ken Cucinelli [sic], Virginia’s Attorney General, has “urged the state’s public colleges and universities to rescind policies that ban discrimination on the basis of sexual orientation….”

From Charlottesville’s NBC local news: Gay rights supporters met at UVa, “in response to a letter from the state attorney general that would dramatically change discrimination rules – or protections – for gays and lesbians on grounds.”

From Richmond’s Times Dispatch: “Students and faculty urged Virginia Commonwealth University administrators this morning to take a strong stand against Attorney General Ken Cuccinelli’s opinion that gays cannot be included in state anti-discrimination policies.”

The protections that Cuccinelli ripped to shreds, according to the news, are not his to make or destroy.  The letter was an advisory opinion.  Back in 2006, the prior Attorney General opined, also, that protections against state agencies hiring or firing based on sexual orientation were unconstitutional.  But I don’t recall reading news stories about that 2006 advisory opinion, because no one cared (because, in turn, the executive had no interest in enforcing it).

Flash back to the Washington Post circa 2005:

RICHMOND, Dec. 16 — Gov. Mark R. Warner (D) on Friday quietly amended an executive order that for the first time explicitly bans Virginia state agencies from discriminating against gays in hiring and promotions.

The policy went into effect immediately, and a spokeswoman for Gov.-elect Timothy M. Kaine (D) said the incoming governor plans to continue the policy by signing the same executive order when he is inaugurated Jan. 14.

And back to 2010.  Shortly after his inauguration, Governor McDonald decided to discontinue the protections against gayscrimination in state agencies, and stripped those provisions from the prior two Democratic administrations’ executive order.  One ought seen that coming, as McDonald was the 2006 Attorney General that opined the protections unconstitutional in the first place.  As Cuccinelli’s Advisory Opinion notes:

In 2006, this office concluded that the addition of sexual orientation as a protected employment class by way of an executive order of the Governor was intended to, and did, alter the public policy of the Commonwealth.

In both 2006 and 2010, the Attorneys General were offering an opinion on the state of Virginia law relating to protections, within state units, for gay workers against discrimination.  The legislature, then nor now, did not place those protections within the State’s statutes, so the question is whether the Governor can create those rights with an executive order.  The difference between this 2010 letter and the AG’s letter from 2006 is that the Governor’s and Attorney General’s offices agree.

Virginia’s colleges and universities are, as AG Cuccinelli’s assailed letter describes, state government institutions.  What, though, is the scope of authority that college boards (in VA, the “Boards of Visitors”) have in setting out rules and regulations for the college?  It’s a legitimate legal question, and falls in with the old chestnuts of administrative and local government law: who tells these government units what to do; how much discretion do these government units have; and, to what degree of specificity must authority derive from the legislature or executive?

Those are decent legal questions for discussion.  And that is what the AG’s letter is about.

In late 2005, then Governor Warner made the decision to incorporate gays within the State’s anti-discrimination rules despite the legal uncertainty.  That decision is what initiated those protections and sparked headlines.  Now, it should be the current Governor’s decision to rescind those protections in the headlines.

Professor Balkin has a post up today that brings to mind some recent posts here. Balkin argues that the lawyers in the McDonald case yesterday might have argued for overturning Cruikshank rather than Slaughterhouse.  Balkin’s description of federal and state rights as set forth in the 14th Amendment will be a relief after my own stab at that.  And on the problems that led to Cruikshank, see my quick review of Lane’s book on the matter.

A condensed version of Dean Boger’s 2003 article,  Education’s “Perfect Storm?” The Effect of Racial Resegregation, High Stakes Testing, and School Inequities on North Carolina’s Poor, Minority Students, is archived online from the Spring 2003 issue of Popular Government.  The perfect storm for public education consists of three factors: resegregation along increasingly marked socioeconomic and race lines; high-stakes testing and accountability; and continuing inequalities in school finance and resources. The factors’ convergence, to summarize Boger, would be a major blow to public education.

Dean Boger’s article describes the judicial pickle in which desegregationist school boards found themselves in 2003: federal judicial control after Brown and Swann transformed the South into the most integrated region in the nation; but, as local control sifts back to school boards, the federal courts have taken away the tools with which they might remain models of integration – namely, the ability to directly consider race while making school assignments.  And that judicial erasure of an integrationist tool is joined by local political pushes for neighborhood schools and parental choice.  The article goes on to cover the other factors, but I want to remain on segregation for now.  In the conclusion, Boger finds some hope in the Wake County school system’s approach using socioeconomic indicators, that had been in place since 2000 (before that, since the 1970s, Wake used race).

Within North Carolina and the Fourth Circuit, the model of school assignment that Wake County has chosen to pursue would, if adhered to over time, avoid much of the educational damage that this article has forecast.  Wake County assigns students on the basis of socioeconomic status and academic performance: no school may have more than 40 percent of its children eligible for subsidized lunches or more than 25 percent of its students scoring below grade level.  This approach actively resists the demographic trends toward high-poverty and low performing schools that set up sorting behavior by white and middle-class parents.  Yet the capacity of the Wake County school board to sustain broad support for these policies will be seriously tested in the coming few years, and other school districts may not find leaders willing to follow Wake County’s example.

Alas, Boger predicted correctly, Wake couldn’t hold up.  On Tuesday night, the Wake County school board, consisting of a new majority that came about with the October 2009 school board elections, voted to end school busing for diversity.

The current superintendent, Del Burns, announced his resignation after the new Wake County school board coalesced.  He said he could not ”in all good conscience, continue to serve as superintendent.”  From the Independent:

“I will not allow myself to be a pawn in political gamesmanship.” The new majority’s policies, Burns warned, if allowed to take effect, would balkanize Wake’s schools, chopping the unified system into separate “have” and “have-not” subdistricts—some 20 in all. High-poverty areas, or zones, would have high-poverty schools, despite extensive research about how that hurts the children forced to attend them.

For more on some of the politicking behind all this, see the Independent’s treatment, tellingly titled “Wake County Goes to Hell”:

Indeed, the Wake election was the mirror image of the tea-party campaign mounted nationally last year against President Barack Obama’s health care reforms. In both cases, a loud, relatively affluent minority was fighting to protect its rights as it perceived them (“my” health insurance, “my” schools). In both, people vehemently rejected any suggestion that what they have should be shared with others (the uninsured, schools in low-income neighborhoods).

And in both, organizers were supplied and paid for by rich conservatives.

In Wake County, in fact, the same multimillionaire conservative helped fund the anti-health care protests and the campaign to seize the school board: Raleigh businessman and former state Rep. Art Pope.

Politics aside, it’s important to recognize that, for many folks interested in education, integration is about more than cultural benefits.  It is about student improvement.  The version of Dean Boger’s article that appeared in Popular Government highlighted Bill McNeal – then Wake County’s superintendent (he left in 2006 to head up NC’s Association of School Administrators).

In the two years since McNeal became superintendent of Wake County Schools, the district has posted impressive gains in the end-of-year tests.  Last year, 89.4 percent of students in grades 3-8 scored at or above grade level, a 4.5 percent increase since 2000.  Reading scores were up two points for all students, four points for black and Hispanic students; and math scores were up three points for all students, six points for blacks and Hispanics.

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And speaking of student improvement – let me close with a link dump.  I’ve noticed several interesting articles lately on teachers; and one, today, on Diane Ravitch.  Perhaps this is all warm up to one our our next great domestic debates, revising No Child Left Behind.

The Atlantic and NY Times seem to have engaged in a contest on who can create the best how-do-we-make-good-teachers articles Here’s the Atlantic’s take, and here is the NY Time’s.

And here’s the key graph from the Ravich article:

Once outspoken about the power of standardized testing, charter schools and free markets to improve schools, Dr. Ravitch is now caustically critical. She underwent an intellectual crisis, she says, discovering that these strategies, which she now calls faddish trends, were undermining public education. She resigned last year from the boards of two conservative research groups.

If local politics has you down, go enjoy those articles.

A little science for Monday evening:

I understand the falling off of a complete parallel that is necessary to analogies; but, there is a point towards perpendicularity wherein an analogy becomes useless.  Problem is, to understand whether an analogy is appropriately parallel, one must understand the substance of the two analogized items.  I don’t, in the forthcoming instance; so any help in the matter is appreciated.

The following is the general analogy for gravity in general relativity, courtesy of Stanford’s Gravity Probe B project:

This is the core of Einstein’s theory of general relativity, which is often summed up in words as follows: “matter tells spacetime how to curve, and curved spacetime tells matter how to move”. A standard way to illustrate this idea is to place a bowling ball (representing a massive object such as the sun) onto a stretched rubber sheet (representing spacetime). If a marble is placed onto the rubber sheet, it will roll toward the bowling ball, and may even be put into “orbit” around the bowling ball. This occurs, not because the smaller mass is “attracted” by a force emanating from the larger one, but because it is traveling along a surface which has been deformed by the presence of the larger mass. In the same way gravitation in Einstein’s theory arises not as a force propagating through spacetime, but rather as a feature of spacetime itself.

I frequently see that analogy as the counter to Newton’s non-explanation for gravity; wherein gravity is simply a force that objects exert, increasing by mass.  Rather, gravity is a result of objects bending spacetime.

My difficulty is that, for something to bend like a trampoline, it needs to have atoms bound together that hold up and stretch under the weight of an object.  It must, in other words, by physical.  Is spacetime a physical thing upon which the sun and planets sit?  I suppose, if it is not, the analogy loses me.

Anyway – after googling that for a little while, I was amused that there exists a company that provides trampolines for parties – it’s called the Anti-Gravity Trampoline.