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.

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.

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.

~~~

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.

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.

And this latest section of Ferling’s A Leap in the Dark prompts another, similar question: which is the more egalitarian, Hamilton’s vision of an industrial, merchant society, or Jefferson’s collection of minimally governed self-sustaining yeomen?

One can make the case for each.  A commercial society is (kindof)  inherently egalitarian, profits are status-blind, and so on.  Self-sufficient farms are egalitarian in the sense that they allow a family to live largely off the social-status grid; one need not be connected to grow sweet potatoes.  And they are, from Ferling, “uncorrupted by the snares of capital.”

For the cons of each, here is Ferling:

Jefferson foresaw, correctly, that the world Hamilton wished to create would consist of considerable pain, including widespread exploitation of white workers, among them very young children, unspeakable urban squalor, and the emergence of a commercial and industrial plutocracy that would ravage the promise of individual liberty that had been the cornerstone of the republican ideology of the American Revolution.  However, the world that Jefferson hoped to sustain was not without pain.  It included abused slaves, who lived without hope under the most abominable circumstances, and many free persons who eked out a living from timeworn lands while paying homage to a squirearchy that monopolized political power.

In any event, it strikes me as a good American History exam question: the respective visions of Hamilton vs Jefferson, which is the more egalitarian?

Textualists, intentionalists, and spiritualists (of the law) have long debated how we ought apply the lines of our Constitution and statues to specific cases.  Can we, for instance, infer a basic privacy right from the first ten amendments.

Here’s a glimpse of our American debate, via an exchange at the Ashbrook Center:

Peter W. Schramm: Another question. Justice Thomas, could you comment on the reasoning of Griswald, and tell us what you believe it could lead to in terms of the expansion of privacy rights?

Justice Thomas: Griswald has been around a long time. I will comment on it only to this extent. Of course you know that there the rights were supposedly emanated from these penumbras. So when I got to the court, a friend of mine, who will remain nameless, sent me a custom made sign that’s on display in my office that says, “Please do not emanate into the penumbra.” And I’ve tried to steadfastly avoid doing that.

I don’t know what it would lead to. I think that the scholars have reached different conclusions, but we of course know that that was one of the precursor decisions for Roe v. Wade. And of course, we’ve changed that reasoning a bit inCasey. But we’re already beginning to get, and I’m just talking about a class of cases–I’m moving a little bit away from privacy a second–we’re already beginning to get the reliance in the right to die cases, on some of those cases, certainly on Casey, and language in Casey. So I think you can begin to see that the big cases, and I’ve said this to others, that you’re going to begin to see, I think, some cases now talking about who gets to live, who gets to die, who gets to be born and all sorts of things like that. And that’s going to be hard, and I think they’re going to rely on some of these precursor cases. And how we come out, I don’t know.

So it was neat tonight to read Adriaan Lanni’s article on judicial review in ancient Athens.  The article describes the legal arguments that Athenians made against newly passed decrees and laws.  Mostly, the arguments used two lines of reasoning – (1) the law’s inception violated the process through which laws are supposed to come about; and (2) the law directly violates a previous law.  But then there was this:

Wolff’s landmark study, “Normenkontrolle” und Gesetzesbegriff in der attischen Demokratie, added a third category of legal argument: the statute under review contravened general principles that could be logically derived from existing statutes, as opposed to directly contradicting a specific provision.  Wolff viewed this third category of argument as most central to Athenian notions of constitutionality, and carefully traced the Athenians’ increasing sophistication at extracting fundamental principles from statutes over time. Two additional aspects of Wolff’s theory are important for our purposes: first, the fundamental principles involve moral and social values and institutions … as well as democratic political and legal norms … and, second, the general principles are always derived from statutes and are never appealed to as independent, abstract values.

I always think it’s worth remembering the neoclassicism flowering at the end of the Enlightenment; and, more importantly, really, the historiographical context. Then, as now, students of Greek history learned that while, yes, Athenian democracy was an important human development, the institution ultimately brought Athens down because the demos couldn’t govern. By the time I reached college, the story was that the voting poloi’s livelihoods relied overwhelmingly on war – so they voted for war all the time. And they voted myopically. And with blinders. The point being, the masses were not good at governing. Our Founders had basically the same understanding of that history, which reinforced a general notion that you don’t want straight democracy.

And so, this different theme regarding the makeup of the national leader class has a slightly different feel than meritocracy. Ferling writes that most founders, forgetting that they were upstarts by Londond’s standards, regarded the post-war Congress as a bunch of scrubs, elected by unthinking populist-driven localities. I actually think Sarah Palin may be a bit of an analogy.

Also, it was interesting to read about that fear now, during the Great Recession. The policies passing through state governments, so fear-provoking to several founders, sometimes resulted in creditors losing their claim to money because of debtor-friendly relief laws. Shay’s Rebellion started as a foreclosure protest. The big deal, among nationalists startled by these developments, was the need for a federal government that could protect property. The states, they felt, were unable to stand up for property rights (of creditors and land owners) against popular sentiment for debt-relief and redistributionists.

Ferling offers a few quotes:

“Our chief danger arises from the democratic parts of our constitutions.”

The “people … should have as little to do as may be be about the Government.”

The “evils we experience flow from the excess of democracy.”

Randolph urged checks against “the turbulence and follies of democracy” and maintained that ways must be found to restrain “the fury of democracy.”

The Constitution “embraced what Madison subsequently called the ‘republican remedy’ against radical change.” The factions (F10) would prevent any hasty, democratic policy-making. Here is Ferling:

Indeed, Madison boasted proudly that the system would “refine and enlarge the public views,” resulting in national policies “more consonent to the public good than if pronouced by the people themselves.”

…But somewhat cryptically he also explained why this new national government would not be susceptible to the sort of substantive changes that had occurred in several states. Few of the “new men” so visible in state politics, Madison said, were likely to rise to this higher level. The “vicious arts by which elections are too often carried” in the states would be unavailing in the national electoral systems by this convention. …National officials would be “a better class” of society….Madison’s communication, first to the majority that attended the convention, then to like-minded nationalists throughout the county, was that the way had been found by which to make radical change difficult, if not impossible. Change at the state level would be impeded by the national government. At the national level, the separation of powers and numerous checks and balances erected within the proposed new constitutional system were to constitute purposeful barriers to change. …If this Constitution went into effect, the “changeableness” that had been set afoot by the American Revolution would henceforth be unlikely or, at best, would occur at a glacial pace.

Fewer of the “new men” would rise to national leadership. In the context of these few quotes, that fear of the new man is a much different driver, regarding national leadership, than the big pool, meritocracy driver.

A meritocracy implies an egalitarian playing field and one in which particular talents are recognized with all other things being equal. The bigger the net, the better chance of finding the right fish. There is something quite different to the notion that we need national leaders to keep a status quo.

I cannot help but think of Hamilton and Madison. Hamilton, a foreign bastard, could become a national leader because of meritocracy. Madison, the wonk-gentleman, typifies the landed interests prominent among most other founders.

They both predict, in their Federalist essays, a finer breed of national leaders. But, I wonder if their assumptions and motivations for that leadership were quite unalike.

That last bit is where the article purports to marinate, before returning us back to Texan education policy. And I was looking forward to some interesting historiography as the in-depth section kicked off with:

There is, however, one slightly awkward issue for hard-core secularists who would combat what they see as a Christian whitewashing of American history: the Christian activists have a certain amount of history on their side.

But the article didn’t give us too much more than a casual reader of American history already knows. The colonies were largely, and often officially, Christian. The folks that found themselves within the Continental Congresses were, for the most part, Christians. There were also several that manifested the Enlightenment detachment from Christian specificity, particularly the need to be saved via Jesus. The Declaration of Independence asserts that the Creator grants basic human rights. The Constitution does not mention that Creator. And all that comes back to this:

As Frances FitzGerald showed in her groundbreaking 1979 book “America Revised,” if there is one thing to be said about American-history textbooks through the ages it is that the narrative of the past is consistently reshaped by present-day forces. Maybe the most striking thing about current history textbooks is that they have lost a controlling narrative. America is no longer portrayed as one thing, one people, but rather a hodgepodge of issues and minorities, forces and struggles. If it were possible to cast the concerns of the Christian conservatives into secular terms, it might be said that they find this lack of a through line and purpose to be disturbing and dangerous. Many others do as well, of course. But the Christians have an answer.

Their answer is rather specific. Merely weaving important religious trends and events into the narrative of American history is not what the Christian bloc on the Texas board has pushed for in revising its guidelines. Many of the points that have been incorporated into the guidelines or that have been advanced by board members and their expert advisers slant toward portraying America as having a divinely preordained mission.

I didn’t feel like the conversations about religion, history, nor education were very much improved by the article; in sum, it seemed very much in the familiar pattern of some people say this and other say that. The article failed to ask the questions that lay hanging over the entire debate presented within it, namely: what would it mean to be a “Christian Nation” (what goal do these folks have in mind); is the Declaration of Independence a foundational document of the US government or does it, in a more limited way, simply shed light on statutory (and Constitution-atory) intent; and to what degree would the Texas School Board folks desire that schools proselytize?

The story prompts those questions; and to be fair, it is likely purposefully limited to politics. But these types of stories are worthwhile if can engage on the foundational issues and assumptions.

I would have enjoyed something a bit more searching; perhaps I still lean overly much to the type of treatment to these questions I found in Jacob Needleman’s The American Soul. Now, that’s a good read – but he had an entire book, so perhaps I’m being a bit unfair.

Yesterday, happily snowed home, I read about the first Continental Congress’s debates while drafting a note to the King.  Questions, wrote Ferling, “over the colonists’ rights has stirred a firefight.”

The radicals in the committee insisted that Americans had derived their rights from nature; two years later this would become the now familiar “truth” that “all men are … endowed by their Creator with certain inalienable rights.”  Conservatives argued that the rights enjoyed by the colonists had been bestowed by the English constitution and the colonial charters.  The differences were resolved by a compromise.  The eventual Statement of Rights and Grievances listed all three as sources of the rights of colonists.

(p120)

It the great old question, and always worth considering.  Do we, with Locke, believe that a human being possesses rights upon birth, regardless of the amount of and type of society and government the human pops out into?  Or, chuckling with Bentham, is that a bunch of nonsense on stilts?

It occurs to me the the word “rights” has no meaning without a society to define it.  And there are no “rights” without a government to set them apart for protection.  But, in governments such as ours, we identify rights by looking into the inalienable world of natural law.  So, government creates rights, but does so by looking for rights that government is powerless to create.  Sounds like a koan.