My writing is 'not very good,' and other reasons you can't get ahead in our not-really-a meritocracy

Pxhere CC0

A purported mentor once told me that probably I couldn't find a job in academics because my "writing is not very good."

'Tis the season when the law professor should be writing exams, yet is inundated and distracted by requests for recommendation letters to aid students on the career track. The distraction has caused me to ponder the futility of it all. Aside from the fact that my laboriously and meticulously drafted letters scarcely will be read, I'm saddened by how little a person can do to move the needle on ultimate potential in our supposed meritocracy.

In the 20-aughts, I was looking for my second job in academics, hoping to leave Arkansas and the curse of flyover country. My job search took five years. I lost count of how many applications I put in. It had to be more than there are law schools in the United States.

At some point, through a program I won't identify, as not to identify the person, I was paired with a mentor, an academic at a U.S. News "top 10" law school. After a couple of telephone counselings in which he told me nothing I did not know already, he suggested that maybe I needed to accept that I could not score a job because my "writing is not very good."

That was hurtful. Not because it wasn't a fair consideration to put on the table; it was. It was hurtful because it was his go-to conclusion, and rather the end point of the short arc that was his mentorship. There were countless other explanations for my struggle in the job market. He blew past all of them to rest on one: I suck.

Implicit in the suggestion was that he was at a top-10 school because he was so much better at the job than I. That's what hurt. And as I've matured in my career, I've come to realize how wrong he was.

I have a lot of experience now on the hiring side of hiring, almost three decades, at least in legal academics. And I've worked out a formula, though sometimes I tweak the apportionment, I feel like about describes the factors at play in getting a job, certainly in legal academics, but maybe anywhere:  

• 60% privileges; 
• 30% right-place-right-time; and 
• 10% merit.

I'm not one of these "privilege walk" organizers who use loaded questions to make people feel guilty about socioeconomic advantages, and then to feel good about having felt guilty, and then relish telling everyone how privileged I now know I am, without actually doing anything to make the world better. But I do try to be conscious of privileges, especially the ones that I have and did nothing to earn.

I did not start at the bottom of the ladder. That I'm not a person of color, thus not subject to unfair biases manifesting as implicit assumptions about aptitude and potential, nor followed by security in stores and distrusting of police; that I went to K12 in reputable suburban school districts with dedicated teachers and was a child of two parents with college degrees: these factors have worked immeasurable benefits in my life, no thanks to anything I did.

I didn't start at the top, either. My divorced, usually single parents were college educated thanks to community-college access and the military. My family was the typical penniless-20th-century-immigrant story, and my parents and grandparents were victimized by ethnic discrimination with real socioeconomic consequences. I was able to go from public school to a first-rate undergrad with mostly private-schooled kids only because I earned a full scholarship.

On the inside of hiring in academics—I can tell another time cringe-worthy stories of before academics—I have seen it all, and candidate merit is only weakly indicative of outcome.

Because of the prevalence of liberal politics in academics—I do not suggest that preferences ordinarily run in these directions in the job market in general—I had a dean who announced the race (not mine) and gender (not mine) of an intended hire at the beginning of the search process; and I've had colleagues announce, also in advance of a search, that they would vote against any candidate of a certain race (mine) or gender (mine). I've likewise heard colleagues openly favor or disfavor candidates based on perceived sexual orientation (minority favored) and religion (belief disfavored). So to pretend that these factors are not in play, whether or not they are verbalized, would be willfully ignorant.

But race, gender, etc., are easy targets to exemplify pernicious discrimination. There are other factors that are more subtle, yet equally well effect socioeconomic exclusion, and thus indirectly race discrimination. And these factors are embraced by persons both liberally and conservatively minded.

When I was at a "tier 3" law school looking for a job, a colleague at a "tier 2" school—who knew I was looking for a job—asked me whether I might recommend anyone—not me—to fill an open position at her school. I was disqualified presumptively for the open position, because I did not do a judicial clerkship after law school. My colleague iterated this hiring expectation as if it were a self-evident sine qua non. She assumed I knew my place, and I was in it. One does not advance to tier 2 without a clerkship on the resume. "We prefer people who've clerked at the Supreme Court," she said breezily.

I didn't do a judicial clerkship after law school for various reasons. A big reason was that I was sick over the profound debt I had incurred paying for law school 100% with loans. 

I had turned down full scholarships at two other law schools to pay full freight at a top 10, because I hoped the top 10 would open doors the others could not. I could not see, after law school, how I could take a job in which I would struggle to make monthly payments, or worse, postpone them, with interest accruing. For the same reason, I didn't go back to journalism after law school, which had been my plan. I also did not have anyone in law or legal academics to advise me on the value of a clerkship—an opportunity, perversely, that one never has again—for my later career.

I was the beneficiary of many privileges at that time in life. Not among them was the luxury of choosing a clerkship or any job because it would be a smart resume builder, rather than because it would pay my bills. Not among them was having anyone to model a career in legal academics, or tell me what to do to get there. And yet, with no undergrad debt, I already was much better off than most of the students I teach now. I did not yet have a family to take care of. I was able to put every spare dime from my attorney earnings into paying off my debt.

My top-10 choice paid off some, because I would not otherwise have scored my first job in academics. A key faculty player in hiring had gone to the same law school I did. The hiring school was in urgent need of an immediate start, and I was willing to quit my job and move halfway across the country at Christmas. The hiring school was especially vexed over poor student writing skills, and I was a former journalist and capable copy editor. There it is: 60% privileges, 30% right-place-right-time, and 10% merit.

Yet I would be limited thenceforth by not having clerked, and by other, similar factors. I never volunteered abroad, as many aspiring academics do. I wanted to—because of my family ties, a passport was a privilege I did have—but, again, I had to work 50 weeks per year to pay on my debt.

At my attorney job, I had little to no mentorship; it was all about billable hours. I had no role models to show me how to navigate in that world. I had no business contacts; no matter how hard I worked, I never would have made partner. The media lawyer I worked for when I started left for an in-house position after a year, and I was reassigned to the grind of mass-tort discovery.

In my first academic post, I had little to no mentorship in my professional development at my "tier 3" school. I had not even a scholarship requirement for my first years, when I was a contract instructor, not tenure track. I did not know to publish, what to publish, or where. I wrote and published only because I wanted to, about whatever I wanted. It was the law-professor equivalent of being a journalist; if you have writing in your heart, it's a compulsion.

I did not know that the choices I was making, from starting as an instructor rather than an assistant professor, to the lack of an overarching research agenda, to everything from subject matter to placement strategy to the titles of my articles: all was part of a portfolio that I had only one chance to do right. I didn't.

Sometimes a student comes to me and expresses a desire for an academic career. My heart breaks. I have a rehearsed presentation to explain, as gently as I can, that the student already is behind on that goal: by definition, as we are having the conversation at a "tier 4," or bottom tier, law school. An academic career probably is foreclosed because of "poor" choices the student already has made unwittingly, such as having a family and living on a budget.

Mostly, the track is foreclosed by circumstances beyond the student's control: Urban childhood. Weak K12. No jobs for youth. No college counseling. Ailing parents. Delayed higher education. Being the wrong race, ethnicity, religion, or sexual orientation and identity for whatever is in fashion.

Even the brightest and most determined candidate cannot cause 10% merit to control the outcome.

The "mentor" I mentioned at the top: I take nothing away from his merit. But does he appreciate why he is where he is? Does he think that when he submits an article for publication, its merits are the principal driver of an offer? Does he think that when he submits a job application, his hard work is the principal driver of an invitation?

He's a white man who started adulthood before I and in the "Morning in America" Reagan heyday. I don't want to say what college he went to, but suffice to say, it's one you've heard of in connection with Presidents and Supreme Court Justices. Law school too. Maybe he was plucked from child labor in an Appalachian mine to be gifted with these opportunities, but odds are not. He then clerked for a federal appeals court, and then for the U.S. Supreme Court. He diversified the resume with a short stint abroad. He worked briefly in public and private sectors. He won a teaching fellowship in the top 10, and never worked lower: from there to tenure track, named professorship, center director, etc.

Brilliant bloke. 10%. 

But not that brilliant. 60% privileges, 30% right-place-right-time.

I think my writing is very good.

Weapon of Putin's war, anti-gay law jars NHL in US

The NHL Chicago Blackhawks Sunday will host an annual Pride Night, but the team will not be wearing warm-up pride jerseys as intended, for fear of jeopardizing the safety of Russian players and their families.

Yesterday I got to talk about the story with Sasha-Ann Simons of Reset on WBEZ Chicago Public Radio. You can hear the segment online. HT @ ace producer Micah Yason.

WBEZ sports contributor Cheryl-Raye Stout related the facts and layered some nuance on the story. She expressed concern that Blackhawks staff had not consulted their three Russian players. In a Philadelphia Flyers case in January, a player refused to wear a pride jersey, citing his Russian Orthodox religion. It's unclear where the Russian Blackhawks stand.

No one disputes, though, that wearing the jerseys might be problematic for the players as a matter of Russian law and policy. In December 2022, Russia doubled down on the 10-year-old anti-gay law that was a source of controversy during the 2014 Sochi Olympics and the 2018 FIFA men's World Cup.

Under international pressure, Russia was permissive in enforcement of the law during those tournaments. But the failure of the International Olympic Committee and FIFA to reconcile their bold anti-discrimination rhetoric with host-country legal jeopardy for athletes and fans was a bad look and did no favors for human rights. More or less the same drama just played out again with the FIFA World Cup in the fall in Qatar, where homosexual acts are criminalized.

As enacted in 2013, the Russian law imposes civil fines on persons and business, and detention and deportation for foreigners, who engage in "propaganda" promoting same-sex relationships. Propaganda, though, really means any representation of social acceptability, including even the rainbow flag.

The law was enacted as a child protection measure and referred only to expression to children, though that scope encompassed mass media. In 2022, President Putin signed into law an amendment to broaden the law to cover expression to any person, child or adult, and to make plain that trans representations are prohibited, too.

Russian refugees march in New York in 2013.
Bosc d'Anjou via Flickr (CC BY-NC-SA 2.0)

Thus, a Russian athlete photographed wearing a pride jersey in America might face legal repercussions upon returning home. But the risk is really much greater than just civil fines, I explained to Simons on Reset. Informally, the law has signaled indifference by Russian authorities to brutal violence inflicted on LGBTQ persons, or even persons suspected of being LGBTQ, by vigilantes, if not law enforcement. An athlete abroad fairly might fear such reprisal upon returning home, or fear for her or his family meanwhile.

One thing I did not get to say on Reset, that I think is important, is that Putin's expansion of the anti-gay law is complementary of his war in Ukraine, because he perceives both as integral to preserving Russian identity against Western acculturation. Foreign Policy called the issues two sides of the same coin, and Putin has spoken of Western territorial aggression and social policy in the same breath. Doubling down on the anti-gay law in December was calculated as just another salvo in the war. That means, if Brittney Griner were not warning enough, that Putin is prepared to weaponize the law.

Robbie Rogers, 2013
Noah Salzman via Wikimedia Commons CC BY-SA 3.0

Our Reset discussion touched on other related matters, such as the Iranian side's protest at the Qatar World Cup, which I wrote about here in November and spoke about in Poland. I've written previously on the World Cup and sexual equality (with Jose Benavides), the World Cup and human rights, and football and development. 

A paucity of representation in top-flight world sport indicates that laws such as those in Russia and Qatar are hardly the only source of hostility toward LGBTQ athletes. In 2022, in the run-up to the men's World Cup, there was only one openly gay international footballer, and he didn't make the final cut for Australia's squad in Qatar. (There are openly lesbian players in women's world football.)

A good read in this area is Coming Out to Play (2014), an autobiography by Robbie Rogers, co-authored with Eric Marcus. An American and a Christian, Rogers played for Leeds United in the UK and for the U.S. Men's National Team. In 2013, he publicly disclosed that he is gay at the same time he announced his retirement from football, though he returned to the sport to play for four more years with the LA Galaxy in the U.S. MLS.

U.S. footballers celebrate equal pay settlement

Alex Morgan
(Jamie Smed CC BY 2.0 via Wikimedia Commons)

I was elated in April to hear of a proposed $24m settlement in the equal pay dispute brought by U.S. Women's Soccer.

I wrote about the matter in April 2021 and May 2020. There were ups and downs, and, frankly, things were not looking good for the plaintiffs.

However, the case is a lesson in persistence and the value of a public relations campaign running alongside a litigation. U.S. Soccer had the upper hand in the court of law, but was taking it on the chin in court of public opinion.

The case is Morgan v. U.S. Soccer Federation (C.D. Cal. filed Mar. 8, 2019). A June 22 motion seeks court approval of the class action settlement. Named plaintiff Alex Morgan talked to MSNBC about the settlement last week.

UPDATE, July 4, at 1934 EDT: Watch today's CONCACAF match and tell me Alex Morgan should not be US Soccer's highest paid player!

Law profs fault vague, empty ABA 'diversity' proposal

Gan Khoon Lay CC BY 3.0

The accreditation of law schools by the American Bar Association would be a joke if it were more funny than costly.

Having been a leader in the push to attain accreditation for the law school where I work presently, I know firsthand the enormous and unnecessary costs that the ABA visits upon law schools—and therefore law students—that strive to become part of the club.  Some years ago, I was invited to write up my observations on the accreditation farce for a book.  I declined to do so because my school did not yet have full accreditation, and I feared putting it in jeopardy.  I'm not sure I made the right choice.  Now that I'm in the club (again), I admit, I feel unmotivated to expose its flaws.

There is a place for academic accreditation.  A functional accreditation system would protect academic freedom from administrative overreach or political intervention; would protect resources vital to students and faculty, such as law library budgets and staffing, from bean counters' incessant cuts; and would protect students in their investment against fraud and unduly burdensome student debt.  Every now and then, the ABA stumbles into accomplishing one of these objectives, usually after having failed to do so resulted in public embarrassment.  Meanwhile, outside watchdogs with no real power at all—the AAUP, FIRE, media such as Inside Higher Ed and US News, and faculty blogs such as TaxProf and ATL—accomplish much more every day to keep law schools honest, and they don't pass fat tabs on to law students or lawyers.

When I have troubled to raise a red flag or blow the whistle on bad behavior in law schools to the ABA, my concerns have been consistently, efficiently, and quietly buried by accreditation review committees.  I've come to understand that the number-one benefit of club membership is that a school's soiled skivvies will be laundered in secrecy.  ABA accreditation is not about transparency and not about truth.

So what is ABA accreditation about?  Appearances.  Accreditation is about looking woke.  And to that end, the ABA wields its accreditation power as a virtue-signaling manifesto.  Too many times, for too many years, I have seen law schools pursue feel-good social agendas, with ABA imprimatur, and it's students, ironically often students of color, who pay the price for the reality that the agenda is mere facade.

So it is with the ABA's latest inclination to prescribe "diversity."  I put that term in quote marks, because the ABA is not worried about all kinds of law school diversity, but only the kinds that resonate in the correct political frequencies; the kind of diversity that prompted a colleague of mine in a recent hiring meeting to say "we don't need more white," drawing applause.

(I do believe we would benefit from greater racial diversity on our faculty, and in legal academics generally.  Where I differ with my colleagues is over the propriety of overt race discrimination as the means to the end.  Dare I suggest it, one might actually have to invest money in creating opportunity.  The problem is akin to employers complaining they're unable to hire while being unwilling to offer attractive terms of employment.)

With Professors Rick Sander and Eugene Volokh at UCLA, and Professor Rob Steinbuch at UALR, I offered comment (TaxProf Blog, Volokh Conspiracy) this week on a recently ABA-proposed "diversity" standard, Standard 206, in parts.  All of the views above are mine, and not necessarily those of my co-authors.  Those views explain my trepidation about the proposed standard, justifying my participation in the comment below, which is ours together.

June 27, 2021

Via email to Mr. Fernando Mariduena

Dear Chief Justice Bales and Mr. Adams:

Last month, the ABA’s Council of the Section of Legal Education and Admissions to the Bar approved for Notice and Comment proposed revisions to Standards 205, 206, 303, 507, and 508 of the ABA Standards and Rules of Procedure for Approval of Law Schools. The revisions to Rule 206 would significantly alter the responsibilities of law schools to achieve “diverse” and “equitable” environments. In response to your solicitation of comments, we offer the following:

(1) The proposed Rule 206(b) provides that “a law school shall take effective actions that, in their totality, demonstrate progress in diversifying the student body, faculty, and staff….”   There appear to be no exceptions, indicating that the language requires that all law schools must demonstrate progress. “Diversifying,” to judge from the annotations to the rule, means “adding people of color” (not “minorities,” which the annotations say is an outdated term). Yet “progress” is nowhere defined; indeed, there is not even a hint of what it means to fully satisfy this standard. According to the ABA’s own website, which reports the proportion of first-year law students in 2020-21 who are “minorities” (we assume this means “people of color”), the makeup of the 197 ABA-accredited law schools ranges from 8% “minority” to 100% “minority.”(FN1) According to the ABA data, minorities make up more than 90% of students at four schools, and more than half the students at 24 schools. Presumably, these schools are also mandated to achieve greater diversity; does that mean they must find ways to enroll more whites? If there is an implicit goal, is it the same nationwide, or does it depend on the demographics of a school’s region? Any useful effort to create usable guidance to law schools must, at a minimum, address these and other similar questions. The standard, as written, is so vague that it will give enormous discretion to ABA accreditation committees to exert arbitrary control over important and sensitive policy issues.

The proposal fails to account for the fact that among the current population of law school applicants, there are very large disparities in credentials that correlate with race. For example, among all students taking the LSAT, there is about a 1.0 standard deviation gap between the mean score of white takers and the mean score of black takers. The white-black gap in college grades is smaller but still very large (about 0.8 standard deviations).(FN2: The Law School Admissions Council releases annual data on the scores and GPAs of law school applicants in its National Statistical Report series.) It is difficult to argue that either of these credentials is discriminatory, since they are predictive of law school grades and subsequent bar performance, and their predictions are as valid for blacks as for whites. Indeed, to the extent there is a debate over the relationship between black credentials and black law school performance, it is whether LSAT scores and college grades overpredict law school performance.(FN3:  LSAT and UGPA “overpredict” GPA performance of a particular group in law school, that implies that students in that group will obtain lower grades than their credentials predict, and thus that the credential is biased in their favor. The LSAC itself, in its validity studies, finds “very slight” overprediction of black GPAs; Sander finds that when adjustment is made for school quality and within-school grade inflation, LSAT and GPA are unbiased predictors of law school GPA across racial lines; Alexia Marks and Scott Moss, in a study of GPAs at two schools, find LSAT and UGPA modestly overpredictive of black GPAs. See Anthony & Liu; Sander; Marks & Moss.) The large credential gap means, of course, that law schools have resorted to large racial preferences as the main method of increasing the numbers of enrolled blacks, Hispanics, and American Indians. The best data we have on this come from admission records released in 2007-08 by 41 public law schools in the U.S., which in the aggregate show that roughly 60% of blacks entering these law schools had academic credentials that were at least a standard deviation below those of their median classmate.(FN4) (This was also true for about 30% of Hispanic first-years, compared to about 6% of Asian-American students and 4% of whites.) A major failing of the proposed Rule, therefore, is that since it provides no guidance on how the existing pool of law school applicants can be meaningfully expanded, it necessarily implies that greater “diversity” should be achieved by using even more aggressive racial preferences.

(2) The proposed Interpretation 206-2 asserts that “the enrollment of a diverse student body has been proven to improve the quality of the educational environment for all students” but cites no evidence to this effect. So far as we are aware, no one has even attempted to study, in a scientifically credible way, the effect of diversity on legal education quality or outcomes. Careful studies have been done at the undergraduate level, but these studies come to very different conclusions. Importantly, the leading studies that find positive educational benefits from diversity (notably, those by Patricia Gurin and her colleagues(FN5: See, e.g., Gurin et al.; Gurin et al.)) do not take into account how those benefits are affected when schools use large racial preferences to achieve diversity (as nearly all law schools do). The research that does take large preferences into account (such as the work of Arcidiacono et al. at Duke,(FN6: See, e.g., Arcidiacono et al.) or the work of Carrell et al. at the Air Force Academy(FN7)) finds that large preferences can directly undermine the goals of a diverse environment and increase racial segregation and isolation. There is also, of course, the very real danger that if race correlates very highly with class performance—an outcome difficult if not impossible to avoid if large racial preferences are used—then the single-minded pursuit of diversity will create, rather than erode, racial stereotypes.

(3) The proposed Rule and accompanying interpretations conspicuously ignore the likelihood of “mismatch”—that is, the potential harmful effects of very large preferences upon the intended beneficiaries (in terms of law school grades, bar passage, and long-term outcomes). In 2007, the U.S. Commission on Civil Rights issued a lengthy report on law school mismatch, finding grave cause for concern and urging further investigation,(FN8) but the ABA has never taken up this question. This inaction persists despite the fact that the Journal of Legal Education recently accepted for publication a new empirical study showing compelling evidence that law school mismatch has large, negative effects upon bar passage.(FN9) There is heavy attrition of students admitted with large preferences, first in terms of graduation from law school and second in terms of passing state bar exams, and this is at least arguably the major reason the legal profession remains as predominantly white as it still is. The committee’s proposal not only ignores this fundamental problem, but creates pressure on schools to worsen it.

(4) Finally, the proposed Interpretation 206-1 states that “The requirement of a constitutional provision or statute that purports to prohibit consideration of race, color, ethnicity … in admissions or employment decisions is not a justification for a school’s non-compliance with Standard 206 …. [Such a school must] demonstrate the effective actions and progress required by Standard 206 by means other than those prohibited by the applicable constitutional or statutory provisions.” Setting aside the problem noted earlier—that “effective actions and progress” are nowhere defined—the predominant method that schools have used to increase the number of enrolling members of underrepresented racial groups is the use of ever-larger admissions preferences. Case law in the states that have prohibited the use of race- based preferences makes clear—not surprisingly—that such preferences do, in fact, violate the law. In the absence of any explanation or documentation of other, proven methods by which schools can make “progress,” the proposed standard places these schools in an impossible bind—violate the law and the civil rights of applicants, or risk losing accreditation. Putting schools in this impossible bind would be an abuse of the ABA’s professional responsibility as an accreditor.

We welcome the opportunity to share with the Committee and the ABA any of the research discussed in this letter, and to otherwise contribute to a constructive revision of the proposed rules.

Sincerely, ....

I ask of this comment letter only that it bid salutation to my many criticisms of the ABA over the years when joining them in the ABA's dustbin.

[UPDATE, Aug. 18.]  The ABA approved the proposed standards.  See yesterday's TaxProf Blog.

See America in black and white

13th Amendment

With the imprimatur of federal law, today is National Freedom Day, celebrating the day that President Abraham Lincoln signed the joint congressional resolution proposing the 13th Amendment in 1865.  Congress passed the proposal the preceding day, and it was ratified on December 6, 1865.  Today also is the first day of African-American History Month.

With my comparative law class recently, I had the occasion to visit a classic treatment of race in Star Trek's original series.  We were studying "the perspective problem" in comparative research, which refers to the way a legal system (any social system) can look one way when studied by someone within it, and a different way when studied by an outside observer.

There's a scene in the 1969 episode "Let That Be Your Last Battlefield" (s3e15) that's been talked about for half a century even by social commentators outside science fiction and entertainment communities.  The theme of the episode is almost cliché insofar as it typifies the tendency of Star Trek creator Gene Roddenberry and 1960s showrunner Gene L. Coon to employ heavy-handed metaphor to effect social comment.  Still, the story is effective.

Gorshin with Lou Rawls in 1977
(Orange County Archives CC BY 2.0)

What cliché might have diminished was restored and then some by ferocious performances in Frank Gorshin (Bele) and Lou Antonio (Lokai).  Gorshin, who continued acting right up until his death in 2005, was already a well known villain to TV audiences in the 1960s, as Adam West Batman's Riddler.  Antonio had recently played chain-gang prisoner Koko in Cool Hand Luke (1967).  He followed up Star Trek with a four-decades-long career in TV directing that ranged from The Partridge Family and Rockford Files to legal classics Picket Fences, Boston Legal, and The Guardian, not to mention one West Wing.

The first scene below sets the stage; you only need about the first two minutes.  I'm sorry that CBS has labeled it inappropriate for children, so you have to open a new window to watch it.  I rather disagree; I recommend the clip especially for children, especially now, part of an essential diet of dialog about race and America.

The second scene below delivers the pièce de résistance.  I won't spoil it, in case it's new to you.

For social context, this Star Trek episode aired in January 1969.  Martin Luther King Jr. had been assassinated only nine months earlier.  While this episode aired, student protestors were occupying buildings at Brandeis University; they renamed them "Malcolm X University" and demanded the creation of an African-American studies department.  Stonewall, the moon landing, and Woodstock followed in the celebrated summer of '69.

Happy National Freedom Day.

Ciao and shalom, it's Columbus Day

It was painful and offensive to me to see the Columbus statue in Baltimore ripped down and thrown into the harbor on the Fourth of July.

I appreciated Trevor Noah's Daily Show commentary on Columbus Day, aired last week, because he recognized the meaning of the holiday to the Italian-American community.

Noah excerpted a Vox video (story), from 2018, which gave a good concise summary of how the Columbus holiday came to be.

The video describes "the legend of Columbus," and it is a legend.  Italian-American immigrants, such as my grandparents, came to embrace a legendary Columbus who bore little resemblance to the real historical figure.  Which is not to say that the legend lacked real meaning for real people.  There was a time when Italian-Americans were a "non-white" minority in America, Noah acknowledged.  The community reached out to adopt, and partly to create, a galvanizing icon.  

I studied Columbus quite a bit as an undergrad majoring in Spanish-language literature during the quincentenary of "the Discovery."  As best as we can know Columbus, which is not much, given a paucity of surviving and conflicting accounts, the truth must be that he was complicated.  People are.  He had a multiplicity of motives, some more morally laudable than others.  And probably he wasn't the sweetest sort of guy.  Crossing the Atlantic Ocean with a potentially mutinous crew of adventurers in 1492 was a rugged business, if not recklessly suicidal.  But Columbus did not invent Euro-centrism, Caucasian supremacy, or slavery.  The cultural arrogances and inhumane institutions of the 15th century were certain to encircle the globe aboard every ship that departed the continent.

Columbus statue (Brent Moore CC BY 2.0)

So my family, arriving in America in the 20th century, embraced a legend.  It wasn't a terrible choice of legend.  The first Italians to populate Baltimore sailed from Genoa, which is where Columbus probably was from.  My grandparents, who also came to America by boat, from Tuscany, revered Columbus well before the dedication of his Little Italy statue in 1984.  Through their Italian-American organizations, they contributed to the creation of the statue, which was made of marble and crafted by an Italian sculptor.  President Reagan and the mayor of Baltimore dedicated the statue in Baltimore's Little Italy, where my family first lived after immigrating.  When I was a kid, I was taken to Little Italy when my family volunteered and participated in religious rites and Italian-American festivals.  Later, and for many years, my uncle played the character of Columbus in Baltimore's Columbus Day parade, which started and ended at the Columbus statue.  I remember him decked out in cartoonish royal robes, standing atop a float mock-up of the Santa Maria, waving to smiling people, of all colors, who lined the streets.  

He stopped when it became dangerous to be Columbus.  Dangerous to celebrate our history in America, however reimagined and romanticized.

I'm not opposed to taking down statues of Columbus.  I've advocated for "fallen monument" parks, as abound in former Soviet states, Hungary's being the most well known.  They're immeasurably valuable to teach history.  They proffer powerful evidence that, try as we might to be good and to do right, morality has proven a stubbornly mutable ambition in the human experience.  

But taking down Columbus in Little Italy should have been a decision made by a cross-section of community stakeholders, not by a mob.  An effort had been under way in the Italian-American community already to raise money to move Columbus elsewhere.  The mayor of Baltimore promised prosecution of the vandals on July 9, but I've found no report of any arrest or charge to date.  The Italian-Americans who contribute still, vitally, to Baltimore's identity deserve better.  They deserve respect, right alongside every other community that has built Baltimore as a vibrant and diverse city.

As Noah observed, American history is now populated by many Italian-Americans who don't need aggrandizing legends to demonstrate greatness.  It's not too late to create the commission that should have been and to start talking about how to honor immigrant history and the City of Baltimore at the intersection of Eastern Avenue and President Street.  I don't know who, or what, might, or should, stand in "Columbus" square.  I do believe that if we work at it, we can find, or make, an icon that my grandparents would have appreciated, and at the same time raise a testament to a new story.

'Miss Juneteenth' speaks both to problems of our times and to timeless problems

Thanks to the Duke (University) Screen/Society, yesterday, I virtually attended a screening and discussion of the 2020 film from Vertical Entertainment, Miss Juneteenth.  It is an insightful and gratifying film, so I want to make this note of it.  In our covid era, it's easy to miss new releases.

Written and directed by Channing Godfrey Peoples, Miss Juneteenth is the story of Fort Worth, Texas, teen Kai (Alexis Chikaeze) and her mom, Turquoise Jones (Nicole Beharie), as Kai prepares to participate in the Miss Juneteenth beauty pageant, a pageant that her mother happens to have won, back in the day.

Yet that description unfairly oversimplifies the film, as would any description that confined the story by race or class.  The film richly portrays Turquoise and Kai's lives.  It explores mother-daughter conflict, romantic entanglements, and socioeconomic struggles. Simultaneously, the film comments softly, not heavy-handedly, on pageant culture, civil rights, the American dream, and, of course, never trumpeted yet omnipresent, the glorious but unfulfilled promise of freedom marked by Juneteenth.

In a striking scene set in a Juneteenth museum, the young contestants are being oriented on Juneteenth history by a passionate docent when the schoolmarmish pageant wrangler directs the kids' attention to framed pictures of past Juneteenth queens.  The docent was speaking to the legacy of slavery, driven out of the American South, while the pageant director educates the girls on such etiquette nuances as table manners imported with the Pilgrims.  The girls' gazes drift to the latter display, which, I contend, speaks subtly but powerfully to how African-American communities have long wrestled with the fine line between cultural subjugation and assimilation that courses through American history from Reconstruction to Civil Rights to present day.  I'm reminded at once of Mike Pence's oddly third-person reference from Fort McHenry in August to "American people ... standing with ... our African-American neighbors" and Dulce Sloan's missive this week on The Daily Show with Trevor Noah, "The Messed Up History of Black Hair in America."

A character in the film once comments, "Ain’t no American dream for black folks.”  As we wondered at the latest news of government ineptitude yesterday morning, contemplating how our salaries are going down while our workloads are going up, my wife speculated that the anger and resentment that people both black and white feel toward the lack of opportunity for upward mobility in this country is really much the same.  The difference, she suggested, is that black people have always known that meritocracy is an American myth, while white people are just figuring it out.  (She cited Michael Sandel on WBUR talking about his Tyranny of Merit.)

Miss Juneteenth has given me a lot to chew over.  I haven't even mentioned my own daughter's foray into the pageant world when she was a teen: Miss Rhode Island High School 2016!  In Miss Juneteenth, as Turquoise is working herself to death to scrape together the money to support Kai's pageant bid, Kai's father, Ronnie (Kendrick Sampson), shakes his head: "An $800 dress just don’t make no sense to me."

Word for word, I swear, Peoples stole that line from me.

Here is the trailer from Vertical Entertainment.

Happy Constitution Day.

Research for educational opportunity, accountability requires transparency, need not forgo student privacy

When I had the privilege of working on transparency issues in the Arkansas General Assembly in the 20-aughts, two legislators and I promoted a bill that would have required public state universities to disclose data on their use of affirmative action in admissions.

One legislator, an African-American woman, reacted with manifest hostility, as if we sought outright to deprive persons of color of access to education.  I wish she would have engaged with us rather than fighting the bill behind closed doors.  It probably would have surprised her to learn that I was motivated specifically by an accusation leveled by an African-American advocacy group.  The group alleged, inter alia, that higher ed was using affirmative action to boost enrollment profiles, for PR and accreditation purposes, but then failing to support those enrolled students' success on state campuses.

I didn't know, and to this day don't know, whether the group's accusations held up as more than anecdotes.  As a transparency and accountability advocate and public educator myself, charged with the responsibility of faculty governance, I wanted to know the truth.  And there arose the problem: It was impossible to do the research, because the universities claimed, even in response to internal queries, that student privacy required nearly every datum about admissions to be held secret.  There was no way to know what students benefited from affirmative action, nor to match those data up with how those students fared.

The access bill ultimately failed, and, to my view, the reason for that failure only made the transparency case stronger.  We were not undone by objection based on equality of opportunity.  We were undone because our bill, which broadly defined affirmative action, would have required disclosure of legacy admissions: that is, when a university admits an applicant because the applicant is related to an alumna or alumnus, especially one who's a donor.  That kind of admissions preference is known to contribute to systemic discrimination against persons of color, not to mention aggravation of our alarming rise in America of socioeconomic disparity.

State Capitol, Little Rock, Arkansas

The hostility of the aforementioned African-American legislator was a warm smile compared with the outrage that poured forth from a white, male legislator, who happened also to be affiliated with Arkansas State University (ASU).  In a legislative hearing, he challenged my assertion that the universities would not happily cooperate with my research.  They would, he alleged, no legislation needed.  He persuaded his committee colleagues to no-pass the bill with a promise: After the legislative session, I should contact him personally for help procuring the data, and he would see to it that the disclosures happened.

The bill died.  After the session, I contacted our zealous ASU opponent, that he might make good on his promise.  He ignored my query and never responded.

My work on that bill fueled an ongoing interest in the interaction of access and privacy in education, especially the interaction of the federal Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g, and state freedom of information acts (FOIAs) (e.g., in 2018).  In that vein, my Arkansas colleague Professor Robert Steinbuch and I have just published, Ongoing Challenges in Researching Affirmative Action in Legal Education: Maximizing Public Welfare Through Transparency, 26:1 Texas Hispanic Journal of Law & Policy 57 (2020).  Here is the abstract:

The public good often depends on social science research that employs personal data. Volumes of scientific breakthroughs based on data accumulated through access to public information demonstrate the importance and feasibility of enabling research in the public interest while still respecting data privacy. For decades, reliable and routine technical methods have ensured protection for personal privacy by de-identifying personal data. Social science research into legal education and admission to the bar is presently a matter of urgent public interest and importance, requiring solid empirical analysis of anonymized personal data that government authorities possess. Social science research into the effects of affirmative action represents standard, indeed commonplace, research practice furthering the public interest, while employing established methods that minimize the risk to privacy. Yet, when seeking information regarding admissions standards and success metrics, researchers have faced remarkable headwinds from government officials. In this article, we continue to discuss a topic to which we have devoted significant professional energy: the proper balance of privacy, transparency, and accountability in researching legal education.

Our research grew out of an amicus representation in 2018, alongside Professor Eugene Volokh at UCLA Law.

I'm not here naming the ASU-affiliated legislator only because, these many years later, I don't remember his name.  I have no hesitation in calling him out if someone can remind me.

Pertinently, the data in question are still held secret, in Arkansas and many states.  So my colleagues in FOIA research, including Professor Steinbuch, still would welcome that legislator's help.  It's shameful that this fight for transparency and accountability is still under way all these years later.  It's one thing to adopt a policy position and have reasoned disagreement over it.  It's another thing entirely, and anathema to democracy, to insist on a policy position while willfully concealing evidence of its efficacy.

U.S. female footballers suffer slide tackle in equal pay match: Understanding the summary judgment decision

U.S. co-captain Alex Morgan is the first named plaintiff.
(Photo by Jamie Smed CC BY 2.0.)

The women of U.S. Soccer suffered a major setback Friday with an adverse court decision (e.g., N.Y. Times).

The U.S. District Court in Los Angeles awarded partial summary judgment to defendant U.S. Soccer, rejecting the plaintiffs' core claim in the case, pay discrimination against the U.S. women's national team (USWNT) relative to the men's national team (USMNT).   In the complaint filed in March 2019, USWNT players claimed violation of the Fair Labor Standards Act of 1938, as amended by the Equal Pay Act of 1963, and of the Civil Rights Act of 1964, as amended.

The USWNT always faced an uphill battle on the numbers.  To generalize, the women could not deny, they were paid more than the men, dollar to dollar.  The devil lies in what "more" is.

The USWNT has been fantastically successful.  The team has won the World Cup of women's soccer four times, most recently in 2019 in France (I saw a match from a Paris Fan Zone, and my daughter went to one) and won the Olympic gold four times.  The squad has been a global force to be reckoned with since its inception in the 1980s.  Moreover, many a football fan, such as myself, will tell you that the women's talent is a marvel to behold on the pitch, the United States having substantially defined the women's game for the world.

We were in France for World Cup 2019. (CC BY-NC-SA 4.0.)

Direct comparison between women's and men's play is inevitably uneven, because the style of play in the women's game is different from in the men's, apples and oranges.  And worldwide, many soccer-power nations have failed to invest in developing female talent, so any given head-to-head is not necessarily taking place on a level playing field.  Nevertheless, by many a worthwhile measure, including technical proficiency, the women indisputably are better than the men—who failed even to qualify for the 2018 World Cup in Russia.

The women's superiority was exactly their problem in the equal-pay litigation.  A plaintiff bears the burden of making out a prime facie case of pay disparity.  Compensation in professional soccer in the United States is mostly based on the principle of pay for performance.  The women played more than the men and achieved more than the men, so they were paid more.  Their burden, then, was to show, in essence, that their pay rate was relatively lower than the men's.

We win, 2019.  (Photo by Howcheng CC BY-SA 4.0.)

U.S. civil rights law is, thankfully, sufficiently sophisticated to account for disparity based on pay rate.  As U.S. District Judge R. Gary Klausner explained in the instant case, quoting precedent, it can't be that "an employer who pays a woman $10 per hour and a man $20 per hour would not violate the EPA ... as long as the woman negated the obvious disparity by working twice as many hours."  However, the parties disagreed about how to calculate rate so as to compare apples to apples.

Hardening defenses on their polar positions, each side posited a favorable calculation.  Plaintiffs urged the court to look at women's compensation through the lens of the men's contract.  If the women had won the World Cup, etc., under the men's contract, they would have been far more richly rewarded.  Defendant U.S. Soccer urged the court to look at the numbers in gross.  The women simply make more than the men, and even though the women play more matches, they make more than the men on a per match basis, too.

Both positions are counterarguable.  The women's and men's contracts are both the result of collective bargaining, and a lot goes into a bargaining contract besides its raw numbers.  Simply pumping the women's performance statistics through the men's contract formula ignores the broader context of each contract, or collective bargaining agreement (CBA), and the inter-dependency of its compensation formula with other bargained-for terms: like squeezing an apple with an orange juicer.

New York ticker-tape parade for the USWNT, 2015

(Photo by Anthony Quintano CC BY 2.0)

At the same time, the women's argument in converse challenges the defendant's attempt to aggregate numbers.  Maybe the women are paid more per match because they are better soccer players, which the evidence supports.  That doesn't mean that they are paid so much more per match relative to the disparity in talent and achievement between the women and the men.  To analogize, oranges might cost more than apples because oranges taste twice as good.  But an orange for $1.20 is still a bargain relative to an apple for a dollar.

The court's recitation of the women's collective bargaining process is painstaking, packing in plenty of detail for those who want it.  In sum, considering that the plaintiffs bear the burden to make out a prima facie case of discrimination, the court found the defendant's position more persuasive.  The contractual context was really the clincher.  Judge Klausner wrote (footnotes omitted):

This history of negotiations between the parties demonstrates that the WNT rejected an offer to be paid under the same pay-to-play structure as the MNT, and that the WNT was willing to forgo higher bonuses for other benefits, such as greater base compensation and the guarantee of a higher number of contracted players. Accordingly, Plaintiffs cannot now retroactively deem their CBA worse than the MNT CBA by reference to what they would have made had they been paid under the MNT's pay-to-play structure when they themselves rejected such a structure. This method of comparison not only fails to account for the choices made during collective bargaining, it also ignores the economic value of the "insurance" that WNT players receive under their CBA. 

[¶] One of the defining features of the WNT CBA is its guarantee that players will be compensated regardless of whether they play a match or not. This stands in stark contrast to the MNT CBA, under which players are only compensated if they are called into camp to play and then participate in a match. ... [T]here is indisputably economic value to this type of "fixed pay" contract, as compared to a "performance pay" contract.  Merely comparing what WNT players received under their own CBA with what they would have received under the MNT CBA discounts the value that the team placed on the guaranteed benefits they receive under their agreement, which they opted for at the expense of higher performance-based bonuses.

There are problems with the court's approach, including prominently that there are systemically discriminatory reasons that the women elected for the terms they did.  Many male players are able to make a living as athletes, so playing for the national team is a bonus.  Women's soccer meanwhile has faltered as a nationwide business model, for arguable reasons that must include the ingrained underdevelopment of women's athletics.  That makes it harder for a woman than for a man to play at the national level, even if the two squads have the same number of seats.

USWNT selfie with the President, 2015 (White House photo)

Consider that a man who plays professional soccer is incidentally training for the U.S. national team while he's at work.  And his day job gives him time off, sometimes months, to play for the national team.  A woman with a collateral occupation that is not professional soccer cannot invest the time and energy in the physical training and playing time required to be a globally competitive athlete.  Of course, some women do find work in professional soccer, but far fewer than men who do.  Characteristically, the USWNT's star players bargained for better job security not just for themselves, but to support their teammates.  And that's not all selflessness; their investment in part explains the ongoing developmental success of the USWNT over athletic generations.

That doesn't mean Klausner is wrong on the law.  The facts of the case show something we already know, which is that historically rooted discrimination can persist well beyond demonstrable intention, is exceptionally resistant to eradication, and is more susceptible to redress socially and politically than judicially.  There are good reasons why the standard to establish a civil rights violation of federal law is high.  Failure to surmount that bar in court does not establish that the plaintiff is right or wrong as a social or moral matter.

Federal courthouse in Los Angeles (Photo by Los Angeles CC BY-SA 3.0)

There were other claims in the case, and the plaintiffs' cause is not formally over, even notwithstanding appeal.  The court's treatment of the plaintiffs' claim of discrimination in turf is a worthwhile read.  Female footballers often play on artificial and unstable surfaces, resulting in physical injury and career wear and tear, while the USMNT always plays on grass.  Despite the disparity in fact, the plaintiffs were unable to prove the discriminatory motive, or intent, that civil rights law requires.

The women's case persists upon some ancillary claims related to fringe benefits, such as better hotels and more frequent charter flights for the men's team than for the women's.  There might not be enough there for the women to want to keep the litigation going.  Plaintiffs probably will ask Judge Klausner to allow interlocutory appeal to the Ninth Circuit directly from this partial summary judgment, and I expect he will.

The case is Morgan v. U.S. Soccer Federation, No. 2:19-cv-01717 (C.D. Cal. May 1, 2020).  Court Listener has the key documents.

No bulls*** on the pitch. Vote Rapinoe!

The local football pitch in Reino de Tor, Guinea-Bissau. RJ Peltz-Steele CC BY-SA 4.0.

Vote Megan Rapinoe for BBC Women's Footballer of the Year 2020. She's no BS.

Poli sci panels span U.S. con law, Tunisian Arab Spring, Japanese ag reg, Chinese investment in Africa

On the final day of the annual meeting of the New England Political Science Association, Saturday, April 27, I was treated to more intriguing papers and especially enriching discussion on constitutional law with co-panelists and discussants in the Public Law Section.  For the time being, I'm skipping presentation of my own work with Polish attorney Gaspar Kot—and my thanks to Kevin McGravey, Merrimack College, for his thought-provoking feedback—and sharing highlights of colleagues' work.

Right to education.  A common theme on our late-morning panel was probing the line between civil rights as passive protections and civil rights as affirmative entitlement.  Michael Paris, College of Staten Island CUNY, is working on a book that will consider the problem of race consciousness/race blindness relative to the right to education.  That's the same lately embattled right that rests at the heart of the federal court claim to civics education pending against the State of Rhode Island; the Government filed its motion to dismiss a scant few weeks ago.  Compare A.C. v. Raimondo, No. 1:18-cv-00645 (D.R.I. complaint filed Nov. 28, 2018) with Sheff v. O'Neill, 678 A.2d 1267 (Conn. 1996) (holding, 4-3, state bound by affirmative duty to provide equal opportunity of access to education for Connecticut schoolchildren).

U.S. Supreme Court in politics.  Kyle Morgan, Rutgers University, has coded, on various bases, no fewer than 11,000 U.S. congressional press releases about U.S. Supreme Court decisions.  He reports that this feat has caused more than one laptop crash.  Morgan is prepared to demonstrate that the way Republicans and Democrats frame disapproval of Supreme Court rulings differs fundamentally.  In short, Republicans bemoan the Court as anti-majoritarian, while Democrats frown on perceived abuses of democratic process.  As a result, the two sides talk about Court rulings without actually talking to each other in comparable language.  Morgan promises that his subsequent work will look at how the two sides might be brought together, that is, whether they can be made to care about the other's perspective.

This 1917 Louisiana poll tax receipt (public domain) well post-dates the 1870
15th Amendment.

'Resistant compliance' under the 14th and 15th Amendments.  My runaway favorite paper of the morning came from Lauren Foley, Western Michigan University, who is studying what she has termed "resistant compliance" with constitutional law.   That's when an actor complies with the law but takes a course of action that undermines its implementation—maybe openly, maybe quietly; maybe intentionally, maybe carelessly.  In this piece of her work, Foley compares white supremacist resistant compliance with the 15th Amendment, specifically the use of devices such as poll taxes and literacy tests to undermine black access to the polls while technically complying with the law, with University of Michigan resistant compliance with the state affirmative-action ban in an effort to prioritize diversity while without focusing on race.

Take a second to think that over.  "There are many reasons not to equate literacy tests with affirmative action," Foley conceded in her paper.  Motive matters, I thought.  But I admit, by the end of it, she had me.  Foley's interest is not in the policy priorities, no matter whether "revered or reviled," she wrote, but in the tools of resistant compliance.  Her comparison in that vein is not only apt, but illuminating.  Foley's work is informed by anonymous sources within Michigan higher ed and casts an unfamiliar light on how admissions officials have used technology to approach the diversity problem.  Those evidentiary revelations alone have the makings of an intriguing book.

Protesters march on Avenue Habib Bourguiba in downtown Tunis, angry
over unemployment, rising prices and corruption, January 14, 2011
(VOA photo by L. Bryant).

Tunisia's Arab Spring.  In the early morning hour, I hit a comparative session on Asia and Africa and learned a great deal from and Ann Waldemar, University of Bridgeport, and Nicole L. Freiner, Bryant University.  Waldemar is investigating the unusual success of the Arab Apring in Tunisia (home of RightsCon 2019), in contrast with its MENA neighbors (at least to date).  (See James M. Dorsey writing on Libya and Egypt just Saturday.)  Especially interesting from a comparative-law perspective, incorporation of Islamic law into the new Tunisian regime has been a piece of the puzzle in public acceptance, Waldemar reports.

Rice law and policy.  Freiner is investigating the surprisingly compelling story of rice in Japan, or, more broadly, the development and regulation of agriculture relative to priorities as far-ranging as GMOs, public health, and foreign development.  She had some fantastically illustrative visual from the rice fields, and her research has been on the ground, talking with farmers.  Her new book from Palgrave is Rice and Agricultural Policies in Japan: The Loss of a Traditional Lifestyle (2019).  (Law school programs on food law and regulation, take note: Freiner would be a great guest to bring in from Ph.D. world, and U.S. food law and policy studies could benefit from an infusion of eastern comparativism.  Freiner is a neighbor of mine from Barrington, R.I., so invite me, too, and I'll drive.)

Chinese legitimacy in Africa.  In the afternoon, Drake Long, Georgetown University, talked about China in Africa.  For his master's work, he's taking a deep dive into China's vigorous strategy for international legitimacy, countering a historic deficit in international communications.

China's Belt and Road Initiative (CC BY-SA 3.0 by Tart)

Perhaps needless to say, this move coincides with a trend of waning U.S. influence, or "crisis of U.S. legitimacy."  East Asia has been circumspect of Chinese influence, Long explains, but Africa has been receptive.  Long has traced the history of Sino-African relations from the 1940s to China's post-Mao economic reconstruction, to Angola oil investment, to Xi Jinping's pledge of tens of billions of dollars to African development amid the Belt and Road Initiative.  Belt and Road will cost $900bn according to China, Long says, or from $1tn to $8tn according to observers.  The ties to Africa meanwhile multiply.  For example, more Anglophone African students now go to China than to the United States or United Kingdom.

Does this mean an inevitable careening arrival at Chinese hegemony?  Well, there is an enduring debate within in China, Long explains, in trying to sell African development as worthwhile relative to unmet social and economic needs at home.  Whereas Americans will sign up for the foreign inculcation of democracy, no exceptionalist ethos so clearly dominates Chinese popular opinion.  Recent maneuvering within Chinese party leadership and propaganda machinery suggest awareness of this domestic ideological deficit and emerging strategies to address it.