Things that are not important are easy to measure.  Those that are important are hard to measure.

~Michie Slaughter

As long as the Supreme Court is taking up cases based on imaginary plaintiffs and defendants and no longer requires that plaintiffs have standing (i.e., personally suffered some harm), I thought I would jump on the bandwagon.  Therefore, I present the case of Quantity v. Quality in hopes the high court might understand the folly of their ways and put common sense ahead of ideology.

Cases between this imaginary plaintiff and his equally imaginery defendant are adjudicated almost daily in a number of venues.  One, in which I was actually a participant, involved the United Way, for which I served on the local board in Oxford, Ohio. We constantly sought better criteria for making funding decisions.  Applicants had reams of quantitative data about the number of people served (e.g. Meals on Wheels) or membership in their organization (e.g., Boy Scouts).  They took pride in demonstrating their financial efficiency by touting cost per person helped.  The board, however, wanted answers to a different question, “Did it make a difference?” A non-profit could provide mental health care for thousands of clients.  But if they continued to act irrationally or presented a danger to themselves or others, maybe it was time to fund someone else.

There is no better example of quality trumping quantity than “Project Choice,” a program of the Ewing Kauffman Foundation which covered the college expenses (tuition, room and board, and books) of at-risk youth if they graduated high school on time, were drug free and had no record of illegal activities.  The cost per participant could be exorbitant. One graduate’s benefits included a full-ride through medical school.  Another, who pursued a career as as a preacher included bible studies in Israel.  Sadly, new leadership at the foundation determined the per student cost was an inefficient use of foundation resources (an endowment of $2.7 billion at the time of which the total cost for Project Choice covering 1987-96 was $22.4 million).

As a vice-president at the foundation, I often attended the annual banquet for “Project Choice” alumni.  Many shared how the program had not only changed their life trajectories, but those of others in their family or community.  I specifically remember one successful female “Kauffman Kid” (as they were affectionately known) telling the audience she emulated “Project Choice,” providing financial support for a nephew’s college education.  It reminded me of the final scene in Schindler’s List  in which descendants of the 1,000 plus Jews Oskar Schindler saved from extermination placed a stone on his grave site. How many times will the investment in one child result in an exponential impact on others for generation after generation?

Which brings me to the actual Supreme Court decision which might as well have been called Quantity v. Quality. In Students for Fair Admissions, Inc. v. President and Fellows of Harvard University, a 6-3 Supreme Court majority decided a private university could not use race as a (not the) factor in admissions.  The justices sided with “quantity” even though that issue had already been adjudicated in Regents of University of California v. Bakke.  “Quotas” were ruled unconstitutional but “affirmative action” for some applicants was not.  In other words, as long as preferential treatment was not a numbers game (i.e., established quantity), subjective consideration of the impact that admission of a minority student (i.e. quality), until last Friday, was still allowed. [Note, this is the same majority that minutes earlier said it was okay for a private business to discriminate against protected populations, in this case the LGBTQ community.  Maybe the decision issued in response to 303 Creative’s refusal to design wedding websites for same-sex couples should henceforth be known as “Project Choice for Homophobes.”]

Each year, when Ewing Kauffman, would introduce “Project Choice” to the newly enrolled freshmen at Kansas City’s inner-city Westport High School (from which he graduated), he told them, “When others thought you did not have a chance, we want to give you a choice.”  American universities had a chance to make a multi-generational difference in the lives of at-risk youth and their descendants.  There was no mandate.  Universities were free to decide if and how much they wanted to take race into account when it came to admissions. Unfortunately, six members of the Supreme Court looked at the numbers, not the potential impact, and took away that choice.

POSTSCRIPT

According to a 2017 Gallup poll, 58 percent of Americans supported Affirmative Action program for racial minorities including 51 percent of white Americans.  A similar June 2023 poll, conducted by the Pew Research Center, now shows 33 percent support by all Americans and only 29 percent by whites.  I cannot prove causation but I believe some of this shift in sentiment has been the concurrent re-emergence of white nationalism including public pronouncements of racist memes such as “you will not replace us” as well as MAGA-worlds tacit approval by failing to push back against the rise of white extremism.  One more example of the power of people’s exposure to fearmongering, regardless whether the specific threat is real or merely perceived.

For what it’s worth.
Dr. ESP

Friday, June 30, 2023, will be remembered by those most affected as the day the Supreme Court of the United States (SCOTUS) turned its back on those less-advantaged Americans for whom admission to one of the nation’s premier colleges and universities could provide the resources and mentoring by which they have a chance to fully develop their innate interests and talent.  But it is about more than education.  When a Harvard or North Carolina used race as a (not the) factor when considering a potential student’s application they were practicing what could be called “affirmative entrepreneurship.”

The curriculum in every American institute of higher learning with a major or minor in entrepreneurship includes a discussion of risk and reward.  It goes something like this.  You can do what everyone else is doing and make a decent profit.  But if you can see something no one else sees, even though the risks to pursue it are high, the rewards can be even greater.  Affirmative action in education was the willingness to see the less than apparent (through SAT scores or being president of the French club) potential of an applicant and produce something that was more unique and of higher value than what was readily available in the marketplace.  In other words, the justices who made up the 6-3 majority in Friday’s decision sent a second, more covert message.  American universities need to be more like risk-averse, large corporations, rather than entrepreneurial ventures.  Stick with the proven commodity, not identify and develop the market disruptor.  Be more like American Motors, TWA and Sears (remember them?) instead of Apple.

If you really want to know how affirmative action can work, one of the best examples is not in education, but in sports.  It was called “the Royals Baseball Academy.”  When Ewing Kauffman acquired the rights to a Major League Baseball (MLB) team in Kansas City, he chose not to repeat the dismal tradition of new franchises.  For new MLB entrants, initial rosters consisted of cast-offs and has-beens waived by the more established teams.  Mr. K (as he was affectionately known to his business associates and citizens of his hometown)  decided to take a different approach.  In 1969, the Royals held tryout camps in 41 states, the only attendance criteria being athletic ability regardless of sport.  Of the 7,682 attendees, 42 were chosen to attend the baseball academy at which they were mentored by the best in the business such as Ted Williams.  Of those 42, eight had never played on a high school or college baseball team.  Three of the 42 ended up playing for the Royals, including Hall of Fame inductee Frank White.  Mr. K knew there were potentially great baseball players out there.  You just had to look for them and offer them a path to reach their potential.

Perhaps those who oppose affirmative action would be less antagonistic if they considered how they have benefitted from the practice.  You do not have to be a minority, as my own experience demonstrates.  Based on my undergraduate GPA at the University of Virginia, I should never had been considered much less accepted into the Ph.D. program at Johns Hopkins University.  However, I had the good fortune to have John Ellwood as one of my professors.  John earned his doctorate from Hopkins and wrote a recommendation in support of my application.  He told the admissions office, although I was not much of a traditional student or test-taker, he thought I would thrive in the seminar-dominated environment for which the political science department was known.  I know I was given an opportunity I probably did not deserve based on objective criteria such as test scores or GPA.  I also know, an equally qualified (or in my case under-qualified) minority candidate would never have had a John Ellwood as a mentor.

I am not alone.  Every successful individual, if perfectly honest, can identify one or more instances where they received some immeasurable, subjective advantage in life.  Often due to nothing more than being in the right place at the right time.  And though they might not want to admit it, that hand up was a form of affirmative action, something that gave them an advantage over equally or more qualified competitors.

One last point.  Economically, affirmative action is not in the best self-interest of great universities.  Endowments, which are becoming an increasing portion of a school’s financial resources, come largely from successful alumni.  When a university admits a student from a family of less means or whose lineage does not consist of multi-generational success, the school is less assured that graduate will have the means to make a major donation in a future campaign.  Yet, successful minority graduates continually show their appreciation for the life-changing effect of a college experience offered them, often at a giving rate higher than non-minority alumni.  As an example, Morgan State University alumnus, Calvin Tyler, who worked as a UPS driver to pay for his education, parleyed his degree in business administration to become a senior vice-president at the delivery company.  In 2021 he and his wife Tina added $5 million to an endowed scholarship fund, bringing the total to $20 million.

Any major university in America, before Friday, could have taken that same risk and reaped the same rewards.  Today they are less likely do so.  And future Calvin Tylers, the universities they might have attended and America are more disadvantaged as a result of SCOTUS’ repudiation of “affirmative entrepreneurship.”

For what it’s worth.
Dr. ESP

One of the signature segments on Sesame Street was based on a song, “One of These Things (Is Not Like the Others),” created by Joe Raposo (music) and Jon Stone (lyrics).  The refrain was accompanied by pictures of four items, one of which was outside the general category represented by the other three. One of the earliest examples included a banana, an apple, a peach and a shoe.  I trust you can figure this out without my help.

I thought about this standard Sesame Street fare watching the cacophony of Republican voices invoking the “whataboutism” card in an effort to normalize Donald Trump’s indictment for violation of the espionage act and obstruction of justice.  Imagine Elmo or Ernie pointing at a poster with images of Trump, Joe Biden, Mike Pence and Hillary Clinton and singing to Kevin McCarthy or Lindsay Graham:

Did you guess which thing was not like the others?
Did you guess which thing just doesn’t belong?
If you guessed this one (Trump) is not like the others,
Then you’re absolutely…right!

But, as is often the case, that is not what I came here to talk about.  Today, I want to acknowledge a less obvious instance where one item or person stands out from the rest of the pack.  It was triggered by Nikki Haley’s change of heart after actually reading the Special Counsel’s indictment. What struck me was not a pivot that would give John Kerry vertigo, it was her reference to her husband.  After finally admitting Trump was “incredibly reckless with our national security,” she added:

More than that, I’m a military spouse. My husband’s about to deploy this weekend. This puts all of our military men and women in danger.

No contrition about how long it took her to reach this conclusion or her comments 24 hours earlier in which she claimed Jack Smith and his team were guilty of “prosecutorial overreach.”  Nor did she mention that Trump endangered the lives of thousands of military service men and women way before she realized, “Oh, he is endangering my husband.”

The second image is a picture of former White House Chief of Staff Mick Mulvaney.  On July 15, 2020 Mulvaney criticized the Trump administration’s response to the spread of COVID.

I know it isn’t popular to talk about in some Republican circles, but we still have a testing problem in this country. My son was tested recently; we had to wait five to seven days for results. My daughter wanted to get tested before visiting her grandparents but was told she didn’t qualify. That is simply inexcusable at this point in the pandemic.

Again no contrition.  It only became “inexcusable” when it affected his own daughter.

Image #3 is a two-person portrait of Representative Glenn Thompson (R-PA) and then Senator Rob Portman (R-OH).  Thompson joined 75 percent of his GOP colleagues who voted against a bill to codify same-sex marriage protections just days prior to attending his son’s wedding to (drum roll) his male partner. To add insult to injury, Thompson’s office issued the following statement. “Congressman and Mrs. Thompson were thrilled to attend and celebrate their son’s marriage on Friday night as he began this new chapter in his life.”

Although Portman voted for the bill when it came before the Senate, the justification for reversal of his long-standing opposition to same-sex marriage was equally hypocritical. 

It’s a change of heart from the position of a father. Will came to Jane and me and announced that he was gay, that it was not a choice. It was who he is and he had been that way since he could remember. Jane and I were both surprised, very surprised, but also very supportive of him. Our reaction was not about policy or positions. It was about him as a son and letting him know we were 110 percent supportive of him.

No doubt, Portman would have continued to deny other parents the same opportunity to celebrate a son’s or daughter’s love for another human being if his family had not personally faced the issue.

Which brings me to image #4, Fred Guttenberg whose daughter Stephanie was killed on February 14, 2018 during the massacre at Marjory Stoneman Douglas High School in Parkland, Florida.   Guttenberg has become a national leader in the gun safety movement since Stephanie’s death.  But he still does not feel personally exonerated for his previous indifference to the suffering of other parents.  On September 15, 2020, during a radio interview, Guttenberg said, “Every day I live with guilt I did not use my voice until it was my daughter.”

Again, I trust you do not need my help to determine which thing is not like the others.

For what it’s worth.
Dr. ESP

Media and the Twitter-verse are having a jolly good time with Florida Governor Ron DeSantis’ recent channeling of Winston Churchill to promote his war on WOKE. Instead of pledging “we shall never surrender” by taking the battle against Nazi Germany to the beaches, landing grounds, fields, streets and hills, on Saturday DeSantis told Iowans:

We will wage a war on the woke. We will fight the woke in education, we will fight the woke in the corporations, we will fight the woke in the halls of Congress. We will never, ever surrender to the woke mob.

He often refers to the “WOKE ideology.” Why?  Because ideology is about what individuals think or intend to do, not what they actually do.  Just ask the Governor.  On April 22, 2022, he signed the Florida “Individual Freedom  Act.” A more appropriate title would be the “Selective Individual Freedom Act,” since the law does not apply to a woman’s right to choose, parents’ right to determine their child’s health care, academic freedom at the state’s colleges and universities or a corporation’s right to protect its employees from a pandemic or promote diversity and inclusion.

Equally important, WOKE refers to getting up in the morning, that time of day when we ask ourselves about the future.  What am I going to do today?  It is also a time of reflection, to consider what we learned from yesterday’s experience.  Am I going to make the same mistakes?  How can I be a better person than I was 24 hours ago?

I still cannot understand why WOKE is a bad thing.  Consider the following.

• If  the founding fathers had been less WOKE about religious freedom and the divine right of kings, would we still be British subjects, beholden to the tenets of the Church of England?
• If Abraham Lincoln had been less WOKE, would the country still be divided into free and slave states?
• If Teddy Roosevelt had been less WOKE, would we be able to enjoy America’s national parks?
• If Susan B. Anthony and Elizabeth Cady Stanton had been less WOKE, would women have gained the right to vote?
• If Nelson Mandela had been less WOKE, would a majority of South Africans still live under apartheid?
• If Franklin Roosevelt had been less WOKE, would a majority of older Americans be living in poverty?
• If Martin Luther King, Jr. and Lyndon Johnson had been less WOKE, would African-Americans still be legally discriminated against or lack voting rights in some states?

Though not of the same historic consequence or impact, each of us has the opportunity to be more WOKE every day. 

• Is writing a check to a food bank but not volunteering to staff the facility WOKE enough? 
• Is contributing to relief funds for dislocated Ukrainians but not housing a refugee WOKE enough?
• Is supporting a ban on assault weapons but not attending a protest rally WOKE enough?
• Is giving a blind person the right of way at an intersection but not getting out of your car to offer assistance WOKE enough?
• Is calling animal rescue after spotting an injured bird but not taking it to the shelter WOKE enough?

That is why I propose “The SLEEP Act.”  It is based on a simple principle.  When we go to bed each night, ask ourselves, “Was I WOKE enough today?  Could I have done more?”  If yesterday was not a WOKE day, when the alarm goes off the following morning, do not just wake up.  BE MORE WOKE.

For what it’s worth.
Dr. ESP

In my previous blog, I expressed concern ideologues have hi-jacked the legitimate push for increased and, in some cases, mandatory civics education.  That is not my only fear.  Every day there is a news story that suggests even the most honest, well-intentioned efforts to expose students to the grand experiment we call the United States will be more akin to English Literature curriculum focused on 21st century fiction.  Consider the following examples.

THE FIRST AMENDMENT

Of the five restraints on Congress embedded in the First Amendment, James Madison, its principal author, opened, not with freedom of speech or the press, peaceful assembly or petition of grievances.  Instead, he chose religious freedom, ensuring Congress would “make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” Any classroom discussion, hopefully, would inform students the framers were of various religious backgrounds, some of which were contrary to the tenets of the Church of England.  And many of the founding fathers, including Washington, Jefferson, Franklin, Madison and Monroe, were deists, who followed the natural laws of God but did not believe in a supernatural deity or the divinity of Jesus.

In the 1971 Supreme Court case Lemon v. Kurtzman, the justices, by an 8-1 vote, established a litmus test to determine whether a specific government policy or action unconstitutionally promotes religion.  The three conditions, all of which must be met, were:

• Have a non-religious purpose;
• Not end up promoting or favoring any set of religious beliefs; and
• Not overly involve government with religion.

Some might argue the First Amendment applies specifically to Congress, not a state legislature.  That would be true prior to ratification of the 14th Amendment in 1868.  While Section 1 guarantees “equal protection of the laws” to all citizens, Section 5 gave Congress “the power to enforce, by appropriate legislation, the provisions of this article.”  Subsequent Supreme Court decisions confirmed these provisions extend to state legislatures.

The word seems not to have reached the Lone Star state.  During the 2023 session of the Texas Legislature, the Senate passed SB1515, requiring public schools to display the Ten Commandments in every classroom.  The sponsor Phil King (R-Weatherford) said, “[The bill] will remind students all across Texas of the importance of the fundamental foundation of America.”  King, who earned a law degree from Texas Wesleyan University (founded by the Southern Methodist Episcopal Church in 1890), must have slept through his constitutional law class when they studied the Bill of Rights.

I will go out on a limb and guess the text of the “classroom Ten Commandments” would be that enshrined in the King James version of the Old Testament, as opposed to the language in the Torah, though the first four commandments in both clearly violate the Lemon v. Kurtzman test.  It unequivocally establishes the existence of a deity, prohibits an image or likenesses of deities (would that include the prophet Mohammed or the ceiling of the Sistine Chapel), requires a day of reference to a deity and prohibits vain use of the deity’s name.  The fourth commandment represents the most grievous violation of the First Amendment, declaring this deity to be “the Lord THY (my emphasis) God.”  Seems THY has no choice in the matter.

Fortunately, the Texas House rejected the bill, although Senator King promises to reintroduce the measure in the next session.  So there is still the possibility we will one day read a story in a Texas newspaper about a student being arrested for muttering “Jesus Christ” when his or her teacher announces a pop quiz.

THE FILIBUSTER

Regardless of one’s personal perspective on the use of the filibuster in the legislative process, any discussion of the practice’s history and evolution should include South Carolina Senator Strom Thurmond’s 24 hour 18 minute filibuster of the Civil Rights Act of 1957, the longest in U.S. Senate history.  In other words, students should understand that sometimes those who claim the filibuster exists to protect the rights of the minority depends on their definition of “minority.”  Except in Florida.  To do so, could put a teacher’s career and livelihood at risk under the Sunshine State’s 2022 “Stop WOKE Act.”

Fortunately, U.S. District Judge Mark E. Walker for the Northern District of Florida halted enforcement of the law, declaring it gave the state “…unfettered authority to muzzle its professors in the name of ‘freedom.’”  He described it as a form of “doublespeak,” a reference to George Orwell’s novel 1984.  Governor Ron DeSantis has, of course, pledged to appeal the case to the U.S. Supreme Court which even Judge Walker admitted might overrule him, noting, “The Supreme Court has never definitively proclaimed that ‘academic freedom’ is a stand-alone right protected by the First Amendment.”

THEORIES OF CONSTITUTIONAL INTERPRETATION

Any course on Article III of the Constitution and the role of federal courts should expose students to the varying philosophies by which judges, and particularly Supreme Court justices, interpret the source document.  These include:

• Textualism.  Reliance on the exact words and structure.
• Originalism.  Its meaning at the time of its ratification.
• Judicial Precedent. Takes into account prior decisions.
• Pragmatism.  Takes into account practical consequences of a decision.

As we now know, there is a new theory which more appropriately could be called “Situational Interpretation.”  By this standard, a self-proclaimed textualist will support the principal concepts in Citizens United v. FEC that money equals speech and corporations are people.  I have been looking for that constitutional language since the 2010 decision without success.

Most recently, the originalists on the current high court have ignored the provision in Article III, Section 1, which states, “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour.”  And will Chief Justice Roberts and the originalist majority also ignore Section 4 of the 14th Amendment if President Biden invokes the provision which states, “The validity of the public debt of the United States shall not be questioned?”  The fact no president has challenged Congress’ power to prevent payment of constitutionally authorized expenditures seems to be a long-standing violation of the oath of office “to preserve, protect and defend the Constitution of the United States.”

My point?  Civics lessons which rely solely on de jure provisions of America’s founding documents and subsequent laws differ significantly from their de facto implementation. If the civics education movement does not recognize these discrepancies, rather than informing students of their rights and obligations of citizenship, it will become just one more affirmation of the adage, “Watch what we say, not what we do.”

For what it’s worth.
Dr. ESP