Ann Althouse seems surprised that Jeffrey Toobin is a moron about law; I am not surprised *UPDATED*

220px-Jeffrey_toobin_2012Jeffrey Toobin shot to national fame during the OJ trial, when he broke the story about the “race card.”  For New Yorker readers, he speaks ex cathedra on all legal issues.  For people who pay attention to the law, he’s a nincompoop.  Ann Althouse just caught Toobin in a major error about the Hobby Lobby case.  He was able to side firmly with the Obama administration only by ignoring the Religious Freedom Restoration Act, which serves as the basis for the plaintiffs’ claim.

I was not surprised.  Back in 2007, I wrote about another embarrassing Toobin article purporting to explain the law to New Yorker readers.  Since that post was on my old blog site, I’ll reprint it here and now:

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Today’s entry on the long list of media dishonesty is Jeffrey Toobin’s article about the current United States Supreme Court, an article given pride of place as the first entry in the New Yorker‘s “The Talk of the Town.”

The article, which ends with a reminder to New Yorker readers to keep the Supreme Court in mind when they cast their votes in November 2008, manifestly intends to scare people into believing that a new Dark Age, led by Catholic men in dark robes, is dawning. Sadly for Toobin’s authorial honor, and unfortunately for his credulous liberal readers, the only way he can do this is to lie, both by implication and, I’m sorry to say, by an outright falsehood.

Toobin confines his little attack on the Court to three decisions that came out under Chief Justice Roberts aegis. As to one of those cases, involving a death sentence, I have no information and, since it’s in criminal law, I have no desire to educate myself about the case’s ins and outs. As to the other two, however, because I’m familiar both with the cases and with the type of jurisprudence at issue, I do feel capable to comment.

The first case Toobin goes after is Ledbetter v. Goodyear Tire & Rubber Co., Inc., 127 S.Ct. 2162 (2007). This following paragraph constitutes Toobin’s entire discussion of the case and its outcome:

Moving with great swiftness, by the stately standards of the Court, Roberts, Alito, and their allies have already made progress on that agenda. In Alito’s first major opinion as a justice, earlier this year, he sharply restricted the ability of victims of employment discrimination to file lawsuits. The Court said that plaintiffs in such cases must bring their suits within a hundred and eighty days of, say, an unfair raise. But, because it generally takes employees longer than that to establish that they have been cheated, the effect of the ruling will be to foreclose many lawsuits.

What any sensible reader will understand from this terse summary of the case is that the reactionary Supreme Court, lusting after a return to the 19th Century’s golden era of unfettered employer rights, has foreclosed forever the possibility that employees can claim wage discrimination more than 180 days after that discrimination occurs. In the minds of Toobin’s readers, the justices have placed a permanent wall between these hapless employees and legal redress. Except that this understanding, which is really the only reasonable understanding possible based on the limited information Toobin provides, is entirely untrue.

What the Supreme Court said was that a Federal law imposing a 180 day deadline within which to file a wage discrimination begins to run on the date the employer makes the decision to discriminate, not on the date the employer cuts the last paycheck reflecting that discriminatory decision. That’s all.

Here’s the applicable law as summarized in Ledbetter:

Title VII of the Civil Rights Act of 1964 makes it an “unlawful employment practice” to discriminate “against any individual with respect to his compensation … because of such individual’s … sex.” 42 U.S.C. § 2000e-2(a)(1). An individual wishing to challenge an employment practice under this provision must first file a charge with the EEOC. § 2000e-5(e)(1). Such a charge must be filed within a specified period (either 180 or 300 days, depending on the State) “after the alleged unlawful employment practice occurred,” ibid., and if the employee does not submit a timely EEOC charge, the employee may not challenge that practice in court, § 2000e-5(f)(1).

Ledbetter, 127 S.Ct. at 2166 -2167. In other  words, Congress had mandated that if a person claims that her (or his) gender led her (or his) employer to pay her (or him) a discriminatory salary, then that person has between 180 or 300 days from the discriminatory act to file a claim with the EEOC.

Ms. Ledbetter argued that the legislatively vague phrase “alleged unlawful employment practice” should be understood to refer to her paycheck.  Her interpretation would mean that every single paycheck starts a new cause of action (and, presumably, reaches back to encompass prior paychecks). Her employer contended that the “alleged unlawful employment practice,” if any such act existed, would be the employer’s decision to pay its employee a discriminatory amount, as opposed to the fruit of that decision (i.e., the paycheck). The Supreme Court carefully analyzed myriad prior decisions and concluded that the employer had the better argument.

Speaking personally, I find Alito’s analysis clear and compelling.  As is always the case in the law (or at least mostly the case in the law), one can examine legal precedent and draw different conclusions or find entirely different cases to act as precedent. The dissent, for example, contends that it’s unreasonable to ask people to investigate how their pay ranks against their peers’ pay, and that they should be allowed to wait years, perhaps, before they figure out that they’re getting the short end of the salary stick. By advocating a different standard of responsibility for the employee, the dissent can look to different cases so as to reach a different outcome. And that, from beginning to end, is what Ledbetter is all about.

Knowing what the case is about helps one appreciate what the case is not about: It is not a ruling holding that, henceforth, employees must forever be barred from bringing wage discrimination claims if they don’t figure the problem out within 180 days of their most recent pay raise (or pay raise refusal). The Supreme Court is not making law. It is simply interpreting the law as written in light of case precedent. If the Legislature feels there’s a problem, it can change the law. That last is a singularly important point, since it goes to the heart of the difference between strict constructionists, who limit themselves to interpreting law, and judicial activists, who feel impelled to correct perceived Legislative errors, omissions, and ambiguities.

As I pointed out initially, Toobin’s short, elliptical analysis of the case utterly fails to explain to his readers that the majority was not making a law barring employees forever from complaining about wage discrimination more than 180 days after the fact, but was instead merely interpreting the law as written, leaving the matter open for Legislative change. This serious omission about the impact of a Supreme Court decision forces Toobin’s less informed readers to believe that the Supreme Court has dealt a permanent policy blow to the rights of American workers.

Toobin goes from misleading by omission to out-and-out misrepresentation when he discusses Gonzales v. Carhart, 127 S.Ct. 1610 (2007), the decision upholding Congress’ 2003 Partial Birth Abortion Ban. Here is Toobin’s summary. I’ve highlighted the language that is out-and-out false:

Most notoriously, the Court, for the first time in its history, upheld a categorical ban on an abortion procedure. The case dealt with so-called partial-birth abortion—a procedure performed rarely, often when there are extraordinary risks to the mother, the fetus, or both. But more important than the ruling were the implications of Justice Anthony M. Kennedy’s opinion. The Court all but abandoned the reasoning of Roe v. Wade (and its reaffirmation in the 1992 Casey decision) and adopted instead the assumptions and the rhetoric of the anti-abortion movement. To the Court, it was the partial-birth-abortion procedure, not the risks posed to the women who seek it, that was “laden with the power to devalue human life.” In the most startling passage in the opinion, Kennedy wrote, “While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained.” Small wonder that Kennedy’s search for such data was unavailing; notwithstanding the claims of the anti-abortion movement, no intellectually respectable support exists for this patronizing notion. The decision to have an abortion is never a simple one, but until this year the Court has said that the women affected, not the state, had the last word.

That last statement is just plain, absolutely, completely wrong.

Contrary to most people’s assumptions about Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), that case does not create an unfettered right to abortion. Instead, it established a delicate balancing act over the entire length of the pregnancy between the State’s interests and the woman’s interest in the fetus.  In the first trimester, when the fetus is not viable outside the womb, the balancing favors the woman’s right to choose how she wants to handle her pregnancy. In the second trimester, as the fetus nears viability, the balance begins tipping in the State’s favor. And, in the third trimester, when the fetus is viable, the State’s interests may triumph:

With respect to the State’s important and legitimate interest in potential life, the “compelling” point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother’s womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother.

Roe v. Wade, 410 U.S. at 163, 93 S.Ct. at 732.

Because it has never been the law of the land that the woman affected “had the last word,” it is dead wrong when Toobin says that Gonzales marks a stunning reversal of American abortion law. Instead, Gonzales is nothing more than a recycling of principles already articulated in Roe v. Wade. No matter how people may fulminate about Justice Kennedy’s touchy-feely analysis of abortion (a bad writing habit he no doubt picked up from his years in a liberal dominated court), the fact remains that the decision he authored in Gonzales did not take away any rights already granted in Roe v. Wade — a case which more than 30 years ago ensured that, near the end of the pregnancy, the State’s interests, not the woman’s, can be given primacy.

Toobin, of course, is not the only liberal to try to make political capital out of what must be a deliberate mis-reading of Roe v. Wade’s clear language. Immediately after the Supreme Court handed down its decision in Gonzales, Hillary Clinton issued a press release that also positioned the case as something entirely new and horrible:

Washington, DC — “This decision marks a dramatic departure from four decades of Supreme Court rulings that upheld a woman’s right to choose and recognized the importance of women’s health. Today’s decision blatantly defies the Court’s recent decision in 2000 striking down a state partial-birth abortion law because of its failure to provide an exception for the health of the mother. As the Supreme Court recognized in Roe v. Wade in 1973, this issue is complex and highly personal; the rights and lives of women must be taken into account. It is precisely this erosion of our constitutional rights that I warned against when I opposed the nominations of Chief Justice Roberts and Justice Alito.”

That Hillary created rights under Roe v. Wade that never existed in the first place isn’t too surprising. While she may be trained as a lawyer, she is first and foremost a politician, and one who has shown a willingness to do and say whatever it takes to obtain a political advantage.

That Toobin did the same thing is more disturbing. Toobin is not only a lawyer, he is a journalist who specializes in legal matters. His readers believe that he is using his legal knowledge and narrative fluidity to explain to them accurately legal matters that, while they may not be intelligible to the average person, nevertheless have immediate and significant impact on ordinary peoples’ lives. Toobin has taken this trust and used it to perpetuate lies. I’d cry “shame” but I suspect that, as to Toobin, that concept, whatever role it may once have had in his life, no longer exists.

UPDATE:  Earl Aagaard reminds me that, while Roe v. Wade refutes Toobin’s statement, it was illusory in its effect:

“…Roe v. Wade…does not create an unfettered right to abortion. Instead, it established a delicate balancing act over the entire length of the pregnancy between the State’s interests and the woman’s interest in the fetus. ”

This is true, Bookworm…..but your post ignored the fact of Doe v. Bolton, issued the same day as Roe v. Wade.  Doe says that a woman’s decision can be based on her “health”, and interprets health to include “mental health”, meaning that there is NO balance.  A woman has only to say she might be suicidal if she has to carry the baby to term and the decision of the SCOTUS says she must be allowed to abort – through all nine months of pregnancy.

What Roe gave, Doe took away, and our country has FAR less restrictive abortion laws than Europe….ever since 1973.

The complete intellectual degradation of the abortion debate

9 month old fetus

The starting point for any discussion about abortion is, of course, Roe v. Wade.  Pro-abortion people like to throw that case name around like a magic talisman that allows abortion from the moment of conception until some time after birth.  They invariably forget that Roe v. Wade was a very limited ruling. It did not create an unfettered right to abortion. Instead, it established a delicate balancing act over the entire length of the pregnancy between the State’s interests and the woman’s interest in the fetus.  Based upon the state of medicine in the early 1970s, the court saw viability as starting sometime within the second trimester.  The specific weeks or months of a pregnancy, though, weren’t the issue.  Viability trumps all:

With respect to the State’s important and legitimate interest in potential life, the “compelling” point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother’s womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother.  (Emphasis added.)

Roe v. Wade, 410 U.S. 113, 163 (1973).

The Supreme Court has decided myriad abortion cases since Roe v. Wade, all of which push back on limitations states attempt in impose on abortions in the early weeks.  The one thing that none of these cases have done is to limit the viability standard.  Instead, in Planned Parenthood v. Casey, the Supreme Court actually expanded the viability standard by saying trimesters are irrelevant.  The only thing that matters when it comes to determine the State’s interest is average fetal viability under current medical practices:

We have seen how time has overtaken some of Roe’s factual assumptions: advances in maternal health care allow for abortions safe to the mother later in pregnancy than was true in 1973, see Akron I, supra, at 429, n. 11, and advances in neonatal care have advanced viability to a point somewhat earlier. Compare Roe, 410 U. S., at 160, with Webster, supra, at 515-516 (opinion of REHNQUIST, C. J.); see Akron I, 462 U. S., at 457, and n. 5 (O’CONNOR, J., dissenting). But these facts go only to the scheme of time limits on the realization of competing interests, and the divergences from the factual premises of 1973 have no bearing on the validity of Roe’s central holding, that viability marks the earliest point at which the State’s interest in fetal life is constitutionally adequate to justify a legislative ban on nontherapeutic abortions. The soundness or unsoundness of that constitutional judgment in no sense turns on whether viability occurs at approximately 28 weeks, as was usual at the time of Roe, at 23 to 24 weeks, as it sometimes does today, or at some moment even slightly earlier in pregnancy, as it may if fetal respiratory capacity can somehow be enhanced in the future. Whenever it may occur, the attainment of viability may continue to serve as the critical fact, just as it has done since Roe was decided; which is to say that no change in Roe’s factual underpinning has left its central holding obsolete, and none supports an argument for overruling it.

Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 860 (1992) (emphasis added).

In sum, what the Supreme Court has done over the years is to expand pre-viability rights, while contracting the window of time within which those rights apply.  This is an important point to keep in mind when considering the House’s Pain-Capable Unborn Child Protection Act, which bans abortions at 20 weeks of pregnancy.  First, don’t let the 20 weeks throw you.  The method the House bill uses to calculate fetal age translates to what most women would consider 22 weeks pregnant, which is when fetus’s can survive outside the womb.  (There are two different time measurements, in the same the way that Celsius and Fahrenheit are two different temperature measurements.)

Right out of the box, the pro-abortion media gets the bill wrong.  In a Washington Post article, the Post claims the House bill goes beyond the Supreme Court, which it does not:

The bill would narrow the window currently set out by federal law and the Supreme Court, which bans most abortions after 24 weeks of pregnancy. Some Republican-controlled state legislatures have passed similar laws in recent months.

As you can see from the quotation above, the Supreme Court did not place a time-limit on abortion.  It placed a viability limit.  Once the average fetus is viable with modern medical care, the State has rights.

Now that we’ve established the law, let’s look at what Barack Obama has to say about the House bill, which he has declared he intends to veto in the unlikely event it gets through the Senate:

The Administration strongly opposes H.R. 1797, which would unacceptably restrict women’s health and reproductive rights and is an assault on a woman’s right to choose.  Women should be able to make their own choices about their bodies and their health care, and Government should not inject itself into decisions best made between a woman and her doctor.

Forty years ago, the Supreme Court affirmed a woman’s constitutional right to privacy, including the right to choose.  This bill is a direct challenge to Roe v. Wade and shows contempt for women’s health and rights, the role doctors play in their patients’ health care decisions, and the Constitution.  The Administration is continuing its efforts to reduce unintended pregnancies, expand access to contraception, support maternal and child health, and minimize the need for abortion.  At the same time, the Administration is committed to the protection of women’s health and reproductive freedom and to supporting women and families in the choices they make.

If the President were presented with this legislation, his senior advisors would recommend that he veto this bill.

This is a steaming pile of manure.  It cites to Roe v. Wade without understanding it, and which completely ignores Casey, all in an effort to give women unfettered abortion rights from conception through to some moment after delivery.  Reading the statement, it’s difficult to remember that our President is a Harvard Law graduate and former constitutional law professor. I mean, we know he didn’t author it himself, but how in the world could he have put his imprimatur on it?

I’ve commented before on the factual dishonesty of the abortion debate.  Abortion proponents pretend that we’re living in the 1950s, when out-of-wedlock pregnancy was a stigma, not a commonplace.  I guess it’s unsurprising that the intellectual debate would be equally dishonest.  One could say that the good thing about mass murderer Kermit Gosnell is that his “post-birth” abortions have brought to light the intellectual paucity of the Democrat party when it comes to abortion.  The Supreme Court has insisted on a balancing act, and the Democrats have responded by putting their thumb firmly on the abortion side of the scale.

photo by: fekaylius

There’s a greater difference between arms and abortion than a “reasonable” NYT editor will acknowledge

A friend pointed me in the direction of a New York Times article that argues that both Second Amendment supporters and Abortion supporters are too quick to panic whenever the topics come up for debate, thereby precluding all rational discussion.  After describing the way VP Biden’s mention of Obama and executive orders regarding guns got reported on the conservative side of the blogosphere as a putsch that would see Obama effectively overriding the Second Amendment, the editorial goes on:

The distance between what Mr. Biden said and what The Examiner reported gets at why it’s so difficult to conduct a national conversation on the regulation of firearms. If the gun-control camp mentions restrictions the anti-gun-control camp hears bans. If the former mentions a ban on certain kinds of guns, the latter hears all guns, plus confiscation.

Many gun-rights activists, moreover, seem to suspect that the other side argues in bad faith. In public, gun-control advocates may sound reasonable, proposing only limited regulations, but what they really want is to repeal the Second Amendment, or to overturn Heller, and force the complete disarmament of the civilian population. First they’ll come for our Bushmasters, then they’ll come for our hunting rifles.

The fear that restrictions are a Trojan horse, the prelude to outright prohibition, similarly animates the staunch defenders of another controversial right: Abortion.

Writing in Slate in 2006, during Samuel Alito’s confirmation hearings, the legal academic Dawn Johnsen argued that Senators asking whether he would overturn Roe were missing the point. He would more likely “hollow it out.” Ms. Johnsen suggested that Roe opponents have taken an “incremental” approach to eviscerating abortion rights. They’ve pushed for restrictions such as waiting periods and “informed consent” laws; restrictions “designed to sound reasonable while also limiting the number of abortions performed, ultimately as completely as would a criminal ban.”

Last December, Michigan Gov. Rick Snyder signed an abortion bill requiring doctors to screen women for coercion (among other measures). Supporters claimed the bill was necessary to safeguard women’s health; opponents said it was a paternalistic assault on women’s rights. The same argument played out in Kansas in 2011, when the state set compulsory standards for abortion clinics. Supporters claimed the regulations were an effort to protect women from unsafe conditions; opponents said they were a ruse to curb reproductive freedom.

The editorial is certainly correct that the debate on both sides tends to be argued most loudly at the extremes, rather than in the middle.  It errs, though, insofar as it presumes a legal equivalence between the two issues.  The primary difference between the two issues is gun ownership is an explicitly and affirmative stated Constitutional right, while abortion is an emanation of a penumbra — or, in other words, a judicially created right.

Moreover, for those who actually bother to read Roe v. Wade, the Supreme Court made very clear that the state has a continuing interest in the fetus.  As the fetus develops towards recognizable person-hood (meaning that it can survive outside the womb), the state’s interest increases dramatically.  Although recent(ish) Supreme Court decisions have expanded a woman’s rights over the state’s/fetus’s rights, the Court has never erased that state interest entirely.

Second Amendment

The Second Amendment, of course, vests all interests in the citizen.  What this means is that, in theory, the State has no rights whatsoever when it comes to arms.  That’s the theory.  In fact, though, the Supreme Court has long allowed local and federal jurisdictions to place some limitations on arms in order to maintain the peace.  Significantly, however, by imposing these limitations, the State is intruding on a citizen’s absolute constitutional right.  In the case of abortion, the citizen seeking an abortion is intruding upon the State’s interest in nascent citizens.

Why does this distinction matter?  Because while Roe gives the state the right, power, and duty to protect the smallest citizens, so that state interference is the appropriate way to approach the issue, the Constitution doesn’t grant the government the authority to interfere with the People’s right to keep and bear arms.  Moreover, Obama, as the nation’s chief executive, has only a subset of the powers granted to the Federal government as a whole, and this subset is limited to those executive orders necessary to carry out Congress’s dictates.  It therefore becomes a matter of supreme citizen interest when Obama’s minions announce that he intends to bypass Congress entirely and act in a way that diminishes an expressly stated Constitutional right vested in citizens, not government.

Rational discourse is a great idea.  But it’s less of a great idea when it operates off the premise that, with regard to both abortion and guns, the State holds all the power cards.  More than that, Second Amendment advocates would be fools to engage in a “gun control” debate, because framing the discussion that way automatically cedes to the government the right to control guns.  Rather, we should be talking about the government’s actual responsibility in a civilized nation, which is exert some authority over violence.  As I’ve noted before, statistical data indicates that framing the issue in such a way militates in favor of more arms, rather than fewer.

Gun control and the Nazis

 

 

 

From the same people who brought you the constitutional right to privacy: “You have no privacy.”

In 1973, the United States Supreme Court created a federal right to abortion by finding that abortion falls into an unstated Constitutional dimension called “the right to privacy.”  (Note:  British and American common law has always recognized a right to privacy, but the Constitution makes no mention of it.)  Thus, in Roe v. Wade, the Court explained the constitutional protections for abortion as follows:

The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going back perhaps as far as Union Pacific R. Co. v. Botsford, 141 U.S. 250, 251 (1891), the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution.

[snip]

This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.

With the Court’s pronouncement about the huge reach of the Constitution’s unexpressed “right to privacy,” Democrats, Liberals, Communists, and Progressives pronounced themselves satisfied.  The 10th Amendment, which once upon a time reserved to the states those rights not expressly delegated to the federal government, was meaningless.  If the Left thinks it should be in the Constitution, then — voila! — it is in the Constitution. Since 1973, therefore, Americans have believed that a person’s right to privacy is all-encompassing, and prohibits the government, as well as arms of the government, such as state founded or funded universities, from poking their governmental nose into anything that pertains to our own bodies.

With the exception of abortion, which is the most challenging issue because there are competing right’s (the woman’s and the fetus’s), most libertarians would agree with a common law (and therefore worthy of full respect) right to privacy, even if they would argue, as I do, that it’s tremendously damaging to the American body politic to pretend such a right is constitutional.  If we want a constitutional right to privacy, the Constitution spells out the procedure:  amendment, not judicial fiat.

Once they established this new constitutional principle, however, Progressives realized that they should have been a bit more careful in institutionalizing privacy as a core constitutional doctrine.  As they’ve discovered, the best way for a state to control individuals is through controlling their sexuality.  By asserting increasing state dominance over people’s sex lives (which is different a society enforcing traditional moral codes), the state can break familial bonds, destroy an individual’s sense of his inviolable self, interfere with core religious doctrine, and hand out sexual treats at opiates for the masses, all of which consolidate state power over individuals.

The problem for the Progressives arises if individuals are old-fashioned enough to believe that their sexuality is nobody’s business but their own. And no, traditional marriage is not necessarily proof that people are screaming their heterosexuality out loud. Having grown up in San Francisco, I’ve known of many marriages that involved agreed-upon sexual arrangements that had very little to do with traditional heteronormative behavior, and everything to do with people wanting to live their lives their way, free from prying eyes.

Progressive’s frustration with old-fashioned notions of personal privacy — the same notion that they promoted and cheered in Roe v. Wade — came to a head in 2008 at the University of Delaware.  In academia’s never-ending push to turn people into malleable little clumps of victim-hood, and class-, race-, or sexuality-based identity groups, the University of Delaware realized that it would need to force recalcitrant students to state whether they’re LGBT, GLBT, STR8T, BI, AC/DC, or LMNOP (oh, sorry, got lost in my alphabet soup there):

A female freshman arrives for her mandatory one-on-one session in her male RA’s dorm room. It is 8:00 p.m. Classes have been in session for about a week. The resident assistant hands her a questionnaire. He tells her it is “a little questionnaire to help [you] and all the other residents relate to the curriculum.” He adds that they will “go through every question together and discuss them.” He later reports that she “looked a little uncomfortable.”

“When did you discover your sexual identity?” the questionnaire asks.

“That is none of your damn business,” she writes.

“When was a time you felt oppressed?”

“I am oppressed every day [because of my] feelings for the opera. Regularly [people] throw stones at me and jeer me with cruel names…. Unbearable adversity. But I will overcome, hear me, you rock loving majority.”[1]

She is not playing along like the other students, and the RA confronts her using his “confrontation training,” but it isn’t working. He becomes so appalled by her resistance that he writes up an incident report and reports her to his superiors. After all, this is the University of Delaware, and the school has a zero-tolerance policy for anything remotely resembling “hate speech.”

This one-on-one session was not meant to be a punishment, some kind of mandatory sensitivity training for a recalcitrant student who had committed an infraction. It was mandatory training for all 7,000-odd students in the University of Delaware dorms. The sessions were part of a thorough thought-reform curriculum, designed by the school’s Office of Residence Life, to psychologically “treat” and correct the allegedly incorrect thoughts, attitudes, values, beliefs, and habits of the students. The ResLife staff considered students too intolerant of one another, too “consumerist,” and in dire need of reeducation to become responsible world citizens who could meet the planet’s environmental crisis and the requirements of social and economic “justice.”

(FIRE successfully mounted a campaign to force the University of Delaware to abandon this forcible effort to extract personal information from vulnerable freshman, but I use it as an example here, because it so perfectly encapsulates the Leftist attitude towards privacy and sexuality.)

Aside from having a girl-crush (but not an LGBT girl-crush, just an intellectual one) on the young woman who spoke of being opera-oppressed, I’m shocked, disgusted, appalled, etc. — the usual range of emotion a liberty-loving person experiences when an institution takes vast sums of money to control a young person’s life and future and then uses its coercive power to extort deeply private information from that same vulnerable student.

What makes this Progressive attitude even more distasteful is the fact that Universities claim to be all about privacy — at least when that privacy means isolating students from their own parents, despite a reasonable presumption that these same parents, unlike the vast, impersonal institutions, truly have their children’s best interests at heart:

College and University students have a right to privacy. In the United States, it’s called FERPA: the Family Educational Rights and Privacy Act. And there are a lot of rights and protections that you have as a student eighteen or over, and that you must respect as both a parent and a professor.

As a student, your grades, enrollment, assignments, and interactions with professors are all completely confidential. As a professor, I am not allowed, legally, to give out any information whatsoever about a student without that student’s explicit permission.

And, like practically all professors, I don’t. But this message is most important for parents, and for students who are worried about their irate parents.

Put another way:  your parent, who is probably paying for some or all of your education, cannot ask about your grades, but your university, which will have taken a minimum of $100,000 from you over the course of four years, while promising you a diploma with at least some market value, can force you to state your most private personal information.

I was going to end this post by saying the Left can’t have it both ways:  it either recognizes individual privacy or it doesn’t.  Then I slapped myself in the face and said “Don’t be stupid, Bookworm!  In Obama’s Leftist, narcissistic America, the Left can have it any way it likes it, both coming and going, as long as its demands drive the bottom line towards statism.”

Found it on Facebook: Voting with those “lady parts”

This keeps cropping up on Facebook and every time I see it, I find it irritating.

There’s something horribly medieval about reducing women to their sexual organs.  After all, when you think about it, the only thing that Obama has done for women is to order employers to provide insurance that covers birth control — which is a very limited expense.  That’s the difference between Obama’s approach to women and Bush’s.

In all likelihood, notwithstanding the fact that both Romney and Ryan are pro-Life, the only change under a Romney presidency is that we’ll go back to having women pay for their own birth control.  (And men, I’m sorry, but you should pay for your own Viagra.)

The Supreme Court is not going to reverse Roe v. Wade.  If it does, the matter goes to the states and, if enough people want it, a constitutional amendment.

As Michelle Malkin says, I’m voting with my lady smarts, not my lady parts.