Update on Shaw v. Smith College

March 1, 2021 • 10:15 am

Jodi Shaw hasn’t yet brought her legal case against Smith College, but one seems to be impending, as she’s filed a complaint with the state of Massachusetts (see below). Her GoFundMe page has also reached the total below (click on screenshot), heading towards twice her original goal.

And she really does seem to be sequestering everything above $150,000 for helping others in similar situations. Here’s a new addendum to her page (her emphasis):

***Therefore, any monies over $150K will be placed in an escrow account to be disbursed as needed to individuals I know or who have reached out to me who are trapped in hostile workplaces, including in the workplace of my own former employer. ***

As February 22, together with monies contribute to my private PayPal account, we have raised $85K for this escrow account alone.

This is important as there are many others in the wings who are thinking about or preparing to take action and could really use the help.

That escrow money has now grown to over $127,000! Clearly, a lot of people are on her side—or the side opposing strict application of Critical Race Theory in universities—and I don’t think that all of them are white supremacists. Surely many of them are the sympathetic folks who are afraid of “outing” themselves.

Shaw also added this yesterday:

Hi everyone,

I have some news to share. I sent my complaint to the Massachusetts Commission Against Discrimination (MCAD) last week. This is the first step in the process of bringing a suit against Smith College. Although the MCAD has yet to certify it, I wanted to share a preview with all of you who have so generously supported this cause.


Thanks again for all your support. Words cannot express my gratitude. This is truly a community effort.

The document in question, a complaint to the Massachusetts Commission Against Discrimination, was prepared with the help of a lawyer. At 18 pages long, it has a lot more information than what we’ve learned already, and it all reflects pretty badly on Smith (remember, though, Shaw is an opponent of the College’s policies, and the document is a legal one). You can read it by clicking below, or going to the link above. You can read successive pages by clicking the arrows at the bottom of the screen.

Here’s the beginning:


Biden administration withdraws from lawsuit banning transsexual males from competing in women’s sports

February 26, 2021 • 11:00 am

Here is the obligatory disclaimer: I approve of the Biden administration’s attempt to undo many of the changes or executive orders handed down by the Trump administration: immigration, Covid relief, the damn border wall, equality for people of all genders, and so on. But, relative to the last issue, there’s one thing that the Biden administration just did that deserves criticism.

As reported by NBC News, Biden’s Justice Department, as well as its Education Department’s Office for Civil Rights, have withdrawn their support of a federal lawsuit in the state of Connecticut seeking to overturn a state law requiring any high school student who identifies as a women to be allowed to compete in women’s sports. Click on the screenshot to read.

Now we’ve discussed at length the problems with allowing transgender women to compete against biological women, for their strength, muscle, and bone advantage is already largely set right after puberty, and persists even with hormone treatment and surgery. How we deal with medically or surgically treated transgender women is a contentious issue bearing on biology and ethics, and will have to be resolved subjectively.

But that’s not the most debatable part of Connecticut’s law.. The law “requires that all high school students be treated according to their gender identity.” That means that if you identify as a woman, you are a woman and can compete against women, even if you have never undergone medical treatment for “transitioning.” And, as the article reports,

On his first day in office, President Joe Biden signed an executive order prohibiting discrimination based on gender identity in school sports and elsewhere. Former president Donald Trump had rolled back protections for transgender people while in office.

Now Trump was clearly catering to his base, and I’m in favor of Biden’s strengthening protections for people of all gender identities. But to me, that “protection” stops when pure biological men who take the identity of women are allowed to compete against biological women. You know what the results will be: the death of women’s sports. Here’s one example from Connecticut; as far as I know, neither Miller nor Yearwood had undergone any form of medical transition, at least when this competition took place:

(From NBC): Bloomfield High School transgender athlete Terry Miller, second from left, wins the final of the 55-meter dash over transgender athlete Andraya Yearwood, far left, and other runners in the Connecticut girls Class S indoor track meet at Hillhouse High School in New Haven on Feb. 7, 2019.Pat Eaton-Robb / AP file

Previously, William Barr had submitted a “statement of interest” in the Connecticut suit, a statement that supported the girls who brought the suit. and said that allowing such competition might violate Title IX’s provision that women should be given equal opportunity in all high-school endeavors. The matter is described this way by The Hill:

The Justice Department’s withdrawal came ahead of a Friday hearing in the case over the state’s motion to dismiss the lawsuit. The families of three high school girls sued Connecticut officials in 2020, arguing that allowing transgender athletes to compete in girls’ sports forced athletes “to compete against boys.”

“Forcing them to compete against boys isn’t fair, shatters their dreams, and destroys their athletic opportunities,” an attorney for the plaintiffs, Christiana Holcomb, said last year. “Having separate boys’ and girls’ sports has always been based on biological differences, not what people believe about their gender, because those differences matter for fair competition.”

Former Attorney General William Barr agreed, arguing in court documents at the time that the state’s current policy runs afoul of Title IX, which guarantees girls equal access to sports and other school activities.

Now the government has withdrawn its support, saying simply that “The government has reconsidered the matter.” The American Civil Liberties Union (ACLU), of course, is supporting the state, representing Miller and Yearwood, the two athletes shown above, and agreeing with Connecticut’s misguided law.

From NBC:

Connecticut Attorney General William Tong said Tuesday he was pleased with the Justice Department’s decision to withdraw Barr’s statement.

“Transgender girls are girls and every woman and girl deserves protection against discrimination. Period,” he said in a statement.

Transgender girls are not girls for purposes of competing against biological girls, especially if they’ve had no medical treatment. Period.

Lest the Pecksniffs descend, I affirm again that the right of anybody to have their gender identity respected and supported by morality and law should hold in almost every area of human endeavor. But there are a few exceptions, and sports is one. Once again, there’s a reason why men’s and women’s sports are kept separate.

New Polish law chills the work of historians; forbids accusing Poles of complicity with Nazis against Jews in WWII

February 17, 2021 • 9:30 am

In 2018, the right-wing Polish government, apparently eager to burnish their image, passed a law forbidding anyone from “unjustly and incorrectly blaming Poles for crimes committed by the Germans” during World War II. In other words, if you accused Poles of helping the Germans kill Jews, or of doing it on their own, you were breaking the law—unless you could prove that statement with 100% assurance. The penalty for purveying accusations of complicity against Poles that can’t be “proven” was up to three years in prison, but the prison term has since been dropped after an international outcry led by Israel. However, the law still applies, and applies worldwide, which is why one of the accused in the present case is a Polish-Canadian. Whether Poland would try to extradite foreign historians who violate the law isn’t clear!

Now there’s no doubt that many Poles did indeed kill Jews on their own (the Polish police were notorious for this), or helped the Germans with pogroms (viz., the Einsatzgruppen), as well as turning in Jews to the authorities, which of course would lead to their extermination. Some took lots of money from Jews to help them escape or hide them. There is no doubt that many Poles were complicit in the Holocaust, and this is historically documented. (Many Poles also helped the Jews during the war; I’m not implying that every Pole hated every Polish Jew!)

Nevertheless, Poland’s ruling “Law and Justice” party is trying to use the law to perpetrate injustice. The latest manifestation of this form of Holocaust denial, as described in the Guardian article below, is the prosecution of two Polish historians for accusing a Pole of having aided the Nazis by turning in Jews to authorities during the war. Click on screenshot to read.

The story is a bit complicated. Two Polish historians, Barbara Engelking and Jan Grabowski (who works in Ottawa) mention in Night Without End, a new two-volume history, that a Pole, Edward Malinowski, denounced 16 hiding Jews to the authorities, who immediately killed those Jews. This comes, however, from the testimony of a woman, Estera Siemiatycka who Malinowski saved.  Her story changed after she left Poland, when she claimed not only that she had paid Malinowski to help her, but also asserted that he denounced 16 other Jews in hiding. Malinowski was tried by the Communists after the war for denouncing Jews, but because Siemiatycka hadn’t yet recanted, found him not guilty.

The historians Engelking and Grabowski present all these stories in their book, but conclude, based on their own research, that Malinowski was indeed guilty of denouncing Jews.  Because of this conclusion, Malinowski’s niece, Filomena Leszczyńska, sued the historians under the new law. She was supported by The Polish League Against Defamation, which is essentially part of the ruling Law and Justice party.

Apparently because historians’ judgment is not good enough (you have to be 100% sure, apparently, and who ever is in matters like this?), the court found Engelking and Grabowski guilty, ordering them to apologize to Leszczyńska (there was no fine or jail term). They refused, and both sides appealed the case to the next highest court. This could go on for a long time, and if the Supreme Court ultimately finds the historians guilty, and they still refuse to apologize, they could be fined or have their books censored.  To be sure, the Court said that the law wasn’t meant to stifle academic research; as the Guardian notes:

Leszczyńska and her backers took a different legal route in their case against Engelking and Grabowski, claiming that the historians had violated her personal rights. The court conceded that the claimant’s right to “respect for the memory of a relative” had been infringed, but threw out the other claims and did not award damages, stating that the judgment was not intended to stifle academic research. The historians are appealing the judgment.

That claim that the government didn’t intend to stifle research is pure cant, for what other purpose would it have than to obscure inconvenient truths?

In the end, whatever your interpretation of the law, two historians were still taken to court, essentially for dissing Malinowski. And others have argued (and I concur) that this will indeed have a chilling effect on historical research. During the murky days of WWII, how often do we have watertight proof that a Pole was indeed complicit in the persecution of Jews? Some criticism of the law:

“I’ve got real doubts about this judgment,” says lawyer Michał Jabłoński, who acted for the defence. “It is dangerous for freedom of speech and academic research. It is unprecedented that the court decides which historical source is reliable instead of researchers. This judgment requires that testimonies of survivors are verified before they are published anywhere, that researchers have to be 100% sure that testimonies are accurate before they publish conclusions, especially if they regard someone’s misconduct. In the view of the court, the existence of other sources that are contrary to a survivor’s testimony should prevent researchers from publishing their research if it interferes with someone’s personal rights. Such a standard makes historical research a dangerous job, in fact impossible, as in most cases survivors’ testimonies can’t be verified.”

International organisations and academics have also been swift to condemn the ruling. Israel’s Holocaust memorial Yad Vashem said it was “deeply disturbed by its implications.” Sascha Feuchert, director of the Arbeitsstelle Holocaustliteratur at the University of Giessen, Germany, said: “For many incidents in the Holocaust, we only have the testimonies from survivors. Of course they need to be checked and discussed in academic debates as far as possible. But this court ruling and its conclusions not only threaten the foundations of research based on survivor testimony, it could also be a gift for Holocaust deniers.”

. . . Mikołaj Grynberg, a writer who has documented Polish-Jewish accounts in his books, believes that the state’s agenda to promote Polish heroism goes against historical truth. “The aim is to feel good and be a chosen people – we are the only nation that has only noble people among us,” he says. “That’s adolescent thinking and bad news that we are not growing to be an adult country. So it will stay like this for years.”

The future of historical research in Poland is thus unclear, especially for someone like the distinguished historian Jan Gross, a Polish-American who has made his career documenting Polish persecution of Jews during and after World War II.  Gross was already subject to a defamation case for saying that the Poles killed more Jews than they did Nazis during the war, though the government dropped the charges in late 2019.

There’s really no doubt that many Poles were complicit in persecuting and killing Jews during the War. (I should add here that 6,000 of them were also honored for saving Jews, and have been awarded the honor of “Righteous Among The Nations” by Yad Vashem in Israel, a title I’d love to have but is conferred only on non-Jews like Oskar Schindler.) The evidence for a Polish animus against Jews also comes from the fact that after the war the Poles continued pogroms on their own, without the Nazis. The 1946 massacre at Kielce is only one example of several instances of pogroms. Further, Poles often refused to give back the confiscated property and houses of Jews who had fled the country after those Jews returned following the war.

The two points here are that the historical record is clear, and that Poland’s government is bent on distorting it to further their own purposes. The government itself is right-wing and authoritarian, and needs to go. But it won’t, as it’s popular with a large number of Poles.

h/t: Malgorzata

Reparations for Merrick Garland: he gets to be attorney general

January 6, 2021 • 12:00 pm

Merrick Garland, Obama’s unlucky nominee for the Supreme Court whose seat was pulled away by Mitch “666” McConnell, will now be Biden’s nominee for attorney general.  And now that it looks even more sure that the Democrats will control the Senate, fears about the lacuna he’d leave on the appeals court are waning.

As CNN reports:

While Garland has been a top contender for weeks, concerns about the vacancy his selection would create on the US Court of Appeals for the District of Columbia raised alarm bells among Biden and many advisers who believed Senate Republicans would block any nomination to that seat. But with Democrats poised to control the Senate after two Georgia runoff races, those concerns were allayed. “Judge Garland will be viewed in a whole new light now,” a top Biden ally tells CNN.
I tell you: what with the vaccines and the new Democratic administration, and perhaps a Democratic Senate, 2021 is looking up. It would be lovely if Garland got to lead the prosecution of Donald Trump, but any prosecutions will be on the state rather than the federal level, especially if Trump succeeds in pardoning himself.
Merrick Garland

Feds execute two more prisoners

December 14, 2020 • 9:15 am

As I reported about a month ago, three federal executions were scheduled between then and Christmas, with three more on tap before Inauguration Day on January 20. This is a total of six, and clearly, because of their disproportionate number, Trump is rushing to get these people killed before Biden becomes President. (Presidents have the power to stay executions, and Biden has said he’s opposed to the death penalty.) I don’t expect Trump to exercise any empathy here: he reserves that for his cronies who have been convicted of federal crimes.

If all of these executions take place, as they surely will, this will make a total if 13 state-sponsored killings under Trump’s administration—the most under one President in over a century.  As the Associated Press reports, this is a very rare year in another way: executions by the federal government outnumber those carried out by the states themselves.  It’s usually the other way around, and by a huge margin. Here’s a graph, with the blue bars being federal executions and the orange ones state executions:

Well, this last week two of the three Government Christmas Killings took place. All federal executions are carried out by lethal injection, and all in the same place: the Federal Penitentiary in Terre Haute, Indiana.

The first killing took place on Thursday, when Brandon Bernard, 40, was put to death. He was 18 at the time he committed two murders, had spent more than half his life on death row, and pleaded for clemency from Trump because he was a teenager when he did the crime. From the New York Times:.

Among his final words, Mr. Bernard apologized to the family of the couple he had killed and for the pain he caused his own family, according to a report from a journalist in attendance. For his role in their deaths, he said, “I wish I could take it all back, but I can’t.”

“I’m sorry,” he said, looking at the witness room windows. “That’s the only words that I can say that completely capture how I feel now and how I felt that day.”

Mr. Bernard did not appear outwardly afraid or distressed as he spoke. A minute after the lethal injection began, his eyes slowly closed, and his breaths became increasingly shallow, the report noted.

He was pronounced dead at 9:27 p.m. at the federal prison complex in Terre Haute, Ind., the Bureau of Prisons said.

The second, on Friday, was of Alfred Bourgeois, 56. The Associated Press reported on his death:

As a lethal injection of pentobarbital began flowing through IVs into both of his arms, Bourgeois tilted his head to look at his spiritual adviser in a corner of the death chamber clutching a Bible. Bourgeois gave him a thumbs-up sign, and his spiritual adviser raised his thumb in reply.

Seconds later, Bourgeois peered up toward the glass dividing him from the media and other witnesses in adjoining rooms, and then grimaced and furrowed his eyebrows. He began to exhale rhythmically, and his stomach started to quiver uncontrollably. After five minutes, the heaving of his stomach stopped and his entire body became still. He did not move for about 20 minutes before he was pronounced dead.

Bourgeois had met with his spiritual adviser earlier Friday as he sought to come to terms with the possibility of dying, one of his lawyers, Shawn Nolan, told The Associated Press hours before the execution. He said Bourgeois had been “praying for redemption.”

Bourgeois took up drawing in prison, including doing renditions of members of his legal team. Nolan said he had a good disciplinary record on death row.

I am not saying that the executed should have been released, though at least for Bernard that might have been a possibility had he reformed, but I do insist that the death penalty is barbaric and unworthy of America. I won’t go into my arguments against it, but will mention one: if convicted people are later exonerated, as 167 death row inmates have been since 1973, there’s no bringing them back when they’re dead. And if they’re not exonerated, well, there’s always life without parole.

All First World countries save Japan, Taiwan, and the U.S. have abolished capital punishment (see below). Do we really want to be in the small group of exceptions? What about America requires us to retain the death penalty? Although numbers of countries alone don’t establish the moral rectitude of abolishing executions, they do show a consensus. For those who still want to have state-sponsored killings, I reply as Oliver Cromwell implored the Church of Scotland:

I beseech you, in the bowels of Christ, think it possible that you may be mistaken.

h/t: Ken.

The Supremes give Trump a boot in the tuchas

December 11, 2020 • 6:12 pm

The ridiculous Texas lawsuit seeking to nullify the election results in Michigan, Wisconsin, Georgia, and Pennsylvania has been rejected by the Supreme Court in an unsigned order, and for the expected reason: lack of standing. Here’s the terse decision:

I’m not sure what Alito and Thomas are on about, but the lawyers in the crowd can explain it to us.

He has no recourse, at least any that I can see.

Tweeted a few hours ago (he hasn’t reacted to the new decision, but that should be fun):

The court showed adherence to the law.

Ivy League librarians call for an end to all policing

December 4, 2020 • 1:00 pm

My impression of librarians is that they are sensible and anti-woke, at least in terms of their stand on free speech and free expression. After all, they are the guardians and disseminators of all knowledge, the opponents of censoring books, and I have respected them immensely. They’ve also been a huge help to me in my academic work as well as in writing my popular books.  I guess I thought this admiring view would hold for their other opinions as well. But I was sorely disabused this week when I read two screeds by high-class librarians.

The first one, below, is from a group of 13 “Ivy League+” librarians—including one from the University of Chicago—who have signed a document calling for major changes in universities and libraries. The most important of these is a call for the complete elimination of the police. Not just campus police, but all police.  This document, in fact, doesn’t materially differ from the unhinged manifestos and lists of “demands” regularly issued by students at American colleges. I am disappointed.

The Ivy+ manifesto begins with the requisite invocation of George Floyd as well as the required (but unevidenced) claim that their institutions are not only structurally racist, but complicit in sustaining that racism (emphases in the following are mine):

In early June, in the wake of the murders of George Floyd in Minnesota, Ahmaud Arbery in Georgia, and Breonna Taylor in Kentucky, library organizations and directors issued statements condemning racism and racial violence. A statement from the Association of Research Libraries [JAC: see below] implored that “[i]t is incumbent upon leaders of libraries and archives to examine our institutions’ role in sustaining systems of inequity that have left Black communities and other people of color in the margins of every aspect of our profession.”

. . . We recognize that librarianship, an overwhelmingly white profession, has systematically marginalized BIPOC, LGBTQIA+, and librarians with disabilities. The conceptualization of our demands would not be possible without the labor and leadership of these very librarians, theorists, activists, and communities. We also recognize the privilege and power held by Ivy+ and other major research libraries, and thus, it is imperative that we use our privilege to speak out against library practices that cause harm. We build from and stand in solidarity with abolitionist movements happening in all library spaces. We believe in order to fully embody the ethics of librarianship it is necessary to align with the practices and aims of abolition. We hope many more voices will join us in signing onto these demands and in this bold and beautiful work of dreaming, demanding, and being in a better world. Reckoning with our own histories of and complicity in white supremacy and anti-Black racism is in the best interest not only of our institutions and patrons but our profession at large. Libraries are not neutral, nor should they be silent — but we’ve heard, seen, and spoken enough — solidarity is not found in statements, but in actions, and the time to act is now.

Have libraries really been this bigoted and nefarious?

And they’re also said to also sustain the police. The group says that they—the librarians themselves—have internalized their bigotry:

. . . we believe libraries have not gone far enough in this examination by refusing to fully consider our relationships with policing, surveillance, and the prison–industrial complex. These library statements do not explicitly name policing itself as the problem — an expression and exacerbation of racial capitalism and violence — despite it being a very real and dire existential threat to Black, Indigenous, and other people of color (BIPOC), as well as those in the LGBTQIA+ community. Therefore, we find these statements morally and politically insufficient responses. Without naming the specific problem of policing, these statements not only let libraries off the hook for the many ways in which we have internalized the practices of the carceral state in our profession, but also leave the door open for “both sides’’ arguments or appeals to “law and order,” and encourage dangerous and ineffective reforms.

I won’t waste my time attacking this, for, according to Hitchen’s Razor, claims unsustained by evidence don’t need to be refuted by evidence. Perhaps these statements  just constitute the necessary self-flagellation and moral preening needed before they call for the elimination of both campus and regular police . They never, of course, say what will replace the police.

The solution to police violence is not reform but an abolition of policing in all its forms. Therefore, we call on the leadership of our institutions and all of our colleagues to embrace an abolitionist vision of a hopeful, life-affirming future and to immediately begin the work of divesting from police and prisons with the ultimate goal of the complete abolition of law enforcement and surveillance from library spaces, campuses, communities — in short, everywhere.

No more cops! They’re not just talking about campus police, for they want the abolition of law enforcement and surveillance from EVERYWHERE. Who will enforce the law, then? Apparently, nobody.  The attempt of students to disband the campus police at the U of C have already failed, but the librarians’ feeble attempt to adduce “evidence” for the ineffectiveness of campus policing is risible.

Many people will acknowledge the harm done by police and law enforcement but question the safety implications of defunding and divesting from policing on campus. But reporting from police forces shows that law enforcement and surveillance do not keep campuses safe. As Black organizers across the country have been declaring in the streets, “We keep us safe.” Therefore, we demand that library leadership remove any reliance on law enforcement as a means of addressing conflicts that arise in all library spaces by 2022.

I invite you to look at the link they give above. It goes to a Twitter thread from an associate professor at our University’s Harris School of Public Policy, a thread that uses our campus police database to show that black people get stopped disproportionately often by the campus cops, both in person and in traffic, compared to their frequency in the Hyde Park as well as in the University of Chicago student population.

That’s it: those data say nothing about the inability of campus police to keep the campus safe. And the disproportionality doesn’t point to any one cause; there could be more incidents involving black people, it could be genuine bigotry and racism, or it could reflect the fact that we’re surrounded by black communities and the campus police patrol a much larger area of the South Side than just Hyde Park. (Hyde Park extends south for 8 blocks, from 51st street to 59th Street, while the campus cops patrol 27 blocks—from 37th to 64th Street: more than 3 times the area of Hyde Park proper, with almost all of the additional area comprising black residents.)

Is this the best that librarians can do to support their claim? Librarians? They have all the research in the world at their fingertips, and this is what they do?

There are many other demands, of course, including eliminating video surveillance in libraries, divesting from companies that use prison labor, and so on, but I’ll let you read the document itself. (I myself happen to agree that prisons should not be privatized.)

And there’s a similar list of demands representing a much more extensive group of librarians—the Association of Research Libraries:

The Association of Research Libraries (ARL) is a nonprofit organization of 124 research libraries at comprehensive, research institutions in Canada and the United States. ARL member libraries make up a large portion of the academic and research library marketplace, spending more than $1.4 billion every year on information resources and actively engaging in the development of new models of scholarly communications.

You can read their statement below. It’s mercifully shorter than the Ivy+ document, but still makes the unevidenced claim that libraries “sustain systems of inequity”. Some of the “demands” are reasonable, like ensuring that there be an equitable proportion of employees of color, but others, like “highlighting the work of theorists, educators, and other scholars who have been studying about these phenomena for decades,” represent an ideological position that is unseemly for librarians. They want to emphasize Critical Theory. (That alone has taken this group down a notch.)

But that’s just my view. It’s Friday, and I’d rather be walking along Lake Michigan (which I will) than calling out these endlessly circulating manifestos of self-flagellation and insupportable demands. So you can read this one for yourself:

It’s not, of course, that I’m in favor of racism. Rather, I’m against extreme and histrionic statements that included unfounded claims, and against proposals that restrict speech and action but do nothing to help solve the problem of racial inequality in America. And I can tell you one thing: eliminating all police, both campus and public ones, is not going to do what the proponents think it will do.

U.S. companies lobby against a policy forbidding use of Uyghur slave labor in their products

December 4, 2020 • 9:00 am

One of the world’s great instances of immorality—indeed, a case of cultural genocide—is the attempt of the Chinese to persecute and, indeed, wipe out the Uyghur Muslim minority, most of whom live in the Xingiang Autonomous Region in the northwestern part of the the People’s Republic of China—the area in red below:

According to the BBC, over a million Uyghurs have been forced into “re-education camps”—the Chinese government denies their existence)—while the AP reports that there has been forced sterilization of Uyghur women as well as other forms of coerced birth control, all meant to diminish the population.

Another form of persecution of the Uyghur is the use of the captive population by the Chinese as forced labor to make products or components of products that find their way to America and other Western markets. Companies like Coca-Cola and Nike, for example, have been accused of using materials or products (e.g., entire shoes) made by forced labor (it’s not clear whether the workers get any remuneration, but they’re working against their will, and often doing so in these camps, always under surveillance).

Other companies implicated, according to the recent (Nov. 29) New York Times article and the Business Insider articles below (click on screenshost), include Adidas, Amazon, Apple, BMW, Costco, Calvin Klein, Campbell Soups (some of the forced labor is involved in growing food), H&M, Patagonia, and Tommy Hilfinger. The NYT also reports that there are 82 foreign companies “that potentially benefited, directly or indirectly, from abusive labor transfer programs tied to Xinjiang.”

Now many of these companies, when asked to provide statements, deny that they are complicit in the use of slave labor, and assert that their own protocols and investigations have exculpated them.  (Some give no comment.) But, as Business Insider reports, denials are not convincing in light of the obstructions that China places against independent inspection and auditing:

AppleNike, and Coca-Cola have over the years been accused by human rights groups of a variety of labor abuses and worker exploitation, particularly in China. They have also made various pledges and taken some steps to address that criticism.

Monitoring that, however, has become difficult. Five major auditing groups hired by Western firms told The Wall Street Journal in September that they are no longer carrying out supply chain inspections in China because restrictions imposed by government officials have made it too difficult to effectively and independently evaluate working conditions in the country.

And the NYT concurs:

. . . for many companies, fully investigating and eliminating any potential ties to forced labor there has been difficult, given the opacity of Chinese supply chains and the limited access of auditors to a region where the Chinese government tightly restricts people’s movements.

In response to these reports, and in a very rare show of bipartisan support, the U.S. House of Representatives passed a new bill, the Uyghur Forced Labor Prevention Act (see the bill here), whose provisions include these (from Wikipedia):

The Uyghur Forced Labor Prevention Act would make it U.S. policy to assume (a “rebuttable presumption”) that all goods manufactured in Xinjiang are made with forced labor, unless the commissioner of U.S. Customs and Border Protection certifies that certain goods are known to not have been made with forced labor. The bill also calls for the President of the United States to impose sanctions on “any foreign person who ‘knowingly engages'” in forced labor using minority Muslims. The bill would further require firms to disclose their dealings with Xinjiang. A list of Chinese companies that have relied on forced labor would be compiled.

In light of Chinese obstructions against investigations, it seems reasonable to presume that slave labor has been used in Xinjiang-origin products, and for companies to either stop importation of products from the region, or conduct genuine, independent, and non-obstructed audits to certify that slave labor has not been used.  In fact, the bill passed the House by a lopsided vote of 406-3 (the “nay” votes were Justin Amash, Libertarian-Mich; Warren Davidson, R-Ohio; and Thomas Massie, R-Kentucky), with the Senate predicted to pass it as well. If it passes both houses of Congress, either Trump or Biden could sign it into law, and it looks like there’s enough votes that Congress could override a potential Trump veto (Biden won’t veto it).

However, the three stories below, also including one from the Washington Post, show that some U.S. companies have lobbied against this bill. While Nike denies the lobbying, asserting that it merely had “constructive discussions” with congressional staff (I don’t believe them), I am puzzled about why there would be any lobbying if the companies aren’t depending on forced labor. You might respond that they aren’t doing that, but that companies don’t want to go through an onerous and expensive process to prove it. But can’t they farm out the labor to places where it’s not forced and used as a form of persecution? Granted, it may be a tad more expensive, but I doubt Americans wouldn’t pay a bit more for assurance that slave labor isn’t being used.

From the New York Times:

From Business Insider:

From the Washington Post:

This is a serious charge, especially given the political climate in the U.S. today, formed in part by a justified repugnance towards slavery. Isn’t it possible for these companies to simply use non-forced Chinese labor from areas other than Xinjiang? What heartens me is that the House and Senate can work in a bipartisan way to effect positive change, even if this bill is a no-brainer.

Supreme Court comes down on side of churches in New York’s pandemic restrictions on congregation size

November 26, 2020 • 10:00 am

In a new ruling, the U.S. Supreme Court overturned New York Governor Andrew Cuomo’s limitation of congregation sizes in churches during the pandemic.  The ruling was split 5-4, with new Justice Amy Coney Barrett voting with the conservative majority—affirming the side of the Roman Catholic Church, which brought the suit—while Chief Justice Roberts voted with the liberals. (Had RBG been alive, the vote would have been 5-4 the other way.)  Beside the unsigned majority opinion, there are separate concurring opinions by Justices Gorsuch and Kavanaugh, while there are dissenting opinions by Roberts, Breyer, Kagan, and Sotomayor in various combinations.

While the judgment affirmed that Cuomo’s order violated the First-Amendment guarantee of freedom of religion, one shouldn’t assume that the decision was purely one of religious conservatism, for this was a tough call.  You can read the opinion below (the unsigned majority take is short), or read the New York Times article about the decision (click on both screenshots below).

The Times’s article:

This ruling overturns two lower-court decisions affirming Cuomo’s decision to force churches to have 10 or fewer congregants during the “red-zone” phase of the pandemic.  One of the reasons the majority overturned this restriction (which has since been rescinded!) is that the numerical restriction was not imposed on businesses other than churches. Hence, one could construe that this violates the First Amendments “free exercise” provision by discriminating against churches.

From the majority decision:

In a red zone, while a synagogue or church may not admit more than 10 persons, businesses categorized as “essential” may admit as many people as they wish. And the list of “essential” businesses includes things such as acupuncture facilities, camp grounds, garages, as well as many whose services are not limited to those that can be regarded as essential, such as all plants manufacturing chemicals and microelectronics and all transportation facilities. See New York State, Empire State Development, Guidance for Determining Whether a Business Enterprise is Subject to a Workforce Reduction Under Recent Executive Orders, https://esd.ny.gov/guidance-executive-order-2026. The disparate treatment is even more striking in an orange zone.  While attendance at houses of worship is limited to 25 persons, even non-essential businesses may decide for themselves how many persons to admit.

Irreparable harm. There can be no question that the challenged restrictions, if enforced, will cause irreparable harm. “The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U. S. 347, 373 (1976) (plurality opinion). If only 10 people are admitted to each service, the great majority of those who wish to attend Masson Sunday or services in a synagogue on Shabbat will be barred. And while those who are shut out may in some instances be able to watch services on television, such remote viewing is not the same as personal attendance. Catholics who watch a Mass at home cannot receive communion, and there are important religious traditions in the Orthodox Jewish faith that require personal attendance. App. to Application in No. 20A90, at 26–27.

But against this, one could argue, as did Justice Sotomayor in her dissent, that businesses that didn’t have government-specified limits are materially different, in terms of viral spread, from church congregations, especially where congregants are singing loudly. From her dissent:

But JUSTICE GORSUCH does not even try to square his examples with the conditions medical experts tell us facilitate the spread of COVID–19: large groups of people gathering, speaking, and singing in close proximity indoors for extended periods of time.

As I noted, the case appears moot because the numerical limits obtaining at the time of the lawsuit have since been lifted (this was emphasized in the dissents). But the majority opinion took that into account as well, saying that Cuomo’s decision could be reversed, and rather than re-litigate the issue, I presume the court wanted to render an opinion that would be in place should that reversal take place:

The dissenting opinions argue that we should withhold relief because the relevant circumstances have now changed. After the applicants asked this Court for relief, the Governor reclassified the areas in question from orange to yellow, and this change means that the applicants may hold services at 50% of their maximum occupancy. The dissents would deny relief at this time but allow the Diocese and Agudath Israel to renew their requests if this recentreclassification is reversed.

There is no justification for that proposed course of action. It is clear that this matter is not moot. See Federal Election Comm’n v. Wisconsin Right to Life, Inc., 551 U. S. 449, 462 (2007); Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U. S. 167, 189 (2000). And injunctive relief is still called for because the applicants remain under a constant threat that the area in question will be reclassified as red or orange. See, e.g., Susan

B. Anthony List v. Driehaus, 573 U. S. 149, 158 (2014). The Governor regularly changes the classification of particular areas without prior notice.3 If that occurs again, the reclassification will almost certainly bar individuals in the affected area from attending services before judicial relief can be obtained.

I suppose Left-wing sites might couch this as an unwarranted, pro-faith opinion supported by the usual suspects, who now include Barrett. And that may be the case, but it’s not a cut-and-dried issue. Here are my thoughts:

1.) It is supremely important to uphold the Free Exercise clause, just as it’s important to uphold the entire First Amendment, which includes freedom of speech as well as of worship.

2.) Nevertheless, when public safety is compromised by free exercise of religion, the former trumps the latter, as it has historically. Practicing one’s faith does not give you the right to endanger those who are not of your faith.  This gives courts the power to restrict religious practice if it, for example, is likely to spread coronavirus.

3.) But one cannot discriminate against churches in this respect, imposing sanctions on them that aren’t imposed on similar enterprises like businesses.

4.) HOWEVER, and this is the most important bit for me, is a church with a congregation limit of 10 equivalent to a business like Wal-Mart in which more than ten people are present at once—in a much larger space? I don’t think so, particularly when church congregants sing and pray without masks, a particularly dangerous way of spreading the virus via respiratory droplets.  I’m not sure whether the court’s decision, holding equivalence such as this, is justifiable, and Sotomayor makes that point. This is in fact a public health rather than a legal decision, and is not really within the court’s competence.

5.) As for the restrictions having changed, rendering the original lawsuit moot, I do agree with the majority that given the to-and-fro of restrictions during the pandemic, a judgment was still warranted. Whether this was the right one, I am not sure. But it’s better to have some opinion in place rather than having the matter re-litigated should restrictions once again be imposed.

Perhaps there are lawyers in the crowd here who want to render an opinion, and I have to say that I haven’t scrutinized the entire set of opinions minutely. But this decision doesn’t bother me as much, as, say, ones that pose more serious dangers, including those that restrict abortion or dismantle the Affordable Care Act. But those will be coming, for the court is now solidly conservative—even if Justice Roberts is mellowing in his old age.


ACLU staff attorney calls for censorship of Abigail Shrier’s book on gender dysphoria

November 14, 2020 • 12:15 pm

What’s happened to the American Civil Liberties Union (ACLU) is a crying shame. And I say this even though I volunteered for them, have been a member on and off, and was the recipient of their largesse when, for no fee, they represented me and four other defendants in a class-action suit about illegal drafting in New York. I went to the ACLU, and their lawyers took the case, arguing successfully in Federal court that we were drafted illegally as conscientious objectors. This freed a couple of thousand men from forced civilian service. I’ve always been deeply grateful for the ACLU’s help.

Although the ACLU is still doing a lot of good legal work defending genuine civil liberties, they’re also getting woke in a way that, to me, deeply compromises their integrity. I’ve done a fair number of posts calling out their dubious stands over the last few years; these include posts bearing these titles (click to see them):

The ACLU backs off defending free speech in favor of promoting social justice

New improved standards proposed for adjudicating sexual misconduct in college; ACLU opposes them for “inappropriately favoring the accused”

The ACLU defends the right of biological men to compete in women’s sports

ACLU continues defending the right of medically untreated men who claim they’re women to compete in women’s sports

ACLU joins lawsuit allowing biological males to compete in women’s sports

What’s especially worrying is the ACLU’s backing off on free speech (the subject of today’s short post); its pushback against one good thing that the Trump administration did: making the Title IX proceedings adjudicating sexual misconduct fairer; and the organization’s big push to defend the “right” of medically untreated biological males to participate in women’s sports. Now of course the ACLU should be defending transgender rights, for every person, regardless of gender status, should enjoy equal rights under the law, and discrimination on the basis of gender is largely illegal. And they’ve done a good job of that (see below).

But the ACLU has also gone a bit off the rails on the transgender issue, arguing that even biological men who haven’t undergone hormone therapy should be allowed to compete in sports against biological women.  As I reported a while back, the ACLU defended two Connecticut people who were born male, identify as female, and, without any hormone therapy or surgery, decided to compete against biological women in track and field. In fact they did compete, and did very well, for Connecticut law mandates that self-identification as a woman is all you need to compete in women’s sports. The ACLU buys into the argument that you’re a woman simply if you claim to be a woman.

But the organization shouldn’t be defending something so manifestly unfair. They’re also making a big push to defend transgender athletes without reservation, despite the notoriously slippery issues involved in defining “men” and “women” for transgender athletes. The standards for competing, as in the Olympics, are subject to much dispute. The ACLU’s view is apparently that a claim itself is all that’s needed to deem you a man or a woman.

And now, to my great sorrow, an ACLU staff lawyer and champion of transgender rights, Chase Strangio, has come out full bore in favor of censorship.  I’m referring to his demanding, as shown in the tweets below, censorship of a book we discussed yesterday: Abigail Shrier’s treatise on gender dysphoria in adolescent and teenage girls, Irreversible Damage.

Although Strangio’s tweets are “protected”, I assume that the two below, reproduced by “Wokal Distance”, are accurate. In the second, he blatantly advocates censorship of Irreversible Damage, “stopping the circulation of the book and these ideas.” How else can that be interpreted as censorship? And “stopping ideas” should not be the business of the ACLU, which has always defended the First Amendment. They should be defending the right of Shrier to publish her book and circulate her ideas, not fight against them. This shows how low the ACLU, at least in the person of Strangio, has fallen. An organization dedicated to defending civil liberties is calling for their suspension when they offend people.

Now Strangio has done great stuff in areas that do comport with the ACLU’s mission. Wikipedia describes two cases:

In October 2019, Strangio was one of the lawyers representing Aimee Stephens, a trans woman who was fired from her job at a funeral home, in the U.S. Supreme Court case R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission.

Strangio and his team won that case, with the conservative Supreme Court ruling 6-3 that Title VII of the Civil Rights Act of 1964 protected transgender people from employment discrimination. (The plaintiff was a transgender woman fired from a funeral home.)

Strangio was also on the team that won a similar landmark case.

In June 2020, the U.S. Supreme Court decided 6–3 in favor of Gerald Bostock, a gay man terminated from his job due to discrimination on the basis of sexual orientation, in Bostock v. Clayton County. Strangio was one of the lawyers on the case. The case ruled that it is illegal to discriminate in employment on the basis of transgender identity or sexual orientation.

But Stangio’s tweet above isn’t even a case of his deciding between two conflicting rights. There is a right to promulgate your ideas; there is no “right” for the transgender community to be protected from criticism about gender dysphoria and medical intervention in adolescent girls.

Strangio is favoring censorship, pure and simple, and a watering down of First Amendment rights: “stopping circulation of this book.” Is Shrier’s argument so injurious to transgender people, and to society in general, that it cannot be read or heard? I don’t think so.

Remember that the ACLU defended the rights of the American Nazi Party to march through Skokie, Illinois: a Jewish community. Surely that’s more hurtful than Shrier’s book, for the Nazis call for the deportation and death of Jews, while Shrier is merely telling society to examine the cause of an epidemic of gender dyphoria in young girls.  The “unwavering commitment to principle” that the ACLU itself touts in the Skokie case is apparently not shared by Strangio.

Like the Southern Poverty Law Center, the ACLU is damaging its mission by buying into wokeness, and nobody is reining in either of these once-great organizations.  It’s a huge shame.