Cathedral Round-Up #12: The Rise of Mommy-Law

After reading several books and numerous articles by lawyers of various stripes, you can’t help but notice their philosophy of law. (In this case, Just Mercy, by Bryan Stevenson, and The Real Watergate Scandal, by Geoff Shepard.) Now, I am sure that actual legal scholars and philosophers have developed a whole vocabulary and system of concepts for discussing these sorts of things, but as I am not a legal philosophy scholar, I am limited to my own bumbling language.

The American legal tradition, from the Constitution on down, is based on the notion that man is his own sovereign; judges do not advocate on behalf of one person or group, but dispassionately arbitrate between them.

Thus the First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Government does not chose a side.

For the first two hundred years or so of our country, the proper functioning of law was seen as protecting the interests of the individual, both against predation by others and from over-reach by the state. Just as the scientific method protects truth by demanding a theory be falsifiable and tested against this counter-scenario, so the legal system protects freedom by putting the burden of proof on the Prosecution and demanding that the accused be treated as “innocent until proven guilty.”

Properly functioning, the law protects the individual. This idea of law-functioning-as-intended-protects-people is found in both Just Mercy and The Real Watergate Scandal, in which both authors describe cases of judges and prosecutors interfering with the proper functioning of law to deprive defendants of a fair trial. A fair trial, they argue, would have exonerated their defendants.

Obviously this view is still current among lawyers, who like to see themselves as moral people who deserve their paychecks. But among non-lawyers, the view seems to have shifted radically over the past few decades. SJWs in particular seem to have decided that the legal system is not as the protector of rights, but the protector of oppressors.

To some extent, this is due to the absolutely true fact that rich people can afford better lawyers than poor people can, corporations use the legal system to drive down competition, and there are so many laws now on the books that if they want to arrest you, they can almost always find something to charge you with.

And while the BLM crowd appears to be statistically incorrect on the matter of cop-on-black shootings, they are absolutely correct that there are a lot of black people in prison: “One in six black men had been incarcerated as of 2001.”

But these are, we might argue, a practical matter, easily resolved by repealing drug laws or forcing everyone to use public defenders or some other measure I leave for you to imagine. Increasingly, though, it seems like the very ground rules of a “free society protected by laws” are coming under attack.

Take Freedom of Speech.

Free Speech has historically been regarded as necessary for the existence of a free, democratic society, both because it is impossible to discuss important political matters if certain opinions are not allowed to be expressed, and because it is an insult to free men to dictate what they may and may not discuss. That Freedom of Speech covers matters deemed noxious to common sentiments like pornography, flag burning, or KKK rallies was seen mainly as an unpleasant but generally ignorable side-effect of a properly functioning legal necessity. Thus even the hyper-liberal ACLU would defend the rights of the KKK to march and pornographers to publish.

Today, by contrast, Freedom of Speech is regarded by many on the left not as defending their own rights, but as a legal fig leaf to protect bigots, Nazis, Klan members, and Charlie Hebdo while they spread their vile, hate-filled messages.

According to Gallup, 27% of college students favored campus restrictions on  “expressing political views that are upsetting or offensive to certain groups;” 69% favored restrictions on “slurs” and “intentionally offensive” speech; and 63% want their administrations to ban offensive Halloween costumes. Further, 40% of Millennials want the government to restrict speech “offensive to minorites.”

See: Yale’s costume crisis:

(Since Youtube crashes my computer, please let me know if I don’t have the best video.)

When you start demanding that the authorities dictate which costumes you can wear while screaming in outrage at anyone who suggests that you might be old enough to dress yourselves, you don’t want freedom, you want mommy.

That’s why I call this the rise of Mommy Law, a legal philosophy in which the government’s proper role is no longer to mediate between equals, but to defend the helpless–blacks, women, LGBTQIAs, Muslims, etc.–from their oppressors. It is implicit, under Mommy Law, that these groups have no agency of their own and could not take care of themselves without the government’s help.

Thus, for example, it is now seen as the proper role of law to award millions in damages to gay couples just because someone objected, on religious grounds, to baking them a wedding cake. Likewise, the government has decided it is inappropriate to investigate the Orlando shooter’s Islamic ties, because that would disproportionately impact Muslims.

Interestingly, criminal law–especially as it relates to rape–has been the locus of much of this change for decades. Just Mercy goes into this in some depth, because changes in criminal law over the past few decades have ironically had a major effect on black people, so I regret deeply that I do not have the text at hand to quote for you. In short, IIRC, the emphasis in criminal court cases shifted from the “state” prosecuting a criminal who had disturbed the common order (hence the phrasing, “The State of X vs. Joe Bob,” to the state acting on behalf of the victims. Certain rights of the defendant related to cross-examination of witnesses, especially child victims of rape and other violent crimes, have been curtailed to avoid distressing the witnesses.

(Children, of course, actually are helpless and should be treated as such, but the feminist demand that we “Believe the Children” has still led to many people being incarcerated on obviously false charges, like flying through the air on a magic broom.)

This is all quite understandable in light of the feminists’ War on Rape, which you should be familiar with if you’ve ever spent 5 minutes around feminists. Unfortunately for the feminists, most rapes are difficult to prosecute under normal legal standards. Unlike robbery, in which the transfer of one man’s wallet to another man’s pocket is clearly a crime, people–even strangers–engage in consensual sex all the time. In a great majority of cases, we have nothing more to go on than the testimonies of the two people involved, one of whom claims consensuality and one of whom claims not. Victory in such cases requires lower standards of evidence and a weakening of the presumption of “Innocent until proven guilty.”

And with that very long introduction, here are some recent articles from the Yale Daily News:

State Passes Affirmative Consent Legislation:

Last Wednesday, the Connecticut Senate voted 35 to one in favor of a bill requiring both private and public colleges and universities in the state to adopt affirmative consent as the standard in handling cases of sexual misconduct on campus.

Commonly defined as “yes means yes,” the affirmative consent standard puts the burden of proof on the accused party, who is now responsible for demonstrating that affirmative consent was given before any sexual activity took place. Lawmakers in support of the bill stressed that affirmative consent means “active, informed, unambiguous and voluntary agreement” and will help university administrators handle sexual misconduct on campus with greater efficacy and clarity. Several Connecticut universities, including Yale, already use an affirmative consent standard. …

Students from different colleges and universities across the state gathered in front of the Connecticut State Capitol in April to demonstrate their support for the bill when it was being considered in the House.

Philosophy Community Signs Open Letter in Striking Rebuke of Pogge:

Nearly a month after sexual misconduct allegations arose against renowned Yale philosophy professor Thomas Pogge, simmering anger within the philosophy community has turned into open outrage as more than 200 philosophy professors around the world — including 16 full Yale professors — have signed an open letter condemning Pogge’s alleged misconduct. …

… philosophy professor Shelly Kagan, who was department chair when Pogge was hired, said what Pogge has admitted to doing is inappropriate and unprofessional. During a 2011 UWC investigation, Pogge acknowledged that he had shared a hotel room with Lopez Aguilar and slept on her lap during a flight, although he added that both actions were suggested by her.

“The things about going to the conference with a former student and sharing a hotel room and he admitted to sleeping with his head on her lap. That is not appropriate behavior,” Kagan said in an interview with the News…

Even Affirmative Consent won’t save Pogge.

Teammate launches fundraiser for Montague:

“Just months from graduation and weeks before our basketball team clinched an Ivy League title, Jack Montague was forced to leave school and abandon his team in light of a university sexual assault investigation that presented no evidence that proved his guilt. Not only was Jack stripped of a Yale degree which he had worked over three and half years to earn, he was also denied the once in a lifetime opportunity to play in the NCAA tournament alongside his teammates,” …

The basketball team drew criticism earlier this year for demonstrating support for Montague after rumors of his expulsion began to circulate. In a Feb. 26 home contest against Harvard, 16 days after Montague was expelled, the team took to the court wearing T-shirts with the former captain’s nickname and number on the back. The following week, posters appeared around campus condemning the team for “supporting a rapist.”

Montague suit one of more than 100 alleging universities violated students’ rights:

Filed in a federal court last week, Montague v. Yale University et. al joins more than 100 recent civil suits alleging that college students accused of sexual misconduct were not granted fair hearings in campus proceedings. …

In one of the most powerful critiques of university sexual misconduct procedures, presiding judge F. Dennis Saylor denied Brandeis’s motion to dismiss charges in March, ruling that four of the eight charges, including the breach of contract charge, could stand. …

Explicitly supporting the lower evidence standard mandated by the U.S. Department of Education’s Title IX compliance guidelines, Saylor questioned whether Brandeis’s sexual misconduct procedures have gone too far. …

In recent years, dozens of universities have been taken to court for their handling of sexual misconduct allegations. Lawsuits claiming that accused students’ due process rights were denied have proliferated since the Department of Education’s Office of Civil Rights issued a public letter to Title IX coordinators in April of 2011. The 19-page document, known as the “Dear Colleague” letter, laid out a series of guidelines for educational institutions that receive federal funding and are thereby obliged to comply with Title IX, the clause of the Education Amendments of 1972 that prohibits discrimination on the basis of sex.

Perhaps most significantly, educational institutions were instructed to use a “preponderance of the evidence” standard  — meaning, the letter explains, “it is more likely than not that sexual harassment or violence occurred” — when investigating allegations of sexual harassment or violence.

This lower standard, used in campus proceedings involving sexual misconduct but not in criminal cases, reduces the level of certainty required to find students guilty of sexual misconduct, opening the door for students to claim that their due process rights — to hear and respond to evidence, or to cross-examine opposing witnesses, among others — were violated.

Due process is a constitutional right, but Rendell-Baker v. Kohn (1982) ruled that private universities are not required to adhere to the same standards of due process as courts. A student undergoing a Title IX investigation at a college is not guaranteed the same rights — a jury of one’s peers or the right to know opposing evidence, for example — as a criminal who committed a comparable crime in a non-university setting.

So what else has been going on at Yale?

Yalies Mourn and Offer Support in Wake of Orlando Shooting

Galvez said she was away from campus when the tragedy took place and found it difficult to grasp that people of her community are dying for being their authentic selves.

She added that the shooting was a violation of a safe space for queer people of color, who have been deemed unworthy of love, civil liberties and now the right to live.

“Our Latinx, LGBTQ and Yale communities at large are hurting — we are mourning for our hermanxs,” she said. “There are some that will use this incident to target those in our Muslim communities, however, it is love and not hate that will help us in our path towards alleviating our hearts. Indeed, our Muslim hermanxs are also hurting and mourning with us.” …

As a non-native Spanish speaker, I suppose I don’t have a right to get anal about the butchering of grammatical gender endings in English-renderings of Spanish words, but how do you even pronounce “hermanxs”?

I remember those long ago days of Spanish class, when we first learned about this whole concept of “grammatical gender” and how it operates in Spanish, and some of us started bristling up and saying, “But isn’t that sexist?” Our Mexican teacher immediately shot us down. No, grammatical gender is just part of how the language operates, not an expression of how people feel about men and women.

According to Wikipedia, Proto-Indo-European had to genders, “Animate and Inanimate.” Oh those bigots! Latin had three genders, indicating that the Romans were really into trans rights. Swahili has 18 genders, evidence of severe mutation after a nuclear accident (also, ninja turtles.) English has only a few evil words left, like “duchess,” because it is the current year and we are now enlightened.

(Duchessship is one of the few words in English with three identical letters in a row.)

Etymologically, the term “gender” in “grammatical gender” actually doesn’t mean “the word is a girl or a boy.” It just means “type” or “kind,” as in the word “genus,” a taxonomic rank above species but below family for classifying groups of animals, eg, house cats and wildcats are both in the genus Felis.

I am an absolute blast at parties.

Continuing on…

He added that the majority of the Orlando victims were Blacks or Latinx enjoying Latin Night at Pulse nightclub, a place where people should be able to dance free from stigma and discrimination. That many have overlooked this important fact or used the tragedy to scapegoat Muslims is frustrating, Paredes said. …

LGBTQ Co-Op Coordinator Kyle Ranieri ’18 said the Orlando shooting has deeply affected him and many of his queer friends. To attack gay clubs and bars is to devastate “the epicenter of queer communities,” Ranieri said.

Ranieri said he is pleased with Salovey’s email, which recognized the tragedy as a targeted attack against the LGBTQ Latinx community, but he expects the administration to take steps to ensure a safe campus for queer people of color in the coming semester.

It’s Yale’s job to keep gay blacks and Hispanics safe from the likes of the Orlando shooter, but not from Muslims.

The Divide: A portrait of Muslim Student Life at Yale:

Ishrat Mannan ’17 stood by a lonely table, pamphlets in hand. Her disinterested classmates streamed past her, lining up to attend the event of the day: a talk by Ayaan Hirsi Ali, titled “Clash of Civilizations: Islam and the West.” Even though the physical distance that separated them could not have been more than a few feet, Mannan found that she and her fellow Yalies might as well have been in different ideological worlds. In one, Islam was a symbol of peace and a way of life. In the other, it was a foreign relic of a bygone era, interesting to study but not to take seriously. “That huge divide,” recalls Mannan, “just felt really, really disheartening.” …

Acceptance can be hard in a place as secular as Yale. …

Whether it is in Global Affairs or Modern Middle East Studies, Islam is usually taught from the specific viewpoint of radical violence and national security. It’s not that good classes about Islam don’t exist at Yale. Rather, it’s that students choose not to take them.

“[Classes about Islamic civilization] are not the popular, sexy classes that get high attendance,” says Bajwa. “Muslim civilization, Muslim history, intellectual history, social history, Muslim culture’s contributions to society, those are the classes that have anemic attendance.” …

I can’t imagine why.

Yale’s general academic attitude toward Islam is just the tip of the iceberg. If anything, it is reflective of subtle Islamophobia on parts of campus. This tension between the Muslim and non-Muslim Yale communities has manifested itself more than once in Yale’s recent history.

Seven years ago, the master of Branford College invited Kurt Westergaard, one of the 12 Danish cartoonists who drew offensive cartoons of the Prophet Muhammad in 2005, to a Master’s Tea. …

Then in 2012, the New York Police Department’s massive spying operation on at least 15 Muslim student organizations across the country came to light, and with it the revelation that Yale students had been the unwitting targets of extensive surveillance, suspected solely on the basis of their religion. The incident hit hard, but fortunately the Yale administration issued a statement of support for the Muslim community on campus, with former University Vice President Linda Lorimer telling the News that Yale “supports [the MSA’s] goals and aims and is grateful for its leadership on our campus,” adding that she had been “both inspired and educated by the MSA.”

I think that is the opposite of Islamaphobia on campus, but who can keep track of such detaisl?

Perhaps the toughest blow, though came last year, with the William F. Buckley Jr. Program’s invitation of Hirsi Ali, a well-known anti-Islamic speaker. …

Who is this Hirsi Ali? According to Wikipedia:

Ayaan Hirsi Ali … is a Dutch-American activist, author, and former politician of Somali origin. She is a leading opponent of female genital mutilation, and calls for a reformation of Islam.^[1]…

Ayaan was born in 1969^[14] in Mogadishu, Somalia.^[15] Her father, Hirsi Magan Isse, was a prominent member of the Somali Salvation Democratic Front and a leading figure in the Somalian Revolution. Shortly after she was born, her father was imprisoned owing to his opposition to the Siad Barre government.^[16][17]

Hirsi Ali’s father had studied abroad and was opposed to female genital mutilation. But, while he was imprisoned, Hirsi Ali’s grandmother had the traditional procedure performed on five-year-old Hirsi Ali.^[16]

After her father escaped from prison, he and the family left Somalia, going to Saudi Arabia and then to Ethiopia, before settling in Nairobi, Kenya, by 1980. There he established a comfortable upper-class life for them. Hirsi Ali attended the English-language Muslim Girls’ Secondary School. By the time she reached her teens, Saudi Arabia was funding religious education in numerous countries and its religious views were becoming influential among many Muslims. A charismatic religious teacher, trained under this aegis, joined Hirsi Ali’s school. She inspired the teenaged Ayaan, as well as some fellow students, to adopt the more rigorous Saudi Arabian interpretations of Islam, as opposed to the more relaxed versions then current in Somalia and Kenya. Hirsi Ali said later that she had long been impressed by the Qur’an and had lived “by the Book, for the Book” throughout her childhood.^[18]

Yup, Hirsi Ali is clearly an ignorant, anti-Muslim bigot. Back to Yale:

What started off as a small event exploded into a raging firestorm that drew in the national media and numerous student organizations across campus. Arguments were made, op-eds were written, letters were sent, and before anyone knew it, Hirsi Ali’s event had somehow evolved into an epic showdown between protecting free speech and preserving a safe space. … “A lot of people have become very open about how disillusioned they are with Yale,” says Mannan…

Just as it is really hard to be black at Harvard, it’s really hard to be Muslim at Yale.

Money Talks: Yale recently decided to name one college after Anna Murray (“an intellectual, an activist and member of the clergy” and “a queer woman of color and civil rights activist“) and one after Benjamin Franklin (due to one donor’s request,) and some students are unhappy:

But we shouldn’t honor one donor’s request that stands so wildly in contrast to the prevailing opinion and wishes of students on campus. … But it’s also true that Yale students today are unimpressed — and angry, saddened and deeply frustrated — with this naming decision. But one day, some of us will have wallets that rival Johnson’s, and will be in a position to make these types of decisions to steward and direct this institution. Yale is raising us to be its future alumni, and as future alumni, we can perhaps — as a whole — value the voices of students on campus over our own egos. We must hope for more decisions that look like Pauli Murray College, and much fewer that look like Franklin.

They should have named it after Hamilton.

Our Missed Opportunity:

Amidst the tears and painful conversations last semester, a note of optimism hung in the air. The March of Resilience in November affirmed a widespread commitment to, in University President Peter Salovey’s own words, “a better Yale.” Student activists delivered concrete policy demands to administrators, with some tangible results. Despite the University’s past failures to address the concerns of students and faculty of color, there was a glimmer of hope.

At around 5:30 p.m. Wednesday, that hope was unceremoniously dashed. …

Murray College, a symbol of progress and equality, will stand next to Franklin College, whose name seems to have carried a $250 million price tag.

The new college will be permanently engraved with the name of Benjamin Franklin, a slaveowner whose only affiliation with Yale is one honorary degree.

Ben Franklin dashed their hopes.

Yale will eliminate a title to which few were attached, and name one residential college after a queer woman of color. But in deciding to do so, they have paradoxically insulted the very students who have fought so hard for change. When paired with its calculated verdicts on Calhoun and Franklin College, the symbols of progress start to look rather unprogressive.

That’s because protesting over the names of colleges is actually really dumb.

Salovey: We cannot seek truth by hiding it:

Some students have expressed the view that their engagement and advocacy in the fall were wasted. Nothing could be further from the truth. We value your voices, and the initiatives we announced then and now reflect our respect for the student, alumni, faculty and staff who participated.

Initiatives for a more inclusive Yale, some already underway and others newly announced in November, are being implemented. We want to be held accountable as we fulfill important commitments to strengthen the academic enterprise, expand programs for students, improve institutional structures and increase representation of diversity on campus. …

Scholars and students across the University engage in these activities each day. The research and education mission of the Gilder Lehrman Center for the Study of Slavery, Resistance and Abolition at Yale is a major participant in conversations on campus and across the nation. The new Center for the Study of Race, Indigeneity and Transnational Migration will add new voices, on our campus and around the world. We must use our voices and our influence as students and as educators to share that knowledge with broader society and seek solutions, not just solace. …

Help us shape the historical study of names and memorials to be undertaken throughout the campus. The Committee on Art in Public Places requests student and faculty insights into what iconography we must create and change to better reflect the nature of our community and our history. Submit a proposal to the juried competition that will select a piece of art to defy the beliefs of John C. Calhoun by shining a light on equality and justice.

Let us end with Yale News’s Commencement 2016 Opinion:

But college is no easier at Yale than anywhere else. In these four years you have lost friends, flunked tests and cried in courtyards when you realized life was more confusing than an admissions brochure made it out to be. You have turned tears into change as you held your Yale accountable. You have called for racial justice, environmental change, mental health reform, sexual consent, international human rights and so much more. From New Haven to St. Louis, college voices like yours are shaping the course of this country. And in expressing your experience of isolation and oppression, you found a community and a home here. Perhaps this is the most important lesson you have taught us: None of us are alone.